Argument XIII.
The Indian Marriages, Divorces, and Punishments of adultery, still retain a strong likeness to the Jewish laws and customs in these points.
The Hebrews had sponsalia de presenti, and sponsalia de futuro: a considerable time generally intervened between their contract and marriage: and their nuptial ceremonies were celebrated in the night. The Indians observe the same customs to this day; insomuch, that it is usual for an elderly man to take a girl, or sometimes a child to be his wife, because she is capable of receiving good impressions in that tender state: frequently, a moon elapses after the contract is made, and the value received, before {138} the bridegroom sleeps with the bride, and on the marriage day, he does not appear before her till night introduces him, and then without tapers.
The grandeur of the Hebrews consisted pretty much in the multiplicity of their wives to attend them, as a showy retinue: as the meaner sort could not well purchase one, they had a light sort of marriage suitable to their circumstances, called by the scholiasts, usu capio; “taking the woman for present use.” When they had lived together about a year, if agreeable, they parted good friends by mutual consent. The Indians also are so fond of variety, that they ridicule the white people, as a tribe of narrow-hearted, and dull constitutioned animals, for having only one wife at a time; and being bound to live with and support her, though numberless circumstances might require a contrary conduct. When a young warrior cannot dress alamode America, he strikes up one of those matches for a few moons, which they term Toopsa Táwah, “a make haste marriage,” because it wants the usual ceremonies, and duration of their other kind of marriages.[[54]]
The friendliest kind of marriage among the Hebrews, was eating bread together. The bridegroom put a ring on the fourth finger of the bride’s left hand before two witnesses, and said, “Be thou my wife, according to the law of Moses.” Her acceptance and silence implying consent, confirmed her part of the marriage contract, because of the rigid modesty of the eastern women. When the short marriage contract was read over, he took a cake of bread and broke it in two, for himself and her; or otherwise, he put some corn between their hands: which customs were used as strong emblems of the necessity of mutual industry and concord, to obtain present and future happiness. When an Indian makes his first address to the young woman he intends to marry, she is obliged by ancient custom to sit by him till he hath done eating and drinking, whether she likes or dislikes him; but afterward, she is at her own choice whether to stay or retire[[XXX]]. When the bridegroom marries the bride, after the usual prelude, he takes a choice ear of corn, and divides it in two before witnesses, gives her one half in her hand, and keeps the other half to himself; or otherwise, {139} he gives her a deer’s foot, as an emblem of the readiness with which she ought to serve him: in return, she presents him with some cakes of bread, thereby declaring her domestic care and gratitude in return for the offals; for the men feast by themselves, and the women eat the remains. When this short ceremony is ended, they may go to bed like an honest couple.
[XXX]. Cant. iii. 4. I held him and would not let him go, until I had brought him to my father’s house, and into the chambers of her that conceived me: See Gen. xxiv. 67. Such was the custom of the Hebrews.
Formerly, this was an universal custom among the native Americans; but this, like every other usage of theirs, is wearing out apace. The West-Floridans, in order to keep their women subject to the law of adultery, bring some venison or buffalo’s flesh to the house of their normal wives, at the end of every winter’s hunt: that is reckoned a sufficient annual tye of their former marriages, although the husbands do not cohabit with them. The Muskóhge men, if newly married, are obliged by ancient custom, to get their own relations to hoe out the corn-fields of each of their wives, that their marriages may be confirmed: and the more jealous, repeat the custom every year, to make their wives subject to the laws against adultery. But the Indians in general, reckon that before the bridegroom can presume to any legal power over the bride, he is after the former ceremonies, or others something similar, obliged to go into the woods to kill a deer, bring home the carcass of venison, and lay it down at her house wrapt up in its skin; and if she opens the pack, carries it into the house, and then dresses and gives him some of it to eat with cakes before witnesses, she becomes his lawful wife, and obnoxious to all the penalties of an adultress.
