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Chapter VI - The Response of Ownership


THERE is a theory very prevalent in the popular literature of Scotland that the last Jacobite Rebellion, which arose in July 1745 and was quelled on the Moor of Culloden in April 1746, marks the date of a great change in the landed tenures of the Highlands. The notion is, that before that date the old native population of the country lived in some condition of Arcadian bliss, founded on the relation between Celtic Clansmen and their Chiefs, whilst subsequent to that date their position became soon changed, and lowered into the modern relation between Tenant and Landlord, or between Owners and Occupiers of the soil.

The facts and documents which have been already dealt with in these pages, prove that this theory is a dream built up out of two separate delusions. One of these delusions is in respect to the true nature of the change which was involved in the passage from Celtic dues and services to rents fixed by contract or agreement. The other delusion is in respect to the causes of that change, to the areas of country over which it passed,—and to the dates at which it became established. As regards the nature of that change, the theory not only mistakes but reverses the facts, whilst as regards the districts it affected, and the times of its arising, the popular idea is not less erroneous.

Systematic hardship and oppression was inseparable from the condition of the native population under the unlimited exactions of Celtic Feudalism. The change from those exactions to definite and stipulated rents, lasting for definite and stipulated times, was not a change for the worse, but a change immeasurably for the better. On the other hand, the last Jacobite Rebellion—" The Forty-Five," as it is still called in Scotland—marks no epoch in the history and progress of that change, which is to be compared in importance with other epochs of much older date. The Jacobite Rebellion of 1745 catches the superficial eye merely because it happens to have been the last occasion on which the Clans were marshalled in open war against the Government. But wars and rebellions of this kind were quite separate from those standing and permanent evils of the Clan system which affected most powerfully the condition of the people. Open wars against the Government—occurring almost always at distant intervals, and never of long duration,—had no other effect than some local devastations, and the loss of a few hundred lives. It was the perennial feuds between Clan and Clan, or rather between Chief and Chief,—it was the numerous, nameless, and desolating usages of daily life under the full-blown system of Celtic Feudalism, that kept down the people, and prevented the possibility of any advance in industry or in wealth. The change from this system to the system of definite agricultural rents dates, in the Eastern and in the Middle Lowlands of Scotland, from the foundation of the Monarchy, —from the first introduction of Law, and from the first settlement of the races out of whose amalgamation Scotland grew. The history of its progress is the history of our civilisation. In the Border Highlands the great epoch of its accomplishment is that of the Union of the Crowns. In the Western Highlands and the Hebrides the most memorable date is 1609, only a few years later, when the Celtic usages were condemned as the root of the misery and barbarism which confessedly prevailed, and when the fundamental demands of peace and of law were recorded in the "Statutes of Iona." From that date all over the Western Highlands it made somewhat slow, but, on the whole, steady and continuous progress, in proportion as the rebellious Clans were broken up, and those Chiefs became firmly established who were loyal to the Government. Their interest and inclination alike induced them to merge their lawless character as Chief, in their lawful character as the protectors and promoters of peaceful industry, in virtue of being great Owners and improvers of the soil.

The distances of History are foreshortened to us like the distances of Space. We forget the long intervals of time that really separate events which, in perspective, seem now close together. Thus to us looking back it seems as if almost the whole time between the Union of the Crowns and the second Jacobite Rebellion in 1745 was a time full of wars. And so it was—but with long intervals between those wars, during which the silent processes of change and of advance had time to lay down and to consolidate the growing structures of Society. Thirty-six years elapsed between the accession of James i. and the first shedding of blood in the great Civil Wars of his son's reign, in 1639. During the whole of that interval progress was being made in the civilisation of the Highlands. The worst period of those wars for that portion of the country, was the period occupied by the brilliant but savage and unscrupulous campaign of Montrose, and this only lasted about eighteen months, from April 1644, when he erected his standard at Dumfries, to September 1645, when lie was finally defeated by General Leslie at Philiphaugh. It is a memorable fact, too, that in this campaign the original nucleus of the army of Montrose was not composed of Scoto-Celts, but of the Irish Celts, whom he recruited through the Macdonalds of Antrim,—whom he joined only after a journey in disguise in the heart of the Highlands,—and without whose help he does not appear to have had, or to have hoped for, any prospect of success. They were employed to ravage the western portions of Argyllshire upon their way. The courage, resource, and agility of Montrose, with the enjoyments of violence and plunder which were held out to all his followers, did at last rouse the passions and attract the cupidity of some Northern Clans, so that before his defeat his army is said to have accumulated to the number of 6000 men. But their dispersion, as usual, was complete; and when, after an interval of six years, Montrose made his last and fatal attempt in 1650, he again made it trusting to a body of German mercenaries whom he landed in the North. But the Highlanders did not flock to his standard, and it was a Chief of the purest Celtic blood—Macleod of Assynt,—who surrendered him, or in Jacobite language, "betrayed" him to the Government.

Again, after this rebellion there was a long interval of repose in the Highlands, and during part of it, under the rule of the great Protector, for seven or eight years, from 1650 to 1658, an important stride was made towards the final settlement and civilisation of the country. The master eye and the master hand of Cromwell saw and touched the root-evil of the Clans; and he made his dealings with it so conspicuous that they have caught the eye even of compilers who, with no special knowledge of this subject, write School Primers upon the History of the time. Thus we are told in one of these, with some looseness of expression, but with substantial truth, that "in order to improve the state of the people, all feudal dues were taken away. A fixed rent in money was substituted for all the services and restrictions to which the land had been hitherto liable."

The Restoration in 1660 restored everything that was corrupt and bad wherever its power reached, and we have seen the wicked purpose with which its appeal to Celtic Feudalism was made in 1677. But the work of the "Highland Host" lasted only for a few months, and no raiding expedition of this kind could affect the permanent causes which were steadily at work all over the Highlands ever since the Clans had ceased to fight among themselves. The Rebellion which was raised in 1685 by my own unfortunate ancestor, the ninth Earl of Argyll, attempting, in concert with the Duke of Monmouth in England, to anticipate by a few years the Great Revolution which was at hand, was a Rebellion suppressed in a few weeks. He brought no bands of Irish Celtsto ravage his native country. He brought no Dutch or German mercenaries to fight the battles of Scottish freedom. He achieved no immediate success to attract plundering Caterans always ready to flock to those who promised booty. He represented a Cause and not a Person. The Cause was one which Highlanders had never valued. His own lands had already become largely occupied by peaceful Farmers, whilst only a remainder of the Subtenants belonged to the old idle and fighting classes. Celtic Feudalism therefore completely failed him. He did not appeal either to the rude, or to the sentimental, incitements which alone had ever moved it. He was joined by a mere handful— about 1800 men—and nothing came of his attempt except the sacrifice of his own life, and the ravage of his own estates. Yet he spoke in the light of prophecy when in his last hours he said, "I have a strong impression on my spirit that deliverance will come very suddenly."

Three years later, the great Revolution of 1688, which was peaceably accomplished elsewhere, involved once more that appeal to the Clans—with as usual an Irish contingent—which was raised by John Graham of Claverhouse, Viscount Dundee. In 1689, at Killiecrankie, the Highlanders showed what they could do in fighting. But the death of their leader was, as usual, fatal to them, for mere fighting is only one part of the art of war. This rising again was speedily suppressed, but for several years a great part of the Highlands continued in a troubled state—till in 1692, the Government insisted on the formal submission of every suspected Chief. In that year the massacre of the Macdonalds of Glencoe cast indelible disgrace on the Government of King William. But the execration with which this deed was denounced when its real nature came to be understood, is a satisfactory indication of the change which had been long in progress. Such a revival, imitation, and even exaggeration by a civilised Government, of the worst features of Celtic intertribal treachery and murder, revolted the public conscience, and the feeling it excited brings out as nothing else could do, how fast and far Society had advanced from the typical Epoch of the Clans. It is remarkable, however, that this atrocious murder was perpetrated and defended, not as a mere act of vengeance against men who were rebels, but as a sentence of execution against men who were irreclaimable marauders. And this, beyond all doubt, they actually were. Macaulay has expended all the resources of his eloquence in explaining how impossible it was that they could be anything else, living as they did in Glencoe. "All the science and industry of a peaceful age," he says, "can extract nothing valuable from that wilderness: but in an age of violence and rapine the wilderness itself was valued on account of the shelter which it afforded to the plunderer and the plunder. Nothing could be more natural than that the Clan to which this rugged desert belonged should have been noted for predatory habits. For, among the Highlanders, generally, to rob was thought at least as honourable an employment as to cultivate the soil; and of all the Highlanders the Macdonalds of Glencoe had the least productive soil, and the most convenient and secure den of robbers."' This great crime, which has justly entailed upon its perpetrators the severest judgment of posterity, was due to the combination of two of the strongest incitements which existed at the time, first, the indignation of a civilised Government against men who, in the midst of a peaceful society, lived avowedly and notoriously a life of plunder; and secondly, the fierce and vindictive passions of a neighbouring Clan, to whose hands the punishment was committed, and whose lands and houses had been ravaged and destroyed by the unhappy victims. The massacre of Glencoe is therefore to be regarded as one of the last, and one of the most signal examples of the old evils which we have traced from the days of the Wolf of Badenoch, in the power of Celtic Feudalism to rouse ferocious passions---in the cruel and treacherous deeds which men comparatively civilised and enlightened could persuade themselves to defend and even to adopt when they came into contact with it.

