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.

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.

The ceremony of ‘making a freedom ale’ is thus described, in the two laws.

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.)

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).

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.

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.

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?

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.

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.

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.

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.

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.’

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.

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.

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.

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.

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:—

And again in the Gulathing law is the following:—

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.

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.

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?

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).

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.

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).

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.

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.

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.

The first chapter relates to the rights of a wife surviving her husband when there are no children of the marriage.

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.

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):—

The Danish text (I. 5) is as follows:—

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.’

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.

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:—