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The Reform of the Scottish Sheriffdoms in the Eighteenth and Early Nineteenth Centuries*

Published online by Cambridge University Press:  11 July 2014

Ann E. Whetstone
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Extract

The main feature which distinguishes Scottish local government from English local government in the later eighteenth and most of the nineteenth century is the presence there of professional men—the sheriffs. The sheriff, and later the sheriff-substitute, was the key to the legal and administrative system in the Scottish countries. He had no English equivalent. Essentially he was a representative of the central government who administered justice at the local level. After the reforms of 1748 the sheriff was a bureaucrat in the finest sense—highly trained and efficient. The substitute acquired strict standards more slowly, but by 1830 he too had to meet high standards in training and performance.

Before the mid-eighteenth century, the sheriff had hardly been a progressive figure. Indeed, the Scottish sheriff typified the backward state of Scottish local government, a state which had been little affected by the Act of Union. In 1700 Scotland lacked a uniform system of justice. Independent franchise courts and hereditary rights to judicial offices, including that of sheriff, were common throughout the Lowlands. They were relatively rare in the Highlands, because the king's justice had never made sufficient headway to make possible or necessary these particular legal perversions.

Type
Research Article
Information
Albion , Volume 9 , Issue 1 , Spring 1977 , pp. 61 - 71
Copyright
Copyright © North American Conference on British Studies 1977

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Footnotes

*

A version of this paper was read at the Midwest Conference on British Studies at Minneapolis, Minnesota, October, 1974. The financial assistance of the United States-United Kingdom Educational Commission, which supported the research upon which this paper is based, is gratefully acknowledged.

References

1 They probably numbered over two hundred. In 1748 112 separate heritable jurisdictions were found worthy of compensation; and this figure excludes the lordships of barony, the most common jurisdiction, as they were not compensated. Baronies, jurisdictions that had lapsed since 1700, and jurisdictions that were lost by Jacobites, must easily have numbered over one hundred. The Acts of Sederunt of the Lords of Council and Session, 1553-1790 (Edinburgh, 1790), pp. 416–431Google Scholar. [Hereafter cited as Acts of Sederunt.]

2 Several important jurisdictions were held by the dukes of Argyll, Gordon, and Atholl who were the chiefs of powerful loyalist clans. Even counting the holdings of these men, only four of the forty-eight lordships of regality were held by highland chiefs. Ibid. Mathieson, William Law, Scotland and the Union: A History of Scotland from 1695 to 1747(Glasgow, 1905), p. 373.Google Scholar

3 The Court Book of the Barony of Camwath, 1523-1542, William Croft Dickson, ed. Scottish History Society Publications, Third Series, Vol. 29 (Edinburgh, 1937), p. xlvii, n. 1.Google Scholar

4 6 Anne (1707), C. 41. Willock, Ian Douglas, The Origins and Development of the Jury in Scotland, Stair Society Publications, 23 (Edinburgh, 1966): 47.Google Scholar

5 Public Record Office [PRO], State Papers [S.P.] 54/14/301-2 (6 November 1724). List of the Sheriffs in Scotland.

6 Eight of the sheriffs depute in 1747 were advocates. Most of the rest probably had other, lesser legal qualifications. PRO, S.P. 54/38/127-8 (enclosed in a 29 February 1747/8 letter). The Lord Justice Clerk to Newcastle.

7 Complex or important cases, especially those involving capital punishment, were often withdrawn from the sheriffs. On their circuits, which by 8 Anne (1709), C. 16 the sheriffs were required to attend, the Lords regularly inquired if there were any complaints against the sheriffs.

8 In 6 Anne (1707), C. 40, s. 2 the Scottish justices were given the powers of English justices, with the proviso that “the methods of trial and judgement shall be according to the law and customs of Scotland.” The proviso effectively denied them the powers of English justices because only the high courts used juries in Scotland. Therefore a Scottish quarter session had about the power of an English ordinary session.

9 20 Geo. II (1747), C. 43.

10 The High Constable of Scotland, five hereditary vice admiralties, and all the lordships of barony were preserved. The last, however, were much limited in their rights; within a few years even this limited jurisdiction was rarely exercised. It is a true measure of their importance that they were not formally abolished until 11/12 Geo. VI (1948), C. 62.

11 Each county always had at least one resident sheriff substitute, but the number of sheriffdoms constantly changed.

12 Geo. II (1747), C. 43, s. 30. Where a stewardry comprehended a whole county, as in the cases of Kirkcudbright and the Shetlands and Orkneys, it was allowed by the Heritable Jurisdictions Act to remain. But there was no longer any legal difference between a steward depute and sheriff depute.

13 The high sheriff, or more usually the sheriff principal, had no duties at all. This caused confusion later. The Law Commission of 1815 admitted: “What functions belong to the High Sheriff, when appointed, we have not been able to trace distinctly.” Parliamentary Papers [PP], Law Commission of 1815, Third Report on the Sheriff end Commisary Courts, p. 7.

