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Celtic Tenures and Highland Clearings
From Tait's Edinburgh Magazine


The stability of property is, next to the safety of life, the most important object of every government; and no country can be called highly civilized where it is not firmly and distinctly secured, and where it is liable to any derangements, at the will either of multitudes or individuals. It is part of a firm and well established rule of property, that it should be able to stand criticism and inquiry down to its very roots. Wherever people evade inspection and examination, whispering that it is dangerous, that it may be a precedent for questioning the stability of property at large, that it will give a feeling of insecurity,—there we may expect to find something wrong that should be altered to give symmetry and strength to the whole. There indeed we may expect to find property having a feeble and uncertain hold of the social system, which it is likely some time or other to lose; and it will not be the inspection of the whole edifice, and the repairing and readjusting of the part that is wrong,—it will not be this, we say, that is dangerous to the stability of the whole framework of property, though some interested persons may tell us so; but it is the overlooking the disorganized part, and allowing it to remain unremedied, that constitutes the danger. In this country there is a most unworthy diffidence on the point. People are afraid to look into the foundations of proprietary rights, lest they should find the whole rotten, and upset the social fabric in their operations. Yet there can be nothing in the shape of social institution more deeply and firmly planted, and more consistent with the sound philosophy of individual rights, than the tenure of property in general in this country—nothing that has stronger support in the general principles and opinions of the people — nothing that has fewer opponents. Surely this, instead of making us diffident of such inquiries, should induce us to approach them with boldness and freedom, and to ask whether the broad and just principles that characterize the system in general may not have been overlooked in some of its details.

We shall ever find, in countries even less civilized than our own, and where the bonds of social rights and duties are less firmly knit together, that the charges against the people at large of having designs against the rights of property, are false, and are raised by those whose proprietary rights are questionable, to save them from inquiry. The old scandal attached to the Roman agrarian law has now been long confuted. After it had served its turn, in vilifying the people as a body and all popular movements ; after it had been the chosen weapon of destruction to he cast in the face of all democratic projects, and was held to embody in two words a practical argument, sufficient to frighten the boldest advocates of representative reform, it was at last discovered, that it did truly refer to dishonesty and pillage, but not on the part of the people. Indeed, if we reflect calmly on the matter, it will at once appear that a deliberate purpose to appropriate the property of individuals is not a mob vice. Violent, outrageous, and unreasonable, assemblages of the people too often are. Too often have they seised on the wealth, physical and moral, built up by ages of enlightened laborious civilisation, and, tearing it to pieces, scattered it to the winds: too often have they wetted their hands in blood, and that the blood of their best friends ; but a design to transfer houses, commodities, land and stock, from A or B to the alphabet at laige, does not enter the frenzied brains which do such acts. Schemes of spoliation and appropriation are not naturally gregarious, but are the creatures of long solitary nourishment in individual bosoms. They have no heat in them to foster the passions of the fierce democracy; they are not the electric fluid that makes thousands of hearts beat at once with the same emotion. In the fiercest outburst of popular rage, the promulgation of such a doctrine of pillage, would throw dust upon the fire and put it out. We admit freely that spoliation and the unjust transference of property have frequently been caused by popular outbreaks, and that the disturbance had been created or fed to promote views of cupidity and aggrandisement : but these were the hidden plots of cunning and powerful individuals, generally of the aristocratic orders. The zealots of the Reformation, who tore down the nests that the rooks might flee away, intoxicated as they were with furious zeal, and full enough, no doubt, of evil passions, were pure from the taint of selfish motives; though there were those standing by, or occasionally cheering them on, who very quietly took possession of the church lands, held them with a firm gripe, and talked of their application to ecclesiastical purposes as a “devout imagination". At the end of a riot, pocket-books and watches have changed pockets: but it was not among the motives of the mob to bring about such a change. Enthusiasts sometimes faintly clamour about a partition of property, or a spunge on the national debt; but no considerable popular party ever advocated such doctrines, and none we prophesy will ever do so. The second step in the reasoning of those who in their dreams have taken the first, makes them immediately retrace it. They find that, with the stability of property, the fruits of industrial wealth must disappear, and industrial subsistence must be dried up and withered.

