Browne, LL.D., Advocate, 4 vols. London, 1853), IV, 398.

"The law of marriage observed in the Highlands has frequently been as little understood as that of succession, and similar misconceptions have prevailed regarding it. This was, perhaps, to be expected. In a country where a b.a.s.t.a.r.d son was often found in undisturbed possession of the chiefship or property of a clan, and where such b.a.s.t.a.r.d generally received the support of the clansmen against the claims of the feudal heir, it was natural to suppose that very loose notions of succession were entertained by the people; that legitimacy conferred no exclusive rights; and that the t.i.tle founded on birth alone might be set aside in favor of one having no other claim than that of election. But this, although a plausible, would nevertheless be an erroneous supposition.

The person here considered as a b.a.s.t.a.r.d, and described as such, was by no means viewed in the same light by the Highlanders, because, according to their law of marriage, which was originally very different from the feudal system in this matter, his claim to legitimacy was as undoubted as that of the feudal heir afterward became. It is well known that the notions of the Highlanders were peculiarly strict in regard to matters of hereditary succession, and that no people on earth was less likely to sanction any flagrant deviation from what they believed to be the right and true line of descent. All their peculiar habits, feelings and prejudices were in direct opposition to a practice which, had it been really acted upon, must have introduced endless disorder and confusion, and hence the natural explanation of this apparent anomaly seems to be, what Mr. Skene has stated, namely, that a person who was feudally a b.a.s.t.a.r.d might in their view be considered as legitimate, and therefore ent.i.tled to be supported in accordance with their strict ideas of hereditary right, and their habitual tenacity of whatever belonged to their ancient usages. Nor is this mere conjecture or hypothesis. A singular custom regarding marriage, retained till a late period amongst the Highlanders, and clearly indicating that their law of marriage originally differed in some essential points from that established under the feudal system, seems to afford a simple and natural explanation of the difficulty by which genealogists have been so much puzzled.

"This custom was termed _hand-fasting_, and consisted in a species of contract between two chiefs, by which it was agreed that the heir of one should live with the daughter of the other as her husband for twelve months and a day. If, in that time, the lady became a mother, or proved to be with child the marriage became good in law, even although no priest had performed the marriage ceremony in due form; but should there not have occurred any appearance of issue, the contract was considered at an end, and each party was at liberty to marry or hand-fast with any other. It is manifest that the practice of so peculiar a species of marriage must have been in terms of original law among the Highlanders, otherwise it would be difficult to conceive how such a custom could have originated, and it is in fact one which seems naturally to have arisen from the form of their society, which rendered it a matter of such vital importance to secure the lineal succession of their chiefs. It is perhaps not improbable that it was this peculiar custom which gave rise to the report handed down by the Roman and other historians, that the ancient inhabitants of Great Britain had their wives in common, or that it was the foundation of that law of Scotland by which natural children became legitimatized by subsequent marriage.[3] And as this custom remained in the Highlands until a very late period, the sanction of ancient custom was sufficient to induce them to persist in regarding the offspring of such marriages as legitimate."[4]

It appears, indeed, that as late as the sixteenth century, the issue of a hand-fast marriage claimed the earldom of Sutherland. The claimant, according to Sir Robert Gordon, described himself as one lawfully descended from his father, John, the third earl, because, as he alleged, "his mother was _hand-fasted_ and fianced to his father;" and his claim was bought off (which shows that it was not considered as altogether incapable of being maintained) by Sir Adam Gordon, who had married the heiress of Earl John. Such, then, was the nature of the peculiar and temporary connection which gave rise to the apparent anomalies which we have been considering. It was a custom which had for its object, not to interrupt but to preserve the lineal succession of the chiefs, and to obviate the very evil of which it is conceived to afford a glaring example. But after the introduction of the feudal law, which, in this respect, was directly opposed to the ancient Highland law, the lineal and legitimate heir, according to Highland principles, came to be regarded as a b.a.s.t.a.r.d by the government, which accordingly considered him as thereby incapacitated for succeeding to the honors and property of his race; and hence originated many of those disputes concerning succession and chiefship, which embroiled families with one another, as well as with the government, and were productive of incredible disorder, mischief and bloodshed. No allowance was made for the ancient usages of the people, which were probably but ill understood; and the rights of rival claimants were decided according to the principles of a foreign system of law, which was long resisted, and never admitted except from necessity. It is to be observed, however, that the Highlanders themselves drew a broad distinction between b.a.s.t.a.r.d sons and the issue of the hand-fast unions above described. The former were rigorously excluded from every sort of succession, but the latter were considered as legitimate as the offspring of the most regularly solemnized marriage.

