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Tuesday 21 October 2014
 
 
 

Commissary court records

The National Archives of Scotland (NAS) holds the records of the commissary courts. At the Reformation of 1560, the system of consistorial courts where the bishops exercised their civil jurisdiction over executry and matrimonial cases, broke down. This led to such confusion that the commissary courts were re-established between 1564 and 1566. The new system of commissary courts lasted until 1823.

The principal commissary court at Edinburgh had general jurisdiction over the whole of Scotland and local jurisdiction over the Lothians, Peebles and part of Stirlingshire, the two latter areas being later removed.

Decorative letter from a register of testaments from Orkney and Shetland Commissary Court, 1 August 1612, NAS ref. CC17/2/2 p5

It had exclusive jurisdiction in cases of a strictly consistorial nature, such as marriage, divorce, separation and legitimacy and in the confirmation of testaments of all persons dying outside Scotland, with or without any fixed domicile, who had moveable estate in Scotland. The court had the right of review of inferior commissaries throughout Scotland although appeals were usually made direct to the Court of Session, which also had right of review of the decisions of the principal commissary court.

History

The jurisdiction of the inferior commissary courts was based on that of the pre-Reformation episcopal diocese and not of the shire. Their main business was the confirmation of testaments, the registration of inventories and settlements and other executry matters. They also had jurisdiction in actions of slander, the authentication of tutorial and curatorial inventories (given up by the appointed administrator of a fatherless child), actions for aliment (maintenance of a wife, children or relative) and actions for debt up to a limit of £40 Scots. Both the Edinburgh Commissary and the inferior Commissary Courts kept Registers of Deeds until 1809. There are, however, none for Wigtown and only the warrants survive for Aberdeen and the Isles.

In 1823 all inferior commissary courts were abolished and their business transferred to the sheriff courts. The commissariot of Edinburgh was restricted to the sheriffdoms of Edinburgh, Haddington and Linlithgow. In 1830 the jurisdiction of the commissary court of Edinburgh in consistorial causes was transferred to the Court of Session and cases of aliment were transferred to the sheriff courts as part of their ordinary court business.

In 1836 the commissary court of Edinburgh was abolished and its powers and jurisdiction were transferred to the sheriff court. The commissary courts were finally abolished completely and their functions taken over by the sheriff courts in 1876. 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 outside Scotland possessed of moveable estate there.

The records

Commissary court records, particularly testaments, are an extremely valuable source for family history, but also for local, social and economic history. The earliest surviving records of testaments begin before the Reformation: Edinburgh 1514, Dunblane 1539, Glasgow 1547 and St Andrew 1549. For the early modern period there is no other record group which gives such an all round picture of the lives of ordinary Scots, their standard of living, business and personal contacts and patterns of agriculture.

The records for each commissariot normally include the following:
  • act and diet books
  • decrees, processes
  • court proceeding
  • petitions
  • edicts of executry
  • tutorial and curatorial papers
  • deeds and protests
  • bonds and acts of caution
  • and confirmations and other testamentary material.

A full index to the wills and testaments is available on the ScotlandsPeople website. Volumes of indexes for testaments to 1800 were published by the Scottish Record Society between 1897 and 1909 and are available in the Historical Search Room and in some larger libraries. They have also published a List of Consistorial Processes and Decreets in the Commissariot of Edinburgh (1909) relating to cases of divorce, separation and aliment, nullity of marriage and illegitimacy.

Further information on wills and testaments and details of records and indexes available can be found in our guide to wills and testaments.

For further information on records relating to divorce, read our guide to divorce records.

Further reading

'Guide to the National Archives of Scotland' (Stationery Office, 1996) pp155-163.

'The sources and literature of Scots law', (Stair Society, 1936)

Stair Society, 'Scottish legal history' (Stair Society, 1958)

Stair Memorial Encyclopaedia, 'The laws of Scotland', vols 6 and 22.


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