The sagacious President Forbes—to whom, had the government perceived clearly the country’s true interest, they would have entirely intrusted the legislation for the Highlands—had but a poor opinion of the dress bill, as will appear from the following letter of his to the Lord Lyon, dated July 8, 1746:—“The garb is certainly very loose, and fits men inured to it to go through great fatigues, to make very quick marches, to bear out against the inclemency of the weather, to wade through rivers, and shelter in huts, woods, and rocks upon occasion; which men dressed in the low country garb could not possibly endure. But then it is to be considered, that, as the Highlands are circumstanced at present, it is, at least it seems to me to be, an utter impossibility, without the advantage of this dress, for the inhabitants to tend their cattle, and to go through the other parts of their business, without which they could not subsist; not to speak of paying rents to their landlords. Now, because too many of the Highlanders have offended, to punish all the rest who have not, and who, I will venture to say, are the greatest number, in so severe a manner, seems to be unreasonable; especially as, in my poor apprehension, it is unnecessary, on the supposal the disarming project be properly secured; and I must confess, that the salvo which you speak of, of not suffering the regulation to extend to the well-affected Clans, is not to my taste; because, though it would save them from hardships, yet the making so remarkable a distinction would be, as I take it, to list all those on whom the bill should operate for the Pretender, which ought to be avoided if possible.”[1370] General Stewart perhaps speaks too strongly when he remarks, that had the whole Highland race been decimated, more violent grief, indignation, and shame, could not have been excited among them, than by being deprived of this long inherited costume. However, it should be remembered that all this was the legislation of upwards of 120 years ago, that the difficulties which the government had to face were serious and trying, that those who had the making of these laws were totally ignorant of the real character of the Highlanders, and of the real motives which urged them to rebellion, and that even at the present day legislative blunders do occasionally occur.
The means by which the Highlanders endeavoured to elude this law without incurring a penalty, were ingenious and amusing. Stewart tells us that, “instead of the prohibited tartan kilt, some wore pieces of a blue, green, or red thin cloth, or coarse camblet, wrapped round the waist, and hanging down to the knees like the fealdag.[1371] The tight breeches were particularly obnoxious. Some, who were fearful of offending, or wished to render obedience to the law, which had not specified on what part of the body the breeches were to be worn, satisfied themselves with having in their possession this article of legal and loyal dress, which, either as the signal of their submission, or more probably to suit their own convenience when on journeys, they often suspended over their shoulders upon their sticks; others, who were either more wary, or less submissive, sewed up the centre of the kilt with a few stitches between the thighs, which gave it something of the form of the trousers worn by Dutch skippers.” The Act at first appears to have been carried out with rigid strictness, these ingenious attempts at evading it being punished somewhat severely; but, if we may judge from a trial which took place in 1757, the administrators of the law had by that time come to regard such breaches with a lenient eye. Although no doubt the law in course of time became practically obsolete, it was not till 1782 that it was erased from the statute book. Since then “tartans and kilts an’ a’, an’ a’,” have gradually increased in popularity, until now they have become “the rage” with all classes of society, from John o’Groats to Land’s End; tartan plaids, of patterns which do great credit to the ingenuity of the manufacturers, are seen everywhere adorning the graceful forms of ladies, and the not so long since proscribed kilt being found not unfrequently displaying itself in the most fashionable London Assemblies. Tempora mutantur.