No! It is from the cupidity, the silent, watchful, aggrandising spirit of individuals, taking advantage here and there of defects in the law, that the rights of property are in danger; not from the organized plans of any large portion of the public. Silently day by day, and inch by inch, individuals are making their secret encroachments; the progress is scarcely more perceptible than the growing of the grain; but, when the proper time has elapsed, we see the granary filled. The public is a bad conservator of its rights, and too often is awakened to their existence when they are just about to vanish for ever. A public writer cannot do better service than in commenting on the reference of the proper principles of exclusive ownership to the rights of masses of the community; and we propose devoting these few pages to some remarks on the relation of the proprietors of land in our mountain districts, to their tenantry, and to the public at large.

If a victorious state were anxious to preserve the rights of property in a conquered province, they would not do so by immediately abolishing the old laws and customs regulating tenure and succession, and substituting those of the victor. The Romans did thus, it is true; but the Romans held that the lives and the property of all conquered people were forfeited, and that whatever was spared for them of either, was a free gift. The justice and humanity of modern times lead us to a different conclusion, and we admit to the conquered Sikh or Hindu the exercise of some proprietary rights. It may happen that the conquerors laws of property are far more scientifically and philosophically digested than those of the conquered ; it will almost invariably happen that they are more suitable to the people by and for whom they have been made; but it will also very often happen, that rude as they may be, the institutions of the conquered are better suited to their own state of society than those of their victors would be. It is generally difficult to persuade the victor that his institutions are not better than those of the vanquished: yet the uncertainty, anarchy, and misery, that follow the sudden substitution of new laws in place of old established customs, have made modem colonist* and conquerors either spare the old institutions of the vanquished, or substitute their own by very slow degrees. It is difficult, indeed, to get individuals to comprehend and carry out this general policy. The English official, especially if he bi a lawyer, cannot well conceive that there is any part of the world where the forms in which he has been trained, and which he reveres, are not, or should not be as powerful as in Middlesex. A pugnacious man is indicted as if he were a poacher. A New Zealand chief is served with a duces team, or subjected to a capitat adsatisfaciendum and most stand the consequences if he do not treat it as respectfully as if he were a draper in Cheapside. The absence of English law is held to be equivalent to no law. We remember well the air of blank amazement with which a young articled clerk looked round him in the Parliament House of Edinburgh, when he was told that there was neither i King's Bench nor Common Pleas there; no Chancery—not even a Master of the Rolls—but only a First and Second Division, an Outer and Inner-House, a Lord President and a Justice-Clerk ; and, oddest of all oddities, a Lord Ordinary on the Bills! Then, worse and worse, there was no nisi prius, no oyer and terminer, no certiorari or writ of error, no traversing, no emparlance; nothing but advocations, suspensions, reclaiming notes, interdicts, summonses, and condescendences. What a chaos!

Greater people are too much like our friend the articled clerk. Their ears are deaf as stone to the justice or propriety of any other code, any other system of rights between man and man, than that to which they have been bred, being tolerated, in peculiar circumstances, as better adapted to peculiar classes of society. We have observed, that the just and now avowed policy towards any conquered people, is to continue to administer among them their own laws, or, at least, to change the system gradually, in a manner not likely to be offensive to the public, or to press heavily on individuals. Much more, then, when there is an incorporation together of provinces not conquered, but united by consent or incidental circumstances, should this rule be pursued. Has it, then, been pursued in dealing with all the provinces of the United Kingdom. We shall see.