14 An act of 1357 had ordered sheriffs to appoint deputes, and these men often hired substitutes to perform their duties. By 1747 the sheriffs depute did most of the work of the sheriffdoms although they often hired substitutes to some tasks.

15 Sheriffs were to be appointed first for seven years and then for life by 20 Geo. II (1747), C. 43. In 1755 life appointments were delayed for a further fifteen years by 28 Geo. II (1755), C. 7. Whatever freedom this gave the government was never used. There were no men removed after seven years.

16 An advocate is the Scottish equivalent of the English barrister.

17 The salaries always varied according to the population and size of the sheriffdom and were based on the assumption that the office was part-time. The first salaries were only £150-£250 per year including expenses. Scottish Record Office [SRO], Exchequer [E.] 313/4. Warrant of 10 April 1750. A few minor fees were still collected by the sheriffs depute for minor administrative services.

18 21 Geo. II (1748), C. 19, s. 10. Substitutes were also covered here.

19 Ibid., s. 11.

20 The Home Secretary was responsible for appointing the sheriffs depute, but the Lord Justice Clerk provided most of the suggestions.

21 PRO, S.P. 54/38/75 (18 February 1747/8). Newcastle to the Lord Justice Clerk.

22 The number of men with twenty or more years of experience dropped from 48% among the original appointees to only 25% of those chosen between 1748 and 1820. In these same years 36% had less than ten years of practice.

23 PRO, Home Office [H.O.] 102/3/168 (? September 1787). Home Office to the Lord Advocate.

24 PRO, H.O. 102/3/164 (26 August 1789). Lord Advocate to Lord Sydney.

25 PP, Law Commission of 1815, Third Report on the Sheriff and Commissary Courts, p. 12.

26 PRO. H.O. 102/3/164 (26 August 1789). Lord Advocate to Lord Sydney.

27 PRO, H.O. 102/18/273 (12 September 1803). Charles Hope, Lord Advocate, to Charles Yorke. The policy of offering pensions was much weakened by administrative problems. Sheriff Law's attempts to get his money could hardly have been encouraging to others.

28 It is impossible to tell exactly how many. The sheriff court minutes are some help. Those for Cromarty, Linlithgow and Fife, for instance, show that until about 1780 their sheriffs depute were regularly sitting in the sheriff courts and so were probably resident. But the failure to sit regularly does not necessarily mean non-residence since sheriffs could be resident and leave ordinary sittings to their substitutes. SRO, Sheriff Court [S.C.] 21/1/1, Cromarty Minute Book (1773-1814). SRO, S.C. 41/4/5, West Lothian Sheriff Court Diet Book (1770-79). SRO, S.C. 20/2/39, Fife (Cupar) Act Book (1780-81).

29 The Warrant of 25 March 1811 required the sheriffs substitute to report how long the sheriffs depute spent in their sheriffdoms. (SRO, Chancery [C.] 8/143. Warrant of 25 March 1811.) In 1814 only four sheriffs spent more than six months in their sheriffdoms. Another eight spent the four months. The others appeared for a few days, a few months, or merely “when necessary.” The trend was towards residence “when necessary” or occasionally. SRO, E. 331/1-2, Sheriffs Residency Record (1812-1839).

30 Clark, Robert, A View of the Office of Sheriff, in Scotland (Edinburgh, 1824), p. 257.Google Scholar

31 Parliamentary Debates, House of Commons, New Series, XI; 26. The Lord Advocate.

32 Most of the substitutes' salaries reported to the government in 1751 were £20 to £30. PRO. S.P. 54/41/passim. (1751). Only two of the early commissions registered with the government in 1787 mention salaries; they were for £10 and £40. So apparently the 1751 range held until the reform. SRO, E. 313/7/38 & 34. Warrants of Substitution.

33 In the 1751 reports on the condition of the substitutes most in the lowland towns were said to have some kind of legal training; a few were even advocates.

34 SRO, E. 307/9/93 (12 May 1786). Report concerning the Jurisdiction and Present Situation of the Sheriffs in Scotland.

35 SRO, E. 313/7/passim.

36 Acts of Sederunt, 6 March 1783, pp. 606-7.

37 SRO, E. 307/9/92-97 (12 May 1786). Report concerning the Jurisdiction and Present Situation of the Sheriffs in Scotland.

38 SRO, E. 313/7/-. Warrant.

39 This was used generously. The Warrant of 1787 provided for forty-two substitutes, more than there had been; and the number constantly increased as the need arose in the following century, until it reached fifty-five in 1866.

40 From 1788-1790, for instance, seven of the eleven new appointees were men with legal background. SRO, E. 313/7/passim.

41 SRO, E. 313/11 (25 March 1811). Warrant.

42 6 Geo. IV (1825), C. 23, s. 9. Writers to the Signet and solicitors before the Supreme Courts prepared cases which appeared before the central courts; the former were more select and had some special privileges.

43 Seven of the fourteen men appointed between March 1826 and March 1832 were so qualified. (SRO, E. 313/16/passim.) And with later raises, more and more appointments went to advocates and Writers to the Signet.