Constitution and Laws of the Highlanders – Clanship – Law of Succession – Law of Marriage and Gradation of Ranks.

THE interest, which the Gaelic population in Scotland has always excited, is to be attributed in a great measure to the peculiarity of their character and of their manners. Situated in the heart of civilization, and of continued improvement in the form of society, they have for centuries exhibited the strange contrast of a mountain people retaining their habits of predatory warfare and pastoral occupation with singular tenacity, in spite of the advancement of society around them; while speaking a peculiar language, and wearing a peculiar dress, they possessed in a very great degree the imaginative character and rude virtues of a simple and uncultivated race. In a work so limited as the present, it would be impossible to present anything like a complete view of a subject of this nature, and as the great object of the writer throughout has been to give a correct and authentic, and consequently a concise, detail of the history of this singular nation, although perhaps at the expense of the amenity of his style, and in opposition to the prejudices of his countrymen, he will, in the following remarks, convey merely a short sketch of the principal peculiarities of their manners, substituting a true picture, derived from the most authentic facts which can still be collected, in place of the loose declamation which that subject has hitherto in general called forth

      In treating of this matter it will be necessary, for the sake of perspicuity, to consider it under three different branches; the first comprehending their government, laws, and distinction of ranks, the second relating to everything connected with their religion, superstitions, and music, and the last branch consisting of their domestic manners, by which may be understood their ordinary mode of life, their dress, arms & c.

      The great peculiarity which distinguishes the form of government and society among the nations of Celtic origin from that of all other European nations is certainly the existence among these tribes of what is generally termed the patriarchal system of government; and this system had one remarkable property, that it occasionally exhibited features to all appearance identic with the feudal and other forms of society, although in point of fact these apparently similar features were produced by very different causes, and were based on very different principles. Thus, although most of the great nations which formed the original inhabitants of Europe were divided into a number of tribes acknowledging the rule of an hereditary chief, and thus exhibiting an apparently similar constitution, yet it was community of origin which constituted the simple tie that united the Celtic tribe with its chief, while the tribes of the Goths and other European nations were associated together for the purposes of mutual protection or convenience alone; the Celtic chief was the hereditary lord of all who were descended of the same stock with himself, while the Gothic baron was the hereditary proprietor of a certain tract of land, and thence entitled to the service and obedience of all who dwelt upon that land.

      In no Celtic nation in which the patriarchal system has remained is this property of that system so very remarkable as the case of the Highlanders of Scotland. In some instances their system of government has exhibited features so nearly allied to the feudal as even to have led many to assert that that system has at all times existed among them, while in other instances their constitution and laws are altogether opposed to the principles of the feudal law. As an example of this apparent similarity we may mention the system of clanship, which has not unfrequently been mistaken for a modification of the feudal jurisdiction, while nothing can exhibit a stronger opposition than the laws of succession and marriage according to the two systems. The natural consequence of this has been, that in the former instance the feudal law was introduced into the Highlands with so little difficulty that at a very early period we find instances of lands in the Highlands being held by a feudal tenure, and the chiefs exercising a feudal jurisdiction; while in the latter, the struggle between the two systems was long and doubtful. Many years have not passed since the feudal law of succession and marriage came into general use in the Highlands, and to this source may be traced most of the controversies which have arisen among many of the Highland families regarding succession and chieftainship.

