FOOTNOTES.

127

Gwent, a district in Wales,

Gwentian Code of Wales,

Hand-fasting, a Scotch custom,

common among all classes,20.

Highland law of marriage,

Highlanders, curious custom of the,

Holland, bundling in,

Illegitimacy not considered a disgrace in Scotland,

131

Kiltgang in canton of Lucerne.

Kweesten, a Dutch custom,

La Hontan, Indian custom described by,

Lichtgetren, in Switzerland,

Love and courtship in the 14th century,

Maine, bundling in, 1828,

118

Marriage laws of Great Britain, royal commission on,

127

Marriage, Welsh laws relating to,

Namzat bezé, an African custom,

Natural children legitimatized in Scotland,

New bundling song, a,

New England, bundling in,

New song in favor of courting, a,

New York Supreme Court on bundling,

111

N. Am. Indians, chastity of,

41-52

courtship among,41.

Pennsylvania, bundling in,

109

Poem against bundling, a,

100

Polygamy among ancient nations,

in Great Britain,15.

Prostitutes, punishment of in Scotland and Germany,

Public confession of unlawful cohabitation made in New England,

records of,75.

Quest, definition of and origin,

Queesting,

Royal commission on marriage laws of Great Britain,

127

Savage nations, amatory customs of,

Scotland, courtship of,

128

conjugal infidelity in,17.

admonition by church of,133.

Scotch and Irish moral character,

Scott, Walter, mention of bundling by,

Stubetegetren in Switzerland,

Sutherland, son of a hand-fast marriage claims earldom of,

Switzerland, courtship in,

Tarrying, common in England,

in New England,70.

Texel, bundling in the island of,

United States, bundling in the,

Vlie and Wieringen, bundling practiced in islands of,

Wales, bundling in,

described by Bingley,28;

by Barbor,30;

by Carr,32;

by Pratt,25.

chastity in,115.

Welsh laws relating to marriage,

Whore on the snow crust, the,

Wieringen, see Vlie.

Wynet-werth, a Welsh term,

[1]Cæsarsays, that several brothers, or a father and his sons, would have but one wife among them.Solinus, indeed, says that the women in Thule were common, the king having a free choice; andDiosays the Caledonians had wives in common; yet these assertions may well be disputed.Strabodescribes the Irish as extremely gross in this matter;O'Connersays polygamy was permitted; andDerricktells us they exchanged wives once or twice a year; whileCampionsays they only married for a year and a day, sending their wives home again for any slight offense.—Logan's Scottish Gael, 5th Am. ed., p. 472.

[2]A History of the Highlands, and of the Highland Clans, etc. (Jas. 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 bastard son was often found in undisturbed possession of the chiefship or property of a clan, and where such bastard 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 title 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 bastard, 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 bastard might in their view be considered as legitimate, and therefore entitled 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 termedhand-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 washand-fastedand 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 bastard 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 bastard 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 theMonastery, 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."

[2]A History of the Highlands, and of the Highland Clans, etc. (Jas. 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 bastard son was often found in undisturbed possession of the chiefship or property of a clan, and where such bastard 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 title 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 bastard, 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 bastard might in their view be considered as legitimate, and therefore entitled 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 termedhand-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 washand-fastedand 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 bastard 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 bastard 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 theMonastery, 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 constitution of Constantine, and being wisely recognized by the church, it was adopted by the canonists, through whom it passed into our law. The attempt to introduce it into England failed, in consequence of the attachment of the people to their ancient Saxon constitutions; and hence, although it was recognized in the statutes of Merton, it was subsequently discarded, and never afterwards found admission into the municipal 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'sHighlanders of Scotland, vol. I, chap. vii, 166, 167.

[5]InScottish Ballads and Songs, by James Maidment, Edinburgh, MDCCCLIX, under the title ofLuckidad'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 tobundling. In a London edition ofHudibras, also, published in 1811, is a note to line 913, of Part I, Canto I. As both of these extracts, however, are somewhat toobroadfor our pages, we content ourselves with simply referring thereto. In the same category, also, is the definition, inBailey's Old English Dictionary, of the termfree 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 chastity 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 passed 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 theecclesiasticalauthorities) are modesty itself, notwithstanding their plain speaking, compared with those of the Welsh legislators."

[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 chastity 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 passed 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 theecclesiasticalauthorities) 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 passed 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 ofBUNDLINGis not peculiar to us, but that this pleasing though dangerous art was probably imported from abroad."—A review ofThe Stranger in Ireland, inConnecticut Courantfor November 19th, 1806.

[12]In this connection we may give the following extract fromAncient Laws and Institutes 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 chastity, 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 herwynet-werth[14]and her chastity; and, if not, let her take what grease may adhere to her hands."

"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 chastity, 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 herwynet-werth[14]and her chastity; 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 meansface shameorface worth.

[15]A good honest word, which although not exactly English, is at least first cousin to ourquest, andquiz, etc.Worcester gives the following: "†Quēse,v. a., to search after.Milton." [obsolete ē long, s like z.] Quĕst,v. n., to join search.B. Jonson. †Quĕster,n., a seeker.Rowe.Is it not allowable to derive from one of these words Quēsing, or Quĕsting, pronounced Qweesting, and from the other Quĕsting [è short]? So that he who wentqueestingwas simplysearching aftera wife, understood.

[15]A good honest word, which although not exactly English, is at least first cousin to ourquest, andquiz, etc.

Worcester gives the following: "†Quēse,v. a., to search after.Milton." [obsolete ē long, s like z.] Quĕst,v. n., to join search.B. Jonson. †Quĕster,n., a seeker.Rowe.

Is it not allowable to derive from one of these words Quēsing, or Quĕsting, pronounced Qweesting, and from the other Quĕsting [è short]? So that he who wentqueestingwas simplysearching aftera wife, understood.

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

[17]FromThe 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 atPlacentia, 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."

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 chastity 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 sex; for being a race of brisk, likely, pleasant tongued varlets, they soon seduced the light affections of the simple lasses from their ponderous Dutch gallants. Among other hideous customs, they attempted to introduce among them that ofbundling, which the Dutch lasses of the Nederlandts, with that eager passion for novelty and foreign fashions natural to their sex, 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 Playswere 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 theLondon 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 hisHistory 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 ofbundlingprevalent 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,incontinenceandintemperancewere 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 agocarefullyremoved. [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 todig deepamong 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 madeconfessionsof 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 manuscript confessions of individuals read to the church before they were formally admitted to its communion.

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 todig deepamong 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 madeconfessionsof 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 manuscript confessions of individuals read to the church before they were formally admitted to its communion.

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