Liber 200 solidi.
Servus 30 solidi.
These are evidently unaltered gold values.
[Sidenote: A half wergeld for destruction of an eye, hand, or foot.]
The rest of the first five titles relate to wounds, and we need only
mention that the destruction of an eye, hand, or foot, or a blow causing
loss of hearing, was to be paid for with _half_ the wergeld of each
class, following in this respect the custom of the Frisian and Saxon
tribes.
These five titles in the Corvey Manuscript of the tenth century
constitute a whole under the title ‘Lex Thuringorum.’ The remaining
titles are, in this manuscript, added to the Lex Saxonum, to which,
however, they do not appear to belong.
[Sidenote: Triple wergeld of the Adaling.]
The triple wergeld of the Adaling of these laws may have been the result
either of noble birth or official position, or both combined. The wergeld
of the _liber_ of 200 gold solidi, presumably of three tremisses, seems
to connect the customs of the Thuringian tribes of these laws with those
of the Salic and Ripuarian Franks rather than with those of the Saxons
and Frisians. It is worth notice, too, that, while in the Lex Saxonum
and the Lex Frisionum the figures seem to follow a duodecimal system, in
these laws the more usual decimal reckoning is retained as in the Lex
Salica.
The fact that among the additional titles there is one ‘De alodibus’
connects still further these laws, notwithstanding their later date, with
the Salic and Ripuarian laws which contain similar titles. And it is
worth while, for purposes of comparison, to give it at length. (Tit. v.)
[Sidenote: The title ‘De Alodis.’]
(I) Hereditatem defuncti filius non filia suscipiat. Si filium
non habuit, qui defunctus est, ad filiam pecunia et mancipia,
terra vero ad proximum paternæ generationis consanguineum
pertineat.
(I) Let the son of the deceased and not the daughter receive the
inheritance. If he who has died had no son, to the daughter shall
go the cattle and slaves, but the land shall pertain to the next
blood relation of the paternal generation.
(II) Si autem nec filiam non habuit, soror ejus pecuniam et
mancipia, terram proximus paternæ generationis accipiat.
(II) But if he had no daughter either, his sister shall take the
cattle and slaves; the next of the paternal generation shall take
the land.
(III) Si autem nec filium nec filiam neque sororem habuit,
sed matrem tantum superstitem reliquit, quod filia vel soror
debuerunt, mater suscipiat, id est, pecuniam et mancipia.
(III) But if he had neither son nor daughter nor sister, but he
left a _mother_ only surviving, what daughter or sister should
have had, let the mother take, _i.e._ the cattle and slaves.
(IV) Quodsi nec filium nec filiam nec sororem aut matrem dimisit
superstites, proximus qui fuerit paternæ generationis, heres ex
toto succedat, tam in pecunia atque in mancipiis quam in terra.
(IV) But if he leaves neither son nor daughter nor sister nor
mother surviving, he who shall be next of the paternal generation
shall succeed as heir of the whole as well in cattle and slaves
as in land.
(V) Ad quemcumque hereditas terræ pervenerit, ad illum vestis
bellica, id est lorica, et ultio proximi et solutio leudis debet
pertinere.
(V) And to whomsoever the inheritance in the land shall come, to
him ought to pertain the coat of mail, _i.e._ the birnie, and the
avenging of the next of kin and the payment of wergeld.
(VI) Mater moriens filio terram, mancipia, pecuniam dimittat,
filiæ vero spolia colli, id est murenulas, nuscas, monilia,
inaures, vestes, armillas, vel quicquid ornamenti proprii
videbatur habuisse.
(VI) A mother dying shall leave her land, slaves, and goods,
to her son, but to her daughter her neck-treasures, _i.e._,
necklaces, buckles, collars, earrings, robes, bracelets, or
whatever personal ornaments she appeared to have.
(VII) Si nec filium nec filiam habuerit, sororem vero habuerit,
sorori pecuniam et mancipia, proximo vero paterni generis terram
relinquat.
(VII) If she had neither son nor daughter, but had a sister, to
the sister shall she leave the cattle and slaves, but the land
to the next of the paternal kin.
(VIII) Usque ad quintam generationem paterna generatio succedat.
Post quintam autem filia ex toto, sive de patris sive de matris
parte, in hereditatem succedat; et tunc demum hereditas ad fusum
a lancea transeat.
(VIII) As far as the fifth generation the paternal kin succeed.
But after the fifth, a daughter, whether on the father’s or on
the mother’s side, may succeed to the whole inheritance; and
then finally let the inheritance pass over from the spear to the
spindle.
[Sidenote: The alod included both land and cattle.]
As in the other laws so under these rules the alod clearly embraced both
the land and the ‘pecunia’ and ‘mancipia’ upon it. Its object, like that
of the similar clauses in the other laws and also like that of the Edict
of Chilperic, seems to have been to protect the land in ordinary cases
from passing over ‘from the spear to the spindle,’ while at the same time
sanctioning inheritance by females even in the land of the alod when
otherwise there would be danger of its passing away from the kindred
altogether.
In certain cases the land of the alod was made to go to male heirs while
the ‘pecunia’ and ‘mancipia’ upon it went to females.
Whether the word ‘pecunia’ in such cases should be translated by
‘cattle’[170] or the wider word ‘chattels,’ it must have included the
cattle, and at first sight it is not easy to see how the rule would work
which gave the cattle of the alod to a female and the land to a distant
male heir. The cattle must in the nature of things have remained or be
put upon land, and the awkward question arises upon whose land they
remained or were put. And so we are brought once more to the practical
question of the position of women in relation to the land. That in
certain cases in default of male heirs they could inherit land is one
thing; but this question of the cattle and slaves involves quite another.
[Sidenote: Male next of kin takes the land and chieftainship, but females
may have cattle upon the land.]
When a sister received her portion or gwaddol under Cymric custom, and
when she received so many cows for her maintenance from the chief of
kindred, she must have had rights of grazing for her cattle in the family
herd of her gwely. Till she married, her cattle would graze with the
cattle of her paternal gwely; and when she married, with the cattle of
her husband’s gwely. And so under the rules of this clause ‘De alodibus’
it does not follow that the distant male heir succeeding to the land of
the alod was to evict her and her cattle from it. With the land he had
to take also the responsibilities involved in the family holding. Clause
V. states that to whomsoever the inheritance of the land shall come, to
him ought to pertain the coat of mail, _i.e._ the birnie, and with it
the duty of the chief of the kindred to avenge his kin and to see to
the payment of wergeld if any one of the kin should be slain. Read from
this point of view this clause ‘De alodibus’ becomes good evidence that,
whatever changes may have been made as to female inheritance, the _land_
of the alod had not yet lost all its tribal traits. It had not yet become
the ‘res propria’ of an individual possessor under Roman law.
V. THE SO-CALLED LEX CHAMAVORUM.
This document, according to most recent authorities, relates to a
district between the Frisians and Saxons to the North and East, with the
river Meuse to the South.[171]
[Sidenote: The Chamavi under Frankish law.]
Its real title seems to be _Notitia vel commemoratio de illa euva quæ se
ad Amorem habet_, and it seems to be not so much a code as a memorandum
of the wergelds and fines of a Frankish people settled in the district
alluded to. Probably in date it may belong to the time of Charlemagne,
but before his changes in the currency.
It is of some interest to this inquiry because of its peculiar position,
as relating to a tribe or people under Frankish rule, and yet with
customs of its own which have survived Frankish conquest.
The Notitia starts with the declaration that in ecclesiastical matters,
as regards the _bannus dominicus_, the same laws prevail ‘as other Franks
have.’
[Sidenote: Wergeld of the Homo Francus three times that of the ingenuus.]
And then it at once describes the wergeld, as follows:--
The wergelds of this law are as under. Whoever kills--
Homo Francus 600 solidi et pro fredo 200 sol.
Ingenuus 200 ” ” 66⅔ ”
Lidus 100 ” ” 33½ ”
Servus 50 ” ” 16⅔ ”
Then follows a clause (VII.) which states that if any ‘Comes’ be slain in
his own ‘comitatus’ the wergeld is to be three times that according to
his birth.
The _Homo Francus_ thus has a triple wergeld, like the Comes. But the
_Comes_ may possibly be not _ingenuus_. He may be a lidus with official
position, and so presumably, according to Clause VII., with a threefold
wergeld of only 300 solidi.
In the next clause the Royal ‘Missus’ is put in the same position while
on the King’s business. His wergeld is also to be trebled.
What, then, is the _Homo Francus_ with a wergeld three times that of the
ordinary _ingenuus_ of the district of Amor?
The wergeld of the latter is the full normal wergeld of 200 solidi. The
Homo Francus in this district was therefore very much above the ordinary
freemen of other laws. He was evidently a Frankish landowner on a large
scale, towering in social position above the ordinary freemen of the
district.
The _casa_ and _curtis_ of the Homo Francus alone were protected by
special clauses (XIX. and XX.), and of him alone are any hints given as
to kindred or inheritance. Clause XLII., in the following few words,
enlightens us as to his social position:--
If any Francus homo shall have sons, his inheritance in woods
and in land shall pass to them, and what there is in slaves and
cattle.
Concerning the maternal inheritance, let it go in like manner to
the daughter.
We must probably consider the privileged position of the Homo Francus
as presumably the result of Frankish conquest. The great landowner may
have been the holder of a benefice, or a tenant _in capite_ placed upon
the royal domain with ministerial and judicial duties, and the triple
wergeld may fairly be assigned to his official position.
But to return to the wergelds.
The payment _pro fredo_ seems to have been equal to an additional one
third of the wergeld.
[Sidenote: Payment for the eye etc. one quarter the wergeld.]
From clauses XX. and XXXII. it appears that the value of an eye or hand
or foot was one quarter of the wergeld, instead of half as in the Salic
and Ripuarian Laws.
Theft was to be paid for ninefold with four solidi _pro fredo_.
The further clauses regarding theft in this border district of forests
and cattle and mixed population are not quite easily understood, nor need
we dwell upon them.
In c. XXX. the penalty for letting a thief go without bringing him before
the Comes or centenarius was 60 solidi, as in the Ripuarian Laws.
VI. CONCLUDING REMARKS.
Before passing from the laws, the compilation of which seems to date
from the conquests of Charlemagne, it may be well to note that, regarded
from the point of view of the wergelds, the tribes whose customs have
been examined in the last two sections seem to have belonged to the
Frankish group with wergelds of 200 gold solidi, while on the other hand
the Frisians and Saxons seem to have belonged to the other group with
wergelds of 160 gold solidi.
This grouping of the tribes may not be exactly what might have been
expected.
[Sidenote: The two groups of tribes with wergelds of 200 and 160 solidi.]
Geographically the Frankish group is sufficiently compact. The other
is widely extended and scattered. Frisians and Saxons remain in their
ancient homes. The Alamannic, Bavarian, and Burgundian tribes have
wandered far away from theirs. But in their northern home they may have
been once sufficiently contiguous to have shared many common customs
and among them a common wergeld of 160 solidi.[172] Settled in their
new quarters, the Rhine and its tributaries seem to have been the great
highways of commercial intercourse and the connecting links between them.
Immigrants from them all met as strangers (_advenæ_) in the Ripuarian
district, and, as we have seen, we owe our knowledge of some of their
wergelds very much to the recognition of them in the Ripuarian law.
[Illustration]
CHAPTER VIII.
_THE TRIBAL CUSTOMS OF THE OLDEST SCANDINAVIAN LAWS._
I. THE MONETARY SYSTEM OF SCANDINAVIA.
The facts needful for the understanding of the monetary system of the
Scandinavian tribes need not detain the reader very long.
The weight system applied to gold and silver was that evidently derived
from the Eastern Empire.
[Sidenote: Marks, ores, and ortugs. The ortug the Greek stater or
ox-unit.]
It consisted of the mark, the ore, and the ortug. The mark was divided
into eight ores or ounces, and the ore or ounce into three ortugs, which
were in fact staters or double solidi. The ounce being the Roman ounce
of 576 wheat-grains, the ortug contained 192 wheat-grains, and was the
exact counterpart in wheat-grains of the Greek stater, _i.e._ Professor
Ridgeway’s ox-unit. Reckoned in wheat-grains, two Scandinavian marks
of 8 ounces were, as we have seen, exactly equal to what the early
metrologists called the (light) _Mina Attica_, which consisted of 16
Roman ounces or 9216 Roman wheat-grains. Four gold marks thus made a
_heavy_ gold mina, traditionally representing a normal wergeld of 100
head of cattle.
But this heavy gold Mina of four marks had been seemingly twisted from
its original Greek character to bring it into consistency with Roman
methods of reckoning. It was divided no longer into 100 staters, but now
into 96 ortugs, so as to make the ortug double of the solidus and one
third of the Roman ounce, thus throwing it out of gear, so to speak,
with the normal tribal wergelds of 100 head of cattle. It was thus made
to contain only 96 ox-units, although in actual weight its 32 Roman
ounces really did contain, so long as the standard of the Roman ounce was
adhered to, 100 Attic staters or ox-units.
That the light mina of two marks or 9216 wheat-grains had found its way
by the Eastern trade routes into Scandinavia appears from its survival
in the monetary system of countries on both sides of the Baltic to quite
modern times.
