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principles of a corporation. Similarly, the local, state, and national
communities have “public policies” that dictate the norms of the
community or the public based on its beliefs and values regarding justice,
fairness, and equality. Judges may consider public policy to determine the
impact their rulings or legal principles will have on society as a whole.
Net News
For an overview of tort law and what it encompasses, go
to http://www.law.cornell.edu. Scroll down to “Popular Topics” and select
“Accidents and Injuries.”
All laws, including tort law, are based in some part on the public policy of
the society and/or the community. To find the public policy underlying a
law, one must look at the rationale or reason for the law. For example, a
community may have an ordinance that prohibits the opening of an adult
book store within 300 feet of an elementary school. The public policy
underlying such an ordinance is the community policy or value that young
children should not be exposed to adult book stores and their patrons.
Understanding public policy is essential to understanding tort law.
Why, you might ask, must the interest of society be considered when
dealing with a dispute between two individuals? Because our common law
system is based on case precedent, every decision rendered by a court has
the potential of establishing a rule that must be followed by other courts.
Society, therefore, has an interest in ensuring that disputes between
litigants are resolved through a process of resolution that is fair and just
for all concerned. The very principles set forth today will be those that
govern the cases of tomorrow.

1-5 Morality of Conduct

Is the morality of a defendant’s conduct relevant in tort law? Although
personal morality may be subject to variation, tort law borrows heavily
from a sense of public morality. It can be said that, at least in certain
cases, we all have a sense of what is universally regarded as right and
wrong. Tort law generally reflects that sense.
There are circumstances, however, in which a defendant can be held liable
even though he or she has violated no moral code. One who, for example,
trespasses on the land of another in the reasonable belief that it is his own
land is still liable for trespass. With the increasing popularity of no-fault
torts, such as strict liability, we appear to be moving away from a need to
cast moral judgment on a defendant’s conduct. In contrast, tort law does
not deal with all blatantly immoral acts. Although it may be morally
reprehensible, for example, to allow a stranger to die when you could save
her, in most circumstances you will have committed no tort.

1-6 Slippery-Slope Arguments

Case precedent, the effect of a ruling on a future case, is a major part of
the development of tort law. Courts are often hesitant to crack open a legal
door in a particular case for fear of creating a “flood of litigation,” an
occurrence they are ever on the alert to avoid. For that reason, some types
of flagrant misdeeds are not vindicated by tort law. Relatively trivial
concerns must also go by the wayside in an effort to minimize the flood of
litigation. Many of our most grievous hurts are inflicted in the context of
interpersonal relationships and yet most of these must go without redress.
Lovers are jilted, children are verbally belittled by parents, friends are
“used,” and so on. The law cannot become enmeshed in these psychically
damaging events if the legal system is to avoid the administrative
nightmare created by an onslaught of cases. Clearly, not all human wrong
can be remedied.
Perhaps you have heard of the slippery-slope argumentArgument that
once you take a first step in allowing something in one instance, you are in
danger of sliding the “slippery slope” into a bottomless pit of
circumstances requiring comparable treatment, which means, essentially,
that use of an argument in one case will allow application of that same
argument in innumerable other cases. The metaphor is used to show that
once you take the first step, it is too easy to fall down the slippery slope to
the bottom of the hill, presumably into a morass of undesirable outcomes.
The slippery-slope argument is, in essence, an administrative concern. A
court fears that if it finds negligence on behalf of the sympathetic plaintiff
before it, hundreds of thousands of similarly situated individuals or those
whose situations are analogous to the case will also seek similar redress.
The precedential effect of arguments regarding physician-assisted suicide,
racial composition of juries, and the use of marijuana for medical
purposes are among the many slippery-slope issues considered by the
courts.
Keep in mind that, although courts are to focus on the long-term in making
their decisions, they sometimes are understandably sympathetic to the
plight of the individuals before them. In such cases they often render
decisions that meet the short-term goals of justice but that prove untenable
over the long run. Justice, you will soon discover, is an illusory goal that
often eludes capture by even the most conscientious judge.

1-7 Creation of Case Law

Tort law is largely a product of case lawCase-by-case decision making by
the court, which involves case-by-case decision making by the state
courts. This decision-making process is affected, to some degree, by
statutes, which the courts are mandated to follow unless statutory gaps
exist that leave a court with unanswered questions. Some statutes, such as
the wrongful death and survival acts, directly address issues that arise in
the context of tort law. Others, such as certain criminal statutes, serve as
guidelines to the courts in establishing policy. A statute, for example, that
makes it a misdemeanor to drive while under the influence of alcohol sets
forth the standard of care expected of drivers. A driver having a blood
alcohol level in excess of the statutory limit would be considered to have
breached the duty of care he owed to those around him.
Another guideline that courts use in formulating their holdings is
the Restatement of the Law of Torts. The Restatement was compiled by
eminent legal scholars and practitioners in an attempt to provide lawyers
and judges with black-letter lawLegal principles generally accepted by
the legal community(legal principles generally accepted by the legal
community, also referred to as black-letter law) of tort law. Adopted in
many jurisdictions, the Restatement is frequently cited in court opinions.
Although criticized for creating the impression of uniformity in the law
where there is none, the Restatement is nevertheless a frequently used
guide through the maze of tort law decisions. For this reason,
the Restatement is often cited throughout this text. Keep in mind, however,
that your state may not have adopted the Restatement position. Consult the
case law in your state when dealing with a specific case.
Net News
To learn more about the American Law Institute, which publishes
the Restatements, and to gain a better understanding of what
the Restatements are and how they are compiled, go to your favorite search
engine and locate the archives of the American Law Institute. Refine your
search under “Collections.”

1-8 Relationship Between Tort Law and Other

Areas of the Law
1-8a Torts versus Crimes
How does a tort differ from a crime? Although the two share several
similarities, they differ in terms of the interests affected, the remedy
granted, standard of proof, and procedural mechanisms used (see Exhibit
1–2). A crime is considered an offense against society, whereas a tort is an
offense against another individual or group of individuals. The purpose of
prosecuting someone who has committed a crime is to vindicate the
interests of society by punishing the offender. The purpose of suing in tort,
in contrast, is to compensate the victim.
Although the primary purpose of criminal law is punishment and the
primary purpose of tort law is compensation, there is some overlap
between the two. Compensation given to the victim of a crime (known
as restitution Compensation for a crime given to the victim) is frequently
used by the courts as part of an offender’s sentence. By the same token,
punitive damages, which are intended to punish the tortfeasor One who
has committed a tort (one who has committed a tort), are used in certain
circumstances in tort law. Despite this overlap, the primary functions of
criminal law and tort law remain distinct.
Exhibit 1–2
Torts versus Crimes
TORTS CRIMES
PURPOSE Compensation Punishment
STANDARD OF PROOF Preponderance of Evidence Beyond a Reasonable Doubt
INTERESTS VIOLATED Individual's Interest Society's Interest
PROCEDURAL RULES Civil Rules Criminal Rules

Moreover, the rules of civil procedure are used in tort cases, whereas the
rules of criminal procedure are used in criminal cases. Also, the plaintiff’s
burden of proof in a tort case requires proof by a preponderance of the
evidence Standard of proof requiring a showing that each element is more
probable than not; the state’s burden of proof in a criminal case is
proof beyond a reasonable doubt Standard of proof requiring a showing
of almost absolute certainty for each element. The rules of evidence
applicable in criminal cases vary from those applicable in civil cases.
Many acts may be both a crime against the state and a tort against the
individual. If a drunk driver, for example, is involved in a vehicular
accident, she may be charged with a criminal offense as well as sued by
the injured parties for negligence. For this reason (among others) those
charged with criminal offenses often plead nolo contenderePleas of “no
contest”; not an admission of guilt (no contest). If they were to plead
guilty, their admission of guilt could be used against them in a subsequent
civil trial, whereas a plea of nolo contendere could not. This is true,
however, only if the issue tried in the criminal case is also relevant to
some aspect of the tort action. Because of the lower standard of proof in a
civil case, the plaintiff in a tort case will have an easier time establishing
liability than the state will have proving guilt in a criminal case. In the
trial of the twentieth century, the defendant O. J. Simpson was acquitted of
criminal charges and found liable for the same conduct under tort
principles in a civil case.
clear and convincing evidenceClear and convincing evidence requires a
higher burden of persuasion than “preponderance of the evidence” but less
than that required by “proof beyond a reasonable doubt.” In most states the
standard requires the judge or jury to find the evidence submitted is
substantially more likely to be true than not true is a standard required in
some administrative hearings and certain civil and criminal proceedings.
It is, for example, the standard the state must meet to prove property is
subject to forfeiture as well as the burden for plaintiffs who allege fraud
and is also applicable to paternity and some probate issues.

