The Heritable Jurisdictions Act of 1746

The Heritable Jurisdictions (Scotland) Act of 1746 was a significant piece of legislation passed in the aftermath of the Jacobite rising of 1745. Its purpose was to abolish the judicial rights held by Scottish heritors, which were a significant source of power for clan chiefs. These rights gave them a large measure of control over their tenants, and the Act aimed to return control of these to the Crown.

The position of Sheriff-principal, which originated in the 13th century and still exists in modern Scotland, was also affected by the Act. Originally appointed by the Crown, over the centuries the majority had become hereditary. The holders of these positions appointed legal professionals known as Sheriff-deputes to do the work. The Act returned control of these appointments to the Crown.

Since Article XX of the 1707 Acts of Union recognized these rights as property, compensation was paid to the deprived heritors. Philip Yorke, Earl of Hardwicke, who drafted the 1746 Act, argued that Crown control over such rights was essential for ministers of a constitutional monarch to remove such powers from private ownership. This was because the people will follow those who have the power to protect or hurt them, and it was therefore imperative for ministers of a constitutional monarch to remove such powers from private ownership.

The Act was one of a number of measures taken after the defeat of the 1745 Jacobite Rising to weaken the traditional rights held by clan chiefs, the others being the 1746 Dress Act and the Act of Proscription. Such rights were not restricted to clan chiefs and were widespread throughout Scotland. There had been a number of previous attempts to either eliminate or weaken them, but the Heritable Jurisdictions Act was the most successful in achieving this goal.

Many of the heritable rights remained, one of the most significant being control of the thirty-three Sheriffs who presided over the Scottish court system. In 1745, only eight of these were appointed by the Crown, three were appointed for life, with the rest being hereditary. Their owners employed legal professionals known as Sheriff-substitutes or deputes, who earned their salary by taking a percentage of the fines imposed.

The Act gave the Crown control over the appointment of Sheriffs, with the role of Justiciar transferred to the High Court of Justiciary. Since these were recognized as private property under Article XX of the 1707 Act of Union, their owners were compensated, although Jacobites were excluded. A total of £152,000 was paid out in compensation, the two biggest payments being £38,000 to the Duke of Hamilton and £25,000 to the Duke of Argyll. Other recipients included Sir Andrew Agnew, hereditary sheriff of Wigtownshire, who received £4,000 in recognition of his support for the government in 1745.

In speaking for the Bill, Lord Hardwicke argued that private jurisdictions endangered the legal authority of a constitutional monarchy by encroaching on it, and that it was therefore imperative for ministers of a constitutional monarch to remove such powers from private ownership. Argyll, one of the main beneficiaries of the Act, quoted Montesquieu in support of his argument that multiple jurisdictions were a check on the Crown and thus a defence of liberty.

George II praised the Act as measures for “better securing the liberties of the people there”, and the Prime Minister Henry Pelham considered it the most important measure in dealing with Jacobitism in Scotland. 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).

The Heritable Jurisdictions Act was an important step in the centralization of power in Scotland.