CHAPTER VIII.

_THE TRIBAL CUSTOMS OF THE OLDEST SCANDINAVIAN LAWS._

I. THE MONETARY SYSTEM OF SCANDINAVIA.

The facts needful for the understanding of the monetary system of the Scandinavian tribes need not detain the reader very long.

The weight system applied to gold and silver was that evidently derived from the Eastern Empire.

[Sidenote: Marks, ores, and ortugs. The ortug the Greek stater or ox-unit.]

It consisted of the mark, the ore, and the ortug. The mark was divided into eight ores or ounces, and the ore or ounce into three ortugs, which were in fact staters or double solidi. The ounce being the Roman ounce of 576 wheat-grains, the ortug contained 192 wheat-grains, and was the exact counterpart in wheat-grains of the Greek stater, _i.e._ Professor Ridgeway’s ox-unit. Reckoned in wheat-grains, two Scandinavian marks of 8 ounces were, as we have seen, exactly equal to what the early metrologists called the (light) _Mina Attica_, which consisted of 16 Roman ounces or 9216 Roman wheat-grains. Four gold marks thus made a _heavy_ gold mina, traditionally representing a normal wergeld of 100 head of cattle.

But this heavy gold Mina of four marks had been seemingly twisted from its original Greek character to bring it into consistency with Roman methods of reckoning. It was divided no longer into 100 staters, but now into 96 ortugs, so as to make the ortug double of the solidus and one third of the Roman ounce, thus throwing it out of gear, so to speak, with the normal tribal wergelds of 100 head of cattle. It was thus made to contain only 96 ox-units, although in actual weight its 32 Roman ounces really did contain, so long as the standard of the Roman ounce was adhered to, 100 Attic staters or ox-units.

That the light mina of two marks or 9216 wheat-grains had found its way by the Eastern trade routes into Scandinavia appears from its survival in the monetary system of countries on both sides of the Baltic to quite modern times.

[Sidenote: The pound of two marks.]

In Northern Europe the pound of twelve ounces was not, as elsewhere, the usual larger unit. The pound of two marks or sixteen ounces had taken its place. And except in Norway and Denmark, which sooner or later adopted the monetary and weight system of Charlemagne, the ounce remained the Roman ounce of 576 wheat-grains. At the same time, as in the case of the Merovingian system, in spite of the Imperial influence of the gold solidus, there were evident marks of a tendency towards the ancient Eastern standard of the stater rather than the heavier standard of the double solidus. The ortug of 192 wheat-grains seems to have often sunk in actual weight below even the Attic weight to that of the ancient Eastern stater of 8·18 grammes.

Thus when the Russian weight system was recorded in the time of Peter the Great the unit both for precious metals and goods was found to be the _Zolotnic_ or gold piece. Thus--

Dolja = ·0444 grammes = wheat-grain. Zolotnic = 4·265 ” = 96 w.g. Funt = 409·511 ” = 96 zolotnic, or 9216 w.g.

Here, then, _in wheat grains_ the Funt is the light Mina Attica over again, Romanised in its divisions. The Zolotnic is the solidus or half-stater. But in actual weight the pound is exactly half of the ancient Eastern gold mina of 818 grammes.

The Pfund of Silesia (Breslau), according to Martini, was 405 grammes, and that of Poland (Cracow) the same. Only Sweden and Riga seem to have adopted or preserved higher standards, the double mark of Sweden being 425 and that of Riga 419 grammes; but even these fell far short of the standard weight of 16 Roman ounces, viz. 436 grammes. But throughout, low as the standard of the Baltic _Funts_ or double marks may have been, they were divided according to the Roman commercial weight system into _ores_ or ounces and _loths_ or half-ounces, and _gwentschen_ or drachmas of one eighth of an ounce, just as if they were of full Imperial weight. The marks and the ores remained, but the old division of _ores_ into ortugs or staters had long ago disappeared.

The division into marks, ores, and ortugs was, however, in full force at the time of the Norse laws, both for gold and silver. And the evidence of actual weights seems to show, not only that for the purposes of the Eastern trade routes, reckoning in marks, ores, and ortugs was in common use, but also that the standard, like that of the Merovingian coinage, was the ancient Eastern standard.

Thus the following weights, believed to belong to the Viking period, from the island of Gotland, are now in the Royal Museum at Stockholm (Nos. 4752 and 5984).

[Sidenote: The ortug in weight = Eastern stater or two Merovingian solidi.]

o o o o o o o o o o

o o o o o o 819 grammes = 100 staters or ortugs of 8·19 o o o o

o o | o--o--o 57·25 ” = 7 ” ” 8·1 | o o

o o 32·65 ” = 4 ” ” 8·16 o o

o o 32·4 ” = 4 ” ” 8·1 o o

o 24·35 ” = 3 ” ” 8·12 o o

The unit of these weights is exactly the Eastern stater of 8·18 or two Merovingian solidi.[173]

Whether this standard had been arrived at independently of the Merovingian standard, or adopted from it, we must not stop to inquire. It is enough that the ortug at the date of the laws through Roman influence had come to be reckoned as one third of the ounce.

Whatever may have been the early Byzantine influences and that of Eastern trade routes, long before the date of the Norse laws, Scandinavia had come under Frankish influences also.

[Sidenote: The mark of 8 Roman ounces and Charlemagne’s mark of the _nova moneta_.]

Already during Merovingian times, chiefly through the Frisian mint at Duurstede, Merovingian currency had become well known on the Baltic, and we have seen that the first Scandinavian coins were copies from those of the Duurstede type. Hence it came to pass that in the most ancient of the Norse laws the old Scandinavian reckoning in gold and silver marks, ores, and ortugs had become connected with the Frankish currency. During the period of Merovingian influence the Merovingian ounce and the Norse ore were both, reckoned in wheat-grains, the ounce of the Roman pound, whatever may have been their actual weight. The mark of eight ounces contained 4608 wheat-grains of gold or silver. But at last, as the result of Charlemagne’s conquests in the North, his _nova moneta_ with its higher standard was brought into contact with Scandinavia. His mark of eight of his ounces or 5120 wheat-grains ultimately superseded in Norway and Denmark the old mark of eight Roman ounces. Hence, as all the Scandinavian laws as we have them, are of later date than Charlemagne’s conquests, the question must arise, which of the two marks is the one in which the wergelds and other payments are described.

In the oldest Norse laws the wergelds are stated mostly in _silver_ marks, ores, and ortugs. The ratio between gold and silver was 1:8, so that an ore of gold equalled a mark of silver, and thus the translation of silver values into gold is easy. The laws themselves, as we shall find, make this perfectly clear. A wergeld stated as of so many gold marks is divided in the details of payment into silver marks, ores, and ortugs at the ratio of 1:8.

II. THE WERGELDS OF THE GULATHING AND FROSTATHING LAWS.

[Sidenote: The Gulathing law.]

In approaching the consideration of the Scandinavian custom as to wergelds and the structure of tribal society as disclosed in the ancient laws, I do it with great diffidence, especially as, for the translation of Old Norse, I am dependent on others.

On the whole it seemed best to concentrate attention upon the _Gulathingslög_ as the oldest of the Norse laws. The Danish and Swedish laws and the Grágás of Iceland no doubt under competent hands would yield valuable additional evidence, but the oldest of the Norse laws may probably be fairly taken as the most representative of early Northern custom, and at the same time most nearly connected with the object of this inquiry.

Geographically the Gulathing law was in force in the southern portion of Norway. It seems to have embraced, in about the year 930, three, and afterwards six, _fylkis_ or districts each with its own _thing_ and local customs.[174] In this respect it resembled the Frisian and Saxon laws, both of which recognised, as we have seen, the separate customs of tribal divisions contained in the larger district over which the laws had force.

The Gulathing law must therefore be regarded as in some sense a compilation or collection of customs rather than one uniform law. For instance, there are three or four separate descriptions of the wergeld and the modes of its payment and receipt. One of these is avowedly of later date. The older ones may probably describe local variations of general custom, belonging to one or another of the divisions, and even these bear marks of later modification and additions.

As usual, the introduction of Christianity was the occasion and perhaps the cause of the compilation, and therefore from the time of the formation of Dioceses by King Olaf (A.D. 1066-93) ecclesiastical influence must be expected. But on the whole this Gulathing law presents in some points a far more interesting and instructive picture of social conditions resulting from tribal custom than the laws of other tribes already examined of much earlier date.