Another interval of twenty-three years separates the massacre of Glencoe from the first Jacobite rising of the Eighteenth Century, in 1715. This rising was so short, and so easily suppressed, that its effects were altogether evanescent, and can hardly have interrupted in the smallest degree the gradual and steady processes of change which were happily bringing to an end the terrible abuses and miseries of the Clans. The Rebellion was suppressed within Five Months. There were the usual incidents—the treachery of Chiefs—the gallantry of their Highland followers. The Earl of Mar attended a Levee of George I. on the day before he left London to raise the standard of the Pretender in the valley of the Dee. In their invasion of England, where, as is well known, they penetrated as far as Preston, they were miserably led. On the other hand, at the Battle of Sheriffmuir, the Clans fought with their accustomed courage, and won quite half of the honours of the day. But for more than a single battle the military power of Celtic Feudalism was nearly gone. Their, surrender in England at Preston, and their dispersion in Scotland, after Sheriffmuir, mark the low point to which it had already fallen.

Again, we have another long interval, from the Rebellion of 1715 to that of "The Forty-Five," an interval of no less than thirty years—or, as it is usually reckoned, a whole generation. This is one of those many intervals between conspicuous events, over which the eye of the historian often passes with a careless and unobservant glance, seeing nothing that catches his attention, or at least nothing of a large class of facts which, nevertheless, are of far higher interest and importance than the cycle of rebellions. Now it is in respect to this interval of time—an interval during which a whole generation was born and rose to manhood, before the last of our civil wars—before "The Forty-Five "—that I am in possession of documents which singularly illustrate the continuity of Scottish history, and the identity of the processes of change through which our civilisation had been steadily advancing over the whole Kingdom from the days of Malcolm Canmore.

Having now indicated the period to which these documents refer, and its importance in an historical point of view, I must add a few words in explanation of the men whose evidence they contain. The management of great Baronial Estates in those days was an object of ambition among men of the highest position in society. It was an employment which had all the dignity, and variety of interest, and extent of power, which belonged to the government of a Province. Smaller Proprietors of land of the oldest families, Clansmen nearly related to their Chief, and men of high public positions, even on the Bench and at the Bar, were among the number of those who undertook such duties, and who devoted to them all the knowledge and culture of their day. Such was the character and position of the two men whose narratives and reports I am about to cite.

Nor is it less important, to observe the position of the districts respecting which their evidence is supplied. We have seen how long and how late the worst evils of Celtic Feudalism lingered in those Western Isles of Scotland, which had always been most inaccessible to the central government, and amongst which savage intertribal wars had for many generations kept the people in poverty, and the Kingdom in frequent uneasiness and alarm. We have seen, nevertheless, from the Conferences of Iona, held in 1609, that all these habits and customs were confessed and acknowledged by the Chiefs themselves to be barbarous and illegal, and that reversion to the system of regular rents and of tenures known to the law, was the admitted remedy, and the promised reform. We have seen that in Kintyre the system of agricultural Leases and generally all the relations of Landlord and Tenant came naturally into full operation the moment that district was freed from the Clan Donnel, the last representatives of the old Lords of the Isles, and of a family which for centuries had upheld and handed down the picturesque but savage customs and traditions of the Clans. We have seen, too, that the tenure by Lease which had been enjoyed for centuries, even in the Hebrides, by the blood-relations of the Chiefs, was now in that district extended to those poorer men who constituted the great bulk of the population, but who formerly were only Subtenants, without any tenure except that which arose out of the necessity of having men who could render "services." These services never were exclusively military. The spade-plough' was more constantly needed than the sword or the pike. They included every kind of labour, and every kind of exaction by which the produce of labour could be made to support the power, or minister to the rude but lavish and wasteful expenditure of the Chiefs. This great process of the emergence of law and order from under the overlying burden of Celtic violence and confusion, is a process which we have thus seen iii its earliest results, but which hitherto we have not seen in the details and methods of its operation. Yet it is these details which are the most interesting facts of all in the history of civilisation—the steps by which so great a reform was made—the action of those who were agents in it—the exact condition of things with which they had to deal—and the nature of the powers which were the instruments of their work.

All this is precisely the information supplied to us by papers connected with the management of certain estates which fell into the possession of the Clan Campbell, along with or soon after the acquisition of Kintyre. These estates were purely Hebridean—lying in the Islands of Mull and of Iona, and in the adjoining peninsula of Morven, with one of the outer Islands, Tyree, which had from the most ancient times been closely connected with Iona. All these lands had for centuries been dominated by the Clan Maclean, whose brave but fierce and law- less Chiefs now sleep in numbers, beneath the sheltering stones, and the rude knightly effigies of the Reilig Oran. In 1732, about half-way between the two Jacobite risings of 1715 and 1745, Campbell of Stonefield, Sheriff of the County, was sent to examine and report on their condition. From that Report we learn that these lands were universally held in Lease by gentlemen who were themselves either members of the Clan Campbell, or in some cases were Macleans, or by others who, according to the common habit of the Celts, had submitted to the new Chief who was also the new Proprietor. Under these gentlemen came the families of the native population, who were called Tenants, but who were only Subtenants, holding at the will of the Leaseholders or Tacksmen, and complaining bitterly of the oppressions under which they laboured. It was the first business of the Sheriff to inquire into the truth of these complaints; and though he indicates that they were exaggerated, yet, in the most practical of all ways, he supports them by suggesting the only remedy. The old Celtic exactions levied by the Chiefs and Chieftains upon their Subtenants, rested and could only rest upon the ultimate power of removal. The Subtenants were not protected in respect to rent or services by any definite covenant or bargain, nor were they protected in respect to tenure by holding for any definite time. Very often the Tacksmen had brought them in upon the lands when these Tacksmen themselves obtained their Lease, just as we have seen that this was the actual case when the De Hays took a farm from the Abbot of Scone in 1312. Moreover, as in that case so in many others, there was an express stipulation in the Lease that the Tacksman should remove these men when he himself removed. In all cases of "Tacks" during all the intervening centuries the Leaseholding Clansman and Tenant held the complete power of the Owner over all his Subtenants, unless this power was restrained by the terms of his own Lease on behalf of the Proprietor. But any such restriction does not appear to have been common, and in the Western Isles, where the powers of Celtic Feudalism had been widest and most unchecked, it was probably unknown. There the dependence of the Subtenant upon the Tacksman, who alone represented the power and position of the Proprietary Chief and the authority of the Clan, was complete and absolute. The proper remedy then was clear,—now that men were giving up the life and the habits of the Clans, and were be- ginning to look steadily to the improvement of the country, and to the increase of its value, founded upon the increased produce of settled industry. The remedy was to give to the Subtenants the same kind and degree of security which had long been given to the relatives of the Chief—that is, the security of a Covenant or Lease. This accordingly was the policy recommended by Sheriff Campbell. The Leases of certain Tacksmen were about to expire. He advised that they should not be renewed except upon new conditions. Their Subtenants should have the same kind of protection which they themselves enjoyed. The rents and services of these men should be fixed and definite, and their tenure should, in like manner, be of a specified duration. Nay more, the larger Tenants should be bound in their Leases to cause better houses to be built for the smaller class of holders, where these men continued to be Subtenants at all. Many of them, however, were to be lifted out of this category altogether. They were to have Leases directly from the Proprietor, and to become themselves "Tacksmen," with the full status and security of that class.

