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.

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.

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:—

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]

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.

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:—

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,

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.

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.

In Chapter XLIII. it is enacted that the amount to be paid for homicide is not to exceed 15 marks of silver.

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.

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.

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]

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.

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.

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.

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:—

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.

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.

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:—

The continued existence of community in the family property is shown by the fact that, even after the concession made in this clause, during the grandfather’s lifetime everything fell into the common stock and not till a family redivision was made after the grandfather’s death was the new rule admitting the sons’ succession along with their uncles to take effect.

To trace further the survivals of tribal custom in the Lombardic laws would lead us too far afield. The clauses already quoted are sufficient to show a remarkable similarity of custom in the case of tribes once neighbours on the Baltic notwithstanding that they had been widely separated and that there was an interval of five or six centuries between the dates of their laws.

CHAPTER IX.
TRIBAL CUSTOM IN SCOTLAND.

I. TRACES OF TRIBAL CUSTOM IN THE LAWS OF THE EARLY KINGS.

The population of Scotland was so various in origin and language that it would be unreasonable to expect uniformity of custom. Even where Celtic custom was best able to hold its own there must naturally have been a mixture of Cymric and Gaelic elements. In districts, on the other hand, where Frisian and Northumbrian and Danish and Norse influences may have once predominated, whatever survivals there may have been of tribal custom from any of these origins may well have been afterwards submerged under legal forms and ideas from Anglo-Norman sources.

It is worth while, however, to examine what scattered survivals of tribal custom may be found in the laws of the early kings, and in the various documents collected in the first volume of the ‘Ancient Laws of Scotland.’

That tribal custom as to wergeld existed and was recognised is proved by the necessity to abolish what remained of it.

Thus in the ‘Leges Quatuor Burgorum’ is the following clause:—

This wholesale and disdainful disregard of feudal and tribal customs on the part of the townsmen of the four Burgs was followed somewhat later by an Ordinance of Edward I. (A.D. 1305) which again testifies to the wider survival of more directly Celtic tribal usages by forbidding their continuance.[195]

Here we have the usages of the Brets and Scots distinctly recognised as still lingering on so late as the beginning of the fourteenth century in some parts of Scotland.

In the laws of King David[196] there are distinct traces of ancient custom as regards wergelds and the connection of the kindred with their payment and receipt. In section XIV. it is enacted:[197]—

Clause XV. deals with violence done in the king’s court:—

In both these clauses the wergeld to the kin is additional to the payment to the king (of 180 cows?) for breach of his peace.

Clause XVI. forbids the letting off of a thief for money or friendship. An earl or any one having the freedom and custom of an earl who does this is to pay to the king 100 cows, and other great men not of earl’s rank 34 cows. The thief is to be ‘outlawed through all the king’s land.’

It is clear, then, that in the time of King David the system of wergelds payable to the kindred of the person slain was generally in force, though no amount is mentioned, and that payments were made at this date mostly in cows.

In the ‘Assize of King William’ under date A.D. 1180 is the following mention of the wergeld to be paid evidently for a thief who has been allowed to escape as above.

The following clause is further evidence of the continued right of vengeance on the part of the kin of a person slain.

Among the Statutes of Alexander II. under date A.D. 1220 the following fines were imposed upon persons who held land of the king and who absented themselves from the army. (Clause II., p. 68.)

This clause reveals a social division of classes into thanes, ochtyerns,[199] and carls or rustics; to which another clause (IV., A.D. 1230) enables us to add the nativus or ‘kind-born bondman.’

It is not needful to pursue the inquiry into the laws of the later kings of Scotland. But among the ‘Fragmenta’ in App. V. (p. 375) of the collection there is one which must not be overlooked, although it may be difficult to fix its date. It seems to be made up of two fragments united and is interesting as containing two very different statements of the payment ‘for the life of a man.’

Put into modern English, the first part is as follows:—

The other part is as follows:—

Now what are we to make of these ‘Fragmenta’? Clearly the two fragments must be taken separately, for in the first the payment ‘for the life of a man’ is 180 cows and in the second the payment ‘for a man’s life’ is twelve marks.

Mr. Robertson seems to have concluded that the payment of 180 cows was the wergeld according to the Assize of Scotland, or, as he puts it, ‘the manbote for homicide throughout Scotia.’[200] But he arrived at this conclusion apparently by connecting this fragment with the clause already quoted in the Assize of King David which states that a person killing another in any place within the king’s peace ‘shall pay to the king 180 cows and a colpindach.’ He concluded that the payment was 180 cows from the reading ‘ixˣˣ cows,’ as it is found in the Ayr manuscript of one of the clauses, as already stated. But the clause itself shows that this payment to the king was not the wergeld, because after making this payment the slayer had still to ‘assyth to the kin of him slain after the assyse of the land.’