The Highlanders of Scotland are well known to he as distinct a race from the Lowlanders, as the Japanese from the Dutch, or the American Indians from the Portuguese. What is still certainly remarkable, after all the changes which this country has undergone,—after the spread of knowledge, the rapid progress of commerce, and the abundant facilities of locomotion),—the traveller who crosses the Highland line finds himself as completely among a different people, as he who passes from the Bernese to the Italian side of the Alps. In some places the traveller can stand and behold, on one side of him, activity, industry, and comfort; clean fields, a well-clothed peasantry, and comfortable houses; while on the other, even before there is any great change in the nature of the scenery, the manifestations of human life show neglect and poverty; and an oriental indolence seems to spread its sleepy wing over a people whose thin muscular forms, swarthy complexions, and free wild motions, bespeak an eastern origin, and make us feel as if we had crossed seas and deserts, instead of an imaginary line, to behold them. All this is, perhaps, pretty well known already; but did it ever occur to any one to inquire whether this peculiar people might not have social institutions and notions of property and justice, as different from those of their Saxon neighbours as the two people were unlike in structure, aspect, and manners, in language and ideas, in opinions and superstitions? Might it not have naturally been inferred, that the same rules for fixing the relative position of landlord and tenant, which, growing up in practice among the pastures and com fields of the south-eastern counties, became at last the law throughout Lowland Scotland, would scarcely be the same that bound together the Highland warrior and his chief, when they regulated the possession of their hunting1 grounds, or divided the spoil seised in a creach? And so, indeed, on inspection, it has been found to be. The connexion of the Highland chief and his followers was utterly distinct from that of the Lowland baron and his feudatories and tenants; and it has been by repeated processes of thoughtless cruelty,—causing intense suffering and heartburning among those who have had to yield to the strong hand, that, to some extent, the Lowland laws were given effect to in the Highlands, when they were found to minister to thecupidity of individuals. The main peculiarity of the system of Highland tenure was, that the chief was not the proprietor of the land, but the leader of the people. He might be very arbitrary and very despotic to individuals, but he could not treat the general body of his followers as a people who had no right to the soil on which they lived, save through his consent. In these circumstances, the law of succession was liable to those breaks and exceptions to which monarchies are liable^ but proprietary rights, settled by law, are not. it was not held, down even to comparatively recent times, to be a general rule that the eldest son succeeded the father. The hereditary principle was tolerated, not enforced; and, when the clan, for the sake of having an able leader, deemed it expedient to do so, they altered the succession as unhesitatingly as the crew of a pirate would displace an imbecile commander. We shall give the system they pursued in the words of a very profound, though not always readable antiquary, George Chalmers, the author of Caledonia.

"In the succession, both of the kings and of the chieftains, the dlighetanaiste, or Law of Tanistry, appears to have been generally followed. The person in the family, whether a son or a brother, who seemed best qualified, either from abilities or experience, to exercise authority, was fixed upon by the tribe, for the succession to the sovereign or the chief. It is apparent, however, from the history both of Ireland and Argyle, that, during the life of the reigning king, an heir-presumptive was chosen, under the name of Taniste, who commanded the army during the monarch’s life, and succeeded him after his demise, according to the established law. Much of the dignity of the monarch was supported by the voluntary contributions of the princes and chiefs, which were to be paid in cattle, in clothes, and utensils; the monarch was obliged to purchase the support and services of the princes or chiefs by similar presents. ..... A similar polity appears to have pervaded all ranks among the Irish people, from the king to the prince, and from the‘ prince to the chieftain, both in Ireland and in Scotland. The toparch governed his district as the monarch governed his kingdom; and the chieftains ruled their territories, and their raths or fortified villages, upon the same principle of mutual dependence of the higher on the lower ranks, and of the subordinate on the superior.”

When one remembers that the principal assertor of absolute right of property in the Highlands was an heiress, the following statement from the same source is very significant.

“The Irish women, of whatever rank, seem not to have been entitled even to the slightest possession of land under the Brehon law. They were assigned a certain number of their fathers cattle as their marriage portion, which, in the Irish speech, is called Spre9—that literally means cattle. Crodh also signifies both cattle and dowery, which in those times and in those countries were synonymous. We shall see in our progress a very notable instance of this Brehon doctrine, as to women, among the Scoto-Irish. The Galloway men universally rose in support of the pretensions of a bastard son, in opposition to the claims of three legitimate daughters of their late lord: and it required all the power, and all the valour of Alexander II. to enforce his opinion of law and right, against the custom, and perhaps the privilege, of the men of Galloway.

Again,—

“In all those districts and subdivisions the chief gave protection; and in return the inferiors yielded subordination and contributions during peace ; and in war, support and obedience. Yet during uncivilized times the possessions of all were precarious; and cultivation, owing to this circumstance, was not carried much beyond the wants of nature and the dues of chieftanry. The custom of Tanistiy was the common law of North Britain throughout the Scottish period, as it had been originally in Ireland, till the invasion of Henry II. The Brehons equally continued during the Scottish period, as they had done during the Pictish in Argyle, to be judges through every district of proper Scotland. The common customs of the country, and the usual manners of the times, were the accustomed rules of their judicial proceedings. During the Scottish period there were customary payments of Celtic origin, which were long known by the Celtic names of Cain an Cunevethe.