1-8b Torts versus Contracts

Tort law differs from contract law in terms of the voluntariness of entering
into an agreement. When two or more parties create a contract, they each
agree to give up something in return for receiving some benefit. In a
contract action, the parties have voluntarily and knowingly assumed duties
or obligations to others. In tort law, by contrast, duties are imposed by the
law without the express consent or awareness of those involved (Exhibit
1–3). If a guest is injured on a landowner’s premises, the landowner is
liable, not because he expressly contracted to prevent injury to the guest,
but because the law imposes certain obligations on him by virtue of being
a landowner.
The remedy in a contract case is to compensate the prevailing party with
the benefit of the bargain. In other words, the remedy is to provide them
with what was expected under the contract. In a tort case the remedy is
much broader and the victim of a tort may be awarded monetary damages
for pain and suffering, economic damages, and punitive damages.
Exhibit 1–3
Torts versus Contracts
TORTS CONTRACTS
DUTIES ASSIGNED Imposed by Law By Parties' Consent
OBLIGATIONS MADE TO Society in General Specific Individuals

Just as with criminal law, however, there is an overlap between tort law
and contract law. Certain tort duties may coincide with those duties set
forth in a contract, for example, so that if a party fails to live up to its
obligations, an action may lie in either tort or contract. Additionally, some
quasi-contractual obligations (such as the obligation to act in good faith)
are imposed by law without the consent of the parties, just as in tort law.
One other distinction between contract and tort law is that in contract law,
obligations are made to specific individuals by virtue of an agreement of
the parties; whereas in tort law, duties are imposed by law and owed to
society. In tort law, one is bound to act as a reasonable person toward all
other persons, but in contract law one is bound in contract only to certain
chosen individuals. This distinction is not completely valid, however, in
that tort law principles impose special duties in some cases because of the
relationship one has with another. An employer, for example, owes duties
of care to her employees that she does not owe to other persons.
You will find as you pursue your study of torts that this area of law
overlaps with most other areas of law. Therefore, you will frequently find
yourself referring to knowledge that you have gained from the study of
property law, constitutional law, criminal law, contract law, corporate law,
and so on.

1-9 Brief History of Tort Law

If this is the point in most textbooks where you skip ahead, try to
persevere. You might be surprised at how interesting the evolution of tort
law really is (Exhibit 1–4).
Exhibit 1–4
Evolution of Tort Law
Blood feud (no fault)
Action in trespass (no fault)
(Vi et armis)
(Direct use of force)
Trespass on the case (wrongful intent or negligence)
(No force or indirect injury)
Negligence (fault required)
 Strict liability (no fault)

In barbaric societies the only “law” that seemed to control group behavior
had its roots in the blood feud. The protocol of the blood feud required that
the clan go to war against any outsider who inflicted harm on a clan
member, thereby dishonoring the clan as a whole. Atonement for the
humiliation suffered by the victim’s kin seemed the primary goal.
Despite the obvious deterrence this system of justice provided, its inherent
violence and its toll on those who were obligated to protect family and
clan members prompted reform. Ultimately a negotiation process was
developed in which the victim summoned the perpetrator to the “moot”—a
forum in which the victim pleaded his case to the community and asked
for a redress of his grievance. Community members offered advice about
how best to resolve the dispute. When a solution acceptable to both victim
and perpetrator was found, the parties dispersed and the blood feud was
averted.
When the law first assumed a more civilized veneer, the remedies created
served as substitutes for the feuding process, and thus emerged the concept
of monetary compensation. Early in Anglo-Saxon history, individuals were
assigned a monetary value based principally on their rank. Money instead
of blood was offered as a salve for injured clan pride. Compensation was
directed toward the clan rather than the individual, and awards were
distributed proportionately among the injured person’s relatives. There
was no distinction between crimes and torts. Furthermore, there seemed to
be no concern regarding issues of fault or blameworthiness. Even the most
remote causal connection was sufficient to justify the imposition of
punishment.
Interestingly enough, during this same time period vengeance was exacted
on whatever was determined to be the immediate cause of death, even if it
was an animal or inanimate object. The offending object, be it a horse or a
sword, might be turned over to the victim or the victim’s family to be used
as they saw fit, or delivered to the king.

1-9a Action in Trespass

Over time the moot process of dispute resolution led to the establishment
of certain fundamental rules. Communities discovered, through trial and
error, those decisions that led to the greatest peace and harmony.
Following the Norman Conquest, the dispute resolution process fell to the
royal justices of the king’s courts. They soon discovered that following the
already established local rules provided optimal efficiency in resolving
conflict. As a result, the local rules eventually evolved into what is now
known as the common law.
The action in trespassEarly cause of action involving serious, forcible
breaches of peace that evolved to encompass even minor physical contact;
no showing of fault was required, which emerged sometime in the middle
of the thirteenth century, was one of the products of the common law
evolution. This action, which was basically of a criminal nature, dealt with
serious and forcible breaches of peace. One of its requirements was the
showing of force and arms, referred to as vi et armis.
The plaintiff had to allege that the defendant had used force directly on the
plaintiff’s person or property, thus the term vi et armis appeared in every
writ of trespass as a matter of course. No further showing of
blameworthiness or fault on the part of the defendant was necessary. As
time went on, however, even mild, innocuous physical contact was
sufficient for the plaintiff to prevail in a trespass action, and the pleading
of vi et armis became a mere technical device.
To see an example of a trespass in action, read the whimsically written
case of Tricoli v. Centalanza. Do not be concerned if you do not fully
understand the legal arguments, because we have not yet discussed the
legal concepts at issue. In essence, the appellate court concluded that the
trial court was justified in requiring only one of the defendants to pay all
of the plaintiff’s damages and in assessing damages even though the
plaintiff’s damages were arguably inconsequential.
Case
Tricoli v. Centalanza et al.
126 A. 214 (1924) Supreme Court of New Jersey. Oct. 8, 1924
“Run away, Maestro Juan, I am going to kill you.” Such was the ferocious
threat that disturbed the atmosphere, not of prehistoric Mexico, where
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upon desolate plains the savage coyote still bays at the moon, nor yet of
classic Verona, where dramatic memories of the houses of Montague and
Capulet still linger to entrance the romantic wayfarer, but from the
undiluted atmosphere of Bloomfield Avenue, where it winds its attractive
course through the prim rococo shades of modern Montclair, which upon
the day succeeding Christmas in 1923 sat like Roma immortalis upon its
seven hills, and from its throne of beauty contemplated with serene
satisfaction the peace and tranquility of the modern world.
The Maestro, however, with true chivalric disdain, refused to retreat, but
determined at all hazards, like Horatius, to hold the bridge, or rather the
stoop, upon which he stood. Like a true Roman, inoculated with the
maximum percentage of American patriotism, he turned defiantly to the
oncoming house of Centalanza, and proclaimed in the bellicose language
of the day, “You too son of a gun.”
In the days of the Montague and Capulet, aristocratic rapiers and swords
defended the honor of their respective houses; but in this day of popular
progress the Maestro and the Centalanza sought only the plebeian defense
of fists and a shovel. As a result of a triangular contest, the physician
testified that the Maestro was battered “from head to buttocks”—a
distribution of punishment, it may be observed, which, while it may not be
entirely aesthetic in its selection of a locum tenens, was to say the least
equitably administered and distributed. Indeed, so much was the Maestro
battered that his daily toil lost him for 12 days, and the trial court
estimated that this loss, together with his pain and suffering, and the
aggravation of the trespass, entitled him to receive from the house of
Centalanza $240.
The latter, however, has appealed, and alleges that the Maestro proved no
substantial cause of action against them. But the learned trial court, upon
this contested state of facts, concluded, and we think properly, that there
was an issue of fact thus presented, since the suit was for assault and
battery in the nature of trespass vi et armis. But the defendants Centalanza
insist that two distinct encounters took place, one by both defendants, and
the other by one only, and they ask: How can such a physical contretemps
be admeasured, so as to impose upon each member of the house of
Centalanza his fair share of compensation for his physical contribution to
the melee? The inquiry possesses its latent difficulties, but, since it is an
admitted rule of law that the court will not distribute the damages between
tortfeasors, upon any theory of equitable admeasurement, the house of
Centalanza obviously must bear the entire loss, without seeking a partition
thereof. . . .
Indeed, it would prove to be a rare feat of judicial acumen were the court
to attempt to give due credit to Donato Centalanza for the prowess he
displayed in his fistic endeavors, and to assess to Raffale Centalanza his
mead of financial contribution for the dexterity with which he wielded his
handy implement of excavation. It is doubtful, even in these days of the
mystic prize ring, whether such a metaphysical test may be included
among the accredited mental accomplishments of a quasi-militant
judiciary, which, while it occasionally indulges in a caustic punch, still
strenuously endeavors to maintain the proverbial respectability and regal
poise of its ancestral prototype. In such a situation we are not inclined to
impose this extraordinary and novel field of jurisdiction upon our inferior
courts. The occurrence of trespass vi et armis confers upon the trial court
the right to assess exemplary damages as smart money, and this the trial
court properly did under the circumstances of the case. . . .
It is contended, however, that the actual damage sustained by the Maestro
was inconsequential, and that the rule, “De minimis non curat lex,”
applies. It must be obvious, however, that damage which to the attending
physician seemed to penetrate the Maestro “from head to buttocks” may
seem trivial to us as noncombatants, but to the Maestro it manifestly
seemed otherwise, and doubtless punctured his corpus, as well as his
sensibilities. Indeed, he well might declare in the language of the gallant
Mercutio of Verona, concerning the extent of his wound: “It is not as wide
as a church door, or as deep as a well, but’ twill serve.”
The judgment will be affirmed.

