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Home Life of the Highlanders 1400 - 1746
Organisation and Tenures
By Sheriff J. Macmaster Campbell

THE peculiar position which is filled by the Scottish Highlands in the history of our common country may, with confidence, be attributed to the long persistence among its people, albeit with diminishing intensity, of those tribal customs and regulations which, in other divisions of the three kingdoms, had all but given way to the influences following the Feudal System. The Roman occupation, which found its limit at the Highland line—effected unmistakeable innovations in the institutions of the more southern Britons, for the Roman ideal of Empire was, except in relation to religious belief, repressive of any sort of autonomy among the conquered races. The Saxon invasion—in their social constitution the Saxons were tribal like the Britons—effaced the highly developed individualism of the Romans, and, until the advent of the Normans, the British tribes which had survived the Saxon conquest of England lived side by side with their Teutonic neighbours, aliens in race, but identical in their communal tenures, and largely identical, too, in their methods of tribal administration. There is a remarkable historical parallel between the Heptarchy of Saxon England and the Seven Provinces of Celtic Scotland. The divisions, in England as in Scotland, were of a tribal character, each of the seven provinces representing a great tribal federation. But the Battle of Hastings changed all. The King became the source of all land rights, and his knights-in-armour who had overcome the Saxon and British bowmen—for the old inhabitants joined in the resistance to the Normans—became his feudal vassals, the land of England being parcelled out among them by grants direct from the Crown. The Crown vassals, in their turn, enfranchised their immediate followers of rank, and the Norman soldiers of low degree became serfs and villeins equally with the native tribesmen, who had fought and lost. The feudalisation of purely Celtic Wales—with its subordination to the English Crown—was postponed for over two centuries, but the strenuous Feudal System broke down all resistance, and, towards the end of the thirteenth century, the tenures and customs of Wales were assimilated to those of England, and thus fell the last stronghold of Tribalism beyond the Scottish Border. It would be strange, of course, if there lingered absolutely no traces of tribal law and custom throughout the territories of England. This is not the place to note these traces in detail, but it is not inappropriate to observe that, long after the Conquest, the Celtic rule of Gavel-kind—under which all the sons had an equal share in the real estate of a deceased father—was permitted to operate throughout the county of Kent, and probably also in other districts of England where the Celtic element in the population was predominant, and where the native chiefs had succeeded in preventing the interpolation of Norman knights between themselves and the King. But, more striking still, the English tenure of Copyhold, which, in form at least, is still the tenure under which considerable areas are still held, marks a recrudescence in feudal days of the old Celtic rule which rested the right to the possession of land upon kinship rather than upon grant. The first Copyholders were hereditary feudal villeins who, liberated from serfdom, became vested in their servile lands. Their feudal lord became transformed into a Lord of the Manor, and his relation to the copyholders resembled in many respects that of a Highland chief to the clansmen, who occupied the clan lands. The remarkable thing about copyhold tenure, In its original features, was that it was not a survival, but a revival, of tribal custom; it was superimposed upon, rather than left undisturbed by, the Feudal System.

It was in the country of our ‘sea-divided’ kinsmen of Ireland that the Tribal System reached its most perfect development and this historical fact is readily traceable to Ireland’s insular situation, and, down to the first Plantation, the comparative homogeneity of its people. Ireland had its Norse invaders contemporaneously with Scotland and the western coasts of England, but it was many centuries after the Saxon occupation of England, and several centuries after Queen Margaret bad Anglicised the Court of Malcolm Canmore, that the Teuton—and with him the norman sought to dominate Ireland. And, throughout those centuries, Ireland was governed by the Laws of the Tribes. We seek in vain for any particular record of the Laws of the British tribes— digests of these there must have been in existence, but the recurring invasions of the British shores involved, there is no room f or doubt, the destruction of these records. There is, indeed, good cause to conjecture that the muniments of lona, destroyed by the Norse, included, among other priceless writings, the Book of the Tribal Laws of Celtic Scotland. Ireland, on the other hand, was enabled, through the pious care of her devoted Celtic scholars, to preserve right through the centuries that great compendium of Tribal Law and Custom, the Senchus Mor, which, since its translation into English some thirty years ago, has formed the groundwork of numerous illuminating treatises on comparative history, economics, anthropology, and kindred studies. To his fellow Gaol of Ireland the Scottish Gael is, for the preservation of the. Senchus Mor, under obligation of a sacred kind: for there is adequate internal evidence in the works of our ancient historians and of our seannachies, in our national songs and proverbs and in customs of our country,—Some extinct, but others still in active life—to demonstrate that, in their salient features, the Brehon Laws of Ireland were the same which governed the tribes alike of Alban as of Erin.

