| 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.
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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.
National Archives of Scotland
Crown copyright 2006
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