[Sidenote: The Frostathing law.]

The next important of the ancient laws of Norway is the _Frostathingslög_ belonging to the more northerly district of Drontheim. Without pretending to have made it the subject of special study, I have here and there found it useful in elucidation of the Gulathing law, and as showing that tribal custom, though with local variations, was in force over a wider district than that under the Gulathing law.

The question of the structure of tribal society and the division of classes in Norway may be most conveniently approached from the point of view of the _rett_ or ‘personal right,’ somewhat analogous to the Irish ‘honour-price’ and the Welsh ‘saraad.’

[Sidenote: Grades of personal ‘rett.’]

Both in the Gulathing law and in the Frostathing law this personal ‘rett’ lies at the root of the graduated payments for insults, wounding, and homicide. And the statements of it are practically identical in the two laws. They are as follows:--

_Gulathing_ (200) _Frostathing_ (X. 35)

Leysing before freedom’s ale 4 ores Leysing 6 ores Leysing after freedom’s ale 6 ores Leysing’s son 8 ” Leysing’s son 8 ores or 1 mark Bónde 12 ” Reks-thane[175] 12 ores Árborinn man[176] 16 ores or 2 marks Hauldman[177] 24 ” Hauldman 24 ores or 3 ” Lendman and Stallare 48 ”

The chief difference is that the Frostathing law divides the leysings into two classes, a significant point on which important considerations turn.

The things for which full rett was paid may be described as insults. If a man were knocked down, even if he fell on his knees, or if his moustache were ‘seized with hostile hand’ (195), or if a man were called ‘a mare or bitch,’ these were insults for which full rett was to be paid (196).

The payments for inflicting serious wounds (sár) were regulated in the same gradations according to rank as the rett, but were threefold in amount. These payments were made in ‘baugs’ or rings, each of twelve ores of silver.

_Gulathing Law_ (185) _Frostathing Law_ (IV. 53)

Leysing 1 ring Leysing’s son 2 rings Leysing 2 rings Bónde 3 ” Reks-thane 3 ” Ár-borinn man 4 ” Odal-born man[178] 6 ” Hauld 6 ” Lend-man and Stallare 12 ” Lend-man 12 ” Jarl 24 ” Jarl 24 ” King 48 ” King 48 ”

These were the penalties paid by the person inflicting the wound--_i.e._ _three times his own rett_--and besides this he had to pay _sár-bót_ according to the extent and character of the wound, as in other laws. He also had to pay the healing fee (185) of the injured person.

[Sidenote: The hauld or odal-man the typical tribesman.]

Passing from insults and wounds to homicide, throughout the Gulathing law the hauld, or odal-born man, is taken as the typical tribesman. His wergeld is described, and then the wergelds of other classes are said to vary according to the rett.

But before we consider the wergelds it must be remarked that here, as elsewhere, there is no wergeld for a murder within the family.

In clause 164 under the heading of ‘A madman’s manslaying’ is the following:[179]

Nu hever maðr óðz mannz víg vigit, vigr sunr faður, æða faðer sun, æða bróðer bróðor, æða systkin eitthvert, æða vigr barn móðor sína, æða móðer barn sitt, þá firi-vigr hann arve þeim er hann átti at taca. Scal sá þann arf taca er nestr er þá, oc helldr scal konongr hava en hann. En hann være í lande, oc gange til skrifta, oc have sitt allt.

Now if a man has done the slaying of a madman, if a son slays his father, or a father his son, or a brother his brother or any of his sisters and brothers, or a child slays its mother or a mother her child, then he forfeits the inheritance he ought to take. The one next to him in kin takes that inheritance, and the King shall have it rather than he. But he shall stay in the land and be shriven and keep all that is his.

[Sidenote: No wergeld within the family.]

In the Gulathing law the kindred within which there is no wergeld is thus the actual family, and it is in full accord with the instance in Beowulf in which the old father is represented as having to put up with the presence of a son by whose arrow another of his sons had been slain, such a crime being one which under tribal custom could not be avenged.

Turning now to the amount of the wergeld of the Gulathing law and the Frostathing law, it must again be remarked that there are in these laws varying accounts of it.

[Sidenote: The wergeld of the Frostathing law of later date awarded in marks of gold.]

In the first place there are some avowedly of later date than others. Thus, in Frostathing VI. 1 the description of the wergeld is commenced as follows:--

Her hefr upp oc segir í frá því er flestum er myrkt oc þyrftu þó marger at vita, fyrir því at vandræði vaxa manna á millum en þeir þverra er bæði höfðu til vit oc góðan vilja, hvesso scipta scylldi ákveðnum bótum ef þær ero dœmdar, fyrer því at þat er nú meiri siðr at ánemna bœtr, hvesso margar mercr gulls uppi sculu vera epter þann er af var tecinn, oc velldr þat at marger vito eigi hvat laga bót er, er þó at vissi, þá vilia nú fáer því una. En Frostoþings bóc scipter lagabót hveriom epter sínum burð oc metorði, en ecki hinum bótum er þeir ofsa eða vansa er í dómum sitia oc sáttmál gera.

Here begins and is told that which to most is dark and yet many had need to know, because difficult matters increase among men and those grow fewer who both had the wits and the goodwill for it,--how to divide the fixed _bóts_ (bœtr) if they are adjudged, _for it is now more the custom to fix the bóts, how many marks of gold_ shall be paid on account of him who was slain, and the cause of that is that many know not what the lawful _bót_ is, and though they knew it, few will now abide by it. _But the Frostathing book divides the lawful bót_ to every one according to his birth and rank, and not those _bóts_ (bœtr) which they that sit in courts and make terms of peace put too high or too low.

Here the writer clearly refers back to the ancient Frostathing book as the authority for the ‘lawful bót,’ but on examination he seems to add certain additional bóts which the courts now include in the round amount of so many gold marks awarded by them in each case as it comes before them.

The writer takes first the case of an award of six marks of gold and describes how it is to be divided, and then the case of five marks of gold, and so on.

[Sidenote: Division of it in silver marks at ratio of 1:8.]

The division is throughout made in _silver_ marks, ores, ortugs, and penningar. But when the items are added up, the total in silver divided at the ratio of 1:8 brings back the result as nearly as may be to the number of _gold marks_ from which the division started. Thus in the clause describing the division of the wergeld of six marks of gold, the silver items add up to 48 marks exactly, and the division of this by 8 brings back the amount to six marks of gold. And so in the clause dividing five marks of gold, the items seem to add up to one ortug only less than 40 silver marks, and again a division by 8 brings the amount sufficiently near to five marks of gold.

[Sidenote: The group of Bauga men. The other group of Nefgildi-men.]

In each case, however, the writer adheres to the same scheme of division. When he has 6 gold marks to divide he first assigns 18 silver marks to _Bauga_ men (_i.e._ the near group of kinsmen of male descent on the paternal side only), and then he adds half as much (_i.e._ 9 marks) to a group of _Nefgildi-men_[180] among whom are included, with others, kinsmen of descent through females on both paternal and maternal sides. So that these two groups of Bauga men and Nefgildi get 27 marks. In all cases he makes the group of Nefgildi receive only half the amount received by the Bauga group, the whole amount being reduced according to the number of gold marks to be divided. After the amount allowed to these two groups, the remainder is made up of additional payments some of which he expressly declares were not included under old law. Thus (in clause 6) he adds an amount which he says was ‘not found in the old Frostathing book’ and justifies it by saying that there would be danger to the slayer if it was not paid. And so again (in clause 9), there are additions for half-brothers, half-brothers’ sons, &c., of the same mother. And these additions are included in the six marks of gold ‘according to new law.’

Evidently, therefore, we must not take these wergelds of six and five marks of gold with their divisions as representing the ancient customary wergelds of this class or that in the social scale, but rather as showing the extent to which the system of wergelds had become somewhat arbitrarily expanded and elastic in later times. The total amount with additions was apparently increasing as time went on.

[Sidenote: Later statement in the Gulathing law.]

As in the Frostathing law so also in the Gulathing law (clause 316, p. 104) there is a statement of wergeld, avowedly of a late date and added under the name of _Biarne Marðarson_, who lived about A.D. 1223. And this, too, seems to belong to a time when the amount of the wergeld was awarded by some public authority in so many marks of gold. He takes the case of a wergeld of six marks of gold and shows how it ought to be divided; and then the case of a wergeld of five marks of gold and shows how that should be divided--‘What each shall take of five marks of gold’ and so on--just as was done by the writer in the Frostathing law.