1-9b Trespass on the Case

The action in trespass was highly restrictive in that it precluded recovery
by those who could show no use or only indirect use of force by the
defendant. A companion form of action known as trespass on the
caseEarly cause of action involving injuries inflicted indirectly and
requiring some showing of faultarose to allow recovery in the absence of
force or in cases where an injury was inflicted indirectly. A plaintiff who
was injured when the defendant wielded a plank of wood against him
could pursue an action in trespass to redress his injuries, whereas a
plaintiff who tripped over that same piece of wood left carelessly in her
path by the defendant had to resort to an action on the case.
Although damage to the plaintiff was implied in an action in trespass, the
plaintiff in a trespass on the case was required to show injury and damage.
Trespass-on-the-case actions demanded proof of the defendant’s wrongful
intent or negligence, whereas an action in trespass required no showing of
fault. Trespass on the case was frequently used as a means of recovering
for breach of a legal duty grounded on custom. Those who served the
public, such as innkeepers, were frequently the defendants in such cases.

1-9c Negligence
The development of public transportation seems to have had a profound
influence on the evolution of tort law. As the courts were faced with more
traffic-related cases, they came to the realization that decisions
mechanically rendered in favor of victims under the trespass theory
(which merely required the showing of direct force) would have a
prohibitive effect on the use of highways. Under this approach, few could
afford to risk traveling on the highways and losing their fortunes as a
result of an accident. Thus, the idea of negligence emerged as a
compromise. Travelers were granted some measure of protection from
liability as long as they drove in such a manner that they reduced the risk
of accidents.
The rise of negligence as a cause of action coincided with the
disintegration of actions in trespass and trespass on the case, although
negligence ultimately assumed many of the characteristics of a trespass-
on-the-case action. The distinction between trespass and trespass on the
case has basically disappeared except in a few states where some trace of
the distinction has been retained through common law pleadings. One
vestige of the distinction that continues to hang on, however, is the
necessity of proving damages. Torts that trace their ancestry back to
trespass require no proof of actual damages; those that trace back to
trespass on the case do require such proof. Although reminders of these
dinosaurs of tort law emerge occasionally, they have for the most part been
replaced by the modern torts that are the subject of this text.

1-10 Coming Full Circle

This brief overview of the development of tort law demonstrates the
cyclical evolution of our attitude toward the notion of fault. Strict liability
(no fault) reigned supreme during early Anglo-Saxon law and was evident
in the action in trespass. Only in actions on the case did the notion of duty
and neglect arise. Now, at the beginning of the twenty-first century, strict
liability has once again assumed importance in our legal system. More and
more modern courts are assigning liability even where there is no showing
of fault.
How did this notion of no fault assume such importance in tort law? To
understand, we must look back to the scientific revolution that followed
the Civil War. Influenced by the technological wonders of the Industrial
Revolution, intellectuals embraced the supremacy of scientific thought.
Legal scholars, led by Oliver Wendell Holmes (an influential Supreme
Court Justice), also adopted the scientific paradigm as they sought to
create common principles that specified when individuals were entitled to
compensation for the wrongs they had suffered. In so doing, these
“scientific” scholars created a general duty of care that resulted in a fault
theory of tort law.
At the beginning of the twentieth century, problems of poverty and social
disadvantage began to be seen as societal rather than individual problems.
Increasingly the government was called upon to intervene and redress the
wrongs visited upon individuals. The tort “scientists,” who had been
content to systematically catalog the rules of tort law, gave way to the
legal “realists,” who saw themselves more as revolutionaries than as mere
observers. No longer content with rules that created fair results between
parties, these scholars strove for rules that equitably distributed losses. In
other words, tort law came to be viewed more as a means of creating a just
society than as simply a peaceful resolution of interpersonal disputes. The
fault theory of tort law was abandoned in favor of a system that provided
social justice. William Prosser, one of the most noted tort scholars and
author of one of the most influential treatises on tort law, advocated that
the purpose of tort law was to provide justice rather than to simply punish
and deter inappropriate conduct. He forcefully and successfully lobbied
for the adoption of strict liability in reference to defective products on the
premise that liability should be borne by those best able to bear it (the
manufacturer).
For what reason have we taken this brief excursion through the historical
roots of tort law? Learning tort law is not just about memorizing case law
and legal principles. A true understanding of tort law requires a knowledge
of the purposes it serves and its relationship to societal goals and needs.
Much ado is being made today about the reform of tort law, but these
reforms have essentially arisen as members of society wrestle with certain
basic issues. Should society bear the cost of losses suffered by individuals,
or should that responsibility be shifted to the individual? What role should
fault play in tort law? Is the purpose of tort law merely to resolve disputes,
or is it to see that justice is done?
Looking into the mirror of the past often helps us better understand where
we are going in the future. Knowing the historical derivation of tort law
will give you some insights about the tort reforms advocated today.
Knowing how those who have come before us have answered the questions
raised above helps us as today’s legislators, voters, jurors, and judges
struggle to answer these same questions. In Chapter 16 we examine tort
reform issues. Those issues cannot be adequately addressed without
considering the philosophical implications they raise. Our brief interaction
with tort law of the past shows that these philosophical questions are
neither new nor easily resolved.

1-11 Classification of Torts

Today torts are divided into three categories, depending on the nature of
the defendant’s conduct: intentional torts, negligence, and strict liability.
By far the most common is negligence. The bulk of personal injury
practice centers around automobile accident cases, “slip and fall” cases,
and other types of cases in which someone failed to use reasonable care.
Strict liability is found to a lesser degree, usually in the context of product
liability. Intentional torts usually involve conduct that also constitutes a
crime such as a battery or an assault. Tort law differs from criminal law in
terms of the purposes, burden of proof, and procedural rules.
The organization of this text reflects the relative importance of each of
these tort classifications. Although considerable coverage is devoted to
negligence and related topics, relatively little consideration is given to
intentional torts. Although intentional torts are conceptually easier to
comprehend than negligence, negligence is addressed in depth because
paralegals must have a solid foundation in negligence when they begin
practicing, even if their understanding of intention is a bit superficial.
We divide our discussion into three separate areas, but you should be
aware that many torts may be based on any one of the three types of
conduct. Misrepresentation, for example, can be committed intentionally,
negligently, or with no fault (strict liability), as can defamation.
Malpractice is a tort based on negligence. Bad faith is primarily an
intentional tort. But many other causes of action are hybrids that defy
precise classification. Rather than trying to pigeonhole all torts into neat
categories, recognize that some distinctions are blurred.
1-12 Chapter Review
1-12a Summary
A tort can be defined as a civil wrong for which the victim receives
compensation in the form of damages. The feeling that socially
unreasonable conduct should be penalized underlies tort law, and much of
the case law is focused on determining what constitutes unreasonable
conduct. In some cases, however, reasonableness is not an issue because
the goal is to protect society no matter how reasonable the conduct.
Public policy concerns prevail throughout tort law. These concerns center
primarily around the ideals of justice, fairness, and equality held by the
public or the community and become community policies that provide the
purpose or rationale underlying the principles of tort law. One of the
philosophical dilemmas that permeates tort law is how much weight
should be placed on the needs of society when resolving disputes between
individuals. In balancing these needs, courts frequently resort to slippery-
slope arguments to justify their refusal to grant relief to sympathetic
plaintiffs.
Tort law is largely a product of common law, although statutes are, in
some instances, relied on. The courts frequently look to the Restatement of
the Law of Torts in formulating the law.
Although similar in some ways to crimes, torts differ in terms of purpose,
burden of proof, and procedural rules. Many acts are considered both a
crime and a tort. Torts differ from contracts in that the duties assigned
according to tort law are those imposed by law, whereas those assigned in
the context of contracts are by virtue of the party’s consent. Furthermore,
in contract law obligations are assumed toward specific individuals,
whereas tort law assumes that obligations are owed to society as a whole.
The origin of tort law can be traced back to the blood feud, which evolved
into the “moot” process of dispute resolution and ultimately developed
into the common law. When the concept of monetary compensation
emerged, it was directed toward the clan rather than the individual. The
action in trespass, which evolved in the thirteenth century, required proof
that the defendant used force directly on the plaintiff or his property. The
plaintiff did not, however, have to prove fault on the part of the defendant.
In contrast, trespass on the case allowed recovery even when the defendant
did not use force or inflicted injury indirectly. Proof of damages and the
defendant’s wrongful intent or negligence were, however, required in a
trespass-on-the-case action. The concept of negligence developed along
with the evolution of public transportation. At the same time, actions in
trespass and trespass on the case fell into disfavor and ultimately
disappeared. Strict liability has now assumed an important role in tort law
and is evidence of its cyclical evolution in that the law began with no fault
(action in trespass) and has now culminated in no fault. Tort law bears the
imprint of the “scientific” scholars and legal realists who sought its
reform.
Chapter Review
1-12b Key Terms

