In the aftermath of the Jacobite rebellion of 1745, the British Parliament passed a series of legal measures designed to end forever the Jacobite threat to the Hanoverian state. Building on a brutal campaign of “genocidal” terror carried out in the Scottish Highlands after the government victory at Culloden in April 1746, the laws passed by Parliament between 1746 and 1752 serve as an important marker of state power in eighteenth-century Britain.Footnote 1 While older socioeconomic approaches to the post-Culloden legislation generally dismissed government policies as ineffectual, new approaches to the British state have produced a very different interpretation of this period.Footnote 2 Scholars now suggest that the legislation enacted after Culloden was “epoch-making” and that it was both reflective of the immense power of the state and effective in assimilating the Scottish Gàidhealtachd into Anglo-Britain.Footnote 3 The view that the legislation concentrated centralized power, professionalized the administration of the Highlands, swept away traditional autonomy, and laid the groundwork for the subsequent commercialization of Highland society has emerged as a powerful counter-narrative to earlier socioeconomic approaches.Footnote 4 The recent application of colonial frameworks to a Scottish context has also enhanced the assumed importance of state intervention in historic change and elevated the British state in the Gàidhealtachd to the position of a cultural hegemon.Footnote 5
This narrative of state power in the Scottish Highlands requires significant revision. The basis for this reevaluation is an assessment of how laws passed in Parliament were received and implemented in the localities. If it was once assumed that Whig elites at the national and local levels worked together to legislate against perceived threats and social disorder, it is now recognized that responses to parliamentary legislation varied greatly depending on local interests and discretionary power at the margins.Footnote 6 The circumstances of the post-rebellion Highlands were, of course, very different from behind those parliamentary efforts such as the Black Act of 1723 to protect elite property.Footnote 7 Nevertheless, the post-Culloden legislation deserves the same nuanced examination seen in recent scholarship on these aforementioned acts. In analyzing the reception of the laws, it becomes evident that ideological conflict, legal pluralisms, and a reliance on Gaels to implement the laws greatly undermined government schemes. The enforcement of the new laws was particularly problematic in an environment where the bureaucratic mechanisms of the state were inadequate to the task of imposing a new legal order over almost fourteen thousand square miles of rugged territory hundreds of miles from London.
But there is equally no rationale for returning to an earlier socioeconomic interpretation of the post-Culloden legislation as entirely ineffectual. To do so is to miss the importance of legal mechanisms in shaping social roles and imposing patterns on historical development. A focus on the implementation and enforcement of the new laws leads to some startling conclusions about the power of local elites in the Gàidhealtachd. Far from undermining the authority of traditional clan leaders as many of these acts were intended to do, the new laws were co-opted and used to enhance chiefly legal authority at the very time that traditional sources of chiefly legal rights were breaking down under the strain of socioeconomic change. In this way, the state became the unwitting partner of newly invigorated landed authority in the Highlands and Islands in ways that would cast a long shadow over the subsequent history of the Gael. The imposition of the new legal order after 1746 had the potential to either reinforce or to disrupt elite jurisdictions. The stated aim of legal reforms was the latter. The state's weaknesses led to the former.
This approach to the post-Culloden Highlands and Islands is instructive. First, it points to the considerable limitations of the fiscal-military state. John Brewer's revelation that the British state not only matched but surpassed the institutional sophistication and bureaucratic power of its continental rivals changed the way historians thought about fiscal-militarism in Britain.Footnote 8 But this shift has led to an exaggeration of the coherence and effectiveness of post-rebellion pacification and its centrality to change in the Scottish Highlands. In fact, the suppression of Jacobitism took place within a domestic space fraught with division.Footnote 9 Far from revealing the alleged strength of the British state—with its supposed political stability and cultural hegemony—the post-Culloden legislation exposes the profound fissures that existed within the political nation. Investigating how the laws were implemented and enforced recasts the post-Culloden measures as the actions of an early modern state unable to convert ideas into clear policy. Local autonomy endured in the very teeth of the Leviathan.
Second, this approach allows us to consider the relationship between the law and the state in eighteenth-century Britain, particularly in its most northern locale. While ideological conflicts, public opinion, and a tradition of common law constrained the effort of Parliament to legislate, by the mid-eighteenth century there was rising confidence in Parliament's right to enact reform.Footnote 10 Members of Parliament began to argue that parliamentary sovereignty gave the legislature the right to pass laws that infringed upon some of the rights of British subjects if it served the common good.Footnote 11 In creating legislation for Gaelic Scotland, government ministers in London sought to impose state authority and bring the Gàidhealtachd more closely in line with the rest of mainland Britain. But the Act of Union of 1707 protected the integrity of a distinctive legal system in Scotland that the architects of the post-rebellion order were unable to ignore. The result was that, even in the aftermath of a credible threat to the survival of the Whig regime, the subordination of the political order to the pluralities of customs, laws, and institutions in Scotland remained in place. As doubt is cast upon the future of the Union in the contemporary world, it is worth remembering the historical contingency of power and legality in Britain. A legalistic approach to the region allows us to consider more carefully the forces of historical change in the Highlands and Islands and understand far more clearly why state power was enmeshed in the legal specificities of time and place.
This perspective is particularly powerful given that the target of government measures was not so much a definable location but a perceived way of life. In geographical terms, there was no agreed-upon definition of the Highlands in the eighteenth century. Culturally, however, the line between assumed Lowland civility and Highland barbarity—exemplified by the Gaelic language and the social order of clanship—was very clear. As the Whig writer John Home wrote, “Scotland is divided into Highlands and Lowlands: these countries . . . are not separated by firths or rivers . . . the same parish . . . contains parts of both; so that a Highlander and Lowlander . . . hear their neighbours speak a language which they do not understand.”Footnote 12 While most of the British army stationed in Scotland after Culloden was based in urban centers, and while government legislation applied to all Scottish counties north of the River Forth, it was the social order of the Gaelic-speaking parts of Scotland that was the essential target of the post-Culloden measures.Footnote 13 The fact that government policy proved unworkable in spite of a cultural desire to extirpate Gaelic distinctiveness is a necessary reminder of the limitations of state action in the eighteenth century. For this reason, while acknowledging that the post-Culloden laws were aimed at traditional forms of law regardless of whether Gaelic or English was spoken, this article focuses predominately on the Gàidhealtachd where the predominant language was Gaelic.
