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.
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