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."
[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's Highlanders of Scotland, vol. I, chap. vii, 166, 167.
[5] In Scottish Ballads and Songs, by James Maidment, Edinburgh, MDCCCLIX, under the title 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 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."
[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.