      The system of clanship in the Highlands, though possessing this apparent resemblance, was in principle very different indeed from the feudal system as observed in the rest of the country. In the one case, the people followed their chief as the head of their race, and the representative of the common ancestor of the whole clan; in the other, they obeyed their leader as feudal proprietor of the lands to which they were attached, and for their portion of which they were bound to render military service. In the one, the Highland chief was the hereditary lord of all who belonged to his clan, wherever they dwelt or whatever lands they possessed; in the other, the feudal baron was entitled to the military service of all who held lands under him, of whatever race they might individually be. The one dignity, in fact, was personal, while the other was territorial; yet these two systems, si different in principle, were still in appearance and effect almost identic. Both systems exhibited the appearance of a subject in possession of unlimited power within his territories, and exacting unqualified obedience from a numerous band of followers, over whom they held a power of life and death, and whose defection they could resist with fire and sword. Both were calculated to raise the power of the turbulent chiefs and nobles of the period, and to diminish that of the crown – to retard the operations of justice throughout the country, and to impede the progress of improvement. The one system was peculiarly adapted to a people in the hunting and pastoral state of society – to a people the nature of whose country prevented the adoption of any other mode of life, and whose manners must consequently remain the same, however much their mental state might be susceptible of improvement. The other system was necessary to a population occupying a fertile country, possessing but a rude notion of agriculture, and obliged to defend their possessions from aggression on all sides. But neither of the two were at all compatible with a nation in a state of civilization, where the liberty of the subject required protection, and the security of property an equal administration of 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 circumstances, 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 branches, who were not brought into direct contact with the government until a very late period. The peculiarities of the Highland clan are nowhere better described than in the letters from an officer of Engineers to his friend in London, written about the year 1730; and his remarks are peculiarly valuable, as being the observations of a stranger; so that I cannot omit quoting the passage.

      “The Highlanders are divided into tribes or clans, under chiefs or chieftains, and each clan again divided into branches from the main stock, who have chieftains over them. These are subdivided into smaller branches of fifty or sixty men, who deduce their original from their particular chieftains, and rely upon them as their more immediate protectors and defenders. The ordinary Highlanders esteem it the most sublime degree of virtue to love their chief and pay him a blind obedience, although it be in opposition to the government. Next to this love of their chief is that of the particular branch from whence they sprang; and in a third degree, to those of the whole clan or name, whom they will assist, right or wrong, against those of any other tribe with which they are at variance. They likewise owe goodwill to such clans as they esteem to be their particular well-wishers. And, lastly, they have an adherence one to another as Highlanders in opposition to the people of the low country, whom they despise as inferior to them in courage, and believe they have a right to plunder them whenever it is in their power. This last arises from a tradition that the Lowlands in old times were the possessions of their ancestors.

      “The chief exercises an arbitrary authority over his vassals, determines all differences and disputes that happen among them, and levies taxes upon extraordinary occasions, such as the marriage of a daughter, building a house, or some pretence for his support or the honour of the name; and if anyone 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 0patriarchs or fathers of the families, for they hold the same authority when they have lost their estates. On the other hand, the chief, even against the laws, is to protect his followers, as they are sometimes called, be they never so criminal. He is their leader in clan quarrels, must free the necessitous from their arrears of rent, and maintain such who by accidents are fallen to total decay. Some of the chiefs have not only personal dislikes and enmity to each other, but there are also hereditary feuds between clan and clan which have been handed down from one generation to another for several ages. These quarrels descend to the meanest vassals, and thus sometimes an innocent person suffers for crimes committed by his tribe at a vast distance of time before his being began.”

      To this concise and admirable description, it is unnecessary to add anything farther.