· action in trespassEarly cause of action involving serious,

forcible breaches of peace that evolved to encompass even minor
physical contact; no showing of fault was required

· beyond a reasonable doubtStandard of proof requiring a

showing of almost absolute certainty for each element

· black-letter lawLegal principles generally accepted by the

legal community

· case lawCase-by-case decision making by the court

· clear and convincing evidenceClear and convincing evidence

requires a higher burden of persuasion than “preponderance of
the evidence” but less than that required by “proof beyond a
reasonable doubt.” In most states the standard requires the judge
or jury to find the evidence submitted is substantially more
likely to be true than not true

· nolo contenderePleas of “no contest”; not an admission of

guilt

· preponderance of the evidenceStandard of proof requiring a

showing that each element is more probable than not

· public policyPolicy of the public or a community that dictates

the norms of the community based on its beliefs and values
regarding justice, fairness, and equality

· restitutionCompensation for a crime given to the victim

· slippery-slope argumentArgument that once you take a first

step in allowing something in one instance, you are in danger of
sliding the “slippery slope” into a bottomless pit of
circumstances requiring comparable treatment

· tortCivil wrong for which victim receives compensation in the

form of damages

· tortfeasorOne who has committed a tort

· trespass on the caseEarly cause of action involving injuries

inflicted indirectly and requiring some showing of fault
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 While the death of Dundee seemed to give stability to the
government in Scotland on the one hand, its safety appeared to be
endangered on the other, by the jealousies and dissensions which
agitated the parliament. Among the persons who had been
instrumental in bringing about the revolution, there were some
extreme Presbyterians, who, seeing that their expectations were not
to be realized, and that all the offices of trust were monopolized by a
few favourites about court, became factious and impatient, and were
ready to seize the first opportunity that offered of overturning the
government. Sir James Montgomery was at the head of this
disaffected party, which, during the ensuing winter, held several
private meetings. The result was, that a most extraordinary and
unnatural coalition took place between the Jacobites and the
discontented Presbyterians for the restoration of King James. By
uniting their votes in parliament they expected to embarrass the
government, and make it odious to the people, and thereby pave the
way for the return of the exiled monarch; but their designs were
disconcerted by a discovery of the plot.
Mackay had now grown heartily tired of the service, and as his
plans for the subjugation of the Highlands had been treated with
indifference or neglect by the government, he became desirous to
resign his commission, and retire to Holland, his adopted country,
there to spend the remainder of his days in peace. There was
certainly nothing in the situation of his native country at the period
in question to induce him to remain. An unpaid, disorderly, and
mutinous army; an oppressed people, a discontented nobility, a
divided parliament and council; “church divided into two more
irreconcileable factions, though both calling themselves Protestants,
than Rome and Geneva,” matters deemed of so little importance by
the first reformers as scarcely to be mentioned in their writings,
preferred by the “religious zealots” of those days to the well-being of
the whole Protestant church, the Episcopal ministers who had been
ejected preaching “King James more than Christ, as they had been
accustomed to take passive obedience more than the gospel for
their text:”—these considerations all tended to disgust a man of a
moderate and conciliating disposition like Mackay, and made him
“look upon Scotsmen of those times in general, as void of zeal for
their religion and natural affection, seeing all men hunt after their
particular advantages, and none minding sincerely and self-deniedly
the common good, which gave him a real distaste of the country and
service; resolving from that time forward to disengage himself out of
it as soon as possible he could get it done, and that the service
could allow of.”[619] Mackay, however, failed in obtaining even a
temporary leave of absence during the winter, by the intrigues of
Lord Melville and Viscount Tarbet, who, as he says, suspecting an
interview with William, who was then in Holland, to be the object of
his proposed visit thither, were afraid that he would induce William
to adopt a system different from that hitherto followed in the
management of Scottish affairs.
Mackay finding that he would not succeed in his application for
leave of absence, began to apply himself with great perseverance to
accomplish his long-desired project of erecting a fort at Inverlochy,
capable of containing 1,000 or 1,200 men, to keep the western
Highlanders in check. In a communication which he made to King
William on the subject, he requested to be supplied with three
frigates of about 30 guns each, 10 or 12 ships of burden, and 3 or 4
dozen of large boats, 3,000 muskets, 400 chevaux de frise, and
2,000 spades, shovels, and pickaxes, with money sufficient to
purchase two months’ provisions for 3,000 or 4,000 men. On
receiving these supplies he proposed to march with this force
through Argyle about the end of March, as far as Dunstaffnage,
where he meant to embark his men in the ships, and thence proceed
to Inverlochy, and land them under the protection of the guns of the
ships of war. No notice, however, was taken of this proposal either
by William or his ministers, notwithstanding that its importance was
urged in repeated letters from Mackay, who, in consequence, grew
quite impatient, and threatened to throw up his commission. At
length the privy council having, at his request, written a letter to the
king on the subject, he ordered the frigates to be sent down, with
some arms and ammunition, and implements for commencing the
work; but the required supply of money was not forthcoming,
without which the expedition could not be undertaken. Anxious,
however, to get the fort erected with as little delay as possible,
Mackay offered to the privy council to proceed to Inverlochy with a
select detachment of 600 men, provided they would give him
provisions for three months; but although a sum of five or six
hundred pounds would have almost sufficed for this purpose, the
council pleaded the impossibility of raising the money.[620] In this
emergency he applied to the city of Glasgow, the magistrates of
which undertook to hire vessels for transporting the detachment,
and to furnish him with the necessary provisions, and such articles
as he might require for completing the fort, in addition to those sent
down from England.[621] Major Ferguson, who was appointed to
command this expedition, repaired to Glasgow; but he was detained
there about five weeks waiting for the provisions. The news,
however, of such an armament being in preparation, and a report
purposely circulated by Mackay, that it was much larger than it
actually was, having reached the Highlands, had the effect of
preventing many of the Islanders and the inhabitants of the
adjoining mainland from joining Major-general Buchan, who took the
field in April 1690.
Before the arrival of this officer, the Highlanders had resolved to
place themselves under the command of Sir Ewen Cameron of
Lochiel, having, in consequence of their defeat at Dunkeld, lost
confidence in Cannon as a commander. After that disaster, Lochiel
and the other Jacobite chiefs had represented to James the
precarious state of his affairs in Scotland, and the necessity there
was for sending them aid; but James was too much occupied with
preparations for resisting a threatened invasion of Ireland, by his
son-in-law, to attend much to his Scottish concerns. He, however,
sent over a vessel with some clothes, arms, ammunition, and
provisions, and a few Irish officers, among whom was Major-general
Buchan, with a commission, as commander-in-chief of all the
Jacobite forces in Scotland.
 On Buchan’s arrival, a meeting of the chiefs and principal officers
was held at Keppoch, to deliberate upon the course they ought to
pursue. As no reinforcement had arrived from Ireland, and as the
plot between the Jacobites and the disappointed chiefs of the
Presbyterians, which had raised the expectations of King James’s
partizans, had been discovered, the meeting was divided in opinion,
upon the expediency of renewing hostilities. Some, thinking the
cause quite desperate, proposed to submit to the government, which
they knew was quite disposed to grant them the most favourable
terms; but this proposition was warmly resisted by Lochiel, who had
great influence with his fellow chiefs. He stated that he had adhered
to the cause of Charles II. at a time when it was more desperate
than that of his royal brother now was, who was still at the head of
an army in Ireland, and who had many friends in Britain, ready to
declare themselves, when a fit opportunity offered; that under these
circumstances, he considered they would disgrace themselves, if
they abandoned the cause they had pledged themselves to defend,
and that for his own part he would neither listen to terms from the
government, nor lay down his arms, without an express order from
King James himself. In consequence of this declaration, the meeting
unanimously resolved to continue the war; but as the labours of the
spring season were not over, they postponed the muster of the
clans, till those should be completed; and in the mean time directed
Major-general Buchan, to employ the interval in beating up the
enemy’s quarters, along the borders of the lowlands, for which
purpose a detachment of 1,200 foot was to be placed at his disposal.
[622]

