Sunday, 27 July 2014

Act of Grace

On this day 27th July in 1880 we have a curious Sheriff Court Petition for Benefit of the Act of Grace. It's the only one in the whole collection, so I thought I'd share it with you all.

I realised this is my geeky side revealing itself when I told the story to Archiver and she could not stop yawning. So please comment if you find it interesting, then I can point at her, laugh, and say "I told you so!" In a respectful colleague to colleague way, of course.

Definition Act of Grace: A privilege or concession that cannot be claimed as a right: e.g. the bonus remains a payment made as an act of grace
In Scots Law this concession mainly referred to civil debt. When a person is imprisoned for not paying their debt, they can petition the court to let them out if it can be proved they do not have the means to pay. If the debt is an aliment (a fund of maintenance), then it can be changed to installments of not less than three-pence. [Information from A Dictionary of the Law of Scotland by Robert Bell, pub.1815]

Our example is about William Gunn, a shoemaker from Orphir in the West Mainland who is in Kirkwall Jail and Jane McKay from South Faray or Fara, an island in Scapa Flow.

Doc 1. Petition on behalf of  William Gunn, from Orphir, who is in prison for not paying a debt to Jane McKay "the incarcarating creditor" who resides in South Pharay. The debt being the total sum of "seventeen pounds, sixteen shillings and ninepence" to pay for the birth and subsequent care of an illegimate male child since 17th February and "taxed expenses of process". William Gunn's petitioner states that he is "in poor circumstances and is neither able to pay the said sums nor to Aliment [maintain] himself in prison. He is therefore under the necessity of applying to the court for the benefit of the Act of Grace." John Macrae, Pursuers Agent, 27 July 1880.

Doc 2. Answers for Jane MacKay by her solicitor William Cowper, states that William Gunn has "movable property to the value of about fifteen shillings Sterling" and so he is not entitled to the benefit of the Act of Grace. Lodged 30th July 1880.

Doc 3. Certified copy of the Petition, 31st July 1880.
Doc 4. Minutes and Interlocutors: The Sheriff Substitute orders William Gunn to be brought to court to be examined by him on Friday 6th August. But on Friday 6th August, "Macrae for the pursuer respectfully craves leave to withdraw the action". This craving is granted.
Doc 5. Copy of Minutes and Interlocutors.
Doc 6. Copy of Inventory of documents.
So William Gunn did not get his Act of Grace after all. But did Jane ever get any money? Who was the illegitimate male child? There are no more documents to give these answers unfortunately.
Archive Reference: SC11/5/1880/98


  1. Definitely not revulsed or appalled. Delighted to have found your blog and this post. You now have a new reader.

  2. Thank you Jill. I'm so pleased you found this post and the blog worthwhile.

    Unfortunately Archiver is not in until Thursday, so I'll have to save my finger pointing until then.

  3. There's a James Gunn age 10 in the 1891 census at Upper House Pharay. He's living with his grandparents Robert & Esther MacKay. In the same census Jane MacKay age 31 is living at Denwick in Deerness, a general servant domestic to the Bichan family.

  4. Aha! That is interesting. Thank you for your contribution.

  5. This also made me curious... and following on from the comment above... There is an entry in the 1881 census for Walls and Flotta that has a large McKay family living at Upperhouse, Pharay headed by Esther Stout, widow. Daughter, Esther McKay and son-in-law Robert McKay and 10 grandchildren are given. The second oldest child listed is Jane McKay, 23 years old and the youngest child is James McKay. Although this James is listed as grandson, I am guessing that he is actually a great grandson and the son of Jane. His birthplace is given as Orphir, whereas all the other grandchildren were born in Walls and Flotta – which would seem to add credence to him being the son of Jane and James Gunn. This would tie up with the information in the 1891 census, with young James still living at the Pharay address but with the surname of Gunn rather than McKay.

    1. Thank you Gardener. I guess that young James Gunn was aware of who his father was by age 10. Intriguing that he was recorded as James McKay in the 1881 census. We have checked the local kirk session records for an illegitimate birth, but it is not mentioned.

  6. Per your request, Dusty, I am chiming in (late) to say I found this story quite interesting. The follow-up research is fascinating, too. If only my Scottish ancestors were so easily located. ^_^


  7. In my defence, I was hearing about this post on a late Friday afternoon when it is ridiculous to expect anyone to work, concentrate or care about anything. ..

  8. All right, you are forgiven.

  9. Curiosity got the better of me and I was visiting the Inverness Scotland People Hub, in 1880 in Orphir, James Stout Mackay - illegitimate was born on 17 Feb, registered by Jane Stewart Mackay, domicile in Island of Flotta on 12May in Orphir. Father is named as William Gunn, shoemaker (this information is crossed out). The register of corrected entries dated 1 July 1880 in Orphir gives the fathers name as William Gunn, shoemaker as found by sheriff court of Orkney on 16 June 1880.

  10. Thank you "Anon". That makes more sense now with the Act of Grace petition, as I guess he wouldn't have been liable to pay backdated alimony until his name was officially on the birth certificate on 16 June!


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