Scotland in the Late Seventeenth Century
By the late seventeenth century the majority of Scots lived either in the central belt between the Clyde and Forth estuaries, or on that part of the Lowlands plain which follows the east coast from the Firth of Forth up to Aberdeen. The precise number of these inhabitants is impossible to determine, since there are no completely reliable statistics, but one interpretation of the hearth tax returns for 1691 calculates it to be 1,234,575 (of whom only 245,699 lived in the Highlands and Islands), compared with nearly 2 million in Ireland, 6 million in England and 20 million in France. Who were they? How and where did they live?
Lords, Peasants and Industrial Serfs
Between 80 and 90 per cent of Scots lived in the countryside, in hamlets which were called fermtouns in the Lowlands (kirktouns if they included a church) and clachans in the Highlands. The majority of them also drew their livelihood from the land, but at most only 10,000 of them owned any of it, and these landowners themselves varied enormously in the wealth they possessed and the power they exercised over others.
At the summit sat the upper reaches of the peerage, the Lowland nobles and Highland chiefs who held tenure directly from the Crown (although it is important to note that one person could, and in many cases did, simultaneously occupy both roles). The Scottish peerage had a large and growing membership, proportionate to the population, throughout the seventeenth century. At the Union of Parliaments in 1603 Scotland and England both had between 50 and 60 peers; but the former had a population of around 1 million, the latter a population of around 5 million. The number of peers grew equally in both countries while the population ratio remained constant. Consequently, at the Union of Parliaments in 1707 there were 154 peers in Scotland and 168 peers in England. The former consisted of, in descending order by title, 10 dukes (including Argyll in the western Highlands, Gordon in the north-eastern Lowlands and Hamilton in the central Lowlands), three marquises (Atholl, Douglas and Montrose), 75 earls (including Seaforth and Haddington), 17 viscounts (including Dupplin and Kenmure) and lastly, 49 lords. Let the greatest of all, the House of Argyll, stand for the rest.
Between 1607, when Archibald Campbell, the seventh Earl of Argyll, destroyed the power of Clan Donald on the Scottish mainland, and 1701, when Archibald Campbell, the tenth Earl, was created a Duke, the territory from which family drew their feudal rents grew fourfold in size to over 500 square miles. By the latter date Argyll himself held at least four major social roles. As representative of his family he was both Chief of Clan Campbell and feudal superior over the majority of the other chiefs and landowners in Argyll and areas of western Inverness-shire – an area of nearly 3,000 square miles. As representative of the central state in Argyll he embodied the law (as hereditary sheriff) and military power (as hereditary lord lieutenant). Only a handful of other nobles or chiefs – Atholl, Hamilton, Queensberry – could aspire to such authority as this, but the example shows in the most extreme form the different roles and powers which could be combined in one person.
Below the peers were the lairds, of whom there were perhaps 1,500. Since the lairds are sometimes taken to be the progressive element in rural Scottish society it is important to note that, like the English gentry, they were not a class but an estate, whose representatives sat as such in the Scottish Parliament. Their members fell into two main subcategories. The first, the barons, held tenure directly from the crown in the same way as members of the peerage. The second, the non-baronial lairds, were sub-vassals of the nobility, although they could be, and often were, wealthier than the barons who stood above them in the social hierarchy.
The ruling class in the countryside, to which I will henceforth refer as the lords, therefore consisted of the entire nobility, from the dukes down to the barons, plus those non-baronial lairds who themselves exercised jurisdiction over a feudal superiority. Their defining characteristic was that their wealth came in the form of feudal rent from those beneath them who, whatever the specific nature of their tenure, carried out their own labour on the land or paid others to help them do so. The majority of the lords were uninterested in orientating themselves towards market relations, since this would have meant undertaking long-term investment to which few could afford to commit themselves, particularly when the results would have been slow in making themselves felt. They were more concerned with maintaining a stable level of income and the social power that came from their traditional form of proprietorship. A conspicuous display of social position, not an ascetic commitment to capital accumulation, was the mark of a great man in seventeenth century Scotland. In 1699 John Hamilton, second Lord Belhaven, dedicated a precocious contribution to the literature of Improvement to his fellow lords, but felt it necessary to do so in these terms: 'Up then brave Youths, leave off Courts and Politics, especially at so great a Distance from you, and in another Kingdom: follow Husbandry and Trade, two necessary Twins, who like Man and Wife, ought not to be separated.' Belhaven, whatever else one may wish to say about him, knew where the actual interests of his audience lay, and why they would have to change; but he was virtually alone, at least among the lords, in making these arguments at the time.