When Mackay heard that Buchan had taken the field, he ordered
Sir Thomas Livingston,—whom he had despatched north from
Aberdeen to Inverness, with his regiment, in the month of January,
to watch the motions of the Highlanders,—to keep a sharp outlook
after Buchan, who, it was supposed, would probably make a descent
upon the lowlands of Moray or Banff. Sir Thomas had at this time,
besides his own regiment of dragoons, three regiments of foot, and
some troops of horse, under his command, posted in and about the
town of Inverness. Hearing that Buchan was marching through
Lochaber and Badenoch, Livingston made two successive marches
up the country, in the direction Buchan was said to be advancing,
but on both occasions, from the great difficulty he experienced in
obtaining provender for his horses, and provisions for his troops, he
was obliged to return to Inverness without seeing Buchan, or
hearing anything concerning him. Having ascertained that the feeling
of hostility towards the government was rapidly extending, and that
it had even reached the clans, who had hitherto, in appearance at
least, shown themselves favourably inclined to the revolution,
Livingston, thereupon, despatched a letter to Mackay, acquainting
him of the circumstance, and stating that if Buchan was not speedily
opposed, he was afraid that by far the greater part of the northern
counties would join him. That he might obtain early intelligence of
Buchan’s motions, and avoid the difficulties he had experienced in
his former marches for want of provisions, Livingston took up a
position eight miles from Inverness, with a select body of 1,200
men, consisting of his own regiment, which amounted to 300 men,
400 of Leslie’s regiment, a company of 100 of Lord Reay’s
Highlanders, 300 of Grant’s Highlanders, and two troops of horse.[623]
On receiving Livingston’s despatch, Mackay sent orders to the
different detachments which lay at Stirling, Glasgow, Dundee, and
other places, amounting together to 3,000 men, to assemble without
delay at Perth, that they might be in readiness, should a general
rising in favour of King James take place in the north, to support
Livingston, and to serve as a check upon the southern Highlands.
He, at the same time, directed Lieutenant-colonel Buchan, brother of
King James’s general, who commanded the forces in the city and
county of Aberdeen, consisting of a battalion of Ramsay’s regiment,
the Cameronian regiment, and five troops of horse and dragoons, to
march upon any point Livingston should direct.[624]
In the mean time Major-general Buchan was advancing through
Badenoch with the design of marching down Speyside into the Duke
of Gordon’s country, where he expected to be joined by some of the
vassals of that nobleman. At Culnakill he held a council of war to
determine whether to take up a position in that neighbourhood,
where they would be secure from the attacks of Livingston’s cavalry,
or proceed farther down the Spey. As Buchan’s force did not exceed
800 men, and as they were aware that a large force of horse and
foot lay at Inverness, the Highland officers were unanimously of
opinion that they should not advance beyond Culnakill, but should
march the following day to Glenlochy, and encamp among the
adjoining woods. Buchan, who appears to have been as incapable of
conducting a Highland force, and as ignorant of the mode of warfare
pursued by the Highlanders as Cannon, his predecessor, now second
in command, rejecting the Highland officers’ advice, on the following
day marched down the Spey as far as Cromdale, where he
encamped on the last day of April.[625]
Livingston was, at this time, lying within eight miles of Strathspey,
on the grounds of the laird of Grant, where he received notice the
same day from a captain in Grant’s regiment, who, with a company
of men, held possession for the government of Balloch, now Grant
castle, in the vicinity of Cromdale, that Buchan was marching down
Strathspey. Desirous of attacking him before he should have an
opportunity of being joined by the country people, Livingston
marched off towards the Spey, in the afternoon, and continued his
march till he arrived within two miles of Balloch castle. As it was
already dark, and the night far advanced, and as a difficult pass lay
between him and the castle, Livingston proposed to encamp during
the night; but not finding a convenient place, he, by the persuasion
of one of his officers who was acquainted with the pass, and who
undertook to conduct him safely through it, renewed his march, and
arrived at the top of the hill above the castle at two o’clock in the
morning. Buchan’s men were then reposing in fancied security near
Lethindie, on the adjoining plain of Cromdale, and the fires of their
camp, which were pointed out by the captain of the castle to
Livingston, showed him that he was much nearer the enemy than he
had any idea of. Mackay says, that had Livingston been aware that
the Highlanders were encamped so near the pass, he would not
have ventured through it during the night, having little confidence in
the country people; nor would the enemy, had they suspected
Livingston’s march, left their former station and encamped upon an
open plain, a considerable distance from any secure position, “just
as if they had been led thither by the hand as an ox to the
slaughter.”[626]
As several gentlemen of the adjoining country had sought an
asylum in the castle on hearing of Buchan’s advance, the
commander, in order to prevent any knowledge of Livingston’s
approach being communicated to the Highlanders, had taken the
precaution to shut the gates of the castle, and to prohibit all egress;
so that the Highlanders were as ignorant of Livingston’s arrival as he
had previously been of their encampment at Cromdale. Such being
the case, the commander of the castle advised him to attack the
Highlanders without delay, and he himself offered to conduct the
troops into the plain. This proposition having been acceded to, the
troops were allowed half an hour to refresh themselves, after which
they marched down through the valley of Auchinarrow to the river.
Finding a ford below Dellachaple, guarded by 100 Highlanders,
Livingston left a detachment of foot and a few dragoons to amuse
them, while, with his main body, led by some gentlemen of the
name of Grant on horseback, he marched to another ford through a
covered way, a mile farther down the river, which he crossed at the
head of three troops of dragoons, and a troop of horse, a company
of his Highlanders forming the advanced guard. After he reached the
opposite bank of the Spey, he perceived the Highlanders, who had
received notice of his approach from their advanced guards at the
upper ford, in great confusion, and in motion towards the hills. He
thereupon sent orders to a part of his regiment, and another troop
of horse to cross the river and join him; but, without waiting for
them, he galloped off at full speed towards the hills, so as to get
between the fugitives—the greater part of whom were almost naked
—and the hills, and intercept them in their retreat. The cavalry were
accompanied by the company of Highlanders which had crossed the
river, and who are said to have outrun their mounted companions, a
circumstance which induced the flying Highlanders, on arriving at
the foot of the hill of Cromdale, to make a stand; but, on the
approach of Livingston and the remainder of his dragoons and
horse, they again took to their heels. They turned, however,
frequently round upon their pursuers, and defended themselves with
their swords and targets with great bravery. A thick fog, which,
coming down the side of the mountain, enveloped the fugitives,
compelled Livingston to discontinue the pursuit, and even to beat a
retreat. According to Mackay, the Highlanders had 400 men killed
and taken prisoners, while Livingston did not lose a single man, and
only 7 or 8 horses; but Balcarras states his loss at about 100 killed,
and several prisoners; and the author of the “Memoirs of Dundee”
says, that many of Livingston’s dragoons fell.[627] A party of the
Camerons and Macleans, who had in the flight separated from their
companions in arms, crossed the Spey the following day, but, being
pursued by some of Livingston’s men, were overtaken and dispersed
on the moor of Granish near Aviemore, where some of them were
killed. The rest took shelter in Craigelachie, and, being joined by
Keppoch and his Highlanders, made an attempt to seize the castle of
Lochinclan in Rothiemurchus, but were repulsed with loss by the
proprietor and his tenants.[628]
The news of the disaster at Cromdale was received with feelings
of dismay by the partisans of King James at Edinburgh, who began
to regret that they had not embraced an offer which had been made
by King William for a cessation of arms. On the other hand, the
friends of the government were elated with Livingston’s success, and
hastened the long delayed expedition to Inverlochy, under Major
Ferguson, which accordingly set sail from Greenock on the 15th of
May. Having obtained the consent of King William to march into
Lochaber, Mackay made preparations for the expedition; and,
although the Earl of Melville, the commissioner to the Scottish
parliament, gave him notice of some dangerous plots against the
government both in England and Scotland, which might require the
presence of a large force in the lowlands to check, yet, as he
considered the subjugation of the Highlands of primary importance,
he resolved to proceed on his expedition; and, accordingly, on the
18th of June, marched from Perth at the head of about 3,000 horse
and foot. As his route to Inverlochy would bring him within a short
day’s march of the enemy, and as he was desirous—agreeably, as he
says, to a military maxim, “without necessity, to put nothing to an
apparent hazard when the success is of great importance,”—to avoid
an engagement in a country full of defiles and difficult passes till he
should join the forces in the north under Sir Thomas Livingston, he
resolved to march towards Strathspey, and thence through
Badenoch into Lochaber. To conceal from the enemy his design of
marching north, after entering Athole, he made a movement as if he
intended to enter Badenoch by the nearest route, and then turning
suddenly to the right, took the road to Strathspey. Having joined
Livingston in Strathspey on the 26th of June, the united forces, after
a day’s rest, marched towards Badenoch.
The Highlanders who, after their dispersion at Cromdale, had
returned to their homes, had re-assembled on hearing of Mackay’s
approach; but, from the fewness of their numbers, they made no
attempt to obstruct his passage through Badenoch. Being informed
that they had taken possession of a strait and difficult pass through