With regard to those divisions of Scotland which, on the marriage of Malcolm Canmore to Margaret of England, shed their Celtic customs, though by no means the body of their Celtic people, the process of feudal development was not to any perceptible extent different to that which was already operating in England. Norman Feudalism speedily followed the Saxon Queen, and the tribal communities of Lowland Scotland were soon graded, in the terms of Feudal law, into Crown vassals, sub-vassals, and serfs. The Crown vassals, and those vassals holding under them, had right at first but to the usufruct of their lands, but their right was soon made transmissible to their heirs. The lower orders occupied and tilled the cultivated lands, and their tenure remained servile until the fifteenth century, when an Act of the Scottish Parliament gave them some measure of security and independence. The relation of Landlord and Tenant was, at this period, definitely established, like English Copyhold a relation foreign to Feudal custom, but engrafted on Feudalism to answer the demands of changing time and circumstance.

The repeated plantation in Ireland of English and Scottish settlers gradually wore down tribal rights, and the seventeenth century saw the complete introduction of Feudalism. Down to modern times, Gaelic Scotland was remarkably immune from plantations of the character which so largely affected the social, religious, and agrestic conditions of the sister island. Except for the settlement by the Marquis of Argyll of a colony from Ayrshire and Galloway—the victims of persecution—On the lands of the dispossessed Macdonalds of Kintyre, there cannot be indicated any instance, during Clan times, of successful plantation in the Irish sense of the term. The effort to introduce a Fifeshire element into the population of Lewis ended in disaster, and, throughout the Highlands, chiefs and clansmen stood firm for the inviolate possession of the clan lands. To which circumstance it is to be largely ascribed that Feudalism worked its way in the Highlands so much more tardily than in other parts of Great Britain and Ireland. From the point of view of the King, tribalism was a serious hindrance to the unification and development of the nation, and, as Professor Mackinnon pointed out in the admirable address at the recent opening of his class, the establishment of towns, and burghal industries, were outside the contemplation of the constitution of the tribe or clan.

The existence of practically independent Tribes was, further, a grave menace to the authority of the central government; and the Kings of Scotland between Canmore and Bruce sought diligently to enforce upon the Highlands the system of government and tenure introduced into England by William of Normandy. What scant success followed the efforts of the kings can be gathered from the fact that it was not till the fourteenth century—after the War of Independence—that any Highland chief accepted a Crown Charter of the tribal lands. And among the first of the chiefs to become Crown Vassals it is curious to note Neil Campbell of Lochow, the founder of the House of Argyll, and Angus Macdonald of Islay and Cantyre, of the family of the Isles, and both of which chiefs, with their clansmen, had done valiant service for Bruce at the Battle of Bannockburn. Other Heads of Clans, from time to time accepted charters, but, nearly three centuries after Bannockburn, when, in 1597, the Scottish Parliament passed an Act which called upon Highland chiefs to exhibit the titles to their lands, it was found that not a few still possessed these lands without feudal right or title of any sort. As Skene puts it, many "had no title but immemorial possession, which they maintained by the sword." But the distinctive feature of Highland Clan history is that while the chiefs—some as early as the fourteenth and others as late as the sixteenth century—accepted charters from the Crown, and were content, in normal times, that their relationship to the King should be regulated by Feudal rule, they were almost universal in their dealing with the people of their clans on the footing of those Tribal customs which the Feudal Charter was chiefly directed to extinguish.