The Hebrews had another sort of marriage—by purchase: the bridegroom gave the father of the bride as much as he thought she was worth: and according to the different valuation, so sooner or later she went off at market. The only way to know the merit of a Hebrew lady, was to enquire the value for which her father would sell her, and the less rapacious he was, the sooner she might get an husband. Divine writ abounds with instances of the like kind; as Gen. xxxiv. 12. “Ask me never so much dowry and I will give it.” David bought Michal, and Jacob dearly purchased Rachel, &c. The women brought nothing with them, except their clothes, rings and bracelets, and a few trinkets. When the Indians would express a proper marriage, they have a word adapted according to their various dialects, to give them a suitable idea of it; but when they are {140} speaking of their sensual marriage bargains, they always term it, “buying a woman;” for example—they say with regard to the former, Che-Awalas, “I shall marry you,” the last syllable denotes the first person of the future tense, the former, “I shall make you, as Awa, or Hewa was to Ish,” which is confirmed by a strong negative similar expression, Che-Awala Awa, “I shall not marry you.” But the name of their market marriages, is Otoopha, Eho Achumbàras, Saookcháa, “In the spring, I shall buy a woman, if I am alive.” Or Eho Achumbàra Awa, “I shall not buy a woman,” Sàlbasa toogat, “for indeed I am poor:” the former usage, and method of language is exactly calculated to express that singular custom of the Hebrews, per coemptionem.
They sometimes marry by deputation or proxy. The intended bridegroom sends so much in value to the nearest relations of the intended bride, as he thinks she is worth: if they are accepted, it is a good sign that her relations approve of the match, but she is not bound by their contract alone; her consent must likewise be obtained, but persuasions most commonly prevail with them. However, if the price is reckoned too small, or the goods too few, the law obliges them to return the whole, either to himself, or some of his nearest kindred. If they love the goods, as they term it, according to the like method of expression with the Hebrews, the loving couple may in a short time bed together upon trial, and continue or discontinue their love according as their fancy directs them. If they like each other, they become an honest married couple when the nuptial ceremony is performed, as already described. When one of their chieftains is married, several of his kinsmen help to kill deer and buffalos, to make a rejoicing marriage feast, to which their relations and neighbours are invited: there the young warriors sing with their two chief musicians, who beat on their wet deer skin tied over the mouth of a large clay-pot, and raise their voices, singing Yo Yo, &c. When they are tired with feasting, dancing, and singing the Epithalamium, they depart with friendly glad hearts, from the house of praise.
If an Israelite lay with a bond woman betrothed, and not redeemed, she was to be beaten, but not her fellow criminal; for in the original text, Lev. xix. 20. the word is in the fœminine gender. When offenders were beaten, they were bowed down, as Deut. xxv. 2.—so that they {141} neither sat nor stood, and their whip had a large knot to it, which commanded the thongs, so as to expand, or contract them; the punishment was always to be suited to the nature of the crime, and the constitution of the criminal. While the offenders were under the lash, three judges stood by to see that they received their full and just due. The first repeated the words of Deut. xxviii. 58. the second counted the stripes, and the third said, “Hack, or lay on.” The offender received three lashes on the breast, three on the belly, three on each shoulder, &c. But adultery was attended with capital punishment, as Deut. xxii. 22. The parties when legally detected, were tried by the lesser judicatory, which was to consist, at least of twenty-three: the Sanhedrim gave the bitter waters to those women who were suspected of adultery. The former were stoned to death; and the latter burst open, according to their imprecation, if they were guilty: the omnipotent divine wisdom impressed those waters with that wonderful quality, contrary to the common course of nature. The men married, and were divorced as often as their caprice directed them; for if they imagined their wives did not value them, according to their own partial opinion of themselves, they notified the occasion of the dislike, in a small billet, that her virtue might not be suspected: and when they gave any of them the ticket, they ate together in a very civil manner, and thus dissolved the contract.
