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superseded formalities, and justice could not be defeated by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. I
once asked, If a crime should be committed, by what authority the
offender could be seized?
