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

by Unknown

“This custom was termed hand-fasting, and consisted in a species of contract between two chiefs, by which it was agreed that the heir of one should live with the daughter of the other as her husband for twelve months and a day. If in that time the lady became a mother, or proved to be with child, the marriage became good in law, even although no priest had performed the marriage ceremony in due form; but should there not have occurred any appearance of issue, the contract was considered at an end, and each party was at liberty to marry or hand-fast with any other. It is manifest that the practice of so peculiar a species of marriage must have been in terms of the original law among the Highlanders, otherwise it would be difficult to conceive how such a custom could have originated; and it is in fact one which seems naturally to have arisen from the form of their society, which rendered it a matter of such vital importance to secure the lineal succession of their chiefs. It is perhaps not improbable that it was this peculiar custom which gave rise to the report handed down by the Roman and other historians, that the ancient inhabitants of Great Britain had their wives in common, or that it was the foundation of that law of Scotland by which natural children became legitimized by subsequent marriage; and as this custom remained in the Highlands until a very late period, the sanction of the ancient custom was sufficient to induce them to persist in regarding the offspring of such marriages as legitimate.”[124]

It appears, indeed, that, as late as the sixteenth century, the issue of a hand-fast marriage claimed the earldom of Sutherland. The claimant, according to Sir Robert Gordon, described himself as one lawfully descended from his father, John, the third earl, because, as he alleged, “his mother was hand-fasted and fianced to his father;” and his claim was bought off (which shows that it was not considered as altogether incapable of being maintained) by Sir Adam Gordon, who had married the heiress of Earl John. Such, then, was the nature of the peculiar and temporary connexion, which gave rise to the apparent anomalies which we have been considering. It was a custom which had for its object, not to interrupt, but to preserve the lineal succession of the chiefs, and to obviate the very evil of which it is conceived to afford a glaring example. But after the introduction of the feudal law, which, in this respect, was directly opposed to the ancient Highland law, the lineal and legitimate heir, according to Highland principles, came to be regarded as a bastard by the government, which accordingly considered him as thereby incapacitated for succeeding to the honours and property of his race; and hence originated many of those disputes concerning succession and chiefship, which embroiled families with one another as well as with the government, and were productive of incredible disorder, mischief, and bloodshed. No allowance was made for the ancient usages of the people, which were probably but ill understood; and the rights of rival claimants were decided according to the principles of a foreign system of law, which was long resisted, and never admitted except from necessity. It is to be observed, however, that the Highlanders themselves drew a broad distinction between bastard sons and the issue of the hand-fast unions above described. The former were rigorously excluded from every sort of succession, but the latter were considered as legitimate as the offspring of the most regularly solemnized marriage.

Having said thus much respecting the laws of succession and marriage, we proceed next to consider the gradation of ranks which appears to have existed amongst the Highlanders, whether in relation to the lands of which they were proprietors, or the clans of which they were members. And here it may be observed, that the classification of society in the Highlands seems to have borne a close resemblance to that which prevailed in Wales and in Ireland amongst cognate branches of the same general race. In the former country there were three different tenures of land, and nine degrees of rank. Of these tenures, the first was termed Maerdir, signifying a person who has jurisdiction, and included three ranks; the second was called Uchilordir, or property, and likewise consisted of three ranks; and the third, denominated Priodordir, or native, included that portion of the population whom we would now call tenants, divided into the degrees of yeomen, labourers, and serfs. A similar order of things appears to have prevailed in Ireland, where, in the classification of the people, we recognise the several degrees of Fuidir, Biadhtach, and Mogh. In the Highlands, the first tenure included the three degrees of Ard Righ, Righ, and Mormaor; the Tighern or Thane, the Armin and the Squire, were analogous to the three Welsh degrees included in the Uchilordir; and a class of persons, termed native men, were evidently the same in circumstances and condition with the Priodordir of Wales. These native men were obviously the tenants or farmers on the property, who made a peculiar acknowledgment, termed calpe, to the chief or head of their clan. For this we have the authority of Martin, who informs us that one of the duties “payable by all the tenants to their chiefs, though they did not live upon his lands,” was called “calpich,” and that “there was a standing law for it,” denominated “calpich law.” The other duty paid by the tenants was that of herezeld, as it was termed, which, along with calpe, was exigible if the tenant happened to occupy more than the eighth part of a davoch of land. That such was the peculiar acknowledgment of chiefship incumbent on the native men, or, in other words, the clan tribute payable by them in acknowledgment of the power and in support of the dignity of the chief, appears from the bonds of amity or manrent, in which we find them obliging themselves to pay “calpis as native men ought and should do to their chief.”

