Scottish legal terms - East Jersey Bound

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This glossary brings together legal terms used in Scotland during the late 17th century, and which may be unfamiliar to site visitors from different sides of the Atlantic.

Many appear in the records of emigrants, agents, and associates linked to the Scots settlement of East Jersey between 1683 and 1702.

The definitions are intended to clarify the meaning of terms as they were understood at the time, with comparisons to English or colonial practice where useful. The emphasis is on practical usage rather than exhaustive technical detail.

Some terms describe offices or institutions (such as advocate, Court of Session, or Privy Council), while others refer to deeds and procedures (such as bond, wadset, or service of heirs). A number concern criminal justice (banishment, transportation, remission), while others are rooted in property law and family provision (heritable bond, portioner, bond of provision).

The glossary is not comprehensive, but it covers those terms most likely to arise in the records of emigrants and their families. It is designed as a working aid for readers and researchers who wish to follow the legal and social contexts in which these Scots made their decisions and had their fates determined.

If you come across other unfamiliar terms, please get in touch for an explanation.

Glossary of Scottish legal terms

Sources

I have used two principal sources in compiling the glossary:

Dictionaries of the Scots Language
William Bell and George Ross (eds.) A Dictionary and Digest of the Law of Scotland (Edinburgh: Bell & Bradfute, 1861)

Legal terms

advocate Lawyer, an officer of the College of Justice, representing the prosecution or defence in a court of law. To practise they must have been admitted formally to the Faculty of Advocates. Equivalent to a barrister in England

advocation A legal process to bring the judgement of a lower court to the Court of Session for review

annualrent Interest payable on a loan or a heritable bond

assignation The act of conveying a deed to another, eg, where a creditor intends to settle a debt.

back-bond A deed that qualifies or limits an obligation set out in another deed (often used in conjunction with a wadset)

banishment A sentence of expulsion from Scotland, without a prescribed destination, forbidding the individual from returning under pain of death. Sometimes temporary, sometimes permanent.

bond A written obligation to pay or perform

bond of caution An obligation by one person as surety for another, either that they will pay a certain sum or perform a specific act

bond of relief A bond by the principal debtor, granted in favour of a cautioner, declaring the nature of the cautioner’s obligation and committing the granter of this bond to relieve the cautioner from the consequences of his obligation (eg, secured against some of his property)

bond of corroboration An additional obligation granted by the debtor in a bond, eg, where accumulated arrears are rolled into the principal for future repayment).

bond of provision A bond where financial or other arrangements are made for others, typically family members, separately from any will (used, eg, when a father about to leave on a long voyage provides for his family while he is away).

caption A warrant for the arrest of someone on account of non-payment of debt

cautioner The person who stands surety for financial commitments made by others in a bond. (The term may also be used in other contexts, eg, where a relative acts as cautioner for the good behaviour of an engaged person before marriage.)

Cessio Bonorum A process whereby a debtor can seek relief from all his debtors, handing over all his property bar his tools, pleading that their debts had arisen from innocent misfortunes. It protected the debtor from imprisonment but did not discharge all their debts; creditors still had claims over future assets.

charter Written evidence of a grant of heritable property, made under the condition that the grantee shall pay each year a sum of money or render a service to the granter (eg, to the Crown or other feudal superior)

Clare Constat, Precept of Deed executed by a feudal superior completing the process of land title passing to the heir of a deceased vassal

Commissary Court The body that grants confirmation to the executors of a deceased person's estate; also responsible for dealing with marital and legitimacy cases

confirmation Process of settling a deceased person’s estate, in Scots Law, equivalent to probate in England and Colonial America

conveyance A deed executed according to all forms required by law, and by which a right is either created, transferred or discharged

conveyancing The process of preparing deeds

Court of Session The highest national court of Scotland in relation to civil cases

deed A formal written instrument setting out the terms of an agreement, contract or obligation

Director of Chancery Responsible for preparing and issuing royal documents under the Great Seal such as charters, commissions and appointments

discharge The extinction of an obligation, by payment or other action on the part of the debtor or simply by consent of the creditor. A discharge may be verbal or in writing.

disponee The person to whom a disposition is granted

disponer The person who grants a disposition

disposition The act of transferring a right to property (heritable or moveable) where the disponer gives up their previous rights either on receipt of payment or other benefit or given freely as a grant

dyvour Where a court requires a bankrupt person to give over all their goods and gear to their creditors, and to wear an upper garment, half-yellow and half-brown, and cap or hood

Eik A supplement to a testament listing property not previously recorded.