It is important to observe that this proposed reform rested entirely on the possession and on the exercise of the fullest powers of Ownership on the part of the Proprietor. Moreover, it rested on these powers as exercised over the very pick of those who represented and indeed constituted the Clan. It was the old class of Tacksmen, who held whatever rights belonged by Celtic usages to the blood and personal following of the Chief. Yet, we see here that when these Leases came to an end, the Proprietor of the lands they held could tell them that unless they agreed to entirely new conditions, they must make way for other men. This was the only power of enforcement which the Proprietor could hold or could exert in modifying, reforming, or extirpating the oppressive usages which had become established among the Celts. Nor was this power of removing Clansmen from Farms at the end of their Leases a, power which was used as a threat only, without being actually exerted. It was used, as we see, from the Report of Sheriff Campbell, in a great number of cases where the lands were re-let directly to the old Subtenants, or to new men who were more likely than their predecessors to work the new system with intelligence and fidelity. Although this Report was written thirteen years before "The Forty-Five," which is popularly supposed to represent an epoch of change in tenures, and although it goes back to a previous condition of things which implies an unbroken history of many centuries, there is not even a hint or an expression which implies that any doubt existed in the minds of any of the various classes concerned, that the Proprietor was exercising any other powers than those which were not only known to the law but were also familiar to the people.

And as this power was the only engine which could be used to redeem the poorer classes from the oppression of others, so also was it the only engine which could be used to redeem them from the consequences of their own ignorant and barbarous customs. Just as the prohibition and abandonment of some usages, traditional among them, was imposed upon the Tacksmen under the penalty of removal, so the prohibition and abandonment of other usages, as old and as firmly established, was imposed upon the class of Subtenants—under the same penalty of having to leave the estate if they were unwilling to accept the new conditions. In both cases, equally, the first steps towards a civilised condition, and towards agricultural improvement, were taken, and could only be taken, on the strength of the fullest powers and rights of Ownership. Nothing short of those powers could have overcome the desperate tenacity of the people in resisting every change and clinging to habits which, originally bad, had gone from bad to worse through that great law which determines the development of corruption. It is proved by the whole tenor of Sheriff Campbell's Report that the domestic economy of the people in this part of Scotland had remained worse than stationary for more than a thousand years. Although they lived in a country, where rock and stone were abundant, and in general easily accessible —although a whole Island of the finest limestone lay off both Mull and Morven, and was separated from them only by a narrow strait—although the people had before their eyes for more than six hundred years the rough but massive and splendid masonry of the Cathedral of Iona and of St. Oran's Chapel,—yet they continued to live in hovels composed of nothing more solid than turf lined, and perhaps propped on the inside, by wattled branches of birch, oak, and hazel. These were the lineal descendants of the houses, dating from prehistoric times, which sheltered Columba and his brethren in the Sixth Century, and on which it seems that no step of advance had been made near the middle of the Eighteenth, or during an interval of about eleven hundred years. The rapid decay of such structures, the constant necessity of removal, was leading to the destruction of the scanty and shaggy brushwoods which alone represented the ancient Caledonian forests. This, however, was by no means the worst feature of the case. Huts of turf and wattled twigs may be quite as warm and comfortable as many of the hovels which in Ireland and in some of the Hebrides are now always built of loose stones without cement.

But in a much more important and vital matter, namely, the husbandry of the people, there is clear evidence of a ruinous decline. It is impossible to read the details given in Adamnan's Life of Columba of the agricultural operations of his Monks in Iona, and to compare them with the facts given in Sheriff Campbell's Report, without seeing that there had been a terrible and a truly barbarous decline. It had become the universal custom of the people to cut their corn crops of oats, or an inferior barley, high above the ground. The considerable portion of straw which remained attached to the ear was then destroyed by fire, the ear itself being much wasted in the process. This was the only process by which they knew how to get at the grain free from husks, the half-roasted grain falling out during the combustion, and being afterwards roughly ground by the hand between two stones, a primitive form of Mill, called Querns, which has survived to our own day in some of the remoter Hebrides. The remaining straw which had been left upon the ground, instead of being used for the food of cattle, or for manure, was used for thatch —the whole of this valuable product being thus practically lost—because fern and heath, which was in "great plenty" all over the country, would have made better thatch, and was useless for other purposes. All these barbarous and wasteful usages had been the natural and inevitable result of the insecure life which all classes had led in these countries under the system of the Clans. Men will not even. think of building substantial houses, nor barns with threshing-floors, nor mills, when such erections, together with their owners, were constantly exposed to destruction by fire and sword. It was a positive advantage, under such conditions, to have no buildings except such as could be raised in a couple of days out of materials delved with the spade and cut by the hatchet. As usual, men being such creatures of habit, very soon lost all sense of the want of better things. In 1723 the gradual settlement of the country had so far proceeded that one or two of the Tacksmen had built Corn Mills. But the people persisted in using the old Querns. So it was with everything. No improvement could gain even a momentary footing, except when imposed upon the people by the authority of those from whom alone their tenure came. Accordingly throughout Sheriff Campbell's Report every proposal he makes is founded on the unquestioned right of the Owner of an estate to let it to whomsoever he liked, and on whatever terms he could get Tenants to accept possession. Moreover, we see that this power was used not only sometimes and in a few cases, but systematically over large areas of land. It involved very often no less than the old immemorial work of "planting" the country with selected men.

In making this selection political ends were inseparably blended with economic considerations. The Clans of the mainland had been longer in contact with the advancing civilisation of the Low Country. They were both the most loyal men and the men best acquainted with such improved methods of agriculture as were known in that day. Accordingly when a Clansman secured a Lease of some large tract of land in the Western Islands, it was often his first care to plant it with Campbells, or others of his own dependants brought from the mainland of Argyllshire. Thus the Sheriff reports of three well-known such tracts in the Island of Mull, that having been formerly let on Lease to gentlemen of the name of Campbell, these Tacksmen "had gone a good length to plant there several districts with people of the same name, or their friends, and that it must be acknowledged the Tenants were beginning to manage those lands better than the rest of the country." In marked contrast with this result, he reported in respect to another district, that it had been let to one of the old Clan of M'Lean, and that he, in true Celtic fashion, "kept a swarm of poor people of his own name around him who had neither the skill nor the substance (capital) to manage the land to any purpose." The "keeping" of those people on the farm is not ascribed by the Sheriff to any difficulty in removing them arising out of Tenure, but expressly to the "lenity" of the Tacksman. The truth probably was that he followed the traditions of his class, which encouraged a crowd of dependants, who performed for the Tacksmen all the services they required, and were content themselves with a bare subsistence. This, with occasional plenty, could generally be obtained in former times by plunder, and in 1723 it was only beginning to be felt by these poor people that even a bare subsistence could not be secured when plunder had been stopped, and before industry had begun.

There is no indication, however, in the Sheriff's Report that he saw or even thought of any excess of population over the resources of the country. On the contrary, one of the stipulations he recommends for the new Leases was that the Tenant should be bound to bring into the country, and plant a certain number of men as Subtenants, who should cultivate what was then practically waste. These men, thus introduced and planted by the power and care of the Proprietors, together with those other Subtenants to whom he gave Leases, and redeemed from the exactions of the larger Tacksmen, are the progenitors of the men now known as "Crofters." They have been mythically represented as a native population inheriting for centuries a certain fixity of tenure, independent of the Owner, whereas the historical fact is that the process by which they were "planted" is in many cases, as we shall see further on, later even than 1737 by more than half a century.

There is, moreover, another part of the Sheriffs Report which shows the unquestioned power then exercised by the Landlord in the disposal of his property. This part relates to the question of rents. It was no easy question under the circumstances of the case. The money rents previously paid by the Subtenants to the Tacksmen were ascertained by an examination on oath. The services exacted, too, as well as any fines or feudal dues, were found out as nearly as possible by the same method. But as it was one great object to put an end to Services, and to all dues or exactions merely arbitrary, the difficulty remained as to the additional rent which the commutation of these Services would be fairly worth. All these points resolved themselves at last into the value of the produce of land under the existing conditions of agriculture, but taking into account such of the new conditions as would tell at once on the profit of the Tenant. But here again the Sheriff was met with the difficulty that he was accustomed to consider land values only on the mainland, and did not know enough of the local circumstances to estimate such values in the Islands. This problem could only be solved by taking the values set upon the land by the people themselves. In other words, it could only be solved by putting the lands up to local competition. As soon as the people were assured that they would be protected by Leases and by the authority of the Proprietor, from the resentment and vengeance of their old masters, the Tacksmen, it was found that they came forward and offered freely for their small possessions.