But the native men of Highland properties must be carefully distinguished from the cumerlach, who, like the kaeth of the Welsh, were merely a species of serfs, or adscripti glebæ. The former could not be removed from the land at the will of their lord, but there was no restriction laid on their personal liberty; the latter might be removed at the pleasure of their lord, but their personal liberty was restrained, or rather abrogated. The native man was the tenant who cultivated the soil, and as such possessed a recognised estate in the land which he occupied. As long as he performed the requisite services he could not be removed, nor could a greater proportion of labour or produce be exacted from him than custom or usage had fixed. It appears, therefore, that these possessed their farms, or holdings, by a sort of hereditary right, which was not derived from their lord, and of which, springing as it did from immemorial usage, and the very constitution of clanship, it was not in his power to deprive them. The cumerlach were the cottars and actual labourers of the soil, who, possessing no legal rights either of station or property, were in reality absolute serfs. The changes of succession, however, occasionally produced important results, illustrative of the peculiarities above described. “When a Norman baron,” says Mr Skene, “obtained by succession, or otherwise, a Highland property, the Gaelic nativi remained in actual possession of the soil under him, but at the same time paid their calpes to the natural chief of their clan, and followed him in war. When a Highland chief, however, acquired by the operation of the feudal succession, an additional property which had not been previously in the possession of his clan, he found it possessed by the nativi of another race. If these nativi belonged to another clan which still existed in independence, and if they chose to remain on the property, they did so at the risk of being placed in a perilous situation, should a feud arise between the two clans. But if they belonged to no other independent clan, and the stranger chief had acquired the whole possessions of their race, the custom seems to have been for them to give a bond of manrent to their new lord, by which they bound themselves to follow him as their chief, and make him the customary acknowledgment of the calpe. They thus became a dependent sept upon a clan of a different race, while they were not considered as forming a part of that clan.”[125]

The gradation of ranks considered in reference to the clan or tribe may be briefly described. The highest dignitary was the righ or king, who in point of birth and station was originally on a footing of equality with the other chiefs, and only derived some additional dignity during his life from a sort of regal pre-eminence. “Among the ancient Celtæ the prince or king had nothing actually his own, but everything belonging to his followers was freely at his service;” of their own accord they gave their prince so many cattle, or a certain portion of grain. It seems probable that the Celtic chief held the public lands in trust for his people, and was on his succession invested with those possessions which he afterwards apportioned among his retainers. Those only, we are told by Cæsar, had lands, “magistrates and princes, and they give to their followers as they think proper, removing them at the year’s end.”[126] The Celtic nations, according to Dr Macpherson, limited the regal authority to very narrow bounds. The old monarchs of North Britain and Ireland were too weak either to control the pride and insolence of the great, or to restrain the licentiousness of the populace. Many of those princes, if we credit history, were dethroned, and some of them even put to death by their subjects, which is a demonstration that their power was not unlimited.

Next to the king was the Mormaor, who seems to have been identical with the Tighern[127] and the later Thane. As we have already indicated, the persons invested with this distinction were the patriarchal chiefs or heads of the great tribes into which the Highlanders were formerly divided. But when the line of the ancient mormaors gradually sank under the ascendant influence of the feudal system, the clans forming the great tribes became independent, and their leaders or chiefs were held to represent each the common ancestor or founder of his clan, and derived all their dignity and power from the belief in such representation. The chief possessed his office by right of blood alone, as that right was understood in the Highlands; neither election nor marriage could constitute any title to this distinction; it was, as we have already stated, purely hereditary, nor could it descend to any person except him who, according to the Highland rule of succession, was the nearest male heir to the dignity.

Next to the chief stood the tanist or person who, by the laws of tanistry, was entitled to succeed to the chiefship; he possessed this title during the lifetime of the chief, and, in virtue of his apparent honours, was considered as a man of mark and consequence. “In the settlement of succession, the law of tanistry prevailed in Ireland from the earliest accounts of time. According to that law,” says Sir James Ware, “the hereditary right of succession was not maintained among the princes or the rulers of countries; but the strongest, or he who had the most followers, very often the eldest and most worthy of the deceased king’s blood and name, succeeded him. This person, by the common suffrage of the people, and in the lifetime of his predecessor, was appointed to succeed, and was called Tanist, that is to say, the second in dignity. Whoever received this dignity maintained himself and followers, partly out of certain lands set apart for that purpose, but chiefly out of tributary impositions, which he exacted in an arbitrary manner; impositions from which the lands of the church only, and those of persons vested with particular immunities, were exempted. The same custom was a fundamental law in Scotland for many ages. Upon the death of a king, the throne was not generally filled by his son, or daughter, failing of male issue, but by his brother, uncle, cousin-german, or near relation of the same blood. The personal merit of the successor, the regard paid to the memory of his immediate ancestors, or his address in gaining a majority of the leading men, frequently advanced him to the crown, notwithstanding the precautions taken by his predecessor.”[128]

According to Mr E. W. Robertson,[129] the Tanist, or heir-apparent, appears to have been nominated at the same time as the monarch or chief, and in pursuance of what he considers a true Celtic principle, that of a “divided authority;” the office being immediately filled up in case of the premature death of the Tanist, the same rule being as applicable to the chieftain of the smallest territory as to the chosen leader of the nation. According to Dr Macpherson, it appears that at first the Tanist or successor to the monarchy, or chiefship, was elected, but at a very early period the office seems to have become hereditary, although not in the feudal sense of that term. Mr Skene has shown that the succession was strictly limited to heirs male, and that the great peculiarity of the Highland system was that brothers invariably were preferred to sons. This perhaps arose partly from an anxiety to avoid minorities “in a nation dependent upon a competent leader in war.” This principle was frequently exemplified in the succession to the mormaordoms, and even to the kingly power itself; it formed one of the pleas put forward by Bruce in his competition for the crown with Baliol.