One might have supposed from this that, as the method of awarding fixed amounts and the amounts to be divided in gold marks were the same, so the groups and the persons included in them would have corresponded also. But they differ considerably.

Biarne Marðarson up to a certain point follows the same scheme as the writer in the Frostathing.

In his division of six marks of gold he, too, draws a line at the amount of 27 marks, and he also divides this amount into thirds and gives two thirds to one group and one third to the other. The son of the slain and the brother of the slain form the first group and take 18 marks, and a second group take 9 marks, the two together taking 27 marks.

The group who together take 9 marks, like the Nefgildi-men of the Frostathing, embraces however by no means the same relatives as are included in the latter. The only persons included are the father’s brother and his children, _i.e._ first cousins or brœðrungs of the slain, but among them are included the sons of concubines and of female first cousins. And after the mention of these is the statement, ‘_All that these men take amounts to 27 marks and 2 aurar_.’ Out of the remainder of the 6 gold marks or 48 silver marks other relations take to the ‘fifth man’ on the male line and the sixth on the female line.

Biarne Marðarson seems, like the writer in the Frostathing law, to have had to some extent a free hand in the division. It is clear that there was much variety in the course adopted. Nor does he seem to have been by any means so systematic and accurate as the other writer. The silver amounts, when added up, do not so accurately correspond with the six gold marks to be divided.

[Sidenote: Earlier wergeld of the Gulathing law. In silver marks and cows.]

We turn, then, from these later statements to what seems likely to be an older statement of the Norse wergeld, viz. that which commences at clause 218 of the Gulathing law.

It describes the division of the wergeld of a ‘hauld’ or ‘odal-born’ man, and it begins with the explanation that the ‘mannsgiöld’ or wergeld decreases and increases from this as other retts.

It describes the various amounts both in silver marks and in cows, which the other statements do not, and this, so far as it goes, is a sign of antiquity.

In clause 223 is inserted a statement of the various things in which wergelds may be paid. The only item the value of which is given is the cow, which is to be taken at 2½ ores if not older than eight winters and if it be ‘whole as to horns and tail, eyes and teats, and in all its legs.’ And this silver value of the cow--2½ ores--is the one used in this older description of the wergeld.

The wergeld according to this statement consists of bauga payments and upnám payments. The first are received in three baugs or rings thus:--

[Sidenote: The 64 cows of the Bauga group.]

_Höfuð_ (head) _baug_, taken by the son and the father of the slain 10 marks or 32 cows.

_Bróður baug_, taken by brother, or if none, by the son of the slain 5 marks or 16 cows.

_Brœðrungs baug_ taken by the father’s brother’s son, _i.e._ first cousin of the slain 4 marks or 13 cows - ½ ore. -------- ------------------ 19 marks or 60 cows + 2 ores.

To this is added for women’s gifts, _i.e._ the mother, daughter, sister, and wife of the slain, or in default to the son of the slain 1 mark or 3 cows + ½ ore. -------- ------------------ Total 20 marks or 64 cows.

After this statement is the declaration, ‘Now all the baugs are counted.’

A clause is here interpolated changing the point of view so as to show how, and by whom on the slayer’s side the same three baugs were paid.

Nú scal vigande bœta syni hins dauða hafuðbaug.

(222) The slayer shall pay to the son of the dead the _höfuð baug_.

En bróðer viganda scal bœta brœðr hins dauða bróðor baug, ef hann er til, ellar scal vigande bœta.

The slayer’s brother (if he has one) shall pay to the brother of the dead the _bróður baug_; otherwise the slayer shall pay it.

Nú scal brœðrongr viganda bœta brœðrongi hins dauða brœðrongs baug, ef hann er til, ellar scal vigande bœta.

The brœðrung of the slayer (if he has one) shall pay to the brœðrung of the slain the _brœðrungs baug_; otherwise the slayer shall pay it.

Sá er sunr hins dauða er við giölldum tecr, hvárt sem hann er faðer æða bróðer, æða hvigi skylldr sem hann er.

He is [reckoned] the son of the dead who takes the giöld, whether he is father or brother or however he is related.

Then follows the declaration, ‘_Now the baugs are separated_’ (‘Nú ero baugar skildir’).

It seems clear, then, that the slayer was in the last resort responsible for the whole of these baug payments, as it was the son of the slain who would take any part of them lapsing through failure of the designated recipients.

[Sidenote: Women’s gifts.]

The small payments to the mother, daughter, sister, and wife included in the baug payments are evidently additional and exceptional payments in regard to close sympathy. The slayer does not make these payments. It is expressly stated that they are made ‘by the kinswomen of the slayer,’ but they are included in the even amount of 20 marks or 64 cows.

The recipients of the three baugs, it will be seen, were limited to the nearest relatives on the _paternal_ side--fathers, sons, brothers, and first cousins--with no descent through females, while the recipients in the next set of groups or ‘upnáms’ include also relations through females: but, again, _only males receive_.

There is, however, one exception. In clause 231 is the following:--

Nú ero konor þær allar er sunu eigu til sakar, oc systr barnbærar. þá scal þeim öllum telia söc iamna, til þær ero fertogar.

All those women who have sons are in the _sök_ (suit), and sisters capable of bearing sons. They shall all be held to have an equal part in it till they are forty.

Evidently they partake, as under Cymric custom, only in respect of possible sons who if born would partake themselves. Indeed, the sons only appear in the list of receivers and in no case the mother, except among the women’s gifts included as above in the baug payments.

[Sidenote: The upnám group includes descendants of great-grandparents.]

Clause 224 describes the upnám set of recipients as under. It will be seen that they include descendants of great-grandparents, but no more distant relations.

‘Sac-tal of upnáms or groups _outside bauga men_.’

_1st upnám._ { Father’s brother (_i.e._ uncle). The slain person’s { Brother’s son. { Mother’s father. { Daughter’s son.

Each gets a mark from the slayer if a hauld be slain; and this amounts to _4 marks_.

_2nd upnám._ { Father’s brother’s son (_brœðrung_). { Brother’s daughter’s son. The slain person’s { Mother’s brother. { Sister’s son. { _Systling_ (? Father’s sister’s son).

Each gets 6 ores from the slayer if a hauld be slain; and this amounts to _3 marks 6 ores_.

_3rd upnám._ { Mother’s sister’s son (_systrung_). { Brœðrung’s child. { Father’s brœðrung. { Mother’s mother’s brother. { Sister’s daughter’s son.

They get half a mark from the slayer if a hauld be slain (probably ½ mark each): _i.e._ _2 marks 4 ores_, making the total of upnáms _10 marks 2 ores_.

[Sidenote: Total wergeld 30 marks or 96 cows.]

Then follows the declaration, ‘_Now all the upnám men are counted._’

If we add up the amount of the two sets of payments the result will be as follows:--

The three _bauga_ payments of near relatives, with addition of women’s gifts 20 marks or 64 cows.

The _upnám_ payments within descendants of paternal and maternal great-grandparents 10 marks 2 ores or 32⅘ cows. --------------- --------- 30 marks 2 ores or 96⅘ cows.

As in the Frostathing law the _nefgildi-men_ took as a group an amount equal to one half the amount of the bauga group, so here the _upnám_ men do the same. Evidently this is the intention.

[Sidenote: Wergeld of the hauld at 1:8 200 gold solidi, or roundly, 100 cows.]

Now if we may take the bauga payments and the upnám payments as representing in intention 30 silver marks or 96 cows, then, at a ratio of 1:8, the 30 silver marks equalled, in wheat-grains, exactly 200 Merovingian gold solidi.[181] And this may have been the ancient wergeld of the hauld.

There is, however, in clause 235 a further payment mentioned extending ‘to the fifteenth degree of kinship’ and amounting to about 1 mark and 3 ores. Possibly (though I hardly think it likely) this formed a part of the original wergeld, and if it be added, it would increase the wergeld to 31 marks, 5 ores, and at 2½ ores to the cow the wergeld would be increased to 101⅕ cows. If we might take this as roughly aiming at the round number of 32 marks and 100 cows, the wergeld of the hauld would be, at the ratio of 1:8, four gold marks or 100 cows: _i.e._ in actual weight the heavy gold mina of 32 Roman ounces, which under Greek usage was divided into 100 staters or ox-units. The confusion between 96 and 100 cows is so likely a result of the application of Roman methods to the division of the mina that we need not regard it. That the one or the other of these amounts may have been the original wergeld of the hauld representing originally 100 cows is consistent at least with widely spread tribal usage.

