The Scottish Highlands, Highland Clans and Highland Regiments, Volume 2 (of 2)

by Unknown

The system of clanship in the Highlands,[120] although possessing an apparent resemblance to feudalism, was in principle very different indeed from that system as it existed in other parts of the country. In the former case, the people followed their chief as the head of their race, and the representative of the common ancestor of the clan; in the latter, they obeyed their leader as feudal proprietor of the lands to which they were attached, and to whom they owed military service for their respective portions of these lands. The Highland chief was the hereditary lord of all who belonged to his clan, wherever they dwelt or whatever lands they occupied; the feudal baron was entitled to the military service of all who held lands under him, to whatever race they might individually belong. The one dignity was personal, the other was territorial; the rights of the chief were inherent, those of the baron were accessory; the one might lose or forfeit his possessions, but could not thereby be divested of his hereditary character and privileges; the other, when divested of his fee, ceased to have any title or claim to the service of those who occupied the lands. Yet these two systems, so different in principle, were in effect nearly identical. Both exhibited the spectacle of a subject possessed of unlimited power within his own territories, and exacting unqualified obedience from a numerous train of followers, to whom he stood in the several relations of landlord, military leader, and judge, with all the powers and prerogatives belonging to each of those characters. Both were equally calculated to aggrandise turbulent chiefs and nobles, at the expense of the royal authority, which they frequently defied, generally resisted, and but seldom obeyed; although for the most part, the chief was less disloyal than the baron, probably because he was farther removed from the seat of government, and less sensible of its interference with his own jurisdiction. The one system was adapted to a people in a pastoral state of society, and inhabiting a country, like the Highlands of Scotland, which from its peculiar nature and conformation, not only prevented the adoption of any other mode of life, but at the same time prescribed the division of the people into separate families or clans. The other system, being of a defensive character, was necessary to a population occupying a fertile but open country, possessing only a rude notion of agriculture, and exposed on all sides to aggressions on the part of neighbours or enemies. But the common tendency of both was to obstruct the administration of justice, nurse habits of lawless violence, exclude the cultivation of the arts of peace, and generally to impede the progress of improvement; and hence neither was compatible with the prosperity of a civilised nation, where the liberty of the subject required protection, and the security of property demanded an equal administration of justice.

The peculiarities of clanship are nowhere better described than in Burt’s Letters from an Officer of Engineers to his Friend in London.[121] “The Highlanders,” he says, “are divided into tribes or clans, under chiefs or chieftains, and each clan is again divided into branches from the main stock, who have chieftains over them. These are subdivided into smaller branches of fifty or sixty men, who deduce their original from their particular chieftains, and rely upon them as their more immediate protectors and defenders. The ordinary Highlanders esteem it the most sublime degree of virtue to love their chief and pay him a blind obedience, although it be in opposition to the government. Next to this love of their chief is that of the particular branch whence they sprang; and, in a third degree, to those of the whole clan or name, whom they will assist, right or wrong, against those of any other tribe with which they are at variance. They likewise owe good-will to such clans as they esteem to be their particular well-wishers. And, lastly, they have an adherence to one another as Highlanders in opposition to the people of the low country, whom they despise as inferior to them in courage, and believe they have a right to plunder them whenever it is in their power. This last arises from a tradition that the Lowlands, in old times, were the possessions of their ancestors.

“The chief exercises an arbitrary authority over his vassals, determines all differences and disputes that happen among them, and levies taxes upon extraordinary occasions, such as the marriage of a daughter, building a house, or some pretence for his support or the honour of his name; and if any one should refuse to contribute to the best of his ability, he is sure of severe treatment, and, if he persists in his obstinacy, he would be cast out of his tribe by general consent. This power of the chief is not supported by interest, as they are landlords, but by consanguinity, as lineally descended from the old patriarchs or fathers of the families, for they hold the same authority when they have lost their estates, as may appear from several instances, and particularly that of one (Lord Lovat) who commands his clan, though at the same time they maintain him, having nothing left of his own. On the other hand, the chief, even against the laws, is bound to protect his followers, as they are sometimes called, be they never so criminal. He is their leader in clan quarrels, must free the necessitous from their arrears of rent, and maintain such who by accidents are fallen to total decay. Some of the chiefs have not only personal dislikes and enmity to each other, but there are also hereditary feuds between clan and clan, which have been handed down from one generation to another for several ages. These quarrels descend to the meanest vassals, and thus sometimes an innocent person suffers for crimes committed by his tribe at a vast distance of time before his being began.”

