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The Punitive Legislation of 1746

By Peter Lawrie, ©2017
The Jacobite Army had given the Whig Government a terrible fright, and so in revenge they were determined to strike at the roots of Highland life to eliminate any risk of a repeat, in spite of the fact that more than half of the "Highland Army" were not Highlanders.

Heritable Jurisdictions (Scotland) Act 1746 (20 Geo. II c. 43) The abolition of Heritable Jurisdictions was passed by the Westminster Parliament in the aftermath of the 1746 Rising. The Union of 1707 had recognized the jurisdictions and other heritable offices in Scotland as rights of property which continued in spite of the union, and so the Act provided for compensation to the deprived heritors. The Act struck directly at the power of the clan chiefs to control their lands and most importantly, their ability to raise fighting men. Within a generation or so it would lead to widespread Clearances as rentals from sheep became more important than loyal followers.

"An Act for taking away and abolishing the Heretable Jurisdictions in Scotland; and for making Satisfaction to the Proprietors thereof; and for restoring such Jurisdictions to the Crown; and for making more effectual Provision for the Administration of Justice throughout that Part of the United Kingdom, by the King’s Courts and Judges there; ... and for rendering the Union of the Two Kingdoms more complete. For remedying the inconveniences that have arisen and may arise from the multiplicity and extent of heretable jurisdictions in Scotland, for making satisfaction to the proprietors thereof, for restoring to the crown the powers of jurisdiction originally and properly belonging thereto, according to the constitution, and for extending the influence, benefit, and protection of the King’s laws and courts of justice to all his Majesty’s subjects in Scotland, and for rendering the union more complete."

The Dress Act 1746 was another part of the Act of Proscription which came into force on 1 August 1746 and which made wearing "the Highland Dress" illegal in Scotland as well as reiterating the earlier Disarming Acts of 1716 and 1725. The Jacobite Risings between 1689 and 1746 had found considerable, although by no means universal support amongst the Highland clans, and this Act was part of the measures intended to reduce the power of the chiefs, irrespective of their recent allegiance. However, this legislation had its greatest impact on poor folk who had little money with which to buy Lowland clothing. An exemption allowed the kilt to be worn in the army, continuing the tradition established by the Black Watch regiment.

As Peter Eslea MacDonald has pointed out in "The tartan ban, fact or myth" the Act did not ban tartan, per se, but specifically banned men and boys from wearing Highland clothes (ie kilt or plaid, whether of tartan material or not) or upper coats (that is jackets and great coats) made of tartan material. Tartan itself was not banned and there was no restriction on its use by women. Whether this made any difference in the late 1740s to the persecution of poor Highlanders might be debateable.

The Dress Act was repealed in 1782, thanks largely to the efforts of the Duke of Montrose. By then the plaid, kilt and tartan were no longer used by poor Highlanders, but soon the sons and grandsons of chiefs, whether Jacobite or Hanoverian, would create the Highland Society of Edinburgh and other clubs. Their aims included the promotion of "the general use of the ancient Highland dress". By 1822, this led to the Highland pageant of the visit of King George IV to Scotland turning what had been seen as the uncivilised outfits of mountain thieves into national dress claimed by the whole of Scotland.

Abolition and Proscription of the Highland Dress 19 George II, Chap. 39, Sec. 17, 1746:
"From and after the first day of August, one thousand seven hundred and forty seven, no Man or Boy, within that part of Great Britain called Scotland, other than such as shall be employed as Officers and Soldiers in His Majesty's Forces, shall, on any pretence whatsoever wear or put on the Clothes commonly called Highland Clothes (that is to say) the Plaid, Philabeg, or little Kilt, Trowse, Shoulder Belts, or any part whatsoever of what peculiarly belongs to the Highland Garb; and that no Tartan, or party-coloured Plaid or Stuff shall be used for Great Coats, or for Upper Coats; and if any such Person shall presume after the first day of August, to wear or put on the aforesaid Garments, or any part of them, every such Person so offending, being convicted thereof by the Oath of One or more credible Witness or Witnesses before any Court of Justiciary or any one or more Justices of the Peace for the Shire or Stewartry, or Judge Ordinary of the Place where such Offence shall be committed, shall suffer imprisonment, without Bail, during the space of Six Months, and no longer, and that being convicted for a second Offence before a Court of Justiciary, or at the Circuits, shall be liable to be transported to any of His Majesty's Plantations beyond the Seas, there to remain for the space of Seven Years."

The enduring memory of Butcher Cumberland
"As Commander-in-Chief, Cumberland must take responsibility for the many atrocities committed in the aftermath of the Rising, for he instigated them, but he was probably no worse than his Generals - Hawley in particular - and junior officers, whose brutish behaviour, especially when, as they frequently were, in their cups, is well documented. This was an era when murder, pillage and burning were the normal lot of the losing side in any fight but, even so, the reprisals against the ordinary Highland people were, to any normal mind, excessive and left an evil memory, distorted by time and politics."
("The Highland People" James D. Scarlett)