Lasting Evidences of Petty Regality

Map depicting general clan territories.

In the Highlands, some great lords had an hereditary jurisdiction over counties; and some chieftains over their own lands; till the final conquest of the Highlands afforded an opportunity of crushing all the local courts, and of extending the general benefits of equal law to the low and the high, in the deepest recesses and obscurest corners.

While the chiefs had this resemblance of royalty, they had little inclination to appeal, on any question, to superior judicatures. A claim of lands between two powerful lairds was decided like a contest for dominion between sovereign powers. They drew their forces into the field, and right attended on the strongest. This was, in ruder times, the common practice, which the kings of Scotland could seldom control.

Even so lately as in the last years of King William, a battle was fought at Mull Roy, on a plain a few miles to the south of Inverness, between the clans of Mackintosh and Macdonald of Keppoch. Col. Macdonald, the head of a small clan, refused to pay the dues demanded from him by Mackintosh, as his superior lord. They disdained the interposition of judges and laws, and calling each his followers to maintain the dignity of the clan, fought a formal battle, in which several considerable men fell on the side of Mackintosh, without a complete victory to either. This is said to have been the last open war made between the clans by their own authority.

The Highland lords made treaties, and formed alliances, of which some traces may still be found, and some consequences still remain as lasting evidences of petty regality. The terms of one of these confederacies were, that each should support the other in the right, or in the wrong, except against the king.

– Samuel Johnson, A Journey to the Western Islands of Scotland (1775).

Expectation of the Battle

Among a warlike people, the quality of highest esteem is personal courage, and with the ostentatious display of courage are closely connected promptitude of offence and quickness of resentment. The Highlanders, before they were disarmed, were so addicted to quarrels, that the boys used to follow any publick procession or ceremony, however festive, or however solemn, in expectation of the battle, which was sure to happen before the company dispersed.

– Samuel Johnson, A Journey to the Western Islands of Scotland (1775).

A Kind of Irregular Justice

Samuel Johnson LLD MA.

In the Highlands it was a law, that if a robber was sheltered from justice, any man of the same clan might be taken in his place. This was a kind of irregular justice, which, though necessary in savage times, could hardly fail to end in a feud, and a feud once kindled among an idle people with no variety of pursuits to divert their thoughts, burnt on for ages either sullenly glowing in secret mischief, or openly blazing into public violence. Of the effects of this violent judicature, there are not wanting memorials. The cave is now to be seen to which one of the Campbells, who had injured the Macdonalds, retired with a body of his own clan. The Macdonalds required the offender, and being refused, made a fire at the mouth of the cave, by which he and his adherents were suffocated together.

— Samuel Johnson, A Journey to the Western Islands of Scotland (1775).

20 Geo. II c. 43

The Heritable Jurisdictions (Scotland) Act 1746 (20 Geo. II c. 43) was an Act of the British Parliament passed in the aftermath of the Battle of Culloden, which fateful clash brought the Jacobite Rising of 1745 to a prompt end.

Traditionally, Scottish lords and clan chiefs had inherited regalities and been able to judge in civil and criminal cases among their dependants.  The Act put an end to this by extending universal royal jurisdiction throughout Scotland.  The powers previously possessed by Scottish lords were transferred to sheriffs appointed by the King and the hereditary justiciarship of Scotland, held by the family of Campbell of Argyll, was to be purchased and transferred to the High Court and Circuit-courts of Justiciary.  Parliament granted £152,000 for the purchase of heritable jurisdictions.  The Prime Minister Henry Pelham considered this the most important measure in suppressing Jacobitism in Scotland.

* * *

In Scotland, Justiciars were the king’s lieutenants for various judicial and administrative purposes.  The office was established in the XII century, either by Alexander I or by his successor, David I.

The title of ‘Justiciar’ was reserved for two or three high officials, the chief one — the Justiciar of Scotia — having his jurisdiction to the north of the River Forth. The Justiciar of Lothian dealt with the part of the kingdom south of the Forth-Clyde line.

The role of Justiciar evolved into the current Lord Justice-General, the head of the High Court of Justiciary, head of the judiciary in Scotland and a member of the Royal Household.

The arms of the Duke of Argyll. Quarterly, 1st & 4th: Gyronny of eight or and sable (Campbell); 2nd & 3rd: Argent, a lymphad or ancient galley sails furled flags and pennants flying gules and oars in action sable (Lorne).

The present Duke of Argyll, His Grace Torquhil Ian Campbell, Chief of Clan Campbell, still holds the hereditary title of High Justiciar of Argyll, but no responsibilities now attach to it.

Sgt. James Sutherland, Adam Sutherland & Neil MacKay

Sgt. James Sutherland, Adam Sutherland & Neil MacKay.

Sgt. James Sutherland, Adam Sutherland & Neil MacKay as portrayed by Kenneth MacLeay in his masterwork The Highlanders of Scotland.

Gallowglass and Kern

Irish gallowglass and kern. Drawing by Albrecht Dürer, 1521.

The gallowglass or galloglass (also spelt gallowglas or galloglas) — from Irish: gallóglaigh (plural), gallóglach (singular) — were a class of elite mercenary warriors who principally were members of the Norse-Gaelic clans of Scotland between the mid XIII century and late XVI century. As Scots, they were Gaels and shared a common background and language with the Irish, but as they had intermarried with the X century Norse settlers of western Scotland, the Irish called them Gall Gaeil (“foreign Gaels”).

Large numbers of gallowglass septs settled in Ireland after being dispossessed of their lands in Scotland for choosing the wrong sides in the Wars of Scottish Independence. The first and probably most famous of these were the MacSweeneys (who unlike most were said to be of native Irish ancestry) settled originally by the O’Donnells in west Donegal. These were followed by MacDonnells, MacCabes, and several other groups settled by powerful Irish nobles in different areas. The gallowglass were attractive as a heavy armour-trained aristocratic infantry to be relied on as a strong defence for holding a position. In time there came to be many native Irish gallowglass as the term came to mean a type of warrior rather than an ethnic designation.

A Gallowglass and his kern attendants await their Irish lord, Shane O’Neill, during his visit to the court of Elizabeth I, London, 1562.

They were a significant part of Irish infantry before the advent of gunpowder, and depended upon seasonal service with Irish chieftains. A military leader would often choose a gallowglass to serve as his personal aide and bodyguard because, as a foreigner, the gallowglass would be less subject to local feuds and influences.

A raid depicted in The Image of Irelande (1581). Kern made up the bulk of the army, as light infantrymen.

The word kern is an anglicisation of the Middle Irish word ceithern or ceithrenn meaning a collection of persons, particularly fighting men. An individual member is a ceithernach. The word may derive from a conjectural proto-Celtic word *keternā, ultimately from an Indo-European root meaning a chain. It was adopted into English as a term for a Gaelic soldier in mediæval Ireland.

The lower position in a two-tiered army structure, lightly-armed and swiftly moving kern infantrymen attended the more skilled and heavily armoured gallowglass on the battlefield. The dart was the kern weapon of choice; javelins, and slings were also used in battle. They made up the overwhelming majority of Gaelic forces in the Middle Ages.

Order of Battle at Culloden

Order of Battle at Culloden.

Click on the map above for a much larger version; likewise the panorama below.

Panorama of the battlefield, circa 2007. The flag on the left side indicates the Jacobite lines; the flag on the right side shows the location of the Government lines.