The stability of
property is, next to the safety of life, the most important object
of every government; and no country can be called highly civilized
where it is not firmly and distinctly secured, and where it is
liable to any derangements, at the will either of multitudes or
individuals. It is part of a firm and well established rule of
property, that it should be able to stand criticism and inquiry down
to its very roots. Wherever people evade inspection and examination,
whispering that it is dangerous, that it may be a precedent for
questioning the stability of property at large, that it will give a
feeling of insecurity,—there we may expect to find something wrong
that should be altered to give symmetry and strength to the whole.
There indeed we may expect to find property having a feeble and
uncertain hold of the social system, which it is likely some time or
other to lose; and it will not be the inspection of the whole
edifice, and the repairing and readjusting of the part that is
wrong,—it will not be this, we say, that is dangerous to the
stability of the whole framework of property, though some interested
persons may tell us so; but it is the overlooking the disorganized
part, and allowing it to remain unremedied, that constitutes the
danger. In this country there is a most unworthy diffidence on the
point. People are afraid to look into the foundations of proprietary
rights, lest they should find the whole rotten, and upset the social
fabric in their operations. Yet there can be nothing in the shape of
social institution more deeply and firmly planted, and more
consistent with the sound philosophy of individual rights, than the
tenure of property in general in this country—nothing that has
stronger support in the general principles and opinions of the
people — nothing that has fewer opponents. Surely this, instead of
making us diffident of such inquiries, should induce us to approach
them with boldness and freedom, and to ask whether the broad and
just principles that characterize the system in general may not have
been overlooked in some of its details.
We shall ever find, in countries even less civilized than our own,
and where the bonds of social rights and duties are less firmly knit
together, that the charges against the people at large of having
designs against the rights of property, are false, and are raised by
those whose proprietary rights are questionable, to save them from
inquiry. The old scandal attached to the Roman agrarian law has now
been long confuted. After it had served its turn, in vilifying the
people as a body and all popular movements ; after it had been the
chosen weapon of destruction to he cast in the face of all
democratic projects, and was held to embody in two words a practical
argument, sufficient to frighten the boldest advocates of
representative reform, it was at last discovered, that it did truly
refer to dishonesty and pillage, but not on the part of the people.
Indeed, if we reflect calmly on the matter, it will at once appear
that a deliberate purpose to appropriate the property of individuals
is not a mob vice. Violent, outrageous, and unreasonable,
assemblages of the people too often are. Too often have they seised
on the wealth, physical and moral, built up by ages of enlightened
laborious civilisation, and, tearing it to pieces, scattered it to
the winds: too often have they wetted their hands in blood, and that
the blood of their best friends ; but a design to transfer houses,
commodities, land and stock, from A or B to the alphabet at laige,
does not enter the frenzied brains which do such acts. Schemes of
spoliation and appropriation are not naturally gregarious, but are
the creatures of long solitary nourishment in individual bosoms.
They have no heat in them to foster the passions of the fierce
democracy; they are not the electric fluid that makes thousands of
hearts beat at once with the same emotion. In the fiercest outburst
of popular rage, the promulgation of such a doctrine of pillage,
would throw dust upon the fire and put it out. We admit freely that
spoliation and the unjust transference of property have frequently
been caused by popular outbreaks, and that the disturbance had been
created or fed to promote views of cupidity and aggrandisement : but
these were the hidden plots of cunning and powerful individuals,
generally of the aristocratic orders. The zealots of the
Reformation, who tore down the nests that the rooks might flee away,
intoxicated as they were with furious zeal, and full enough, no
doubt, of evil passions, were pure from the taint of selfish
motives; though there were those standing by, or occasionally
cheering them on, who very quietly took possession of the church
lands, held them with a firm gripe, and talked of their application
to ecclesiastical purposes as a “devout imagination". At the end of
a riot, pocket-books and watches have changed pockets: but it was
not among the motives of the mob to bring about such a change.
Enthusiasts sometimes faintly clamour about a partition of property,
or a spunge on the national debt; but no considerable popular party
ever advocated such doctrines, and none we prophesy will ever do so.
The second step in the reasoning of those who in their dreams have
taken the first, makes them immediately retrace it. They find that,
with the stability of property, the fruits of industrial wealth must
disappear, and industrial subsistence must be dried up and withered.
