The Highlanders of Scotland - Clan Strachan Society

CHAP. VII] OF SCOTLAND 105
the right of chiefship, derived from being the lineal descendant
of the founder of the tribe, and thus it was the relation to
the common ancestor through whom the right was derived,
and not to the last chief, which regulated the succession ; the
brother being considered as one degree nearer to the original
founder of the race than the son.^
An attentive examination of the most ancient and purest
instances of Highland succession, will sufificiently show, that
the brothers of the chief invariably succeeded before the sons,
as a right, and according to a fixed rule, and not, as has been
generally supposed, that the succession of a brother before a
son was any departure from the established rule of succession
or produced by a species of election. This is in no case so
strikingly exemplified as in the succession of the Maormors
Maolbride, the first known Maormor, is succeeded
of Moray :
by his brother Finlay, Finlay by Malcolm, son of Maolbride,
and Malcolm by his brother Gillcomgain. But further, in the
third place, the Highland law of Tanistry had still another
peculiarity, which was this, that if the person who ought to
succeed was under age, his nearest male relation succeeded
and retained the chiefship during his life, although the projDer
heir had in the meantime attained majority. This will appear
from a curious passage in a chronicle of considerable antiquity,
which informs us, that there was an ancient law by which "in
cases that the children of the deceissand suld not have passit
'
The principle upon wliich the and thus the brother of Malcolm III.
Tanistic succession is founded was reigned after him to the exclusion of
recognised as the old law of succes- the son of Malcolm III."
sion in Scotland as early as the com- Baliol answered, "That if the brother
petition between Bruce and Baliol tor was preferred to the son of the king
the crown: — Bruce's third pleading the example proved against Bruce, for
was "that the manner of sicccession that the son, not the brother, was the
to the kingdom of Scotland in former nearest in degree." Hailes adds the
times made for his claim, for that the following just remark :— " Here Baliol
brother, as being nearest in degree attempted to answer Bruce's argument
(ratione proximitatis in gradu), was without understanding it. Bruce wont to be preferred to the son of the
deceased king. Thus, when Kenneth
M 'Alpine died, his brother Donald was
sup-
posed an ancestor to be the com^non
stock, and the degrees to be the persons
descending from that stock. Hence
preferred to his son Constantine: thus,
when Constantine died, his brother
Edh was preferred to his son Donald ;
the king's brother stood in one degree
nearer the common stock than the
king's son.''