The lords maintained their authority over their tenants through the exercise of the heritable jurisdictions, which both helped define the feudal mode of production and represented one of the main sources of countervailing power to the Crown. These jurisdictions took two main forms, baronies and regalities, which differed in terms of size and the powers which they conferred, but in both cases were private, hereditary and unalienable. As the title suggests, a barony corresponded to the domain of the local baron and accompanied the granting of land from the Crown. A baron court could try all criminal offences except treason and the 'four pleas of the crown' – arson, murder, rape and robbery. A regality was a larger unit, often comprising several baronies, and usually in the possession of a lord with greater status than a mere baron. As an index of his superior position, the lord of a regality could try all criminal offences except treason, which remained the preserve of the Crown. Where fines were imposed on offenders the revenues went directly to the feudal superior – the implications of which, given the parlous state of many noble finances, it should not be necessary to labour. Neither type of court was, however, concerned solely or even mainly with crime, but with the management of the estate and enforcing the duties of tenants. Neither the Crown nor its appointed sheriffs had any right to interfere with the lord within his own jurisdiction. Indeed, many sheriffdoms had themselves become hereditary and the property of men who were already lords of regality. Because the state had not been successfully reorganised on an absolutist basis, the economic functions of the territorial jurisdictions retained their former importance. The Stuarts attempted to curb or assume control over various type of jurisdiction on at least six occasions between 1455 and 1637, to little avail: 'Such grants, however, continued to be made; sometimes they were confirmed by Parliament; often they were not, but they were exercised all the same. They were revoked again and again, and still continued to be granted.' Had the Stuarts succeeded it would have massively increased the authority of the central state, and their failure is in itself eloquent testimony to the real balance of power between the lords and the Crown. Instead of creating a centralised authority to control the lords, the Crown strategy became one of supporting particular territorial lordships, such as those of Gordon in the north-east and of Argyll in the central west, in order to maintain local stability and act as counterweights to each other. The effect was, however, to help create the alternatives to royal power which it was intended to avoid. In this respect the territorial expansion of the Earls of Argyll, both as feudal superiors and as Chiefs of Clan Campbell, is only the most extreme example of a general process. The Cromwellian regime that ruled Scotland between 1651 and 1660 had temporarily suppressed the heritable jurisdictions, but they were reintroduced at the Restoration in 1660: Charles II needed the lords as much as they needed him, if the state was to function in Scotland.
The records of one, unexceptional baron court session held in Castle Forbes on 3 March 1662, show the operation of these jurisdictions. On this day, William, Master (i.e. eldest son) of Forbes, handed down instructions concerning when the tenants should pay their rent ('The said day, all tenants who pay victual duty are ordained to pay their whole rent in meal before the last day of March and their rent in malt before the 20th of May, under pain of paying ten pounds for the meal and twelve pounds for the malt'), the attitude they should take towards baronial officials ('The said day, it is enacted and ordained that all tenants within the lordship of Forbes give obedience to their ground officers in all matters concerning the law, under the penalty of twenty pounds for those who are able to pay it and of sitting for four days in the stocks for those who are not') and the punishments reserved for those who had the temerity not to turn up ('The said day, John Couper of Westhills is incited and ordained to pay forty shillings for his absence from the court').
The penalties that the jurisdictions made available to the lords extended, at least theoretically, to the death penalty. 'Every laird (of note) hath a gibbet near his house,' noted Thomas Kirke, an English visitor in 1679, 'and has power to condemn and hang any of his vassals; so they dare not oppose him in any thing, but must submit to his commands, let them be never so unjust and tyrannical.' Kirke was prone to exaggeration, but not to outright invention. An account of the same year, taken from the baron court of the Right Worshipful Sir Robert Gordon of Gordonstoun, reveals the continued exercise of the death penalty, although not by the gibbet. At the session of 25 August, the case of a woman called Janet Grant, who had been accused of theft by a local weaver, was heard:
The assizers [i.e. jurors] ... being enclosed by themselves, did give their verdict sealed, by the hand of John James their chancellor [i.e. spokesperson] by which they found the said Janet guilty of the crimes for which she was accused. Whereupon the judge gave sentence that she shall be conveyed back from thence to prison, and to remain till the morrow, being the 26th instant, and thence to be carried, betwixt 2 and 6 o'clock in the afternoon, to the Loch of Spynie and there to be drowned under water till she be dead.
