Nature of Source
Records generated from the various courts that have operated or are operating in Scotland. The legal system in Scotland differs to that in operation in England and Wales. Under Scottish law (Scots law) the entire legal process including the institutions is different in character to England. Scots law had a number of elements. Firstly, feudal dealing with land and immoveables and inheritance issues, secondly canon law for ecclesiastical or church matters and thirdly Roman or civil law for moveables The first two elements form the basis of common law. So Scotland has a mixture of common and civil law. Common law operates on the basis of precedent, that is a decision arrived at originally holds true for all other cases. Later saw the introduction of statute or enacted law which originates from a legislative body such as parliament and decisions here override common law.
Scottish lawyers are either solicitors dealing with clients in the lower courts or advocates (equivalent to English barristers) who argue the case in court on behalf of the client.
Another feature of Scots law is the possibility of three verdicts, ‘guilty, ‘not guilty’ and ‘not proven’ which is passed if the jury or judge feels that there is a case to answer but the prosecution has not made it well enough. Family historians and genealogists are interested in court records mainly for criminal or civil cases or for wills. Criminal cases concern disputes between the state and the individual and civil cases between individuals themselves.
The criminal courts in descending order of authority are:
The District Court
The Sheriff Court
The High Court of Justiciary.
The civil courts in descending order of authority are:
The Sheriff Court
The Court of Session
The House of Lords (in London)
Other specialist courts deal with matters such as employment disputes, land issues and heraldry (the Court of the Lord Lyon).
Barony courts existed up to 1747 and the privy council sat as a court until 1708. The privy council was at one point the highest court and heard cases of the most serious nature including sedition and witchcraft. The High Court of Justiciary, established 1672, took over responsibility for serious crimes such as murder, treason, heresy, counterfeiting and crimes likely to lead to transportation. Records of the High Court include processes or precognitions (case papers) including the indictment (charges against the accused), depositions (witness statements), confessions, juror lists and other case information. Depositions (sometimes referred to as session papers) were pre-trial accounts by witnesses of the facts of details of a matter, sworn on oath or by affirmation. A person giving the statement is known as a deponent. The deposition should provide the deponent’s name, address, age and occupation and other personal information. Not all cases come to trial from precognition.
Minute books provide a summary of the trial proceedings in court. The Book of Adjournal gives the official account including indictments, verdict and sentence.
The Court of Session, established in 1532, dealt with non-criminal cases, except for certain offences against property such as arson. The records of use for the genealogist include the minute books, some printed and indexed and divorce cases before 1900. Between the 1560s and the 1860s Commissariot or Commissary Courts exercised authority over matters such as marriage, divorce, separation and legitimacy and the proving of wills. The first court was established in 1564 and took over the responsibilities of the ecclesiastical courts. They were formally abolished in 1823 but carried on until the 1860s. The areas under their jurisdiction were not the same as the historic counties so records could be spread between record offices. Sheriff courts were established in the 12th century and dealt with civil and petty criminal matters. Some trials were heard before a jury and some before a judge only. The courts also dealt with certificates and licences, roups (bankrupt auctions) and sequestrations, small debts, deeds, aliment (dealing with the support of illegitimate children) fairs and markets and other local matters. Perhaps their main interest is that from 1824, following the demise of the commissary courts, the sheriff courts assumed responsibility for the confirmation of testaments, although some overlap exists with the commissary courts.
Burgh courts were the equivalent of sheriff courts within the Royal Burghs. Other courts include the Justices of the Peace courts which dealt with minor offences and the Admiralty Court , 1557-1705, which dealt with crimes committed at sea or in harbour. Franchise courts dealt with criminal and civil matters where a landholder held authority from the crown. The individual courts included regality, barony, stewartry and bailiery courts and apart from barony court, were abolished in 1747.
Other Scotland Resources
Census Returns
Clan & Tartan Records
County & Local Histories
Directories, Trade, Professional, Telephone & Street
Electoral Registers or Burgess Rolls
Emigration Records
Hearth Tax
Heraldic Coats of Arms & Seals
Kirk/Church Sessions
Land Tax Assessments & Returns
Maps & Gazetteers
Militia Lists
Monumental/Memorial Inscriptions
Newspapers, magazines & journals
Old Parish Registers-Baptisms (OPRs)
Old Parish Registers-Burials (OPRs)
Old Parish Registers-Marriages & Proclamations (OPRs)
Passenger Lists
Pedigrees and Family Histories
Poor Law Records
Registers of Deeds (Books of Council and Session)
Retours of Services of Heirs
Sasines, Registers of
Statistical Accounts of Scotland
Statutory Registration-Birth
Statutory Registration-Death
Statutory Registration-Marriage
Surname Origins and Distribution
Valuation Rolls & Stent Rolls
Wills/Testaments and Inheritance
Where Found
ScotlandsPeople Centre (The ScotlandsPeople Centre is the official government resource for family history research. Holdings include: Privy council case records and minute books which are printed and indexed for 1541-1691 and unindexed for 1692-1708; High Court of Justiciary trial records; Lord Advocate’s Department; Court of Session; Sheriff courts; Burgh Courts; Justices of the Peace Courts; Admiralty Court; Regality, barony, stewartry and bailiery courts; Commissary Courts and legal registers associated with them such as registers of sasines and registers of deeds. ScotlandsPeople Centre is a partnership between the National Records of Scotland and the Court of the Lord Lyon. The National Records of Scotland was created on 1 April 2011 by the amalgamation of the National Archives of Scotland and General Register Office for Scotland)
County Record Offices (Sheriff courts, Burgh Courts, Justices of the Peace Courts)
Local Sheriff Court
Period Covered
1150 – Onwards
Genealogical Value
- Name, occupation, age, place of birth, marital status of the accused.
