The term clan, now applied almost exclusively to the tribes into which the Scottish Highlanders were formerly, and still to some extent are divided, was also applied to those large and powerful septs into which the Irish people were at one time divided, as well as to the communities of freebooters that inhabited the Scottish borders, each of which, like the Highland clans, had a common surname. Indeed, in an Act of the Scottish Parliament for 1587, the Highlanders and Borderers are classed together as being alike "dependents on chieftains or captains of clans." The border clans, how ever, were at a comparatively early period broken up and weaned from their predatory and warlike habits, whereas the system of clanship in the Highlands continued to flourish in almost full vigour down to the middle of the 18th century. As there is so much of romance surrounding the system, especially in its later manifestations, and as it was the cause of much annoyance to Britain, it has become a subject of interest to antiquarians and students of mankind generally; and as it flourished so far into the historical period, curiosity can, to a great extent, be gratified as to its details and working.
A good deal has been written on the subject in its various aspects, and among other authorities we must own our indebtedness for much of our information to Skene’s Highlanders of Scotland, Gregory’s Highlands and Isles, Robertson’s Scotland under her Early Kings, Stewart’s Sketches of the Highlanders, Logan’s Scottish Gael and Clans, and The Iona Club Transactions, besides the publications of the various other Scottish Clubs.
We learn from Tacitus and other historians, that at a very early period the inhabitants of Caledonia were divided into a number of tribes, each with a chief at its head. These tribes, from all we can learn, were independent of, and often at war with each other, and only united under a common elected leader when the necessity of resisting a common foe compelled them. In this the Caledonians only followed a custom which is common to all barbarous and semi-barbarous peoples; but what was the bond of union among the members of the various tribes it is now not easy to ascertain. We learn from the researches of Mr E. W. Robertson that the feeling of kindred was very strong among all the early Celtic and even Teutonic nations, and that it was on the principle of kin that land was allotted to the members of the various tribes. The property of the land appears to have been vested in the Cean-cinnetli, or head of the lineage for the good of his clan; it was "burdened with the support of his kindred and Amasack" (military followers), these being allotted parcels of land in proportion to the nearness of their relation to the chief of the clan. The word clan itself, from its etymology, points to the principle of kin, as the bond which united the members of the tribes among themselves, and bound them to their chiefs. As there are good grounds for believing that the original Caledonians, the progenitors of the present genuine Highlanders, belonged to the Celtic family of mankind, it is highly probable that when they first entered upon possession of Alban, whether peaceably or by conquest, they divided the land among their various tribes in accordance with their Celtic principle. The word clan, as we have said, signifies family, and a clan was a certain number of families of the same name, sprung, as was believed, from the same root, and governed by the lineal descendant of the parent family. This patriarchal form of society was probably common in the infancy of mankind, and seems to have prevailed in the days of Abraham; indeed, it was on a similar principle that Palestine was divided among the twelve tribes of Israel, the descendants of the twelve sons of Jacob.
As far back as we can trace, the Highlands appear to have been divided into a number of districts, latterly known as Mormaordoms, each under the jurisdiction of a Mormaor, to whom the several tribes in each district looked up as their common head. It is not improbable that Galgacas, the chosen leader mentioned by Tacitus, may have held a position similar to this, and that in course of time some powerful or popular chief, at first elected as a temporary leader, may have contrived to make his office permanent, and even to some extent hereditary. The title Mormaor, however, is first met with only after the various divisions of northern Scotland had been united into a kingdom. "In Scotland the royal official placed over the crown or fiscal lands, appears to have been originally known as the Maor, and latterly under the Teutonic appellation of Thane. . . . The original Thanage would appear to have been a district held of the Crown, the holder, Maor or Thane, being accountable for the collection of the royal dues, and for the appearance of the royal tenantry at the yearly ‘hosting,’ and answering to the hereditary Toshach, or captain of a clan, for the king stood in the place of the Cean-cinneth, or chief. . . . When lands were strictly retained in the Crown, the Royal Thane, or Maor, was answerable directly to the King; but there was a still greater official among the Scots, known under the title of Mormaor, or Lord High Steward who was evidently a Maor placed over a province instead of a thanage—an earldom or county instead of a barony—a type of Harfager’s royal Jarl who often exercised as a royal deputy that authority which he had originally claimed as the independent lord of the district over which he presided." According to Mr Skene, it was only about the 16th century when the great power of these Mormaors was broken up, and their provinces converted into thanages or earldoms, many of which were held by Saxon nobles, who possessed them by marriage, that the clans first make their appearance in these districts and in independence. By this, we suppose, he does not mean that it was only when the above change took place that the system of clanship sprang into existence, but that then the various great divisions of the clans, losing their ceancinneth, or head of the kin, the individual clans becoming independent, sprang into greater prominence and assumed a stronger individuality.
