While Scotland has been a part of Great Britain since 1707, a key part of the Treaty of Union was the preservation of an independent Scottish judiciary. From a family history point of view this means that whatever you may read concerning English and Welsh records in books and publications, when it comes to Scotland you will need to park all of that to one side, and to understand how things were done differently north of the border. While there may be an overlap in parts between what English and Scots law might cover, there are many other areas where the two nations diverge completely – and where many unique record collections of genealogical value exist that quite simply have no English or Welsh equivalent.

Historically there have been three major areas of law under which Scotland has been governed. Two of these, criminal and civil law, have been, and continue to be, administered by the state. The third, canon law, was the law of the Kirk. Following the Reformation, John Knox tried to implement an idea borrowed from John Calvin in Geneva, known as the Godly Commonwealth, by which the Kirk would be responsible for the discipline and education of the nation’s flock. The ‘fear of God’ was quite literally put into folk to keep them on a path to ‘godliness’, with investigated offences including irregular marriage, antenuptial fornication, disrespecting the Sabbath and defamation. If found guilty of an indiscretion, punishments could involve rebukes and humiliation before the congregation, fines, and even excommunication. People found to have transgressed the Kirk’s laws would be first dealt with by the local church court, known as the kirk session, or through the superior court of the presbytery. From the Kirk’s point of view, the state’s own civil courts were there to back up and enforce rulings if parishioners refused to abide by them, or if they refused to appear (‘compear’ in the old Scots language) when summonsed.

The state did not quite see things this way, and ran its own parallel Crown based judicial systems, with the monarch believed to be God’s servant or ‘vassal’ on earth, leading to much conflict between the Kirk and the Crown well into the 19th century. Before the mid-18th century minor crimes were heard at local Sheriff Courts across the country by sheriffs or sheriff-deputes, with cases prosecuted on their behalf by a ‘procurator-fiscal’, a position which still exists to this day. The sheriff’s role was initially hereditary, until reforms passed in 1747 led to their individual appointments by the state, with in most cases a sheriff-substitute or sheriff-depute per county (the original sheriff position itself being transformed into a more ceremonial role). In 1870 further reforms saw the country carved into fifteen sheriffdoms. This was later reduced to twelve, whilst from 1975 there have been six sheriffdoms in the country.

Cases were heard before a jury of 15 jurors, with the crimes prosecuted including assault, hamesucken (assault of a person at home), stouthrief (the theft of property from a building in the presence of its occupants), defamation, poaching and rape. For the more serious crimes of murder, rape, arson and robbery – known as the ‘four pleas of the Crown’ – there was another set up entirely. Those accused would be held in tollbooths until a nationwide travelling circuit of Crown appointed judges known as ‘justiciars’ arrived in town to hear the case. If found guilty, justiciars had the authority to pronounce ‘doom’ on a person’s soul, to have them executed. When passing judgement on Scottish cases there were three possible verdicts, which still remain to this day, being guilty, not guilty and not proven. The latter verdict is unique to Scots law, and implies a suspicion of guilt without the necessary evidence to convict. In 1672 Scotland’s highest criminal court, the High Court of Justiciary, was established in Edinburgh, although High Court judges continued to travel around the country on circuits four times a year.

From the 18th century the Sheriff Courts have been granted some civil court functions, most notably for family historians in cases of confirmation (the Scottish form of probate) and divorce. Since 1532, however, the main civil court of the land has been the Court of Session, which handles cases involving breaches of contract between individuals, defamation, family law and other civil law issues. In 1810 the Court of Session was divided into two courts, with an Outer House as a court of first instance, and an Inner House as a court of appeal (occasionally also for first instance). In 1815 a Jury Court was also temporarily created to allow trial by jury for civil matters, which was then absorbed into the Court of Session in 1830.

The Sheriff Courts and the Court of Session, although being the primary bodies for criminal and civil cases, were not the only courts with jurisdiction in Scotland. Although Scotland was never conquered by the Normans, the influence of England’s invaders did make its way north across the border in the 12th century, most notably through the imposition of the Norman concept of feudal tenure by the Scottish Crown. Whilst the concept was abandoned in England and Wales in the Middle Ages, its influence on the law thrived as a growth industry in Scotland (and was not officially abolished until November 2004). In addition to the shiring of the country, and the creation of burghs within which to trade, various unique feudal enclaves were also established by the Crown to loyal vassals, such as baronies, stewartries and bailieries. They were given a degree of independence to run their territories, and to prosecute local justice within bodies called franchise courts. The only exceptions were cases involving the four pleas of the Crown, and treason, reserved to the justiciars. Within the royal burghs, the forerunners of many of today’s major towns, there were separate burgh courts also, within could also prosecute minor civil and criminal cases, such as disputes over payments owed, assault or breach of the peace.

Many other smaller courts also existed, and in some cases continue to do so. The Edinburgh-based Court of the Lord Lyon (www.lyon-court.com), for example, continues to enforce Scottish armorial law, and even has its own procurator fiscal. The Commissary Courts, which existed from the Reformation until the 1820s, and which replaced the earlier consistorial courts of the Roman Catholic Church, dealt with confirmation (probate) matters, divorces and bastardy cases for over 250 years. Justices of the Peace were also created in the 17th century, while the Admiralty Court oversaw cases on the high seas from 1557-1830, before its functions were handed to the Court of Session. Prior to the Treaty of Union with England, a separate Privy Council also existed, in which many of the nobility wished to be tried by their peers, rather than through the common courts. It was abolished in 1708.

The records of the courts can be a godsend for fleshing out a family history, where ancestors may be identified as perpetrators, victims or witnesses, but they may take some effort to properly work through, as not all collections are yet indexed. Most records from the criminal and civil courts are held at the National Records of Scotland (NRS) in Edinburgh, which hosts handy series of research guides at www.nrscotland.gov.uk/

research/guides/a-z, including detailed descriptions of the various court records. The archive’s catalogue at http://catalogue.nrscotland.

gov.uk/nrsonlinecatalogue/welcome.aspx, is well worth searching by an ancestor’s name, as many cases are catalogued at item level.

Surviving franchise court records can be found within estate papers at the NRS, in local archives or within private collections, with such collections searchable through the National Register of Archives for Scotland and the Scottish Archive Network at nrscotland.gov.uk/research/catalogues-and-indexes. A guide to locating burgh records is available at nrscotland.gov.uk/research/research-guides/research-guides-a-z/burgh-records. Note also that some court records have been published, with several digitised volumes accessible online via Google Books and the Internet Archive .