      In no instance, perhaps, is the difference between the Highland and the feudal laws, both in principle and in appearance, so very remarkable as in the law of succession. This subject has been hitherto very much misunderstood, which has produced a degree of vagueness and uncertainty in all that has hitherto been written on the history of the Highland clans, although it is of the greatest consequence for that history, that a correct idea should be entertained of the precise nature of the Highland law of succession, as well as of the distinction between that law and the feudal. It has generally been held, that the law of succession in the Highlands was the same with the feudal, and whenever supposed anomalies have been perceived in their succession, it has at once been assumed, that, in these cases, the proper rule had been departed from, and that the succession of their chiefs was in some degree elective. We frequently find it asserted, “that ideas of succession were so loose in the Highlands that brothers were often preferred to grandsons and even to sons.” But nothing can be more erroneous than this opinion, or more inconsistent with the character of the Highlanders than to suppose that they ever, in any degree, admitted of election. For an attentive examination of the succession of their chiefs when influenced by the feudal law will show, that they adhered strictly to a system of hereditary succession, although that system was very different from the feudal one. The Highland law of succession requires to be considered in reference to two subjects: – first, as to the succession to the chiefship and to the superiority of the lands belonging to the clan; and secondly, as to succession to property or to the land itself. The former is generally termed the law of Tanistry, and the latter that of Gavel. The first of these is the most important to be ascertained, for when the feudal law was introduced, it became in fact the succession to the property also, while the last was too much opposed to feudal principles to be allowed to exist at all, even in a modified state. The oldest and most complete specimen of the Highland law of Tanistry which remains, is to be found in the case of the succession of the Maormors of Moray, and the peculiarities of this system will appear from a consideration of the history of that family. In the first place, the Highlanders adhered strictly to succession in the male line, which is proved by the fact, that although Malcolm, Maormor of Moray, and afterwards King of Scotland, had a daughter who was married to Sigurd, Earl of Orkney, and Thorfinn, Earl of Orkney, Sigurd’s son, was consequently his feudal representative, yet he was succeeded in his possessions by his brother Gillcomgain. In the second place, the great peculiarity which distinguished the Highland from the feudal laws of succession was that, in the former, the brothers invariably succeeded before the sons. This arose partly from an anxiety to avoid minorities in a nation dependent upon a competent leader in war, but principally from the difference in principle between the two systems. In the feudal system it was succession to property, and the nearest relation to the last feudal proprietor was naturally considered feudal heir, while in the Highland system, on the other hand, it was succession to the right of chiefship, derived from being the lineal descendant of the founder of the tribe, and thus it was the relation to the common ancestor through whom the right was derived, and not to the last chief, which regulated the succession; the brother being considered as one degree nearer to the original founder of the race than the son. [The principle upon which the Tanistic succession is founded was recognised as the old law of succession in Scotland as early as the competition between Bruce and Baliol for the crown; – Bruce’s third pleading was “that the manner of succession to the kingdom of Scotland in former times made for his claim, for that the brother, as being nearest in degree (ratione proximitatis in gradu), was wont to be preferred to the son of the deceased king. Thus, when Kenneth M’Alpine died, his brother Donald was preferred to his son Constantine; thus, when Constantine died, his brother Edh was preferred to his son Donald; and thus the brother of Malcolm III. reigned after him to the exclusion of the son of Malcolm III.” Baliol answered, “That if the brother was preferred to the son of the king the example proved against Bruce, for that the son, not the brother, was the nearest in degree.” Hailes adds the following just remark: – “Here Baliol attempted to answer Bruce’s argument without understanding it. Bruce supposed an ancestor to be the common stock, and the degrees to be the persons descending from that stock. Hence the king’s brother stood in one degree nearer the common stock than the king’s son.”

      An attentive examination of the most ancient and purest instances of Highland succession, will sufficiently show, that the brothers of the chief invariably succeeded before the sons, as a right, and according to a fixed rule, and not, as has been generally supposed, that the succession of a brother before a son was any departure from the established rule of succession or produced by a species of election. This is in no case so strikingly exemplified as in the succession of the Maormors of Moray: Maolbride, the first known Maormor, is succeeded by his brother Finlay, Finlay by Malcolm, son of Maolbride, and Malcolm by his brother Gillcomgain. But further, in the third place, the Highland law of Tanistry had still another peculiarity, which was this, that if the person who ought to succeed was under age, his nearest make relation succeeded and retained the chiefship during his life, although the proper heir had in the meantime attained majority. This will appear from a curious passage in a chronicle of considerable antiquity, which informs us, that there was an ancient law by which “in cases that the children of the deceissand suld not have passit the aige of fourteen ziers, that he of the blude wha wes nerrest, beand worthie and capable, suld be elected to reign dureing his lyffe, without prejudice of the richteous heretouris whan they atteinit the parfite aige.” From this passage we learn, that fourteen was the ancient Highland period of majority, and that if the lawful heir had not attained that age, then the nearest relation succeeded for the period of his life, after which it returned to the proper heir. This remarkable property was also illustrated in the succession of the Maormors of Moray; for although Gillcomgain has a son Lulach, he is succeeded by Macbeth, the son of his uncle Finlay, and therefore his nearest heir failing his own son, and after Macbeth’s death Lulach succeeded him.