escheat To confiscate property to the Crown

executor/ executrix A person appointed by a will-maker (testator) to carry out the terms of their will

extract An authenticated, certified copy of a legal instrument, such as a deed

factor A person employed to do business for another, for some reward and at legal risk if they fail in their responsibilities. (Equivalent to the term ‘attorney’ in East Jersey.)

factory The task(s) undertaken by a factor

feuar A property owner who pays a feu duty to a feudal superior (similar in practice to a quit renter in New Jersey)

feudal superior The monarch or a landowner with a crown charter who has the feudal right to require a service or levy a feu duty on property owners within their estates

forfeiture Loss of property following either the contravention of some condition on which property is held or the committing of a crime

Fugitive Roll Lists of Covenanters accused of treason and rebellion after the Battle of Bothwell Bridge in 1679, compiled by government clerks and serving as a basis for indictments and trials.

Great Seal of Scotland The monarch’s formal instrument for confirming royal grants, charters (of, eg, land or privileges) and appointments

High Court The supreme criminal court in Scotland (full title: High Court of Justiciary)

heir of provision A person designated by the terms of a will, trust, or deed to inherit a deceased person's property, rather than inheriting by default through natural bloodline succession

heir-portioner A daughter, daughters or grandchildren where there are no male heirs. In this situation, the deceased’s estate is evenly divided between the next in line

heritable property Land or buildings, as distinct from ‘moveable property’. Note that heritable property was not included in Scottish wills as there were standard rules for the distribution of such property

heritable bond A bond with a right over land as security, like a mortgage in English law. This might be used as an alternative to a wadset where the creditor would retain income from the land but be required to make fixed annual interest payments

horning, letters of Orders in the Crown’s name for local officials (messengers-at-arms) to require debtors to pay their debts

infeft To invest someone with legal possession of heritable property, eg, on the death of their father

inhibition A writ used to prevent a debtor from selling or otherwise dealing in their heritable property to the detriment of a creditor

interdict An order of the Court of Session in a civil case stopping any act or proceedings complained of as illegal or wrongful

intromission The assuming of possession and management of property belonging to another. This may be lawful (eg, by an executor or factor) or unlawful (leading to a liability)

inventory The list of moveable effects belonging to a deceased person which must be given up under oath by the executor or other administrator of the estate. This includes debts as well as assets.

Justice of the Peace A local, lay magistrate responsible for maintaining public order, enforcing government policy, and administering justice for minor offences

Lease, contract of A mutual contract between a proprietor of lands, houses, etc and a tenant in that property, granting the latter rights to returns from the property in return for rent in money, produce, or services

Lord Advocate The chief legal officer in Scotland acting as the Crown's principal legal advisor, representing the Crown in legal matters, prosecuting criminal cases on behalf of the Crown and overseeing the administration of justice

macer An officer of the Court of Session who summons persons to appear, announces the arrival of judges, and maintains order in court. Equivalent to an usher in English courts.

mail Rent (as in ‘grass-mail’, rent payable for the right to graze cattle)

malversation Misconduct in the discharge of a duty of trust

messenger An officer (‘Messenger-at-arms’) empowered to serve legal documents, such as court summonses and letters of diligence, and to enforce decrees of the Court of Session or other superior courts.

minor Anyone below the age of 21 (in general use). Also females between 12 and 21 and males between 14 and 21 when used to distinguish minors from ‘pupils’ in specific legal matters, eg, inheritance

moveable property Any form of property other than that which is heritable (ie, anything other than land and buildings)

multure A quantity of grain delivered to the proprietor or tacksman of a mill in return for grinding corn

Notary-Public A holder of office under the Crown trained, examined and authorised to draft legal instruments

oath An affirmation, denial or promise attested in the name of God

oath of abjuration An oath of 1685 requiring the oath-taker to accept the King as head of the Church, renounce all Covenants and decry the taking of arms in resistance

oath of allegiance An oath swearing fealty to the monarch

obligation A requirement to undertake a specific action, previously agreed or incumbent on their situation or relationship (eg, as for a parent towards the maintenance of their child)

petition An argument presented to an institution (eg, Parliament or the Privy Council) making a case and requesting a formal answer

petition and complaint A judicial procedure of the Court of Session whereby a plantiff presents a case seeking some form of remedy or redress

poinding The transfer of moveable property to a creditor

portioner The proprietor of a small estate or of a piece of land resulting from the division of an estate among co-heirs

precept A document instructing or conferring authority to take certain action

Privy Council of Scotland The primary institution of central government, serving as the executive and advisory body to the monarch and overseeing public peace and justice

pupil Legal term of a young person below the age of 12 (females) or 14 (males)

put to the horn The legal steps in requiring debtors to pay their debts

ratification A document approving, confirming or sanctioning some matter

resignation A form by which a vassal returns his or her property to the feudal superior, either permanently or involving a transfer to a third party