Nor does it seem any more likely that the payment of twelve marks mentioned in the second fragment was the wergeld of Scottish custom. From its amount it seems much more likely to correspond with the payment already alluded to as the ‘wergeld’ of the thief allowed to escape, which, however, might possibly represent that of persons of lowest rank.

The evidence of these undated fragments leaves us in the dark as to what the wergeld of the ancient Assize of Scotland may have been. Confused and mixed statements as to the wergelds are not surprising when the mixture of races is taken into account, and, after all, the phrase ‘after the assize of the land’ or ‘after the assize of the Kynrik’ may refer only to those portions of the kingdom to which the laws of King David specially applied.

II. THE ‘REGIAM MAJESTATEM.’

Further traces of tribal custom are mentioned in the treatise entitled ‘Regiam majestatem’[201] apart from the remarkable addition to it, which also appears again as a separate document, under the heading ‘Leges inter Brettos et Scotos.’

The ‘Regiam Majestatem’ itself may be regarded as a version of Glanville’s well-known treatise on English law, applied with alterations and adaptations to Scotland by a Scotch writer conversant with local custom, and probably dating between A.D. 1200 and 1230.[202]

As in the laws of King David and his successors, so in the body of this treatise, references to ancient usages occur with occasional survivals of untranslated Gaelic words which seem to refer them back to Celtic tribal custom.

Thus, in Lib. II. s. ix, in reference to the modes by which nativi might obtain freedom, a specially Scotch addition is made, to the effect that if a lord has carnal intercourse with the betrothed wife of his servus, and this is proved by the visinage, the servus is thereupon released from the servitude of his lord; and then follows the phrase ‘nec aliud enache habebit a domino suo nisi recuperationem libertatis.’ This untranslated Gaelic word enache has already been met with in the enec-lann of the Irish ‘honour-price,’ and we shall find it used again when we come to the customs of the Bretts and Scots.

So, in Lib. IV. c. 7, in cases of rape the woman (according to the text of Glanville) is to make it known to men in good position (probi homines) or to the ‘prepositus of the hundred.’ In this Scotch treatise the writer inserts instead of the words ‘prepositus of the hundred’ ‘vicecomitatus vel le toshederach.’ The Gaelic Toshach or chieftain of a district is much in evidence in the marginal records of the ‘Book of Deer.’[203]

Again, in IV. 12, in a passage not found in Glanville, the theft of a calf or ram or whatever can be carried off on the back is described in the local words ‘berthinsak seu yburthananseca.’

In the same chapter is inserted the already quoted clause from the Assize of King William as to the wergeld of a thief who has been allowed to escape.

In IV. xxiii. a pledge is mentioned ‘quod vocatur culrach.’

In IV. xxx. of the treatise it is stated that if a person on horseback rides over some one going before him so as to kill him, he must render for the dead man so killed ‘cro et galnes’ as if he killed him with his own hands; and it goes on to say that if the rider treads a man to death by riding over him when backing his horse (as it would not then presumably be his fault) he is to pay nothing but ‘the fourth foot of the horse,’ which satisfaction the parentes of the man killed ought to accept.

The mention in this treatise of cro and galnes payable to parentes of the slain seems to imply that the customs relating to payments for homicide were generally in force throughout Scotland and not confined to any particular district. The words ‘cro and galnes,’ apparently meaning the wergeld, meet us again in the document relating to the customs of the Bretts and Scots.

The final clause (IV. liv.) describes the ‘merchet’ of women ‘according to the assize of Scotland.’ It begins by stating that the merchet of a woman, quecunque mulier fuerit, sive nobilis, sive serva, sive mercenaria, is ‘una juvenca vel tres solidi’ with 3d. as rectum servientis. Surely a female slave is here intended.

This seems to be the minimum ‘merchet,’ for the clause proceeds:—

This clause regarding the ‘merchet’ is useful as giving a scale of values in cows and shillings.

The solidus of this document can hardly be any other than the Anglo-Norman silver shilling of 12 pence of 32 wheat-grains, i.e. 384 w.g. The cow equalled six of these shillings or 2304 w.g. At the Anglo-Norman ratio of 1:12 the value of the cow would thus be 192 wheat-grains: that is, exactly the normal ox-unit of two gold solidi of Imperial standard.

This curious result is not only interesting as one more instance of the tenacity of custom in retaining the traditional gold value of the animal used as the unit of payments when made in cattle, but also useful for our present purpose as affording a valuable proof that the Scotch compiler of the ‘Regiam Majestatem’ in appending the important clauses relating to the customs of the Bretts and Scots which follow closely upon this merchet clause was adding to his work a quite independent document, probably of much earlier date.