By far the most important measure adopted by government for the improvement of the Highlands was the abolition of the Hereditary Jurisdictions, which lay at the root of many of the evils that afflicted that country, and to which, in a great degree, the rebellion owed the measure of success that attended it. Before these jurisdictions were abolished, a Highland chief was as absolute a potentate over the members of his clan as any eastern pasha or African chief is over his abject subjects. The power of “pit and gallows,” as it was called, which belonged to each of these petty sovereignties—for such they were practically—gave the chief absolute command of the lives and liberty of his followers. The only thing he lawfully could not do was to banish; but even this prohibition he managed to evade by giving his victims the alternative of “emigration”—as it was mildly called—or death. This is not the place to enter into a minute account of the origin and working of this curious system, so utterly inconsistent with the spirit of a constitutional government like that of Britain; but any one can perceive that such a power as this in the hands of a discontented chief, especially when complemented by the high notions which a Highlander had of the obedience due to the head of the clan, must have been dangerous in the highest degree to the peace and progress of the country. There is no doubt that this coercive power was frequently brought into play in the late rebellion; indeed, the only plea urged by a great majority of the common Highlanders, when tried at Carlisle and elsewhere, was that they were forced into rebellion against their wills. Of course a prudent chief would be careful not to carry his power beyond due bounds, at least so far as the members of his own clan were concerned, for there was a point in the scale of oppression which even the strong spirit of clanship could not stand. No doubt the power thus entrusted to the chiefs may at one time have served a good purpose. When the country was in a turbulent and unsettled state, when communication between the different parts of the country was tedious, expensive, and hazardous, when it was difficult for the strong arm of the law to reach to a remote, rugged, and inaccessible district like the Highlands, where life and the rights of property were as little regarded as they are at the present day in Ireland,—perhaps this putting of the power of a judge in the hands of the chief men of the various districts, was the only practicable substitute for the direct administration of justice by those to whom this duty properly belonged. In reality, the justice meted out was of the roughest kind, and continually liable to be modified by the interests of the administrator, or any of his many friends. “That such a system should have been tolerated into the middle of the 18th century, after Somers, Hardwicke, and Forbes had occupied the bench, may seem incredible, but it is true.”[1372] It was assuredly high time that such an anomalous state of matters should be done away with.[1373]
An Act for the abolition of the Hereditary Jurisdictions was passed in March 1747, and came in force a year after. Of course some other plan for the administration of the laws had to be devised. “At the head of the arrangements for carrying justice throughout the land, the system begun in England in the reign of Henry II., for sending the royal courts at fixed intervals through the provinces, was adopted. Nominally there had been circuits or justice-ayres, but they were not systematically held, either at stated intervals of time, or so as to bring up before them the revisal of the administration of justice in all the districts. This, indeed, was impossible while the hereditary jurisdictions remained, but now regular circuits were to take place biennially, and the country was so partitioned into districts, that the higher offences were systematically brought up from the most remote provinces for adjudication. The exceptional hereditary jurisdictions, such as the regalities, were abolished, and the smaller authority exercised in baronial courts was restricted to trifling matters. The sheriff courts, locally commensurate in their authority with the boundaries of the counties, were taken as the foundation of a system of local tribunals, presided over by responsible judges. These, which were hereditary, were to be yielded to the crown; and ever since the passing of the act, the sheriff of each county has been appointed like the other judges, for life, removeable only for misconduct.”[1374]
Of course, as these jurisdictions, besides conferring influence and power, were sources of emolument[1375] to the holders of them, and as they had been sanctioned in the treaty of Union, it was considered only fair that some compensation should be allowed by the country to those who profited by them; in fact, they had to be bought up. The holders of the jurisdictions appear to have been asked to send in the amount of their claims to the Court of Session, which was authorised to fix the price to be paid. Of course, those who were convicted or attainted for having taken part in the late rebellion, had no claim, as their estates were forfeited to the Crown, and they themselves deprived of all their privileges. Those who were about to part with their ancient powers were determined to make the most of them now that they were no longer to be a perpetual source of emolument and influence. The aggregate sum asked by the proprietors from government as the price of their jurisdictions was more than three times greater than that which the Court of Session deemed a fair price. There may be some truth in what Mr. Fraser-Mackintosh says in his Antiquarian Notes[1376]:—“Of course, the amounts ultimately paid bore not the slightest proportion to the claims, but they did bear some proportion to the politics of the holders, just as these happened to be friendly to government or the reverse.” Argyll, for the Justice-Generalship of Argyll, asked £15,000, for the Sheriffdom £5000, and for various small regalities other £5000, making £25,000 in all; from this the Court of Session deducted only £4000, allowing him for his various offices and jurisdictions what would then be considered the munificent sum of £21,000. Besides receiving this sum, the duke was appointed, in exchange for his office of Hereditary Justiciar of Scotland, Lord Justice-General, head of the Justiciary Court. The Duke of Montrose, for his various regalities, and the Sheriffdom of Dumbarton, demanded £15,000, but did not get above one third of that sum; nor did the Dukes of Buccleuch and Athole, who each modestly valued his various offices at £17,000. The Duke of Gordon’s claim amounted to £22,300, the Earl of Sutherland’s to £10,800, Breadalbane’s to £7000, Moray’s to £14,000, Findlater’s to £5,500. The smallest sum claimed for a Highland jurisdiction was by Evan Baillie, of Abriachan, for the Bailliary of Lovat, which he modestly valued at £166; Munro, Sheriff-Clerk of Inverness, claiming the same sum for that office combined with the Clerkship of the regality of Lovat. The total amount claimed for the whole of the jurisdictions was upwards of £490,000, which the Court of Session cut down to a little over £150,000.[1377] The sum was well spent in doing away with so many sources of petty tyranny and injustice, in the abolition of a system inconsistent with the spirit of the British constitution in the middle of the 18th century, calculated materially to hinder progress and to aid rebellion.