Among the Highlanders themselves various traditions have existed as to the origin of the clans. Mr Skene mentions the three principal ones, and proves them to be entirely fanciful. The first of these is the Scottish or Irish system, by which the clans trace their origin or foundation to early Irish or Scoto-Irish kings. The second is what Mr Skene terms the heroic system, by which many of the Highland clans are deduced from the great heroes in the fabulous histories of Scotland and Ireland, by identifying one of these fabulous heroes with an ancestor of the clan of the same name. The third system did not spring up till the 17th century, when the fabulous history of Scotland first began to be doubted, when it was considered to be a principal merit in an antiquarian to display his scepticism as to all the old traditions of the country. Mr Skene terms it the Norwegian or Danish system, and it was the result of a furor for imputing everything and deriving everybody from the Danes. The idea, however, never obtained any great credit in the Highlands. The conclusion to which Mr Skene comes is, "that the Highland clans are not of different or foreign origin, but that they were a part of the original nation, who have inhabited the mountains of Scotland as far back as the memory of man, or the records of history can reach; that they were divided into several great tribes possessing their hereditary chiefs; and that it was only when the line of these chiefs became extinct, and Saxon nobles came into their place, that the Highland clans appeared in the peculiar situation and character in which they were afterwards found." Mr Skene thinks this conclusion strongly corroborated by the fact that there can be traced existing in the Highlands, even so late as the 16th century, a still older tradition than that of the Irish origin of the clans. This tradition is found in the often referred to letter of "John Elder, clerk, a Reddschanke," dated 1542, and addressed to King Henry VIII. This tradition, held by the Highlanders of the "more auncient stoke" in opposition to the "Papistical curside spiritualite of Scotland," was that they were the true descendants of the ancient Picts, then known as "Redd Schankes."
Whatever may be the value of Mr Skene’s conclusions as to the purity of descent of the present Highlanders, his researches, taken in conjunction with those of Mr E. W. Robertson, seem pretty clearly to prove, that from as far back as history goes the Highlanders were divided into tribes on the principle of kin, that the germ of the fully developed clan-system can be found among the earliest Celtic inhabitants of Scotland; that clanship, in short, is only a modern example, systematised, developed, and modified by time of the ancient principle on which the Celtic people formed their tribes and divided their lands. The clans were the fragments of the old Celtic tribes, whose mormaors had been destroyed, each tribe dividing into a number of clans. When, according to a recent writer, the old Celtic tribe was deprived of its chief, the bolder spirits among the minor chieftains would gather round them each a body of partisans, who would assume his name and obey his orders. It might even happen that, from certain favourable circumstances, a Saxon or a Norman stranger would thus be able to gain a circle of adherents out of a broken or chieftainless Celtic tribe, and so become the founder of a clan.
As might be expected, this primitive, patriarchal state of society would be liable to be abolished as the royal authority became extended and established, and the feudal system substituted in its stead. This we find was the case, for under David and his successors, during the 12th and 13th centuries, the old and almost independent mormaordoms were gradually abolished, and in their stead were substituted earldoms feudally dependent upon the Crown. In many instances these mormaordoms passed into the hands of lowland barons, favourites of the king; and thus the dependent tribes, losing their hereditary heads, separated, as we have said, into a number of small and independent clans, although even the new foreign barons themselves for a long time exercised an almost independent sway, and used the power which they had acquired by royal favour against the king himself.
As far as the tenure of lands and the heritable jurisdictions were concerned, the feudal system was easily introduced into the Highlands; but although the principal chiefs readily agreed, or were induced by circumstances to hold their lands of the Crown or of low country barons, yet the system of clanship remained in full force amongst the native Highlanders until a very recent period, and its spirit still to a certain extent survives in the affections, the prejudices, the opinions, and the habits of the people.
The nature of the Highlands of Scotland was peculiarly favourable to the clan system, and no doubt helped to a considerable extent to perpetuate it. The division of the country into so many straths, and valleys, and islands, separated from one another by mountains or arms of the sea, necessarily gave rise to various distinct societies. Their secluded situation necessarily rendered general intercourse difficult, whilst the impenetrable ramparts with which they were surrounded made defence easy. The whole race was thus broken into many individual masses, possessing a community of customs and character, but placed under different jurisdictions; every district became a sort of petty independent state; and the government of each community or clan assumed the patriarchal form, being a species of hereditary monarchy, founded on custom, and allowed by general consent, rather than regulated by positive laws.
The system of clanship in the Highlands 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" " 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 rnanrent 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 MacCoils 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." 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 taniatry; that to the property or the land itself, gavd. 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 acknowledgement 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.
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.
"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."
