FOOTNOTES.

"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 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 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 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."

"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 the ecclesiastical authorities) are modesty itself, notwithstanding their plain speaking, compared with those of the Welsh legislators."

"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 her wynet-werth[14] and her chastity; and, if not, let her take what grease may adhere to her hands."

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 went queesting was simply searching after a wife, understood.

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."

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

"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 assent 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 assented 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 assembly 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 sexes 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."

Page 177. June 1, 1761. "The church also at this meeting, voted in relation to the confession necessary to be made by parents, to entitle their children to the rite of baptism, who might be supposed to have committed the offence of which, in Mr. Trowbridge's time, they supposed that, 'if not absolutely, yet next to impossible to convict them,' not materially varying from a seven-months rule heretofore adopted. These regulations were signed by the moderator, and assented to by the pastor elect."

Page 181. "During Mr. Dana's ministry [1761-1775] 124 persons (38 males, 86 females) were admitted to the church in full communion; 200 (77 males, 123 females) owned the baptismal covenant. Of the first class, 14 confessed having committed the offence aforementioned, and of the last class, 66, a proportion not indicative of good customs and morals."