Remission under the Great Seal of Scotland A formal royal pardon absolving the recipient of specified crimes

retour A certified copy of the legal instrument returned by a jury of inquest and used to confirm inheritance of land

reversion The right of a debtor who has borrowed money on security of land (eg, in a wadset) to redeem the land within a limited time by payment of a sum specified in the original contract or in a separate deed

revocation A deed recalling some former deed

roup The action of selling or letting by auction

Senators of the College of Justice Judges on the Court of Session or High Court. The former were referred to as Lords of Council and Session, the latter as Lords Commissioners of Justiciary

sergeant A legal officer in a sheriffdom, whose duty it was to arrest and incarcerate persons accused or suspected of crime under the sheriff's warrant.

service of heirs The procedure by which heritable property is transmitted to an heir, inquest and retour, thereafter by petition to court

Sheriff The chief royal officer in a shire (county), responsible for maintaining peace and order and exercising both civil and criminal jurisdiction. Sheriffs were supported by deputes and other officers in their sheriffdoms.

tack A lease, tenancy, especially the leasehold tenure of a farm, mill, mining or fishing rights, tax-collecting, etc

tacksman One who holds a tack, and may sub-let part or all of their rights to others

teind or tiend The tenth part of the produce of land or industry set apart by the state for the support of religion

Testament A legal document drawn up after someone’s death to enable the court to confirm an executor to wind up their affairs. This normally included an inventory of possessions and debts. ‘Testament testamentar’ denotes a case where the deceased person left a will, while ‘testament dative’ applies where there is no will. The executor could be a family member or a creditor of the deceased.

transportation Criminal sentence removing individuals to a specific location ‘beyond the seas’, typically involving indentured service at the destination

tutor A person who is guardian and administrator of the estate of a pupil or older offspring under the age of minority

vassal An owner of land under a feudal superior to whom a feu duty must be paid

wadset A right in land granted as a security, where the creditor (the wadsetter) received possession of the land from the debtor (the reverser) and the income from the lands (rent, produce, etc) was enjoyed by the wadsetter in lieu of interest. Once the loan was repaid, the reverser could redeem the land.

warrandice A guarantee or indemnification which secures another against risk or loss (eg, where they may be uncertainty as to the ownership of land)

warrant Official authorisation or permission (to do something or for something)

writer A lawyer (originally a legal secretary or clerk; later a solicitor-like practitioner)

Writer to the Signet (W.S.) A member of a society of law agents in Edinburgh who have the exclusive privilege of signing crown writs, with special functions in relation to the Court of Session