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 anions above described. The former were rigorously excluded from every sort of succession, hut 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 maybe 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 Uchiordir, 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 Arrnin 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 acknowledgement, 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 acknowledgement of chiefship incumbent on the native men, or, in other words, the clan tribute payable by them in acknowledgement 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 cumerlacli, who, like the kaeth of the Welsh, were merely a species of serfs, or adscipti gleboe. 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 cumerlack 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 acknowledgement 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."
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 preeminence. "Among the ancient Celts 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 Caesar, had lands, "magistrates and princes, and they give to their followers as they think proper, removing them at the year’s end." 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 Tigliern and the later Thiane. 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 maimer; 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."
According to Mr E. W. Robertson 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 in variably 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 toisick, 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. As war was the principal occupation of all the early Celtic nations, the office of toshach, or "warking," 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’a 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 vergolreith, elected annually, and invested with regal authority and the power of life and death. It would appear that the duties of toskack sometimes devolved on the tanist, though this appears to have seldom been the case among the Highlanders 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 cornmended the whole clan. ("Toisieh," says Dr Macpherson, "was another title of honour which obtained among the Seats of the middle ages. Spelman imagined that this dignity was the same with that of Thane. But the Highlanders, among whose predecessors the word was once common, distinguished carefully in their language the toisich. from the tanistais or the tiersea. When they enumerate the different classes of their great men, agreeably to the language of former times, they make use of these three titles, in the same sentence, with a disjunctive particle between them." "In Gaelic," he adds, "tug, tos, and tosicls signify the beginning or first part of anything, and sometimes the front of an army or battle ." Hence perhaps the name toisichs, implying the post of honour which the oldest cadet always occupied as his peculiar privilege and distinction. Mr Robertson, however, thinks tosiads is derived from the same root as the Latin due. (Early, Kings, i. 26.)) Another function exercised by the oldest cadet was that of mao; 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-baffle, 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 arid 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 san guinis, 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 he 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."
(Skene’s Highlanders, vol. ii. pp. 177, 178. That die captains of clans were originally the oldest cadets, placed beyond all doubt by an instance which Mr Skene has mentioned in the part of his work here refferred to. "The title of captain occurs but once in the family of the Macdonalds of Slate, and the single occurrence of this peculiar title is when the clan Houston was led by the uncle of their chief, then in minority. In 1545, we find Archibald Maconnill, captain of the clan Houston; and thus, on the only occasion when this clan followed as a chief a person who had not the right of blood to that station, he styles himself captain of the clan.")
Another title known among the ancient Highlanders was that of ogtiern, or lesser tighern, or Thane, and was applied either to the son of a tighern, or to those members of the clan whose kinship to the chief was beyond a certain degree. They appear to have to a large extent formed the class of duinewassels, or gentry of the clan, intermediate between the chief and the body of the clan, and known in later times as tacks-men or goodmen. "These, again, had a circle of relations, who considered them as their immediate leaders, and who in battle were placed under their immediate command. Over them in peace, these chieftains exercised a certain authority, but were themselves dependent on the chief, to whose service all the members of the clan were submissively devoted. As the dwiriewassels received their lands from the bounty of the chief, for the purpose of supporting their station in the tribe, so these lands were occasionally resumed or reduced to provide for those who were more immediately related to the laird; hence many of this class necessarily sank into commoners. This transition strengthened the feeling which was possessed by the very lowest of the community, that they were related to the chief, from whom they never forgot they originally sprang."’ The duinewassels were all cadets of the house of the chief, and each had a pedigree of his own as long, and perchance as complicated as that of his chief. They were, as might be expected, the bravest portion of the clan ; the first in the onset, and the last to quit the strife, even when the tide of battle pressed hardest against them. They cherished a high and chivalrous sense of honour, ever keenly alive to insult or reproach; and they were at all times ready to devote themselves to the service of their chief when a wrong was to be avenged, an inroad repressed or punished, or glory reaped by deeds of daring in arms.
Another office which existed among the old Gaelic inhabitants of Scotland was that of Brehon, deemster, or judge, the representative of the vergobreith previously referred to, Among the continental Celts this office was elective, but among the Highlanders it appears to have been hereditary, and by no means held so important, latterly at least, as it was on the continent. As we referred to this office in the former part of this work, we shall say nothing farther of it in this place.