Mr. Gregory, who was a lawyer, seems, in his History of the Western Highlands, to have been somewhat surprised, if not scandalized, by finding these principles practically followed out in comparatively late ages. At the period of 1545, he tells us, “The family of Sleat, in which the male representation of the Lords of the Isles now centered, was at this time almost deprived of power. Its chief was a minor, the son of that Donald Gorme, killed before the Castle of Elandonan in 1539: and in addition to this source of weakness, the title of the family to their estates was disputed by the Macleods of Harris, who found this a good opportunity for reviving their former claims. At length the islanders chose for their leader, James Macdonald of Isla, whose patriotism seems to have evaporated, on his perceiving the possibility of obtaining the pension of two thousand crowns promised to his predecessor. His pretensions to the Lordship of the Isles, were certainly inferior to those of the chief of Sleat; but his power as an individual was greater." Again, in 1597,—

“The Siol Tormod was now placed in a position, which, though quite intelligible on the principle of feudal law, was totally opposed to the Celtic customs that still prevailed to a great extent throughout the Highlands and Isles. A female and a minor was the legal proprietor of the ancient possessions of the tribe, which, by her marriage, might be conveyed to another, and a hostile family; whilst her uncle, the natural leader of the clan according to ancient custom, was left without any means to keep up the dignity of a chief, or to support the clan against its enemies. His claims on the estates possessed by Clan Donald were worse than nugatory, as they threatened to involve him in a feud with that powerful and warlike tribe in case he should take any steps to advance them. In these circumstances Donald Macdonald seized, apparently with the consent of his clan, the estates which legally belonged to his niece the heiress; and thus, in practice, the feudal law was made to yield to ancient and inveterate custom."

Nor was this, at the time when the system of Highland clearings commenced, an ancient obsolete law, which only existed in tradition. Many men were then alive who had seen it in full operation. When the eleventh Lord Lovat died, he left a daughter who was his heiress by the Lowland law, but who was so far from being admitted to be so by the clan, that, though she was married to the son of one of the judges of the Court of Session, as a person who would be powerful in the enforcement of an obnoxious law, the estates were really possessed, and the rents were levied, by the celebrated Simon Lord Lovat, the chief of the clan according to the dan9s own views. That this was the state of Highland society and Highland property down to the rebellion of 1745, we have many testimonies. In “Letters from a gentleman in the North of Scotland to his friend in London," written about the year 1730, the writer says, “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 the 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 as lineally descended from the old patriarchs or fathers of the families; for they hold the same authority when they have lost their estates.” Meaning, that though the Lowland law has declared the chiefs territory, viewing it as property, to be forfeited, the Highlanders, adopting their own indigenous laws, did not admit that there was any change. In many instances, indeed, after the rebellion of 1745, the estates were worth nothing to those who held them according to law. They could levy nothing in the shape of rent; but the original owner, though a wandering exile, received his customary tribute. It was not by the laws enacted in the parliament of Edinburgh that he levied this tribute; it was by the sanction of the local customs and institutions of the Celtic races; and his rights were acknowledged by them, though the hand of a foreigner had driven him forth from his people. It was as natural that it should be so, as that the notions of the obligations between man and man, resting on the old customs of the New Zealanders, should not be immediately obliterated because a British colony had quarrelled with the chief.

Now, in a state of society like this, where the rights of the chief and of the follower had grown up together, and were part of the same system, the one having no better right to his castle than the other had to his hovel, was it reasonable, was it humane, was it just, that the chief should suddenly make up his mind to clear his territory of its inhabitants and convert masses of their small holdings into large farms, as coolly as the proprietor of a row of houses in Westminster might eject his tenants and convert the building into warehouses? Without an inconsiderate application of the laws made for a totally different people in a different state of society and with different mutual rights and obligations—without the blind application of the laws and institutions of the strong and civilized part of the island, to the illiterate and helpless children of the mountain, could such a thing have been done? And what was the result but such as might have been expected? Resistance—hopeless and feeble in effect, but strongly justified by internal feelings of right and injured justice — loud execrations, the wail of the feeble yielding to the relentless despotism of the strong; and the law, clear in the execution of its duty, sweeping away resistance, discontents, and tears, and clearing off the whole heap of misery from the presence of those who caused it.