After the family of the chief came the ceantighes, or heads of the subordinate houses into which the clan was divided, the most powerful of whom was the toisich, or toshach, who was generally the oldest cadet. This was a natural consequence of the law of gavel, which, producing a constant subdivision of the chief’s estate, until in actual extent of property he sometimes came to possess less than any of the other branches of the family, served in nearly the same proportion to aggrandise the latter, and hence that branch which had been longest separated from the original became relatively the most powerful. The toshach, military leader, or captain of the clan, certainly appears to have been at first elected to his office among the Celtic nations, as indeed were all the dignitaries who at a later period among the Highlanders succeeded to their positions according to fixed laws.[130] As war was the principal occupation of all the early Celtic nations, the office of toshach, or “war-king,” as Mr Robertson calls him, was one of supreme importance, and gave the holder of it many opportunities of converting it into one of permanent kingship although the Celts carefully guarded against this by enforcing the principle of divided authority among their chiefs, and thus maintaining the “balance of power.” The toshach’s duties were strictly military, he having nothing to do with the internal affairs of the tribe or nation, these being regulated by a magistrate, judge, or vergobreith, elected annually, and invested with regal authority and the power of life and death. It would appear that the duties of toshach sometimes devolved on the tanist, though this appears to have seldom been the case among the Highlanders.[131] From a very early time the oldest cadet held the highest rank in the clan, next to the chief; and when the clan took the field he occupied, as a matter of right, the principal post of honour. On the march he headed the van, and in battle took his station on the right; he was, in fact, the lieutenant-general of the chief, and when the latter was absent he commanded the whole clan.[132] Another function exercised by the oldest cadet was that of maor, or steward, the principal business of which officer was to collect the revenues of the chief; but, after the feudal customs were introduced, this duty devolved upon the baron-bailie, and the maor consequently discontinued his fiscal labours.

The peculiar position of the toshach, with the power and consequence attached to it, naturally pointed him out as the person to whom recourse would be had in circumstances of difficulty; and hence arose an apparent anomaly which has led to no little misconception and confusion. The difficulty, however, may easily be cleared by a short explanation. When, through misfortune or otherwise, the family of the chief had become so reduced that he could no longer afford to his clan the protection required, and which formed the correlative obligation on his part to that of fealty and obedience on theirs, then the clansmen followed the oldest cadet as the head of the most powerful sept or branch of the clan; and he thus enjoyed, sometimes for a considerable period, all the dignity, consequence, and privileges of a chief, without, of course, either possessing a right, jure sanguinis, to that station, or even acquiring the title of the office which he, de facto, exercised. He was merely a sort of patriarchal regent, who exercised the supreme power, and enjoyed prerogatives of royalty without the name. While the system of clanship remained in its original purity, no such regency, or interregnum, could ever take place. But, in process of time, many circumstances occurred to render it both expedient and necessary. In fact, clanship, in its ancient purity, could scarcely co-exist with the feudal system, which introduced changes so adverse to its true spirit; and hence, when the territory had passed, by descent, into the hands of a Lowland baron, or when, by some unsuccessful opposition to the government, the chief had brought ruin upon himself and his house, and was no longer in a condition to maintain his station and afford protection to his clan, the latter naturally placed themselves under the only head capable of occupying the position of their chief, and with authority sufficient to command or enforce obedience. In other words, they sought protection at the hands of the oldest cadet; and he, on his part, was known by the name, not of chief, which would have been considered a gross usurpation, but of captain, or leader of the clan. It is clear, therefore, that this dignity was one which owed its origin to circumstances, and formed no part of the original system, as has been generally but erroneously supposed. If an anomaly, it was one imposed by necessity, and the deviation was confined, as we have seen, within the narrowest possible limits. It was altogether unknown until a recent period in the history of the Highlands, and, when it did come into use, it was principally confined to three clans, namely, Clan Chattan, Clan Cameron, and Clan Ranald; an undoubted proof that it was not a regular but an exceptional dignity, that it was a temporary expedient, not part of a system; and that a captain differed as essentially from a chief as a regent differs from an hereditary sovereign. “It is evident,” says Mr Skene, who has the merit of being the first to trace out this distinction clearly, “that a title, which was not universal among the Highlanders, must have arisen from peculiar circumstances connected with those clans in which it is first found; and when we examine the history of these clans, there can be little doubt that it was simply a person who had, from various causes, become de facto head of the clan, while the person possessing the hereditary right to that dignity remained either in a subordinate situation, or else for the time disunited from the rest of the clan.”[133]