To this general view of the constitution of society in the Highlands, little remains to be added. The chief, as we have seen, was a sort of regulus, or petty prince, invested with an authority which was in its nature arbitrary, but which, in its practical exercise, seems generally to have been comparatively mild and paternal, lie was subjected to no theoretical or constitutional limitations, yet, if ferocious in disposition, or weak in understanding, he was restrained or directed by the elders of the tribe, who were his standing counsellors, and without whose advice no measure of importance could be decided on. Inviolable custom supplied the deficiency of law. As his distinction and power consisted chiefly in the number of his followers, his pride as well as his ambition became a guarantee for the mildness of his sway; he had a direct and immediate interest to secure the attachment and devotion of his clan; and his condescension. while it raised the clansman in his own estimation, served also to draw closer the ties which bound the latter to his superior, without tempting him to transgress the limits of propriety. The Highlander was thus taught to respect himself in the homage which he paid to his chief. Instead of complaining of the difference of station and fortune, or considering prompt obedience as slavish degradation, he felt convinced that he was supporting his own honour in showing respect to the head of his family, and in yielding a ready compliance to his will. Hence it was that the Highlanders carried in their demeanour the politeness of courts without the vices by which these are too frequently dishonoured, and cherished in their bosoms a sense of honour without any of its follies or extravagances. This mutual interchange of condescension and respect served to elevate the tone of moral feeling amongst the people, and no doubt contributed to generate that principle of incorruptible fidelity of which there are on record so many striking and even affecting examples. The sentiment of honour, and the firmness sufficient to withstand temptation, may in general be expected in the higher classes of society; but the voluntary sacrifice of life and fortune is a species of self-devotion seldom displayed in any community, and never perhaps exemplified to the same extent in any country as in the Highlands of Scotland. The punishment of treachery was a kind of conventional outlawry or banishment from society, a sort of aqiue et ignis interdictio even more terrible than the punishment inflicted under that denomination, during the prevalence of the Roman law. It was the judgment of all against one, the condemnation of society, not that of a tribunal; and the execution of the sentence was as complete as its ratification was universal. Persons thus intercommuned were for ever cut off from the society to which they belonged; they incurred civil death in its most appalling form, and their names descended with infamy to posterity. What higher proof could possibly be produced of the noble sentiments of honour and fidelity cherished by the people, than the simple fact that the breach of these was visited with such a fearful retribution
On the other hand, when chiefs proved worthless or oppressive, they were occasionally deposed, and when they took a side which was disapproved by the clan, they were abandoned by their people. Of the former, there are several well authenticated examples, and General Stewart has mentioned a remarkable instance of the latter. "In the reign of King William, immediately after the Revolution, Lord Tullibardine, eldest son of the Marquis of Athole, collected a numerous body of Athole Highlanders, together with three hundred Frasers, under the command of Hugh, Lord Lovat, who had married a daughter of the Marquis. These men believed that they were destined to support the abdicated king, but were in reality assembled to serve the government of William. When in front of Blair Castle, their real destination was disclosed to them by Lord Tullibardine. Instantly they rushed from their ranks, ran to the adjoining stream of Banovy, and filling their bonnets with water, drank to the health of King James; then with colours flying and pipes playing, fifteen hundred of the men of Athole put themselves under the command of the Laird of Ballechin, and marched off to join Lord Dundee, whose chivalrous bravery and heroic exploits had excited their admiration more than those of any other warrior since the days of Montrose."
The number of Highland clans has been variously estimated, but it is probable that when they were in their most flourishing condition it amounted to about forty. Latterly, by including many undoubtedly Lowland houses, the number has been increased to about a hundred, the additions being made chiefly by tartan manufacturers. Mr Skene has found that the various purely Highland clans can be clearly classified and traced up as having belonged to one or other of the great mormaordoms into which the north of Scotland was at one time divided. In his history of the individual clans, however, this is not the classification which he adopts, but one in accordance with that which he finds in the manuscript genoalogies. According to these, the people were originally divided into several great tribes, the clans forming each of these separate tribes being deduced from a common ancestor. A marked line of distinction may be drawn between the different tribes, in each of which indications may be traced serving more or less, according to Mr Skene, to identify them with the ancient mormaorships or earldoms.
In the old genealogies each tribe is invariably traced to a common ancestor, from whom all the different branches or clans are supposed to have descended. Thus we have—l. Descendants of Conn of the Hundred Battles, including the Lords of the Isles, or Macdonalds, the Macdougals, the Macneills, the Maclachlans, the Macewens, the Maclaisrichs, and the Maceacherns; 2. Descendants of Fearchar Fada Mac Feradaig, comprehending the old mormaors of Moray, the Mackintoshes, the Macphersons, and the Macnauchtans; 3. Descendants of Cormac Mac Oirbertaig, namely, the old Earls of Ross, the Mackenzies, the Mathiesons, the Macgregors, the Mackinnons, the Macquarries, the Macnabs, and the Macduffies; 4. Descendants of Fergus Leith Dearg, the Macleods and the Campbells; and 5. Descendants of Krycul, the Macnicols.
Whatever may be the merits or defects of this distribution, it is convenient for the purpose of classification. It affords the means of referring the different clans to their respective tribes, and thus avoiding an arbitrary arrangement; and it is further in accordance with the general views which have already been submitted to the reader respecting the original constitution of clanship. We shall not, however, adhere strictly to Mr Skene’s arrangement.
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