The answer to this will be the answer given at the time. The law was on the side of the proprietors. These chiefs were in possession of many pieces of parchment locked up in charter chests, the talismanic effect of which was to make them not chiefs but proprietors, holding the estate occupied by their vassals by as clear and full a right of property as the Glasgow merchant who purchases an estate up the Clyde, for which he has paid down twenty-five years* purchase, can have. Of these charters the clansmen knew and understood no more than the New-Zealanders know of the correspondence of our colonial office— they neither saw them nor felt their influence; yet, by the law of the land, these documents were to be held indicators of absolute property whenever occasion should call them forth. The system of clanship in the Highlands is often spoken of with extreme inaccuracy as if it were identical with the feudal system. That system of Norman growth prevailed in England, and penetrated through the Lowlands of Scotland ; but it never lived in the Highlands. The nature of a fief was, that the holder who obtained it from the sovereign, had thereby, as owner of the soil, authority over all those who resided on it. The principle of clanship was, that because he was their leader and judge, the chief had authority over the people of the clan; and his rights, in connexion with the land, were a mere accessory of his authority over the people who lived on it. Mr. Skene, a cool and accurate antiquaiy, says with much justice: “The feudal system, so far as the tenure of lands and the heritable jurisdictions were concerned, was easily introduced to appearance, in the Highlands; but, although the principal Highland chiefs readily agreed, or were induced by circumstanc4s to hold their lands of the crown, or of the Lowland barons, yet in reality the Celtic system of clanship remained in full force among the native Highlanders and the chieftains of the smaller brandies, who were not brought into direct contact with the government, until a very late period.” It was the interest of these chiefs to encourage the increase of population rather than the improvement of agriculture in their territories. Every man who could wield a broadsword was an addition to the power and influence of his chief; and as to the subsistence of each additional man, were not the Lowlands all before him, with freedom to choose his beef and mutton? “The value of landed property,” says Lord Selkirk, “was in these times to be reckoned, not by the rent it produced, but by the men whom it could send into the field. It is mentioned, indeed, of one of the chieftains, that, being questioned by a stranger as to the rent of his estate, he answered that it could raise five hundred men." Does it not, independently of stronger claims on the chief, seem somewhat unreasonable that, when it suited his purpose, he might encourage the increase of the people on his territory, and then, when views of a different kind opened up to him, might sweep away the whole mass of population which his ancestors had planted? But to be just to all, these sweeping ejectments were the doing of strangers, not brought up with Highland notions, and never in their careless selfishness dreaming of any thing but absolute property and their own arbitrary use of it. The author we have just quoted, describes very clearly and naturally the reluctance with which self-interest forced its way between the Highland landowners and their humanity, “For a few years after the power of the chieftains was broken, the influence of old habits seems to have prevailed, and it was some time before any change took place; but by degrees the proprietors began to exact a rise of rent. Though the first demands of the kind were extremely moderate, the rents being still below the real value of the land, yet the circumstance was so unprecedented that great dissatisfaction ensued, and the removal of some of the tenants who refused to comply, excited still more indignation. Accustomed to transmit their possessions from father to son, as if they had been their property, the people seem to have thought that, as long as they paid the old and accustomed rent, and performed their usual services, their possessions were their own by legal right. The discontents that arose from these causes were for a time but partial; for the progress of raising rents was slow. The gentlemen who had been educated amidst the habits of the feudal times, could not at once relinquish all the sentiments of their youth. The attachment of their people was of so flattering a nature, that it was often preferred to pecuniary advantages; and little alteration seems to have been made till the generation of old proprietors was extinct. Gradually, however, men educated under different circumstances came forward, and feeling more remotely the influence of ancient connexions with their dependants, were not inclined to sacrifice for a shadow the substantial advantage of a productive property. The more necessitous, or the less generous, set the example; and one gradually followed another, till at length all scruple seems to be removed, and the proprietors in the Highlands have no more hesitation than in any other part of the kingdom, in turning their estates to the best advantage.”