This practice obtained not only among chiefs, but common people.

Walter Scott, in the XXV chapter of the _Monastery_, in a note, says: "This custom of hand-fasting actually prevailed in the upland days. It arose partly from the want of priests. While the convents subsisted, monks were detached on regular circuits through the wilder districts, to marry those who had lived in this species of connexion. A practice of the same kind existed in the Isle of Portland."

[3] This is a mistake in point of law. The principle of legitimation by subsequent marriage, was first explicitly announced in an imperial const.i.tution of Constantine, and being wisely recognized by the church, it was adopted by the canonists, through whom it pa.s.sed into our law.

The attempt to introduce it into England failed, in consequence of the attachment of the people to their ancient Saxon const.i.tutions; and hence, although it was recognized in the statutes of Merton, it was subsequently discarded, and never afterwards found admission into the munic.i.p.al system of the neighboring kingdom. There can be no doubt whatever that the principle is one which reason, morality and religion must equally approve.

[4] Skene's _Highlanders of Scotland_, vol. I, chap. vii, 166, 167.

[5] In _Scottish Ballads and Songs_, by James Maidment, Edinburgh, MDCCCLIX, under the t.i.tle of _Luckidad's Garland_, p. 134, is a remarkable picture of the old and new times in Scotland, eighty or ninety years ago, three of the twenty-four verses of which the ballad is composed, being descriptive of something akin to _bundling_. In a London edition of _Hudibras_, also, published in 1811, is a note to line 913, of Part I, Canto I. As both of these extracts, however, are somewhat too _broad_ for our pages, we content ourselves with simply referring thereto. In the same category, also, is the definition, in _Bailey's Old English Dictionary_, of the term _free bench_, as prevailing in the manors of East and West Embourn, Chaddleworth in the county of Berks, Tor in Devonshire, and other places of the west.

[6] _History of Wales_ (by B. B. Woodward, B.A., London, 1853), p. 320; who adds, also, p. 186, the following:

"The laws which treat of the violation of the marriage bond and those which relate to chast.i.ty generally, recognize a degree of laxity respecting female honor, and, yet more remarkably, an absence of feminine delicacy, such as could scarcely be paralleled amongst the most uncivilized people now. They are of such a nature, that though most characteristic, they must be pa.s.sed by with this general mention. The distinction between the Celtic and Teutonic races is perhaps in no case more plainly marked than in this: The Anglo-Saxon laws on this subject (always excepting those of the _ecclesiastical_ authorities) are modesty itself, notwithstanding their plain speaking, compared with those of the Welsh legislators."

[7] _Gleanings through Wales, Holland, and Westphalia_, etc. (3d edition, by Mr. Pratt, London, 1797), I, pp. 105-107.

[8] _North Wales, including its Scenery, Antiquities, Customs_, etc. (by Rev. W. W. Bingley, A.M., 2 vols., 8vo, London, 1804), II, p. 282.

[9] _A Tour throughout North Wales and Monmouthshire_, etc., etc. (by J. T. Barbor, F.S.A., London, 1803), pp. 103-9.

[10] _The Stranger in Ireland_, by John Carr.

[11] "On his way to Ireland he pa.s.sed through Wales, and gives us a slight sketch of the character of that people and country. _It must afford no small gratification to a New England man to learn that the practice of_ BUNDLING _is not peculiar to us, but that this pleasing though dangerous art was probably imported from abroad_."--A review of _The Stranger in Ireland_, in _Connecticut Courant_ for November 19th, 1806.

[12] In this connection we may give the following extract from _Ancient Laws and Inst.i.tutes of Wales_, etc., etc., printed by command of his late Majesty King William IV, under the direction of the commissioners on the Public Records of the Kingdom. MDCCCXLI. Folio. From page 369.--The Gwentian[13] Code.

"A woman of full age who goes with a man clandestinely, and taken by him to bush, or brake, or house, and after connection deserted; upon complaint made by her to her kindred, and to the courts, is to receive, for her chast.i.ty, a bull of three winters, having its tail well shaven and greased and then thrust through the door-clate; and then let the woman go into the house, the bull being outside, and let her plant her foot on the threshold, and let her take his tail in her hand, and let a man come on each side of the bull; and if she can hold the bull, let her take it for her _wynet-werth_[14] and her chast.i.ty; and, if not, let her take what grease may adhere to her hands."

