THE LAND.
Division of the land—Supposed origin of the division—The odal—How
land could become odal—Redemption of the odal—Laws in regard to
redemption—Purchase of land and closing of the bargain—Existence
of leaseholds—Commons—Rights of common—Laws regulating commons.
In old Sweden and Norway, and no doubt all over the North, the land was
divided into _Herad_ and _Fylki_. In Sweden there were small and large
_Herad_; in Norway there were both _Herad_ and _Fylki_, the latter
probably corresponding to the larger _Herad_ in Sweden.
We are unable to find how and when such division of land began to take
place among the people: that a sudden emigration burst upon the country
we have no proof whatever.
The word _her_ (“host”) implies a certain number of people or families
coming together for mutual protection or otherwise, and the whole was
called host. These either took by force or settled peacefully upon
certain tracts of land, which were then called _Herad_, probably on
account of being the land of the _her_. In the course of time—perhaps
for mutual protection, or for some other reason unknown to us—those
_Herad_ or _Fylki_, though entirely independent of each other in their
internal affairs, were united together, and were called _thjod_, or
_veldi_, which means a nation made up of different _Fylki_ and _Herad_.
So the land of the Swedes was called Svi-thjód, or Svia-veldi: and that
of the Danes and Norwegians, Dana-veldi and Noregs-veldi.
A man who settled upon a Herad without lawful right could be summarily
ousted without resorting to legal remedies.
Thormod and Thorgeir made themselves obnoxious to the people of the
neighbourhood by their wild habits. Those who thought themselves wronged
by them went to Vermund (chief of the Herad), and laid their complaints
before him. Vermund summoned Hávar and Bersi (the fathers of the two
young men) to him, and told them that the people disliked their sons.
“‘Thou, Hávar,’ he said, ‘art a man not belonging to the herad, and hast
settled here without permission. We did not object to thy living here
till thy son Thorgeir caused dissension; we want thee to break up thy
residence and depart from Isafjord; but Bersi and his son we will not
drive away, for they are _heradsmen_’” (Fostbrœdra Saga).
_Odal._—We find a great part of the land divided into _Odal_—i.e., the
title to which was absolute, and not dependent on a superior—but how
this was acquired we do not know. The probability is that in the
beginning of the migration or conquest each head of a family took, or
had allotted to him, a certain amount of land as _odal_—the extent of
land being proportionate to the size of his family or to his rank. Then
the settler became a _buandi_[453] (a dweller), that is, of the Herad of
which he formed an integral part. The word _bondi_ is still applied in
Norway to odal men, who own farms in their own name. To this day there
are _odal_ farms in Sweden and Norway which have remained in the same
family almost from time immemorial; and such were the safeguards in
olden times against alienation of land, that it has been impossible for
those estates to be gradually absorbed into the hands of comparatively
few men, as has been unfortunately done in some other countries; and as
no conquerors have come to dispossess the original owners, and give
large tracts of land to their followers, the land in many parts of
Scandinavia, with the exception of Denmark, has remained much divided to
this day. Besides _odal_ there was _kaup land_, the latter being
freehold land that could be bought, and loose property.
The Gulathing’s Law enumerates seven ways in which landed property could
become _odal_:—
“1. When it had descended through four generations in unbroken
succession. 2. When the land had been given as _weregild_.[454] 3. When
it had been got by so-called _branderfd_.
4. When it was received as _heidlaun_ (fee-reward), i.e., when, in later
times, it was given by a king to his servant for faithful services. 5.
At a later period, when it was given by the king as _drekkulaun_
(drink-reward), either for having been well entertained, or as a reward
for nursing the king. 6. When it was received as reward for fostering a
child (barnfóstrlaun). 7. When it had been acquired in exchange for
another odal” (Gulathing’s Law, 270).
“The inheritance is called _branderfd_ if a man receives another to keep
him in bad and good circumstances, and feeds him till fire and pyre
(until he dies)” (Gulath., 108).
In all the last six modes of acquiring the land, it is of course
understood that the land must have been the _odal_ of the grantor.