No! It is from the cupidity, the silent, watchful, aggrandising
spirit of individuals, taking advantage here and there of defects in
the law, that the rights of property are in danger; not from the
organized plans of any large portion of the public. Silently day by
day, and inch by inch, individuals are making their secret
encroachments; the progress is scarcely more perceptible than the
growing of the grain; but, when the proper time has elapsed, we see
the granary filled. The public is a bad conservator of its rights,
and too often is awakened to their existence when they are just
about to vanish for ever. A public writer cannot do better service
than in commenting on the reference of the proper principles of
exclusive ownership to the rights of masses of the community; and we
propose devoting these few pages to some remarks on the relation of
the proprietors of land in our mountain districts, to their tenantry,
and to the public at large.
If a victorious state were anxious to preserve the rights of
property in a conquered province, they would not do so by
immediately abolishing the old laws and customs regulating tenure
and succession, and substituting those of the victor. The Romans did
thus, it is true; but the Romans held that the lives and the
property of all conquered people were forfeited, and that whatever
was spared for them of either, was a free gift. The justice and
humanity of modern times lead us to a different conclusion, and we
admit to the conquered Sikh or Hindu the exercise of some
proprietary rights. It may happen that the conquerors laws of
property are far more scientifically and philosophically digested
than those of the conquered ; it will almost invariably happen that
they are more suitable to the people by and for whom they have been
made; but it will also very often happen, that rude as they may be,
the institutions of the conquered are better suited to their own
state of society than those of their victors would be. It is
generally difficult to persuade the victor that his institutions are
not better than those of the vanquished: yet the uncertainty,
anarchy, and misery, that follow the sudden substitution of new laws
in place of old established customs, have made modem colonist* and
conquerors either spare the old institutions of the vanquished, or
substitute their own by very slow degrees. It is difficult, indeed,
to get individuals to comprehend and carry out this general policy.
The English official, especially if he bi a lawyer, cannot well
conceive that there is any part of the world where the forms in
which he has been trained, and which he reveres, are not, or should
not be as powerful as in Middlesex. A pugnacious man is indicted as
if he were a poacher. A New Zealand chief is served with a duces
team, or subjected to a capitat adsatisfaciendum and most stand the
consequences if he do not treat it as respectfully as if he were a
draper in Cheapside. The absence of English law is held to be
equivalent to no law. We remember well the air of blank amazement
with which a young articled clerk looked round him in the Parliament
House of Edinburgh, when he was told that there was neither i King's
Bench nor Common Pleas there; no Chancery—not even a Master of the
Rolls—but only a First and Second Division, an Outer and
Inner-House, a Lord President and a Justice-Clerk ; and, oddest of
all oddities, a Lord Ordinary on the Bills! Then, worse and worse,
there was no nisi prius, no oyer and terminer, no certiorari or writ
of error, no traversing, no emparlance; nothing but advocations,
suspensions, reclaiming notes, interdicts, summonses, and
condescendences. What a chaos!
Greater people are too much like our friend the articled clerk.
Their ears are deaf as stone to the justice or propriety of any
other code, any other system of rights between man and man, than
that to which they have been bred, being tolerated, in peculiar
circumstances, as better adapted to peculiar classes of society. We
have observed, that the just and now avowed policy towards any
conquered people, is to continue to administer among them their own
laws, or, at least, to change the system gradually, in a manner not
likely to be offensive to the public, or to press heavily on
individuals. Much more, then, when there is an incorporation
together of provinces not conquered, but united by consent or
incidental circumstances, should this rule be pursued. Has it, then,
been pursued in dealing with all the provinces of the United
Kingdom. We shall see.
The Highlanders of Scotland are well known to he as distinct a race
from the Lowlanders, as the Japanese from the Dutch, or the American
Indians from the Portuguese. What is still certainly remarkable,
after all the changes which this country has undergone,—after the
spread of knowledge, the rapid progress of commerce, and the
abundant facilities of locomotion),—the traveller who crosses the
Highland line finds himself as completely among a different people,
as he who passes from the Bernese to the Italian side of the Alps.