advocate	Lawyer, an officer of the College of Justice, representing the prosecution or defence in a court of law. To practise they must have been admitted formally to the Faculty of Advocates. Equivalent to a barrister in England
advocation	A legal process to bring the judgement of a lower court to the Court of Session for review
annualrent	Interest payable on a loan or a heritable bond
assignation	The act of conveying a deed to another, eg, where a creditor intends to settle a debt.
back-bond	A deed that qualifies or limits an obligation set out in another deed (often used in conjunction with a wadset)
banishment	A sentence of expulsion from Scotland, without a prescribed destination, forbidding the individual from returning under pain of death. Sometimes temporary, sometimes permanent.
bond	A written obligation to pay or perform
bond of caution	An obligation by one person as surety for another, either that they will pay a certain sum or perform a specific act
bond of relief	A bond by the principal debtor, granted in favour of a cautioner, declaring the nature of the cautioner’s obligation and committing the granter of this bond to relieve the cautioner from the consequences of his obligation (eg, secured against some of his property)
bond of corroboration	An additional obligation granted by the debtor in a bond, eg, where accumulated arrears are rolled into the principal for future repayment).
bond of provision	A bond where financial or other arrangements are made for others, typically family members, separately from any will (used, eg, when a father about to leave on a long voyage provides for his family while he is away).
caption	A warrant for the arrest of someone on account of non-payment of debt
cautioner	The person who stands surety for financial commitments made by others in a bond. (The term may also be used in other contexts, eg, where a relative acts as cautioner for the good behaviour of an engaged person before marriage.)
Cessio Bonorum	A process whereby a debtor can seek relief from all his debtors, handing over all his property bar his tools, pleading that their debts had arisen from innocent misfortunes. It protected the debtor from imprisonment but did not discharge all their debts; creditors still had claims over future assets.
charter	Written evidence of a grant of heritable property, made under the condition that the grantee shall pay each year a sum of money or render a service to the granter (eg, to the Crown or other feudal superior)
Clare Constat, Precept of	Deed executed by a feudal superior completing the process of land title passing to the heir of a deceased vassal
Commissary Court	The body that grants confirmation to the executors of a deceased person's estate; also responsible for dealing with marital and legitimacy cases
confirmation	Process of settling a deceased person’s estate, in Scots Law, equivalent to probate in England and Colonial America
conveyance	A deed executed according to all forms required by law, and by which a right is either created, transferred or discharged
conveyancing	The process of preparing deeds
Court of Session	The highest national court of Scotland in relation to civil cases
deed	A formal written instrument setting out the terms of an agreement, contract or obligation
Director of Chancery	Responsible for preparing and issuing royal documents under the Great Seal such as charters, commissions and appointments
discharge	The extinction of an obligation, by payment or other action on the part of the debtor or simply by consent of the creditor. A discharge may be verbal or in writing.
disponee	The person to whom a disposition is granted
disponer	The person who grants a disposition
disposition	The act of transferring a right to property (heritable or moveable) where the disponer gives up their previous rights either on receipt of payment or other benefit or given freely as a grant
dyvour	Where a court requires a bankrupt person to give over all their goods and gear to their creditors, and to wear an upper garment, half-yellow and half-brown, and cap or hood
Eik	A supplement to a testament listing property not previously recorded.
escheat	To confiscate property to the Crown
executor/ executrix	A person appointed by a will-maker (testator) to carry out the terms of their will
extract	An authenticated, certified copy of a legal instrument, such as a deed
factor	A person employed to do business for another, for some reward and at legal risk if they fail in their responsibilities. (Equivalent to the term ‘attorney’ in East Jersey.)
factory	The task(s) undertaken by a factor
feuar	A property owner who pays a feu duty to a feudal superior (similar in practice to a quit renter in New Jersey)
feudal superior	The monarch or a landowner with a crown charter who has the feudal right to require a service or levy a feu duty on property owners within their estates
forfeiture	Loss of property following either the contravention of some condition on which property is held or the committing of a crime
Fugitive Roll	Lists of Covenanters accused of treason and rebellion after the Battle of Bothwell Bridge in 1679, compiled by government clerks and serving as a basis for indictments and trials.
Great Seal of Scotland	The monarch’s formal instrument for confirming royal grants, charters (of, eg, land or privileges) and appointments
High Court	The supreme criminal court in Scotland (full title: High Court of Justiciary)
heir of provision	A person designated by the terms of a will, trust, or deed to inherit a deceased person's property, rather than inheriting by default through natural bloodline succession
heir-portioner	A daughter, daughters or grandchildren where there are no male heirs. In this situation, the deceased’s estate is evenly divided between the next in line
heritable property	Land or buildings, as distinct from ‘moveable property’. Note that heritable property was not included in Scottish wills as there were standard rules for the distribution of such property
heritable bond	A bond with a right over land as security, like a mortgage in English law. This might be used as an alternative to a wadset where the creditor would retain income from the land but be required to make fixed annual interest payments
horning, letters of	Orders in the Crown’s name for local officials (messengers-at-arms) to require debtors to pay their debts
infeft	To invest someone with legal possession of heritable property, eg, on the death of their father
inhibition	A writ used to prevent a debtor from selling or otherwise dealing in their heritable property to the detriment of a creditor
interdict	An order of the Court of Session in a civil case stopping any act or proceedings complained of as illegal or wrongful
