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Description |
1 Act Books, 1579/80-82, 1599-1605, 1610-1823 (with gaps).
2 Processes, 1658-1823 (with gaps).
3 Register of Testaments, 1576/7-1823 (with gaps).
4 Warrants of Testaments, 1596-1823.
5 Register of Inventories and Settlements, 1806-23.
6 Petitions, 1773-1823.
7 Edicts, 1661-1823 (with gaps).
8 Bonds of Caution, 1664-1823 (with gaps).
9 Register of Deeds etc., 1594-1602, 1605-40, 1656-68, 1680-1714, 1773-1809.
10 Warrants of Deeds, 1636-1740, 1742-1810.
11 Warrants of Protests, 1724-68 (with gaps).
12 Inventory of Records
13 Miscellaneous Papers, 1644-1750.
Search Room Indexes
Scottish Record Society (1902) - Testaments, 1576/7-1800 (CC3/3 and CC3/4).
Typescript (S.R.O.) - Testaments and Inventories, 1801-23 (CC3/3, CC3/4 and CC3/5). |
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history |
COMMISSARY COURT RECORDS
This repertory lists all commissary court records prior to 1823 (in some cases, shortly thereafter) which are now preserved in the Scottish Record Office. All surviving testamentary records of date prior to 1823 have been transmitted, but it is known that some other commissary material, notably warrants of the commissary registers of deeds, may still be held by local sheriff courts. For commissary records after 1823 in the Scottish Record Office, see repertory of sheriff court records.
Historical Note
Information on the historical background and procedure of the commissary courts may be found readily in The Sources and Literature of Scots Law (Stair Society vol 1, 1936), An Introduction to Scottish Legal History (Stair Society vol 20, 1958) and the older editions of Currie's The Confirmation of Executors in Scotland. A brief note must suffice here.
After the Reformation, the extensive civil jurisdiction exercised by the bishops' courts was abolished (APS, III, 36) and their functions were assumed by commissary courts set up by royal authority. From 1566 to 1609, appointment of commissaries was made by the Crown on nomination by the Court of Session. From 1609 to 1688, the nomination was conferred on bishops with a lapse during the commonwealth period. Crown appointment resumed after 1688. The principal commissary court was established at Edinburgh with both local and general jurisdiction (APS III, 574; Balfour's Practicks Stair Society vol 2, pp670-673). Its local jurisdiction covered the Lothians, Peebles and part of Stirling; its general jurisdiction extended over the whole of Scotland including the islands. It had an exclusive jurisdiction in cases which were strictly of a consistorial nature (constitution or dissolution of marriage, divorce, separation, legitimacy) and in the confirmation of all persons dying domiciled furth of Scotland, or without any fixed domicile, having personal (moveable) estate in Scotland. It had a right of review of the decisions of inferior commissaries throughout Scotland although appeals were usually made direct to the Court of Session. The decrees of the principal commissary court were subject to review by the Court of Session. The inferior commissary courts were originally thirteen in number, but this number was subsequently augmented. The territorial extent of their jurisdiction differed from county boundaries. Details of the areas embraced by each commissariot appear in the introductory notes to the indexed of testaments published by the Scottish Record Society, and for convenience a list follows of modern counties and relative commissariots. An alphabetical list of all parishes in Scotland and the commissariots to which they respectively belonged may be found in Keith's Historical Catalogue of the Scottish Bishops to 1688. The commissary courts had an exclusive jurisdiction in the confirmation of testaments, the registration of inventories and settlements and other executry matters. They also had a concurrent jurisdiction with other judges ordinary in actions of slander, the authentication of tutorial and curatorial inventories, actions for aliment, and actions for debt, limited to £40 Scots unless the debtor consented to their jurisdiction. The commissary court books were at one time a competent record for all deeds with a clause of registration and for probative writs registered under the Act of 1698 c.4 and for protests under the Act of 1681 c.86. This facility was terminated by Act 49 Geo. III c.42 (1809).
By Act 4 Geo. IV c.97 (1823) all inferior commissary courts were abolished and the commissariot of Edinburgh was restricted to the sheriffdoms of Edinburgh, Haddington and Linlithgow. The boundaries of the inferior commissariots were made conterminous with the sheriffdoms and the offices of commissary and commissary clerk were assumed by those persons then acting as sheriff and sheriff clerk respectively. The appellate jurisdiction of the commissary court of Edinburgh was abolished and the sole right of review vested in the Court of Session.