In some places the traveller can stand and behold, on one side of
him, activity, industry, and comfort; clean fields, a well-clothed
peasantry, and comfortable houses; while on the other, even before
there is any great change in the nature of the scenery, the
manifestations of human life show neglect and poverty; and an
oriental indolence seems to spread its sleepy wing over a people
whose thin muscular forms, swarthy complexions, and free wild
motions, bespeak an eastern origin, and make us feel as if we had
crossed seas and deserts, instead of an imaginary line, to behold
them. All this is, perhaps, pretty well known already; but did it
ever occur to any one to inquire whether this peculiar people might
not have social institutions and notions of property and justice, as
different from those of their Saxon neighbours as the two people
were unlike in structure, aspect, and manners, in language and
ideas, in opinions and superstitions? Might it not have naturally
been inferred, that the same rules for fixing the relative position
of landlord and tenant, which, growing up in practice among the
pastures and com fields of the south-eastern counties, became at
last the law throughout Lowland Scotland, would scarcely be the same
that bound together the Highland warrior and his chief, when they
regulated the possession of their hunting1 grounds, or divided the
spoil seised in a creach? And so, indeed, on inspection, it has been
found to be. The connexion of the Highland chief and his followers
was utterly distinct from that of the Lowland baron and his
feudatories and tenants; and it has been by repeated processes of
thoughtless cruelty,—causing intense suffering and heartburning
among those who have had to yield to the strong hand, that, to some
extent, the Lowland laws were given effect to in the Highlands, when
they were found to minister to thecupidity of individuals. The main
peculiarity of the system of Highland tenure was, that the chief was
not the proprietor of the land, but the leader of the people. He
might be very arbitrary and very despotic to individuals, but he
could not treat the general body of his followers as a people who
had no right to the soil on which they lived, save through his
consent. In these circumstances, the law of succession was liable to
those breaks and exceptions to which monarchies are liable^ but
proprietary rights, settled by law, are not. it was not held, down
even to comparatively recent times, to be a general rule that the
eldest son succeeded the father. The hereditary principle was
tolerated, not enforced; and, when the clan, for the sake of having
an able leader, deemed it expedient to do so, they altered the
succession as unhesitatingly as the crew of a pirate would displace
an imbecile commander. We shall give the system they pursued in the
words of a very profound, though not always readable antiquary,
George Chalmers, the author of Caledonia.
"In the succession, both of the kings and of the chieftains, the
dlighetanaiste, or Law of Tanistry, appears to have been generally
followed. The person in the family, whether a son or a brother, who
seemed best qualified, either from abilities or experience, to
exercise authority, was fixed upon by the tribe, for the succession
to the sovereign or the chief. It is apparent, however, from the
history both of Ireland and Argyle, that, during the life of the
reigning king, an heir-presumptive was chosen, under the name of
Taniste, who commanded the army during the monarch’s life, and
succeeded him after his demise, according to the established law.
Much of the dignity of the monarch was supported by the voluntary
contributions of the princes and chiefs, which were to be paid in
cattle, in clothes, and utensils; the monarch was obliged to
purchase the support and services of the princes or chiefs by
similar presents. ..... A similar polity appears to have pervaded
all ranks among the Irish people, from the king to the prince, and
from the‘ prince to the chieftain, both in Ireland and in Scotland.
The toparch governed his district as the monarch governed his
kingdom; and the chieftains ruled their territories, and their raths
or fortified villages, upon the same principle of mutual dependence
of the higher on the lower ranks, and of the subordinate on the
superior.”
When one remembers that the principal assertor of absolute right of
property in the Highlands was an heiress, the following statement
from the same source is very significant.
“The Irish women, of whatever rank, seem not to have been entitled
even to the slightest possession of land under the Brehon law. They
were assigned a certain number of their fathers cattle as their
marriage portion, which, in the Irish speech, is called Spre9—that
literally means cattle. Crodh also signifies both cattle and dowery,
which in those times and in those countries were synonymous. We
shall see in our progress a very notable instance of this Brehon
doctrine, as to women, among the Scoto-Irish. The Galloway men
universally rose in support of the pretensions of a bastard son, in
opposition to the claims of three legitimate daughters of their late
lord: and it required all the power, and all the valour of Alexander
II. to enforce his opinion of law and right, against the custom, and
perhaps the privilege, of the men of Galloway.
Again,—
“In all those districts and subdivisions the chief gave protection;
and in return the inferiors yielded subordination and contributions
during peace ; and in war, support and obedience. Yet during
uncivilized times the possessions of all were precarious; and
cultivation, owing to this circumstance, was not carried much beyond
the wants of nature and the dues of chieftanry. The custom of
Tanistiy was the common law of North Britain throughout the Scottish
period, as it had been originally in Ireland, till the invasion of
Henry II. The Brehons equally continued during the Scottish period,
as they had done during the Pictish in Argyle, to be judges through
every district of proper Scotland. The common customs of the
country, and the usual manners of the times, were the accustomed
rules of their judicial proceedings. During the Scottish period
there were customary payments of Celtic origin, which were long
known by the Celtic names of Cain an Cunevethe.