- Physical description and character.
- Prison transfers and discharge details which include the name of the prisoner, a physical description and the names and addresses of the next of kin.
- Details of trial, verdict and punishment.
- Occasionally photos.
Further References
Court Related
- Alexander, William. The Practice of the Commissary Courts in Scotland: A. and C. Black, 1859 (Available online at Google Books)
- Bevan, Amanda. Tracing Your Ancestors in the National Archives: The National Archives, 2006
- Pitcairn, Robert. Criminal Trials in Scotland: Bannatyne Club, 1833 (Free downloads of other Pitcairn titles are available in full from Google Books and the Internet Archive)
- Records of the Proceedings of the Justiciary Court, Edinburgh, 1661-1678: BiblioBazaar, LLC, 2008
- Roughead, William. Twelve Scots Trials: W. Green & Sons, 1913
- Roughead, William. Classic Crimes: A Selection from the Works of William Roughead: Cassell & Co, 1951
- Roughead, William. Tales of the Criminous: A Selection from the Works of William Roughead: Cassell & Co, 1956
- Seton, B.G & Arnot, J.G. (Eds) The Prisoners of the ‘45’: Scottish History Society, 1928-1929 (Listing of 3,470 known Jacobite prisoners held in custody)
- Whittington-Egan, Richard. William Roughead’s Chronicles of Murder: Lochar Publishing, 1991
Family History Guides
- Adolph, Anthony. Tracing Your Scottish Family History: Collins, 2008
- Bigwood, Rosemary: The Scottish Family Tree Detective: Tracing Your Ancestors in Scotland: Manchester University Press, 2007
- Clarke, T. Tracing Your Scottish Ancestors: The Official Guide: Birlinn, 2012
- Cory, Kathleen B. Tracing Your Scottish Ancestry: Genealogical Publishing Company, 2009
- Durie, Bruce. Scottish Genealogy: The History Press, 2012
- Durie, Bruce. Documents for Genealogy & Local History: The History Press, 2013
- Hamilton-Edwards, Gerald. In Search of Scottish Ancestry: Phillimore, 1983
- Holton, Graham & Winch, Jack. Discover Your Scottish Ancestry: Internet and Traditional Resources: Edinburgh University Press, 2009 (Preview available from Google Books)
- James, Alwyn. Scottish Roots: From Gravestone to Website: The Step-By-Step Guide to Tracing Your Scottish Ancestors: Luath Press, 2005
- Maxwell, Ian. Tracing your Scottish Ancestors: A Guide for Family Historians: Pen & Sword, 2009
- Paton, Chris. Researching Scottish Family History: The Family History Partnership, 2010
- Paton, Chris. Tracing Your Scottish Ancestry through Church and State Records: A Guide for Family Historians: Pen & Sword Family History, 2019
- Stewart, Alan. My Ancestor was Scottish: Society of Genealogists, 2012
- Tovey, Helen. My Scottish Ancestry: Lomond Books, 2011
Other
- Concise Scots Dictionary: Edinburgh University Press, 1999 (Preview available from Google Books)
- Lynch, Michael. Oxford Companion to Scottish History: OUP Oxford, 2011
- Moffat, Alistair & Wilson, James. The Scots: A Genetic Journey: Birlinn, 2011
- Scots Dictionary: Collins, 2014
- Richards, Eric. The Highland Clearances: Birlinn, 2013
- Timperley, Loretta R, (ed). A Directory of Land Ownership in Scotland c 1770: Scottish Record Society, 1976
- Torrance, Richard D. Scottish Trades, Professions, Vital Documents & Directories: Scottish Association of Family History Societies, 1998
Websites
www.nrscotland.gov.uk/research/research-guides/research-guides-a-z/court-and-legal-records (National Records of Scotland: Research Guides: Court and Legal Records. Guides include Chancery Records; Commissary Court Records; Court of Session Records; Crime and Criminals; High Court Criminal Trials; Justices of the Peace Records)
www.nrscotland.gov.uk/research/research-guides/research-guides-a-z/court-and-legal-records/index-of-legal-terms (National Records of Scotland: Research Guides: Index of Legal Terms. Listing of Scots legal terms and offences libelled which you are likely to come across when using court records held at National Records of Scotland)
https://scotlandspeople.gov.uk/guides/searching-place (ScotlandsPeople Guide: County Guides: Each county page lists the commissary courts and sheriff courts in which wills and testaments for individuals living within a specific county could have been registered)
www.judiciary.scot/home/media-information/glossary/glossarymenu (Judiciary of Scotland: Glossary of Legal Terms)
www.scotcourts.gov.uk/the-courts/court-locations (Scottish Courts and Tribunals: Court Locations)
www.scan.org.uk/researchrtools/glossary.htm (Glossary of archaic words and phrases)