Here we have an example—not of conduct being governed by abstract theories, but—of an abstract principle emerging out of the practical necessities of conduct, and seeking expression in a "rugged maxim hewn from life." The worthy Sheriff was not thinking of any science of Political Economy when he said that until the Subtenants could be persuaded to offer frankly "he could have no tolerable information of the value of the country, since it is by the competition of tenants that the value of land can be known." Political Economy, as a science, had not risen above the horizon in Scotland in 1732. Adam Smith was then a weakly, but a studious and absent little boy, nine years of age, doing his lessons in the grammar-school of Kirkcaldy, and forty- four years were yet to elapse before the epoch of his immortal Inquiry into the Wealth of Nations. The Sheriff's aphorism on the only method of ascertaining values was nothing more than the half-conscious expression of a general rule drawn directly from observation and experience. None the less is this sentence an emphatic, because an unconscious, testimony to the doctrine and the practice of the time and none the less was the conduct of the people in those Insular Estates a testimony equally emphatic to their own recognition of the practice, not as an oppression but as a privilege. It implied of course that the Owner of the Estate had the right of freely disposing of his lands, as an inseparable part of the right of Ownership. It implied also that they themselves had no other right of tenure than that of agreement, and that failing such agreement they were liable to removal. But no doubt or question as to either of these facts had ever entered their heads. Nothing in their own past history or traditions could have raised it. Some of them probably knew that their fathers had moved from the lands of one Chief who could not protect them, to the lands of another who could. Others of them perhaps knew that their progenitors had at no very distant date enlisted under the Chief of the Macleans as soldiers enlist under a famous Captain, and had been allowed to settle on his lands as his "men" and retainers. Others again, doubtless, had themselves been removed at the end of a Lease from the farm of one Tacksman Tenant to the farm of another. All of them knew by daily experience that upon these Tenants they themselves were absolutely dependent, and could and would be removed if they failed in dues or services. Lastly, they all knew that those who were above them—the Tacksmen, their masters, and often their oppressors —who were the very aristocracy of the Clan,—themselves held their lands by no independent right, but by Leases terminating at certain dates, and freely granted by the Proprietor. It was not a loss, but an immense gain to them to be raised from tenancyat-will to tenancy under Lease. For the first time in their history they were free to bargain for their farms. For the first time they could be sure that nothing would be exacted from them beyond the terms of that bargain, and that their removal could not take place except for breach of covenant, or until the expiry of a certain time. Accordingly the Sheriff reported that when they were fully assured of protection they came in and offered for these new and great advantages a considerable augmentation of rent.

We have here the clearest evidence of the perfect continuity of law and of practice in respect to the Ownership and Occupation of land which has marked the progress of Scotland over the whole of its area and from the earliest centuries. We see the fullest powers of Ownership assumed and recognised as undoubted and unquestioned, and we see its functions in promoting the civilisation of the country as clearly as we have already seen it at earlier periods when Parliament appealed to it for the suppression of intolerable evils. Lest, however, this evidence of Sheriff Campbell should be in any way subject to detraction from his relations with his Chief, by a fortunate accident we have, a few years later, the same evidence confirmed and amplified on the authority of an independent and a very celebrated man.
Among the names of illustrious Scotchmen at this critical period of our history, there is no name, perhaps, which shines with a purer lustre than that of Duncan Forbes of Culloden. Himself a Highlander of Highlanders, with an intimate knowledge of their character and habits, he was able to sympathise, so far as mere feeling was concerned, with the personal attachments which made them Jacobite. But his religion, and his culture, and the noble profession of the Law—of which he was a distinguished ornament, and of which he rose to be the head in his native country—kept him true to the historical developments of the Scottish people. He used all his influence, and strained every nerve to prevent the Rebellion; and when it was suppressed, by the bloody battle fought upon his own Estate, he exerted himself with equal energy to mitigate the vengeance of the Government against the vanquished. As a Statesman, as a Lawyer, and as a Highlander belonging to another and a distant Clan, he had pre-eminent qualifications for giving wise advice on the difficult questions—partly political and partly economic—which were involved in the management of such Estates as those which had come into the hands of the Argyll family in the Islands. The possessor of them at that time was John, the Second Duke (1678-1743), who as a Soldier played an illustrious part in the wars of Marlborough, and at home as a Statesman took a share not less illustrious in the Councils which, at the death of Queen Anne in 1714, secured the Protestant Succession.' These two men were intimate friends. Their sympathies were the same in the great Constitutional questions of their day, and they were not less alike in those dispositions of character on which so much depends in the management of affairs. Difficulties had evidently arisen in carrying into effect all the recommendations of Sheriff Campbell. He had said in his Report that the people seemed "bewitched" in the tenacity of their adherence to their wasteful customs. The Tacksmen had opposed a passive but combined resistance to changes which affected so much their own power; and they had easily succeeded in persuading the simple and ignorant people under them that old customs were better than new conditions. Under these circumstances, and in view of the expiry of a number of existing Leases, Forbes of Culloden, in the same year in which he attained the dignity of Lord President of the Supreme Court of Law in Scotland, 1737, undertook for his friend a mission to his Island Estates in Mull, Morven, and Tyree.

The account of his journey, and the Report of what he saw and encountered, is one of the most interesting and authentic documents we possess in respect to the condition of the people of the Western Coast and Islands at that time.' It confirms the previous account of Sheriff Campbell in every particular. The Lord President is emphatic in his testimony, and severe in his language as to the use made by the Tacksmen of the absolute power they held over the subordinate tenants. He speaks of their "tyranny" and "oppression." He speaks of their "unmerciful exactions." He speaks of the land even lying waste by reason of these exactions, and declares that "if the system had continued but a few years longer, the Islands would have been entirely unpeopled." He reports that within the previous seven years "above one hundred families had been reduced to beggary and driven out of the Island." Yet these Tacksmen were the genuine representatives of the Clan system. They constituted, in fact, what was called the Clan—for those below them had long ceased to be treated or regarded as more than "the men" under them; it is plain, that both by law and by continuous usage, the Leaseholding Clansmen ruled with absolute power—that is to say, so far as the possession of the land was concerned.

Historically speaking, the existence of this power —more than the use made of it—is the important point. The use made of it must have varied in different districts, and still more in the hands of different men. But the fact is all-important that this absolute power is referred to as universally existing in the hands of the Tacksmen over all who held land under them. No doubt on this fact is even thought of. Throughout the narrative there is not one single indication of any limitations or obstacles in the way of this power, arising out of any independent or customary rights of subordinate tenure. The Tacksman held over the whole of his Farm, and, during the term of his Tack, the whole powers of Ownership, in so far as they were delegated by the Lease. Amongst these powers there was of necessity the power of removing those who would not, or could not, pay the rents or perform the services which the Tacksman might demand as the condition of possession. But since that demand was indefinite, and variable from year to year, the condition of the Subtenants was necessarily precarious. For such evils there could be only one remedy. They arose from the powers of Ownership being separated from its special interests, and therefore from its natural motives. They were delegated to men whose own possession was not permanent, and whose interests were therefore not identified with the growing wealth and permanent prosperity of the people. The remedy clearly was to go back to a connection founded on the nature of things—to keep in the hands of the Proprietor, and in his alone, the power of removal —to deal directly with the Subtenants—to give to them the same measure of security which the Tacks- men had themselves enjoyed. It was, as Culloden expressed it, " to deliver them from the tyranny of Tacksrnen, to free them from the oppression of Services and Herezelds, and to encourage them to improve their farms by giving them a sort of property in their grounds for nineteen years by Leases, if they showed themselves worthy of the intended favour by offering frankly for their farms such rent as fairly and honestly they could bear." If farms with Subtenants on them were to be let at all to the old class of Tacksrnen, these Subtenants were to get a separate tenure, subsisting for the same period as the Lease.