Mr. Gregory, who was a lawyer, seems, in his History of the Western
Highlands, to have been somewhat surprised, if not scandalized, by
finding these principles practically followed out in comparatively
late ages. At the period of 1545, he tells us, “The family of Sleat,
in which the male representation of the Lords of the Isles now
centered, was at this time almost deprived of power. Its chief was a
minor, the son of that Donald Gorme, killed before the Castle of
Elandonan in 1539: and in addition to this source of weakness, the
title of the family to their estates was disputed by the Macleods of
Harris, who found this a good opportunity for reviving their former
claims. At length the islanders chose for their leader, James
Macdonald of Isla, whose patriotism seems to have evaporated, on his
perceiving the possibility of obtaining the pension of two thousand
crowns promised to his predecessor. His pretensions to the Lordship
of the Isles, were certainly inferior to those of the chief of Sleat;
but his power as an individual was greater." Again, in 1597,—
“The Siol Tormod was now placed in a position, which, though quite
intelligible on the principle of feudal law, was totally opposed to
the Celtic customs that still prevailed to a great extent throughout
the Highlands and Isles. A female and a minor was the legal
proprietor of the ancient possessions of the tribe, which, by her
marriage, might be conveyed to another, and a hostile family; whilst
her uncle, the natural leader of the clan according to ancient
custom, was left without any means to keep up the dignity of a
chief, or to support the clan against its enemies. His claims on the
estates possessed by Clan Donald were worse than nugatory, as they
threatened to involve him in a feud with that powerful and warlike
tribe in case he should take any steps to advance them. In these
circumstances Donald Macdonald seized, apparently with the consent
of his clan, the estates which legally belonged to his niece the
heiress; and thus, in practice, the feudal law was made to yield to
ancient and inveterate custom."
Nor was this, at the time when the system of Highland clearings
commenced, an ancient obsolete law, which only existed in tradition.
Many men were then alive who had seen it in full operation. When the
eleventh Lord Lovat died, he left a daughter who was his heiress by
the Lowland law, but who was so far from being admitted to be so by
the clan, that, though she was married to the son of one of the
judges of the Court of Session, as a person who would be powerful in
the enforcement of an obnoxious law, the estates were really
possessed, and the rents were levied, by the celebrated Simon Lord
Lovat, the chief of the clan according to the dan9s own views. That
this was the state of Highland society and Highland property down to
the rebellion of 1745, we have many testimonies. In “Letters from a
gentleman in the North of Scotland to his friend in London," written
about the year 1730, the writer says, “The chief exercises an
arbitrary authority over his vassals, determines all differences and
disputes that happen among them, and levies taxes upon extraordinary
occasions, such as the marriage of a daughter, building a house, or
some pretence for his support or the honour of the name; and if any
one should refuse to contribute to the best of his ability, he is
sure of severe treatment, and if he persists in his obstinacy, he
would be cast out of his tribe by general consent. This power of the
chief is not supported by interest as they are landlords, but as
lineally descended from the old patriarchs or fathers of the
families; for they hold the same authority when they have lost their
estates.” Meaning, that though the Lowland law has declared the
chiefs territory, viewing it as property, to be forfeited, the
Highlanders, adopting their own indigenous laws, did not admit that
there was any change. In many instances, indeed, after the rebellion
of 1745, the estates were worth nothing to those who held them
according to law. They could levy nothing in the shape of rent; but
the original owner, though a wandering exile, received his customary
tribute. It was not by the laws enacted in the parliament of
Edinburgh that he levied this tribute; it was by the sanction of the
local customs and institutions of the Celtic races; and his rights
were acknowledged by them, though the hand of a foreigner had driven
him forth from his people. It was as natural that it should be so,
as that the notions of the obligations between man and man, resting
on the old customs of the New Zealanders, should not be immediately
obliterated because a British colony had quarrelled with the chief.
Now, in a state of society like this, where the rights of the chief
and of the follower had grown up together, and were part of the same
system, the one having no better right to his castle than the other
had to his hovel, was it reasonable, was it humane, was it just,
that the chief should suddenly make up his mind to clear his
territory of its inhabitants and convert masses of their small
holdings into large farms, as coolly as the proprietor of a row of
houses in Westminster might eject his tenants and convert the
building into warehouses? Without an inconsiderate application of
the laws made for a totally different people in a different state of
society and with different mutual rights and obligations—without the
blind application of the laws and institutions of the strong and
civilized part of the island, to the illiterate and helpless
children of the mountain, could such a thing have been done? And
what was the result but such as might have been expected?