which they expected him to march, he, on the 1st of July,—the very
day on which the celebrated battle of the Boyne was fought,—made
a feint with four troops of horse and dragoons as if he intended to
pass that way, for the purpose of deceiving the enemy; after which
he suddenly changed his march to the left. After traversing
mountains and bogs, he entered Lochaber by Glenspean the same
night, and arrived at Inverlochy on the 3d of the month.[629]
The site of the old fort, which had been erected by Oliver
Cromwell, did not please Mackay, as it was commanded by a
neighbouring hill; but, as a more eligible one could not be found, he
commenced the work on the 5th of the month, and, in eleven days
the wall was raised to its full intended height of twenty feet from the
bottom of the fosse, and pallisaded round with a chemin couvert and
glacis. Having finished the fort, which was named Fort-William, in
honour of the king, he was about proceeding to send a detachment
into Mull to reduce that island, but received despatches from the
privy council announcing the defeat of the English and Dutch fleets,
and requiring his return to the South as soon as possible, with as
many of his forces as could be spared, in consequence of an
expected invasion from France. He therefore marched from
Inverlochy for the South on the 18th, leaving behind him 1,000 men
in garrison in the new fort. He arrived in Badenoch on the 20th by
easy marches, and leaving his army in camp the whole of the 21st to
rest themselves, he went with a party of 150 horse and dragoons to
inspect Ruthven castle which the Jacobite forces had burnt the
preceding year. Here he left the company of Lord Reay’s Highlanders
with instructions to the commander to raise a breastwork round an
old square wall, within which the garrison might remain secure
against surprise or attack. He then descended into Athole, and
arrived at Perth on the 26th of July, being little more than five weeks
since he set out on his long projected expedition.
During his absence Major-general Buchan and Colonel Cannon,
each at the head of a select body of cavalier horse, had been
scouring the low country. The latter, in particular, with 200 horse,
had attacked Lord Cardross’s dragoons who were stationed in
Menteith, and had pursued them down as far as the park of Stirling.
On his arrival at Perth, Mackay being informed of the proceedings of
Cannon’s party, sent orders to the troops at Stirling to march out in
quest of them, while he himself, after receiving a supply of biscuit
from Dundee, resolved to march from Perth with a detachment for
the purpose of intercepting them; but Cannon had passed through
the heights of Athole towards Braemar before the troops at Stirling
left that town. Mackay followed after them for two days with a force
of 1,000 men, but was unable to overtake them. Being unprovided
for a longer march, he returned on the third day to Stirling, whence
he despatched three troops of Cardross’s dragoons, and one of
horse, to support the Master of Forbes who was guarding
Aberdeenshire.
Buchan and Cannon having united their forces, and being joined
by Farquharson of Inverey, at the head of 500 or 600 of the Braemar
Highlanders, descended into the adjoining low parts of
Aberdeenshire, Mearns, and Banff, to unite themselves to some of
the country Jacobite gentlemen, leaving behind them a body of 160
men, to block up Abergeldie, in which Mackay still kept a garrison.
They were at first opposed on their descent into the low country, by
the Master of Forbes, and Colonel Jackson, with eight troops of
cavalry, which was fully more than sufficient to have repulsed in a
level country, any body the Highlanders could then bring into the
field. Buchan, however, having purposely magnified the appearance
of his forces, by ranging his foot over a large extent of ground, and
interspersing his baggage and baggage horses among them, inspired
the Master of Forbes and Jackson with such dread, that they
considered it prudent to retire before a foe apparently so formidable
in appearance, and their fears increasing after they had begun their
retreat, they set off towards Aberdeen at full gallop, and never
looked behind, till they had entered the town, after a race of
upwards of 20 miles.[630] Buchan, who had no immediate design
upon Aberdeen, followed the alarmed cavalry, and such was the
effect of the retreat upon some of the neighbouring noblemen and
gentlemen, that they joined Buchan in the pursuit. The inhabitants
were thrown into a state of the greatest alarm at this occurrence,
and the necessary means of defence were adopted, but Buchan
made no attempt to enter the town.
When Mackay received intelligence of this “disorder,” as he terms
the flight of Forbes and Jackson, he instantly despatched Colonel
Cunningham with 300 men, and two troops of cavalry, to the north
to join Jackson; but Cunningham was unable to effect a junction, as
Cannon lay encamped between him and Jackson. As the fears of a
French invasion had subsided, Mackay, on hearing of Cunningham’s
failure, marched north himself in such haste that he carried neither
baggage nor provisions along with him; but on his way north, he
learned that Buchan had left the neighbourhood of Aberdeen, and
was marching southward. On hearing of Mackay’s advance, Buchan
drew off his men to the right, and crossed the hills. On arriving at
the Dee, he left Cunningham with a detachment at the castle of
Aboyne, and proceeded with his own division to raise the siege of
Abergeldie. In the course of this march, a party of 60 dragoons,
under Major Mackay, fell in among the hills, with a body of 200
Highlanders, under Inverey, all of whom were either killed or made
prisoners. The chief himself made a very narrow escape, having
been trampled under the horses’ feet, and left for dead on the field.
Mackay also laid waste the fertile country about Abergeldie, to the
extent of twelve miles round, and burnt from 1,200 to 1,400 houses,
by way of reprisal, for having blocked up the garrison.[631]
Having united all his forces in the north, with the exception of
those which lay at Inverness, Mackay marched as far north as
Strathdon, where he was told that the greater part of the north was
hostile to the government, and was ready to rise in arms, which
information made him at once resolve to proceed north with all
possible haste in order to get Buchan’s force dispersed, before any
general rising should take place. Leaving therefore his foot behind,
he proceeded north with his cavalry in great haste, and in the course
of his march was informed that Buchan was not only on his way
north, but that he expected to be joined by several thousand
Highlanders. He, therefore, continued his march with great celerity,
allowing his men no more time than was absolutely necessary for
refreshing their horses, and arrived within four hours’ march of the
enemy, before they received any notice of his approach. Buchan had
reached Inverness, and was only waiting for the Earl of Seaforth’s
and other Highlanders, whom he expected to join him in attacking
the town; but on hearing of Mackay’s advance, he crossed the river
Ness, and retired along the north side of the Loch.
The Earl of Seaforth, afraid of the consequences which might
result to him personally, for the part he had acted, sent his mother,
the Countess Dowager of Seaforth, and Mackenzie of Coul, to
Mackay, to inform him that he would accede to such conditions as
might be agreed upon between them and Mackay. An agreement
was accordingly entered into, by which it was stipulated, that the
earl should deliver himself into Mackay’s hands, to be kept as a
prisoner at Inverness, till the privy council should decide as to his
future disposal; and to conceal this arrangement from the Jacobite
party, it was farther agreed that the earl should allow himself to be
seized as if by surprise, by a party of horse under Major Mackay, at
one of his seats during the night. The earl, however, disappointed
the party sent out to apprehend him, in excuse for which, both he
and his mother, in letters to Mackay, pleaded the state of his health,
which they alleged would suffer from imprisonment. The earl cannot
certainly be blamed for having demurred placing himself at the
unconditional disposal of such a body as the privy council of
Scotland, some of whom would not have hesitated to sacrifice him, if
by doing so they could have obtained a share of his estates.
Mackay was so irritated at the deception which had been practised
upon him, that he resolved to treat the earl’s vassals “with all the
rigour of military execution.” Having, however, a warm feeling for the
earl’s friends, on account of their being “all Protestants, and none of
the most dangerous enemies,” as he says, and being more desirous
to obtain possession of the earl’s person than to ruin his friends, he
caused information of his intentions upon the earl’s lands to be sent
to Seaforth’s camp, by some of his own party, as if from a feeling of
friendship to him. Contrary to Mackay’s anticipations, Seaforth
surrendered himself, and was committed prisoner to the castle of
Inverness.[632] About this time the Earl of Argyle—who had fled to
Holland in 1685, on his father’s execution, but returned with the
Prince of Orange, and was reinstated by the Convention in his
father’s estates and title—with a force of 1,900 foot, and 60
dragoons, invaded Mull, the inhabitants of which took the oaths of
allegiance to the government, and delivered up their arms. He was,
however, from the state of the weather, obliged to leave the island,
before effecting the reduction of Duart castle, and left 300 men
behind him to keep it in check. Maclean himself, with a few of his
friends, took refuge on Carnburrow, an inaccessible rock near Mull.
King James’s affairs had now become utterly desperate in
Scotland, and his defeat at the battle of the Boyne, on the 1st of
July, 1690, almost annihilated his hopes in Ireland. Unable to collect
any considerable body of men together, Buchan, after wandering
through Lochaber, dismissed the few that still remained with him,
and along with Sir George Barclay, Lieutenant-colonel Graham, and
other officers, took up his abode with Macdonell of Glengary, Cannon
and his officers retiring to the isles, under the protection of Sir
Donald Macdonald. In their retreats, these officers who had
displayed the most heroic attachment to the cause of the
unfortunate king, under the most trying circumstances, still
continued to cherish some distant hopes of his restoration, and were
prepared to enter upon any service, however hazardous, which
might lead to such a consummation.
At length, seeing no chance of making a successful effort in favour