The odal could not be alienated from the family, and if sold to any one
outside the family, the latter had the right of redemption, which
consisted in this: that in case the land was sold to a stranger, the
nearest of kin had the right to redeem the odal from the new owner
within a certain time and on certain conditions. These differed in the
different laws. The Gulathing’s Law, which most extensively treats this
subject, sets as a rule for the redemption, that it could be made by the
nearest of kin after lawful notice, on payment of a sum one-fifth less
than that at which the land was appraised by arbitrators. The kinsman,
however, in order to keep this right open, had to publicly announce it
at the Thing under whose jurisdiction the land lay, within _twenty
years_ after the sale, so that twenty years should never be allowed to
pass between two announcements. If this was neglected, the next of kin
had not thereby lost his right of redemption, but he had to pay the full
value of the land.
“If the land lies (is in possession of the buyer) for twenty winters and
no notice is given, full value must be paid for it” (Gulath., 272).
The right of redemption was not forfeited until the land had been in the
family of the new owner for the period of sixty years without any notice
of redemption having been given.
“If the land belongs to the same line of family for sixty years or more,
it becomes the odal of the owner, so that no man can buy it from him”
(N. G. L., ii. 93).
“If there are two brothers, and one of them dies before his father and
leaves a son, then he shall redeem that part of the odal at
four-fifths[455] of the value from his father’s brother. But he cannot
do it before his grandfather is dead” (Gulathing’s Law, 294).
“When the redeemer has claimed the land according to law, he shall carry
the money to the land at the middle of the fast on the morning next
after the washing-day (Saturday), when three weeks of the fast are left.
He shall put it on a stone where field and meadow meet. He shall speak
thus: ‘Be here on the land Thursday in the Easter-week, and take the
value of the land, as much as it is valued in lawful money. I will come
here with honest men, and thou shalt have as many here. They shall value
the land as it is done when men redeem their odals. The half of the
money shall be in gold and silver, and the other half in native bondsmen
not older than forty and not younger than fifteen winters’” (Gulath.,
266).
If the king was _odalsman_ (i.e., next of kin) to land in the possession
of another, then the redemption was to take place within the reigns of
three kings, for otherwise the right of redemption was forfeited.
“If land falls to the king it must be redeemed from his steward who has
the survey in the _Fylki_ in which the land lies. If there is no king’s
steward in the _Fylki_, it must be redeemed from the steward who is next
in rank and before the lives of three kings are gone. If the land is not
redeemed before, it must lie where it is. Though three kings rule the
land the time is reckoned as the life of one king. If the king wants to
redeem land his steward shall redeem it as we do among ourselves. He
must have redeemed it also before the lives of three kings are gone,
else it lies where it is. Land cannot be redeemed while the king is in
the _Fylki_ in which the land lies” (Gulath., 271).
“The land of no man can become odal before three generations have owned
it in unbroken succession and it falls to the fourth (as inheritance)”
(Frostath., xii. 4).
“Land becomes the odal of a church if she has owned it for thirty
winters” (Frostath., xii. 4).
The land was bought in the following manner, and the bargain was closed
by _weapon-taking_ and the shaking of hands.
“If a man buys land in the presence of many men, the thingmen shall
convey the land to him. He shall summon the other man home, and thence
to the Thing, and have witnesses at the Thing that he has lawfully
summoned him. He shall take mould, as is mentioned in the laws, to the
four corners of the hearth, and to the high-seat, and where field and
meadow meet, and where pasture and stone-ridge meet, and have witnesses,
and those who were present at their bargain, at the Thing that he has
taken the mould lawfully. If he has full witnesses, the Thingmen shall
with weapon-taking convey the land to him. Wherever they agree about the
bargain, and the sale and the mould is rightly taken, it, and also the
conveyance, shall be kept at a church and at an ale-house, and at a
manned ship with several rowing-seats, as if it were made at a Thing.
Wherever the king conveys land it shall be kept”[456] (Gulath., 292).
“The silver was then all counted, and every _penning_ paid for the land.
Börk then took the money, and by a _hand-shaking_ transferred the land
to Snorri” (Eyrbyggja Saga, c. 14).
“If a woman is _baugryg_,[457] she can inherit both odal and (loose)
property, and no man can redeem it from her. The women who are
odal-women and whom the odals follow are these. Daughter and sister, and
father’s sister, and brother’s daughter, and son’s daughter. The
daughter and sister are two _baugrygs_. They can pay and receive wergild
like men. They also have, like men, the first right to buy the land”
(Gulath., 275).
Leaseholds also existed in these early days.
“Thrand leased out the lands at Gata to many, and took as high a rent as
possible” (Færeyinga Saga, c. 2).
