Commentary on Article XX

XX. Heritable jurisdictions

THAT all heritable Offices, Superiorities, heritable Jurisdictions, Offices for Life, and Jurisdictions for Life, be reserved to the Owners thereof, as Rights of Property, in the same Manner as they are now enjoyed by the Laws of Scotland, notwithstanding this Treaty.

One respect in which the Scottish courts were frighteningly deficient was in the heritable jurisdictions. The local judges were sheriffs, an efficient system on paper, but the title of sheriff was in many places hereditary, and very valuable to its holder. A sheriff-depute was customarily appointed to exercise actual jurisdiction, but the authority was in the hands of private gentleman of no expertise nor dependent on any qualification of fitness for office.

The clan chiefs had the most notorious heritable jurisdictions, legitimising their behaviour as local monarchs.

As a result, unqualified and partial judges ruled much of the land.

The union did not break the system but retained it as these offices were treated as rights of property. Article XX provided no permanent entrenchment of these privileges but a statement that they are unaffected by the fact of the union: as they existed as privileges out of the power of the Kingdom of Scotland, they continue as privileges accepted by the Kingdom of Great Britain.

The heritable jurisdictions were ended only in 1746, after the 1745 Jacobite Rising, and they were all ended, not just the rights of the clan chiefs but of all private jurisdictions. The rights were though rights of property and so were compensated, but afterwards everyone in Scotland could have the protection of the King’s laws and courts.