Such, accordingly, was the policy adopted by Culloden, as it had been already recommended by the Sheriff. Culloden, however, came not only to recommend, but also armed with authority to act upon his opinion. Accordingly, he announced to the Subtenants that he was prepared to let their lands to them upon Leases, and he invited them to offer. To the Tacksmen he made the like proposal, under the stipulated restrictions and conditions. To his surprise he found himself met by an organised combination not to offer at all, or to offer only very inadequate rents. The Tacksrnen had persuaded the Subtenants to regard with fear and with suspicion the proposals made to them. The first thing to be done was to break up a combination which rested on the cunning and selfishness of a few, and on the ignorance and prejudice of the many. And this Culloden was prepared to do at any cost. During some days of explanation and persuasion, he found the most effectual argument to be a warning that he would leave them in their former subjection to the Tacksmen. At last the truth dawned on the minds of some of them, and he induced a certain number of the small Tenants to make tolerably fair offers for their holdings. These offers he immediately accepted, and concluded a bargain with those who made them. Dealing with the Tacksmen, he was more peremptory and severe. He had in his own suite some gentlemen of the same Highland class, but who, from living on the mainland, were better acquainted with the essential conditions of agricultural progress. Some of these were induced to make fair offers for the larger farms, whose former Tenants were maneuvering so unscrupulously to thwart the most necessary reforms. Suddenly several of these men found that their farms were re-let to others, and that they themselves were dispossessed. Such examples speedily had the desired effect. The Subtenants, when they found that any reasonable offer of their own was at once accepted, and that they ran no risk of being relegated to the dominion of the Tacksmen because of a higher offer, came in readily, and became themselves regular Tacksmen—relieved from all but a few stipulated services, and possessed for the first time of a definite tenure of their small possessions. The remaining Tacksmen also became more reasonable, and in the final result Culloden had the satisfaction of reporting that those large Insular Estates had been re-let, with some little immediate increase of rent, and under such new conditions as would lay the foundations of indefinite improvement for the future.

The Leases which were given at this time carried fully into effect the great reform which it was their object to attain. Many of them were given directly to men who had been Subtenants. Amidst the almost universal neglect and destruction which have overtaken old Leases, a fortunate accident has preserved some few specimens of those which were drawn up by Culloden, and signed by him as Cornmissioner over the Duke's Estate, at a time when he himself had become Lord President of the Court of Session. They are of considerable interest on more points than one. The application to Subtenants, who had always been Tenants-at-will, of the old law and practice of Scotland in respect to Leases of Farms, was not without some difficulties. Not only in the Highlands, but all over Scotland, this class of Occupier lived in clusters, groups, villages, or "Clachans." Some parts of the Farm they generally held in common. Other parts they held in various shares, generally divided on the "runrig" system by yearly lots. Partly, no doubt, for facilities of defence, partly as a traditional survival of more habit from the far-distant day of Village Communities, this method of occupation was nearly universal. But never in historic times had these Townships any corporate existence either in law or in usage. For centuries the Proprietors had been moving some, and planting ethers, whilst individuals were brought in from time to time by the same authority, with the grant of "rooms," or of shares or portions of the Farm. To whom then, were the new Leases to be given? To the group, or to the individual Tenants of whom the group actually consisted at the time? Culloden was not a man to be foiled by speculative difficulties, nor was he a man to make any changes not really needed for his purpose. He solved the difficulty by taking things as they actually stood, by changing as little as possible, and by applying the principle of the Lease to the actual Occupiers, and according to their actual methods of occupation. Thus in the case of one Farm occupied by six Tenants, but unequally divided, a Lease of 1739 was granted by name to each of them, but with a specification of the share belonging to each man or woman. The whole Farm as known by its name, with all its pertinents as known by use and wont, is let to the six Tenants, for the term of nineteen years, in the proportions specified—one-half to Hugh M'Lean, one-sixth to Rachel MacArthur, one-twelfth to Donald Macdonald, and so on. Thus far, the Tenants were dealt with separately, and the Lease was given to each in his individual capacity. That which the Lease assured to each of them was the "peaceable possession" of the Farm, in the specified shares, "during the space (of time) aforesaid."Subletting, or assigning, was excluded, but each Tenant could leave his share to his natural heirs. On the other hand, there was a clause which recognised all the Tenants as in some sense, and for some purposes, a Community, because in some practices they were so of necessity, from living so close together, and from possessing more or less grazing land in common. This clause was a special provision, that in case of the failure of any one of the Tenants, the others were bound either to take up his share themselves, or else to find another fit Tenant who could do so on the same conditions. The rent was a fixed sum for the Farm as a whole, for which all the Tenants were bound as a Community, jointly and severally. Failure in the payment of rent voided the Lease, and the Proprietor was then free to re-let the Farm to others. The share payable by each was left apparently to their own arrangement, but the arrangement would naturally follow the proportions specified in the Lease. Then, after the clause fixing the rent, comes the new clause which constituted the great reform in favour of this class of Tenant— the clause in respect to Services. The words are these (following the sum of rent) :-cc that (sum) in full satisfaction of all Herezelds and other prestations (obligations) and services whatsoever, which are hereby discharged,—except the services of Tenants for repairing harbours, mending highways, or making or repairing Mill Leads (conduits) for the general benefit of the Island."

In these words we see the symbol and consummation of a change which amounted to a revolution. In the abolition of all Services, except a few strictly limited and defined, which were for purposes directly connected with the benefit of a whole district and of a large community, we see the last step, or almost the last, from the medieval to modern conditions of society. In the admission of a class to the benefit of Leases who had hitherto been always merely Tenants-at-will, and had in practice been often compelled to move from the necessity either of seeking protection or of rendering service, we see the elevation of a large portion of the people from a state of complete uncertainty and dependence, to a state in which they could themselves rely, and could make others rely, upon definite engagements.

Nor is the significance of these Leases given to Subtenants some years before "The Forty-Five" exhausted, when we have noted the clauses which they do contain. Hardly less remarkable than the insertion of some of these clauses, is the omission of other clauses which in such Instruments had been almost universal. Services of a military kind had for many hundred years been among the fundamental obligations of those to whom the occupation of land had been lent or given. Even in the Kintyre Leases, which we have seen were granted about one hundred years before the Leases framed by Culloden, there were at least some surviving echoes of the Military Ages. In the full stream of those Ages, when we put our ear to the language of such Instruments, we hear, as it were, always the sound of fighting—the atmosphere of war. If it was not always being actually waged, it was at least always in habitual contemplation. In the Leases of about 1639 there are only a few customary phrases, coming from the old days—phrases, which were even then little more than survivals of a time drawing to its close. Under the influence of the alarm which was occasioned by the first Jacobite Rebellion of 1715, Parliament had in that year' prohibited, as contrary to public policy, all clauses in Charters or Leases which imposed the ancient obligations of "Personal Attendance, Hunting, Hosting, Watching, and Warding." These had been the last survivals, but they had long been practically obsolete. They now became illegal. Accordingly in the Leases of Culloden in 1739, there is not even a whisper of the kind. We have entered finally on the times of peaceful industry.

But there is another feature of these Leases which is remarkable. Just as some old customary clauses were dropped, both as obsolete and as no longer lawful, so also some other clauses which were soon to become universal, had not yet come to be introduced. I refer to what are called the "cropping clauses "—stipulations to secure good husbandry, and to prevent the deterioration of the land by gross violations of its rules. In those Leases of 1739, there is not a word upon the subject. Doubtless this was due to the fact that the attention of Culloden was concentrated on the one great fundamental reform of establishing in the class of Subtenants the principle of tenure by Lease and at a fixed rent, instead of tenure at Will, and subject to services vague, indefinite, and unlimited. One step at a time—seems to have been his motto and his method of proceeding.