I have premised this, to trace the resemblance to the marriage divorces and punishments of the savage Americans. The middle aged people of a place, which lies about half-way to Mobille, and the Illinois, assure us, that they remember when adultery was punished among them with death, by shooting the offender with barbed arrows, as there are no stones there.[[55]] But what with the losses of their people at war with the French and their savage confederates, and the constitutional wantonness of their young men and women, they have through a political desire of continuing, or increasing their numbers, moderated the severity of that law, and reduced it to the present standard of punishment; which is in the following manner. If a married woman is detected in adultery by one person, the evidence is deemed good in judgment against her; the evidence of a well grown boy or girl, they even reckon sufficient, because of the heinousness of the crime, and the difficulty of discovering it in their thick forests. This is a corruption of the Mosaic law, which required two evidences, and exempted both women {142} and slaves from public faith; because of the reputed fickleness of the one, and the base, groveling temper of the other. When the crime is proved against the woman, the enraged husband accompanied by some of his relations, surprises and beats her most barbarously, and then cuts off her hair and nose, or one of her lips. There are many of that sort of disfigured females among the Chikkasah, and they are commonly the best featured, and the most tempting of any of their country-women, which exposed them to the snares of young men. But their fellow-criminals, who probably first tempted them, are partially exempted from any kind of corporal punishment.
With the Muskohge Indians, it was formerly reckoned adultery, if a man took a pitcher of water off a married woman’s head, and drank of it.[[56]] But their law said, if he was a few steps apart, and she at his request set it down, and retired a little way off, he might then drink without exposing her to any danger. If we seriously reflect on the rest of their native customs, this old law, so singular to themselves from the rest of the world, gives us room to think they drew it from the Jewish bitter waters that were given to real, or suspected adulteresses, either to prove their guilt, or attest their innocence.
Among those Indians, when adultery is discovered, the offending parties commonly set off speedily for the distant woods, to secure themselves from the shameful badge of the sharp penal law, which they inevitably get, if they can be taken before the yearly offering for the atonement of sin; afterward, every crime except murder is forgiven. But they are always pursued, and frequently overtaken; though perhaps, three or four moons absent, and two hundred miles off, over hills and mountains, up and down many creeks and rivers, on contrary courses, and by various intricate windings—the pursuers are eager, and their hearts burn within them for revenge. When the husband has the chilling news first whispered in his ear, he steals off with his witness to some of his kinsmen, to get them to assist him in revenging his injury: they are soon joined by a sufficient number of the same family, if the criminal was not of the same tribe; otherwise, he chuses to confide in his nearest relations. When the witness has asserted to them the truth of his evidence by a strong asseveration, they separate to avoid suspicion, and meet commonly in the dusk of the evening, near the town of the adulterer, {143} where each of them provides a small hoop-pole, tapering to the point, with knobs half an inch long, (allowed by ancient custom) with which they correct the sinners; for as their law in this case doth not allow partiality, if they punished one of them, and either excused or let the other escape from justice, like the Illinois, they would become liable to such punishment as they had inflicted upon either of the parties.
They commonly begin with the adulterer, because of the two, he is the more capable of making his escape: they generally attack him at night, by surprise, lest he should make a desperate resistance, and blood be shed to cry for blood. They fall on eager and merciless, whooping their revengeful noise, and thrashing their captive, with their long-knobbed hoop-flails; some over his head and face; others on his shoulders and back. His belly, sides, legs, and arms, are gashed all over, and at last, he happily seems to be insensible of pain: then they cut off his ears[[XXXI]].
[XXXI]. Among these Indians, the trading people’s ears are often in danger, by the sharpness of this law, and their suborning false witnesses, or admitting foolish children as legal evidence; but generally either the tender-hearted females or friends, give them timely notice of their danger. Then they fall to the rum-keg,—and as soon as they find the pursuers approaching, they stand to arms in a threatning parade. Formerly, the traders like so many British tars, kept them in proper awe, and consequently prevented them from attempting any mischief. But since the patenteed race of Daublers set foot in their land, they have gradually become worse every year, murdering valuable innocent British subjects at pleasure: and when they go down, they receive presents as a tribute of fear, for which these Indians upbraid, and threaten us. The Muskohge lately clipt off the ears of two white men for supposed adultery. One had been a disciple of Black Beard, the pirate; and the other, at the time of going under the hands of those Jewish clippers, was deputed by the whimsical war-governor of Georgia, to awe the traders into an obedience of his despotic power. His successor lost his life on the Chikkasah war-path, twenty miles above the Koosah, or uppermost western town of the Muskohge, in an attempt to arrest the traders; which should not by any means be undertaken in the Indian country.