_Commons._—From time immemorial the large extents of land and sea, which
belonged to no individual, and used by one or more communities as their
common property, were called _almenning_ or commons, and were under the
power of the _herad_. Every one had the right to make use of wood and
water on these commons; to build himself _sæter_,[458] as well as
smithies and hunting-huts; to fish in the waters, hunt and trap animals;
to cut timber and mow grass, observing the previous rights of any
earlier user. The settler ought then to fence around his property within
twelve months. Outside his home field he owned as outgrounds all the
surrounding land as far as he could throw his knife. All fishing-places
at some distance from the coast were commons, but the king had a right
to get a fee or tax from those who fished there, which tax was one of
his sources of revenue.[459]
“Every man is allowed to use water and wood on a common. Every one shall
have his common as he has had it from old time. If a settlement is made
on a common, the king owns it. If there is a field and meadow fenced in,
he owns the land as far from the fence as he can throw his knife. The
remaining is common. All that is thrown up on the coast of a common is
owned by the king. If people sail along the coast or from sea and their
ships founder, whoever owns the land where they are wrecked owns as much
property as he can prove with witnesses. The king owns all other
sea-wrecks” (Gulath., 145).
“This law have the kings given to all the men of Hálogaland; namely, the
kings have given up all _fish-gifts_ (taxes) from all capes and all
fishing-places, except that men shall give to the king five fishes. That
shall every man do who fishes in Vagar (in Hálogaland)”[460] (Frostath.,
xvi. 2).
“The law of seal-catching places is, that within three weeks from St.
John’s Mass, and six weeks from Yule, all such places are holy, and no
man shall go into another’s ground without leave. If a man is found in
another’s fishing-ground during these weeks and catches seals, he is a
thief. Between these times they shall protect their seal-catching places
like their land with a law stick (lag kelfi), and a _ran baug_ (fine);
if the thief goes then, he is fined for trespassing in another man’s
land....” (Frostath., xiv. 11).
“Deer-enclosures every man can make on common land, if he does not spoil
another’s hunting.... A spear-fence shall not stand longer than ten
winters” (Frostath., xiv. 9).
Later, and after the establishment of the kingdom of Harald Fairhair,
the commons as well as the odal became the property of the king; and
William the Conqueror, after the conquest of England, considered himself
to have the same powers as those usurped by Harald Fairhair and other
northern kings.
“King Harald became the owner of all _odals_, and of all the land
cultivated and uncultivated in every _Fylki_, and even of the sea and
the rivers and lakes. All _bœndr_ were to be his tenants, both those who
cultivated the field and the saltmakers; and all fishermen, hunters and
trappers, both on sea and on land, were his men” (Egil’s Saga, c.
4).[461]
If a person had been living on a common during the time of three kings,
none of whom reigned less than ten years, he had thereby acquired full
and legal rights to his land, even though he lacked the formal consent
of the king.
“If a steward or messenger of the king charges a man with dwelling on
land taken from the common without the king’s leave, and the man answers
that the land has been held by him during the lives of three kings, none
of whom ruled less than three winters, then if the steward or king’s
messenger denies this he shall bring forward witnesses” (Frostath., xiv.
7).
When the king gave land to a man, his successor could take it back, so
the gift was only valuable for the lifetime of the king.
The customs which regulated settlements made on the land in Iceland were
probably very ancient, but it is impossible to tell whether they were
handed down from the time of the first settlers in the North.
Asbjörn, son of Heyangrs-Björn, a _hersir_ (chief)[462] in Sogn, died at
sea on his journey to Iceland, but Thorgerd, his wife and their sons
came to Iceland.
“It was the custom that a woman should not take up more land than a
half-grown and well-kept heifer, two winters old, could be led across
during the spring-long day from sunrise to sunset; therefore Thorgerd
led her heifer from Thoptufell, near Kviá, southwards to Kidjaklett at
Jökulsfell” (Landnáma, Pt. iv., c. 10).
“Those who came out later thought the first comers had taken too much
land, and on that account King Harald Fairhair established a law that no
one should take up more land than he could walk over with fire in one
day with his ship-companions. They were to light fires when the sun was
in the east, which were to burn until night; then they were to walk
until the sun was in the west and make other fires; the smoke was to be
seen from the one fire to the other” (Landnáma, v., c. 1).