By Act I Will. IV c.69 (1830), the sheriffdoms of Haddington and Linlithgow were detached from Edinburgh and erected into separate commissariots on the same footing as the others. The jurisdiction of the commissary court of Edinburgh in consistorial causes was transferred to the Court of Session by the same statute and cases of aliment transferred to the sheriff courts as part of ordinary court business. Commissary jurisdiction was retained in actions of adherence and other consistorial actions not recited in the Act of 1830 until Act 13 and 14 Vict, c.36 (1850) when these were transferred to the Court of Session. By Act 6 and 7 Will. IV. c.41 (1836), the commissary court of Edinburgh was abolished and its powers and jurisdiction transferred to the sheriff. As a result of these statutes, commissary business was gradually restricted to confirmation of executors, the registration of inventories and settlements and matters connected therewith. Finally, by the Sheriff Courts (Scotland) Act, 1876 (39 and 40 Vict. c.70) commissary courts were abolished completely and their functions taken over by the sheriff courts. The office of commissary clerk of Edinburgh was retained, however, and the sheriff court of Edinburgh remained the proper forum for the confirmation of testaments of persons dying furth of Scotland possessed of moveable estate in Scotland.
The acts of 1823 and 1830 (4 Geo. IV c.97 and I Will. IV c.69) provided for the transmission of the main commissary court records to HM General Register House, Edinburgh. These transmissions have been supplemented in recent years from sheriff courts by orders issued in terms of the Public Records (Scotland) Act, 1937.
Confirmation and Inventories
According to the ancient practice of the commissary courts, all executors whether nominate or dative were bound to give up on oath an inventory of the whole moveable estate of the deceased in order to obtain confirmation. From a very early period, however, the commissaries had dispensed with a complete inventory and granted confirmation on whatever inventories were produced even though these were notoriously defective. Nor were executors obliged to expede confirmation at all if they could recover estate without it. By Act of 1690 c.26 the commissaries and their officers had right to compel executors to confirm testaments but they were forbidden to exercise this right except at the instance of next of kin or creditors. Confirmation to part of the estate was held sufficient to vest the whole succession, and the practice therefore grew to confirm only to whatever part of the estate for which confirmation was necessary for its recovery. This was done also to avoid the incidence of fees calculated on the amount of the estate confirmed. The 'quot' or bishop's portion, which originally amounted to one- twentieth of the gross moveable estate, was restricted to one-twentieth of the free estate in 1669, and was abolished entirely in 1701. Nevertheless, various fees and charges amounted to a tax of from 1 to 3½% on the estate. The amount of the sum confirmed also determined the amount of caution which the executor was obliged to find. By the Revenue Act of 1808 (48 Geo. III c.149), superseding a statute of 1804 (44 Geo. III c.98), all executors or intromitters with the estates of deceased persons were obliged to lodge in the commissary court a full inventory duly stamped of the moveable estate, but they were not obliged to take confirmation and partial confirmations were still possible. With the exception of executor creditors who might continue to limit their confirmations to the amount of their debt, partial confirmations were abolished by Act 4 Geo. IV c.98 (1823). The commissary courts did not maintain registers of inventories and settlements separate from the registers of testaments (confirmations) previous to 1804, practice requiring inventories and testamentary deeds to be recorded only along with confirmations, but by Act 44 Geo. III c.98 of that year it became necessary to record inventories and relative testamentary deeds whether confirmation was required or not.
Indexes
The main series of indexes to testaments was published by the Scottish Record Society over a period of years. These volumes have now been amended and supplemented by typescript indexes prepared in the Scottish Record Office where they may be consulted. In addition, various MS lists were compiled by some commissary clerks and others about the time of transmission of the records and these 'inventories of records', which are put up with the original records of the commissariot, provide adequate guides to groups not covered by the search room indexes.
APPENDIX
COUNTY COMMISSARIOT
Aberdeen Aberdeen, Moray
Argyll Argyll, The Isles
Ayr Glasgow
Banff Aberdeen, Moray
Berwick Lauder
Bute The Isles
Caithness Caithness
Clackmannan Dunblane, Stirling
Dumfries Dumfries
Dunbarton Glasgow, Hamilton & Campsie
East Lothian (Haddington) Edinburgh, Dunkeld
Edinburgh City Edinburgh
Elgin & Nairn Moray
Fife Dunkeld, St Andrews, Stirling
Forfar Brechin, Dunkeld, St Andrews
Glasgow City Glasgow, Hamilton & Campsie
Inverness Argyll, Inverness, Moray
Kincardine Brechin, St Andrews
Kinross Dunblane, St Andrews, Stirling
Kirkcudbright Dumfries, Kirkcudbright, Wigtown
Lanark Glasgow, Hamilton & Campsie, Lanark
Midlothian (Edinburgh) Edinburgh
Orkney & Shetland Orkney & Shetland
Peebles Peebles
Perth Dunblane, Dunkeld, St Andrews
Renfrew Glasgow, Hamilton & Campsie
Ross & Cromarty Ross, The Isles
Roxburgh Peebles
Selkirk Peebles
Stirling Glasgow, Hamilton & Campsie, Stirling
Sutherland Caithness
West Lothian (Linlithgow) Edinburgh, Dunkeld
Wigtown Wigtown
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