This clear and concise description will serve to convey an idea of clanship as it existed in the Highlands, about the beginning of the eighteenth century, when the system was in full force and vigour. It presented a singular mixture of patriarchal and feudal government; and everything connected with the habits, manners, customs, and feelings of the people tended to maintain it unimpaired, amidst all the changes which were gradually taking place in other parts of the country, from the diffusion of knowledge, and the progress of improvement. There was, indeed, something almost oriental in the character of immutability which seemed to belong to this primitive institution, endeared as it was to the affections, and singularly adapted to the condition of the people amongst whom it prevailed. Under its influence all their habits had been formed; with it all their feelings and associations were indissolubly blended. When the kindred and the followers of a chief saw him surrounded by a body of adherents, numerous, faithful, and brave, devoted to his interests, and ready at all times to sacrifice their lives in his service, they could conceive no power superior to his; and, when they looked back into the past history of their tribe, they found that his progenitors had, from time immemorial, been at their head. Their tales, their traditions, their songs, constantly referred to the exploits or the transactions of the same tribe or fraternity living under the same line of chiefs; and the transmission of command and obedience, of protection and attachment, from one generation to another, became in consequence as natural, in the eye of a Highlander, as the transmission of blood or the regular laws of descent. This order of things appeared to him as fixed and as inviolable as the constitution of nature or the revolutions of the seasons. Hence nothing could shake his fidelity to his chief, or induce him to compromise what he believed to be for the honour and interest of his clan. He was not without his feelings of independence, and he would not have brooked oppression where he looked for kindness and protection. But the long unbroken line of chiefs is of itself a strong presumptive proof of the general mildness of their sway. The individuals might change, but the ties which bound one generation were drawn more closely, although by insensible degrees, around the succeeding one; and thus each family, in all its various successions, retained something like the same sort of relation to the parent stem, which the renewed leaves of a tree in spring preserve, in point of form and position, to those which had dropped off in the preceding autumn.

Many important consequences, affecting the character of the Highlanders, resulted from this division of the people into small tribes, each governed in the patriarchal manner already described. The authority of the sovereign, if nominally recognised, was nearly altogether unfelt and inoperative. His mandates could neither arrest the mutual depredations of the clans, nor allay their hereditary hostilities. Delinquents could not be pursued into the bosom of the clan which protected them, nor could the judges administer the laws, in opposition to the will or the interests of the chiefs. Sometimes the sovereign attempted to strengthen his hands by fomenting divisions between the different clans, and entering occasionally into the interests of one, in the hope of weakening another; he threw his weight into one scale that the other might kick the beam, and he withdrew it again, that, by the violence of the reaction, both parties might be equally damaged and enfeebled. Many instances of this artful policy occur in Scottish history, which, for a long period, was little else than a record of internal disturbances. The general government, wanting the power to repress disorder, sought to destroy its elements by mutual collision; and the immediate consequence of its inefficiency was an almost perpetual system of aggression, warfare, depredation, and contention. Besides, the little principalities into which the Highlands were divided touched at so many points, yet they were so independent of one another; they approached so nearly in many respects, yet, in some others, were so completely separated; there were so many opportunities of encroachment on the one hand, and so little disposition to submit to it on the other; and the quarrel or dispute of one individual of the tribe so naturally involved the interest, the sympathies, and the hereditary feelings or animosities of the rest, that profound peace or perfect cordiality scarcely ever existed amongst them, and their ordinary condition was either a chronic or an active state of internal warfare. From opposing interests or wounded pride, deadly feuds frequently arose amongst the chiefs, and being warmly espoused by the clans, were often transmitted, with aggravated animosity, from one generation to another.