This view is confirmed by the fact that the further payments mentioned in the Gulathing are distinctly abnormal ones, and so presumably added at a later date like those mentioned in the Frostathing law.

We are justified in so considering them, because in the laws themselves the persons to whom they were made are expressly called _Sak-aukar_, or ‘additional persons in the sak or suit.’ And when we examine them further we find that they were hardly likely to have been included among the original recipients of the wergeld.

Among those of clause 236 are the thrallborn brother and thrallborn son of the slain, and the half-brother by the same mother; and clause 239 extends the number to the son-in-law, brother-in-law, stepfather, stepson, oath brothers, and foster brothers. Evidently in these exceptional cases the rules of strict blood relationship have been broken away from, and additions have been made to the normal wergeld to stay the vengeance of persons sufficiently nearly connected in other ways to make them dangerous if left unappeased.

It was probably these additional payments, added from time to time in contravention of the strict rules of blood relationship, which caused the uncertainty of the later laws, and led to the new system of awarding a round number of gold marks as the total wergeld, included in which were additions intended to meet the introduction of half-blood and foster relations and others the risk of whose vengeance it seemed needful apparently in later times to buy off.

Returning, then, to the original wergeld of the hauld without these additions, we have seen that it consisted of two sets of payments, bauga payments and upnám payments, and possibly the small addition of those of more distant relations.

Now in the Gulathing law there are two other descriptions of the amount of the bauga payment, and it will be useful to examine them.

[Sidenote: Another statement makes the bauga men pay 18 marks.]

The first is to be found in clauses 179 and 180.

In clause 179 the payment for cutting off a hand or foot and for striking out an eye is said to be a half ‘giöld,’ and it is added:--

En ef allt er af einum manni höggvit hönd oc fótr, þá er sá verri livande en dauðr; scal giallda sem dauðr sé.

But if both hand and foot be cut off the same man, he is worse living than dead, and is to be paid for as if he were dead.

And then in the next clause, under the heading ‘_About Giöld_,’ is the following:--

Nú ero giölld töld í Gula; giallda haulld xviii mörcom lögeyris. Nú scolo þeðan giölld vaxa oc svá þverra sem rétter aðrer.

Now shall be told payments in Gula. A _hauld_ shall be paid for with 18 marks of lawful aurar. Starting from this, the payments shall increase or decrease as other retts.

Now it would seem that this payment for the death of a hauld was not the whole wergeld but only the _bauga_ part of it. No details even of the bauga payments of eighteen marks are given in this clause. It seems to be inserted in this place simply with reference to the full limit of payments for injuries. Liability for wounding, under Cymric custom, was confined to the kinsmen of the gwely, and so it may well be that under Norse custom it was confined to the bauga group.

But the amount in this clause is only eighteen marks, while that of the bauga payments of the wergeld we have just been considering, as probably the earlier one, was twenty marks. How is this to be accounted for? The answer surely must be that eighteen marks of Charlemagne, reckoned in wheat-grains, were exactly equal to twenty of the Roman or Merovingian marks of the earlier period.

[Sidenote: Another detailed statement makes the bauga payment 18 or 20 marks.]

The other statement alluded to is also a statement avowedly of the bauga payments, and begins with almost the same words, ‘Now the giöld for the hauld shall be told.’ In this case the details are given and the detailed payments add up between eighteen and nineteen marks, and yet the total is given as a little more than twenty marks.

This statement differs from the older one in its divisions, but it has an air of antiquity and reality about it which suggests that it may represent a local custom actually in force. Little touches of picturesque detail seem to bring it into contact with actual life, and to show how local custom might work out a common object by its own peculiar method.

It meets us abruptly in clause 243 under the heading ‘_On baugar_,’ and commences thus:--

Now the giöld for the hauld shall be told-- 6 marks (of 12 ells to the ore) in the _head-baug_, 4 marks in the _brother’s-baug_, 2½ marks in the _brœðrung’s baug_.

It then introduces quite another element, viz. the _tryggva-kaup_ (truce-buying).

Nú scolo fylgia tvau tryggva kaup baugi hverium.

Two tryggva-kaup shall go with every baug.

hvert scal eyrir oc fimtungr eyris tryggva kaup.

Each tryggva-kaup shall be 1⅕ ore.

En tryggva kaup scal fara bauga manna í mellom.

Tryggva-kaup shall go between _bauga-men_.

In the next clause it is explained that this ‘peace-price’ (_sættar-kaup_) is paid when the kinsmen come together to make peace, and that three marks are also paid as _skógar-kaup_--‘forest price,’ _i.e._ payment to release the slayer from being a _skógar-maðr_, or outlaw living in the forest.

The slayer pays a _baug_ to the son of the dead, and two _truce-prices_, one to the brother and the other to the ‘_brœðrung_’ of the dead. And the slayer’s brother pays a _baug_ to the brother of the slain and again two truce-prices, one to the son of the slain and the other to the _brœðrung_ of the slain. And the _brœðrung_ of the slayer pays a _baug_ to the _brœðrung_ of the slain and again two ‘truce-prices,’ one to the son and the other to the brother of the slain. All this is for peace-buying (_sættar-kaup_) when the kinsmen are met together to make peace.

Then, in clause 245, the women’s gifts are described. The slayer, his mother, his daughter, and his wife each give a gift of 1⅕ ore to the wife, mother, and daughter of the slain--making twelve gifts. The sister of the slayer gives a half gift to the sister, wife, daughter, and mother of the slain (two gifts), and the slayer, his mother, wife, and daughter, each give a half gift to the sister of the slain, making the number of women’s gifts sixteen in all.

The amounts thus stated add up as follows:--

Baug payments 12 marks 4 ores 6 truce payments -- 7⅕ ” Forest price 3 ” -- 16 women’s gifts 2 ” 3⅕ ” ------------------- 18 marks 6⅖ ores

The amount aimed at seems to be 18 marks (the upnám payments being 9 marks), and yet the total is stated as follows:--

Now with _baugar_ and with _tryggvakaup_ and _skógar-kaup_ and women’s gifts it is 20 marks and 2⅖ ores.

Absolute accuracy need not be expected, but there must be a reason for the difference between eighteen and twenty marks--between the detailed payments and the total--and it is difficult to suggest any other than the one already mentioned.

The total amount of the bauga payments seems to be the same in this as in the other statement, but a new element is introduced with an obvious and interesting object.

The bauga-men, as before, consist of three groups. The slayer pays the _baug_ to the son of the slain and appeases the other two groups by payment to each of them of a truce-price, so that to all the three bauga groups of the relations of the slain he has acknowledged his wrong and desire to make composition. And so in each case the representative of the other two groups of slayer’s relations pay the _baug_ to the corresponding group of the relatives of the slain and a truce-price to the other two, so that no relation of the slain could after this point to any individual as not having joined in the payment to himself or his group.

The women most deeply concerned on both sides are also present at the gathering. And each of those connected with the slayer is prepared with her gift of 1⅕ ore for the corresponding relative of the person slain.

Women’s gifts were included in the bauga payments in the other statement also.

The clauses relating to the bauga payments are followed by three others, headed ‘On saker,’ and the further recipients of wergeld, as before, seem to be divided into _upnáms_ and _sakaukar_, but in this case there is a strange mixture of the two. The mother’s brother and the sister’s son are excluded from the upnáms to make way for the half-brother by the same mother of the thrallborn son.

Clause 246, ‘On saker,’ gives twelve ores to each of the following, who in clause 250 are called _upnám_ men.

Father’s brother 12 ores Brother’s son 12 ” Brother by the same mother 12 ” Thrallborn son 12 ” Daughter’s son 12 ” Mother’s father 12 ” ------- 72 ores = 9 marks.

So that the bauga and upnám payments--two thirds and one third--added together once more make a normal wergeld of twenty-seven marks, that is, thirty of the Merovingian standard.

Then clause 247, ‘Further on saker,’ gives to--

Mother’s brother 9 ores Sister’s son 9 ” Thrallborn brother 9 ” Father’s sister’s son 6 ”

[Sidenote: The whole wergeld 2 marks of _nova moneta_ or 30 Roman marks.]

And in clause 248 ‘further on saker,’ a thrallborn father’s brother and a thrallborn daughter’s son by a kinborn father, take each a mark.