At length came the great Sutherland clearings, when people, as many as might make the population of a secondary German state — people who believed that they had as good a right to their cottages and paddocks as their chief had to his castle and forests—were driven from their homes by an armed force. It is a deep scandal to our legal institutions that such a thing should have been. So long as history is written minutely enough to chronicle such transactions, this one will ever be marked as a barbarous adaptation of the law of one people to do injustice to another. The cry of tyranny raised by the ignorant sufferers has received an echo in the far south; and one of the first historians and philosophers of his day, has dedicated a great portion of a work likely to live for ages, to an exposure of the injustice of the Sutherland clearings. M. Simonde de Sismondi, having entered, on politico-economical grounds, on the question of the proper adjustment of the rights of customary holders and tenants, has paid this country the compliment of devoting a whole essay to our Highland clearings as a signal instance of outrage on all the principles that ought to rule in the adjustment of such mutual rights. It is shown that throughout all Europe there are rights of occupancy founded on immemorial custom, like those of the Highland tenants, but which, unlike the treatment which they have received from the free government and the uequal laws” of this happy country, have been respected by the despotic governments of Germany and Italy. Indeed, as it has been very justly observed by The Westminster Review, the rights of the Ross-shire tenants were of the same character with those of the English copyholden; but, alas! the difference between the position of the poor Celt and that of the English yeoman waa great indeed! For the latter the laws were created, — they were framed out of the ancient customs on which his tenure was founded. The Celt, overlooked as a member of the body politic, too insignificant in his rights to be regarded since he had ceased to be unpleasantly conspicuous as a fighter, had to submit to the arbitrary operation of laws made for other races of men and different social habits.

It has always been maintained by the defenders of these clearings, that they were conducted with signal humanity. The proprietor, being entitled to do what he liked with his own, said he liked to treat his own well, and wondered how his own were not thankful for so much kindness. On this the adopted commodity was so ungrateful as to repudiate the claim of ownership. The vassals denied that their leader was absolute owner of their holdings, and could not see any thing to praise in those relaxations which were to them, at best, only not carrying out injustice and cruelty to the full extent to which the tyrant possessed the power of persecuting them. And M. Sismondi shows that, had they been in almost any other part of Europe, the law would have been in favour of these poor people.

There is a vindication of these Highland clearings which demands our attention before we have done with them. It has been said, that they are very profitable to the community, and that the pecuniary advantage which the landlords have reaped has been occasioned by a change, by which enlightened and industrious capitalists have displaced hordes of semi-barbarians, serviceable only for war and depredation—a burden on a well-ordered community. We admit that the sheep-farming system has been advantageous to the community at large, as well as a great gain to the Highland landlords; and that Europe cannot produce a more admirable illustration of the beneficial effect of an enlightened system of agriculture than the farm-steadings of Sutherland afford, when compared with such Highland huts as are to be seen in other places, models no doubt of those which the Sutherland estates would have exhibited if the clearings had not been made. A system of husbandry which produces much, in place of one which produces little, is the same kind of gain to the community that a railway is when it displaces a line of rickety coaches on a turnpike road. The simile has a farther and deeper application. When the directors of a railway make up their minds that their line Bhall pass through certain proprietors grounds, the law does not allow them to go to a proprietor and tell him that as their project is very much for the benefit of the community, they intend to cut away a portion of his lands for the use of the railway, without giving him any compensation. On the same principle, the Highland proprietors ought not to hare been allowed to clear their estates without giving compensation to those whose interest in the land was by the custom of the country as well established as their own. In what manner it may be just to deal with rights which probably are of a somewhat similar character in Ireland, we cannot pretend to say. We have not sufficiently studied that great subject. On the Highland tenures, however, we are bound to say, that though we think a system of adjustment of rights ought to have been adopted before the clearings commenced, we think it would now be too late. Fteri non debuit—Factum valeat. Those who had the principal interest at stake have suffered the injustice, and are under the sod, or are passing the latter years of their age, whether in prosperity or adversity, in distant lands. A race has grown up who are to a certain extent aware of the precarious character of their tenures, though they may not be brought up with the best notions of the means of making a livelihood in places distant from their original homes. We fear that the only remedy for the remaining evil—the inflammation remaining after the amputation — is a stringent application of the poor law ; compelling Highland proprietors to provide for the surplus population reared by them, when they endeavour to get large rents by increasing the number of small holdings, and for the people who are rendered homeless by their clearings. We fear that that blundering and purposely-incomplete measure, the Scottish Poor Law Act, has not strength for carrying out this principle.

