As far back as medieval times, unmarried women in Scotland could take the fathers of their children to court to force them to pay maintenance towards the expenses incurred during birth and her subsequent care of their children. Historically, the term ‘illegitimate’ was used to describe children born out of wedlock; you may see the phrase ‘natural child’ too. Illegitimacy was common in 19th-century Scotland – as many as 10 per cent of the births between 1861 and 1865 were illegitimate – so the records are very useful for family historians.
Note that these are effectively debt cases. If a private arrangement was made to care for the child, there would be no need for a court case because there would be no debt.
The Scottish courts had a provision for those who through poverty could not pursue or defend a case. Legal agents were available at each court to represent the poor, and they provided their services free of charge. This means that even very poor women could pursue the father of their child in court.
In the 19th century, paternity cases were predominantly heard at sheriff courts, which are the principal local civil and criminal court in Scotland. A study of the sheriff-court records in the south of Scotland shows that for the year 1858, just under 15 per cent of illegitimate births had some kind of record. This type of case is usually described as an “action of affiliation and aliment”. The court determined who the father was (the affiliation), then stipulated how much he should pay towards the care of his child (the aliment), and for how long.
The decisions of the court were known as ‘decrees’, or ‘decreets’. If the defender (usually the father) did not abide by the decree then he could be sent to prison. When an ‘extract’ (an official copy) was requested, this was known as an ‘extract decree’.
From about 1830, most sheriff courts began to record these in volumes of extracted decrees. These are a useful resource, because the survival rate of these volumes is high. An extracted decree will usually give key information such as when the child was born, who the parents were, and how much the father was to pay and for how long.
As well as the decree, there are also more detailed records known as ‘court processes’. A court process is essentially the entire official paperwork relating to a case. Processes are not in neat volumes; instead, the loose paperwork is tied up and stored in archival boxes.
Circumstances vary, but it’s not unusual for these records to be extensive. In researching for our website Scottish Indexes, we have found many letters between pursuers and defenders that were used as evidence.
Because of the nature of these cases, establishing sufficient proof was challenging. Juramentum suppletorium, which had been used in medieval times, was reintroduced. This term translates as ‘supplementary oath’. This oath would be taken by the person on whom the burden of proof rested. In these cases, that would be the mother of the child. She would take an oath naming the father and that, along with any other incomplete or circumstantial evidence, could be accepted as proof. Legal historians have pointed out that this situation was advantageous to the woman who was pursuing a case
of this nature.
When no official copy of a decree was requested, it was not extracted. Until 1860, these cases can only be found within the boxes of court processes along with the extracted cases. Sadly, between 1860 and about 1900, relatively few court processes survive.
A growing index to these records is available through the Scottish Paternity Index on Scottish Indexes’ website, which now includes more than 42,000 cases from across Scotland. So far, the majority of cases are post-1830. The index includes extracted decrees and processes, and my company can provide images of the full record in exchange for a research fee of £5.
Historic sheriff-court records are preserved by National Records of Scotland in Edinburgh (NRS), with the exception of those from Orkney and Shetland which are held at the respective local-authority archives. NRS has not itself indexed or digitised these records, although the online catalogue is comprehensive. The catalogue, however, does not list every case individually by the name of the pursuer and defender. Within the catalogue the records are arranged by the name of the court, type of record and then date.