[13] _Gwent_, the appellation of the district in Wales inhabited by the Silures, comprised the diocese of Landav.

[14] This word means _face shame_ or _face worth_.

[15] A good honest word, which although not exactly English, is at least first cousin to our _quest_, and _quiz_, etc.

Worcester gives the following: "Quese, _v. a._, to search after.

_Milton_." [obsolete e long, s like z.] Quest, _v. n._, to join search.

_B. Jonson_. Quester, _n._, a seeker. _Rowe_.

Is it not allowable to derive from one of these words Quesing, or Questing, p.r.o.nounced Qweesting, and from the other Questing [e short]?

So that he who went _queesting_ was simply _searching after_ a wife, understood.

[16] These are two very small islands at the opening of the Zuider zee.

[17] From _The Student and Intellectual Observer_, London, November number, 1868, p. 310, in article by Thomas Wright, F.S.A. Chapter vii--_Womankind in all Ages of Western Europe_, etc.

[18] _Cottages of the Alps_ (London, 1860), pages 77, 91, 132.

[19] _New Voyage to North America, giving a full Account of the Customs, Commerce, Religion and Strange Opinions of the Savages of that Country_, etc., etc. Written by Baron Lahontan, Lord Lieutenant of the French Colony at _Placentia_, in Newfoundland, now in England. London, 1703.

In describing the amatory customs of the Indians of this country, the author says (Vol. II, p. 37):

"You must know further, that Two Hours after Sunset the Old Supperannuated Persons, or Slaves (who never lie in their Masters' Huts) take care to cover up the Fire before they go. 'Tis then that the Young Savage comes well wrapt up to his Mistress's Hut, and lights a sort of a Match at the Fire; after which he opens the Door of his Mistress's Apartment and makes up to her bed: If she blows out the light, he lies down by her; but if she pulls her Covering over her Face, he retires; that being a Sign that she will not receive him."

[20] Verily, Peters's sarcasm savors as much of truth as humor when, speaking of bundling, he says: "The Indians who had this method of courtship among them in 1634, are the most chaste set of people in the world. Concubinage and fornication are vices none of them are addicted to, except such as forsake the laws of Hobbamockon and turn Christians.

The savages have taken many female prisoners, carried them back three hundred miles into their country, and kept them several years, and yet not a single instance of their violating the laws of chast.i.ty has ever been known. This cannot be said of the French, or of the English, whenever Indian or other women have fallen into their hands."

[21] "Great jealousy did they likewise stir up by their intermeddling and successes among the divine s.e.x; for being a race of brisk, likely, pleasant tongued varlets, they soon seduced the light affections of the simple la.s.ses from their ponderous Dutch gallants. Among other hideous customs, they attempted to introduce among them that of _bundling_, which the Dutch la.s.ses of the Nederlandts, with that eager pa.s.sion for novelty and foreign fashions natural to their s.e.x, seemed very well inclined to follow, but that their mothers, being more experienced in the world, and better acquainted with men and things, strenuously discountenanced all such outlandish innovations."

[22] By Washington Irving, p. 211. 4th Am. edition.

[23] Dr. Andrew Burnaby. _Travels through the Middle Settlements in North America, in the years 1759 and '60_. London, 1775.

[24] _The Portfolio_ (Philadelphia, May 1816), p. 397.

[25] _Terences Plays_ were preferred to those of Plautus, for this purpose, inasmuch as the latter were more obscure, and abounded in obsoletisms, and therefore Terence was preferred in England as the text-book for schools.

[26] Ireland.

[27] _The Reviewers Reviewed, or British Falsehoods detected by American Truths_ (New York, published by R. McDermot and D. D. Arden, No. 1, City Hotel, Broadway, 1815, 12mo, 72), pp. 34, 35.

[28] The Right Honorable Sir George Canning, the editor of the _London Quarterly Review_.

[29] _Travels through the Interior Parts of America; in a Series of Letters_ (by an officer; a new edition, London, 1781, 8vo), vol. II, pp.

37-40.

[30] _Anbury's Travels_, pp. 87, 88.

[31] _History and Genealogies of Ancient Windsor, Conn.,_ p. 495.