The traditional wergeld seems, therefore, once more to be 27 marks of Charlemagne or 30 Merovingian marks, and the additional payments appear to be _sakaukar_. But the upnám group in this case includes the brother by the same mother and the thrallborn son, leaving outside as sakaukar the mother’s brother and the sister’s son and the father’s sister’s son along with the thrallborn brother.

[Sidenote: Payments to outsiders additional to secure safety, and varied locally.]

It is not within the scope of this inquiry to attempt either to explain, or to explain away as of no moment, the variations in the persons included under the various schemes in the groups of bauga and nefgildi or upnám men. Even such a question as that of the exclusion from the upnám group of the mother’s brother and the sister’s son, to make way for the illegitimate half-brother and thrallborn son, is not necessarily to be disposed of as a later alteration in favour of those of illegitimate birth. For the Cymric precedent might well lead us to an opposite conclusion, inasmuch as in the laws of Howell, in spite of strong ecclesiastical opposition, the ancient pagan custom of admitting illegitimate sons to share in the father’s inheritance was defended and retained as too fully established to be given up.[182] Looked at from the point of view of the feud, they were naturally more on the spot and therefore of much more moment than the mother’s brother or the sister’s son.

Professor Vinogradoff[183] has suggested that the evidence of Norse and Icelandic wergelds seems to point to an original organised group of agnates who were bauga men and formed the kernel of the kindred liable for wergeld as contrasted with after additions of relations on both paternal and maternal sides and others more or less nearly concerned. The Cymric precedent would lead us to expect to find thrallborn sons as well as legitimate sons among the bauga men without any special mention as such. Under Christian influences they may have been excluded from this group to find a place ultimately, sometimes with special mention, in the upnám group.

It may or may not have been so, according to the stage of moral growth arrived at in the particular case of this tribe or that, at the particular period in question. Hence, although under Norse custom the amount of the normal wergeld of the hauld may have been constant, the way in which it was divided and the group responsible for its payment may well have varied from time to time and in different districts.

It has already been noticed that even under the later methods of awarding as wergeld an even number of gold marks, both the Gulathing and the Frostathing laws, in the case of the award of 6 marks of gold, draw a line, the one at 18 and 27 marks and the other at 20 and 30 marks, as though these amounts had a strong traditional sanction. Even in the case of the lower awards the scheme of division being the same with proportionately lessened figures, this portion of the wergeld was always divided into two thirds of bauga payments and one third of nefgildi or upnám payments. This seems to be strong evidence that, although the persons forming the groups may have differed, the two groups formed originally an inner and an outer kernel of the wergeld proper, the additions to which may fairly be regarded as sakaukar.

The repetition of evidence in both laws that the bauga payment of two thirds was followed by another third of nefgildi or upnám payments, when connected with the further fact that the two together made an amount which was, at the value of the cow stated in the laws, equated with 96 or 100 cows, seems to confirm the hypothesis that in this amount we have the normal wergeld of the hauld. To Professor Vinogradoff’s suggestion that the bauga payments may have formed an original inner kernel of the wergeld we may therefore perhaps add that the nefgildi and upnám payments may have formed an outer shell of the kernel, and that both may have been included in the original normal wergeld of 96 or 100 cows.

[Sidenote: Wergelds of the several grades of social rank.]

Finally, if this may fairly be taken to be the wergeld of the hauld, then, recurring to the repeated statement in the Gulathing law that the wergeld of the hauld being told, the wergelds of others ‘varied according to the rett,’ the wergelds of the several classes in Norse social rank may, it would seem, with fair probability be stated as follows:--

+-----------------------------+-----------+-----------+----------+ | | Rett in |Wergeld in |Wergeld in| | -- |silver ores|silver ores| cows | +-----------------------------+-----------+-----------+----------+ | Leysing before freedom ale | 4 | 40 | | | ” after ” ” | 6 | 60 | 24 or 25 | | Leysing’s son | 8 | 80 | 32 | | Bónde | 12 | 120 | 48 or 50 | | Ár-borinn or Ættborinn-man | 16 | 160 | 64 | | Hauld or Odal-born | 24 | 240 | 96 or 100| +-----------------------------+-----------+-----------+----------+

The significance of these gradations in the retts and wergelds of Norse tribal society will become apparent in our next section.

III. THE GRADATIONS OF SOCIAL RANK DISCLOSED BY THE WERGELDS ETC.

We are now able to devote attention to the interesting question of the gradations in social rank under Norse tribal custom. And we are fortunate to have the guidance of Dr. Konrad von Maurer’s valuable paper written in 1878 and entitled ‘Die Freigelassenen nach altnorwegischem Rechte.’

[Sidenote: Grades of social rank in the churchyard.]

Although tribal custom, viewed as we view it after the acceptance of Christianity, may not be altogether what it was originally in its actual working, yet still it is worth while to seek for the principles underlying the separating lines between social conditions as revealed in the laws. So far as they can be discovered, they are sure to be instructive, for they cannot have been the result of the sudden change in religion. Their roots at any rate go far back into tribal custom, however much, as in other cases, the Church may have adopted and modified what it could not eradicate.

The hard lines of distinction between social classes were kept up even in the churchyard.

Kirkiu garðe er skipt í fiórðonga til griæftar. Skall grafua lænda menn austan at kirkiu oc í landsuðr undir vxa [_v.r._ upsa] dropa, ef þæir æigu lut í kirkiu giærð. En ef þæir æigu æigi lut í kirkiu giærð, þá skullu þæir liggia í bónda legho, þá skall grafua hauldzmen oc þæira börn.

The churchyard is divided into four quarters for burial. Lendmen shall be buried to the east and south-east of the church, under the eaves-drop, if they have taken part in the building of the church. But if they have not done that, they shall lie in the burial place of a _bónde_. Next to them shall be buried _haulds_ and their children.

En nest kirkiu garðe, þá skall grafua hión manz, oc þá menn er rekner ero at siofuar strandu oc hafua hárskurði norœna. En ef maðr læggær man í frials-giæfua lego, sæckr vj aurum. En ef maðr græfuer frials-giæfua í lœysinga lego, sæckr xij aurum. Græfuer lœysingia í hauldmanz lego, sæckr iij mörkum.

And next to the churchyard wall shall be buried the servants (thralls) of a man, and those who are cast upon the sea shore and whose hair is cut in the Norwegian manner. If a man buries a thrall in the burying-place of a frialsgiaf, he is liable to pay 6 aurar. If a man buries a frialsgiaf in the burial-place of a leysing, he is liable to pay 12 aurar. If he buries a leysing in the burial-place of a hauld, he is liable to pay three marks. (Borgarthing law 13.)

[Sidenote: The two classes of leysings or freedmen before and after making ‘freedom ale.’]

Referring to the gradations of _rett_, it will be seen that there are apparently two classes of leysings, whose social condition was next above the thrall at the bottom of the ladder.

This was first made clear by Konrad von Maurer. The thrall who by purchase or by gift had been made a ‘freedman’ (frials-giafi) had only taken the first step towards even that limited amount of freedom which belonged to the leysing. Another step had to be made good before he became a full leysing. And the step was accomplished by the ceremony of ‘making his freedom ale.’

The leysing before ‘making his freedom ale’ was still so far the property of his master that his children did not inherit his goods. They belonged to his master.

Nú ero brœðr tveir fœdder upp ánauðgir at eins mannz, oc ero þeir bæðe brœðr oc fostbrœðr, oc leysasc þeir undan drótne sínum, oc firrasc eigi fóstr, eigu saman verc oc orco, þá kemr hvartveggia þeirra til annars arfs. Börn þeirra koma eigi til, nema þeir geri frælsis öl sitt.

If two brothers are brought up as thralls at one man’s house, and are both brothers and foster brothers, and they are freed by their master and continue in fosterage, and have their work and employment together, then either of them inherits from the other. _Their children do not inherit from them unless they make their freedom ale._ (Gulathing, 65.)

This passage shows that the link of blood-relationship between two brothers and foster brothers, by reason of their being fostered together, in the case of thralls was recognised before that between parent and child. It was the fosterage in this case which had forged the link. Blood-relationship in thraldom counted for nothing.

[Sidenote: The ‘making a freedom ale,’ first step to freedom.]

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

Nú vill leysingi ráða kaupum sínum oc kvánföngum, þá scal hann gera frælsis öl sitt, þriggja sálda öl hit minzta, oc bióða skapdrótne hans til með váttom, oc bióða eigi sökunautum hans til, ok sissa hánom í öndvege, oc leggia .vi. aura í skáler hinn fysta eftan, oc bióða hánom leysings aura. Nu ef hann tecr við, þá er vel. En ef hann gefr upp, þá er sem golldet sé.

