Culloden: Celebrating one of Scotland's most famous judge

Forbes of Culloden has come down to us through history as a man who campaigned against Jacobitism but who also earned the respect of Jacobites for opposing the suppression of the Highlanders while he implored the Hanoverian Government not to be too severe on the Jacobites as it would only lead to people pitying them.

He was born the second son of the Third Lord Culloden, also Duncan Forbes, who was an MP and Provost of Inverness, and his wife Mary Innes. Duncan Forbes would became the Fifth Lord Culloden after his elder brother John, the Fourth Lord, died in 1734, but by that time he had already had a successful career as an MP and judge.

The Culloden estate with its proximity to Inverness had been in the family for generations and after Duncan’s father sided with the Hanoverians against the Jacobite rising of 1689 it was attacked and ruined by the Highlanders led by John Graham of Claverhouse, better known as Bonnie Dundee. For his support of William of Orange, the Forbes family were allowed to build legal whisky distilleries and it was Duncan’s brother John who would make whisky a profitable undertaking for the Forbes clan.

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Duncan Forbes was educated at the grammar school in Inverness before legal studies at Aberdeen’s Marischal College, Edinburgh University and Leyden University. He returned to Scotland in 1707 and promptly married Mary Rose whose family owned Kilvarock Castle near Culloden. They would have a daughter, Elizabeth, and a son, John, before she died young.

Forbes was admitted to the Faculty of Advocates in 1709 and quickly made his mark in the post-Union era when his legal services were much sought after. Due largely to his family’s alliance with John Campbell, the Second Duke of Argyll, Forbes rose rapidly and by 1714 he was sheriff-depute for Edinburgh-shire and also Deputy Lieutenant for Inverness-shire where his brother John was MP.

Duncan and John Forbes played an active part in suppressing the 1715 Jacobite Rising, leading their own soldiers around Inverness. The following year he was made Advocate Depute and was expected to prosecute Jacobite prisoners, but said that was unfair because they were being tried in Carlisle when the law said their trials should be held in their own country.

Though some in government suspected he had Jacobite sympathies, Forbes still prospered and in 1721 he became the MP for Ayr Burghs, switching the following year to Inverness Burghs which he would represent for 15 years.

Forbes was appointed Lord Advocate in 1725, and practically his first task was to deal with the so-called Malt Tax riots across Scotland after the Government – in a clear breach of the Acts of Union – imposed a tax on malt, which increased the price of beer. Forbes even had magistrates in Glasgow arrested for their part in the riots.

It was another riot, this time in Edinburgh, which saw Forbes exit Parliament. The Porteous Riots of 1736 which saw the Edinburgh Mob lynch Captain Porteous of the city guard ended with Parliament fining the city. Forbes spoke against this fine and soon afterwards he resigned to become Lord President of the Court of Session.

As Scotland’s most senior judge, he soon gained a reputation for the perspicacity of his judgements, and he was effectively the head of the Government in Scotland when Prince Charles Edward Stuart launched his Rising at Glenfinnan in 1745. Forbes and the Earl of Loudon raised their own troops but his greatest influence was on several clan chiefs whom he persuaded to stay out of the Rising.

As the Jacobites came north in 1746, they occupied and trashed Culloden House and the surrounding estate and of course the Battle of Culloden on April 16, 1746, finished the Rising but also ruined large tracts of Forbes’ land. Unsurprisingly, Forbes wanted the Rising’s leaders severely punished.

Forbes already had his own solution to the problem of the Jacobite Highlanders, which was to take away their arms. His speech on the Disarming Act, originally passed in 1716 and renewed after the ’45 shows his wariness about the Highlanders.

“What is properly called the Highlands of Scotland is that large tract of mountainous ground to the Northwest of the Tay, where the natives speak the Irish language. The inhabitants stick close to their ancient and idle way of life; retain their barbarous customs and maxims; depend generally on their chiefs as their sovereign lords and masters; and being accustomed to the use of arms, and inured to hard living, are dangerous to the public peace; and must continue to be so until being deprived of arms for some years, they forget the use of them.”

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Yet Forbes did not want to destroy the Highlanders’ way of life and he opposed the vicious laws that the Hanoverian government passed in 1746-47. In particular he objected to the Dress Act which proscribed Highland attire such as plaids and kilts because he could see it was discriminatory against Highland Jacobites.

In July 1746 he wrote a letter to the Lord Lyon which is seen as evidence of his even-handedness towards Jacobites: “Now, being too many of the Highlanders have offended, to punish all the rest who have not, and who, I will venture to say, are the greatest number, in so severe a manner, seems to be unreasonable; especially as, in my poor apprehension, it is unnecessary.”

The ruination of Culloden had left Forbes saddled with great debts and the burden broke his spirit so that he died on December 10, 1747.

Forbes’ gravestone can be seen in Greyfriars Kirkyard while there is a splendid statue of him in Parliament House, the home of Scotland’s supreme courts. Duncan Forbes Primary School in Inverness is named after him.