If it were profitable, it might be curious to trace the negotiations, treaties, and bonds of amity, or manrent as they were called, by which opposing clans strengthened themselves against the attacks and encroachments of their enemies or rivals, or to preserve what may be called the balance of power. Amongst the rudest communities of mankind may be discovered the elements of that science which has been applied to the government and diplomacy of the most civilised nations. By such bonds they came under an obligation to assist one another; and, in their treaties of mutual support and protection, smaller clans, unable to defend themselves, and those families or septs which had lost their chieftains, were also included. When such confederacies were formed, the smaller clans followed the fortunes, engaged in the quarrels, and fought under the chiefs, of the greater. Thus the MacRaes followed the Earl of Seaforth, the MacColls the Stewarts of Appin, and the MacGillivrays and MacBeans the Laird of Mackintosh; but, nevertheless, their ranks were separately marshalled, and were led by their own subordinate chieftains and lairds, who owned submission only when necessary for the success of combined operations. The union had for its object aggression or revenge, and extended no further than the occasion for which it had been formed; yet it served to prevent the smaller clans from being swallowed up by the greater, and at the same time nursed the turbulent and warlike spirit which formed the common distinction of all. From these and other causes, the Highlands were for ages as constant a theatre of petty conflicts as Europe has been of great and important struggles; in the former were enacted, in miniature, scenes bearing a striking and amusing analogy to those which took place upon a grand scale in the latter. The spirit of opposition and rivalry between the clans perpetuated a system of hostility; it encouraged the cultivation of the military at the expense of the social virtues, and it perverted their ideas both of law and morality. Revenge was accounted a duty, the destruction of a neighbour a meritorious exploit, and rapine an honourable employment. Wherever danger was to be encountered, or bravery displayed, there they conceived that distinction was to be obtained; the perverted sentiment of honour rendered their feuds more implacable, their inroads more savage and destructive; and superstition added its influence in exasperating animosities, by teaching that to revenge the death of a kinsman or friend was an act agreeable to his manes; thus engaging on the side of the most implacable hatred and the darkest vengeance, the most amiable and domestic of all human feelings, namely, reverence for the memory of the dead, and affection for the virtues of the living.

Another custom, which once prevailed, contributed to perpetuate this spirit of lawless revenge. “Every heir or young chieftain of a tribe,” says Martin, who had studied the character and manners of the Highlanders, and understood them well, “was obliged to give a specimen of his valour before he was owned and declared governor or leader of his people, who obeyed and followed him on all occasions. This chieftain was usually attended with a retinue of young men, who had not before given any proof of their valour, and were ambitious of such an opportunity to signalise themselves. It was usual for the chief to make a desperate incursion upon some neighbour or other that they were in feud with, and they were obliged to bring, by open force, the cattle they found in the land they attacked, or to die in the attempt. After the performance of this achievement, the young chieftain was ever after reputed valiant, and worthy of government, and such as were of his retinue acquired the like reputation. This custom being reciprocally used among them, was not reputed robbery; for the damage which one tribe sustained by the inauguration of the chieftain of another, was repaired when their chieftain came in his turn to make his specimen.”[122] But the practice seems to have died out about half a century before the time at which Martin’s work appeared, and its disuse removed one fertile source of feuds and disorders. Of the nature of the depredations in which the Highlanders commonly engaged, the sentiments with which they were regarded, the manner in which they were conducted, and the effects which they produced on the character, habits, and manners of the people, an ample and interesting account will be found in the first volume of General Stewart’s valuable work on the Highlands.

It has been commonly alleged, that ideas of succession were so loose in the Highlands, that brothers were often preferred to grandsons and even to sons. But this assertion proceeds on a most erroneous assumption, inasmuch as election was never in any degree admitted, and a system of hereditary succession prevailed, which, though different from that which has been instituted by the feudal law, allowed of no such deviations or anomalies as some have imagined. The Highland law of succession, as Mr Skene observes, requires to be considered in reference, first, to the chiefship and the superiority of the lands belonging to the clan; and secondly, in respect to the property or the land itself. The succession to the chiefship and its usual prerogatives was termed the law of tanistry; that to the property or the land itself, gavel. But when the feudal system was introduced, the law of tanistry became the law of succession to the property as well as the chiefship; whilst that of gavel was too directly opposed to feudal principles to be suffered to exist at all, even in a modified form. It appears, indeed, that the Highlanders adhered strictly to succession in the male line, and that the great peculiarity which distinguished their law of succession from that established by the feudal system, consisted in the circumstance that, according to it, brothers invariably succeeded before sons. In the feudal system property was alone considered, and the nearest relation to the last proprietor was naturally accounted the heir. But, in the Highland system, the governing principle of succession was not property, but the right of chiefship, derived from being the lineal descendant of the founder or patriarch of the tribe; it was the relation to the common ancestor, to whom the brother was considered as one degree nearer than the son, and through whom the right was derived, and not to the last chief, which regulated the succession. Thus, the brothers of the chief invariably succeeded before the sons, not by election, but as a matter of right, and according to a fixed rule which formed the law or principle of succession, instead of being, as some have supposed, a departure from it, occasioned by views of temporary expediency, by usurpation, or otherwise. In a word, the law of tanistry, however much opposed to the feudal notions of later times, flowed naturally from the patriarchal constitution of society in the Highlands, and was peculiarly adapted to the circumstances of a people such as we have described, whose warlike habits and love of military enterprise, or armed predatory expeditions, made it necessary to have at all times a chief competent to act as their leader or commander.