It has been well observed by The Westminster Review, that the powers which have been exercised in the Highland clearings are powers which a despotic monarch is never known to possess. This is one of the evils arising out of the indiscriminate application of the laws of property. When the laws made for a populous and highly-cultivated district, where land and its occupancy are matters of regular traffic, are transferred and made applicable to wide, thinly-peopled tracts, occupied by poor, half-civilized people; instead of conveying to them the benefits of equal laws and protection to their rights, these laws inflict upon them the scourge of an arbitrary govemment, fortified in its operations by all the array of power that has been established for the purpose of enforcing, in the place from which the system has been taken, just proprietary rights. We shall give some illustrations of this.

A monarch, however despotic, must still be, to a certain extent, the representative of the will of his people. It is as the embodiment of the accumulated strength of the community that he acts on individuals. He may be able to hang, imprison, or expel from his territory, any small number of persons who have displeased him : but he cannot put to death the whole or nine-tenths of his people ; nor can he expel them from the country, as the Highland landlords did. Whatever acts he performs against one portion of his people, must be through the instrumentality of the other. And herein consists the difference between sovereignty and proprietary right, that the latter is not left to the enforcement of those that are subject to it, but, in such a country as ours, demands the whole concentrated power of the incorporated states of which the British Empire consists. A monarch cannot set his face against the prevalent religion of his people. Indeed, he must generally be a votary of it, and must confine his intolerance, if he be intolerant, to some small minority, whom the majority helps him to persecute. What monarch of a small kingdom was ever able to prohibit the whole of his people from having a place of worship within his territory? Yet this is what the great Highland proprietors are able to do, through the misapplication, to their case, of that right of property, which declares that a man is not bound to allow his land to be used for purposes he dislikes. The rule is perhaps a sound one in Middlesex and Midlothian. There, in the multiplication of proprietary rights, the abundance of wealth, and the diversity of religious opinions, it will be strange indeed if any sect cannot get itself acccommodated. It may be driven from one place, because the neighbours do not like an organ; from another, because the plan of the church is not in conformity with the architecture of neighbouring houses; or from another, because the spot is part of a pleasure ground: but somewhere or other, in return for their money, the congregation will be allowed to worship God according to their conscience; and the worst that befals them is, that some neighbour in his spite builds a wall as near as he can to the spot to shut out the light, or the pious children of the neighbourhood, hearing how the sect are spoken of by their parents, break the windows. The owner of Highland estates, issuing his mandates from Piccadilly or Grosvenor Square, about a people of whose habits and opinions he knows no more than he does of the Caffres, finds that the Free Church is a church he does not like, and refuses a site as unhesitatingly as if he had been asked to give a piece of his pretty lawn at Kingston for a synagogue—the Jews being also a people whom, he does not like. When proprietors are compelled to give the lands which they cultivate, and the pleasure grounds which are the object of their enjoyment, because the public demands them for railways, it were surely not a very tyrannical law which should compel the proprietor to give up a few roods of ground on some desolate wild which he does not cultivate, and never sees, in order that a whole territory, as large as those German states from which we take our royal consorts, may not be able to lift their voice and say that they are denied the use of the barren surface of the earth for the celebration of the rites of that religion to which they all belong.

The rules of absolute proprietorship, now so much indulged in, being quite inimical to the old territorial notions in the Highlands, their full effect has only developed itself gradually. The idea, for instance, of treating his waste districts of country as an English proprietor would his lawn and gravel walks, and attempting to preclude access to them, never would have occurred to a Highland chief in his most despotic moments. An English duke, however, having become the tenant of the wild mountain district at the head of the Dee, deeming that he can conduct his field sports with more success and more satisfaction to himself if the wild waste which calls him occupant be surrounded by a legal cordon excluding it from intrusive footsteps as securely as if it were a walled garden, has made a new law for himself, and instructed his keepers to stop people who are found crossing this wilderness. The glen principally watched is the Glen Lui Beg, the natural passage towards Ben Muich Dhui, the centre of the Cairngorm range, the highest mountain in Britain, and for abundance of summer snow, precipices, and cataracts, the most worthy of a visit. As the interruption of the passenger over uncultivated and unfenced wilds, is a new thing in Scotland, it has not yet received the sanction of any law, and till it has done so, must be held illegal. If any bill, perhaps in the form of an act, “to interpret” some game act, should be brought in to extend the law of trespass to such new exigencies, we hope the public will be on their guard to defeat it.