Resistance—hopeless and feeble in effect, but strongly justified by
internal feelings of right and injured justice — loud execrations,
the wail of the feeble yielding to the relentless despotism of the
strong; and the law, clear in the execution of its duty, sweeping
away resistance, discontents, and tears, and clearing off the whole
heap of misery from the presence of those who caused it.
The answer to this will be the answer given at the time. The law was
on the side of the proprietors. These chiefs were in possession of
many pieces of parchment locked up in charter chests, the talismanic
effect of which was to make them not chiefs but proprietors, holding
the estate occupied by their vassals by as clear and full a right of
property as the Glasgow merchant who purchases an estate up the
Clyde, for which he has paid down twenty-five years* purchase, can
have. Of these charters the clansmen knew and understood no more
than the New-Zealanders know of the correspondence of our colonial
office— they neither saw them nor felt their influence; yet, by the
law of the land, these documents were to be held indicators of
absolute property whenever occasion should call them forth. The
system of clanship in the Highlands is often spoken of with extreme
inaccuracy as if it were identical with the feudal system. That
system of Norman growth prevailed in England, and penetrated through
the Lowlands of Scotland ; but it never lived in the Highlands. The
nature of a fief was, that the holder who obtained it from the
sovereign, had thereby, as owner of the soil, authority over all
those who resided on it. The principle of clanship was, that because
he was their leader and judge, the chief had authority over the
people of the clan; and his rights, in connexion with the land, were
a mere accessory of his authority over the people who lived on it.
Mr. Skene, a cool and accurate antiquaiy, says with much justice:
“The feudal system, so far as the tenure of lands and the heritable
jurisdictions were concerned, was easily introduced to appearance,
in the Highlands; but, although the principal Highland chiefs
readily agreed, or were induced by circumstanc4s to hold their lands
of the crown, or of the Lowland barons, yet in reality the Celtic
system of clanship remained in full force among the native
Highlanders and the chieftains of the smaller brandies, who were not
brought into direct contact with the government, until a very late
period.” It was the interest of these chiefs to encourage the
increase of population rather than the improvement of agriculture in
their territories. Every man who could wield a broadsword was an
addition to the power and influence of his chief; and as to the
subsistence of each additional man, were not the Lowlands all before
him, with freedom to choose his beef and mutton? “The value of
landed property,” says Lord Selkirk, “was in these times to be
reckoned, not by the rent it produced, but by the men whom it could
send into the field. It is mentioned, indeed, of one of the
chieftains, that, being questioned by a stranger as to the rent of
his estate, he answered that it could raise five hundred men." Does
it not, independently of stronger claims on the chief, seem somewhat
unreasonable that, when it suited his purpose, he might encourage
the increase of the people on his territory, and then, when views of
a different kind opened up to him, might sweep away the whole mass
of population which his ancestors had planted? But to be just to
all, these sweeping ejectments were the doing of strangers, not
brought up with Highland notions, and never in their careless
selfishness dreaming of any thing but absolute property and their
own arbitrary use of it. The author we have just quoted, describes
very clearly and naturally the reluctance with which self-interest
forced its way between the Highland landowners and their humanity,
“For a few years after the power of the chieftains was broken, the
influence of old habits seems to have prevailed, and it was some
time before any change took place; but by degrees the proprietors
began to exact a rise of rent. Though the first demands of the kind
were extremely moderate, the rents being still below the real value
of the land, yet the circumstance was so unprecedented that great
dissatisfaction ensued, and the removal of some of the tenants who
refused to comply, excited still more indignation. Accustomed to
transmit their possessions from father to son, as if they had been
their property, the people seem to have thought that, as long as
they paid the old and accustomed rent, and performed their usual
services, their possessions were their own by legal right. The
discontents that arose from these causes were for a time but
partial; for the progress of raising rents was slow. The gentlemen
who had been educated amidst the habits of the feudal times, could
not at once relinquish all the sentiments of their youth. The
attachment of their people was of so flattering a nature, that it
was often preferred to pecuniary advantages; and little alteration
seems to have been made till the generation of old proprietors was
extinct. Gradually, however, men educated under different
circumstances came forward, and feeling more remotely the influence
of ancient connexions with their dependants, were not inclined to
sacrifice for a shadow the substantial advantage of a productive
property. The more necessitous, or the less generous, set the
example; and one gradually followed another, till at length all
scruple seems to be removed, and the proprietors in the Highlands
have no more hesitation than in any other part of the kingdom, in
turning their estates to the best advantage.”