      Every instance of Highland succession which has hitherto been thought to have proceeded from loose ideas on this subject, will be found upon examination to accord with this system; and it is manifest that the law of Tanistry, although opposed in a remarkable degree to the feudal notions of later days, yet proceeds naturally from the principles of the patriarchal constitution of society, and was in fact peculiarly adapted to a people whose habits of warfare required at all times a competent chief to lead them. But if the law of Tanistry was opposed to the principles of the feudal system, still more so was the law of Gavel, or the succession to property among the Highlanders. The feudal law implied the right of the eldest son not only to the superiority over the rest of the family, but also to the whole of the property itself, and the younger branches were driven to seek advancement in war or in other courses of life. In the Highlands it was quite different, for there the property of the clan was by the law of Gavel divided in certain proportions among the whole of the male branches of the family, while females were altogether excluded from succession either to chiefship or to property.

      What the exact proportions were into which the property was divided, it is impossible to ascertain, but it would appear that the principal seat of the family, together with a certain extent of property around it, was not included in the division and always remained the property of the chief of the clan for the time. The chief, besides this, retained a sort of right of superiority over the whole possessions of the clan, and received from each of the dependent branches a proportion of the produce of the land as an acknowledgment of chiefship, as well as for the purpose of enabling him to support the dignity of his station and the hospitality which he was called upon to exercise.

      Although this system is so adverse to feudal principles, it is nevertheless clear that it was the only one which could exist among a people in the condition that the Highlanders were, and that it was in fact produced by the state of society among therm; for when there was no other means of subsistence or pursuits open to the branches of the families during peace, except those derived from the pasturage of the country, and during war that of following their chief, whose interest it accordingly became to retain upon the property as great a number of men as possible, and to secure the obedience of as large a clan as he could, it naturally followed that a division of the property among them was expedient, as well as that the patriarchal right of government and chiefship should descend to the lawful heir alone. A system so directly opposed to feudal principles as this could not maintain its existence in the Highlands under any modification, but still it was a system so well adapted to the Highland constitution of society, that it was only after a long struggle that it was finally given up, and even at a comparatively late period instances of its operation among them may be observed.

      The most remarkable instance of this system, perhaps, appears in the history of the Macdonald. Sommerled divided his immense possessions among his three sons. Another division took place by Reginald, his eldest son, among his three sons. And again, in the fourteenth century, by John, Lord of the Isles, who had obtained nearly the whole of the territories which had belonged to his ancestor Sommerled, among his seven sons; and finally, as late as the fifteenth century, we find the possessions of his eldest son Reginald, the founder of the clan Ranald, divided among his five sons. One effect produced by this system was, that the branch of the family which had been longest separated from the main sten, in technical language the eldest cadet, became the most powerful family of the clan next to the chief, and in many cases much more powerful than even the family of the chief itself, in direct opposition to the results produced when the feudal system prevailed, in which case the youngest cadet, or the family nearest to the main stem, was of most consideration; and this difference between the two systems produced, as we shall afterwards see, a very remarkable result.