They observe, however, a gradation of punishment, according to the criminality of the adulteress. For the first breach of the marriage faith, they crop her ears and hair, if the husband is spiteful: either of those badges proclaim her to be a whore, or Hakse Kaneha, “such as were evil in Canaan,” for the hair of their head is their ornament: when loose it commonly reaches below their back; and when tied, it stands below the crown of the head, about four inches long, and two broad. As the {144} offender cuts a comical figure among the rest of the women, by being trimmed so sharp, she always keeps her dark winter hot house, till by keeping the hair moistened with grease, it grows so long as to bear tying. Then she accustoms herself to the light by degrees; and soon some worthless fellow, according to their standard, buys her for his And; which term hath been already explained.
The adulterer’s ears are slashed off close to his head, for the first act of adultery, because he is the chief in fault. If the criminals repeat the crime with any other married persons, their noses and upper lips are cut off. But the third crime of the like nature, is attended with more danger; for their law says, that for public heinous crimes, satisfaction should be made visible to the people, and adequate to the injuries of the virtuous,—to set their aggrieved hearts at ease, and prevent others from following such a dangerous crooked copy. As they will not comply with their mitigated law of adultery, nor be terrified, nor shamed from their ill course of life; that the one may not frighten and abuse their wives, nor the other seduce their husbands and be a lasting plague and shame to the whole society, they are ordered by their ruling magi and war-chieftains, to be shot to death, which is accordingly executed: but this seldom happens.
When I asked the Chikkasah the reason of the inequality of their marriage-law, in punishing the weaker passive party, and exempting the stronger, contrary to reason and justice; they told me, it had been so a considerable time—because their land being a continual seat of war, and the lurking enemy for ever pelting them without, and the women decoying them within, if they put such old cross laws of marriage in force, all their beloved brisk warriors would soon be spoiled, and their habitations turned to a wild waste. It is remarkable, that the ancient Egyptians cut off the ears and nose of the adulteress; and the prophet alludes to this sort of punishment, Ezek. xxiii. 25. “They shall deal furiously with thee: they shall take away thy nose and thine ears.” And they gave them also a thousand stripes, with canes on the buttocks[[XXXII]]. The Cheerake are an exception to all civilized or savage nations, in having no laws against adultery; they {145} have been a considerable while under petticoat-government, and allow their women full liberty to plant their brows with horns as oft as they please, without fear of punishment. On this account their marriages are ill observed, and of a short continuance; like the Amazons, they divorce their fighting bed-fellows at their pleasure, and fail not to execute their authority, when their fancy directs them to a more agreeable choice. However, once in my time a number of warriors, belonging to the family of the husband of the adulteress, revenged the injury committed by her, in her own way; for they said, as she loved a great many men, instead of a husband, justice told them to gratify her longing desire—wherefore, by the information of their spies, they followed her into the woods a little way from the town, (as decency required) and then stretched her on the ground, with her hands tied to a stake, and her feet also extended, where upwards of fifty of them lay with her, having a blanket for a covering. The Choktah observe the same savage custom with adulteresses. They term their female delinquents, Ahowwe Ishto; the first is a Cheerake word, signifying, “a deer.”—And through contempts of the Chikkasah, they altered their penal law of adultery.
[XXXII]. When human laws were first made, they commanded that if the husband found the adulterer in the fact, he should kill them both. Thus the laws of Solon and Draco ordained: but the law of the twelve tables softened it.
The Muskohge Indians, either through the view of mitigating their law against adultery, that it might be adapted to their patriarchal-like government; or by misunderstanding the Mosaic precept, from length of time, and uncertainty of oral tradition, oblige the adulteress under the penalty of the severest law not to be free with any man, (unless she is inclined to favour her fellow sufferer) during the space of four moons, after the broken moon in which they suffered for each other, according to the custom of the Maldivians. But her husband exposes himself to the utmost severity of the marriage law, if he is known to hold a familiar intercourse with her after the time of her punishment.