Commissary Courts
Before the Reformation, the church, rather than the civil courts, had jurisdiction in cases concerning marriage and legitimacy, confirmation of testaments and inheritance of moveable estates, oaths, defamation or slander, and cases involving the clergy or benefices. Bishops were responsible for exercising this jurisdiction, but much was delegated to clerics called officials and commissaries who seem to have operated on a geographical basis within each diocese and heard cases on consistorial courts.[1]
Following the Reformation, the Privy Council appointed commissaries in Edinburgh and by 1566 commissary courts had been re-established. In addition to covering Edinburgh and the Lothians, the principal commissary court at Edinburgh dealt with marriage, divorce, separation and legitimacy and with the confirmation of testaments of people who died outside Scotland or who had no fixed domicile. Local commissary courts dealt with the confirmation of testaments and related matters, and with defamation or slander, aliment and debts under £40 Scots.
In 1823 all commissary courts apart from Edinburgh ceased to be separate courts and their jurisdictions effectively transferred to the sheriff courts with each sheriffdom becoming a local commissariot.[2] At the same time the debts jurisdiction was removed from the Edinburgh commissary court to the sheriff court. In 1830 cases relating to marriage, divorce and legitimacy were transferred to the Court of Session while aliment cases were transferred to the sheriff courts.[3] In 1836 the Edinburgh commissary court ceased to exist and its jurisdiction transferred to the sheriff court of Edinburgh.[4] The commissariots were finally abolished in 1876 and the duties of commissary clerks transferred to sheriff clerks except for the commissary clerk of Edinburgh. Thereafter, sheriff clerks were required to provide a quarterly list of confirmations to the Edinburgh commissary clerk, creating a central register of confirmations. The Edinburgh commissary clerk also continued to deal with the confirmation of testaments of people who died outside Scotland.[5]
The records of the Commissary Courts are held by the National Records of Scotland (reference code CC). Further details about the history of the commissary courts and the types of records they generated can be found in the NRS online research guide <https://www.nrscotland.gov.uk/research/research-guides/research-guides-a-z/commissary-court-records.> Information on the history of divorce in Scotland, and the records these created, can be found in the relevant NRS guides: <https://www.nrscotland.gov.uk/research/research-guides/research-guides-a-z/divorce-records > and <https://www.nrscotland.gov.uk/research/guides/divorce-records/finding-divorce-records> [all accessed 26 April 2024]
Compiler: Elspeth Reid (2023)
Related Knowledge Base entries
Bibliography
Cooper, Lord, of Culross ‘The Central Courts after 1532’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton, (Stair Society, 1958) pp. 341-49
Donaldson, Gordon ‘The Church Courts’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton, (Stair Society, 1958) pp. 363-73
Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996)
Walton, F.P., ‘Courts of the Officials and the Commissary Courts, 1512-1830’ in An Introductory Survey of the Sources and Literature of Scots Law (Stair Society, 1936) pp. 133-53
The Laws of Scotland: The Stair Memorial Encyclopaedia 2nd re-issue Vol 6 (Butterworths, 2023)
References
[1] Gordon Donaldson, ‘The Church Courts’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton pp. 363-64.
[2] Commissary Courts (Scotland) Act 1823 (4 Geo.IV c.97); Donaldson ‘The Church Courts’ p. 371.
[3] Court of Session Act 1830 (11 Geo. IV & 1 Will IV c. 69).
[4] Commissary Court of Edinburgh, etc, Act, 1836 (6 & 7 Will. IV. c. 41).
[5] Sheriff Court (Scotland) Act 1876 (39 & 40 Vict. c.70).