Legal Ideas and Limitations
The brutal pacification of Gaelic Scotland began immediately following the Jacobite defeat at Culloden. The first victims were the wounded of the rebel army, shot, bayoneted, or burned alive following the battle, along with a host of their camp followers and civilians found on the road between the battlefield and Inverness. By the summer of 1746, violence had touched communities throughout Gaelic Scotland as military patrols—many of them recruited among the loyal clans—seized cattle and destroyed crops in an indiscriminate campaign of starvation, pillage, and terror.Footnote 14 Ethnic hostility—a prominent part of crown policy in the Gàidhealtachd since at least the seventeenth century—did feature in these actions. Figures such as the lord lieutenant of Ireland, Lord Chesterfield, and the Duke of Richmond advocated mass starvation and the wholesale slaughter of Highlanders.Footnote 15
This state-orchestrated terror, horrifying in its intent and unforgivable in its effect, was nevertheless circumscribed by a series of moral reservations and legal concerns. If initial reactions to the victory at Culloden had delighted in the annihilation of so obvious a threat to the established order, it did not take long for some disquiet to emerge in both the corridors of power and in the public sphere.Footnote 16 As early as May 1746, questions were raised about the infrequency of wounds among captured Jacobites—something that seemed to suggest the summary execution of wounded prisoners. The actions of the army in Gaelic Scotland were deemed “outrages” even by the standards of contemporary warfare.Footnote 17 Those who had favored a policy of mass starvation in 1746 had within the year concluded that this would prove counterproductive and issued directives for the military to assist in the distribution of meal to starving localities.Footnote 18 Whether officials and the British public felt any significant moral qualms about the effect of pacification on innocent Gaels is debatable; it is likely that the concern was with the stability and moral rectitude of the state. But the political nation was hardly united in its attitudes to military policy.
More importantly, there was a desire to return the state from the extra-legal modes used to harry the fleeing Jacobites to what were seen as more legitimate legal modes under the aegis of Parliament. It was largely accepted that the British subject had the right to live under a system of government in which the exercise of power was restricted by established and well-defined laws.Footnote 19 This is not to say that the rule of law was precise or uncontested. It would be inaccurate to suggest that all British subjects had equal rights in both theory and practice. E. P. Thompson famously regarded the rule of law as little more than a means by which the powerful justified their oppressions.Footnote 20 But the principle that the government operated within the rule of law was pervasive in eighteenth-century legal thought. As much as certain figures may have wished to purge the Gael from the political and cultural map of Great Britain, the legal geographies of the British Isles would have required the difficult expedient of denying legal rights to subjects in the Highlands. As the Duke of Newcastle wrote in 1746, “We must consider that they [the Highlanders] are within our island and have the benefit of our laws.”Footnote 21
The idea of the military exercising authority independent from civil justice and the normal channels of the law, even in the context of suppressing an armed insurrection, was disturbing to Whig sensibilities.Footnote 22 The deployment of troops to keep domestic order throughout Britain and Ireland already raised a host of uncomfortable legal and constitutional questions, and violence between civilians and soldiers tended to mobilize—rather than quiet—communities in opposition to the established order.Footnote 23 An officer of the 3rd Foot reported from South Uist that “it ought . . . to be considered that sending troops . . . only rancors [sic] the People.”Footnote 24 While there were efforts to appoint military officials to civil posts in Scotland, no senior Hanoverian after 1746 ever advocated military rule in the Gàidhealtachd.Footnote 25 Pacification of the Highlands and Islands was understood to require the establishment of a legal order that would remove the army from the equation and bring security at the lowest possible political and economic cost.
As government policy shifted from the immediate suppression of Jacobitism to measures designed to prevent future rebellions, the centrality of the law only increased. The first parliamentary acts passed in 1746 and 1747—the Act of Attainder (19 Geo. II, c. 26), which declared certain Jacobites guilty of treason without trial, the Disarming Act (19 Geo. II, c. 39), which sought to disarm Scotland north of the River Forth, and the Vesting Act (20 Geo. II, c. 41), which forfeited estates belonging to some Jacobite leaders—were measures broadly similar to legislation passed in the aftermath of the 1715 Rising. Their aim was to punish the leaders of the rebellion and disarm their followers. The Earl of Hardwicke, who was head of the Council of Regency and the legal mind behind the post-rebellion measures, was charged with constructing the laws, writing soon after the battle of Culloden, “We shall now be proceeding by law.”Footnote 26 The legislation that followed from 1747 to 1752—the Heritable Jurisdictions (Scotland) Act (20 Geo. II, c. 43), which abolished the legal jurisdictions of Scottish heretors, and the Annexing Act (25 Geo. II, c. 41), which placed the aforementioned forfeited estates in the hands of a public commission—sought a more extreme solution by attempting to make fundamental alterations to Highland society.