It was, no doubt, in the region of military organisation that the persistency of clan custom was most marked; and this department of clan life is treated elsewhere in the present volume. But some illustrative allusions here may not be supererogatory. The British Standing Army, as we know it, was founded at the Restoration, and the Lowland Scots supplied the First Regiment of Foot, but it was not until thirty years subsequently that the Highlands made any contribution to the regular forces of the kingdom. This was Argyll’s Regiment, which remained embodied but for eight or nine years,—nor was it until the lapse of other forty years that the Highlands again responded to the call to national arms, the response taking the form of the Black Watch, famous in many a stern struggle for British Empire. Similarly with the Militia. This force was in frequent use in the Lowlands of Scotland along the course of the eighteenth century—in particular, they were employed, with the dragoons of Claverhouse, in putting down Conventicles during the reign of

Charles II., while in the Highlands the first record of a county militia was in the Rebellion of 1745, and even then there was but one corps-that of Argyllshire—regimented as militia. The Rosses, the Gunns, and the Grants, who supported the Hanoverian cause, were present at Culloden as the fighting men of their several clans without reference to feudal or purely national obligation. And, although it recalls an earlier historical episode, remarkable evidence of the survival of Tribal devotion as distinguished from feudal duty is to be found in the fact that when, in 1685, the Earl of Argyll raised his little army of Campbells and dependent clans in anticipation of the Monmouth Rebellion, the summons to the standard was by that Fiery Cross which from immemorial times had called the Celtic tribes to war. The real significance of the election of Argyll thus to exercise his Patriarchal rather than his Feudal authority lies in the circumstance that the Argylls had proved themselves the most zealous protagonists of feudal, as opposed to tribal, custom. They had already instituted two burghs in their territory, in which they had settled skilled craftsmen and competent traders, whose influence was gradually permeating the surrounding country to the advancement of industry and manufacture and the improvement of agriculture. Notwithstanding which predispositions of a modernising character the Earl was conscious that in the stress of war he could appeal to the primitive tribal impulse of his Gaelic followers, and, although in its issue the rising was disastrous, the Earl’s appeal was not in vain.

The outstanding characteristic of Celtic Tribal Law was the communal ownership of the land. But this rule did not extend to moveables, individual property in which was definitely provided for. The commune composed all those who could trace descent from the recognised founder of the tribe, and the rights and interests of each tribesman was prescribed with the minutest of detail. The Senchus Mor—the code of the Tribes—provided for all contingencies; not only did it regulate cultivation and pasture and the method of succession, but it contains provision for such incidents of administration as the making and repair of roads.

The Tuath was the tribe—and it is interesting to note the variations, or rather developments, in its meaning that this Gaelic term has undergone in course of the centuries. Still continuing to signify the people in their corporate capacity, the term was extended to denote the territory of possession. With the disappearance of the Clan system the word came to be used in the sense of agriculture, in which sense it is still used, just as the old expression for tribesman— tuathanach—is now in universal use in designation of the farmer or cultivator.

The chief, in successive periods of Scottish history, termed in the native tongue, Mormaer, Toisheach, and Ceann Cinne was the leader of the Tribe in war and its administrator in time of peace. The nearest in kin to the founder of the Tribe was, except when incapacitated by mental or physical feebleness, the chief, and the succession to office was not hereditary. Succession was determined by the law of Tanistry, the brother of the chief acting as Tanist or second in command during the chief’s lifetime, and succeeding him on his death. The dignity of the office of chief was supported by the appropriation to the chief and his successors in the office of a considerable area of the tribal territory, and there were duties exigible from the tribesmen, corresponding, in some respects, to the reddendo of the Feudal Charter. These duties were four in number, and denominated Cain, Conveth, Feachd, and Sluagad. The first two consisted of more or less fixed contributions of produce— Cain being devoted to the general purposes of tribal administration, and Conveth to the maintenance of the chief and his household, including his immediate armed retainers. The duty of Feachd obliged the clansmen to follow their chief when he engaged in tribal war—those clan forays and battles which blot so darkly the pages of tribal and clan history; and Sluagad (hosting) compelled the tribe, on the call of its chief, to rally to the royal standard. Bannockburn and Flodden, Worcester and Inverlochy—and many another fierce and sanguinary battle—testify to the honourable response of the Highland clansman to his duty to his King. The United Kingdom owes an incalculable debt to the strong arms which national need called from the Highland glens, but the Gaelic warrior was no less eager in his rush to defend his own beloved Scotland. The clansman may, on occasion, have been mistaken in the particular national cause to which he adhered, and he was frequently, too, found in deadly conflict, on national issues, with his brother Gael across the tribal line; but loyalty and fidelity were the unvarying impulses of his allegiance.