A neighbouring Scottish proprietor, the Duke of Athole, following so comfortable an example, has lately attempted to prohibit, in the same manner, the passage through Glen Tilt, the ancient thoroughfare between the basin of the Tay and that of the Dee. The English duke’s hint must be very valuable to the Athole family, who previously had followed the understood rule in Scotland, that to keep a place sacred from intrusion, it must, if not cultivated, be at least fenced in. The visiter of the falls of the Bruar is preceded by the keeper thereof with a key, who having first received the proper fee, or satisfied himself that the visiter is good for the amount, opens and admits. We quarrel not with his grace for the price he charges for a walk in his pleasure grounds, or for the vigilance with which his agrarian police take care that those who attend the church within the old cathedral on Sundays, shall not filch a gratuitous glance of the exhibition. His grace has as good a right to be a showman as the lessee of Vauxhall; but, giving him full license to do what he likes with his own, it does not follow that he is to do what he likes with that which belongs to the public; and the right of passage through Glen Tilt belongs to the public, if the free use for centuries, of the only road which leads from one district to another without going thirty miles round, can be secured to the public in Scotland by being used for centuries.

We do not believe that the Highland landlords in general will be inclined to adopt measures so utterly irreconcilable with the old habits of the people; but there is much fear that English gold may buy up this tempting privilege of exclusion, if it can be legally exercised, and that the proprietors may say, “Thou canst not say I did it.” Some remarks on the closing of Glen Lui Beg having appeared in The Examiner, were answered by the Don Quixote of the game laws, Mr. Grantley Berkeley. He, being an honest enthusiast, to adopt any sophism, but exhibits

the project in its most offensive shape. He says, “The writer in The Examiner perhaps is not aware that the breath of a single sight-seeing individual up-wind of the deer, is enough to drive the whole forest side, and to render impossible any sport to the proprietor and his friends, for that or for days to come, so wary and peculiar is the nature of the animal far which we peg." The philosophy of this is, that the absolute solitude of the district being necessary for the sport in which a rich man delights, he must be entitled to it by paying for it. This sentiment was edioed by a letter signed “Leather Stocking,” in The Aberdeen Herald, evidently written by no mere impartial spectator. He tells us that “one man on a sky line, or before the wind, on a mountain or in & glen, will put every deer away for miles; a single herd moving will alarm others, so that a small district may be swept clean by one reckless or incautious traveller.” We beg attention to the wide terms of measurement applied here to the tracts of country that on this system must be kept clear of even one man. This writer gives a case of hardship, which we shall do him the service of repeating. “I remember last year a gentleman coolly walking down Glen Tilt, and driving every deer out of it, when Lord Glenlyon was endeavouring to show sport to his friends. The traveller intended no harm, yet he did irreparable mischief; and this, had he given notice, or applied beforehand, might have been avoided,” i. e. of course, had he applied, to be refused. In one of Hood’s tales some one speaks of ‘a impudent fellow, a standing up for his rights/ The person who exercised his right of walking along this public thoroughfare contrary to the will of Lord Glenlyon, must have been of the class so described. The writer we have just quoted tells us that the Duke of Leeds pays £1400 a-year for his glens. This is the formidable feature of the affair. It shows what sums the Highland lairds may obtain for their wastes, provided they can give them the character of unapproachableness. A few rich English lessees may, by judiciously blocking up He passes as the Highlanders did of old, shut up the whole of our mountain ranges from intrusion. It is true they must have a new law to put this new restriction on the liberty of the people. But such restrictions have occasionally been created when they were required to serve very worthy and beneficial purposes. The law of copyright is a restriction for the benefit of literature; the law of patents is a restriction for the encouragement of invention. It remains to be seen whether deer-stalking be considered a pursuit » ennobling, and so valuable to the community that a new restriction on personal freedom, not need by graziers and others who rear the ordinary food of man shall be made for its special encouragement and protection.


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