At length came the great Sutherland clearings, when people, as many
as might make the population of a secondary German state — people
who believed that they had as good a right to their cottages and
paddocks as their chief had to his castle and forests—were driven
from their homes by an armed force. It is a deep scandal to our
legal institutions that such a thing should have been. So long as
history is written minutely enough to chronicle such transactions,
this one will ever be marked as a barbarous adaptation of the law of
one people to do injustice to another. The cry of tyranny raised by
the ignorant sufferers has received an echo in the far south; and
one of the first historians and philosophers of his day, has
dedicated a great portion of a work likely to live for ages, to an
exposure of the injustice of the Sutherland clearings. M. Simonde de
Sismondi, having entered, on politico-economical grounds, on the
question of the proper adjustment of the rights of customary holders
and tenants, has paid this country the compliment of devoting a
whole essay to our Highland clearings as a signal instance of
outrage on all the principles that ought to rule in the adjustment
of such mutual rights. It is shown that throughout all Europe there
are rights of occupancy founded on immemorial custom, like those of
the Highland tenants, but which, unlike the treatment which they
have received from the free government and the uequal laws” of this
happy country, have been respected by the despotic governments of
Germany and Italy. Indeed, as it has been very justly observed by
The Westminster Review, the rights of the Ross-shire tenants were of
the same character with those of the English copyholden; but, alas!
the difference between the position of the poor Celt and that of the
English yeoman waa great indeed! For the latter the laws were
created, — they were framed out of the ancient customs on which his
tenure was founded. The Celt, overlooked as a member of the body
politic, too insignificant in his rights to be regarded since he had
ceased to be unpleasantly conspicuous as a fighter, had to submit to
the arbitrary operation of laws made for other races of men and
different social habits.
It has always been maintained by the defenders of these clearings,
that they were conducted with signal humanity. The proprietor, being
entitled to do what he liked with his own, said he liked to treat
his own well, and wondered how his own were not thankful for so much
kindness. On this the adopted commodity was so ungrateful as to
repudiate the claim of ownership. The vassals denied that their
leader was absolute owner of their holdings, and could not see any
thing to praise in those relaxations which were to them, at best,
only not carrying out injustice and cruelty to the full extent to
which the tyrant possessed the power of persecuting them. And M.
Sismondi shows that, had they been in almost any other part of
Europe, the law would have been in favour of these poor people.
There is a vindication of these Highland clearings which demands our
attention before we have done with them. It has been said, that they
are very profitable to the community, and that the pecuniary
advantage which the landlords have reaped has been occasioned by a
change, by which enlightened and industrious capitalists have
displaced hordes of semi-barbarians, serviceable only for war and
depredation—a burden on a well-ordered community. We admit that the
sheep-farming system has been advantageous to the community at
large, as well as a great gain to the Highland landlords; and that
Europe cannot produce a more admirable illustration of the
beneficial effect of an enlightened system of agriculture than the
farm-steadings of Sutherland afford, when compared with such
Highland huts as are to be seen in other places, models no doubt of
those which the Sutherland estates would have exhibited if the
clearings had not been made. A system of husbandry which produces
much, in place of one which produces little, is the same kind of
gain to the community that a railway is when it displaces a line of
rickety coaches on a turnpike road. The simile has a farther and
deeper application. When the directors of a railway make up their
minds that their line Bhall pass through certain proprietors
grounds, the law does not allow them to go to a proprietor and tell
him that as their project is very much for the benefit of the
community, they intend to cut away a portion of his lands for the
use of the railway, without giving him any compensation. On the same
principle, the Highland proprietors ought not to hare been allowed
to clear their estates without giving compensation to those whose
interest in the land was by the custom of the country as well
established as their own. In what manner it may be just to deal with
rights which probably are of a somewhat similar character in
Ireland, we cannot pretend to say. We have not sufficiently studied
that great subject. On the Highland tenures, however, we are bound
to say, that though we think a system of adjustment of rights ought
to have been adopted before the clearings commenced, we think it
would now be too late. Fteri non debuit—Factum valeat. Those who had
the principal interest at stake have suffered the injustice, and are
under the sod, or are passing the latter years of their age, whether
in prosperity or adversity, in distant lands. A race has grown up
who are to a certain extent aware of the precarious character of
their tenures, though they may not be brought up with the best
notions of the means of making a livelihood in places distant from
their original homes. We fear that the only remedy for the remaining
evil—the inflammation remaining after the amputation — is a
stringent application of the poor law ; compelling Highland
proprietors to provide for the surplus population reared by them,
when they endeavour to get large rents by increasing the number of
small holdings, and for the people who are rendered homeless by
their clearings. We fear that that blundering and
purposely-incomplete measure, the Scottish Poor Law Act, has not
strength for carrying out this principle.
