Heritable Jurisdictions (Scotland) Act 1746

The Heritable Jurisdictions (Scotland) Act 1746 (20 Geo. II c. 43) was an Act of the Parliament of Great Britain passed in the aftermath of the Jacobite rising of 1745. It abolished the traditional judicial rights afforded to a Scottish clan chief.^[1]

The long title of the Act, which sets out the scheme and intention, is:

An Act for taking away and abolishing the Heretable Jurisdictions in Scotland; and for making Satisfaction to the Proprietors thereof; and for restoring such Jurisdictions to the Crown; and for making more effectual Provision for the Administration of Justice throughout that Part of the United Kingdom, by the King’s Courts and Judges there; . . . and for rendering the Union of the Two Kingdoms more complete. For remedying the inconveniences that have arisen and may arise from the multiplicity and extent of heretable jurisdictions in Scotland, for making satisfaction to the proprietors thereof, for restoring to the crown the powers of jurisdiction originally and properly belonging thereto, according to the constitution, and for extending the influence, benefit, and protection of the King’s laws and courts of justice to all his Majesty’s subjects in Scotland, and for rendering the union more complete.

Article XX of the Union with England Act, 1707, had recognized these jurisdictions and other heritable offices as rights of property which the continued in spite of the union,^[2] and so on abolition compensation was paid to the deprived heritors.

Traditionally, Scottish lords had inherited regalities and had been able to judge in civil and criminal cases among their dependants.^[3] The Act put an end to this by extending universal royal jurisdiction throughout Scotland. The powers previously possessed by Scottish lords were transferred to sheriffs appointed by the King and the hereditary justiciarship of Scotland, held by the family of Argyll, was to be purchased and transferred to the High Court and Circuit-courts of Justiciary. Parliament granted £152,000 for the purchase of heritable jurisdictions.^[4] The Prime Minister Henry Pelham considered this the most important measure in dealing with Jacobitism in Scotland.^[5]

Lord Hardwicke argued in favour of the Act by asserting that if the powers were restored to the crown it would enable it to secure the allegiance of the people: "The people will follow those, who have the power to protect or hurt them". Consequently, it was imperative for ministers of a constitutional monarch to remove these powers from private persons.^[6] However the Duke of Argyll argued that the decentralisation of jurisdictions was a major bulwark of liberty and Montesquieu believed that the multiple jurisdictions were a check on the crown and therefore a defence of liberty.^[7] Hardwicke replied that multiple jurisdictions could be a safeguard against an aspiring absolute monarch in a state without a constitutional check on its powers. Britain, however, was not in that position. The British constitution had limited the powers of the monarch and its prerogatives and therefore liberty was secure. Private jurisdictions themselves would endanger liberty by encroaching on the legal authority of a constitutional monarchy.^[8] King George II, in a speech written by Hardwicke, praised the Act as measures for "better securing the liberties of the people there".^[9]

The act was made soon after the Battle of Culloden in which government forces defeated the Jacobite rebellion led by Charles Edward Stuart.^[10] Not all clans had supported the rebellion, but the Act nevertheless stripped all clan chiefs of their traditional rights to call men to arms.^[11]

Most of its provisions have since been repealed, but it still specifies that any noble title created in Scotland after 6 June 1747 may grant no rights beyond those of landlordship (collecting rents).^[12]

Notes

1. ↑ "Abolition of Heritable Jurisdictions Act." Encyclopædia Britannica. 2008. Encyclopædia Britannica Online. accessed 27 August 2008.
2. ↑ Original text of the Act of Union
3. ↑ Robert Chambers, History of the Rebellion of 1745–6 (W. & R. Chambers, 1869), p. 484.
4. ↑ Chambers, p. 484.
5. ↑ P. J. Kulisheck, ‘Pelham, Henry (1694–1754)’, Oxford Dictionary of National Biography, Oxford University Press, Sept 2004; online edn, Jan 2008, accessed 15 June 2009.
6. ↑ Reed Browning, ‘Lord Hardwicke, the Court Whig as Legist’, Political and Constitutional Ideas of the Court Whigs (Louisiana State University Press, 1982) p. 172.
7. ↑ Browning, p. 172.
8. ↑ Browning, p. 173.
9. ↑ Browning, p. 173.
10. ↑ Culloden: The Last Charge of the Highland Clans by John Sadler. NPI Media Group, 2006. ISBN 0-7524-3955-3.
11. ↑ Proceedings of the Scottish Parliament on 27 September 2000: A Debate on the Highland Clearances, accessed 27. Aug. 2008.
12. ↑ Office of Public Sector Information, Heritable Jurisdictions (Scotland) Act 1746 (c.43), Revised Statute from The UK Statute Law Database