      It has been not unfrequently remarked in the Highland succession, that a bastard son is often found in the undisturbed possession of the chiefship or property of a clan; and that in general when a feud has arisen from this cause between the bastard and the feudal heir, the bastard has the support of a great part of the clan. This, as might be expected, has hitherto been attributed to loose ideas of succession among the Highlanders, or to the influence of some principle of election; but when we consider how very inflexible the notions of the Highlanders were in matters of hereditary right, it would seem a more probably supposition that the Highland law of marriage was originally very different from the feudal, and that a person who was feudally a bastard might in their view be considered legitimate, and therefore entitled to be supported in accordance with their strict ideas of hereditary right and their habitual tenacity of whatever belonged to their ancient usages. There is accordingly a singular custom regarding marriage retained to a very late period among the Highlanders, which would seem to infer that their original law of marriage was different from that of the feudal. This custom was termed handfasting, and consisted in a species of contract between two chiefs, by which it was agreed that the heir of the one should live with the daughter of the other as her husband for twelve months and a day. If in that time the lady became a mother, or proved to be with child, the marriage became good in law, even although no priest had performed the marriage ceremony in due form; but should there not have occurred any appearance of issue, the contract was considered at an end, and each party was at liberty to marry or handfast with any other. It is manifest that the practice of so peculiar species of marriage must have been in terms of the original law among the Highlanders, otherwise it would be difficult to conceive how such a custom could have originated; and it is in fact one which seems naturally to have arisen from the form of their society, which rendered it a matter of such vital importance to secure the lineal succession of their chiefs. It is perhaps not improbably that it was this peculiar custom which gave rise to the report handed down by the Roman and other historians, that the ancient inhabitants of Great Britain had their wives in common, or that it was the foundation of that law in Scotland by which natural children became legitimized by subsequent marriage; and as this custom remained in the Highlands until a very late period, the sanction of ancient custom was sufficient to induce them to persist in regarding the offspring of such marriages as legitimate. [As late as the sixteenth century the issue of a handfast marriage claimed the earldom of Sutherland, Alexander Sutherland claimed the earldom “as one lawfullie descended from his father Earle John the third; becaus, as he alleged, his mother was handfasted and financed to his father;” and his claim was bought off by Sir Adam Gordon, who had married Earl John’s heiress. – Sir Robert Gordon.] It naturally followed that when the feudal law was introduced, it came, in this point, to be directly opposed to the Highland law, and must have frequently occasioned the lineal and legitimate heir, according to Highland principles, to be looked upon as a bastard by the government, and according to their rules as incapable of succeeding; and thus arose many of those disputes about succession and chiefship which embroiled so many families with each other and with the government. But is must always be kept in mind that the Highlanders themselves drew a very strong distinction between bastard sons and the issue of these handfast unions, whom they considered legitimate, and that they rigorously excluded from succession of any sort the illegitimate offspring.

      Having thus given a short view of the principal peculiarities which distinguished the constitution and laws of the Highlanders from those of other nations, it becomes proper that we should in some degree complete the sketch by a cursory examination of the gradation of ranks which appears to have existed among them, and these we must, in the same manner as the laws of succession, regard in two points of view; first, in reference to their relation to property or the land of which they were proprietors, and second, in relation to the clan of which they were members.

      With respect to the first point of view, the Highland system appears to have borne a close resemblance to the Welsh and Irish customs. According to the Welsh authorities there were three several tenures of land and nine degrees of rank. The first tenure was termed Maerdir, from Maer, the same as the Gaelic Maor, and signifying correctly any person that has jurisdiction. The Welsh had three degrees of rank under this tenure, the Brenin or king, the Twysog or duke, and the Jarl or earl. By the Irish these were all termed Righ or king. The second tenure was the Uchelordir or dominium, and consisted likewise of three degrees, the Arglwd or lord, the Barwn, and the Brier or squire. The same degrees were known to the Irish by the name of the Tighern, Nemed, and Flath. The third and last tenure was termed by the Welsh Priodordir, from priodor, signifying native, and included all whom we would now call tenants. Of these there were three degrees, the Gwreange or yeoman, the Alltud or labourer, and the Kaeth or slave. The Irish had likewise three degrees, and termed them severally Fuidir, Biadhtach, and Mogh. The oldest account of the degrees of rank among the Highlanders is contained in a description given by an old sennachy of the government of the Isles under their Celtic lords, where we should expect to find the ancient usages of the Highlanders preserved with greater care. “The constitution or government of the Isles,” says he, “was thus: Macdonald had his council at Island Finlaggan, in Isla, to the number os sixteen, – viz., four thanes, four armins (that is to say, freemen, lords, or sub-thanes), four bastards (i.e., squires or men of competent estates who could not come up with armins or thanes, that is, freeholders), four ... or men that had their lands in factory, as Macghee, of the Rhinds of Isla; Macnicoll, in Portree, in Skye; and Maceachern and Macgillevray, in Mull; Macillemhaol or Macmillan, &c. There was a table of stone where the council sat in the Isle of Finlaggan; the which table, with the stone on which Macdonald sat, was carried away by Argyll, with the bells that were at Icolmkill. Moreover, there was a judge in every isle for the discussion of all controversies, who had lands from Macdonald for their trouble, and likewise the eleventh part of every action decided; but there might still be an appeal to the council of the Isles. Macfinnon was obliged to see weights and measures adjusted, and Macduffie or Macphie, of Colonsay, kept the records of the Isles.”