The reaction of Gaels to these efforts can easily be guessed at. The songs of Jacobites such as Alexander Macdonald were filled with references to that “Pàrlamaid na mì-rùin” (Parliament of malice) that seemed determined to pass punitive legislation regardless of its effects. Rob Donn—whose patron Lord Reay raised men for the Hanoverians—complained that the Hanoverian regime had been “Sparradh oirnne le h-achd e” (Established over us by statute).Footnote 27 Two themes emerge in these responses. First, Gaelic writers were among the quickest to recognize that government policies were not just political but cultural, as Macdonald's friend and fellow Jacobite sympathizer John MacCodrum made clear. MacCodrum hoped that “Chluinn sinn bhith ‘g a dhioladh / Math dh'fhaoidt’ an Lunnuinn” (We shall hear of that being avenged / perhaps in London).Footnote 28 Second, there was an emerging sense of injustice that cut across political affiliation as Gaels came to recognize that their society was the target of attacks regardless of whether they had participated in the rebellion. Rob Donn asked of George II, “’N ann a’ spòrs’ air do dhìlsean / Dèanamh achdachan ùra / Gu bhith dùblachadh ’n daorsa?” (Are you mocking your supporters / Making new laws / To double their bondage?). Such was the hatred that the measures inspired that Donn posited “Gu bheil caraid aig Teàrlach / Ann am Pàrlamaid Shasuinn” (That a friend of Prince Charles is / In the Parliament of England).Footnote 29 Gaelic-speaking Whig writers were thin on the ground, but the indiscriminate targeting of Highlanders was not lost on their most prominent representative. Duncan Ban Macintyre had fought with the Hanoverians at Falkirk but quickly turned on them in response to the post-Culloden acts, writing several critical songs which proclaimed that “bha h-uile h-aon de'n Phàrlamaid / Fallsail le ’m fiosrachadh” [everyone in Parliament / Was wrong with all their learning].Footnote 30
The architects of the new laws, however, remained convinced of their necessity. Hardwicke exemplified Whig faith in the power and social role of the law. The talented son of a Dover attorney, Hardwicke had emerged as one of leading minds of the Walpole administration under the patronage of the Duke of Newcastle. Related by marriage to the Campbells of Glenorchy, he lacked the regressive disdain for Scots exhibited by some of his colleagues, calling it “highly imprudent, impolitic and unjust.”Footnote 31 For Hardwicke, explanations for Jacobitism focused on the limitations of the existing legal frameworks, the resultant overlap of legal and socioeconomic power among Highland chiefs, and the relative poverty of Highland communities, the latter of which was ubiquitous in the more thoughtful English-language accounts of the rebellion.Footnote 32 The solution to perceived lawlessness, tribalism, and autonomy in the Gàidhealtachd, in his view, was the establishment of a legal code officiated by crown-appointed officers and unencumbered by clan justice. The influential bishop of Salisbury told an acquaintance in May 1746, “The main thing to be provided for is we secure an execution of the king's laws in the country; which is at present under the absolute will of the lairds.”Footnote 33 A memorandum submitted to Hardwicke in 1747 likewise argued that “the best way to civilize the people, and to abolish their dependence on their chiefs, is practically to demonstrate to them, that they are sure of the protection of the law.”Footnote 34
What the ministry could actually achieve through legal reform, however, was not entirely clear. On the one hand, parliamentarians were convinced that the law could be used as an agent of social change. With the advent of annual parliaments and increased legislative authority in the aftermath of the Glorious Revolution, there was tremendous faith in the ability of Parliament to legislate against a host of perceived societal ills.Footnote 35 The identification of Jacobitism with the Scottish Highlands—a link proactively encouraged by the Jacobites during the ’45—made the destruction of Jacobitism a social problem as well as a political one. By destroying clanship and altering the legal order upon which Highland society was founded, the law was to be used as a mechanism of social engineering consistent with an increased reliance on statutory law.
On the other hand, the perceived limitations of the law also cautioned legislators against extreme solutions to the Highland problem. Any legislation not only had to be acceptable to the majority of legislators and their landed allies but also had to navigate the laborious world of Hanoverian politics. With Scottish MPs and peers constituting a small but important voting bloc in the Commons and Lords, laws could only be fashioned with a degree of moderation and consensus. Henry Pelham, who headed the coalition government in London, was a moderate who hoped that more limited legislation would safeguard the Union and keep important Scottish allies such as the 3rd Duke of Argyll on side. Hardwicke's connection with Glenorchy and the Earl of Findlater attached him to the Squadrone faction in Scottish politics, whose members were only too happy to advocate for more extreme measures in the hopes of undermining Argyll's stranglehold over Scottish politics. Pelham, however, maintained the upper hand.Footnote 36 Even hard-liners such as Pelham's brother, the Duke of Newcastle, understood that the government had to “get some of the considerable Scotch nobility to join with us; to prevent its being call'd a national measure, & a national affront, & Injury.”Footnote 37
The ambiguities that plagued the passage of the post-Culloden acts is best revealed in the Heritable Jurisdictions (Scotland) Act of 1747. Hardwicke and his allies argued that the greatest barriers to the effective exercise of crown authority were the hereditary jurisdictions held by Scottish grandees. As heritors, clan chiefs—and many landowners across Scotland—exercised judicial rights over both civil and criminal cases in their districts as hereditary sheriffs. The crown appointed less than a quarter of Scottish sheriffs in 1745, with the majority of the remainder operated as hereditary jurisdictions protected as “Rights of Property” under Article 20 of the Treaty of Union.Footnote 38 It was a matter of faith outside of the Highlands that the Jacobite movement had exploited the “cruel and stupefying” power possessed by clan leaders over the legal system to deliver large numbers of armed men to Charles Edward Stuart.Footnote 39 Abolishing heritable jurisdictions was considered by Pelham to be the most important statute for dealing with Jacobitism. The former lord justice clerk, James Erskine, Lord Grange, agreed, arguing that only by removing chiefly authority over the legal system could the Highlands be made safe for Whig ideas of personal liberty, security of property, and commercial progress. Hardwicke was much more pragmatic, arguing, “The people will follow those who have the power to protect or hurt them,” and therefore the establishment of crown-appointed sheriffs would secure the loyalty of the common people regardless of the treason of their chiefs.Footnote 40
But the abolition of these jurisdictions proved to be extremely difficult. In the first place, which jurisdictions were to be abolished or curtailed was not clear. While the Heritable Jurisdictions Act specifically targeted the large sherriffships, many chiefs exercised legal authority through regalities (jurisdictions attached to particular landed estates) and baron courts (which had oversight of minor civil issues and questions over property and rents). Some commentators favored abolishing all private jurisdictions or, at least, subordinating them to crown-appointed officers. Robert Dundas of Arniston was certainly of this mind.Footnote 41 But such efforts met with widespread resistance as Scottish peers looked to protect feudal rights over their estates—arguments that played out in the pages of the Scots Magazine.Footnote 42 The second issue was how private jurisdictions—if they had to be retained—were to be limited. The existing heritable jurisdictions possessed significant rights over both criminal and civil cases with only crimes such as murder, rape, and treason exempt from their authority. Some baron courts even possessed rights such as that of Pit and Gallows, which permitted courts to inflict capital punishment in cases of theft. If it was not possible to abolish all inferior courts, Hanoverian administrators were determined to trim these existing powers.Footnote 43
Resistance to the effort was strong. By Hardwicke's own account, the Heritable Jurisdictions Act “cost me more pains than ever any Parliamentary measure did.”Footnote 44 Scottish heritors resisted the measure on the grounds that, as the Act of Union defined their heritable jurisdictions as property, Parliament had no right to forfeit such property to the crown without willful default.Footnote 45 Scottish arguments were on thin legal ground given Parliament's right under the Act of Union to alter the claims of property holders, something that leading Scottish advocates such as Arniston fully acknowledged.Footnote 46 Nevertheless, opposition revealed that even where certain measures were deemed central to the suppression of Jacobitism, they could not be enacted without significant political cost not only to government support among Scottish lords but also among English Whigs who feared that it represented an unwarranted extension of executive power.Footnote 47
Hardwicke sought to get round this problem by delegating the legislation to the Scottish legal profession.Footnote 48 Presenting his request as evidence of ministerial sincerity, Hardwicke asked the Court of Session to write the bill. As the jurisdictions were defined as property, it was also deemed necessary to allow the Court of Session to set a value on them.Footnote 49 When the Scottish lords demurred on the practicalities of writing such a complex piece of legislation, feeling themselves unqualified to dispossess heretors of their jurisdictions, he set about writing it himself, albeit with input from Duncan Forbes of Culloden, lord president of the Court of Session and a longtime ally.Footnote 50 The result was not what many Scottish lords wanted—compensation for their lost property totaled just 26 percent of the estimated value.Footnote 51 But it would be wrong to see this as a measure driven through by an English Parliament in the face of unyielding Scottish opposition.Footnote 52 In the end, arch-Whigs were as disappointed with the legislation as their Scottish counterparts. One opponent proclaimed that the acts were “so full of Provisos and exceptions that . . . [they] will be quibbl'd away to nothing by Scotch Lawyers and Scotch Lords.”Footnote 53 Even had the Pelham government believed resolutely in the power of the law to reform Gaelic Scotland, the ability of the fractious environment of British politics to produce a solution was doubtful.