[Sidenote: The pound of two marks.]
In Northern Europe the pound of twelve ounces was not, as elsewhere, the
usual larger unit. The pound of two marks or sixteen ounces had taken its
place. And except in Norway and Denmark, which sooner or later adopted
the monetary and weight system of Charlemagne, the ounce remained the
Roman ounce of 576 wheat-grains. At the same time, as in the case of
the Merovingian system, in spite of the Imperial influence of the gold
solidus, there were evident marks of a tendency towards the ancient
Eastern standard of the stater rather than the heavier standard of the
double solidus. The ortug of 192 wheat-grains seems to have often sunk in
actual weight below even the Attic weight to that of the ancient Eastern
stater of 8·18 grammes.
Thus when the Russian weight system was recorded in the time of Peter the
Great the unit both for precious metals and goods was found to be the
_Zolotnic_ or gold piece. Thus--
Dolja = ·0444 grammes = wheat-grain.
Zolotnic = 4·265 ” = 96 w.g.
Funt = 409·511 ” = 96 zolotnic, or 9216 w.g.
Here, then, _in wheat grains_ the Funt is the light Mina Attica over
again, Romanised in its divisions. The Zolotnic is the solidus or
half-stater. But in actual weight the pound is exactly half of the
ancient Eastern gold mina of 818 grammes.
The Pfund of Silesia (Breslau), according to Martini, was 405 grammes,
and that of Poland (Cracow) the same. Only Sweden and Riga seem to have
adopted or preserved higher standards, the double mark of Sweden being
425 and that of Riga 419 grammes; but even these fell far short of the
standard weight of 16 Roman ounces, viz. 436 grammes. But throughout, low
as the standard of the Baltic _Funts_ or double marks may have been, they
were divided according to the Roman commercial weight system into _ores_
or ounces and _loths_ or half-ounces, and _gwentschen_ or drachmas of one
eighth of an ounce, just as if they were of full Imperial weight. The
marks and the ores remained, but the old division of _ores_ into ortugs
or staters had long ago disappeared.
The division into marks, ores, and ortugs was, however, in full force at
the time of the Norse laws, both for gold and silver. And the evidence
of actual weights seems to show, not only that for the purposes of the
Eastern trade routes, reckoning in marks, ores, and ortugs was in common
use, but also that the standard, like that of the Merovingian coinage,
was the ancient Eastern standard.
Thus the following weights, believed to belong to the Viking period,
from the island of Gotland, are now in the Royal Museum at Stockholm
(Nos. 4752 and 5984).
[Sidenote: The ortug in weight = Eastern stater or two Merovingian
solidi.]
o o o o
o o
o o o o
o o o o
o o 819 grammes = 100 staters or ortugs of 8·19
o o o o
o o
|
o--o--o 57·25 ” = 7 ” ” 8·1
|
o o
o o 32·65 ” = 4 ” ” 8·16
o o
o o 32·4 ” = 4 ” ” 8·1
o o
o 24·35 ” = 3 ” ” 8·12
o o
The unit of these weights is exactly the Eastern stater of 8·18 or two
Merovingian solidi.[173]
Whether this standard had been arrived at independently of the
Merovingian standard, or adopted from it, we must not stop to inquire. It
is enough that the ortug at the date of the laws through Roman influence
had come to be reckoned as one third of the ounce.
Whatever may have been the early Byzantine influences and that of Eastern
trade routes, long before the date of the Norse laws, Scandinavia had
come under Frankish influences also.
[Sidenote: The mark of 8 Roman ounces and Charlemagne’s mark of the _nova
moneta_.]
Already during Merovingian times, chiefly through the Frisian mint at
Duurstede, Merovingian currency had become well known on the Baltic, and
we have seen that the first Scandinavian coins were copies from those of
the Duurstede type. Hence it came to pass that in the most ancient of
the Norse laws the old Scandinavian reckoning in gold and silver marks,
ores, and ortugs had become connected with the Frankish currency. During
the period of Merovingian influence the Merovingian ounce and the Norse
ore were both, reckoned in wheat-grains, the ounce of the Roman pound,
whatever may have been their actual weight. The mark of eight ounces
contained 4608 wheat-grains of gold or silver. But at last, as the
result of Charlemagne’s conquests in the North, his _nova moneta_ with
its higher standard was brought into contact with Scandinavia. His mark
of eight of his ounces or 5120 wheat-grains ultimately superseded in
Norway and Denmark the old mark of eight Roman ounces. Hence, as all the
Scandinavian laws as we have them, are of later date than Charlemagne’s
conquests, the question must arise, which of the two marks is the one in
which the wergelds and other payments are described.
In the oldest Norse laws the wergelds are stated mostly in _silver_
marks, ores, and ortugs. The ratio between gold and silver was 1:8, so
that an ore of gold equalled a mark of silver, and thus the translation
of silver values into gold is easy. The laws themselves, as we shall
find, make this perfectly clear. A wergeld stated as of so many gold
marks is divided in the details of payment into silver marks, ores, and
ortugs at the ratio of 1:8.
II. THE WERGELDS OF THE GULATHING AND FROSTATHING LAWS.
[Sidenote: The Gulathing law.]
In approaching the consideration of the Scandinavian custom as to
wergelds and the structure of tribal society as disclosed in the ancient
laws, I do it with great diffidence, especially as, for the translation
of Old Norse, I am dependent on others.
On the whole it seemed best to concentrate attention upon the
_Gulathingslög_ as the oldest of the Norse laws. The Danish and Swedish
laws and the Grágás of Iceland no doubt under competent hands would
yield valuable additional evidence, but the oldest of the Norse laws may
probably be fairly taken as the most representative of early Northern
custom, and at the same time most nearly connected with the object of
this inquiry.
Geographically the Gulathing law was in force in the southern portion
of Norway. It seems to have embraced, in about the year 930, three, and
afterwards six, _fylkis_ or districts each with its own _thing_ and
local customs.[174] In this respect it resembled the Frisian and Saxon
laws, both of which recognised, as we have seen, the separate customs of
tribal divisions contained in the larger district over which the laws had
force.
The Gulathing law must therefore be regarded as in some sense a
compilation or collection of customs rather than one uniform law. For
instance, there are three or four separate descriptions of the wergeld
and the modes of its payment and receipt. One of these is avowedly of
later date. The older ones may probably describe local variations of
general custom, belonging to one or another of the divisions, and even
these bear marks of later modification and additions.
As usual, the introduction of Christianity was the occasion and
perhaps the cause of the compilation, and therefore from the time of
the formation of Dioceses by King Olaf (A.D. 1066-93) ecclesiastical
influence must be expected. But on the whole this Gulathing law presents
in some points a far more interesting and instructive picture of social
conditions resulting from tribal custom than the laws of other tribes
already examined of much earlier date.
[Sidenote: The Frostathing law.]
The next important of the ancient laws of Norway is the _Frostathingslög_
belonging to the more northerly district of Drontheim. Without pretending
to have made it the subject of special study, I have here and there found
it useful in elucidation of the Gulathing law, and as showing that tribal
custom, though with local variations, was in force over a wider district
than that under the Gulathing law.
The question of the structure of tribal society and the division of
classes in Norway may be most conveniently approached from the point of
view of the _rett_ or ‘personal right,’ somewhat analogous to the Irish
‘honour-price’ and the Welsh ‘saraad.’
[Sidenote: Grades of personal ‘rett.’]
Both in the Gulathing law and in the Frostathing law this personal ‘rett’
lies at the root of the graduated payments for insults, wounding, and
homicide. And the statements of it are practically identical in the two
laws. They are as follows:--
_Gulathing_ (200) _Frostathing_ (X. 35)
Leysing before freedom’s
ale 4 ores
Leysing 6 ores Leysing after freedom’s
ale 6 ores
Leysing’s son 8 ” Leysing’s son 8 ores or 1 mark
Bónde 12 ” Reks-thane[175] 12 ores
Árborinn man[176] 16 ores or 2 marks
Hauldman[177] 24 ” Hauldman 24 ores or 3 ”
Lendman and Stallare 48 ”
The chief difference is that the Frostathing law divides the leysings
into two classes, a significant point on which important considerations
turn.
The things for which full rett was paid may be described as insults. If a
man were knocked down, even if he fell on his knees, or if his moustache
were ‘seized with hostile hand’ (195), or if a man were called ‘a mare or
bitch,’ these were insults for which full rett was to be paid (196).
The payments for inflicting serious wounds (sár) were regulated in the
same gradations according to rank as the rett, but were threefold in
amount. These payments were made in ‘baugs’ or rings, each of twelve ores
of silver.
_Gulathing Law_ (185) _Frostathing Law_ (IV. 53)
Leysing 1 ring
Leysing’s son 2 rings Leysing 2 rings
Bónde 3 ” Reks-thane 3 ”
Ár-borinn man 4 ”
Odal-born man[178] 6 ” Hauld 6 ”
Lend-man and Stallare 12 ” Lend-man 12 ”
Jarl 24 ” Jarl 24 ”
King 48 ” King 48 ”
These were the penalties paid by the person inflicting the wound--_i.e._
_three times his own rett_--and besides this he had to pay _sár-bót_
according to the extent and character of the wound, as in other laws. He
also had to pay the healing fee (185) of the injured person.
[Sidenote: The hauld or odal-man the typical tribesman.]
Passing from insults and wounds to homicide, throughout the Gulathing
law the hauld, or odal-born man, is taken as the typical tribesman. His
wergeld is described, and then the wergelds of other classes are said to
vary according to the rett.
But before we consider the wergelds it must be remarked that here, as
elsewhere, there is no wergeld for a murder within the family.
In clause 164 under the heading of ‘A madman’s manslaying’ is the
following:[179]
Nu hever maðr óðz mannz víg vigit, vigr sunr faður, æða faðer
sun, æða bróðer bróðor, æða systkin eitthvert, æða vigr barn
móðor sína, æða móðer barn sitt, þá firi-vigr hann arve þeim
er hann átti at taca. Scal sá þann arf taca er nestr er þá, oc
helldr scal konongr hava en hann. En hann være í lande, oc gange
til skrifta, oc have sitt allt.
Now if a man has done the slaying of a madman, if a son slays his
father, or a father his son, or a brother his brother or any of
his sisters and brothers, or a child slays its mother or a mother
her child, then he forfeits the inheritance he ought to take.
The one next to him in kin takes that inheritance, and the King
shall have it rather than he. But he shall stay in the land and
be shriven and keep all that is his.
[Sidenote: No wergeld within the family.]
In the Gulathing law the kindred within which there is no wergeld is thus
the actual family, and it is in full accord with the instance in Beowulf
in which the old father is represented as having to put up with the
presence of a son by whose arrow another of his sons had been slain, such
a crime being one which under tribal custom could not be avenged.
Turning now to the amount of the wergeld of the Gulathing law and the
Frostathing law, it must again be remarked that there are in these laws
varying accounts of it.
[Sidenote: The wergeld of the Frostathing law of later date awarded in
marks of gold.]
In the first place there are some avowedly of later date than others.
Thus, in Frostathing VI. 1 the description of the wergeld is commenced as
follows:--
Her hefr upp oc segir í frá því er flestum er myrkt oc þyrftu
þó marger at vita, fyrir því at vandræði vaxa manna á millum en
þeir þverra er bæði höfðu til vit oc góðan vilja, hvesso scipta
scylldi ákveðnum bótum ef þær ero dœmdar, fyrer því at þat er nú
meiri siðr at ánemna bœtr, hvesso margar mercr gulls uppi sculu
vera epter þann er af var tecinn, oc velldr þat at marger vito
eigi hvat laga bót er, er þó at vissi, þá vilia nú fáer því una.
En Frostoþings bóc scipter lagabót hveriom epter sínum burð oc
metorði, en ecki hinum bótum er þeir ofsa eða vansa er í dómum
sitia oc sáttmál gera.
Here begins and is told that which to most is dark and yet many
had need to know, because difficult matters increase among men
and those grow fewer who both had the wits and the goodwill for
it,--how to divide the fixed _bóts_ (bœtr) if they are adjudged,
_for it is now more the custom to fix the bóts, how many marks
of gold_ shall be paid on account of him who was slain, and the
cause of that is that many know not what the lawful _bót_ is,
and though they knew it, few will now abide by it. _But the
Frostathing book divides the lawful bót_ to every one according
to his birth and rank, and not those _bóts_ (bœtr) which they
that sit in courts and make terms of peace put too high or too
low.
Here the writer clearly refers back to the ancient Frostathing book as
the authority for the ‘lawful bót,’ but on examination he seems to add
certain additional bóts which the courts now include in the round amount
of so many gold marks awarded by them in each case as it comes before
them.
The writer takes first the case of an award of six marks of gold and
describes how it is to be divided, and then the case of five marks of
gold, and so on.
[Sidenote: Division of it in silver marks at ratio of 1:8.]
The division is throughout made in _silver_ marks, ores, ortugs, and
penningar. But when the items are added up, the total in silver divided
at the ratio of 1:8 brings back the result as nearly as may be to the
number of _gold marks_ from which the division started. Thus in the
clause describing the division of the wergeld of six marks of gold,
the silver items add up to 48 marks exactly, and the division of this
by 8 brings back the amount to six marks of gold. And so in the clause
dividing five marks of gold, the items seem to add up to one ortug only
less than 40 silver marks, and again a division by 8 brings the amount
sufficiently near to five marks of gold.