      In this account it is plain that the Highland system was almost the same with the Welsh and Irish. The first tenure consisted, with them, of the Ard Righ, Righ and Maormor, of which latter the lord of the Isles was no unworthy representation. The Tighern or Thane, the Armin and the Squire were the same with the three Welsh degrees included under the Uchilordir, while the Highlanders had an order termed native men, clearly equivalent to the Priodordir of the Welsh. These native men, however, were just the tenants or farmers on the property, for Martin, in his admirable picture of the ancient customs of the Western Isles, says, that the peculiar acknowledgment made by the tenants to the chief of their clan was the calpe. “There was another duty payable by all the tenants to their chief, though they did not live upon his lands, and this is called Calpich; there was a standing law for it also called Calpich law, and I am informed that this is exacted by some in the mainland to this day.” And this is confirmed by Skene, who mentions in his work De Verborum Significatione, that Herezeld and Calpe were two duties paid by the tenant of more than the eighth of a davach to his landlord or chief. Now, we find this was likewise the peculiar acknowledgment of chiefship incumbent upon the native men, for in the bonds of Manrent which exist between native men and their chief, we find them always giving their bonds of Manrent and “Calpis, as native men ought and could do to their chief,” and that there is always an obligation for the due payment of the Calpe. We must be careful, however, to draw a proper distinction between the nativi or native men of Highland properties, and the servi fugitivi or Cumerlach, the latter of which were slaves, and the same as the Welsh Kaeth. These have all been hitherto most improperly confounded, and it has been assumed, that they were equally ascribed to the soil, but this was far from being the case. In all old charters they are carefully distinguished. The servi or fugitivi were absolute slaves, and might be bought and sold either with or independent of the land. The nativi were so termed not because they were bound to the soil, but because they could not be removed from it at the will of their lord. It was not a restriction upon their liberty, but a privilege that gave them their peculiar name.

      The native man was the tenant who cultivated the soil, and who possessed, all over Scotland, but especially in the Highlands, a definite and recognized estate in the soil. So long as he performed his services he was not to be removed from his land, nor could the lord exact from him a higher rent or a greater proportion of labour than what was due, and of right accustomed to be given. Their great privilege, therefore was, that they held their farms by an inherent right which was not derived from their lord, and from which he could not remove them. And in this way we find that all old Highland alienations of land included the “Nativis ad dictas terras pertinentibus.” The servi and fugitivi were the cottars and actual labourers of the soil, who were absolute slaves, and possessed no legal rights either of station or property. It is very remarkable, however, that the servi or slaves were confined entirely to the Lowlands of Scotland, not a trace of them being found in the Highlands; and as the existence of slavery of this description invariably points out a conquered people under the domination of another race, it forms a strong argument for the Highlanders being the original inhabitants of the country. Where a clan had retained their original property without addition or diminution, the whole of the families connected with it, from the Tighern to the native man, were unquestionably of the same race, and although the Tighern may have held his lands of the crown as a Norman baron, yet the Gaelic system of tenure would be preserved in his barony in all its purity. When a Norman baron obtained by succession or otherwise a Highland property, the Gaelic nativi remained in actual possession of the soil under him, but at the same time paid their calpes to the natural chief of their clan and followed him to war. When a Highland chief, however, acquired, by the operation of the feudal succession, an additional property which had not been previously in the possession of his clan, he found it possessed by the nativi of another race. If these nativi belonged to another clan which still existed in independence, and if they chose to remain on the property, they did so at the risk of being placed in a perilous situation should a feud arise between the two clans. But if they belonged to no other independent clan, and the stranger chief had acquired the whole possessions of their race, the custom seems to have been for them to give a bond of Manrent to their new lord, by which they bound themselves to follow him as their chief, and make him the customary acknowledgment of the Calpe. They thus became a dependent sept upon a clan of a different race, while they were not considered as forming a part of that clan.