It has been well observed by The Westminster Review, that the powers
which have been exercised in the Highland clearings are powers which
a despotic monarch is never known to possess. This is one of the
evils arising out of the indiscriminate application of the laws of
property. When the laws made for a populous and highly-cultivated
district, where land and its occupancy are matters of regular
traffic, are transferred and made applicable to wide, thinly-peopled
tracts, occupied by poor, half-civilized people; instead of
conveying to them the benefits of equal laws and protection to their
rights, these laws inflict upon them the scourge of an arbitrary
govemment, fortified in its operations by all the array of power
that has been established for the purpose of enforcing, in the place
from which the system has been taken, just proprietary rights. We
shall give some illustrations of this.
A monarch, however despotic, must still be, to a certain extent, the
representative of the will of his people. It is as the embodiment of
the accumulated strength of the community that he acts on
individuals. He may be able to hang, imprison, or expel from his
territory, any small number of persons who have displeased him : but
he cannot put to death the whole or nine-tenths of his people ; nor
can he expel them from the country, as the Highland landlords did.
Whatever acts he performs against one portion of his people, must be
through the instrumentality of the other. And herein consists the
difference between sovereignty and proprietary right, that the
latter is not left to the enforcement of those that are subject to
it, but, in such a country as ours, demands the whole concentrated
power of the incorporated states of which the British Empire
consists. A monarch cannot set his face against the prevalent
religion of his people. Indeed, he must generally be a votary of it,
and must confine his intolerance, if he be intolerant, to some small
minority, whom the majority helps him to persecute. What monarch of
a small kingdom was ever able to prohibit the whole of his people
from having a place of worship within his territory? Yet this is
what the great Highland proprietors are able to do, through the
misapplication, to their case, of that right of property, which
declares that a man is not bound to allow his land to be used for
purposes he dislikes. The rule is perhaps a sound one in Middlesex
and Midlothian. There, in the multiplication of proprietary rights,
the abundance of wealth, and the diversity of religious opinions, it
will be strange indeed if any sect cannot get itself acccommodated.
It may be driven from one place, because the neighbours do not like
an organ; from another, because the plan of the church is not in
conformity with the architecture of neighbouring houses; or from
another, because the spot is part of a pleasure ground: but
somewhere or other, in return for their money, the congregation will
be allowed to worship God according to their conscience; and the
worst that befals them is, that some neighbour in his spite builds a
wall as near as he can to the spot to shut out the light, or the
pious children of the neighbourhood, hearing how the sect are spoken
of by their parents, break the windows. The owner of Highland
estates, issuing his mandates from Piccadilly or Grosvenor Square,
about a people of whose habits and opinions he knows no more than he
does of the Caffres, finds that the Free Church is a church he does
not like, and refuses a site as unhesitatingly as if he had been
asked to give a piece of his pretty lawn at Kingston for a
synagogue—the Jews being also a people whom, he does not like. When
proprietors are compelled to give the lands which they cultivate,
and the pleasure grounds which are the object of their enjoyment,
because the public demands them for railways, it were surely not a
very tyrannical law which should compel the proprietor to give up a
few roods of ground on some desolate wild which he does not
cultivate, and never sees, in order that a whole territory, as large
as those German states from which we take our royal consorts, may
not be able to lift their voice and say that they are denied the use
of the barren surface of the earth for the celebration of the rites
of that religion to which they all belong.
The rules of absolute proprietorship, now so much indulged in, being
quite inimical to the old territorial notions in the Highlands,
their full effect has only developed itself gradually. The idea, for
instance, of treating his waste districts of country as an English
proprietor would his lawn and gravel walks, and attempting to
preclude access to them, never would have occurred to a Highland
chief in his most despotic moments. An English duke, however, having
become the tenant of the wild mountain district at the head of the
Dee, deeming that he can conduct his field sports with more success
and more satisfaction to himself if the wild waste which calls him
occupant be surrounded by a legal cordon excluding it from intrusive
footsteps as securely as if it were a walled garden, has made a new
law for himself, and instructed his keepers to stop people who are
found crossing this wilderness. The glen principally watched is the
Glen Lui Beg, the natural passage towards Ben Muich Dhui, the centre
of the Cairngorm range, the highest mountain in Britain, and for
abundance of summer snow, precipices, and cataracts, the most worthy
of a visit. As the interruption of the passenger over uncultivated
and unfenced wilds, is a new thing in Scotland, it has not yet
received the sanction of any law, and till it has done so, must be
held illegal. If any bill, perhaps in the form of an act, “to
interpret” some game act, should be brought in to extend the law of
trespass to such new exigencies, we hope the public will be on their
guard to defeat it.