(Gulathing law 62.) If a leysing wishes to have control of his bargains and his marriage, he shall make his freedom ale out of at least 3 sievefuls of malt and invite his master to it, in the hearing of witnesses, and not invite his master’s foes, and seat him in the high seat, and lay 6 aurar in the scales the first evening [of the banquet], and offer him the ‘leysing’s fee.’ If he takes it, that is well. If he remits the sum, it is as if it had been paid.

Ef þræll kemr á iörð eða býr, þá scal hann gera frelsis öl sitt, hverr maðr níu mæla öl, oc scera á veðr. Ætborinn maðr scal höfuð afscera, en scapdróttinn hans scal taca hálslausn af hálse honum. Nú vill scapdróttinn hans leyfa honum at gera frelsis öl sitt, þá scal hann beiða hann með vátta .ii. at hann megi gera frelsis öl sitt, oc bióða honum með .v. (fimta) mann til öldrs þess er hann gerir frelsis öl sitt […] þá scal hann þó gera, oc láta öndvegi hans oc cono hans kyrt liggia.

(Frostathing law IX. 12.) If a thrall takes up land or sets up house, he shall make his freedom ale, every man of 9 mælar [= 1½ sievefuls of malt], and kill a wether. A freeborn man shall cut off its head, and his master shall take the ‘neck-release’ off his neck. If his master will allow him to make his freedom ale, he shall ask his leave to make it, in the hearing of two witnesses, and invite him and four with him to his freedom ale. [If they do not come] yet he shall make the ale and let the high seat for his master and his master’s wife stand empty.

A master might dispense with this formality. He might take his thrall to church, or ‘seat him on the kist,’ and if then he proceeded formally to ‘free him from all debts and dues’ the leysing need not ‘make his freedom ale.’ (G. 61.)

[Sidenote: Social status of the leysing.]

Now let us see what change in social position and rights the ceremony of ‘making freedom ale’ or its substitute produced.

The leysing was still unfree in the sense that he could not leave his master. The following is from the Gulathing law (67).

Nú ferr leysingi ór fylki firi útan ráð dróttins síns, oc aflar sér þar fiár æða kaupa, þá scal scapdróttenn fara efter með vátta. Ef hann vill aftr fara, þá er vel. En ef hann vill eigi aptr fara, þá leiði hann vitni á hönd hánom at hann er leysingi hanns, oc fœri hann aptr hvárt sem hann vill lausan æða bundinn, oc setia hann í sess hinn sama, þar sem hann var fyrr.

Now a leysing leaves the district without the advice [or will] of his master, and earns property or concludes bargains; then his master shall go after him with witnesses. If he is willing to come back, that is well. If he is not willing, he [the master] shall call witnesses that he is his leysing, and bring him back, fettered or unfettered, as he likes, and set him in the same seat that he had formerly.

But, on the other side, the master might not sell even a thrall ‘out of the land’ (F. XI. 20); so that probably he could not turn his leysing adrift at his pleasure.

The leysing remained under _thyrmsl_ towards his master, or obligations involving personal loyalty and duty, and upon any breach of these, he could be put back into thraldom.

En ef hann gerer einnhvern lut þeirra, þa scal hann fara aftr í sess hinn sama er hann var fyrr, oc leysasc þeðan verðaurum. Fé sínu hever hann oc firigort.

Should he make himself guilty of any of these things, he shall go back to the seat in which he sat formerly, and buy himself free out of it with money to his value. And his property is forfeited. (G. 66.)

[Sidenote: The leysing must now keep his children.]

The reason assigned in a clause above quoted for the desire to ‘make freedom ale’ was that the leysing might ‘have control of his bargains and his marriage.’ He gained, therefore, both as regards property and also in family rights.

In Gulathing law (63) is described what happened on his marriage. If he marries a kin-born (_ætt-borin_) woman, and they afterwards separate, all the children go with her. He, not being kin-born, has no kindred. She being kin-born, her kindred have rights over her and obligations as to her children.

En ef hon verðr fyrr dauð, þá scolo börn öll hverva til faður síns aftr, oc eta fé hans meðan þat er til; en þá er þat er allt etet, þá scolu börn öll aftr hverva í hit betra kyn, en hann undir scapdrótten sínn.

If she die first, all the children shall go back to their father, and eat his property so long as it lasts, and after it is all eaten up, all the children shall go back to the better kin, _and he back to his master_.

If one leysing marries another, and both father and mother have made their freedom ale, the children of the marriage inherit from both. This is the beginning of the rights to inherit. But it is accompanied by the obligation to keep the children, who are no longer thralls of the master but leysings like their parents.

What happens, then, if the parents fall into poverty and cannot keep their children? Is the master to keep them or are they to starve?

En ef þau verða at þrotom, þá ero þat grafgangsmenn. Scal grava gröf í kirkiugarðe, oc setia þau þar í, oc láta þar deyia. Take skapdróttenn þat ór er lengst livir, oc fœðe þat síðan.

(63) If they come to extreme want, they are _grafgangsmenn_. A grave shall be dug in the churchyard, and they shall be put into it and left to die there. The master shall take out the one who lives the longest, and feed that one thereafter.[184]

But it is not all leysing families which come to this gruesome pass. It may be presumed that the leysing who had ‘made his freedom ale’ and married and could make his own bargains and keep what property he and his wife could accumulate was mostly prosperous.

[Sidenote: Children could inherit from him, but no other kin.]

In clause 106 the rules as to ‘leysing inheritance’ are described. If the leysing who ‘made his freedom ale’ afterwards had children they could inherit. But he had no other kin who could inherit: so if he died childless the master took the property. As generation after generation passed and a wider kindred was formed, any one of his (the leysing’s) kin took in preference to the master and his descendants. But the rights or chances of inheritance on the side of the master’s family did not cease for nine generations from the first leysing who had ‘made his freedom ale.’ So that if a leysing even of the eighth generation died without kin the inheritance in this extreme case went to the descendants of the master of the first leysing ‘to the ninth knee’ rather than pass by failure of kin to the king.

Leysings erfð … scal taca til niunda knés, fyrr en undir konong gange. Ðegar leysings sun tecr efter faður sínn, þá take hverr efter annan. Nú verðr þar aldauða arfr í leysings kyni, oc er engi sá maðr er þar er í erfða tale við hann er andaðr er ór leysings kyninu, þá scal hinn er ór skapdróttens kvísl er, taca til níunda knés fyrr en undir konong gange, þó at sá sé hinn átte er andaðr er frá leysingjanom.

(G. c. 106.) A leysing’s inheritance shall be taken to the ninth knee before it falls to the king. When a leysing’s son takes after his father, then let one take after the other. If in a leysing’s kin there comes to be an ‘all-dead’ inheritance, and no one has inheritance-right after the deceased man of the leysing’s kin, then one of his master’s kin shall take to the ninth knee before it falls to the king, even though the deceased man be the eighth from the leysing.

[Sidenote: Further steps into freedom at stages of three generations.]

Thus we seem to see the family of the leysing who had ‘made his freedom ale’ gradually growing up into a kindred in successive stages until in the ninth generation a kindred of leysings had been fully formed and might be very numerous.

In the corresponding clause in the Frostathing law (IX. 11) further details are mentioned. If not previously purchased by agreement with the master, the ‘_thyrmsl_’ came to an end after four generations: that is, the fifth generation was free from them. They lasted, therefore, over the first four generations from the original leysing to his great-grandchildren. For these four generations the leysing and his descendants were the leysings of the master and his descendants.

[Sidenote: At the ninth generation the lordship over them ceases.]

Then the clause goes on to show that the first leysing having ‘made his freedom ale’ shall take inheritance only of his son and daughter, and of his own freedman. The sons of this leysing take inheritance from six persons, viz. father, mother, sons, daughters, brothers, sisters, and, seventhly, from any freedman of their own.

Svá scal sunr leysingia taca oc sunarsunr oc þess sunr … oc svá dóttir oc systir sem sunr oc bróðir, ef þeir ero eigi til. Oc svá scal hvárt þeirra hyggia fyrir öðru.

So shall the son of a leysing take, and his son’s son [grandson] and _his_ son [great-grandson] … and daughter and sister like son and brother, if there are none of these. Each _of these shall provide for the other_.