      With respect to the gradation of ranks in relation to the clan of which they were members, besides the righ or king, who, in point of rank and birth was originally on equality with the other chiefs, and merely derived some additional dignity during his life from his station, the highest title of honour among the Highlanders was anciently that of Maormor. The nature of this title has been sufficiently examined in another place, and from all the materials which have come down to us, it is very evident that the Maormors were the patriarchal chiefs of the great tribes into which the Highlanders were formerly divided.

      When the line of the ancient Maormors had gradually fallen before the influence of the feudal system and the introduction of the feudal barons, the clans into which the great tribes were divided appear in independence, and their leaders were known by the name of Ceann Cinne or chief, who was held to represent the common ancestor and founder of the clan, and who derived his dignity from that source. The peculiarities of the Gaelic chief are too well known to require any illustration, it may only be necessary to mention that it was an office possessed strictly by right of blood alone, and that nothing can be more erroneous or more inconsistent with the principles which regulated the form of society among the Highlanders than the opinion, so frequently expressed, that either election or a connexion by marriage could give any person a right to the chiefship who, according to the Highland principle of succession, was not the nearest male heir to that dignity Next to the chief was the Tanist, or person entitled to succeed by the laws of Tanistry, who possessed that title during the life of the chief, and was considered a person of considerable consequence.

      After the family of the chief came the Ceanntighes, or heads of the houses into which the clan was divided, among whom the most powerful was the oldest cadet or Teisich. It naturally followed from the law of Gavel, which produced a constant subdivision of the chief’s estate, until in actual extent of property he not unfrequently came to possess less than any of the other branches of the family, that that branch which had been longest separated from the main stem became the most powerful. In this respect the Highland system exhibits a striking contrast to that of the feudal, and from the earliest period it was the oldest cadet who appears to have enjoyed, next to the chief, the highest dignity in the clan, and the principal post of honour when called into the field. His station was that of leading the van in the march, and in battle to occupy the right of the line when the chief was present; and in the absence of the chief to command the whole clan. Hence in Gaelic he was called Toisich, or the first, for there can be little doubt that the ancient Gaelic title of Toisich was peculiar to the oldest cadet. Dr. Macpherson, who was intimately acquainted with the exact meaning of ancient Gaelic phraseology and usages, says, “Toisich was another title of honour which obtained among the Scot of the middle ages; Spelman imagined that this dignity was the same with that of Thane. But the Highlanders, among whose predecessors the word was once common, distinguished carefully in their language the Teisich from Tanistair or the Tierna. When they enumerate the different classes of their great men agreeably to the language of former times, they make use of these three titles in the same sentence, with a disjunctive particle between them.

      “In Gaelic, Tus, Tes, and Tesich signify the beginning or first part of any thing, and sometimes the front of an army or battle. Hence the name Teshich.” – (p. 185)

      It is remarkable that the signification given to the name Toshich by Dr. Macpherson implies the very post of honour which the oldest cadet always occupied as his peculiar privilege. Another character of the oldest cadet was that of maor or steward, in which his duties were to collect the revenues of the chief. When the feudal customs were introduced into the Highlands, this office became identified with the feudal baron-bailie, and as the feudal law required that there should be a bailie for every barony, it soon ceased to be the peculiar office of any particular branch of the clan. The Gaelic name, however, retained for the office of Tosheadorach, sufficiently indicates that prior to the introduction of feudal customs it was the peculiar privilege of the Tosheach, or oldest cadet; and this is confirmed by every notice of the ancient Gaelic maors or seneschalli which have come down to us.