[Sidenote: The group of Bauga men. The other group of Nefgildi-men.]
In each case, however, the writer adheres to the same scheme of division.
When he has 6 gold marks to divide he first assigns 18 silver marks to
_Bauga_ men (_i.e._ the near group of kinsmen of male descent on the
paternal side only), and then he adds half as much (_i.e._ 9 marks) to
a group of _Nefgildi-men_[180] among whom are included, with others,
kinsmen of descent through females on both paternal and maternal sides.
So that these two groups of Bauga men and Nefgildi get 27 marks. In
all cases he makes the group of Nefgildi receive only half the amount
received by the Bauga group, the whole amount being reduced according to
the number of gold marks to be divided. After the amount allowed to these
two groups, the remainder is made up of additional payments some of which
he expressly declares were not included under old law. Thus (in clause
6) he adds an amount which he says was ‘not found in the old Frostathing
book’ and justifies it by saying that there would be danger to the slayer
if it was not paid. And so again (in clause 9), there are additions for
half-brothers, half-brothers’ sons, &c., of the same mother. And these
additions are included in the six marks of gold ‘according to new law.’
Evidently, therefore, we must not take these wergelds of six and five
marks of gold with their divisions as representing the ancient customary
wergelds of this class or that in the social scale, but rather as
showing the extent to which the system of wergelds had become somewhat
arbitrarily expanded and elastic in later times. The total amount with
additions was apparently increasing as time went on.
[Sidenote: Later statement in the Gulathing law.]
As in the Frostathing law so also in the Gulathing law (clause 316,
p. 104) there is a statement of wergeld, avowedly of a late date and
added under the name of _Biarne Marðarson_, who lived about A.D. 1223.
And this, too, seems to belong to a time when the amount of the wergeld
was awarded by some public authority in so many marks of gold. He takes
the case of a wergeld of six marks of gold and shows how it ought to be
divided; and then the case of a wergeld of five marks of gold and shows
how that should be divided--‘What each shall take of five marks of gold’
and so on--just as was done by the writer in the Frostathing law.
One might have supposed from this that, as the method of awarding fixed
amounts and the amounts to be divided in gold marks were the same, so the
groups and the persons included in them would have corresponded also. But
they differ considerably.
Biarne Marðarson up to a certain point follows the same scheme as the
writer in the Frostathing.
In his division of six marks of gold he, too, draws a line at the amount
of 27 marks, and he also divides this amount into thirds and gives two
thirds to one group and one third to the other. The son of the slain and
the brother of the slain form the first group and take 18 marks, and a
second group take 9 marks, the two together taking 27 marks.
The group who together take 9 marks, like the Nefgildi-men of the
Frostathing, embraces however by no means the same relatives as are
included in the latter. The only persons included are the father’s
brother and his children, _i.e._ first cousins or brœðrungs of the slain,
but among them are included the sons of concubines and of female first
cousins. And after the mention of these is the statement, ‘_All that
these men take amounts to 27 marks and 2 aurar_.’ Out of the remainder of
the 6 gold marks or 48 silver marks other relations take to the ‘fifth
man’ on the male line and the sixth on the female line.
Biarne Marðarson seems, like the writer in the Frostathing law, to have
had to some extent a free hand in the division. It is clear that there
was much variety in the course adopted. Nor does he seem to have been
by any means so systematic and accurate as the other writer. The silver
amounts, when added up, do not so accurately correspond with the six gold
marks to be divided.
[Sidenote: Earlier wergeld of the Gulathing law. In silver marks and
cows.]
We turn, then, from these later statements to what seems likely to be an
older statement of the Norse wergeld, viz. that which commences at clause
218 of the Gulathing law.
It describes the division of the wergeld of a ‘hauld’ or ‘odal-born’
man, and it begins with the explanation that the ‘mannsgiöld’ or wergeld
decreases and increases from this as other retts.
It describes the various amounts both in silver marks and in cows, which
the other statements do not, and this, so far as it goes, is a sign of
antiquity.
In clause 223 is inserted a statement of the various things in which
wergelds may be paid. The only item the value of which is given is the
cow, which is to be taken at 2½ ores if not older than eight winters and
if it be ‘whole as to horns and tail, eyes and teats, and in all its
legs.’ And this silver value of the cow--2½ ores--is the one used in this
older description of the wergeld.
The wergeld according to this statement consists of bauga payments and
upnám payments. The first are received in three baugs or rings thus:--
[Sidenote: The 64 cows of the Bauga group.]
_Höfuð_ (head) _baug_, taken by
the son and the father of the
slain 10 marks or 32 cows.
_Bróður baug_, taken by brother,
or if none, by the son of the slain 5 marks or 16 cows.
_Brœðrungs baug_ taken by
the father’s brother’s son, _i.e._ first
cousin of the slain 4 marks or 13 cows - ½ ore.
-------- ------------------
19 marks or 60 cows + 2 ores.
To this is added for women’s
gifts, _i.e._ the mother, daughter,
sister, and wife of the slain, or in
default to the son of the slain 1 mark or 3 cows + ½ ore.
-------- ------------------
Total 20 marks or 64 cows.
After this statement is the declaration, ‘Now all the baugs are counted.’
A clause is here interpolated changing the point of view so as to show
how, and by whom on the slayer’s side the same three baugs were paid.
Nú scal vigande bœta syni hins dauða hafuðbaug.
(222) The slayer shall pay to the son of the dead the _höfuð
baug_.
En bróðer viganda scal bœta brœðr hins dauða bróðor baug, ef hann
er til, ellar scal vigande bœta.
The slayer’s brother (if he has one) shall pay to the brother of
the dead the _bróður baug_; otherwise the slayer shall pay it.
Nú scal brœðrongr viganda bœta brœðrongi hins dauða brœðrongs
baug, ef hann er til, ellar scal vigande bœta.
The brœðrung of the slayer (if he has one) shall pay to the
brœðrung of the slain the _brœðrungs baug_; otherwise the slayer
shall pay it.
Sá er sunr hins dauða er við giölldum tecr, hvárt sem hann er
faðer æða bróðer, æða hvigi skylldr sem hann er.
He is [reckoned] the son of the dead who takes the giöld, whether
he is father or brother or however he is related.
Then follows the declaration, ‘_Now the baugs are separated_’ (‘Nú ero
baugar skildir’).
It seems clear, then, that the slayer was in the last resort responsible
for the whole of these baug payments, as it was the son of the slain who
would take any part of them lapsing through failure of the designated
recipients.
[Sidenote: Women’s gifts.]
The small payments to the mother, daughter, sister, and wife included in
the baug payments are evidently additional and exceptional payments in
regard to close sympathy. The slayer does not make these payments. It is
expressly stated that they are made ‘by the kinswomen of the slayer,’ but
they are included in the even amount of 20 marks or 64 cows.
The recipients of the three baugs, it will be seen, were limited to the
nearest relatives on the _paternal_ side--fathers, sons, brothers, and
first cousins--with no descent through females, while the recipients
in the next set of groups or ‘upnáms’ include also relations through
females: but, again, _only males receive_.
There is, however, one exception. In clause 231 is the following:--
Nú ero konor þær allar er sunu eigu til sakar, oc systr
barnbærar. þá scal þeim öllum telia söc iamna, til þær ero
fertogar.
All those women who have sons are in the _sök_ (suit), and
sisters capable of bearing sons. They shall all be held to have
an equal part in it till they are forty.
Evidently they partake, as under Cymric custom, only in respect of
possible sons who if born would partake themselves. Indeed, the sons only
appear in the list of receivers and in no case the mother, except among
the women’s gifts included as above in the baug payments.
[Sidenote: The upnám group includes descendants of great-grandparents.]
Clause 224 describes the upnám set of recipients as under. It will be
seen that they include descendants of great-grandparents, but no more
distant relations.
‘Sac-tal of upnáms or groups _outside bauga men_.’
_1st upnám._ { Father’s brother (_i.e._ uncle).
The slain person’s { Brother’s son.
{ Mother’s father.
{ Daughter’s son.
Each gets a mark from the slayer if a hauld be slain; and this
amounts to _4 marks_.
_2nd upnám._ { Father’s brother’s son (_brœðrung_).
{ Brother’s daughter’s son.
The slain person’s { Mother’s brother.
{ Sister’s son.
{ _Systling_ (? Father’s sister’s son).
Each gets 6 ores from the slayer if a hauld be slain; and this
amounts to _3 marks 6 ores_.
_3rd upnám._ { Mother’s sister’s son (_systrung_).
{ Brœðrung’s child.
{ Father’s brœðrung.
{ Mother’s mother’s brother.
{ Sister’s daughter’s son.
They get half a mark from the slayer if a hauld be slain
(probably ½ mark each): _i.e._ _2 marks 4 ores_, making the total
of upnáms _10 marks 2 ores_.
[Sidenote: Total wergeld 30 marks or 96 cows.]
Then follows the declaration, ‘_Now all the upnám men are counted._’
If we add up the amount of the two sets of payments the result will be as
follows:--
The three _bauga_ payments of near
relatives, with addition of women’s gifts 20 marks or 64 cows.
The _upnám_ payments within
descendants of paternal and maternal
great-grandparents 10 marks 2 ores or 32⅘ cows.
--------------- ---------
30 marks 2 ores or 96⅘ cows.
As in the Frostathing law the _nefgildi-men_ took as a group an amount
equal to one half the amount of the bauga group, so here the _upnám_ men
do the same. Evidently this is the intention.
[Sidenote: Wergeld of the hauld at 1:8 200 gold solidi, or roundly, 100
cows.]
Now if we may take the bauga payments and the upnám payments as
representing in intention 30 silver marks or 96 cows, then, at a ratio
of 1:8, the 30 silver marks equalled, in wheat-grains, exactly 200
Merovingian gold solidi.[181] And this may have been the ancient wergeld
of the hauld.
There is, however, in clause 235 a further payment mentioned extending
‘to the fifteenth degree of kinship’ and amounting to about 1 mark and 3
ores. Possibly (though I hardly think it likely) this formed a part of
the original wergeld, and if it be added, it would increase the wergeld
to 31 marks, 5 ores, and at 2½ ores to the cow the wergeld would be
increased to 101⅕ cows. If we might take this as roughly aiming at the
round number of 32 marks and 100 cows, the wergeld of the hauld would
be, at the ratio of 1:8, four gold marks or 100 cows: _i.e._ in actual
weight the heavy gold mina of 32 Roman ounces, which under Greek usage
was divided into 100 staters or ox-units. The confusion between 96 and
100 cows is so likely a result of the application of Roman methods to
the division of the mina that we need not regard it. That the one or the
other of these amounts may have been the original wergeld of the hauld
representing originally 100 cows is consistent at least with widely
spread tribal usage.
This view is confirmed by the fact that the further payments mentioned
in the Gulathing are distinctly abnormal ones, and so presumably added at
a later date like those mentioned in the Frostathing law.
We are justified in so considering them, because in the laws themselves
the persons to whom they were made are expressly called _Sak-aukar_, or
‘additional persons in the sak or suit.’ And when we examine them further
we find that they were hardly likely to have been included among the
original recipients of the wergeld.
Among those of clause 236 are the thrallborn brother and thrallborn
son of the slain, and the half-brother by the same mother; and clause
239 extends the number to the son-in-law, brother-in-law, stepfather,
stepson, oath brothers, and foster brothers. Evidently in these
exceptional cases the rules of strict blood relationship have been broken
away from, and additions have been made to the normal wergeld to stay the
vengeance of persons sufficiently nearly connected in other ways to make
them dangerous if left unappeased.
It was probably these additional payments, added from time to time in
contravention of the strict rules of blood relationship, which caused the
uncertainty of the later laws, and led to the new system of awarding a
round number of gold marks as the total wergeld, included in which were
additions intended to meet the introduction of half-blood and foster
relations and others the risk of whose vengeance it seemed needful
apparently in later times to buy off.
Returning, then, to the original wergeld of the hauld without these
additions, we have seen that it consisted of two sets of payments, bauga
payments and upnám payments, and possibly the small addition of those of
more distant relations.
Now in the Gulathing law there are two other descriptions of the amount
of the bauga payment, and it will be useful to examine them.
[Sidenote: Another statement makes the bauga men pay 18 marks.]
The first is to be found in clauses 179 and 180.
In clause 179 the payment for cutting off a hand or foot and for striking
out an eye is said to be a half ‘giöld,’ and it is added:--
En ef allt er af einum manni höggvit hönd oc fótr, þá er sá verri
livande en dauðr; scal giallda sem dauðr sé.
But if both hand and foot be cut off the same man, he is worse
living than dead, and is to be paid for as if he were dead.
And then in the next clause, under the heading ‘_About Giöld_,’ is the
following:--
Nú ero giölld töld í Gula; giallda haulld xviii mörcom lögeyris.
Nú scolo þeðan giölld vaxa oc svá þverra sem rétter aðrer.
Now shall be told payments in Gula. A _hauld_ shall be paid for
with 18 marks of lawful aurar. Starting from this, the payments
shall increase or decrease as other retts.