Failing these leysing claimants, the inheritance rights revert to the master to the ninth knee, and, it is added, ‘_also providing for these if needed_.’

[Sidenote: Analogy of the Cymric gwely.]

There is here something very much like the Cymric gwely or family of descendants of a great-grandfather with rights of maintenance under the rules of ‘_tir gwelyauc_’ and mutual liability. Until a kindred has been formed the master’s obligation to provide for the leysing remains, and it does not cease altogether until the kindred is complete. In the meantime as the kindred is formed its members are mutually liable for each other’s maintenance. In this respect within the group of descendants of a great-grandfather there is solidarity for maintenance as well as wergeld.

[Sidenote: The lordship over them ceases when a full kindred is formed.]

We are dealing evidently here with a family of leysings growing into a kindred, as under Cymric custom the family of the Aillt and Alltud grew into a kindred. During all these four generations the family were leysings with a _rett_ of six ores. But the fifth generation seems to rise into a second grade of social rank and to attain the rank of ‘_leysings’ sons_’ with a _rett_ of eight ores. And further in another four generations, those of the ninth generation again rise in social rank and seem to become _árborinn_ or _ættborinn_ men, _i.e._ _men born in a kindred_, with a _rett_ of sixteen ores. They can now boast of a full leysing kindred. Their father, grandfather, and great-grandfather were born in a kindred, and they have now full rights of inheritance. The master and his descendants have no further hold on them or obligation for their maintenance. Any lapsed inheritance now goes direct to the king.

The _árborinn_ or _ættborinn_ man, therefore, seems at last, at the moment when a full kindred of his own has risen up to swear for him and protect him by feud or wergeld, to have become clear from any claims on the master’s side. And accordingly if any claim be set up he has to prove his freedom by witnesses ‘that he can count four of his forefathers as _árborinn_ men and himself the fifth.’ That is, he shows that his great-grandfather was a man with an _ætt_ or kindred. If he can prove this he is free from any claim in regard to his leysing descent.

En ef sá callaz árborinn er fyrir söc verðr, þá teli hann fióra langfeðr sína til árborinna manna, en siálfr hann hinn fimta, oc hafi til þess .ii. búanda vitni árborinna. En ef hann er svá liðlauss at hann fær þat eigi, oc hefir þó þessa vörn fyrir sér, þá sanni ætt sína árborna með guðscírslum. En ef hann verðr scírr með iárne eða vitnisburð, þá gialldi hinn honum fulrétti, en biscopi eiða sect. En ef hann fær sic eigi scírt, þá hefir hann fyrirgort fé sínu öllu við scapdróttin, oc liggia á .iii. mercr sylfrmetnar, nema hann launi af sér. Oc svá um vánar mann.

(Frostathing, IX. 10.) But if the accused calls himself _árborinn_ _let him reckon up four of his forefathers as árborinn men_, he being the fifth himself, and have for it the evidence of two árborinn householders. But if he is so supportless that he does not get this, and yet sets up this defence [viz. that he is árborinn], then he shall prove his kin to be árborinn by ordeal. And if he is cleared by iron or evidence, the other shall pay him full atonement, and to the bishop an oath fine. If he cannot clear himself, he has forfeited all his property to his master, and is liable to pay three marks in silver, unless he work it off. The same applies to a _vánar mann_ [man of hope, _i.e._ the higher class of leysing].

So far the conclusions drawn from the laws respecting the leysing do not vary much from the views expounded by Dr. Konrad von Maurer in his ‘Die Freigelassenen nach altnorwegischem Rechte,’ and confirmed by so great an authority they can hardly have wandered very far from the truth.

The theory of this gradual growth of the kindred of the leysing is so nearly analogous to that of the Cymric alltud, and the Irish fuidhir, and at the same time so logical, when the tribal theory of blood-relationship is applied to it, that we cannot be dealing with the fanciful theory of legal enthusiasts which never had an actual place in practical life. Behind all this imperfect description, in the laws, of social conditions and landholding there was, no doubt, a reality, the features of which may be difficult to grasp from our modern point of view, but which become, I think, fairly intelligible when approached from a tribal point of view.

[Sidenote: The leysings have become a family group, and the descendants of the master also.]

When we consider that in the course of the successive generations, during which some kind of shadowy lordship seems to have prevailed over the family of leysings, they must generally have multiplied into considerable numbers, and that the descendants of the master of the leysing ‘who made freedom ale’ must during the same period also have multiplied; and further when we consider that the descendants of the leysing were in some sense, it would seem, _adscripti glebæ_, we have to recognise not merely a relation between individuals but something approaching to a relation between two classes, tribesmen and non-tribesmen, the one in some sense in a kind of servitude to the other. In other words, we have to conceive of a kindred of half-free tenants, living under the joint shadowy lordship of a kindred of fully-free men, probably in some tribal sense landowners, with complicated tribal rights among themselves.

It would seem that this semi-subject class of leysings were mostly the descendants of a class of thralls, it may be perhaps in origin some conquered race, members of which had gradually grown into leysings and were now gradually in successive stages growing into freemen.

Before we can fully understand this process we must examine the other side of the question and learn what was the position of the fully-free class by whom this more or less shadowy lordship over the leysing class was exercised. In the meantime it may be remarked that the shadowy lordship of one class or tribe over another finds parallels enough in Indian experience, and that, coming nearer home, we have only to remember the petty exactions of the cadets of French noble families upon a peasantry over whom their family, or the feudal head of it, held a quasi-manorial lordship.

IV. THE CLASSES OF FREE MEN AND THEIR RELATION TO LAND.

[Sidenote: The odalman or hauld.]

Following again the clue of the statements of the ‘personal right’ of the different classes, and commencing with the _bónde_ or ordinary freeman settled upon land and presumably having in some sense, as in Wales, originally tribal rights to share in the land or its use, the next class which claims attention above the bónde is the _odalman_ or odalborn man or hauld, whose wergeld of 96 or 100 cows was taken as that of the full and typical freeman.

Now, in the Frostathing law there is a statement as follows:--

Engum manni verðr iörð at óðali fyrr en .iij. langfeðr hafa átt, oc kemr undir hinn .iiij. samfleytt.

(XII. 4.) No man’s land becomes an odal to him until _three forefathers_ have owned it and it falls to the fourth in unbroken succession.

And again in the Gulathing law is the following:--

Nu scal þær iarðer telia er óðrlom scolo fylgia. Sú er ein er ave hever ava leift.

(270.) Now shall the lands be told that are odal. The first is the one which _grandfather_ has left to _grandfather_.

[Sidenote: His grandfather’s grandfather had the land.]

The odalborn man inherits land from his grandfather’s grandfather. The son of an odalman who claims odal as odal by inheritance counts four or five forefathers who had the land before him.

In Gulathing law c. 266 is a description of the mode of settling a claim as to land. It describes the sitting of the open-air court, from which both bauggildsmen and nefgildsmen and relations by marriage of the claimant are excluded as ineligible, the calling of witnesses all to be odalborn men of the same fylki as that in which the land lies, and so on. The validity of the claim is made to rest according to this statement upon the ability to count up _five forefathers who have possessed that land, while the sixth possessed it both by ownership and by odal_.

Þeir scolo telia til langfeðra sinna .v. er átt hava, en sá hinn sétti er bæðe átte at eign oc at óðrle.

(266.) They [the men who claim odal] shall count five of their forefathers who have owned [the land] and the sixth having it both in ownership and odal.

[Sidenote: The odalmen were of full kindred on the land.]

If, then, at the time of the laws we look at the class of landowners who were prominent as odalmen or haulds--typical men with wergelds originally of 100 cows--they were not only men of full _kindred_ whose full pedigree of freedom went back the necessary nine generations, but their grandfather’s grandfather must have possessed the land. The sixth generation of owners were the first to hold land _both in ownership and odal_.

The steps in the rank of Norse aristocracy were marked, therefore, as in the case of the more dependent class, by the number of the generations of ancestors through whom they could claim their landed rights.

[Sidenote: The odal land was held by a family and subject to family divisions.]

Nor in the case of the odalborn man any more than in the case of the leysing must we look upon the odalman or hauld merely as a detached individual landowner owning his own separate estate like a modern country squire. Such a conception would be far indeed from the truth. It must be remembered that holdings in odal were subject to rules of division. Moreover, indications appear in the laws that the division was not merely one between the heirs of a single holder, but something more like what took place between the group of kinsmen in the case of the Cymric gwely and ‘_tir gueliauc_.’ How otherwise can this clause be read?

