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The system of clanship in the Highlands although possessing an apparent resemblance to feudalism, was in principle very different indeed from that system as it existed in other parts of the country. In the former case, the people followed their chief as the head of their race, and the representative of the common ancestor of the clan; in the latter, they obeyed their leader as feudal proprietor of the lands to which they were attached, and to whom they owed military service for their respective portions of these lands. The Highland chief was the hereditary lord of all who belonged to his clan, wherever they dwelt or whatever lands they occupied; the feudal baron was entitled to the military service of all who held lands under him, to whatever race they might individually belong.
The one dignity was personal, the other was territorial; the rights of the chief were inherent, those of the baron were accessory; the one might lose or forfeit his possessions, but could not thereby be divested of his hereditary character and privileges; the other, when divested of his fee, ceased to have any title or claim to the service of those who occupied the lands. Yet these two systems, so different in principle, were in effect nearly identical. Both exhibited the spectacle of a subject possessed of unlimited power within his own territories, and exacting unqualified obedience from a numerous train of followers, to whom he stood in the several relations of landlord, military leader, and judge, with all the powers and prerogatives belonging to each of those characters. Both were equally calculated to aggrandise turbulent chiefs and nobles, at the expense of the royal authority, which they frequently defied, generally resisted, and but seldom obeyed; although for the most part, the chief was less disloyal than the baron, probably because he was farther removed from the seat of government, and less sensible of its interference with his own jurisdiction.
The one system was adapted to a people in a pastoral state of society, and inhabiting a country, like the Highlands of Scotland, which from its peculiar nature and conformation, not only prevented the adoption of any other mode of life, but at the same time prescribed the division of the people into separate families or clans. The other system, being of a defensive character, was necessary to a population occupying a fertile but open country, possessing only a rude notion of agriculture, and exposed on all sides to aggressions on the part of neighbours or enemies. But the common tendency of both was to obstruct the administration of justice, nurse habits of lawless violence, exclude the cultivation of the arts of peace, and generally to impede the progress of improvement; and hence neither was compatible with the prosperity of a civilised nation, where the liberty of the subject required protection, and the security of property demanded an equal administration of justice.
The peculiarities of clanship are nowhere better described than in Burt’s "Letters from an Officer of Engineers to his Friend in London" " The Highlanders," he says, are divided into tribes or clans, under chiefs or chieftains, and each clan is again divided into branches from the main stock, who have chieftains over them. These are subdivided into smaller branches of fifty or sixty men, who deduce their original from their particular chieftains, and rely upon them as their more immediate protectors and defenders. One of the ironies of the Untou solution is that it is more likely to meet the needs of some claimants for recognition than it is to ensure a secure contractual environment for the mine: far from recognising something one might be tempted to call ‘customary land law’, it tacitly endorses the creation of politicised identities and attendant drawing of factional lines. This is ultimately the unintended outcome of policies conceived in the light of the ideology of the Melanesian Way. As a version of the Melanesian Way writ small, the search for ‘traditional landowners’ imagines a depoliticised world in which disagreements about mining entitlements have already been settled in advance through the customary usages of the ancestors.