On the next day the sentence was carried out 'and the said Janet went down evacuating curses on her persecutors'. The point here is not the nature of the sentence passed on Janet Grant, for even in a nonhereditary sheriff court the death sentence would likely have been imposed. Nor is it the means by which the sentence was executed. In the same source we learn that, during 1700, the magistrates in Elgin paid the marshal £20 for the equally barbarous if non-fatal work of whipping two people, cutting the ears off two more and branding a further two with a hot iron. The point is rather that the death penalty was in the power of a lordly jurisdiction out with the authority of the central state. These powers were not removed by the Revolution of 1688. In the regality of Grant during September 1697, three men who confessed to the theft of cattle were first imprisoned at Grant Castle, then hanged at Gallowhill in Belintomb. In the barony of Breadalbane during May 1701, a man found guilty of the theft of three wedders and a horse was condemned to be hanged at Killin by John, Earl of Breadalbane.
Nor were the jurisdictions all archaic survivals. Shortly after the fall of the Stuarts in 1688 the Grants of Speyside were given a regality as a reward for supporting William of Orange. Shortly before the Treaty of Union in 1707 Lovat was granted to William Mackenzie of Prestonhall. By the first quarter of the eighteenth century, Lanarkshire alone was the site of one heritable sheriffdom belonging to the House of Hamilton, eight regalities, two baronies, four commissary courts and the magistracy of Lanark and Hamilton. By the time the jurisdictions were finally abolished in 1747, there were in Scotland a total of 16 hereditary sheriffdoms, 200 regalities and 1,000 baronies.
After the Jacobite rising in 1745 made the issue unavoidable, one anonymous English commentator noted the authority which these jurisdictions conferred on the lords, writing that 'the Barons ... have power not only in Life and Limb but in an absolute sense too ... So that in fact these Lords of Regality are Sovereigns, not subjects.' This had been recognised far earlier by the Scots themselves. In 1700, William Seton of Pittmeden proposed that the Scottish Parliament should pass an Act appointing 'some judicious Gentlemen of every County, to be chosen annually by Land-Proprietors of 40 pounds Sterling a year, and above, who should have power to decide all controversies arising between Master and Tenant, (for it is not just, that the Master should be both Judge and Party, as it often happens in Baron courts)'. Where Parliament was composed of the very people who benefited from the existing arrangements, however, such reforms were unlikely to be forthcoming.
The heritable jurisdictions were not the only form of power which the lords exercised. The form of tenure known in Scotland as wardholding was the most fundamental to military feudalism. Sir Thomas Craig was legal adviser to James VI and I before his accession to the English throne, and the author of an important work on the feudal law, dedicated to James, which remained unpublished for nearly 50 years after his death in 1608. His book, Jus Feudale, as several authorities have noted, is not so much an analysis of Scots law during the feudal period, as a codification of the feudal law in general with special reference to Scotland. It is a codification that was only possible in retrospect, as the classic age of military feudalism gave way to that of absolutism. Yet precisely because Scotland had not made that transition, much of what Craig wrote about military feudalism was not a matter of historical retrospect but of contemporary description, as events would confirm on several occasions over the next 150 years. Craig attempts to play down the relevance of military tenures: 'In Scotland, where military holdings are now old fashioned and feudal grants have become matters of commerce and profit, the feudal oath is entirely forgotten; but notwithstanding, we continue to hold our vassals bound by the obligations of fealty.' Yet he undermines his own argument in two respects. First, fealty requires the vassal to protect the 'life or person ... honour and reputation' of his lord. If the lord requires vassals to participate in an 'armed endeavour', then no special form of requisition is required: 'For military service differs from all other kinds of feudal service in that it is (as every vassal knows) the radical condition of his tenure.' Second, even where lands were feued out 'it is important to remember that a feu is presumed to be proper unless it is shown by the terms of its investiture to be that its proper or genuine character has been modified.' 'Proper', in this context, means 'military'. As late as 1681, Sir James Dalrymple, first Viscount Stair, in a further codification of the existing feudal law much influenced by Craig, could write of wardholding that: 'It is the most proper feudal right we have; and therefore wherever the holding appeareth not, or is unclear, there wardholding is understood [i.e. assumed to be the prevailing form of tenure].' What this meant in practice, outside these works of legal theory, was expressed with admirable clarity by Macdonell of Keppoch, who, when questioned as to the size of his rent roll, simply replied: 'I can call out and command 500 men.'