Chapter VIII: The Tribal Customs of the Oldest Scandinavian Laws (2)

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_.]