[32] The Rev. Alonzo B. Chapin, in his _History of Ancient Glastenbury, Conn._ (p. 80), says that the church records, during the pastorate of the Rev. John Eels [1759-1791], "compel us to believe that the influence of the French war had been as unfavorable to morals as destructive to life; and that the absurd practice of _bundling_ prevalent in those days, was not infrequently attended with the consequences that might have been expected, and that both together, aided by a previous growing laxity of morals, and accelerated by many concurrent causes, had rolled a tide of immorality over the land, which not even the bulwark of the church had been able to withstand. The church records of the first society, from 1760 to 1790, raise presumptions of the strongest kind, that then, as since, _incontinence_ and _intemperance_ were among the sins of the people. What the condition of things in Eastbury [an ecclesiastical society in the east part of Glastenbury] was, we have no means of knowing, _as that portion of the church records which treats of this point, was long ago_ carefully _removed_. [N.B. Italics are our own.] There is no reason, however, to suppose that this state of thing's was peculiar to Glastenbury, for there is too much evidence that it prevailed throughout the country."

Mr. Chapin's deductions from the revelations of the Glastenbury records, will be fully justified by the experience and observation of every antiquarian who has had occasion to _dig deep_ among the civil and ecclesiastical records of almost any one of the older towns of New England. We have before us, while writing, a copy, made some years since, by ourselves, of the records of the first church of Woodstock, Conn., covering the period from 1727 to 1777, in which are a large number of entries, mostly the names of parties who made _confessions_ of this sort before that church. These cases occur most frequently between the years 1737 and 1770. Our own observation among the records of the old churches in Windsor and East Windsor, is, in effect, the same, and we have occasionally happened upon the original ma.n.u.script confessions of individuals read to the church before they were formally admitted to its communion.

[33] _History of Dedham, Ma.s.s_, (by Erastus Worthington, 1827), page 108. Under ministry of Rev. Jason Haven, ordained February 6, 1756.

"Revolutionary times having produced a disposition to investigate all the former principles and opinions of men, in politics and church government, Mr. Haven caused the mode of admission into the church to be altered. This was done in 1793. The new method required the candidate to be propounded to the congregation by the minister. If no objections within fourteen days were made, he was then of course admitted. At the same time the church covenant and creed was altered, and made very general in its expressions. This creed had so few articles, that all persons professing and calling themselves Christians, would a.s.sent to it without any objections. The church had ever in this place required of its members guilty of unlawful cohabitation before marriage, a public confession of that crime before the whole congregation. The offending female stood in the broad aisle beside the partner of her guilt. If they had been married, the declaration of the man was silently a.s.sented to by the woman. This had always been a delicate and difficult subject for church discipline. The public confession, if it operated as a corrective, likewise produced merriment with the profane. I have seen no instance of a public confession for this fault, until the ministry of Mr. Dexter [1724-1755], and then they were extremely rare. In 1781 the church gave the confessing parties the privilege of making a private confession to the church, in the room of a public confession. In Mr.

Havens ministry, the number of cases of unlawful cohabitation increased to an alarming degree. For twenty-five years before 1781, twenty-five cases had been publicly acknowledged before the congregation, and fourteen cases within the last ten years. This brought out the minister to preach on the subject from the pulpit. Mr. Haven, in a long and memorable discourse, sought out the cause of the growing sin, and suggested the proper remedy. He attributed the frequent recurrence of the fault to the custom then prevalent, of females admitting young men to their beds, who sought their company with intentions of marriage. And he exhorted all to abandon that custom, and no longer expose themselves to temptations which so many were found unable to resist.

"The immediate effect of this discourse on the congregation has been described to me, and was such as we must naturally suppose it would be.

A grave man, the beloved and revered pastor of the congregation, comes out suddenly on his audience, and discusses a subject on which mirth and merriment only had been heard, and denounces a favorite custom. The females blushed and hung down their heads. The men, too, hung down their heads, and now and then looked out from under their fallen eyebrows, to observe how others supported the attack. If the outward appearance of the a.s.sembly was somewhat composed, there was a violent internal agitation in many minds. And now, when forty-five years have expired, the persons who were present at the delivery of that sermon, express its effects by saying: 'How queerly I felt!' 'What a time it was!' 'This was close preaching indeed!' The custom was abandoned. The s.e.xes learned to cultivate the proper degree of delicacy in their intercourse, and instances of unlawful cohabitation in this town since that time have been extremely rare."