A neighbouring Scottish proprietor, the Duke of Athole, following so
comfortable an example, has lately attempted to prohibit, in the
same manner, the passage through Glen Tilt, the ancient thoroughfare
between the basin of the Tay and that of the Dee. The English duke’s
hint must be very valuable to the Athole family, who previously had
followed the understood rule in Scotland, that to keep a place
sacred from intrusion, it must, if not cultivated, be at least
fenced in. The visiter of the falls of the Bruar is preceded by the
keeper thereof with a key, who having first received the proper fee,
or satisfied himself that the visiter is good for the amount, opens
and admits. We quarrel not with his grace for the price he charges
for a walk in his pleasure grounds, or for the vigilance with which
his agrarian police take care that those who attend the church
within the old cathedral on Sundays, shall not filch a gratuitous
glance of the exhibition. His grace has as good a right to be a
showman as the lessee of Vauxhall; but, giving him full license to
do what he likes with his own, it does not follow that he is to do
what he likes with that which belongs to the public; and the right
of passage through Glen Tilt belongs to the public, if the free use
for centuries, of the only road which leads from one district to
another without going thirty miles round, can be secured to the
public in Scotland by being used for centuries.
We do not believe that the Highland landlords in general will be
inclined to adopt measures so utterly irreconcilable with the old
habits of the people; but there is much fear that English gold may
buy up this tempting privilege of exclusion, if it can be legally
exercised, and that the proprietors may say, “Thou canst not say I
did it.” Some remarks on the closing of Glen Lui Beg having appeared
in The Examiner, were answered by the Don Quixote of the game laws,
Mr. Grantley Berkeley. He, being an honest enthusiast, to adopt any
sophism, but exhibits
the project in its most offensive shape. He says, “The writer in The
Examiner perhaps is not aware that the breath of a single
sight-seeing individual up-wind of the deer, is enough to drive the
whole forest side, and to render impossible any sport to the
proprietor and his friends, for that or for days to come, so wary
and peculiar is the nature of the animal far which we peg." The
philosophy of this is, that the absolute solitude of the district
being necessary for the sport in which a rich man delights, he must
be entitled to it by paying for it. This sentiment was edioed by a
letter signed “Leather Stocking,” in The Aberdeen Herald, evidently
written by no mere impartial spectator. He tells us that “one man on
a sky line, or before the wind, on a mountain or in & glen, will put
every deer away for miles; a single herd moving will alarm others,
so that a small district may be swept clean by one reckless or
incautious traveller.” We beg attention to the wide terms of
measurement applied here to the tracts of country that on this
system must be kept clear of even one man. This writer gives a case
of hardship, which we shall do him the service of repeating. “I
remember last year a gentleman coolly walking down Glen Tilt, and
driving every deer out of it, when Lord Glenlyon was endeavouring to
show sport to his friends. The traveller intended no harm, yet he
did irreparable mischief; and this, had he given notice, or applied
beforehand, might have been avoided,” i. e. of course, had he
applied, to be refused. In one of Hood’s tales some one speaks of ‘a
impudent fellow, a standing up for his rights/ The person who
exercised his right of walking along this public thoroughfare
contrary to the will of Lord Glenlyon, must have been of the class
so described. The writer we have just quoted tells us that the Duke
of Leeds pays £1400 a-year for his glens. This is the formidable
feature of the affair. It shows what sums the Highland lairds may
obtain for their wastes, provided they can give them the character
of unapproachableness. A few rich English lessees may, by
judiciously blocking up He passes as the Highlanders did of old,
shut up the whole of our mountain ranges from intrusion. It is true
they must have a new law to put this new restriction on the liberty
of the people. But such restrictions have occasionally been created
when they were required to serve very worthy and beneficial
purposes. The law of copyright is a restriction for the benefit of
literature; the law of patents is a restriction for the
encouragement of invention. It remains to be seen whether
deer-stalking be considered a pursuit » ennobling, and so valuable
to the community that a new restriction on personal freedom, not
need by graziers and others who rear the ordinary food of man shall
be made for its special encouragement and protection. |