The resulting legislation was a compromise that replaced hereditary sheriffs with salaried sheriff-deputes appointed by the crown but left significant civil jurisdiction in the hands of Scottish landowners. For the most part, Scottish landowners consented to the surrender of hereditary sheriffships and outdated and rarely used powers such as Pit and Gallows, but they fought hard to retain possession of the baron courts that gave them control over the economic structures of their estates. As a result, the decision was made to retain the baron courts but curtail their powers. The Heritable Jurisdictions Act limited jurisdiction in baron courts to assaults where the fine was less than twenty shillings. In the case of civil cases, jurisdiction was limited to claims totaling forty shillings in damages. Given the limited economic reach of Highland tenants, such changes probably did little to alter the material basis of their relationship with their feudal superior. As we shall see, this was to have important implications for elite authority in the Highlands.
Enforcement
To write parliamentary law was one thing, to enforce it quite another. Though the Heritable Jurisdictions (Scotland) Act imposed a new legal system on the Highlands and Islands, much depended on the legal officers who were to carry it into effect. Lacking the manpower to enforce the new legal order on the ground, the government was forced to rely on Gaels to enforce their own subordination. The result was predictable. It was landed and middling Highlanders who took up new positions in the post-1747 legal order who shaped the contours of the law in the Highlands and Islands. And they generally did so in a manner consistent with their own interests. Such professionalization and modernization as did take place occurred within the legal profession and depended on the attitudes of these men rather than on government.Footnote 54 Far from subordinating the Gàidhealtachd to centralized authority, the post-Culloden acts strengthened the hand of local elites by incorporating them within the legal institutions of state and formalizing the mechanisms by which they exercised their power.
To understand the difficulties of enforcement, it is essential to acknowledge the different legal systems that operated in England and Scotland. Scots law drew from multiple legal traditions, and the mixture of common and civil law created a dynamic legal order that differed significantly from that of England.Footnote 55 In 1707, Scots had been reluctant to give up their legal system; as a result, Article 19 of the Treaty of Union safeguarded a separate and distinct legal system in Scotland. The possible weakness of the Act of Union in protecting Scotland's civil society, its institutions, and its companies has received some comment.Footnote 56 The protections on Scots law were not unconditional and were subject to “such Regulations and Alterations as shall be thought proper to be made by the Parliament of Great Britain.”Footnote 57 What Parliament thought of Scotland's legal autonomy was quickly revealed when, in the aftermath of the abortive Jacobite uprising of 1708, Scotland was forced to accept an English treason law that made convictions easier and introduced a system of Commissions of Oyer and Terminer to allow trials to take place in England.Footnote 58
Scots law was nevertheless maintained as a distinct system and proved to be something of thorn in the side of the state and its military leaders. Scotland's lawyers were generally loyal to the regime—less than 1 percent of the Faculty of Advocates had joined the Jacobites—but they were no stooges of government.Footnote 59 The attitude of Scots lawyers was that, since the rule of law was the very embodiment of their allegiance to the post-1688 settlement, subjecting the army to legal oversight was part of their Whig duty. Civil prosecutions of soldiers for outrages committed against civilians occurred from the moment the British Army arrived in Scotland. Robert Craigie, the crown's chief legal officer in the kingdom until his resignation in February 1746, defended several soldiers against private suits that were tried before Scotland's highest civil court. Colonel Sir Charles Howard of the Coldstream Guards was sued in Scottish courts, as were a number of his subaltern officers. These suits were prosecuted with varying degrees of success. Parliament passed an Indemnity Act that shielded soldiers from prosecution for actions—including “blood, slaughter, and mutilation”—committed before 25 July 1746, and the Court of Session generally agreed that rebels under arms were to be “treated as enemies not intitled [sic] to the Protection of the law.”Footnote 60 But the government also concluded, “The King can't restrain any subject from suing in his Courts.”Footnote 61 One Captain Charles Hamilton of Cobham's Horse, for example, was found liable for depredations that were not directly related to the suppression of the rebellion.