www.dsl.ac.uk (Dictionaries of the Scots Language: DSL Online brings together the two major historical dictionaries of the Scots language: Modern Scots after 1700 in The Scottish National Dictionary; Older Scots before 1700 in A Dictionary of the Older Scottish Tongue)
www.scots-online.org/dictionary (Translate from Scots to English)
Online Databases
https://catalogue.nrscotland.gov.uk/nrsonlinecatalogue/welcome.aspx (National Records of Scotland. Catalogued and index of all criminal trials held in the High Court of Justiciary between the years 1800 and 1994. For guidance on searching see the NRS Research Guide High Court Criminal Trials)
www.scottishindexes.com (Scottish Indexes: Scotland’s Criminal Database. Search over 178,000 Scottish criminal records. The database includes an index to all surviving High Court Precognitions and Trial Papers between 1790 and 1917, as well as Sheriff Court records and a variety of over 100,000 prison register entries. The High Court index contains the names of all the accused and also details of victims. The Prison Registers Index includes all surviving prison registers in the National Records of Scotland)
www.scottishindexes.com (Scottish Indexes: Sheriff Court Paternity Decrees, 1830-1915. This record set contains over 12,136 paternity cases [known as ‘actions of affiliation and aliment’] heard before the Sheriff Courts. For privacy reasons, the entries for 1916 will be added in 2016 and following years thereafter on an annual basis)
www.ancestry.co.uk (Web: Scotland, High Court Criminal Indexes, 1790-1919. This index-only collection contains records from the High Court of the Justiciary in Scotland from 1790 to 1919 and is made up of the following: Records of criminal trials; Records of criminal appeals; Medical statements; Minute books; Paper evidence, such as shoe prints; Judicial opinions. This data is published by Scottish Indexes)
www.oldscottish.com (Sheriff Court Paternity Decrees, 1800-1919: Search indexes to over 43,000 Sheriff Court affiliation and aliment decrees. The decrees deal with child maintenance issues and typically identify the father and mother, give the date of the child’s birth and stipulate the amount the father was required to pay)
www.findmypast.co.uk (Scotland, Court & Criminal Database. Search ancestors in trouble with the law or victims of a crime and discover details of the crime, where the trial was held, and their incarceration. The dataset includes trial papers from the High Court which is the highest court in Scotland and has jurisdiction over the most serious crimes; Crown Office Precognitions which are factual statements that have been given by witnesses to both the prosecution and defence before the case goes to trial as well the Fife Kalendar of Convicts, 1708 to 1909)
www.scotlandspeople.gov.uk (National Records of Scotland: Perth Prison Registers, 1867-1879 and 1888-1921. Search some 50,000 indexed admission entries of people admitted to Perth prison)
www.oldscottish.com (Sheriff Court Extract Decrees: Search indexes of decrees detailing the parties to a case known as the pursuer and the defender. The indexes cover a wide range of civil court cases mainly dealing with money issues and cover a number of districts. The Edinburgh Sheriff Court lists over 35,000 cases between 1830 and 1859)
www.shc.ed.ac.uk/Research/witches/index.html (The Survey of Scottish Witchcraft, the database contains nearly 4,000 of all people known to have been accused of witchcraft in early modern Scotland)
www.rps.ac.uk (The Records of the Parliaments of Scotland 1235-1707: Free online access to a searchable database containing the proceedings of the Scottish parliament from the first surviving act of 1235 to the union of 1707)
www.findmypast.co.uk (Scottish Covenanters 1679-1688. These records document the names of those who were labelled as rebels or covenanters by the English government. They signed the National Covenant to defend their Presbyterian faith against the intrusion of the government. The transcripts were created by sources found at The National Archives and the National Library of Scotland)
CD Roms
Fife Family History Society (Fife Kalendar of Convicts, 1790-1880. Index of convict names extracted from Courts in Fife, Fife cases before the High Court, Jury Trials of Cupar Sheriff Court, Dunfermline Sheriff Court, Justice of the Peace records held by the National Records of Scotland and Fife Council Archives and local Fife newspapers)