But if the law of tanistry was opposed to the principles of the feudal system, that of gavel or the succession to property amongst the Highlanders was still more adverse. By the feudal law the eldest son, when the succession opened, not only acquired the superiority over the rest of the family, but he also succeeded to the whole of the property, whilst the younger branches were obliged to push their fortune by following other pursuits. But in the Highlands the case was altogether different. By the law of gavel, the property of the clan was divided in certain proportions amongst all the male branches of the family, to the exclusion of females, who, by this extraordinary Salic anomaly, could no more succeed to the property than to the chiefship itself. The law of gavel in the Highlands, therefore, differed from the English custom of gavel-kind in being exclusively confined to the male branches of a family. In what proportions the property was divided, or whether these proportions varied according to circumstances, or the will of the chief, it is impossible to ascertain. But it would appear that the principal seat of the family, with the lands immediately surrounding it, always remained the property of the chief; and besides this, the latter retained a sort of superiority over the whole possessions of the clan, in virtue of which he received from each dependent branch a portion of the produce of the land as an acknowledgment of his chiefship, and also to enable him to support the dignity of his station by the exercise of a commensurate hospitality. Such was the law of gavel, which, though adverse to feudal principles, was adapted to the state of society amongst the Highlands, out of which indeed it originally sprang; because, where there were no other pursuits open to the younger branches of families except rearing flocks and herds during peace, and following the chief in war; and where it was the interest as well as the ambition of the latter to multiply the connexions of his family, and take every means to strengthen the power as well as to secure the obedience of his clan, the division of property, or the law of gavel, resulted as naturally from such an order of things, as that of hereditary succession to the patriarchal government and chiefship of the clan. Hence, the chief stood to the cadets of his family in a relation somewhat analogous to that in which the feudal sovereign stood to the barons who held their fiefs of the crown, and although there was no formal investiture, yet the tenure was in effect pretty nearly the same. In both cases the principle of the system was essentially military, though it apparently led to opposite results; and, in the Highlands, the law under consideration was so peculiarly adapted to the constitution of society, that it was only abandoned after a long struggle, and even at a comparatively recent period traces of its existence and operation may be observed amongst the people of that country.[123]

Similar misconceptions have prevailed regarding Highland marriage-customs. This was, perhaps, to be expected. In a country where a bastard son was often found in undisturbed possession of the chiefship or property of a clan, and where such bastard generally received the support of the clansmen against the claims of the feudal heir, it was natural to suppose that very loose notions of succession were entertained by the people; that legitimacy conferred no exclusive rights; and that the title founded on birth alone might be set aside in favour of one having no other claim than that of election. But this, although a plausible, would nevertheless be an erroneous supposition. The person here considered as a bastard, and described as such, was by no means viewed in the same light by the Highlanders, because, according to their law of marriage, which was originally very different from the feudal system in this matter, his claim to legitimacy was as undoubted as that of the feudal heir afterwards became. It is well known that the notions of the Highlanders were peculiarly strict in regard to matters of hereditary succession, and that no people on earth was less likely to sanction any flagrant deviation from what they believed to be the right and true line of descent. All their peculiar habits, feelings, and prejudices were in direct opposition to a practice, which, had it been really acted upon, must have introduced endless disorder and confusion; and hence the natural explanation of this apparent anomaly seems to be, what Mr Skene has stated, namely, that a person who was feudally a bastard might in their view be considered as legitimate, and therefore entitled to be supported in accordance with their strict ideas of hereditary right, and their habitual tenacity of whatever belonged to their ancient usages. Nor is this mere conjecture or hypothesis. A singular custom regarding marriage, retained till a late period amongst the Highlanders, and clearly indicating that their law of marriage originally differed in some essential points from that established under the feudal system, seems to afford a simple and natural explanation of the difficulty by which genealogists have been so much puzzled.