A more notable case was that of Lieutenant Archibald McLauchlan of the 23rd Foot, who had seized the property of one John Strachan. Strachan successfully argued before the Court of Session that the Act of Indemnity was “absurd and contrary to the Spirit of the British Constitution, by which the lives and Propertys [sic] of the Subjects are secured to them by Law” and that the act protected soldiers against criminal prosecution and not against civil restitution. One judge on the Court of Session described the verdict as “the greatest consequence he had ever seen before the Court,” though its significance was undone when it was revealed that Strachan had spent time in prison for Jacobite activities. Unwilling to appear as aiders and abettors of the rebels, the Court of Session dropped the case.Footnote 62 But the idea that it was unlawful to seize the goods of suspected Jacobites or arrest them without just cause or a legal warrant survived in the rulings of the Court of Session.Footnote 63
Military commanders were astonished at the lackluster degree of support from Scotland's politicians and civil administrators. Cumberland's successor as commander-in-chief, the Earl of Albemarle, declared openly that Scottish ministers in London were protecting some of the most “Rebellious rascals” from prosecution.Footnote 64 Albemarle's successor, General Humphrey Bland, found so “many subterfuges & Quirks in the Law” that most suspects escaped punishment. Such was the impotency of the government's control over civil officials that Bland fell back on threatening recalcitrant magistrates with “expensive prosecution[s],” knowing full well that it was an empty gesture to threaten lawyers with a court action. He would complain that “the life of a Gally Slave is a state of ease compar'd to mine . . . by the civil affairs of this country.”Footnote 65
Bland was nevertheless determined to subordinate his troops to the established civil authorities. The problem for Bland and his officers was their widespread ignorance not only of the laws as they applied to civil society but their ignorance of Scots law in general. The distinct legal system in Scotland governed the limits of the army's freedom of action. Officers in isolated commands admitted they were “stranger[s] to the Laws” and were “unwilling to do anything that is contrary to law,” thus making them “more cautious than . . . in any other Country.”Footnote 66 Bland acknowledged that the military occupation of Scotland suffered because there was confusion over the law, “a Tract that we soldiers are generally unacquainted with but more particularly so in this country, where the Laws & Customs are so different from ours.”Footnote 67
As the army was subordinate to civil authorities, the attitudes of legal officers required to enforce the law took on immense importance. The abolition of heritable jurisdictions turned the prosecution of most civil and criminal offenses over to crown-appointed and salaried sheriff-deputes distributed among twenty-seven sheriffdoms. The scope for government patronage did expand as a result, but, in terms of the administration of the law, this did not constitute a radical break with past practices. In areas of limited Jacobite activity, it made little sense to alienate potential supporters by dispensing government patronage to unknown outsiders. The resigning heritable sheriffs were often called upon to recommend the new incumbents, endorsements that were accepted in Sutherland, Caithness, and Argyll and Bute—areas that had remained loyal in 1745—forging partial continuity with the old system.Footnote 68
In areas of greater Jacobite activity—Inverness-shire, Lochaber, Morvern, and other parts of the Inner and Outer Hebrides—the resigning heritors worked with the new sheriffs to maintain a status quo dominated by kinship networks rather than abstract political allegiance. It is probable that Jacobites continued to administer many districts through the ignorance or even collusion of the landed aristocracy. The bailie for Norman Macleod of Macleod had served as an officer in the Jacobite army but returned to Harris where he continued to be employed in the baron court.Footnote 69 Humphrey Bland complained that “Sheriffs, Deputy Sheriffs, Justices of the Peace, and other Civil Officers throughout the Kingdom are very remiss in their duty, and unwilling to seize any of the attained Rebels, or those who harbour them and abet their causes.”Footnote 70 With considerable if not unrealistic exaggeration, it was claimed that there were “No justices for above 200 miles in [the] north [of Scotland] that are not Jacobites.”Footnote 71
Identifying trusted Whigs to serve as legal officers in the fifteen northern counties subject to the post-Culloden laws was a constant problem.Footnote 72 In Caithness, where Alexander Sinclair, the Earl of Caithness, and George Sinclair of Ulbster had kept the Jacobites relatively quiet, the government noted just one individual in a list of twenty-two potential justices of the peace who was both “loyal” and legally permitted to serve in the county.Footnote 73 Plans to appoint army officers in the place of potential Jacobites and appoint certain individuals to multiple sheriffdoms floundered on the legal and practical requirements of residence in the county. A similar problem scuppered plans to bring in trusted Whigs from southern Scotland. Even where such individuals were willing to serve in remote and potentially hostile districts, they left much to be desired. Walter Sandilands, Lord Torphichen, was recommended to the sheriffdom of Inverness, but despite being a “Zealous Whig,” he was rejected on the basis of his inexperience in operating in so “populous a county.” The same was said of Charles Campbell, who was rejected from the Perth sheriffdom because a “county with many Highland areas . . . requires a man of greater abilities.” The selection of sheriff-deputes to some other counties was easy, since “no other advocate will go there.”Footnote 74 To make these positions more appealing, the new system only required sheriff-deputes to reside in the Highlands for four months of the year. It did not work. An expansion of circuit courts and riding judges was also envisioned to regulate the law in the Highlands, but the final legislation only called for circuits twice a year.Footnote 75
Besides politics, the greatest difficulty in extending central control over the Gàidhealtachd was poor pay and chronic underfunding. Since the sheriff-deputes were only required to reside in the region for four months of the year and rarely traveled extensively in their jurisdictions, they were to be assisted by resident but unqualified sheriff-substitutes.Footnote 76 Pay for these sheriff-substitutes was abysmal, and many served out of an obligation to powerful gentlemen who needed loyal operatives within the new legal order. Kenneth Mackenzie, Lord Fortrose, complained that the sheriff-depute for Lewis, Hugh Rose of Kilravock, was refusing to pay the salary of the sheriff-substitute on the island. The substitute in question—Colin Mackenzie, known as Cailean Dearg—was Fortrose's factor and chamberlain and subsequently took Rose to court to enforce payment. Cailean Dearg's victory in the case emboldened him, and the people of Lewis were left, according to one army officer, “under great Tyranny and Oppression from the unbounded authority of His Lordship's Factor who is a sheriff substitute but never held a Court or looked Cognisance of any one Crime punishable by the law.”Footnote 77 Loyal Whigs in Inverness likewise found that the procurator fiscal—the man responsible for prosecuting crimes under the direction of the sheriff-depute—was the agent of the factor of the Lovat estate. When the factor, James Grant, was served with a warrant for the arrest of his servants on the charge of wearing the breacan-an-fhèilidh, Grant had “returned it to the Despondent desiring him to tell the Justices of Peace to wipe their backsides with their warrant.”Footnote 78