Now it would seem that this payment for the death of a hauld was not
the whole wergeld but only the _bauga_ part of it. No details even of
the bauga payments of eighteen marks are given in this clause. It seems
to be inserted in this place simply with reference to the full limit of
payments for injuries. Liability for wounding, under Cymric custom, was
confined to the kinsmen of the gwely, and so it may well be that under
Norse custom it was confined to the bauga group.
But the amount in this clause is only eighteen marks, while that of the
bauga payments of the wergeld we have just been considering, as probably
the earlier one, was twenty marks. How is this to be accounted for? The
answer surely must be that eighteen marks of Charlemagne, reckoned in
wheat-grains, were exactly equal to twenty of the Roman or Merovingian
marks of the earlier period.
[Sidenote: Another detailed statement makes the bauga payment 18 or 20
marks.]
The other statement alluded to is also a statement avowedly of the bauga
payments, and begins with almost the same words, ‘Now the giöld for the
hauld shall be told.’ In this case the details are given and the detailed
payments add up between eighteen and nineteen marks, and yet the total is
given as a little more than twenty marks.
This statement differs from the older one in its divisions, but it has
an air of antiquity and reality about it which suggests that it may
represent a local custom actually in force. Little touches of picturesque
detail seem to bring it into contact with actual life, and to show how
local custom might work out a common object by its own peculiar method.
It meets us abruptly in clause 243 under the heading ‘_On baugar_,’ and
commences thus:--
Now the giöld for the hauld shall be told--
6 marks (of 12 ells to the ore) in the _head-baug_,
4 marks in the _brother’s-baug_,
2½ marks in the _brœðrung’s baug_.
It then introduces quite another element, viz. the _tryggva-kaup_
(truce-buying).
Nú scolo fylgia tvau tryggva kaup baugi hverium.
Two tryggva-kaup shall go with every baug.
hvert scal eyrir oc fimtungr eyris tryggva kaup.
Each tryggva-kaup shall be 1⅕ ore.
En tryggva kaup scal fara bauga manna í mellom.
Tryggva-kaup shall go between _bauga-men_.
In the next clause it is explained that this ‘peace-price’
(_sættar-kaup_) is paid when the kinsmen come together to make peace,
and that three marks are also paid as _skógar-kaup_--‘forest price,’
_i.e._ payment to release the slayer from being a _skógar-maðr_, or
outlaw living in the forest.
The slayer pays a _baug_ to the son of the dead, and two _truce-prices_,
one to the brother and the other to the ‘_brœðrung_’ of the dead. And the
slayer’s brother pays a _baug_ to the brother of the slain and again two
truce-prices, one to the son of the slain and the other to the _brœðrung_
of the slain. And the _brœðrung_ of the slayer pays a _baug_ to the
_brœðrung_ of the slain and again two ‘truce-prices,’ one to the son
and the other to the brother of the slain. All this is for peace-buying
(_sættar-kaup_) when the kinsmen are met together to make peace.
Then, in clause 245, the women’s gifts are described. The slayer, his
mother, his daughter, and his wife each give a gift of 1⅕ ore to the
wife, mother, and daughter of the slain--making twelve gifts. The sister
of the slayer gives a half gift to the sister, wife, daughter, and mother
of the slain (two gifts), and the slayer, his mother, wife, and daughter,
each give a half gift to the sister of the slain, making the number of
women’s gifts sixteen in all.
The amounts thus stated add up as follows:--
Baug payments 12 marks 4 ores
6 truce payments -- 7⅕ ”
Forest price 3 ” --
16 women’s gifts 2 ” 3⅕ ”
-------------------
18 marks 6⅖ ores
The amount aimed at seems to be 18 marks (the upnám payments being 9
marks), and yet the total is stated as follows:--
Now with _baugar_ and with _tryggvakaup_ and _skógar-kaup_ and
women’s gifts it is 20 marks and 2⅖ ores.
Absolute accuracy need not be expected, but there must be a reason for
the difference between eighteen and twenty marks--between the detailed
payments and the total--and it is difficult to suggest any other than the
one already mentioned.
The total amount of the bauga payments seems to be the same in this as in
the other statement, but a new element is introduced with an obvious and
interesting object.
The bauga-men, as before, consist of three groups. The slayer pays
the _baug_ to the son of the slain and appeases the other two groups
by payment to each of them of a truce-price, so that to all the three
bauga groups of the relations of the slain he has acknowledged his wrong
and desire to make composition. And so in each case the representative
of the other two groups of slayer’s relations pay the _baug_ to the
corresponding group of the relatives of the slain and a truce-price to
the other two, so that no relation of the slain could after this point
to any individual as not having joined in the payment to himself or his
group.
The women most deeply concerned on both sides are also present at the
gathering. And each of those connected with the slayer is prepared with
her gift of 1⅕ ore for the corresponding relative of the person slain.
Women’s gifts were included in the bauga payments in the other statement
also.
The clauses relating to the bauga payments are followed by three others,
headed ‘On saker,’ and the further recipients of wergeld, as before,
seem to be divided into _upnáms_ and _sakaukar_, but in this case there
is a strange mixture of the two. The mother’s brother and the sister’s
son are excluded from the upnáms to make way for the half-brother by the
same mother of the thrallborn son.
Clause 246, ‘On saker,’ gives twelve ores to each of the following, who
in clause 250 are called _upnám_ men.
Father’s brother 12 ores
Brother’s son 12 ”
Brother by the same mother 12 ”
Thrallborn son 12 ”
Daughter’s son 12 ”
Mother’s father 12 ”
-------
72 ores = 9 marks.
So that the bauga and upnám payments--two thirds and one third--added
together once more make a normal wergeld of twenty-seven marks, that is,
thirty of the Merovingian standard.
Then clause 247, ‘Further on saker,’ gives to--
Mother’s brother 9 ores
Sister’s son 9 ”
Thrallborn brother 9 ”
Father’s sister’s son 6 ”
[Sidenote: The whole wergeld 2 marks of _nova moneta_ or 30 Roman marks.]
And in clause 248 ‘further on saker,’ a thrallborn father’s brother and a
thrallborn daughter’s son by a kinborn father, take each a mark.
The traditional wergeld seems, therefore, once more to be 27 marks of
Charlemagne or 30 Merovingian marks, and the additional payments appear
to be _sakaukar_. But the upnám group in this case includes the brother
by the same mother and the thrallborn son, leaving outside as sakaukar
the mother’s brother and the sister’s son and the father’s sister’s son
along with the thrallborn brother.
[Sidenote: Payments to outsiders additional to secure safety, and varied
locally.]
It is not within the scope of this inquiry to attempt either to
explain, or to explain away as of no moment, the variations in the
persons included under the various schemes in the groups of bauga and
nefgildi or upnám men. Even such a question as that of the exclusion
from the upnám group of the mother’s brother and the sister’s son, to
make way for the illegitimate half-brother and thrallborn son, is not
necessarily to be disposed of as a later alteration in favour of those
of illegitimate birth. For the Cymric precedent might well lead us to
an opposite conclusion, inasmuch as in the laws of Howell, in spite of
strong ecclesiastical opposition, the ancient pagan custom of admitting
illegitimate sons to share in the father’s inheritance was defended and
retained as too fully established to be given up.[182] Looked at from
the point of view of the feud, they were naturally more on the spot and
therefore of much more moment than the mother’s brother or the sister’s
son.
Professor Vinogradoff[183] has suggested that the evidence of Norse and
Icelandic wergelds seems to point to an original organised group of
agnates who were bauga men and formed the kernel of the kindred liable
for wergeld as contrasted with after additions of relations on both
paternal and maternal sides and others more or less nearly concerned.
The Cymric precedent would lead us to expect to find thrallborn sons as
well as legitimate sons among the bauga men without any special mention
as such. Under Christian influences they may have been excluded from this
group to find a place ultimately, sometimes with special mention, in the
upnám group.
It may or may not have been so, according to the stage of moral growth
arrived at in the particular case of this tribe or that, at the
particular period in question. Hence, although under Norse custom the
amount of the normal wergeld of the hauld may have been constant, the way
in which it was divided and the group responsible for its payment may
well have varied from time to time and in different districts.
It has already been noticed that even under the later methods of awarding
as wergeld an even number of gold marks, both the Gulathing and the
Frostathing laws, in the case of the award of 6 marks of gold, draw a
line, the one at 18 and 27 marks and the other at 20 and 30 marks, as
though these amounts had a strong traditional sanction. Even in the
case of the lower awards the scheme of division being the same with
proportionately lessened figures, this portion of the wergeld was always
divided into two thirds of bauga payments and one third of nefgildi or
upnám payments. This seems to be strong evidence that, although the
persons forming the groups may have differed, the two groups formed
originally an inner and an outer kernel of the wergeld proper, the
additions to which may fairly be regarded as sakaukar.
The repetition of evidence in both laws that the bauga payment of two
thirds was followed by another third of nefgildi or upnám payments, when
connected with the further fact that the two together made an amount
which was, at the value of the cow stated in the laws, equated with 96
or 100 cows, seems to confirm the hypothesis that in this amount we have
the normal wergeld of the hauld. To Professor Vinogradoff’s suggestion
that the bauga payments may have formed an original inner kernel of the
wergeld we may therefore perhaps add that the nefgildi and upnám payments
may have formed an outer shell of the kernel, and that both may have been
included in the original normal wergeld of 96 or 100 cows.
[Sidenote: Wergelds of the several grades of social rank.]
Finally, if this may fairly be taken to be the wergeld of the hauld,
then, recurring to the repeated statement in the Gulathing law that the
wergeld of the hauld being told, the wergelds of others ‘varied according
to the rett,’ the wergelds of the several classes in Norse social rank
may, it would seem, with fair probability be stated as follows:--
+-----------------------------+-----------+-----------+----------+
| | Rett in |Wergeld in |Wergeld in|
| -- |silver ores|silver ores| cows |
+-----------------------------+-----------+-----------+----------+
| Leysing before freedom ale | 4 | 40 | |
| ” after ” ” | 6 | 60 | 24 or 25 |
| Leysing’s son | 8 | 80 | 32 |
| Bónde | 12 | 120 | 48 or 50 |
| Ár-borinn or Ættborinn-man | 16 | 160 | 64 |
| Hauld or Odal-born | 24 | 240 | 96 or 100|
+-----------------------------+-----------+-----------+----------+
The significance of these gradations in the retts and wergelds of Norse
tribal society will become apparent in our next section.
III. THE GRADATIONS OF SOCIAL RANK DISCLOSED BY THE WERGELDS ETC.
We are now able to devote attention to the interesting question of the
gradations in social rank under Norse tribal custom. And we are fortunate
to have the guidance of Dr. Konrad von Maurer’s valuable paper written in
1878 and entitled ‘Die Freigelassenen nach altnorwegischem Rechte.’
[Sidenote: Grades of social rank in the churchyard.]
Although tribal custom, viewed as we view it after the acceptance of
Christianity, may not be altogether what it was originally in its
actual working, yet still it is worth while to seek for the principles
underlying the separating lines between social conditions as revealed
in the laws. So far as they can be discovered, they are sure to be
instructive, for they cannot have been the result of the sudden change in
religion. Their roots at any rate go far back into tribal custom, however
much, as in other cases, the Church may have adopted and modified what it
could not eradicate.
The hard lines of distinction between social classes were kept up even in
the churchyard.
Kirkiu garðe er skipt í fiórðonga til griæftar. Skall grafua
lænda menn austan at kirkiu oc í landsuðr undir vxa [_v.r._ upsa]
dropa, ef þæir æigu lut í kirkiu giærð. En ef þæir æigu æigi lut
í kirkiu giærð, þá skullu þæir liggia í bónda legho, þá skall
grafua hauldzmen oc þæira börn.
The churchyard is divided into four quarters for burial. Lendmen
shall be buried to the east and south-east of the church, under
the eaves-drop, if they have taken part in the building of the
church. But if they have not done that, they shall lie in the
burial place of a _bónde_. Next to them shall be buried _haulds_
and their children.
En nest kirkiu garðe, þá skall grafua hión manz, oc þá menn er
rekner ero at siofuar strandu oc hafua hárskurði norœna. En ef
maðr læggær man í frials-giæfua lego, sæckr vj aurum. En ef maðr
græfuer frials-giæfua í lœysinga lego, sæckr xij aurum. Græfuer
lœysingia í hauldmanz lego, sæckr iij mörkum.
And next to the churchyard wall shall be buried the servants
(thralls) of a man, and those who are cast upon the sea shore
and whose hair is cut in the Norwegian manner. If a man buries
a thrall in the burying-place of a frialsgiaf, he is liable to
pay 6 aurar. If a man buries a frialsgiaf in the burial-place of
a leysing, he is liable to pay 12 aurar. If he buries a leysing
in the burial-place of a hauld, he is liable to pay three marks.
(Borgarthing law 13.)
[Sidenote: The two classes of leysings or freedmen before and after
making ‘freedom ale.’]
Referring to the gradations of _rett_, it will be seen that there are
apparently two classes of leysings, whose social condition was next above
the thrall at the bottom of the ladder.
This was first made clear by Konrad von Maurer. The thrall who by
purchase or by gift had been made a ‘freedman’ (frials-giafi) had only
taken the first step towards even that limited amount of freedom which
belonged to the leysing. Another step had to be made good before he
became a full leysing. And the step was accomplished by the ceremony of
‘making his freedom ale.’
