The supreme power in every
community has the right of debarring every individual, and every
subordinate society from self-defence, only because the supreme
power is able to defend them; and therefore where the governor
cannot act, he must trust the subject to act for himself. These
Islands might be wasted with fire and sword before their sovereign
would know their distress. A gang of robbers, such as has been
lately found confederating themselves in the Highlands, might lay a
wide region under contribution. The crew of a petty privateer
might land on the largest and most wealthy of the Islands, and riot
without control in cruelty and waste. It was observed by one of
the Chiefs of Sky, that fifty armed men might, without resistance
ravage the country. Laws that place the subjects in such a state,
contravene the first principles of the compact of authority: they
exact obedience, and yield no protection.
It affords a generous and manly pleasure to conceive a little
nation gathering its fruits and tending its herds with fearless
confidence, though it lies open on every side to invasion, where,
in contempt of walls and trenches, every man sleeps securely with
his sword beside him; where all on the first approach of hostility
came together at the call to battle, as at a summons to a festal
show; and committing their cattle to the care of those whom age or
nature has disabled, engage the enemy with that competition for
hazard and for glory, which operate in men that fight under the eye
of those, whose dislike or kindness they have always considered as
the greatest evil or the greatest good.
This was, in the beginning of the present century, the state of the
Highlands. Every man was a soldier, who partook of national
confidence, and interested himself in national honour. To lose
this spirit, is to lose what no small advantage will compensate.
It may likewise deserve to be inquired, whether a great nation
ought to be totally commercial? whether amidst the uncertainty of
human affairs, too much attention to one mode of happiness may not
endanger others? whether the pride of riches must not sometimes
have recourse to the protection of courage? and whether, if it be
necessary to preserve in some part of the empire the military
spirit, it can subsist more commodiously in any place, than in
remote and unprofitable provinces, where it can commonly do little
harm, and whence it may be called forth at any sudden exigence?
It must however be confessed, that a man, who places honour only in
successful violence, is a very troublesome and pernicious animal in
time of peace; and that the martial character cannot prevail in a
whole people, but by the diminution of all other virtues. He that
is accustomed to resolve all right into conquest, will have very
little tenderness or equity. All the friendship in such a life can
be only a confederacy of invasion, or alliance of defence. The
strong must flourish by force, and the weak subsist by stratagem.
Till the Highlanders lost their ferocity, with their arms, they
suffered from each other all that malignity could dictate, or
precipitance could act. Every provocation was revenged with blood,
and no man that ventured into a numerous company, by whatever
occasion brought together, was sure of returning without a wound.
If they are now exposed to foreign hostilities, they may talk of
the danger, but can seldom feel it. If they are no longer martial,
they are no longer quarrelsome. Misery is caused for the most
part, not by a heavy crush of disaster, but by the corrosion of
less visible evils, which canker enjoyment, and undermine security.
The visit of an invader is necessarily rare, but domestick
animosities allow no cessation.
The abolition of the local jurisdictions, which had for so many
ages been exercised by the chiefs, has likewise its evil and its
good. The feudal constitution naturally diffused itself into long
ramifications of subordinate authority. To this general temper of
the government was added the peculiar form of the country, broken
by mountains into many subdivisions scarcely accessible but to the
natives, and guarded by passes, or perplexed with intricacies,
through which national justice could not find its way.
The power of deciding controversies, and of punishing offences, as
some such power there must always be, was intrusted to the Lairds
of the country, to those whom the people considered as their
natural judges. It cannot be supposed that a rugged proprietor of
the rocks, unprincipled and unenlightened, was a nice resolver of
entangled claims, or very exact in proportioning punishment to
offences. But the more he indulged his own will, the more he held
his vassals in dependence. Prudence and innocence, without the
favour of the Chief, conferred no security; and crimes involved no
danger, when the judge was resolute to acquit.
When the chiefs were men of knowledge and virtue, the convenience
of a domestick judicature was great. No long journies were
necessary, nor artificial delays could be practised; the character,
the alliances, and interests of the litigants were known to the
court, and all false pretences were easily detected. The sentence,
when it was past, could not be evaded; the power of the Laird
superseded formalities, and justice could not be defeated by
interest or stratagem.
I doubt not but that since the regular judges have made their
circuits through the whole country, right has been every where more
wisely, and more equally distributed; the complaint is, that
litigation is grown troublesome, and that the magistrates are too
few, and therefore often too remote for general convenience.
Many of the smaller Islands have no legal officer within them.