intromission	The assuming of possession and management of property belonging to another. This may be lawful (eg, by an executor or factor) or unlawful (leading to a liability)
inventory	The list of moveable effects belonging to a deceased person which must be given up under oath by the executor or other administrator of the estate. This includes debts as well as assets.
Justice of the Peace	A local, lay magistrate responsible for maintaining public order, enforcing government policy, and administering justice for minor offences
Lease, contract of	A mutual contract between a proprietor of lands, houses, etc and a tenant in that property, granting the latter rights to returns from the property in return for rent in money, produce, or services
Lord Advocate	The chief legal officer in Scotland acting as the Crown's principal legal advisor, representing the Crown in legal matters, prosecuting criminal cases on behalf of the Crown and overseeing the administration of justice
macer	An officer of the Court of Session who summons persons to appear, announces the arrival of judges, and maintains order in court. Equivalent to an usher in English courts.
mail	Rent (as in ‘grass-mail’, rent payable for the right to graze cattle)
malversation	Misconduct in the discharge of a duty of trust
messenger	An officer (‘Messenger-at-arms’) empowered to serve legal documents, such as court summonses and letters of diligence, and to enforce decrees of the Court of Session or other superior courts.
minor	Anyone below the age of 21 (in general use). Also females between 12 and 21 and males between 14 and 21 when used to distinguish minors from ‘pupils’ in specific legal matters, eg, inheritance
moveable property	Any form of property other than that which is heritable (ie, anything other than land and buildings)
multure	A quantity of grain delivered to the proprietor or tacksman of a mill in return for grinding corn
Notary-Public	A holder of office under the Crown trained, examined and authorised to draft legal instruments
oath	An affirmation, denial or promise attested in the name of God
oath of abjuration	An oath of 1685 requiring the oath-taker to accept the King as head of the Church, renounce all Covenants and decry the taking of arms in resistance
oath of allegiance	An oath swearing fealty to the monarch
obligation	A requirement to undertake a specific action, previously agreed or incumbent on their situation or relationship (eg, as for a parent towards the maintenance of their child)
petition	An argument presented to an institution (eg, Parliament or the Privy Council) making a case and requesting a formal answer
petition and complaint	A judicial procedure of the Court of Session whereby a plantiff presents a case seeking some form of remedy or redress
poinding	The transfer of moveable property to a creditor
portioner	The proprietor of a small estate or of a piece of land resulting from the division of an estate among co-heirs
precept	A document instructing or conferring authority to take certain action
Privy Council of Scotland	The primary institution of central government, serving as the executive and advisory body to the monarch and overseeing public peace and justice
pupil	Legal term of a young person below the age of 12 (females) or 14 (males)
put to the horn	The legal steps in requiring debtors to pay their debts
ratification	A document approving, confirming or sanctioning some matter
resignation	A form by which a vassal returns his or her property to the feudal superior, either permanently or involving a transfer to a third party
Remission under the Great Seal of Scotland	A formal royal pardon absolving the recipient of specified crimes
retour	A certified copy of the legal instrument returned by a jury of inquest and used to confirm inheritance of land
reversion	The right of a debtor who has borrowed money on security of land (eg, in a wadset) to redeem the land within a limited time by payment of a sum specified in the original contract or in a separate deed
revocation	A deed recalling some former deed
roup	The action of selling or letting by auction
Senators of the College of Justice	Judges on the Court of Session or High Court. The former were referred to as Lords of Council and Session, the latter as Lords Commissioners of Justiciary
sergeant	A legal officer in a sheriffdom, whose duty it was to arrest and incarcerate persons accused or suspected of crime under the sheriff's warrant.
service of heirs	The procedure by which heritable property is transmitted to an heir, inquest and retour, thereafter by petition to court
Sheriff	The chief royal officer in a shire (county), responsible for maintaining peace and order and exercising both civil and criminal jurisdiction. Sheriffs were supported by deputes and other officers in their sheriffdoms.
tack	A lease, tenancy, especially the leasehold tenure of a farm, mill, mining or fishing rights, tax-collecting, etc
tacksman	One who holds a tack, and may sub-let part or all of their rights to others
teind or tiend	The tenth part of the produce of land or industry set apart by the state for the support of religion
Testament	A legal document drawn up after someone’s death to enable the court to confirm an executor to wind up their affairs. This normally included an inventory of possessions and debts. ‘Testament testamentar’ denotes a case where the deceased person left a will, while ‘testament dative’ applies where there is no will. The executor could be a family member or a creditor of the deceased.
transportation	Criminal sentence removing individuals to a specific location ‘beyond the seas’, typically involving indentured service at the destination
tutor	A person who is guardian and administrator of the estate of a pupil or older offspring under the age of minority
vassal	An owner of land under a feudal superior to whom a feu duty must be paid
wadset	A right in land granted as a security, where the creditor (the wadsetter) received possession of the land from the debtor (the reverser) and the income from the lands (rent, produce, etc) was enjoyed by the wadsetter in lieu of interest. Once the loan was repaid, the reverser could redeem the land.
warrandice	A guarantee or indemnification which secures another against risk or loss (eg, where they may be uncertainty as to the ownership of land)
warrant	Official authorisation or permission (to do something or for something)
writer	A lawyer (originally a legal secretary or clerk; later a solicitor-like practitioner)
Writer to the Signet (W.S.)	A member of a society of law agents in Edinburgh who have the exclusive privilege of signing crown writs, with special functions in relation to the Court of Session