The case of Alexander Macleod, a sheriff-substitute on Skye, is illustrative of the problem of reliance on local sheriff-substitutes. Macleod complained that his wages failed to defray his personal expenses and that it was only his obligation to the chief of Clan Macleod, An Droch Dhuine, and other powerful gentlemen that kept him in the post.Footnote 79 His legal superior, David Scrymgeour of Birkhill, sheriff-depute of Inverness between March 1749 and July 1769, had authority over the most notorious jurisdiction in the Gàidhealtachd. Extending from Inverness as far south as Badenoch and as far west as Harris in the Outer Hebrides—much of it through notoriously Jacobite Lochaber—Inverness should have been the epicenter of state efforts to combat the supposed lawlessness of the Gaels. Scrymgeour, however, faced constant problems in administering the law in an area that comprised over four thousand square miles of rugged terrain. He believed that it would take at least six substitutes to cover the jurisdiction, but he was rarely able to call upon more than two at any one time.Footnote 80 He complained that locals such as Macleod could not be trusted to fulfil their duties: “The circumstances of this county are such as that I cannot find proper persons who frequently reside in this country whom I can entrust as substitutes.” The obvious solution of bringing in Lowlanders caused its own problems, and Scrymgeour complained, “I am altogether at a loss to bring proper persons from the low country to reside in these remote uncivilised places,” given that it would “be attended with a very great expense[,] far greater than substitutes can be got for in any other place.”Footnote 81
Without adequate support, the zeal with which officials applied the law left much to be desired. In some cases, officers simply went through the motions without proactively attempting to enforce the law. Others did not show up for court dates in support of the crown's prosecution, either out of negligence or out of a conviction that the objectives of the law were “somewhat dubious” as to how they interpreted the acts of Parliament.Footnote 82 It seems to have been the case that many substitutes prosecuted the law in merely the most extreme cases and consistently ignored minor infractions in the hope of building networks of goodwill. The cost of transporting witnesses to trial was also very high and tended to encourage the prosecution of only select cases. Colin Campbell, the sheriff-substitute at Fort William, recorded monies dispersed for just eight cases over a four-year period.Footnote 83 The eight trials that took place at the Inverness circuit court in April 1754 involved over 150 witnesses—traveling an average distance of twenty-nine miles with a journey time of more than a week and at a cost to the crown of £45 6s.Footnote 84 In other cases, the desire of legal officers to line their own pockets and exploit certain features of the law to carry out personal vendettas proved even more problematic. There were numerous complaints against George Duglass, sheriff-substitute on Skye, who issued arrest warrants on the slightest of pretexts in order to reclaim financial losses he felt he had suffered as part of his work.Footnote 85
The ministry was not ignorant of these problems. Hardwicke was aware that if jurisdiction was “only transferred from hereditary sheriffs . . . to Great Men appointed to be sheriff in the several Counties during Pleasure, and exercised by Deputys without salarys, depending upon those Great Men[,] abuses of various sorts may happen.”Footnote 86 But in the absence of an army of well-paid and motivated Anglo-British officials—the fiscal bureaucracy in England employed 6,595 individuals in 1748—the government had to rely on local expertise.Footnote 87 An additional problem concerned the metrics by which the Whig government measured loyalty. Positions and sinecures formed a major part of political loyalty in the mid-century, and ministers feared that excluding too many Jacobites from lists of potential government employees would only “rivet them in their folly.”Footnote 88 The result was a civil administration in Scotland that encompassed the entire political spectrum at a time when the official rhetoric remained vigorously anti-Jacobite.
Under these conditions, it is not at all surprising that civil justice proved to be an uncooperative instrument of state power. The Scottish legal profession generally disliked the new system, claiming that it limited their freedom of action. More ominously, it placed the law in the hands of unknown quantities who were beholden to Highland grandees and over whom the government lacked oversight or the right of removal. Findlater had argued that the secretary of state should have the power to remove sheriff-substitutes, but this was never enacted. Instead, sheriff-deputes served ad vitam aut culpam (for life or until fault), making it very difficult for the government to remove them.Footnote 89 The government had to rely on local elites who, while protective of their autonomy, were extremely ambitious for government patronage and saw no problem in using state mechanisms to cement local authority. Pelham admitted as much to the king in 1752 when, pressured by the Duke of Cumberland and the Duke of Bedford to act more vigorously against Scotland, he produced a wide-ranging report on the administration of the north. According to Pelham, the appointment of officers was the best means of “promoting the interest of their [the government's] friends” but since knowledge of Highland localities was often limited, “Gentlemen are frequently obliged to make them [appointments] at the instance of low people, who are guided chiefly by private considerations of relation, friendship, and neighborhood.”Footnote 90
Pelham's report, intended to assure Cumberland that proper measures were being taken in Scotland, actually demonstrated how little government oversight there was in the management of the post-Culloden Highlands. While the report exposed only a small number of Jacobites in government positions, it did reveal the inability of officials in London to manage affairs in the Gàidhealtachd. Some accused Jacobites could not be identified because no known officer matched the name and circumstances of the alleged placeholder. An inability to understand Gaelic or appreciate Gaelic names also caused problems. An army officer who did not speak Gaelic accused one Colin Beatton, a tidewaiter in Inverness, of singing a Jacobite song, only for the comptroller of customs in Inverness to swear that the song was “strongly in favour of the Government.” Ranald Macdonald of Clanranald, who had raised his father's clan for the Jacobites, returned to Scotland after a short exile in France and lived undisturbed because his name was spelled incorrectly on the Act of Attainder.Footnote 91 Others returned home and lived “unmolested” because—after many lower-ranking Jacobites were offered clemency in early 1747—there were no laws in place by which the government could legally arrest them despite concerns regarding their activities.Footnote 92
Where possible, many legal officers advised local people on how to avoid being prosecuted for contraventions of the new laws.Footnote 93 There were several complaints that the factor of the forfeited estates of Locheil and Stewart of Appin refused to assist the troops in identifying thieves or those guilty of carrying arms or wearing Highland dress.Footnote 94 The factor, Colin Ruadh Campbell of Glenure, may have harbored some resentment toward the commercialization of the Argyll estates, but he was no Jacobite. He had raised a company for the Hanoverian cause, and soon after the accusation was made, he was murdered for his part in carrying out evictions of Jacobite tenants. However, he had little interest in assisting the government in punishing innocent people. Colin's younger brother, Duncan Campbell, had likewise run into difficulties with the army for refusing to prosecute violations of the Disarming Act while serving as the sheriff-substitute for Killin in Perthshire in 1748.Footnote 95 Another sheriff-substitute on Skye admitted that, while he had legitimate cause for arrests under the Disarming Act, he did not “chuse to waken these prosecutions . . . as I'm fully Convince'd of their affection to the Government & their steady resolutions.” His only regret was that one man, despite having been “brought up in government principles,” was refusing to swear his loyalty to the government even “under ye lash of ye law.”Footnote 96
As they had often done in the face of government intervention, Highlanders adapted to new realities. Those who spoke Gaelic sought out opportunities for employment in an environment where official positions usually required it.Footnote 97 Others used to their advantage the willingness of government to throw money at perceived problems. Relations of attainted rebels profited by supplying meal to the very soldiers searching for their kin. The army used a contingency fund to pay Gaels for information on the movement of thieves and suspected Jacobites but found that, in Fort William, much of the intelligence it was purchasing was long out of date or downright fraudulent. In one of the most notorious cases, communities in Atholl arranged to have their cattle stolen so that they could claim the reward of one guinea per beast.Footnote 98 If the last Jacobite rebellion witnessed Hanoverian intervention in the Highlands on an unprecedented scale, the extent to which the government controlled this process is very much open to question.
