Commissary Court
Encyclopedia
The term Commissary Court is in use in Scots law
and in the Church of England.
in 1560, the system of consistorial courts where bishops exercised their civil jurisdiction over executry and matrimonial cases broke down. This led to such confusion that Commissary Courts were re-established between 1564 and 1566. The Commissary Court of Edinburgh
was the principal court. This court had exclusive jurisdiction in marriage
, divorce
and bastardy, and a general jurisdiction in the same areas as the old courts. It also held local jurisdiction over the Lothians, Peebles and part of Stirlingshire. There was a limited right of appeal to the Court of Session. There were inferior Commissary Courts, with a jurisdiction based on that of the pre-Reformation episcopal diocese mainly in relation to testaments. They also had jurisdiction in actions of slander, the authentication of tutorial and curatorial
inventories, actions for aliment
and actions for debt up to a limit of £40 Scots.
The courts largely adopted the old canon law
, except where this was contrary to the reformed religion.
In 1823 the inferior commissary courts powers were transferred to the sheriffs, although the Edinburgh court survived until 1836. The Commissary Court of Edinburgh was abolished in 1830 and its powers were transferred to the Court of Session (except for cases of aliment, which were transferred to the sheriff courts). All commissary courts were abolished in 1876 by the Sheriff Courts (Scotland) Act 1876 and their functions taken over by the sheriff courts. 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 papers of the Commissary Courts are held in the National Archives of Scotland
.
for the Diocese of Canterbury
.
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
and in the Church of England.
Scots law
At the Scottish ReformationScottish Reformation
The Scottish Reformation was Scotland's formal break with the Papacy in 1560, and the events surrounding this. It was part of the wider European Protestant Reformation; and in Scotland's case culminated ecclesiastically in the re-establishment of the church along Reformed lines, and politically in...
in 1560, the system of consistorial courts where bishops exercised their civil jurisdiction over executry and matrimonial cases broke down. This led to such confusion that Commissary Courts were re-established between 1564 and 1566. The Commissary Court of Edinburgh
Edinburgh
Edinburgh is the capital city of Scotland, the second largest city in Scotland, and the eighth most populous in the United Kingdom. The City of Edinburgh Council governs one of Scotland's 32 local government council areas. The council area includes urban Edinburgh and a rural area...
was the principal court. This court had exclusive jurisdiction in marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
and bastardy, and a general jurisdiction in the same areas as the old courts. It also held local jurisdiction over the Lothians, Peebles and part of Stirlingshire. There was a limited right of appeal to the Court of Session. There were inferior Commissary Courts, with a jurisdiction based on that of the pre-Reformation episcopal diocese mainly in relation to testaments. They also had jurisdiction in actions of slander, the authentication of tutorial and curatorial
Curator bonis
A Curator bonis is a person appointed by a court to manage the finances, property, or estate of another person unable to do so because of mental or physical incapacity....
inventories, actions for aliment
Aliment
Aliment, in Scots law and in other civil systems, is the sum paid or allowance given in respect of the reciprocal obligation of parents and children, husband and wife, grandparents and grandchildren, to contribute to each other's maintenance...
and actions for debt up to a limit of £40 Scots.
The courts largely adopted the old canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
, except where this was contrary to the reformed religion.
In 1823 the inferior commissary courts powers were transferred to the sheriffs, although the Edinburgh court survived until 1836. The Commissary Court of Edinburgh was abolished in 1830 and its powers were transferred to the Court of Session (except for cases of aliment, which were transferred to the sheriff courts). All commissary courts were abolished in 1876 by the Sheriff Courts (Scotland) Act 1876 and their functions taken over by the sheriff courts. 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 papers of the Commissary Courts are held in the National Archives of Scotland
National Archives of Scotland
Based in Edinburgh, the National Archives of Scotland are the national archives of Scotland. The NAS claims to have one of the most varied collection of archives in Europe...
.
Church of England
The Commissary Court is the consistory courtConsistory court
The consistory court is a type of ecclesiastical court, especially within the Church of England. They were established by a charter of King William I of England, and still exist today, although since about the middle of the 19th century consistory courts have lost much of their subject-matter...
for the Diocese of Canterbury
Diocese of Canterbury
The Diocese of Canterbury is a Church of England diocese covering eastern Kent, founded by St. Augustine of Canterbury in 597. It is centred on Canterbury Cathedral, and is the oldest see of the Church of England....
.
Sources
- The Oxford Companion to Law, D.M. Walker, 1980
- National Archives of Scotland guide