But curious and instructive as these facts are, in respect to the first steps then taken for improving the condition of the Western Highlands, they would be incomplete without giving some account of the evidence we derive from the same distinguished man as to the depths of ignorance and of barbarism into which the people had actually fallen, and on the necessity for further steps of remedy and reform. Culloden was not content with visiting Mull and Morven—districts which were near to the mainland and comparatively accessible. He determined to inspect personally the Island of Tyree, which lies from. twenty to thirty miles farther out into the Western Ocean. Unlike the nearer Hebrides, this Island is not mountainous but low and fiat, with large areas of very fine land, capable of raising excellent crops of corn. Its very name is said to be derived from its agricultural richness—the Iona Monks having called it "Terra Ethica," the land of corn;' and its Celtic name still retaining the letters of this derivation in the form of Thirithe. The climate is better than on the mainland, because the heavy rain clouds which shed their torrents on Ben More and the other hills of Mull, pass over without notice the unobtrusive levels of Tyree. An old Gaelic poem calls the Island "the Low-lying Land of Barley." Even without any culture the natural grasses and pastures of the Island are exceptionally green and rich, so that cattle can live and thrive upon it with less help than is generally required in the Highlands from food prepared and stored by human foresight. Yet on this Island, so favoured by nature, Culloden found the people far poorer than in the Isle of Mull, where soil and climate were all greatly inferior. The conditions of agricultural knowledge and practice which he found prevailing may well seem incredible in a country where, undoubtedly, a far higher civilisation had given lessons to the people more than a thousand years before. Barley was the staple produce of Tyree, but the land, from never being allowed to rest and from being never manured, was so overrun with rank strong weeds that it was an absolute impossibility to drive a sickle through it. Culloden never saw fields covered with a greater load of herbage than the corn-fields in Tyree, but when this herbage was examined not one-tenth part was corn, the rest being all wild carrot, mustard, and other weeds. The poor creatures who depended on these crops did not know how to clear the land of this vegetation, into which all the natural fertility of the soil was allowed to pass. As they could not cut their corn they knew no other mode of gathering it than by pulling it up by the roots. Then they sacrificed the straw by burning, whilst the grain, from being half roasted, became unsaleable. Even this operation could not be performed until the noxious seeds had ripened before the corn, and had time to be shed upon the land to the still more complete suffocation of each succeeding crop. These were but samples of innumerable other practices, equally barbarous, which Culloden had not time to specify or describe, but which he dismisses with the significant general description, "all the other ridiculous processes of husbandry which almost utterly destroy the Island." He traces all these evils to the ignorance and poverty of the people, consequent on the exactions of the Tacksmen. He found himself encountered by the same kind of combination as in Mull. The remedy he recommended was also the same, and the measures he took to break down an interested and ignorant opposition, were identical in both cases. With equal difficulty he at last persuaded some of the small Tenants to accept the security of Leases, and several of the larger Farms he re-let to gentlemen from the mainland, who came under the new reformed conditions.

The graphic and authentic picture thus drawn of the condition of a Hebridean Estate in the second quarter of the Eighteenth Century, is a picture of the whole of the Highland area, with such local modifications as were due to the comparative nearness of each district to the old centres of civilisation and of law. It is the picture of Celtic Feudalism dying hard. But it was dying—and it had been dying for a long time from causes with which the Jacobite rebellions had nothing whatever to do. In principle it was already dead when Culloden wrote, eight years before "The Forty-Five." Everything he says implies that nothing of it was left except a few traditions. Some of its worst evils had already been put an end to, even in the Hebrides, where it had attained its most rank development. The ferocious feuds and fightings of the Clans had ceased for more than a hundred years. Reiving and thieving had not been ended, for this was carried on systematically to a somewhat later period, and was still indeed the habitual resource of the Clans wherever they were in proximity to richer lands which could be plundered. But the same resource was not open to the poor people of the distant Hebrides. Nothing of the Clan system remained to them except the old power of unlimited exactions, in the hands of Tacksmen who had come to represent the Chiefs and Chieftains of other days. In the ages of intertribal war and plunder this power had its compensations, of a kind, to those who lived under it. But in the dawning age of peace and industry, it was a practice of the Clan system which presented an insuperable obstacle to progress. The transformation of this power for evil into a power for good, had been the great work of reformation all over Scotland. For this purpose nothing was required except to carry back the power to the only legal foundation on which it had ever rested, namely, the power of Ownership, and so to evoke the higher motives which must inevitably give to it a wise direction. Accordingly, nothing is more remarkable in the Report of Culloden, as it had been in the Report of the Sheriff, than the undoubting certainty with which he assumed, and everybody else assumed, that, even in those distant centres of Celtic Feudalism, the Proprietors of the land had the fullest right to let it to all corners. Without this right, Culloden could have done nothing and advised nothing. If the Occupiers could have insisted on remaining, they could have insisted on continuing all the barbarous customs to which they were ignorantly but passionately attached. To this day they might have been living on crops of which one-tenth was corn and nine-tenths were weeds. They might have been pulling them up by the roots, consuming all the valuable straw, and damaging by fire the little residue of grain. The improvement of the country would certainly have been postponed for generations. Those only who know the desperate and almost superstitious tenacity with which they clung, and in some places do even now cling, to customs and usages of the most injurious kind, can estimate what the West Highlands would have been if, in the last century, they had been separated in law, as they had long been separated in lawlessness, from the redeeming agencies at work in the hands of Ownership for the improvement and civilisation of the Scottish Kingdom.

On one point I have repeated the language of Culloden almost with a feeling of compunction. His Report is expressed with great severity as respects the conduct and the habits of a class which was then, and had long been, one of the most essential elements of society in the Highlands—the class of gentlemen Tenants who held farms under Leases or Tacks from the Proprietor. The remnants of this class survived down to our own times. I have a personal recollection of some of them, all of whom were excellent, and some of them even distinguished, men. Not a few were old soldiers, and many were descendants from collateral branches of the family of their Chief. None of them were Farmers in the modern sense of the word, although some of them acquired a taste for, and knowledge of, the breeding of cattle, by which they made an adequate profit and lived mainly on the produce of the farm. Beyond this, and perhaps the making of some fences, very few of them were agricultural improvers, and I know of no case in which any great step was taken by men of this class in introducing into the Highlands those reforms in the cultivation of land of which the country stood so much in need. On the other hand, all those whom I have known or heard of as belonging to this class, were gentlemen in the best meaning of the term—men incapable of a dishonourable action, and disposed to deal as justly and humanely with their inferiors as was consistent with the standard of obligation universally recognised in their day and generation. It is possible that Culloden, though himself a Highlander, may not have kept fully in mind what that standard of obligation was in the remoter parts of the country where the progress of law and of legally defined rights had not yet broken down the vague customs and usages which had come down to them through many generations. It is well, however, that the glamour which fiction and romance have cast around these usages should be dispelled by the broad daylight of Culloden's evidence, and that the incompatibility of those customs with the first elements of our modern civilisation should be seen now as it was seen, not after, but before the "Forty- Five," by a great Lawyer and a great Statesman, brought into personal contact with the whole conditions of society which had been moulded by them.

Culloden does not explain the nature of the "services" or "exactions" which were imposed on the Subtenants by the Tacksmen or Leaseholders. But this omission can be supplied from other sources. They were doubtless the same as those usually paid to Proprietors where there were no Tacksmen, or where such Proprietors were of the smaller class, living on the spot as the Tacksmen did. They are to be found given in detail in a very instructive paper, drawn up in 1795 by Sir John Sinclair, for the Board of Agriculture. That paper refers especially to the northern counties ofCromarty, Ross, Suther- land, and Caithness, with the Islands of Orkney and Shetland. But the same customs prevailed everywhere in the Highlands, and, indeed, at a still older date, over the whole British Islands. Specie or money being very rare, the rents of the small Tenants were principally paid in grain—that is, in Bear or Oats. "In addition to the rent," says Sir John, "the Tenants of that description were bound to pay the following services, namely, tilling, dunging, sowing, and harrowing a part of an extensive farm in the Proprietor's (or Tacksman's) possession, providing a certain quantity of peats for his fuel, thatching a part of his houses, furnishing straw-ropes, or ropes of heath for that purpose, and for securing his corn in the barnyard, weeding the land, leading a certain quantity of turf from the common for manuring, mowing, making, and in- gathering the hay, the spontaneous produce of the meadow and marshy ground, cutting down, harvesting, threshing out, manufacturing, and carrying to market or seaport a part of the produce of the farm." Besides these services, the Tenants paid in kind the following articles under the name of customs, namely, straw bags, ropes made of hair for drawing the plough, reeds used for similar purposes, tethers, which, being fixed in the ground by a peg or small stake, and the cattle tied to them, pre- vented them from wandering over the open country, straw for thatching, etc. The Tenants also, according to the extent of their possessions, kept a certain number of cattle during the winter season—paid vicarage on the smaller tythes; as of lamb, wool, etc., a certain number of fowls and eggs, veal, kid, butter, and cheese; and on the sea-coast the tythe of their fish and oil, besides assisting in carrying sea-ware for manure. Sometimes, also, a certain quantity of lint was spun for the lady of the house, and a certain quantity of woollen yarn annually exacted. Sir J. Sinclair tells us that such were the "services" "which almost universally prevailed" in the county of Caithness, so late as thirty or forty years before he wrote—that is, so late as (say) 1760, or twenty-four years later than the Report of Culloden.