The leysing before ‘making his freedom ale’ was still so far the property
of his master that his children did not inherit his goods. They belonged
to his master.
Nú ero brœðr tveir fœdder upp ánauðgir at eins mannz, oc ero
þeir bæðe brœðr oc fostbrœðr, oc leysasc þeir undan drótne
sínum, oc firrasc eigi fóstr, eigu saman verc oc orco, þá kemr
hvartveggia þeirra til annars arfs. Börn þeirra koma eigi til,
nema þeir geri frælsis öl sitt.
If two brothers are brought up as thralls at one man’s house,
and are both brothers and foster brothers, and they are freed by
their master and continue in fosterage, and have their work and
employment together, then either of them inherits from the other.
_Their children do not inherit from them unless they make their
freedom ale._ (Gulathing, 65.)
This passage shows that the link of blood-relationship between two
brothers and foster brothers, by reason of their being fostered together,
in the case of thralls was recognised before that between parent and
child. It was the fosterage in this case which had forged the link.
Blood-relationship in thraldom counted for nothing.
[Sidenote: The ‘making a freedom ale,’ first step to freedom.]
The ceremony of ‘making a freedom ale’ is thus described, in the two laws.
Nú vill leysingi ráða kaupum sínum oc kvánföngum, þá scal hann
gera frælsis öl sitt, þriggja sálda öl hit minzta, oc bióða
skapdrótne hans til með váttom, oc bióða eigi sökunautum hans
til, ok sissa hánom í öndvege, oc leggia .vi. aura í skáler
hinn fysta eftan, oc bióða hánom leysings aura. Nu ef hann tecr
við, þá er vel. En ef hann gefr upp, þá er sem golldet sé.
(Gulathing law 62.) If a leysing wishes to have control of his
bargains and his marriage, he shall make his freedom ale out of
at least 3 sievefuls of malt and invite his master to it, in the
hearing of witnesses, and not invite his master’s foes, and seat
him in the high seat, and lay 6 aurar in the scales the first
evening [of the banquet], and offer him the ‘leysing’s fee.’ If
he takes it, that is well. If he remits the sum, it is as if it
had been paid.
Ef þræll kemr á iörð eða býr, þá scal hann gera frelsis öl sitt,
hverr maðr níu mæla öl, oc scera á veðr. Ætborinn maðr scal höfuð
afscera, en scapdróttinn hans scal taca hálslausn af hálse honum.
Nú vill scapdróttinn hans leyfa honum at gera frelsis öl sitt, þá
scal hann beiða hann með vátta .ii. at hann megi gera frelsis
öl sitt, oc bióða honum með .v. (fimta) mann til öldrs þess
er hann gerir frelsis öl sitt […] þá scal hann þó gera, oc láta
öndvegi hans oc cono hans kyrt liggia.
(Frostathing law IX. 12.) If a thrall takes up land or sets up
house, he shall make his freedom ale, every man of 9 mælar [=
1½ sievefuls of malt], and kill a wether. A freeborn man shall
cut off its head, and his master shall take the ‘neck-release’
off his neck. If his master will allow him to make his freedom
ale, he shall ask his leave to make it, in the hearing of two
witnesses, and invite him and four with him to his freedom ale.
[If they do not come] yet he shall make the ale and let the high
seat for his master and his master’s wife stand empty.
A master might dispense with this formality. He might take his thrall to
church, or ‘seat him on the kist,’ and if then he proceeded formally to
‘free him from all debts and dues’ the leysing need not ‘make his freedom
ale.’ (G. 61.)
[Sidenote: Social status of the leysing.]
Now let us see what change in social position and rights the ceremony of
‘making freedom ale’ or its substitute produced.
The leysing was still unfree in the sense that he could not leave his
master. The following is from the Gulathing law (67).
Nú ferr leysingi ór fylki firi útan ráð dróttins síns, oc aflar
sér þar fiár æða kaupa, þá scal scapdróttenn fara efter með
vátta. Ef hann vill aftr fara, þá er vel. En ef hann vill eigi
aptr fara, þá leiði hann vitni á hönd hánom at hann er leysingi
hanns, oc fœri hann aptr hvárt sem hann vill lausan æða bundinn,
oc setia hann í sess hinn sama, þar sem hann var fyrr.
Now a leysing leaves the district without the advice [or will] of
his master, and earns property or concludes bargains; then his
master shall go after him with witnesses. If he is willing to
come back, that is well. If he is not willing, he [the master]
shall call witnesses that he is his leysing, and bring him back,
fettered or unfettered, as he likes, and set him in the same seat
that he had formerly.
But, on the other side, the master might not sell even a thrall ‘out of
the land’ (F. XI. 20); so that probably he could not turn his leysing
adrift at his pleasure.
The leysing remained under _thyrmsl_ towards his master, or obligations
involving personal loyalty and duty, and upon any breach of these, he
could be put back into thraldom.
En ef hann gerer einnhvern lut þeirra, þa scal hann fara aftr í
sess hinn sama er hann var fyrr, oc leysasc þeðan verðaurum. Fé
sínu hever hann oc firigort.
Should he make himself guilty of any of these things, he shall go
back to the seat in which he sat formerly, and buy himself free
out of it with money to his value. And his property is forfeited.
(G. 66.)
[Sidenote: The leysing must now keep his children.]
The reason assigned in a clause above quoted for the desire to ‘make
freedom ale’ was that the leysing might ‘have control of his bargains and
his marriage.’ He gained, therefore, both as regards property and also in
family rights.
In Gulathing law (63) is described what happened on his marriage. If he
marries a kin-born (_ætt-borin_) woman, and they afterwards separate, all
the children go with her. He, not being kin-born, has no kindred. She
being kin-born, her kindred have rights over her and obligations as to
her children.
En ef hon verðr fyrr dauð, þá scolo börn öll hverva til faður
síns aftr, oc eta fé hans meðan þat er til; en þá er þat er allt
etet, þá scolu börn öll aftr hverva í hit betra kyn, en hann
undir scapdrótten sínn.
If she die first, all the children shall go back to their father,
and eat his property so long as it lasts, and after it is all
eaten up, all the children shall go back to the better kin, _and
he back to his master_.
If one leysing marries another, and both father and mother have made
their freedom ale, the children of the marriage inherit from both. This
is the beginning of the rights to inherit. But it is accompanied by the
obligation to keep the children, who are no longer thralls of the master
but leysings like their parents.
What happens, then, if the parents fall into poverty and cannot keep
their children? Is the master to keep them or are they to starve?
En ef þau verða at þrotom, þá ero þat grafgangsmenn. Scal grava
gröf í kirkiugarðe, oc setia þau þar í, oc láta þar deyia. Take
skapdróttenn þat ór er lengst livir, oc fœðe þat síðan.
(63) If they come to extreme want, they are _grafgangsmenn_. A
grave shall be dug in the churchyard, and they shall be put into
it and left to die there. The master shall take out the one who
lives the longest, and feed that one thereafter.[184]
But it is not all leysing families which come to this gruesome pass.
It may be presumed that the leysing who had ‘made his freedom ale’ and
married and could make his own bargains and keep what property he and his
wife could accumulate was mostly prosperous.
[Sidenote: Children could inherit from him, but no other kin.]
In clause 106 the rules as to ‘leysing inheritance’ are described. If
the leysing who ‘made his freedom ale’ afterwards had children they
could inherit. But he had no other kin who could inherit: so if he died
childless the master took the property. As generation after generation
passed and a wider kindred was formed, any one of his (the leysing’s) kin
took in preference to the master and his descendants. But the rights or
chances of inheritance on the side of the master’s family did not cease
for nine generations from the first leysing who had ‘made his freedom
ale.’ So that if a leysing even of the eighth generation died without
kin the inheritance in this extreme case went to the descendants of the
master of the first leysing ‘to the ninth knee’ rather than pass by
failure of kin to the king.
Leysings erfð … scal taca til niunda knés, fyrr en undir konong
gange. Ðegar leysings sun tecr efter faður sínn, þá take hverr
efter annan. Nú verðr þar aldauða arfr í leysings kyni, oc er
engi sá maðr er þar er í erfða tale við hann er andaðr er ór
leysings kyninu, þá scal hinn er ór skapdróttens kvísl er, taca
til níunda knés fyrr en undir konong gange, þó at sá sé hinn átte
er andaðr er frá leysingjanom.
(G. c. 106.) A leysing’s inheritance shall be taken to the ninth
knee before it falls to the king. When a leysing’s son takes
after his father, then let one take after the other. If in a
leysing’s kin there comes to be an ‘all-dead’ inheritance, and no
one has inheritance-right after the deceased man of the leysing’s
kin, then one of his master’s kin shall take to the ninth knee
before it falls to the king, even though the deceased man be the
eighth from the leysing.
[Sidenote: Further steps into freedom at stages of three generations.]
Thus we seem to see the family of the leysing who had ‘made his freedom
ale’ gradually growing up into a kindred in successive stages until in
the ninth generation a kindred of leysings had been fully formed and
might be very numerous.
In the corresponding clause in the Frostathing law (IX. 11) further
details are mentioned. If not previously purchased by agreement with
the master, the ‘_thyrmsl_’ came to an end after four generations: that
is, the fifth generation was free from them. They lasted, therefore,
over the first four generations from the original leysing to his
great-grandchildren. For these four generations the leysing and his
descendants were the leysings of the master and his descendants.
[Sidenote: At the ninth generation the lordship over them ceases.]
Then the clause goes on to show that the first leysing having ‘made his
freedom ale’ shall take inheritance only of his son and daughter, and
of his own freedman. The sons of this leysing take inheritance from six
persons, viz. father, mother, sons, daughters, brothers, sisters, and,
seventhly, from any freedman of their own.
Svá scal sunr leysingia taca oc sunarsunr oc þess sunr … oc svá
dóttir oc systir sem sunr oc bróðir, ef þeir ero eigi til. Oc svá
scal hvárt þeirra hyggia fyrir öðru.
So shall the son of a leysing take, and his son’s son [grandson]
and _his_ son [great-grandson] … and daughter and sister like son
and brother, if there are none of these. Each _of these shall
provide for the other_.
Failing these leysing claimants, the inheritance rights revert to the
master to the ninth knee, and, it is added, ‘_also providing for these if
needed_.’
[Sidenote: Analogy of the Cymric gwely.]
There is here something very much like the Cymric gwely or family of
descendants of a great-grandfather with rights of maintenance under the
rules of ‘_tir gwelyauc_’ and mutual liability. Until a kindred has been
formed the master’s obligation to provide for the leysing remains, and it
does not cease altogether until the kindred is complete. In the meantime
as the kindred is formed its members are mutually liable for each other’s
maintenance. In this respect within the group of descendants of a
great-grandfather there is solidarity for maintenance as well as wergeld.
[Sidenote: The lordship over them ceases when a full kindred is formed.]
We are dealing evidently here with a family of leysings growing into
a kindred, as under Cymric custom the family of the Aillt and Alltud
grew into a kindred. During all these four generations the family were
leysings with a _rett_ of six ores. But the fifth generation seems
to rise into a second grade of social rank and to attain the rank of
‘_leysings’ sons_’ with a _rett_ of eight ores. And further in another
four generations, those of the ninth generation again rise in social rank
and seem to become _árborinn_ or _ættborinn_ men, _i.e._ _men born in a
kindred_, with a _rett_ of sixteen ores. They can now boast of a full
leysing kindred. Their father, grandfather, and great-grandfather were
born in a kindred, and they have now full rights of inheritance. The
master and his descendants have no further hold on them or obligation for
their maintenance. Any lapsed inheritance now goes direct to the king.
The _árborinn_ or _ættborinn_ man, therefore, seems at last, at the
moment when a full kindred of his own has risen up to swear for him and
protect him by feud or wergeld, to have become clear from any claims
on the master’s side. And accordingly if any claim be set up he has to
prove his freedom by witnesses ‘that he can count four of his forefathers
as _árborinn_ men and himself the fifth.’ That is, he shows that his
great-grandfather was a man with an _ætt_ or kindred. If he can prove
this he is free from any claim in regard to his leysing descent.
En ef sá callaz árborinn er fyrir söc verðr, þá teli hann fióra
langfeðr sína til árborinna manna, en siálfr hann hinn fimta, oc
hafi til þess .ii. búanda vitni árborinna. En ef hann er svá
liðlauss at hann fær þat eigi, oc hefir þó þessa vörn fyrir sér,
þá sanni ætt sína árborna með guðscírslum. En ef hann verðr scírr
með iárne eða vitnisburð, þá gialldi hinn honum fulrétti, en
biscopi eiða sect. En ef hann fær sic eigi scírt, þá hefir hann
fyrirgort fé sínu öllu við scapdróttin, oc liggia á .iii. mercr
sylfrmetnar, nema hann launi af sér. Oc svá um vánar mann.
(Frostathing, IX. 10.) But if the accused calls himself _árborinn_
_let him reckon up four of his forefathers as árborinn men_, he
being the fifth himself, and have for it the evidence of two
árborinn householders. But if he is so supportless that he does
not get this, and yet sets up this defence [viz. that he is
árborinn], then he shall prove his kin to be árborinn by ordeal.