Traditional Elites and the New Legal Order
Does it follow that the new legislation was irrelevant? Opinion in the eighteenth century was divided. No less a luminary as Lord Kames, who was active in outlining plans for the Highlands, described the entirety of the government's effort as “no better than water spilt on the ground.”Footnote 99 Sir Walter Scott took a different line and would later argue that the “destruction of the patriarchal power of the Highland chiefs [and] the abolition of the heritable jurisdictions” had precipitated a transformation in the Highlands unparalleled in European history.Footnote 100 These arguments reflect the Heritable Jurisdictions (Scotland) Act's role as a bellwether of attitudes to the Union and the extent to which the Union was perceived as responsible for Scotland's social and economic transformation.Footnote 101 As scholarly interest in Scottish Jacobitism declined in the twentieth century, historians tended to side with Kames in calling most government policies insignificant and “total, not to say hilarious, failures.”Footnote 102 These controversies make assessing the specific impact of abolishing heritable jurisdictions fraught with difficulty, especially given the poor survival of many legal records for Highland districts.Footnote 103
The moment can, however, be read as an insight into social conflicts in Hanoverian Scotland. Scotland already labored under a legal system that granted landed elites considerable authority over the law through various local courts. The lack of customary law ensured that communities, particularly in the Highlands, were unable to regulate this system by recourse to widely accepted community rights.Footnote 104 The Pelham ministry and its allies in Scotland argued that the chief cause of Jacobitism lay in the servile state of the rural poor. “Slavery” was the favored noun to describe clanship in the Highlands.Footnote 105 This view did not consider the crucial social meanings of clanship, but it allowed administrators to see themselves as a bulwark for the common people against self-interested and exploitative groups in Scotland—be they landowning elites or lawyers in Edinburgh who profited from complex and expensive civil cases.Footnote 106 Many of the changes suggested after 1746 were explicitly targeted at the clan gentry rather than at Highlanders as a whole. The Society in Scotland for Propagating Christian Knowledge—the most visible agency of attempted Anglicization in the Gàidhealtachd—explicitly absolved the common people from blame in the ’45 in a sermon published in 1748.Footnote 107 One army officer in the Outer Hebrides in 1753 explained that the army's role was to serve as a “check . . . [on the] arbitrary proceedings” of clan leaders.Footnote 108 Commanders such as Albemarle, who had been responsible for some of the terror tactics used in 1746, suggested that the common people should be insulated from further hardship so as to secure loyalty in the region.Footnote 109 David Taylor's recent study of Badenoch suggests that certain government agents saw it as their duty to assist various sub-tenants in their legal battles with the clan gentry.Footnote 110
While it served the interest of government agents to suggest that the people were grateful for their intervention, there were recorded cases of sub-tenants using the legal system against the clan elite. Findlater claimed as early as 1748 that by the more impartial administration of justice in the northeast Highlands, the people had begun to see the merits of the new order.Footnote 111 William Grant, a government Loyalist, also reported increasing faith in the new system.Footnote 112 Humphrey Bland related a remarkable story in which tenants of the Duke of Atholl had resisted his efforts to enclose his lands, appealing to the sheriff court. Their victory in the case had led them to celebrate the “first Year of their Freedom” and to toast “the Parliament of Great Britain for making them a free People.” Bland was well aware that Atholl's control over the sheriff-depute remained intact and that “too much partiality still remains,” but he was confident for the future.Footnote 113
Yet state protection for the common people only went so far. On the estates annexed to the crown in 1752, progress was slow.Footnote 114 The Vesting Act of 1747 had initially confiscated estates from the hands of their Jacobite owners and placed them under the management of the Barons of the Scottish Court of Exchequer. The Barons’ primary objective was the collection of rents, and they had little experience or interest in the overthrow of an entire social order. The local factors that they employed were the friends, kinsmen, or even former factors of the forfeited estates. This situation lasted five years before the Annexing Act (1752) appropriated fourteen estates to the crown to be managed by the Commissioners of the Forfeited Estates.Footnote 115 The avowed aim of the Annexed Estates was to “civilise” the inhabitants and promote “the Protestant Religion, good Government, Industry and Manufactures, and the Principles of Duty and Loyalty.”Footnote 116 In reality, most estates simply became settlements for ex-soldiers whose reputation for criminality made them unwelcome in the urban centers of the Lowlands and England.Footnote 117 The factors appointed by the commissioners included major and minor Highland gentry such as the Campbells of Barcaldine and the Smalls of Dirnanean, who were fully cognizant of the task they faced and the limited impact they could possibly have. Most of the measures aimed at social change were quietly discontinued in the 1750s and 1760s due to lack of funding. Even on the Annexed Estates, where government influence was strongest, government agencies simply reinvested rentals in minimal improvements—though it must also be admitted that this was often far more than the previous owners had done.