It is needless to say, that payments and services so numerous, so various, and so indefinite in amount, might be so worked, and, indeed, could not fail to be so worked as to leave the small Tenant no certain time for the cultivation of his own land on any improved system. Now, it is important to observe, that most of these services and exactions, even when due, never could have been actually imposed by the great Landowners, because they had no farms in their own hands scattered all over the country upon which alone such labour could be of any value. But the smaller Proprietors could, and did, exact them, at least near their own residences; and when Tacksmen were allowed to sub-let without restrictions, these services must have become widely oppressive and destructive to industry.

The reform, therefore, which consisted in the double operation of letting farms directly to those who had been Subtenants, and of limiting or abolishing the power of imposing services in the hands of individual Tacksmen, was a reform of the first order of importance.

As I am in possession of some of the Leases which were granted nineteen and twenty years later by Archibald, third Duke of Argyll, I am able to explain the general nature of the further steps then taken in pursuance of the same principles. This is an interval which overleaps the famous "Forty-Five," and at the end of it we find nothing but the quiet, continuous progress of a change which had been commenced before. As the Lord President Forbes was quite as intimate a friend of this Duke as he had been of his more illustrious brother, it is probable that Duke Archibald's Leases embodied the latest recommendations of Culloden. In the first place, the "Tacks" or Leases given in, and subsequent to, 1755, to the larger class of Tenants, that is, to the old class of Tacksmen, prohibited all subletting upon "precarious tenures," that is, tenures at Will, with dues as uncertain as the tenure. In the second place, the smaller Leaseholder himself, although still bound to perform for the Proprietor certain services as part of his rent, had these services not only strictly defined and limited, but also made redeemable at a fixed and specified rate of commutation. So many days' service each year—twelve or twenty-four days—was the usual stipulation, and it is a curious illustration of the enormous change in the value of labour, as well as in the value of money, that one day's labour was commutable at the rate of one penny, so that twelve days' service in the year was redeemable by the addition of one shilling sterling to the rent. It was, moreover, a special part of the stipulation that the labour or service could not be exacted either at seed-time or at harvest. In this modified form, the rendering of a certain fixed amount of service or of day's labour each year has been a stipulation surviving in some cases down to the present day.

Between the Report of Culloden and the potato failure and consequent famine of 1846-7, I am in possession of a continuous series of documents showing the progress of affairs in the Island of Tyree. They prove in the greatest detail that every single step towards improvement which has been taken during the last 150 years has been taken by the Proprietor, and not by the people. Not only so, but every one of these steps, without exception, has been taken. against time prevailing opinions and feelings of the people at the time. "All in this farm very poor, and against any change "—such is the description repeated over and over again in a detailed Report on each Farm sent to my grandfather, John, sixth Duke, in 1803, when he was contemplating certain changes to which I shall afterwards refer. Great poverty and great ignorance are always "against any change." They are invariably associated with a languor of mind which is incompatible with the possibility of improvement. The very desire of better things is absent, and even if the desire existed the means would still be wanting. Under such conditions every reform must begin outside the people, and absolutely requires to be pressed upon them. I am not speaking merely of the outlays of money, which come from capital. I am speaking of those exercises of mind—of foresight, and of authority—which come from Ownership, and cannot be enforced without the possession of its fullest rights. The abolition of the Run-rig system was always most unpopular in the Highlands. In Tyree, as elsewhere, it was abolished, and could only be abolished by the authority of Ownership. Again—illicit distillation, with the worse than waste of an immense quantity of grain,—was another inveterate habit, suppressed with the greatest difficulty by the same power. Every subsequent measure of improvement—the regular division of individual holdings— the fencing of them—the selection of the best candidates for the occupation of them—the prohibition of cultivation on land liable to destructive sand-blowing—the building of a better class of houses—the introduction of ploughs in substitution for the primitive "crooked spade "—the introduction of carts— of grain of a better kind—of superior stock—of dairy farming; in short, every single item of progress in agriculture has been the work, and often the arduous and expensive work, of the Proprietor. Moreover, even all these would have been useless without the arrest laid upon reckless sub-division, and the steady progress made towards the establishment of more adequate and comfortable possessions.

( The legislative measures which followed the suppression of the Rebellion of 1745—the disarming of the people, and the prohibition of the native dress,' except as a uniform in the Forces of the Crown—were blows struck at Celtic Feudalism with a special view to extinguish its political danger, along with its spirit and its military power. These measures were needless, and if they had stood alone, would probably have had nothing but a bad effect. Causes, however, far deeper seated than any legislative measures of this kind, had long been operating in the right direction, and these had already almost completed what no mere statute could effect. There was, however, one Act of Parliament passed at this time which marks the consummation of a great change, and which raised a hot discussion closely connected with the subject of the present work. This was the abolition of the Heritable Jurisdictions. Accidental events had given this question an importance which it did not really possess. The Rebellion of 1745 had made a deep impression on the public mind both in England and in the Lowlands of Scotland. Englishmen had seen a Highland army invading their country, and marching in triumph through Preston and Manchester as far south as Derby. London for a time had been in a state of panic. Scotsmen had seen their Capital taken, and a Popish Pretender holding his court at Holy- rood. Both England and Scotland could not but take serious note of the fact that the Jacobite forces had twice defeated the Royal army in pitched battles in the open field—first, on the 20th September 1745 at Prestonpans, near Edinburgh, where Sir John Cope was badly beaten, with the loss of his artillery and stores; a second time at Falkirk on the 17th January 1746, where General Hawley was routed not less completely. And this was the second of these Jacobite Rebellions within 30 years. The victory at Culloden, therefore, although it seemed to be for the time complete, did not, and could not set men's minds at rest. They were disposed to look with anger and alarm into the causes and the system which enabled a few great Nobles to raise armies of ten and twelve thousand men, and at such frequent intervals, to contend on almost equal terms with the armies of the Kingdom. In this state of mind they confounded together, as men are very apt to do under such conditions, two, or more than two, very different things. They confounded, amongst others, the power of Clanship or of Chiefship with the power of Heritable Jurisdictions. In this they were not only completely mistaken, but altogether wide of the truth. The power of the Chiefs of Clans was wholly independent of Charters or of Law. The Heritable Jurisdictions, on the contrary, were entirely founded on Charters and on Law. They were grants by the Crown of Judicial power given to individual men, not because they were Chiefs of Clans, but because they were the chartered Owners of great territorial Estates. These powers were given to Ownership, and not to "Chiefery." Many of the most powerful Rebels were men who had no Heritable Jurisdiction; many of the great Landowners who did possess extensive legal Jurisdictions, were the most loyal and the most energetic supporters of the Government. On the other hand, not a few Rebel Lords who had chartered Jurisdictions found in them no help at all. The Parliament of Scotland had for centuries been attacking and denouncing the power of Chiefs; whilst, on the contrary, in the Treaty of Union with England in 1707, the Scottish Parliament had inserted two special articles saving the Heritable Jurisdictions of the Barons, and the analogous privileges of Royal Burghs, as Chartered rights of Property.