of James, they, in connexion with the chiefs, sent over the Earl of
Dunfermline to France in the spring of 1691, to represent to him the
state of matters, and to receive his commands. Having received
instructions from his majesty to enter into a negotiation with the
government, a meeting of the principal officers and the Jacobite
chiefs was held at Achallader in Glenorchy on the 30th of June,
which was attended by the Earl of Breadalbane on the part of the
government, at which a cessation of hostilities was agreed upon till
the 1st of October. To get the chiefs to submit to the government,
money and other inducements were held out to them by
Breadalbane, at whose disposal a sum of about £15,000 or £20,000
had been placed by King William. They, however, declined to come
to any definite arrangement at this time, and requested liberty to
send Sir George Barclay and Major Menzies to France, to obtain the
sanction of King James, to enter into a treaty with the government,
a request which was reluctantly granted. After learning from these
officers the miseries to which the clans were reduced, and the utter
hopelessness of attempting another campaign under existing
circumstances, James allowed them to make the best terms they
could with the government. Accordingly, and in terms of a
proclamation issued by the government on the 27th of August, 1691,
promising an indemnity to all persons who had been in arms, and
who should take an oath of allegiance to the government before the
1st of January 1692; all the chiefs, with one unfortunate exception,
which will be afterwards noticed, gave in their adherence, and took
the oath within the prescribed time. Buchan and Cannon with their
officers, in terms of an agreement with the government, were
transported to France, to which country they had asked and
obtained permission from their royal master to retire, as they could
no longer be serviceable to him in their native land.
We are sorry that it is beyond the province of the present work,
even did space permit, to give a detailed account of the heroic and
almost quixotically chivalrous conduct of Dundee’s officers, after
their emigration to France. In order that they might not be a burden
on their royal master King James, they entered the French service,
forming themselves into a company of “private sentinels” or common
soldiers, four of their number being appointed officers, whose
conduct gives “no opportunity of speaking well of them.”[633] They
numbered only about 150, and so effectively performed their duty in
the service of France, that, unsuited as they were for the hard life of
common soldiers, and cheated by their heartless officers of the few
comforts provided for them, in a very short time “the earth closed
over the last remains of the gentlemen-adventurers who followed
the banner of Dundee.”[634] They bore all their hardships with
cheerfulness and even gaiety, winning the tears and love of the
women wherever they passed, and the respect of their French
comrades. The following incident must suffice as an example of their
fearless hardihood.
“The Germans had made a lodgement in an island in the Rhine
(near Strasburg). The French, from an opinion that the river was
impassable without boats, had ordered a number for the passage.
Among other troops intended for the service, this company was
ordered to keep a station opposite to the island until the boats
should arrive; but finding, upon examination, the ford, though
difficult, not impassable, they, according to the custom of the
Highlanders in wading through rivers, joining their hands together,
and entering the river in a line with its current, the strongest men in
the upper part, and the weaker in the under, so that those who were
highest up the stream broke all its force, and tying their arms and
clothes on their shoulders, passed to the island in sight of both
armies on the opposite bank, and drove ten times their number from
the lodgement. The French cried out in admiration, ‘A gentleman, in
whatever station, is still a gentleman.’ ‘Le gentilhomme est toujours
gentilhomme.’ The place is called l’Isle d’Ecosse to this day.”[635]
 F O OT N OT E S :
[608] Memoirs, p. 62.
[609] Mackay, pp. 63, 64.
[610] Memoirs, p. 66.
[611] Memoirs of Dundee.
[612] Memoirs, p. 69.
[613] Idem.
[614] Scotland, vol. i. p. 141.
[615] Balcarras.
[616] Life and Diary of Colonel Blackader.
[617]
“We, Lord James Murray, Patrick Stewart of Ballechan, Sir John
M’Lean, Sir Donald M’Donald, Sir Ewen Cameron, Glengarie,
Benbecula, Sir Alexander M’Lean, Appin, Enveray, Keppoch, Glencoe,
Strowan, Calochele, Lieut.-Col. M’Gregor, Bara, Large, M’Naughten, do
hereby bind and oblige ourselves, for his Majesty’s service and our
own safeties, to meet at _____________ the __________ day of
September next, and bring along with us _______ fencible men. That
is to say, Lord James Murray and Ballechan _______, Sir John M’Lean
200, Sir Donald M’Donald 200, Sir Ewen Cameron 200, Glengarie 200,
Benbecula 200, Sir Alexander M’Lean 100, Appin 100, Enveray 100,
Keppoch 100, Lieut.-Col. M’Gregor 100, Calochele 50, Strowan 60, Bara
50, Glencoe 50, M’Naughten 50, Large 50; but in case any of the
rebels shall assault or attack any of the above-named persons betwixt
the date hereof and the said day of rendezvous, we do all solemnly
promise to assist one another to the utmost of our power, as witness
these presents, signed by us at the castle of Blair, the 24th of August,
1689 years.—Al. Robertson, D. M’Neil, Alex. M’Donald, Do. M’Gregor,
Alex. M’Donell, D. M’Donald, D. M’D. of Benbecula, Al. M’Donald, Tho.
Farqrson, Jo. M’Leane, E. Cameron of Lochiel, Al. Stuart.”—Records of
Parliament.
Seven days before the date of this bond, these associates, and other
friends, sent the following characteristic letter to Mackay, in answer to
a friendly invitation from him to lay down their arms:—
“Birse, 17th August, 1689.
“Sir,
“We received your letter from Strathbogy, and we saw
that you wrote to Brigadier Cannan from St Johnstoun, to which we
gave a civil return, for by telling that you support yourselves by fictions
and stories (a thing known all the world over), is no railing. The
Christian means (as you say in your last) you make use of to advance
the good cause by, is evident to all the world, and the argument you
use to move us to address your government, is consequential to the
whole; for instead of telling us what good Christians, men of honour,
good subjects, and good neighbours, ought to do, you tell us in both
your letters, that his Majesty has hot wars in Ireland, and cannot in
haste come to us, which, though it were as true as we know it is not,
is only an argument from safety and interest. And that you may know
the sentiments of men of honour, we declare to you and all the world,
we scorn your usurper, and the indemnities of his government; and to
save you farther trouble by your frequent invitations, we assure you
that we are satisfied our king will take his own time and way to
manage his dominions and punish his rebels; and although he should
send no assistance to us at all, we will die with our swords in our
hands before we fail in our loyalty and sworn allegiance to our
sovereign. Judge, then, what effect Duke Hamilton’s letter has upon
us; but you have got an honourable father for this story from Ireland,
and although we can better tell you how matters go in Ireland, and
that we pity those on whom such stories have influence, yet we have
no orders to offer conditions to any rebels; we allow them and his
grace to believe on and take your measures by your success, till his
Majesty’s farther orders. Sir, We thank you for the good meaning of
your invitation, (though we are confident you had no hope of success.)
And we will shortly endeavour to give you a requital—and those of us
who live in islands have already seen and defied the Prince of Orange
his frigates. We are, Sir, your affectionate and humble servants. Jo.
MacLeane, E. Cameron of Lochiel, C. M’Kenzie, D. Mackdonald, John
Grant of Balnadaloch, Pa. Steuart, J. M’Nachtane, Alexr. M’Donald, A.
M’Nachtan, Jo. Cameron, Tho. Farqrson, H. M’Lean of Lochbuye, Alexr.
M’Donell, D. M’D. of Benbecula, B. MacNeill of Bara, D. M’Neill, Ra.
M’Donald, J. M’Donald, Alexr. Maclaine. We have returned your letter
from Duke Hamilton, because you have more use for it than we.”—
Parliamentary Records.
[618] Memoirs, p. 72.
[619] Memoirs, p. 77.
[620] Mackay’s Memoirs, p. 85.
[621] Idem, page 86.
[622] Balcarras.
[623] Mackay’s Memoirs, p. 93. Mackay’s account says, “six companies
of Grant’s regiment, making about 800 men,”—an evident error.
[624] Mackay’s Memoirs, p. 94.
[625] Memoirs of Dundee.
[626] Memoirs, p. 95.
[627] Shaw (History of Moray) says that above 100 of Buchan’s men
were killed, and about 60 made prisoners, who were found in the
castle of Lethindie and the mill; and he adds, as a thing deserving of
remark, that “Colonel Macdonald of Keppoch, who was ever keen for
plunder, had never once fought for his king, would not encamp with
the other rebels, but with his men quartered at Garvlin, half-a-mile
distant, and thereby escaped without loss.”
[628] Shaw’s Moray.
[629] Memoirs, p. 98.
[630] “His mastership (of Forbes) understanding the word of
command, wheel, better than advance, turned the battle into a race,
and won; for he was first at Aberdeen, and alarmed the town with a
frightful outcry, The enemy, the enemy’s coming.”—Memoirs of
Dundee.
[631] Mackay’s Memoirs, p. 101.
[632] “I believe it shall fare so with the Earl of Seaforth, that is, that
he shall haply, (perhaps) submit, when his countrey is ruined, and
spoyled, which is the character of a true Scotsman, wyse behinde the
hand!”—Letter to the Privy Council, 1st Sept. 1690. Appendix to
Memoirs, No. 73. Mackay was directed by the privy council, by
warrant, dated 7th Oct. 1690, “to transport the person of Colin, Earl of
Seaforth, with safety from Inverness to Edinburgh, in such way and
manner, as he should think fit.” In consequence of this removal, he
was entered a prisoner within the castle of Edinburgh, on 6th Nov.
following, whence he was liberated on 7th Jan. 1692, on finding
caution to appear when called upon. He was bound not to go ten miles
beyond Edinburgh. He was again imprisoned, but made his escape,
and was apprehended at Pencaitland, on 7th May 1692, and again
kept in close confinement, within the castle of Edinburgh. He was
afterwards liberated, on giving security for his peaceable behaviour.—
Records of the Privy Council.
[633] For details, see An Account of Dundee’s officers after they went
to France in Miscellanea Scotica.
[634] Burton’s Scotland from Revolution, vol. i. p. 153.
[635] Dalrymple’s Memoirs, vol. i. part ii. p. 61.
 C HAPTER XXII.