In most Highland communities, pragmatism was the order of the day. Any fundamental recasting of Highland society was beyond the material, financial, and legal scope of eighteenth-century government and was decidedly disadvantageous in terms of social stability. It did not serve the interests of government to plunge the Gàidhealtachd into economic catastrophe. Indeed, to have eradicated clanship would have required a truly epoch-making shift in landholding practices. While some commentators did argue for land nationalization, no senior government minister gave the idea any credence.Footnote 118
What is more, Highland elites could turn to other inferior courts that had survived the Heritable Jurisdictions Act.Footnote 119 The powers of baron courts were trimmed (see above), but they still gave Highland elites the unfettered ability to control the socioeconomic life cycle of their estates.Footnote 120 Such control had existed before 1745, but its importance expanded as the criminal jurisdictions of the gentry declined.Footnote 121 Findlater had recognized this problem as soon as the act was passed and complained that inferior courts that were left in the hands of the chiefs would become “very oppressive and keep up great and undue Influence over poor people in the Highlands and North of Scotland.”Footnote 122 But the Pelham government had little interest in undermining what was seen as the legitimate authority possessed by the landed interest in Scotland and deemed the abolition of inferior courts unhelpful. The fact that Scots law relied on volumes of written documentation for civil cases meant that, without the baron courts, the caseload would have overwhelmed the superior courts.Footnote 123
It was not just that the new laws sustained the commercial dominance of the landed elite. In some respects, the effect of the post-Culloden laws was to enhance an imbalance in the law. Where the Highland gentry were willing to implement them, the new laws were used to advance societal changes that had long been sought. Some Highland estates had taken measures against the carrying of arms and the wearing of the breacan-an-fhèilidh well before 1746. In the parishes of the Duke of Gordon's estates bordering Aberdeenshire, tenants had previously been offered ploughs in exchange for the surrender of weapons and plaids.Footnote 124 The suppression of the rebellion justified the expansion of these efforts. Sir Alexander Macdonald of Sleat, who had remained loyal to the government in 1745, took the opportunity of the defeat of Jacobitism to remove arms and Highland dress from the people on his estates in North Uist.Footnote 125 There is even evidence that the Disarming Act was used to remove smugglers and other socially undesirable persons from estates when other measures failed.Footnote 126 Clan Campbell elites with connections to the army also gained a deserved reputation for the exploitative use of the Disarming Act to dragoon young men into the army.Footnote 127
Theft was an area in which those already possessed of movable property exploited the new laws. Landlords such as Sir Alexander Mackenzie of Coul welcomed stricter enforcement of the laws since it protected his commercial interests and aided in prosecuting those guilty of stealing cattle, something he identified as the most pernicious aspect of Highland society. Sir Alexander explained that the theft of cattle had, by the early 1750s, declined owing to the more regular administration of justice and the fact that securing prosecutions had become cheaper by removing multiple layers of overlapping jurisdictions.Footnote 128 One army officer claimed in a report to his superiors that he had been given a list of “thieves” by local gentlemen where he was stationed with the suggestion that he arrest them “whenever there shall be the least accusation brought against them.”Footnote 129
By the 1790s, contributors to the Statistical Account of Scotland could cite the intervention of legal officers in petty disputes as making a profound social change and a check on the more “turbulent and irregular” people in Gaelic communities.Footnote 130 If anything, the violence of 1746 produced greater chaos than had ever been the case before 1745, with theft becoming considerably more common between 1746 and 1752 and even the robbery of parties of soldiers not unknown.Footnote 131 But these acts gave further impetus to those who, with considerable investments in movable property, favored a strict enforcement of the laws so as to protect their investments. The impetus for a greater state presence in the Highlands came predominately from Scotland's political classes, keen to present themselves as loyal Whigs and fearful of the destabilizing effort of the rebellion on their authority and commercial interests.Footnote 132 More often than not, those with an existing stake in the legal system retained their privileges and found the post-Culloden acts beneficial to the security of their persons and property. Those without such luxuries did find ways of challenging traditional social roles through new legal mechanisms, but they were often left disadvantaged. The changes that occurred in the Highlands as a result were important, but they need be understood as the product of social, political, and legal realignments in the Gàidhealtachd rather than as developments imposed by the fiscal-military state.
Conclusions
In 1746, the Pelham government embarked upon a wide-ranging effort to break the power of the clans and impose state authority over the Highlands and Islands. From the beginning, however, several barriers stood in the way of state success. In adhering to the rule of law, Parliament imposed restrictions on what could be achieved in the Gàidhealtachd. More importantly, in attempting to enforce the laws, the state ran up against a very different legal system from that of England as well as an absence of sufficient and reliable administrators and legal officers. Forced by law and by bureaucratic weakness to rely on local elites, officers and judges in the Gàidhealtachd—whose activities were still informal and personalized rather than formal and institutionalized—remained the primary vehicle through which the law was dispensed. The failures of enforcement directly challenge the shorthand scholarly assumption that the post-Culloden acts enhanced commercial activity, order, professionalism, and state control in the Highlands and Islands. They did not. The historical scholarship has too easily embraced a Whig narrative about the importance of British/state intervention in the eighteenth-century commercial progress of Scotland.
To analyze the post-Culloden acts through a legal lens is in no way to diminish the horrors meted out on Gaels or to insulate the British state from moral and historic judgment. But analyzing post-1746 Gaelic Scotland within the framework of the law does have the potential to change how we think about this moment in British history. Far from illuminating the power of the British state, the post-Culloden period reflects the inherent weaknesses of the eighteenth-century state. Efforts to enforce change actually created a legal system that was less imposed than it was received, interpreted, and adapted to the imperatives of Highland elites. The rule of law is crucial to the forces of historical change, and the legal systems and concepts that were applied to Gaelic Scotland shaped the social patterns of the region in the longer term. But it is clear that polarizing distinctions between the metropolitan core (assuming agency and authority in the passage of legislation) and the Gaelic periphery (assuming the role of passive victim) are woefully inadequate to explain this process. Indeed, the willingness of the government to acknowledge de facto Highland legal autonomy in the aftermath of the rebellion may well assist in explaining the adherence of Highland elites to the British state in the decades following Culloden as they recognized the beneficial connections between state expansion and local authority over the legal system.Footnote 133
The post-Culloden acts were not the moment of political and cultural subjugation they are often assumed to be. The subjugation came later as the Highland gentry exploited the government's limited interventions in the region in the 1740s and 1750s to protect local autonomy and landed and commercial interests. Further state interventions in the nineteenth century—while noteworthy as humanitarian interventions in the midst of economic deprivation and famine—tended toward sustaining the interests of the landlords.Footnote 134 It would be after the findings of the Napier Commission in 1884 and the subsequent Crofters Holdings (Scotland) Act of 1886 before the government moved to curb the unbridled authority of the landlords.Footnote 135 Unfortunately, by the 1880s, the damage had been done.