The abolition of these jurisdictions in the Highlands, and along with them the power and paternal authority of the Highland chiefs, effected a complete change in the social life of that part of the country, led at first to considerable discontent and confusion, and was the indirect means of bringing much suffering and hardship on the subordinate dignitaries and commonalty of the clans. Some such consequences were to be expected from the breaking up of a system which had held sway for many generations, and the substitution of a state of matters to which the people were altogether unused, and which ran counter to all their prejudices and traditions; still, as in the case of every reformation, individual suffering was to be looked for, and in the course of time, as will be seen, matters gradually righted themselves, and the Highlands became as progressive and prosperous as any other part of the country.
Another much needed measure adopted by government was the abolition of a remnant of feudality, the kind of tenure known as “wardholding.” “By this relic of ancient feudality, military service had remained down to that juncture the condition under which lands were held by one subject from another. Efforts were of course made to bring land into commerce, by substituting pecuniary arrangements for such services, but the ‘wardholding’ was so essentially the proper feudal usage, that the lawyers held it to be always understood, if some other arrangements were not very specifically settled. It had become the means of very oppressive exactions or ‘casualties,’ arising out of those conditions—such as minority—where the military service could not be performed. But by the act of 1746, arrangements were devised for converting all the superior’s privileges into reasonable pecuniary claims.”[1378]
Another means taken by government to extinguish the seeds of rebellion and prevent its future occurrence, was the enactment of more stringent laws in reference to the Scottish Episcopalians, among whom Jacobite sympathies were almost as strong and as universal as among their Roman Catholic brethren. Their partiality to the house of Stuart was no doubt in a great measure owing to their strong belief as a class in divine right of government, both in Church and State, and to a conviction that seems to have prevailed among them that the restoration of the Stuarts meant the restoration of the supremacy, or at least establishment of episcopacy in Scotland. The Stuarts had not more devoted adherents than the Episcopalians in the kingdom, nor any who, amidst many petty, irritating, and even severe enactments, continued longer to adhere to their first love. Indeed, there is good reason for believing that at the present day, among many Scottish Episcopalians, especially in the Highlands, there are still many Jacobites in sentiment and sympathy, although, as a principle of action, Jacobitism is undoubtedly dead and gone, never to be resuscitated.
As this party, though not numerous, was not less formidable from its rank and wealth than from the esprit de corps with which it was animated, the attention of the legislature was directed towards it, and a strong measure was resorted to, which nothing could justify but necessity. This was an act by which it was ordained that any episcopal clergyman officiating after the 1st of September 1746, without having previously taken the oaths of allegiance, abjuration, and assurance, or without praying once during the performance of worship for the king, his heirs, and successors, and for all the royal family, should for the first offence suffer six months imprisonment, for the second be transported to the American plantations for life, and, in case of returning from banishment, be subjected to perpetual imprisonment. By another enactment it was declared that no peer of Scotland should be capable of being elected one of the representative peers, or of voting at such election, and that no person should be capable of being elected a member of parliament for any shire or burgh, who should within the compass of any future year be twice present at divine service in an illegal episcopal meeting-house in Scotland. Several other severe Acts were passed against Episcopalians, and these were not allowed to remain a dead letter, but were acted upon in several instances.[1379] The devoted Episcopalians bore their privations with becoming fortitude, by yielding to a necessity which they could not control, but they submitted only because they were unable to resist.
Still there is no doubt that even at the present day there are not a few hereditary adherents of the Scottish episcopal church, whose sympathies are all Jacobite, and who have never taken kindly even to the present dynasty.