Burgh Courts
From medieval times, royal burghs were given the privilege of being allowed to hold their own courts with jurisdiction over criminal, civil and administrative matters within the burgh boundaries. The remit of the court included the following:-
- The administration of the burgh in the earliest times (before separate formal minutes were kept relating to the exercise of the town council’s executive authority).
- Small debt.
- Theft
- Removal of tenants.
- Assault
- Breach of the peace.
- Inquests
- Services of heirs.
- Offences against trading rights and standards.
- Boundary and other property disputes.
- The maintenance of good moral and social behaviour.
The series of records produced by the courts reflect all of this activity and are often the earliest surviving record of the burgh along with chartularies and protocol books. Burghs of barony were also given jurisdiction over a similar range of crimes. The four pleas of the crown (murder, rape, robbery and wilful fire-raising) were excluded from burgh jurisdiction from an early period. Some burghs were granted charters giving their magistrates the powers and jurisdiction of a sheriff within the bounds of the burgh.[1] Burgh courts were also responsible for registering deeds and keeping protocol books.[2]
In the 17th century the creation of the Court of Session removed some of the work of burghs in registering deeds and legal documents, and the creation of justices of the peace and quarter sessions courts within the burghs overlapped with the jurisdiction of the burgh magistrates. The Heritable Jurisdictions Act 1747 limited the rights of some burghs of barony in criminal cases and some burgh courts fell into abeyance as the sheriff courts dealt with more matters.[3]
In the 19th century the Police Acts gave the magistrates of police burghs jurisdiction over various offences involving begging and vagrancy, control of markets, dealers, the cattle trade and other civil matters but reserved the rights of the sheriff courts and justices of the peace courts.[4] In 1892 this was consolidated as jurisdiction over offences under the Police Acts or any bye-laws.[5] Magistrates were elected from the members of the town council but they could appoint a stipendiary (paid) magistrate who was to be an advocate or otherwise qualified and they were required to appoint a clerk and a burgh prosecutor. The burgh court could impose a prison sentence of up to 60 days or a fine of up to £10 or order caution for good behaviour for up to six months. Crimes such as murder, culpable homicide, robbery, rape, wilful fire-raising, serious assault, housebreaking and theft greater than a set value (originally £10) were excluded from the burgh courts. From 1947 town councils were empowered to appoint any councillor who had held the office of magistrate as a judge in the police court. Burgh and police courts continued to operate until they were abolished by the District Courts (Scotland) Act 1975[6]
Burgh court and police court records are mainly held by local authority archives services. Some are held by the National Records of Scotland (reference codes B).
Compilers: Pam McNicol (Stirling Council Archives, 2021), Elspeth Reid (2021)
Related Knowledge Base entries
Bibliography
MacQueen, Hector L. & William J. Windram, ‘Laws and Courts in the Burghs’ in The Scottish Medieval Town ed. by Michael Lynch, M. Spearmann & G. Stell, (John Donald, 1988), pp. 208-27
Pryde, George S., ‘The Burgh Courts and Allied Jurisdictions’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp. 384-95
Robertson, David, & Marguerite Wood ‘Burgh court records 1319-1834’ in An Introductory Survey of the Sources and Literature of Scots Law (Stair Society, 1936), pp.98-110
Whyte, W. E., Local Government in Scotland (Hodge & Co, 1936)
References
[1] Hector L. MacQueen & William J. Windram, ‘Laws and Courts in the Burghs’ in The Scottish Medieval Town ed. by Michael Lynch, M. Spearmann & G. Stell, (John Donald, 1988), pp. 208-27 (p.215).
[2] George S. Pryde, ‘The Burgh Courts and Allied Jurisdictions’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp.384-95 (pp.387-88).
[3] Pryde, ‘The Burgh Courts and Allied Jurisdictions’ p.389.
[4] Burgh Police (Scotland) Act 1833 (3 & 4 Will. IV c.46); General Police and Improvement (Scotland) Act 1862 (25 & 26 Vict. c.101).
[5] Burgh Police (Scotland) Act 1892 (55 & 56 Vict. c.55).
[6] District Courts (Scotland) Act 1975 (c.20).