And if he is cleared by iron or evidence, the other shall pay him
full atonement, and to the bishop an oath fine. If he cannot
clear himself, he has forfeited all his property to his master,
and is liable to pay three marks in silver, unless he work it
off. The same applies to a _vánar mann_ [man of hope, _i.e._ the
higher class of leysing].
So far the conclusions drawn from the laws respecting the leysing do not
vary much from the views expounded by Dr. Konrad von Maurer in his ‘Die
Freigelassenen nach altnorwegischem Rechte,’ and confirmed by so great an
authority they can hardly have wandered very far from the truth.
The theory of this gradual growth of the kindred of the leysing is so
nearly analogous to that of the Cymric alltud, and the Irish fuidhir, and
at the same time so logical, when the tribal theory of blood-relationship
is applied to it, that we cannot be dealing with the fanciful theory of
legal enthusiasts which never had an actual place in practical life.
Behind all this imperfect description, in the laws, of social conditions
and landholding there was, no doubt, a reality, the features of which may
be difficult to grasp from our modern point of view, but which become, I
think, fairly intelligible when approached from a tribal point of view.
[Sidenote: The leysings have become a family group, and the descendants
of the master also.]
When we consider that in the course of the successive generations, during
which some kind of shadowy lordship seems to have prevailed over the
family of leysings, they must generally have multiplied into considerable
numbers, and that the descendants of the master of the leysing ‘who
made freedom ale’ must during the same period also have multiplied; and
further when we consider that the descendants of the leysing were in
some sense, it would seem, _adscripti glebæ_, we have to recognise not
merely a relation between individuals but something approaching to a
relation between two classes, tribesmen and non-tribesmen, the one in
some sense in a kind of servitude to the other. In other words, we have
to conceive of a kindred of half-free tenants, living under the joint
shadowy lordship of a kindred of fully-free men, probably in some tribal
sense landowners, with complicated tribal rights among themselves.
It would seem that this semi-subject class of leysings were mostly the
descendants of a class of thralls, it may be perhaps in origin some
conquered race, members of which had gradually grown into leysings and
were now gradually in successive stages growing into freemen.
Before we can fully understand this process we must examine the other
side of the question and learn what was the position of the fully-free
class by whom this more or less shadowy lordship over the leysing class
was exercised. In the meantime it may be remarked that the shadowy
lordship of one class or tribe over another finds parallels enough
in Indian experience, and that, coming nearer home, we have only to
remember the petty exactions of the cadets of French noble families upon
a peasantry over whom their family, or the feudal head of it, held a
quasi-manorial lordship.
IV. THE CLASSES OF FREE MEN AND THEIR RELATION TO LAND.
[Sidenote: The odalman or hauld.]
Following again the clue of the statements of the ‘personal right’ of the
different classes, and commencing with the _bónde_ or ordinary freeman
settled upon land and presumably having in some sense, as in Wales,
originally tribal rights to share in the land or its use, the next class
which claims attention above the bónde is the _odalman_ or odalborn man
or hauld, whose wergeld of 96 or 100 cows was taken as that of the full
and typical freeman.
Now, in the Frostathing law there is a statement as follows:--
Engum manni verðr iörð at óðali fyrr en .iij. langfeðr hafa
átt, oc kemr undir hinn .iiij. samfleytt.
(XII. 4.) No man’s land becomes an odal to him until _three
forefathers_ have owned it and it falls to the fourth in unbroken
succession.
And again in the Gulathing law is the following:--
Nu scal þær iarðer telia er óðrlom scolo fylgia. Sú er ein er ave
hever ava leift.
(270.) Now shall the lands be told that are odal. The first is
the one which _grandfather_ has left to _grandfather_.
[Sidenote: His grandfather’s grandfather had the land.]
The odalborn man inherits land from his grandfather’s grandfather. The
son of an odalman who claims odal as odal by inheritance counts four or
five forefathers who had the land before him.
In Gulathing law c. 266 is a description of the mode of settling a claim
as to land. It describes the sitting of the open-air court, from which
both bauggildsmen and nefgildsmen and relations by marriage of the
claimant are excluded as ineligible, the calling of witnesses all to be
odalborn men of the same fylki as that in which the land lies, and so
on. The validity of the claim is made to rest according to this statement
upon the ability to count up _five forefathers who have possessed that
land, while the sixth possessed it both by ownership and by odal_.
Þeir scolo telia til langfeðra sinna .v. er átt hava, en sá
hinn sétti er bæðe átte at eign oc at óðrle.
(266.) They [the men who claim odal] shall count five of their
forefathers who have owned [the land] and the sixth having it
both in ownership and odal.
[Sidenote: The odalmen were of full kindred on the land.]
If, then, at the time of the laws we look at the class of landowners
who were prominent as odalmen or haulds--typical men with wergelds
originally of 100 cows--they were not only men of full _kindred_ whose
full pedigree of freedom went back the necessary nine generations, but
their grandfather’s grandfather must have possessed the land. The sixth
generation of owners were the first to hold land _both in ownership and
odal_.
The steps in the rank of Norse aristocracy were marked, therefore, as in
the case of the more dependent class, by the number of the generations of
ancestors through whom they could claim their landed rights.
[Sidenote: The odal land was held by a family and subject to family
divisions.]
Nor in the case of the odalborn man any more than in the case of the
leysing must we look upon the odalman or hauld merely as a detached
individual landowner owning his own separate estate like a modern country
squire. Such a conception would be far indeed from the truth. It must
be remembered that holdings in odal were subject to rules of division.
Moreover, indications appear in the laws that the division was not merely
one between the heirs of a single holder, but something more like what
took place between the group of kinsmen in the case of the Cymric gwely
and ‘_tir gueliauc_.’ How otherwise can this clause be read?
_Um óðals iarðer._ Nú scal þær iarðer telia er óðrlom scolo
fylgia. Sú er ein er ave hefir ava leift. Sú er önnur er gollden
er í mannsgiölld … þær scolo óðrlom fylgia, oc allar þær er í
óðals skipti hava komet með bræðrom oc með frændom þeim [_sic_].
Allar aðrar aurum.
(G. 270.) _Of odal lands._ Now the lands shall be told which _are
odal_. One is that left by grandfather to grandfather. Another
is that paid as wergeld.… These shall be odal and all those
_which have come under odal division between brothers and their
kinsmen_. All other lands shall be counted _aurar_ [money].
[Sidenote: The odal-sharers must consent to a sale of odal land.]
At the time of the laws owners of odal had, it appears, certain powers of
selling their odal, but even then it was not an uncontrolled right of a
man to do what he would with his own. His first act must be to ‘go to the
“thing” in autumn and offer it to his _odal-sharers_’ (_odalsnautr_, one
who has odal-right to land in common with others). (G. 276.)
If a man buys without its having been thus offered, then ‘the
odal-sharers may break that bargain’ (G. 277). Even when the sale and
purchase have been made by the public ceremony of _skeyting_, _i.e._ by
taking earth from the four corners of the hearth and from under the ‘high
seat,’ and where field and meadow meet, and with witnesses at the ‘thing’
(G. 292), the _odal-sharers_ of the seller have the right to redeem it
within a twelvemonth (G. 278).
[Sidenote: The odal-sharers have rights to keep it in the family and to
prevent its passing to females.]
Take, again, the case of two brothers dividing odal, and observe how
careful law and custom had been to prevent either of the odal-shares
going out of the family. The odal rights between them were maintained
for as many generations as must pass before the shares could be united
again by a lawful marriage between a son of one family and a daughter of
the other (G. 282). One is tempted to say that here again there may be
something very much like the Cymric gwely and to suppose that marriage
was forbidden within the gwely, _e.g._ between second cousins, and that
the odal sharing continued so long as the gwely held together.
Nú skipta brœðr tveir óðrlom sín á milli, þá scal þingat hverva í
þá kvísl óðol, sem loten ero, bæði at boðom oc at ábúð, bióða því
at eins í aðra kvisl ef þá sœker þrot æða aldauða arfr verðe. En
eigi skiliasc óðol með þeim at helldr fyrr en hvártveggia má eiga
dottor annars.
If two brothers divide their óðals between them, the óðals shall
pass into the hands of the branch which receives them by lot, in
respect both of right of redemption and of occupation; they shall
only be offered to the other branch if this one comes to utter
poverty, or the inheritance is left without a legal heir. Yet the
latter does not lose its right to the óðals until each of the two
can marry the other’s daughter.
If the family of one of the brothers sinks into utter poverty or is left
without a legal heir, the other family have the right of redemption and
occupancy; and yet the poverty-stricken or heirless branch does not lose
its rights to the odal altogether. There is still the chance that its
rights may be restored when a son on each side can marry a daughter of
the other side.
There is a further clause in the Gulathing law which provides that when
land falls to a woman the men of the kindred, ‘if their relationship be
so close as to be _nefgildi_ or _bauggildi_’--that is, as we have seen,
paternal and maternal relations descendants of great-grandparents--have
a right to redeem it from their kinswoman at one-fifth less than its
value, ‘paying one half in gold and silver and the rest in thralls and
cattle.’ The men then keep the odal and their kinswoman ‘keeps the
aurar.’ Even if odal has passed ‘three times under the spindle’ it comes
back at last to the male kinsmen (275).
Nú verðr kona baugrygr, verðr hon bæðe arva óðals oc aura, oc á
engi maðr undan henne at leysa. Nú ero þær konor er óðals konur
ero, oc óðrlom scolo fylgia, dótter oc systir oc faður systir oc
bróðor dótter oc sunar dótter. Þær ero baugrygiar tvær, dótter oc
syster. Þær scolo baugum bœta oc svá taca sem karlmenn, oc svá
eigu þær boð á iörðum samt sem karlar. Nú ero þær arvar faður
síns. Nú elr önnur dóttor eina, en önnur sun einn, þá scal sunr
leysa undan frendkonom sínum sem lög ero til. En ef enn skiptizt
um, oc elr hon sun en þeir dœtr, þá scolo þeir leysa undan þeim
slícum aurum sem hann leysti undan mœðr þeirra, oc scal þá liggia
iörð kyrr þar sem komin er. Þá er iörð komen þrysvar undir snúð
oc undir snælldo.
If a woman is a _baugrygr_ [an only daughter who in default of
heirs male could receive and pay wergeld] she inherits both
odal and aurar and no man requires to redeem it from her. The
women who are odalwomen and take odal are daughter and sister
and father’s sister and brother’s daughter and son’s daughter.
Daughter and sister are two _baugrygiar_. They shall pay and
take _baugar_ as males, and they may redeem land as men. Now if
they are their father’s heirs, and one of them gives birth to a
daughter and the other to a son, the son shall redeem [the odal]
from his kinswomen as the law is. But if things turn round again,
and she has a son and they [masc.] have daughters, they [masc.]
shall redeem it from them [_i.e._ from the daughters] for the
same payment by which he redeemed it from their mother, and the
land shall then remain where it is. Then the land has passed
three times under the spindle.
[Sidenote: These are marks of early family ownership.]
Now when these remarkable survivals of tribal custom are found still
remaining in the laws as to odal and odal-sharers and the right of
kinsmen who would have to pay wergeld to redeem odal, so that it may be
kept within the ring of odal-sharers, they cannot be regarded as laws
framed to meet the needs of individual landownership. They come down
in the laws as survivals of family ownership under tribal custom, the
principles of which are by no means wholly obsolete, even though society
may have passed onwards some stages towards individual landownership of
the more modern type.
[Sidenote: The solidarity of the family shown both by odal-sharing and
wergelds.]
And when we consider the solidarity of kindreds, as regards the payment
of wergelds on the one hand, and the corresponding solidarity in the
matter of landownership on the other hand, we can hardly fail to
recognise that the two are connected--that both spring from a tribal
principle which lies at the root of tribal polity. The solidarity of
kindreds, taken together with the liability of individuals to take their
share in the payments for which their kindred is responsible, corresponds
to the solidarity of odal landholding, taken together with the individual
rights of the odal-sharers. Unless every one in a kindred had his
recognised tribal rights on the land, unless he were possessed of cattle
and rights of grazing for their maintenance, how could he pay his quota
of cattle to the hauld’s wergeld of 100 cows? The two things seem to hang
together as in the Cymric instance, and the one makes the other possible.
V. THE LEX SCANIA ANTIQUA.
The ‘Lex Scania Antiqua’ might perhaps be selected as fairly typical of
Danish[185] ancient custom, as the Gulathing has been taken as typical
of Norse custom. But apart from this it contains some chapters which seem
to throw further light on odal and family holding, and so can hardly be
overlooked in this inquiry.
[Sidenote: The Latin and old Danish versions of Scanian law.]
There are two versions of the Scanian Law, one in Latin and the other in
old Danish. They differ considerably and are certainly not translations
one of the other, though an older text may have been the foundation of
them both.
They both refer to recently made modifications of local custom which fix
their date to the early years of the thirteenth century.
The author of the Latin text was the Archbishop of Lund (A.D. 1206-1215),
and from the use made by him of legal terms borrowed more or less from
Roman law it may be gathered that Scanian custom required for him more
explanation than the Danish writer deemed it necessary to give.[186]
The rules with regard to wergelds cannot be quoted as representing
unmodified ancient custom. They avowedly are the result of modifications
made to remedy evils which had arisen partly, no doubt, from the gradual
loosening of the ties of kindred.