      There was one remarkable result which followed from the power and consequence of this branch of the family, that when that of the chief, through peculiar circumstances, had become reduced so as not to be able to afford the clan the protection required from him, the clan frequently followed the oldest cadet instead of the chief, as on such occasions he became the most powerful person in the sept, and he thus often for a length of time enjoyed the possession of the dignity, consequence, and privileges of chief, without either possessing a right of blood to that station or acquiring the title of chief. It is plain that while clanship remained in its original and perfect state this could never be the case; but when the introduction of the feudal system had broken in upon the purity of clanship, and the territory of the chief had probably come into the possession of a lowland baron by means of the feudal succession, or the chief had by some unsuccessful opposition to the government brought ruin upon himself, or any other cause which the introduction of the Lowland barons might have occasioned, had rendered him incapable of maintaining his station, the clan naturally sought the protection of the only family able to occupy the position of that of their chief, and accordingly this duty was necessarily sought for at the hands of the oldest cadet. On such occasions he did not assume the title of chief, but was known by that of captain, or leader of the clan.

      As the term captain has generally been held to be synonymous with that of chief, and to import the head of a clan by right of blood as well as by possession, it may be necessary to say a few words regarding the nature of the title. It is plain that this dignity was one called forth by circumstances, and that it was not usual in the Highlands, because it appears to have been altogether unknown until a late period, and then when it did come into use it was principally confined to three of the Highland clans only. These clans were the clan Chattan, clan Cameron, and clan Ranald, and if the title of captain was synonymous with that of chief, it is altogether impossible to conceive that it should have been confined to these clans alone, and that it did not prevail more generally over the Highlands. It is evident that a title, which was not universal among the Highland clans, must have arisen from peculiar circumstances connected with these clans in which it is first found; and when we examine the history of these clans, there can be little doubt that it was simply a person who had from various causes become de facto head of the clan, while the person possessing the hereditary right to that dignity remained either in a subordinate situation, or else for the time disunited from the rest of the clan. To enter minutely into this investigation here would lead to too great length; suffice it therefore to mention, that in each of these clans there is a controversy regarding the chiefship; that the family claiming that rank have in each asserted the family in possession of the captainship to have been merely the oldest cadet, and to have by usurpation or otherwise obtained their situation with the title of captain; and that when we come to the history of these clans, it will be proved that the captains of the clans were originally the oldest cadets, whom various circumstances had placed in that situation. There is one instance, however, which may be mentioned, as it seems to place the fact at once beyond all doubt. The title of captain occurs but once in the family of the Macdonald of Slate, and this single occurrence of this peculiar title is just when the clan Houston was led by the uncle of their chief, then in minority. In 1545, we find Archibald Maconuill captain of the clan Houston, and thus on the only occasion when this clan followed as chief a person who had not the right of blood to that station, he styles himself captain of the clan.

       Next to the Ceanntighes, or heads of houses, followed in rank the Duine Uaisle, or gentry of the clan. These constituted the only gradation subsisting between the chief and the actual body of the clan, forming a sort of link by which they were united. They were all cadets of the house of the clan and could invariably trace their connexion step by step with his family.

      We shall now conclude this short view of the gradation of ranks among the Highlanders by an account of the personal attendants of the chief, which we shall extract from the excellent Letters of an Officer of Engineers in 1716.

      “When a chief goes a journey in the hills, or makes a formal visit to an equal, he is said to be attended by all or most part of the officers following, viz.:--

      “The Henchman.
      “The bard of poet.
      “The bladier or spokesman.
      “The gillemore, bearer of the broadsword.      
      “The gillecasflue, to carry the chief when on foot over the fords.
      “The gille comstraine, to lead the chief home in dangerous passes.
      “The gille trusharnish or baggage-man.
      “The piper, who, being a gentleman, I should have named sooner, and lastly,
      “The piper’s gillie, who carries the bagpipe.
      “There are likewise some gentlemen near of kin who bear him company, and besides, a number of the common sort, who have no particular employment, but follow him only to partake of the cheer.”