Where chiefs acquired the feudal status it was inevitable that claims should be set up by their eldest Sons to the succession to their fathers, but these claims, though sometimes acquiesced in by the Tanist, or next tribal heir, were frequently resisted, and, when resistance did occur, the clan generally supported the Tanist and succeeded in maintaining his right. The quarrel was on occasion taken up for the feudal heir by clans allied to him by ties of kinship or of marriage, and, at other times, by the king or other immediate feudal superior, and many a bitter clan feud was originated by the contest for supremacy between the two great territorial systems. But even where the succession to the chief became, eventually, diverted from the tribal to the feudal rule, there was not, till 1695, any disturbance of the custom of Gavelkind in its effect on the succession to the lands of deceasing clansmen. As already indicated, the Feudal rights—which were gradually transforming the relation of the chiefs to the king—did not for many generations carry with them, in their actual exercise, the supercession of the old communal rights of the clansmen in the tribal lands outside the domain of the chief. And these communal rights were made easier of preservation by the prevalence iiot only in the Highlands, but throughout the whole of Scotland, of ownership in runrig, just as there still lingers in certain districts of the Highlands the holding of land by groups of tenants—their pasture land in common, and their arable land in runrig. In 1695, however, the Scottish Parliament passed into law the statute which, by providing for the division of Commonties, had the effect of abolishing runrig ownership, while leaving unaffected tenancies on the primitive system. Nor is it difficult to date from the passing of this Act that break-up of the Clan system in its agrestic character, not reached, in its patriarchal aspect, until after 1746.

The passing of the Act of 1695 marks the beginning of the Tacksman period. The Tribal Law of Succession taking cognisance, as it did, of the degree of propinquity to the Chief, operated towards inequality of interest in the clan land: and when these interests came to be affected by the statute against runrig, a select number naturally emerged whose holdings were much greater in individual extent than those of the general body of the clan. These larger holders were, with some historic exceptions, content to convert their tribal tenure into that of landlord and tenant—the chief, by virtue of his feudal ownership, becoming the landlord and the cadets of the clan—as they afterwards became to be known—the Tacksmen or leasehold tenants. Each group of smaller holders with whom the Tacksmen had formerly cultivated in runrig cooperation became his sub-tenants: and where it happened that a group of runrig cultivators survived the division with comparative equality of interest, the members of the group became direct tenants of the chief—like that of the Tacksmen, their tenure becoming leasehold.

There was among the smaller holders a class of cultivators whom it is right briefly to notice—those resident on the clan lands who were not of the clan blood. These were principally members of other clans who, for various reasons, not necessarily discreditable, had sought shelter and protection from a neighbouring chief, and there were also to be found people, not fully absorbed into the clan organisation, who were descended from the inhabitants of the clan territory before its occupation by the clan. The tenure of these two classes was of a more or less servile kind—the migrants from other clans being obliged to the service of the chief by bonds of manrent— and, as far back as 1617, these native men—as the second of the two classes were designated in reminiscence of the nativi of the Romans—---and the others, termed subordinate septs, were the objects of special legislation. Both classes of outlanders had been subjected to more than the usual tribal duties, but their heirs were besides held liable on succession to "Caulpa," being the payment "of their best whether itbe on mare or cow," and the Act of 1617, abolishing "Calpa," brought relief from this particular casualty, but, the statute notwithstanding, the tenure of those affected by it—though in its nature perpetual like the adscripti glebae of the Romans—remained, until 1695, servile in contrast with that of the genuine tribesman. With the discontinuance of runrig ownership, as between the members of a tribe or clan, the distinctively servile features of the tenure of the "native men" and subordinate septs, disappeared, and they themselves became indistinguishable, except in their patronymics, from their neighbours of pure tribal descent.