In the same way the clauses as to property represent the results of
long-continued conflict between ancient rules of family holding and
gradual innovations in the direction of individual ownership. In this
they resemble the Lex Salica. Still if family holdings more or less on
the lines of the Cymric gwely, or the Salic alod, had once been the
prevalent form of occupation, even new rules making alterations could
hardly fail to reveal traces of older custom. The special value to this
inquiry of the ‘Lex Scania antiqua’ is that it does so.
Disguised as some of these traces may be in the Latin text, under Roman
phraseology, with the Danish version at hand it ought not to be difficult
to recognise the meaning of the facts disclosed.
[Sidenote: When there was arrangement on marriage widow took half of
their joint property if no children.]
The first chapter relates to the rights of a wife surviving her husband
when there are no children of the marriage.
Omnia que in hereditate sunt mobilia, vel se moventia,[187]
vel immobilia, precio tempore matrimonii comparata, equis sunt
partibus dividenda, medietate heredes defuncti proximos cum
prediis que propria ipsius fuerant et uxorem altera cum suis
prediis contingente.…
All things in the _hereditas_ which are moveable or cattle
or immoveable, brought in by value fixed at the time of the
marriage, are to be divided in equal parts, one part appertaining
to the next heirs of the deceased [husband] with the lands which
were his own, and the other part to the wife together with her
lands.
This clause may very possibly represent an extension of the rights of
a childless widow beyond what tribal custom may have originally given
her. But certainly the fact that under Scanian law the childless widow
was entitled to half of what by compact at the time of the marriage had
become the joint property of husband and wife, while the other half
went to the husband’s next heirs, is good evidence that marriage was
by no means a surrender of the wife and her property once for all into
the power of the husband and his family. And evidence of the accord of
Scandinavian with other tribal custom on this point is not without value.
It may be observed, however, that in the case mentioned there had been
something like a compact or valuation of the property brought under
the marriage arrangement at the time of the marriage. The result might
therefore have been different if no special compact had been made. The
inference might well be that the childless widow in that case would not
have been allowed to take her half share with her away from her husband’s
kindred.
[Sidenote: Family holding vested in the grandfather as _paterfamilias_.]
Chapter III. refers again to a wife’s property and adds important
information. It brings before us a family group with something like
a family holding. And it becomes intelligible only, I think, when
approached from this point of view.
Into this family group a wife has been brought apparently without the
special ‘definition’ or arrangement. There are also children of the
marriage. And the question asked in the heading of the Latin text is,
what shares the grandchildren take on their father’s death, not in their
parent’s property, but in the property of the grandfather.
The grandfather is the head of the family group. In the Latin version he
is elsewhere styled the _paterfamilias_ and in this clause his sons are
_filiifamilias_.
In the Danish version the family group is simply that of an ordinary
_bonde_ and the family character of the holding is taken for granted as
not needing special mention or explanation.
The chapter is as follows (divided into sections for convenience in
comparison of the Latin and Danish texts):--
De bonis avitis que portio contingat nepotes post obitum
filiifamilias.
Of the grandfather’s property what portion goes to the
grandchildren on the death of a _filiusfamilias_.
(1) Filiifamilias[188] in sacris paternis cum uxore constituti,
si sine diffinicione certe quantitatis bonis patris addiderit
bona, que ipse habuit, cum uxore, quotcumque fuerint filii de
communi substantia, etiam prediorum post contractas nuptias
comparatorum, cum avo et aliis consortibus post obitum patris
viriles et equales accipient porciones, (2) per priorem gradum ab
aliis prediis excludendi. (3) Si vero, in mansione patris, bona,
que habuit cum uxore, fuerunt diffinita, illa sola, si vivente
avo pater obierit, filii, quotcumque fuerint, obtinebunt.
(1) If a _filiusfamilias_ established with his wife in the
paternal rites shall, without definition of the exact quantity,
have added to property of his father property which he himself
had with his wife; then, however many sons there may be, they
shall, after the death of their father, receive _equal shares
per capita with the grandfather and other co-sharers_ in the
common substance even of lands acquired after the marriage was
contracted, (2) they having to be excluded from other lands by
the prior grade. (3) But if in the _mansio_ of his father the
property which he had with his wife, had been defined, _that
alone_, if the grandfather was alive when the father died, shall
go to the sons, however many they may be.
The Danish text (I. 5) is as follows:--
Vm bondæ sun förœr kono sina j bo mœth faþœr sinum.
If a bonde’s son brings his wife into the house with his father.
(1) Far bondæ sön konu oc förær hanæ j bo mæth faþur sinum, oc
aflær barn wiþær hana oc læghs æy fælegh theræ i mællin, um tha
dör bondans sön, tha taki all hans börn fullan lot æftir theræ
faþær æm wæl j köpæ iorth sum j bolfæ. (2) Æn af hans fæthrinis
iortho fa the æy wattæ mer æn han will giuæ them. (3) læghs
fælagh, tha fa the æy mer æn han atte j bo.
(1) If a bonde’s son gets a wife and brings her into the house
with his father and begets a child with her and no partnership
is made between them,[189] if the bonde’s son dies, then let
all his children take a full lot after their father as well in
land purchased as in moveables. (2) But of his [the bonde’s]
father’s lands they get not a whit more than he will give them.
(3) If partnership is made, then take they no more than he [their
father] owned in the house.
[Sidenote: If no arrangement on marriage wife’s property merged into the
family stock.]
This clause, in both the Latin and the Danish version, confirms the
inference from the previous one, that there was a difference of
destination as to the property of husband and wife according to whether
it had or had not been ‘defined’ and so put in partnership as joint
property of the husband and wife separately from the property of the
family group represented by the grandfather.
If not so defined, it became apparently under ancient custom part of the
common family property and so divisible after the grandfather’s death
among all the _consortes_ instead of going solely to the children of the
marriage.
The clause pictures for us the family group as bound together by
paternal rites (_sacris paternis_). The grandfather is alive and is the
_paterfamilias_. A son who is a _filiusfamilias_ (_i.e._, as we shall
see presently, not an emancipated son) has married and brought into
the _mansio_, or family homestead of the grandfather, property which
he had with his wife. This, not having been ‘defined’ on marriage, so
as to keep it separate, has become, in the phrase of the Latin text,
‘added to the property of the grandfather.’ The husband has died leaving
several sons, it matters not how many. The question is, what share
these grandsons are to take in the property which their father had
with their mother, which, for want of ‘definition,’ has become added
to the grandfather’s property, or, in other words, become part of the
‘_substantia communis_.’
[Sidenote: There was no succession by representation to a deceased parent
during the grandfather’s lifetime.]
The answer is that the parents’ property does not go exclusively to
their children as it would have done if it had been defined and separate
property. It has become merged in the family property, and there is
no sharing of this till the grandfather’s death. But apparently by a
compromise, due probably to recent legislation, they are allowed on their
father’s death, according to the Latin text, to take equal shares in his
property _per capita_ ‘with the grandfather and other _consortes_,’ or,
according to the Danish text, a ‘full lot’ in it. We are not told who
were the ‘_consortes_’ with whom and the grandfather it was to be shared.
The _consortes_, whether uncles or cousins or both, were the co-sharers
in the ‘_communis substantia_’ of the family holding.
In the final paragraph of the clause both texts give the alternative
rule applying to cases, probably the most frequent, in which proper
‘definition’ of the wife’s property had been made on the marriage. And
the rule is stated to be that the property so defined and made joint or
partnership property on the marriage, and that alone (_illa sola_), would
go to the children of the marriage at their father’s death during the
life of the grandfather. According to the Latin text, they were excluded
from the other family property ‘by the prior grade.’ As the Danish
version puts it: ‘not a whit of the other property would they get except
what the grandfather chose to give them.’
That this is the true meaning of these clauses is confirmed by other
chapters.
[Sidenote: Permission to the grandfather to give succession to a deceased
son’s children.]
Chapter XVI. is headed: ‘How much may be conferred by a father upon the
sons of a deceased son during the lives of the other sons, their uncles.’
The text is as follows:--
Licet cuique post mortem filii quantum ipsi deberetur si viveret,
ejus filio nepoti conferre.
It is lawful to every one after the death of a son to confer upon
a grandson, the son of that son, whatever would have been due to
the son had he lived.
This seems to be a special permission to the grandfather during his life
to mitigate the injustice of the customary rule excluding grandchildren
from succession by representation in their deceased parent’s property.
If under Scanian custom the children of a dead _filiusfamilias_ had
succeeded by right to their father’s property, this special permission
would not have been needed. But it seems to be clear that no such right
of succession was recognised by ancient custom.
Chapter XI. opens with the following general statement, there being in
this case no question of a marriage or a wife’s property.
[Sidenote: Otherwise no succession given by custom.]
Patre superstite defunctus filiusfamilias nullum habet, ac si
nunquam fuisset genitus, successorem.
The father surviving, the dead _filiusfamilias_ has no successor,
as if he had never been born.
This seems to make it clear that, the grandfather being alive, the
grandchildren took by right under ancient custom no share in their
deceased father’s property. It was simply merged in the family holding,
and they must wait for their shares in it along with the other co-sharers
after the grandfather’s death.
The growing feeling of the injustice of this from the individual point
of view was probably the reason, not only why the permission in Chapter
XVI. was given, but also why, following the example of Roman law, the
emancipation of sons was admitted.
Chapter XI. proceeds, after the initial sentence above quoted, to tell
what happened in the case of the death of an emancipated son dying
without children. But this does not concern us.
[Sidenote: Both in Norse and Scanian custom originally on a son’s death
his share in the odal merged in the common stock.]
It may be well before passing from the consideration of these clauses of
the Scanian law to bring into notice a short isolated clause from the
Gulathing law, which seems to accord with them, and so to connect the
Scanian rules of family holdings with somewhat similar rules as to the
Norse odal-sharing. The denial of the right of representation in both
Scanian and Norse ancient custom suggests that a common principle may
underlie the custom in both cases.
The clause of the Gulathing law (294) is as follows:--
Nu ero brœðr tveir oc andast annar fyrr en faðer þeirra oc livir
sunr efter hinn dauða. Þa scal hann þann lut leysa oðrla at
fimtungs falla, undan faður brœðr sinum, sem faður hans stoð til
efter faður sinn. En eigi ma hann fyrr leysa en faður faðer hans
er andaðr.
Now there are two brothers and one of them dies before their
father, and a son lives after his death. He shall redeem from his
father’s brother, at one fifth less, that part of the odal to
which his father was expectant heir after his father. But he may
not redeem it till his father’s father be dead.
In this case, as before, there are living a grandfather and a son and a
grandson (son of a deceased son). The share which the deceased son as
coheir with his brother might at first sight be expected to take in the
grandfather’s odal does not go directly to the grandson. By apparently a
new law he has permission after the grandfather’s death to redeem it from
his uncle at one fifth less than its value.
This can only be explained upon the principle that under ancient
Norse custom the sons of a deceased son would not succeed by right of
representation to their deceased father’s share in the division of the
grandfather’s property. Evidently the right to redeem it from their uncle
was an innovation of later law.[190]
[Sidenote: The new rules to amend tribal custom show what it once was.
Thus the Scanian laws throw light on Norse odal holdings. They were
family holdings.]
These and other innovations may have been the result of a new sense of
justice brought in with Christianity or under the influence of Roman law.
The question for us is the meaning of the ancient custom. And we are
brought back to the point that in so far as the family group more or less
may have resembled the Cymric gwely, and is approached from this point
of view, it must be regarded as the group of descendants of a common
grandfather or great-grandfather, who is, in the Archbishop’s phrase,
the _paterfamilias_. While he is alive the landed rights are vested in
him. On his death his sons take his place with divided or undivided
equal shares, but still as the representative members of the original
gwely or family group. One of them dies, and the question is whether the
surviving brothers ‘of the prior grade’ are to promote into this grade at
once the sons of their deceased brother. Such a course might naturally
be regarded as preferring these nephews to their own sons. The rights
of all the members of the ‘lower grade’ will come in time when all of
the ‘prior grade’ are gone and the grandsons share equally _per capita_
in the family property. In the meantime the sons of deceased parents,
like those whose fathers are alive, must wait. So it may have been under
ancient custom. But in course of time family ties weaken and individual
rights grow stronger in national feeling, as we have seen them everywhere
doing. And then little by little compromises are made. The joint property
of husband and wife, even if not properly ‘defined,’ is recognised in the
Scanian law as belonging to the sons of the marriage to the very limited
extent that they may have equal shares with the other _consortes_ whether
uncles or cousins. The sons of the deceased brother when the grandfather
is dead and division among the brothers comes in question are allowed by
the clause in the Gulathing law to buy back their father’s share in the
odal at a fifth less than its value instead of sharing in it as family
property.
So far the clauses in the Scanian and Gulathing laws considered together
seem to throw light upon the traditional principle on which the rights of
the odal-sharers of the Norse laws may have been founded.
The rules of Cymric custom may not be identical with those of
Scandinavian custom, but we seem to recognise very similar tribal
principles at the root of them both.
* * * * *
[Sidenote: The _paterfamilias_ and those in communion with him.]