A.D. 1691–1702.

BRITISH SOVEREIGN:—William III., 1688–1703.

Negotiations with the Highland chiefs—Massacre of Glencoe—Master of Stair—
King William—Subsequent enquiry—State of Highlands during William’s reign—
Simon Fraser, Lord Lovat.

During 1690 and 1691 the Jacobites caused the government much
trouble and anxiety by their ceaseless plotting to get up an
insurrection, in which they were to be assisted by supplies from
France. Many men, professedly loyal to King William, gave, from
various motives, their secret countenance to these attempts; and the
Highlanders especially proved a galling and distracting thorn in the
side of the government. As early as 1690, Lord Tarbet,
(subsequently Earl of Cromarty,) proposed a scheme for the quieting
of the Highlands, which Lord Breadalbane offered to carry into
execution; but it was at the time abandoned. In 1691, however,
negotiations were again renewed, and, as has been seen,
Breadalbane was intrusted with a sum of money to distribute among
the chiefs, or rather to buy up the claims which Argyle and other
superiors had over their feudal vassals, and which was the real
cause of the strife and dissatisfaction existing in the Highlands. The
Secretary of State, Sir John Dalrymple, known as the Master of Stair,
son of the Earl of Stair, appears latterly to have been at the bottom
of the scheme, and was certainly most anxious that it should be
successfully and speedily carried out, having at first apparently no
thought of resorting to measures of cruel severity.
Not much appears to have resulted from the meeting which
Breadalbane had with the chiefs at Achallader; indeed, he showed
very little of an earnest desire for conciliation, as his threatening
conduct induced Alexander
Macdonald, or MacIan, of Glencoe, to
leave the meeting abruptly for his
own safety. Between Breadalbane,
who was a Campbell, and Macdonald
much bad blood appears to have
existed; indeed, nothing but the
bitterest hatred was cherished by the
whole tribe of the Macdonalds to the
Campbells, as the latter had from
time to time, oftener by foul than by
fair means, ousted the former from
their once extensive possessions. The
Macdonalds of Glencoe especially, still
considered the lands and property of First Earl of Breadalbane.
From Original Painting in possession of
the Campbells as their own, and
Lady Elizabeth Pringle.
without hesitation supplied their
wants out of the numerous herds of the latter. It was some recent
raid of this sort which roused the wrath of Breadalbane; and on poor
Macdonald’s head lighted all the blame and the punishment of the
ineffectual negotiation. What became of the money has never been
clearly ascertained; but much can be inferred from Breadalbane’s
answer when asked afterwards by Lord Nottingham to account for it,
“The money is spent, the Highlands are quiet, and this is the only
way of accounting among friends.”
Like many of his contemporaries, Breadalbane attached himself
openly to King William’s government only because it was for the time
the winning side; while at the same time he professed secretly to be
attached to the interest of the exiled King James. He told the
Highland chiefs that in urging them to enter into terms with the
government, he had their own interests and those of King James at
heart; for there being then “no other appearance of relief, he
thought they could not do better than sue for a cessation, which
would be a breathing to them, and give them time to represent their
circumstances to King James.”[636] A contemporary characterises him
as being “cunning as a fox; wise as a serpent; but as slippery as an
eel. No government can trust him but where his own private interest
is in view.”[637]
As the chiefs did not seem in any hurry to come to terms, a
proclamation was issued, in August 1691, requiring them to take the
oath of allegiance before the 1st of January 1692, threatening all
those who did not comply with “letters of fire and sword.” This had
the proper effect, as, one by one, the chiefs swore fealty to the
government, Macdonald of Glencoe, from pride or some other
reason, being the last to comply with the terms of the proclamation.
The difficulty in getting the chiefs to come to terms, and thus
allowing the government to pursue its other schemes without
anxiety, seems at last to have irritated Sir John Dalrymple so much
against them, that latterly he eagerly desired that some, and
especially the various tribes of Macdonalds, might hold out beyond
the time, in order that an example might be made of them by
putting into execution the penalty attached to the non-fulfilment of
the terms of the proclamation. In a letter to Breadalbane of Dec. 2d,
he thinks “the clan Donald must be rooted out and Lochiel,” and is
doubtful whether the money “had been better employed to settle the
Highlands, or to ravage them.” In another written on the following
day he mentions with approval Breadalbane’s “mauling scheme,”
artfully rousing the latter’s indignation by speaking of the chiefs’
ungratefulness to him, using at the same time the significant phrase
delenda est Carthago. He and Breadalbane seemed however likely to
be cheated of their vengeance, for even the obstinate and hated
Mac Ian himself, after holding out to the very last day, hastened to
fulfil the requirements of the proclamation, and thus place himself
beyond the power of the strong arm of the law.
On the 31st of December, 1691, Glencoe made his way to Fort-
William, and presented himself to Colonel Hill the governor, asking
him to administer the required oath of allegiance. The Colonel,
however, declined to act, on the ground, that according to the
proclamation, the civil magistrate alone could administer them.
Glencoe remonstrated with Hill on account of the exigency of the
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