The Tacksman period covered well nigh a century and a half, and it was the class of Tacksmen who, under their chiefs, officered the Clans in the Risings of 1715 and 1745, and, subsequently, when Clan regiments were embodied for imperial service, it was the Tacksmen and their sons who, for the most part, were commissioned as company officers. John Cameron of Fassiefern and Allan Cameron of Erracht—two famous regimental commanders of the Peninsular era— were both born and bred on a Tack, and Lord Clyde, the most illustrious highland soldier of his time, was, maternally, descended from the sturdy Tacksman class. Similarly, it was the families of Highland Tacksmen that supplied the men who, by the agency of the Hudson Bay Company (for a long time predominantly Highland in its direction), developed the Canadian North West into a domain of enormous national utility, and the names of Tacksmen’s Sons are writ large in the early records of India, as of all the other British colonies and dependencies.

Throughout the great changes in territorial and tribal relationships in the Highlands between 1500 and 1745, the Seannachie filled an office of vital importance. Before the days of feudal grants, the pedigree of a clan was its record of rights, and it was upon the Seannachie the duty devolved of keeping the precious roll and transmitting it to future generations. When, in 1597, the chiefs of the Highlands were called upon to prove their titles, there were not a few chiefs who relied for the establishment of their rights upon the pedigrees recorded by successive seannachieg, and although the advent of feudalism minimised the Seannachie’s importance, his function was still exercised in deducing the descent of the kindly (i.e. kinly) occupiers of the tribal land, and he had also duties in connection with clan history, heraldry, and cognate phases of clan interest which continued to afford him congenial occupation. The office was one demanding a certain measure of training, and it is interesting to note that in the palmiest days of tribal rule it was to Ireland the genealogical novice was sent for suitable equipment—and Irish Celts were frequently employed as clan seannachies by the more important clans. The only trace of the ancient office now subsisting is the remarkable facility in the genealogical art inherited by so many Highlanders of our own day.

It is conceivable that the Seannachie—necessarily possessed of considerable education—would prove himself a valuable auxiliary of the chief in the exercise of his office of Tribal Judge. In some instances the function of judge was delegated to a Breitheamh, in which case the office descended heritably, but, in general, the chief himself performed the duties. The judicial character of the chief was, it is historically strange to observe, the incident of clan custom which the Scottish legislature was most loath to disturb. It frequently happened that the feudal jurisdiction of pit and gallows was vested in some nobleman, off whom the chief derived his own feudal status, but the policy of the Scottish Parliament, as disclosed by numerous statutes, was to overlook the feudal or territorial, and to insist upon the exercise of the tribal, jurisdiction. These enactments are a notable recognition by the Scottish Parliament of the stability of the tribal tie, and it is interesting to remark that this jurisdiction on the part of the chief extended not only to the clansmen resident on the clan lands, but to others of the name who, without bond of manrent, had overflown into the territories of a neighbouring clan. The jurisdiction of a feudal baron was strictly territorial— that of a Highland chief essentially tribal. Of which latter fact a remarkable illustration is afforded by an "Agreement entered into by Lochiel, Glengarry, and Keppoch" so late as the year 1744, "for the prevention of crime among their dependents." The agreement appoints deputes to act for the chiefs in the apprehension and punishment of offenders "within proper districts of our estates (or where our authority among our followers and dependents will extend and reach)." And under this condition a deputy is found, named by Lochiel, to deal with those of his clansmen who had migrated to the lands of Suinnart and Ardnamurchan, the property of the Campbells. The Act abolishing Hereditary Jurisdictions, passed in 1747, dealt only with feudal jurisdiction: that of the Highland chief perished at Culloden.

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