Finally other clauses in the Scanian law may be alluded to as pointing to
the common liability of the family group, _i.e._ of the _paterfamilias_
and others ‘_in communione_’ with him.
Chapter IX. is as follows:--
Universos contingit de communi consortio quicquid vel culpa
amittitur vel industria conquiritur singulorum.
As regards the common consortium whatever is lost by the fault of
or acquired by the industry of individuals concerns all.
And in Chapter LXXXVII. it is enacted that if a person denies that he is
in possession of a thing stolen and if afterwards upon scrutiny it is
found in his house, double the value of the thing stolen is to be taken,
‘not only from the portion of the _paterfamilias_, but also from the
common property (_de bonis communibus_), however many there may be with
the _paterfamilias in communione_.’
And the reason stated confirms the prevalence of family holdings of the
kind already mentioned.
The double value is to be taken,
… non de sola patrisfamilias porcione sed de bonis communibus
quotcunque fuerint cum patrefamilias in communione. Nam cum omnes
lucrum respicerent in detentione non est mirum, si dampnum in
ejusdem rei contingat omnibus restitutione.
… not from the portion of the paterfamilias alone, but from
the common property, however many there may be with the
_paterfamilias in communione_. For since all expect gain from the
detention [of the thing stolen] it is not strange if all sustain
loss in its restitution.
The _paterfamilias_ in whose house the stolen property is found is
evidently himself a member of a wider family group with common interests
and liabilities. And the clause goes on to say that the accused must deny
the charge with twelve co-swearers if the thing stolen be worth half a
mark, or submit to the test of the ordeal of hot iron.
[Sidenote: The resort to the ordeal if no co-swearers.]
In Chapter XCIX. the ordeal of hot iron is described as having three
forms: (1) that of walking on twelve red-hot plough-shares; (2) that
called ‘trux iarn,’ applied to cases of theft: _i.e._ carrying an iron
twelve feet and then throwing it into a basin; (3) that of carrying it
nine paces and then casting it down: called, from the throwing, _scuzs
iarn_. After the ordeal the feet or hands, as the case might be, were to
be wrapped in cloth and sealed to prevent fraud, and so to remain till
the sabbath, on which day it should be opened and viewed in order to
ascertain the innocence or guilt of the accused.
This is one of the clauses which fixes the date of the Latin version, for
the ordeal was abolished in A.D. 1215.[191]
On the whole, we may fairly conclude that the Scanian law when regarded
from a tribal point of view affords additional evidence of family
occupation or ownership and of the solidarity of the family group in
Scandinavian society. But at the same time it shows that in Scandinavia,
as elsewhere, family ownership was gradually succumbing to the new rules
of individual ownership.
* * * * *
The same process of gradual disintegration of tribal usage is visible
also in the chapters relating to wergelds.
[Sidenote: The Scanian wergeld.]
In Chapter XLIII. it is enacted that the amount to be paid for homicide
is not to exceed 15 marks of silver.
[Sidenote: How it was divided.]
In Chapter XLIV. it is stated that the wergeld is to be divided into
three equal parts, of which each is commonly called a _sal_. And in the
next chapter, ‘De Compositione,’ we are told that before the time of the
last constitution it always lay upon the slayer or his heir to provide
the first portion only from his own property. He might then exact the
second portion from his agnates, and finally the third and last from his
cognates. Then it proceeds to say that, as excessive amounts were levied
by violence upon the kindred, King Canute had laid down certain rules for
the payments. _Inter alia_, it was enacted that of the two thirds falling
on the kindred, both agnates and cognates being computed in their grades
of kinship, the prior grade should always pay twice as much as the grades
behind it.
Further, in Chapter XLVII. it is stated that according to ancient law the
distribution should be so made that each third should be divided again
into sub-thirds, one of which should be paid to the heirs of the slain,
the second to the agnates, and the third to the cognates.
[Sidenote: Later modifications.]
It appears also from Chapter XLV. of the Latin version and s. 84 of the
Danish version that special care had been taken to prevent fraud on the
part of the slayer in claiming the aid of his kinsmen. He was to pay one
‘sal’ of his own payment before calling upon them for their portion,
which was called the _ættæbot_. He then was to collect together his
father’s friends and compute with them what each was to pay. And when
the day for payment came, not a penny was to be paid into the slayer’s
hands till the hour when he paid it over to the slain man’s kindred. Then
they were safe. The same course was to be afterwards adopted as regards
the payments of maternal relations.
The Latin version (Chapter XLV.) proceeds to say that this legislation
not having been successful in extirpating fraud and discouraging murder,
King Waldemar II. (A.D. 1202-1241) enacted that the murderer should be
liable for the whole wergeld (instead of one third). The agnates and
cognates were not to be forced by him to contribute against their will.
Within three days the murderer was publicly to offer satisfaction or be
outlawed, in which case he would be liable to be put to death by any one.
In case, however, of his flight, his relatives, agnates and cognates,
were individually to offer their proper share of two thirds of the
wergeld or be liable to the vengeance of the relatives of the slain, so
that the latter should not be deprived of all satisfaction.
These clauses throw some light on ancient custom, but they are evident
signs of the gradual loosening of the ties of kindred.
[Sidenote: Payment for the servus and libertus.]
In Chapter L. of the Latin version the payment for a _servus_ is fixed at
three marks, and in Chapter LII. the payment for a _libertus_ is fixed at
half that of the freeborn man.
It is difficult to judge how far these are to be taken as the ancient
wergelds of Scanian custom, or whether they had been altered in amount by
changes in the currency or recent legislation.
The wergeld of 15 marks of silver is exactly half of that of the normal
wergeld of the Norse hauld. And yet it does not seem likely that it had
been reduced in amount by recent legislation when it is considered that
under the Norse laws, as we have seen, the tendency seemed to be to add
‘sakauka’ to the ancient wergelds rather than decrease them.
It may be noted also that in a later addition[192] to the Danish version
it is stated that ‘a man’s bot is 30 good marks and overbot 26 marks and
16 ortugs.’ And also in the ‘City Law’ of A.D. 1300 the wergeld is stated
at 30 marks with an additional ‘overbot.’[193]
* * * * *
[Sidenote: The Scanian wergeld perhaps that of the ‘bonde.’]
We seem bound to consider the wergeld of the freeborn man under the ‘Lex
Scania antiqua’ of the previous century as 15 marks of silver.
The explanation probably may be that the _bonde_ and not the hauld was
taken as the typical freeborn man.
When it is further considered that in the Danish version of the Scanian
law there is no mention of the hauld, and that, as we have seen, the
_bonde_ seems to have been regarded as the ordinary householder or
_paterfamilias_ of the family holding, the inference becomes probably a
fair one that the _bonde_ was the typical _ingenuus_ or freeborn man for
the purpose of the wergelds.
If this may be assumed, then the wergelds of the Scanian law accord well
with the Norse wergelds. For in that case the wergeld of the bonde is 15
marks of silver in both laws. And further the wergeld of the _libertus_
of the Scanian law and that of the Norse leysing after he had made his
freedom’s ale also correspond, being half that of the bonde.
It may further be noted that as in the Norse law so also in the Scanian
law the payment for an eye or hand or foot was half a manbot, while the
full manbot was payable if both eyes or hands or feet were destroyed.[194]
VI. SCANIAN AND LOMBARDIC CUSTOM COMPARED.
[Sidenote: Lombardic custom.]
Before closing this very imperfect chapter on the Scandinavian laws it
may be well to compare with them clauses from the Lombardic laws relating
to the family holding of land and property ‘in communione.’
The laws of the tribes still remaining on the Baltic were five or six
centuries later in date than the laws of the Lombardic emigrants who
had left their old home and settled in the South upon Roman ground. And
yet in this matter we find traces of the same ancient custom of family
holdings underlying them both, notwithstanding wide separation, and what
is more, of the same process of change going on notwithstanding the
difference in date. Roman and Christian influences had not reached the
Scanian district on the Baltic till the twelfth century, and were only
then effecting changes which in the seventh century had already been
accomplished in Transylvania and Italy.
[Sidenote: Edict of Rothar. A.D. 643. Kindred of seven generations.]
The first clause to which reference may be made is s. 153 of the ‘Edict
of Rothar’ (A.D. 643). It is entitled ‘De gradibus cognationum.’ It
is interesting as showing that seven generations were necessary to the
complete kindred.
Omnis parentilla usque in septimum geniculum nomeretur, ut parens
parenti per gradum et parentillam heres succedat: sic tamen ut
ille qui succedere vult, nominatim unicuique nomina parentum
antecessorum suorum dicat.
Let every parentilla up to the seventh knee be named, so that
parent to parent by grade and _parentilla_ the heir may succeed;
so moreover that he who wishes to succeed must tell name by name
the names of his antecedent _parentes_.
Seven generations would reach back to the great-grandfather’s
great-grandfather, an important limit of kindred both in the Norse laws
and those of the Cymri.
Another clause of the same edict (c. 167), under the heading ‘_De
fratres, qui in casam communem remanserent_,’ enacts as follows:--
[Sidenote: Family holdings.]
Si fratres post mortem patris in casa commune remanserint,
et unus ex ipsis in obsequium regis aut judicis aliquas res
adquesiverit, habeat sibi in antea absque portionem fratrum;
et qui foras in exercitum aliquit adquisiverit, commune sit
fratribus quod in casa dimiserit.
If brothers shall have remained in the common home after the
father’s death and one of them shall have acquired some property
in service of the king or judge, let him henceforth have it for
himself without the brothers sharing in it. And if one shall have
acquired anything abroad in the army let that be in common to the
brothers which he left behind in the home.
Et si quis in suprascriptis fratribus gairethinx fecerit, habeat
in antea cui factum fuerit.
And if any one of the said brothers makes a donation, let him to
whom it was made have it henceforth.
The rest of the clause refers to payments to a wife brought into the
family holding by a brother. The ‘meta’ or portion has, in this case,
been given to her on marriage out of the common property, and so the
rights of the other brothers have to be considered.
Et qui ex ipsis uxorem duxerit, et de rebus communes meta data
fuerit: quando alteri idem uxorem tollere contigerit, aut quando
ad divisionem faciendam venerit, simili modo de comunes rebus
ei refundatur aliut tantum quantum frater in meta dedit. De
paterna autem vel materna substantia quod relicum fuerit inter se
æqualiter dividant.
And he who of them marries a wife and her _meta_ was given from
the common property, whenever it happens to another likewise to
take a wife or whenever it comes to a division being made, in the
same way there shall be refunded to him from the common property
as much as the brother gave in meta. But whatever is left of the
paternal or maternal substance let them divide among them equally.
[Sidenote: Rules of family divisions.]
Attempts to settle such questions as these, whether and how far property
acquired by one brother is to form part of the common family property
or be retained by the brother acquiring it, and again how the fact that
the payment for a wife’s ‘meta’ had been taken from the common family
property was to affect the rights of the brothers when they came to
a division, are in themselves good proof, so far as they go, of the
continuance of family holdings. But the changes made by these clauses
show the same tendency which we have seen in the Scanian laws towards
individual ownership and the breaking up of the family holdings.
Finally, the point which in the Scanian laws was most suggestive of the
original completeness of the family community of property, viz. that
originally there was no succession of sons to their father’s share, but
division _per capita_ between the uncles on the grandfather’s death,
appears again in the Lombardic laws and is dealt with in the seventh
century practically in the same way as in Scania it was dealt with
centuries later.
From the tribal point of view the solidarity of the family group was the
chief interest regarded. But the point of view was changed. Under the
new influences the interests of the individual came more and more into
prominence.
[Sidenote: No succession of sons by representation at first, but
afterwards allowed.]
It now seemed unjust to the sons that their father’s property should be
allowed simply to lapse into the common stock of the family till the
grandfather’s death and then left to be divided among the uncles. And to
mitigate the injustice the right to succeed was given, in the Lombardic
as in the Scanian laws, to the limited extent that upon the grandfather’s
death the sons took the share of their father with the uncles in the
division, as if he had been living at the time.
S. 5 of the ‘Leges a Grimowaldo additæ’ is headed ‘_De successione
nepotum qui post mortem patris in sinu avi remanserint_,’ and is as
follows:--
Si quis habuerit filios legitimos unum aut plures, et contigerit
unum ex filiis vivente patre mori, et reliquerit filios
legitimos, unum aut plures, et contigerit avo mori, talem partem
percipiat de substantia avi sui, una cum patruis suis, qualem
pater eorum inter fratribus suis percepturus erat si vivus
fuisset.
If any one shall have legitimate sons, one or more, and it
happens that one of the sons dies, the father being living, and
he leaves legitimate sons, one or more, and it happens that
the grandfather dies, let him [the son] take such part of the
substance of his grandfather together with his uncles as their
father if he had been alive would have taken among his brothers.
Similiter et si filias legitimas unam aut plures, aut filii
naturales unum aut plures fuerint habeant legem suam, sicut in
hoc edictum legitur. Quia inhumanum et impium nobis videtur, ut
pro tali causa exhereditentur filii ab hereditatem patris sui pro
eo, quod pater eorum in sinu avi mortuos est, sed ex omnibus ut
supra aequalem cum patruis suis in locum patris post mortem avi
percipiant portionem.