When, therefore, the British Parliament in 1746 and 1747 came to consider what they were to do against Celtic Feudalism, they soon found that the Heritable Jurisdictions formed no part of it, and had nothing to do with the political dangers which had so alarmed the Kingdom. Yet feeling that these Jurisdictions were for other reasons open to objection, and had long been abolished in England, they followed the judicious course of taking the opinion of a learned, wise, and patriotic man—applying to his knowledge for the facts, and to his wisdom and patriotism for advice. In January and August 1746, the House of Lords, in two Orders, applied to the Court of Session in Scotland for a Report on the different kinds of Heritable Jurisdiction, and for the draft of such a Bill as they would recommend to the adoption of Parliament.' The Lord President of that Court was then the same Duncan Forbes of Culloden of whom we have seen so much acting in another character. His Report is dated January 9, 1747. Like everything he wrote it was clear, concise, and eminently judicial in its tone. He explained and defended the Heritable Jurisdictions in the light of the times in which they had been introduced. He recommended the abolition of them (with a few important reservations) in the light of the new conditions of society which had now arisen. "One of the principal causes," he says, "of lodging High Jurisdictions in powerful Families heretofore was the great difficulty the Government was under, of bringing offenders to justice, and executing the laws, when the country was yet uncivilised, and the necessity of committing that charge to such as were able to execute the same; and as that part of the United Kingdom commonly called the Highlands of Scotland has at all times been, and is at this day, in a state so unsettled, that offenders are not from thence easily amenable to justice, nor can Process of Law have free course through it, due care must be taken to bring that part of the country under subjection to the law, and to secure the Execution of Process of all kinds within it, before any hopes can be entertained of seeing a regular administration of Justice by the King's Courts and Judges there." Assuming, however, that the essential preliminary would be otherwise secured, he sent up to the Lords the draft of a Bill for the desired purpose, and on this draft the Act which abolished the Heritable Jurisdictions was drawn and passed in the same year." To a very large extent it was a mere statutory acknowledgment of changes which had already been practically established. In the preamble to the 17th clause the Act narrated as a matter of fact that Heritable Jurisdiction affecting the higher criminal offences, and the penalty of death, had "long been discontinued, or had fallen into disuse as to the exercise thereof." In general and sweeping terms all Heritable Jurisdictions, both civil and criminal, were now "abrogated, taken away, totally dissolved, and extinguished." They were resumed and re-annexed to their original source the Crown.

And yet some valuable and significant reservations were made by subsequent clauses in accordance with the recommendation of the Lord President—in accordance, not less, with important usages at that time still in full activity, and with the traditional policy of the native Parliaments of Scotland. These reservations affected only the lower jurisdiction of the Baronial Courts, or, as they were called, the "Baron Baillie Courts," for the framing and enforcement of Estate regulations, and for the recovery of rents due by contract. The view taken by the Lord President of the Heritable Jurisdictions as a whole evidently was, that so far from having been one of the strengths of Celtic Feudalism, they had been, on the contrary, the only means by which that dangerous power could be restrained and resisted. They had been a strength in the hand of Ownership, for the defence and enforcement of legal obligation. But now the government of the Crown was in a condition to undertake this great duty over the whole Kingdom. The Lord President, however, had seen how much still remained to be done in the cause of civilisation which could be done by no other power whatever than the power of Ownership in the management of landed property. For centuries this power had been exercised to a large extent through the lower jurisdiction of the Baronial Courts, presided over by "Bailies," as representatives of the Proprietor or Lord. It was most desirable to retain an Institution which was still in full working order, which had in it some strong popular elements of unbroken usage and tradition, and without which the progress of agricultural improvement might be seriously impeded.

In accordance, therefore, with the advice of the highest Court in Scotland, and of its distinguished President, the old Baronial Courts were allowed to retain a petty jurisdiction in civil cases affecting values up to Forty shillings, and in all cases whatever for the recovery of "rents, mails, and duties," arising out of Charters, Leases, or other Instruments under which land was occupied.' This Act, therefore, made no change in the general practice which had been long established of inserting a clause in all Leases of agricultural land, binding the Tenant to attend and to serve on the Courts of the Barony, in which his Farm lay. This was not an onerous but an honourable service, analogous to that of serving as Jurymen in the King's Courts. It associated all the Tenants in the administration both of law and of equitable jurisdiction arising out of the most important relations of the society in which they lived. It was only very gradually that these Courts fell into desuetude. The clause providing for attendance upon them survived in Leases down to our own days. I have myself signed many Leases out of which this old clause had not yet dropped. The changes which gradually extinguished these Courts were many. The class of men who took Farms gradually changed. Farms, themselves, became more and more individual possessions—less and less associated with that uniformity of customs and of habits which always dies under an active spirit of improvement. Then, the King's Courts, the Sheriffs, and the Sheriff-Substitutes, penetrated everywhere, and the inevitable tendency of reforms of every kind was to concentrate all Jurisdiction in the highest and most responsible administrators of justice and of law. But none the less were the Baronial Courts a valuable institution during an important time, and their value lay especially in the facilities they lent to Ownership in rendering its full response to the appeal which had been made to it by Parliament and the Crown.

Belonging strictly to the same category of Legislation another Act of the same Session deserves our notice. Amid the fear and hatred roused by the Jacobite Rebellions against all that was supposed to be connected with Celtic Feudalism, another loud clamour arose against certain incidents of Feudal Tenure which had been developed in Scotland. These were the incidents affecting all Vassals or Feuars connected with Fines, Wardships, and other occasional, dues to their "Superiors," which in Scotland were called "Casualties." Some of these were open to great objection—not as connected in the slightest degree with the power of Celtic Chiefs, but on the contrary as hampering and embarrassing the great antagonist power of landed Ownership. It was in the hands of the Vassals, and not of the Superiors, that the real powers and virtues of Ownership lay. It was the Vassals, not the Superiors, who possessed the " Dominium utile "—the dominion which incited men to the improved and more profitable use of land. It was a matter therefore of public interest that they should be able to exercise that power upon conditions which were known and calculable. Upon the narrative, accordingly, that certain specified kinds of Casualties "had been much more burdensome, grievous, and prejudicial to the Vassals, Proprietors of the Lands held by these Tenures, than they had been beneficial to the Superiors," an Act was passed abolishing them for the future, and for the past requiring them to be commuted into a fixed feu-duty, either by agreement between the parties, or by valuation through the Court of Session.

We cannot be mistaken in seeing here the handiwork of the same enlightened Judge and Statesman who drafted the Act abolishing the Heritable Jurisdictions, when we ascribe to him an important clause in this further Statute which extended to Agricultural Tenants under Lease the same principle of certainty in obligations which the other clauses secured for the Proprietors under whom they held. This clause was in strict accordance with the principle he had embodied in the new Leases which he had drawn up for the Tenants on the Argyll Estates. It did not abolish Services as a part, or as a concomitant, of rent. He knew that some of them were reasonable and even necessary. Neither did it assume to Parliament the task of specifying the particular services it might be expedient to retain. He knew that local circumstances and mutual interests must determine this. But it did abolish, and render illegal for the future, all Services which were indefinite and unrestricted in nature and amount. The Tenant and the Proprietor might bargain for such Services as they pleased; but these Services must be named, and specified. Uncertainty vagueness—the want of definition had been the ruin and oppression of the cultivating classes under Celtic Feudalism. The Lord President struck at this feature of the system, and extended by law to those classes that same remedial principle to which a wider range had been just given on behalf of chartered Ownership. And so the new clause declared that no Tenant or Tacksrnan should in future be obliged or liable to perform any Services whatsoever other than such as shall be expressly and particularly reserved and specified, with the number and kinds thereof enumerated in some written Instrument, signed by both the parties thereto - "any former Law or usage notwithstanding."

This was indeed wise and sound Legislation, and it was only another item in the Response of Ownership to the long-standing appeals of the old Parliaments of Scotland. For it is to be observed that these new Statutes were passed in the united or British Parliament, forty years after the Union, in special consultation with the highest Court of Law in Scotland, and with the full assent of the Scottish Peerage and of the Scottish Proprietors. It is indeed curious to observe that although the privilege of recording Protests by minorities in the House of Lords was exercised on the passing of the Bill for the abolition of the Heritable Jurisdictions, that Protest was not signed by a single Scotch Peer. It was signed by only six Peers—all of them Englishmen. It is true that the Chartered Proprietors of the Heritable Jurisdiction were to receive a compensation. But the amount of this compensation was left absolutely to the decision in each case of the Court of Session—and this was made a point of objection by the Protesting Englishmen.

And now, disembarrassed on the one hand of powers which had outlived their time, and emancipated on the other hand, from liabilities which discouraged the use of capital, the Ownership of Land in Scotland was ready to go forward faster, and with redoubled energy, on a career which indeed was by no means new, but which was now to be pursued under more favourable conditions and with an immense development of industrial results.

Before, however, we can enter upon a review of these results, we must go back for a little upon the Past, and estimate from authentic sources of information what the condition of Scotland was in the beginning of the second half of the Eighteenth Century, as well as attend to some events which arose during that period, and which exerted an influence upon the people more powerful than either new laws or ancient usages.


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