_Um óðals iarðer._ Nú scal þær iarðer telia er óðrlom scolo fylgia. Sú er ein er ave hefir ava leift. Sú er önnur er gollden er í mannsgiölld … þær scolo óðrlom fylgia, oc allar þær er í óðals skipti hava komet með bræðrom oc með frændom þeim [_sic_]. Allar aðrar aurum.

(G. 270.) _Of odal lands._ Now the lands shall be told which _are odal_. One is that left by grandfather to grandfather. Another is that paid as wergeld.… These shall be odal and all those _which have come under odal division between brothers and their kinsmen_. All other lands shall be counted _aurar_ [money].

[Sidenote: The odal-sharers must consent to a sale of odal land.]

At the time of the laws owners of odal had, it appears, certain powers of selling their odal, but even then it was not an uncontrolled right of a man to do what he would with his own. His first act must be to ‘go to the “thing” in autumn and offer it to his _odal-sharers_’ (_odalsnautr_, one who has odal-right to land in common with others). (G. 276.)

If a man buys without its having been thus offered, then ‘the odal-sharers may break that bargain’ (G. 277). Even when the sale and purchase have been made by the public ceremony of _skeyting_, _i.e._ by taking earth from the four corners of the hearth and from under the ‘high seat,’ and where field and meadow meet, and with witnesses at the ‘thing’ (G. 292), the _odal-sharers_ of the seller have the right to redeem it within a twelvemonth (G. 278).

[Sidenote: The odal-sharers have rights to keep it in the family and to prevent its passing to females.]

Take, again, the case of two brothers dividing odal, and observe how careful law and custom had been to prevent either of the odal-shares going out of the family. The odal rights between them were maintained for as many generations as must pass before the shares could be united again by a lawful marriage between a son of one family and a daughter of the other (G. 282). One is tempted to say that here again there may be something very much like the Cymric gwely and to suppose that marriage was forbidden within the gwely, _e.g._ between second cousins, and that the odal sharing continued so long as the gwely held together.

Nú skipta brœðr tveir óðrlom sín á milli, þá scal þingat hverva í þá kvísl óðol, sem loten ero, bæði at boðom oc at ábúð, bióða því at eins í aðra kvisl ef þá sœker þrot æða aldauða arfr verðe. En eigi skiliasc óðol með þeim at helldr fyrr en hvártveggia má eiga dottor annars.

If two brothers divide their óðals between them, the óðals shall pass into the hands of the branch which receives them by lot, in respect both of right of redemption and of occupation; they shall only be offered to the other branch if this one comes to utter poverty, or the inheritance is left without a legal heir. Yet the latter does not lose its right to the óðals until each of the two can marry the other’s daughter.

If the family of one of the brothers sinks into utter poverty or is left without a legal heir, the other family have the right of redemption and occupancy; and yet the poverty-stricken or heirless branch does not lose its rights to the odal altogether. There is still the chance that its rights may be restored when a son on each side can marry a daughter of the other side.

There is a further clause in the Gulathing law which provides that when land falls to a woman the men of the kindred, ‘if their relationship be so close as to be _nefgildi_ or _bauggildi_’--that is, as we have seen, paternal and maternal relations descendants of great-grandparents--have a right to redeem it from their kinswoman at one-fifth less than its value, ‘paying one half in gold and silver and the rest in thralls and cattle.’ The men then keep the odal and their kinswoman ‘keeps the aurar.’ Even if odal has passed ‘three times under the spindle’ it comes back at last to the male kinsmen (275).

Nú verðr kona baugrygr, verðr hon bæðe arva óðals oc aura, oc á engi maðr undan henne at leysa. Nú ero þær konor er óðals konur ero, oc óðrlom scolo fylgia, dótter oc systir oc faður systir oc bróðor dótter oc sunar dótter. Þær ero baugrygiar tvær, dótter oc syster. Þær scolo baugum bœta oc svá taca sem karlmenn, oc svá eigu þær boð á iörðum samt sem karlar. Nú ero þær arvar faður síns. Nú elr önnur dóttor eina, en önnur sun einn, þá scal sunr leysa undan frendkonom sínum sem lög ero til. En ef enn skiptizt um, oc elr hon sun en þeir dœtr, þá scolo þeir leysa undan þeim slícum aurum sem hann leysti undan mœðr þeirra, oc scal þá liggia iörð kyrr þar sem komin er. Þá er iörð komen þrysvar undir snúð oc undir snælldo.

If a woman is a _baugrygr_ [an only daughter who in default of heirs male could receive and pay wergeld] she inherits both odal and aurar and no man requires to redeem it from her. The women who are odalwomen and take odal are daughter and sister and father’s sister and brother’s daughter and son’s daughter. Daughter and sister are two _baugrygiar_. They shall pay and take _baugar_ as males, and they may redeem land as men. Now if they are their father’s heirs, and one of them gives birth to a daughter and the other to a son, the son shall redeem [the odal] from his kinswomen as the law is. But if things turn round again, and she has a son and they [masc.] have daughters, they [masc.] shall redeem it from them [_i.e._ from the daughters] for the same payment by which he redeemed it from their mother, and the land shall then remain where it is. Then the land has passed three times under the spindle.

[Sidenote: These are marks of early family ownership.]

Now when these remarkable survivals of tribal custom are found still remaining in the laws as to odal and odal-sharers and the right of kinsmen who would have to pay wergeld to redeem odal, so that it may be kept within the ring of odal-sharers, they cannot be regarded as laws framed to meet the needs of individual landownership. They come down in the laws as survivals of family ownership under tribal custom, the principles of which are by no means wholly obsolete, even though society may have passed onwards some stages towards individual landownership of the more modern type.

[Sidenote: The solidarity of the family shown both by odal-sharing and wergelds.]

And when we consider the solidarity of kindreds, as regards the payment of wergelds on the one hand, and the corresponding solidarity in the matter of landownership on the other hand, we can hardly fail to recognise that the two are connected--that both spring from a tribal principle which lies at the root of tribal polity. The solidarity of kindreds, taken together with the liability of individuals to take their share in the payments for which their kindred is responsible, corresponds to the solidarity of odal landholding, taken together with the individual rights of the odal-sharers. Unless every one in a kindred had his recognised tribal rights on the land, unless he were possessed of cattle and rights of grazing for their maintenance, how could he pay his quota of cattle to the hauld’s wergeld of 100 cows? The two things seem to hang together as in the Cymric instance, and the one makes the other possible.

V. THE LEX SCANIA ANTIQUA.

The ‘Lex Scania Antiqua’ might perhaps be selected as fairly typical of Danish[185] ancient custom, as the Gulathing has been taken as typical of Norse custom. But apart from this it contains some chapters which seem to throw further light on odal and family holding, and so can hardly be overlooked in this inquiry.

[Sidenote: The Latin and old Danish versions of Scanian law.]

There are two versions of the Scanian Law, one in Latin and the other in old Danish. They differ considerably and are certainly not translations one of the other, though an older text may have been the foundation of them both.

They both refer to recently made modifications of local custom which fix their date to the early years of the thirteenth century.

The author of the Latin text was the Archbishop of Lund (A.D. 1206-1215), and from the use made by him of legal terms borrowed more or less from Roman law it may be gathered that Scanian custom required for him more explanation than the Danish writer deemed it necessary to give.[186]

The rules with regard to wergelds cannot be quoted as representing unmodified ancient custom. They avowedly are the result of modifications made to remedy evils which had arisen partly, no doubt, from the gradual loosening of the ties of kindred.

In the same way the clauses as to property represent the results of long-continued conflict between ancient rules of family holding and gradual innovations in the direction of individual ownership. In this they resemble the Lex Salica. Still if family holdings more or less on the lines of the Cymric gwely, or the Salic alod, had once been the prevalent form of occupation, even new rules making alterations could hardly fail to reveal traces of older custom. The special value to this inquiry of the ‘Lex Scania antiqua’ is that it does so.

Disguised as some of these traces may be in the Latin text, under Roman phraseology, with the Danish version at hand it ought not to be difficult to recognise the meaning of the facts disclosed.

[Sidenote: When there was arrangement on marriage widow took half of their joint property if no children.]

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

Omnia que in hereditate sunt mobilia, vel se moventia,[187] vel immobilia, precio tempore matrimonii comparata, equis sunt partibus dividenda, medietate heredes defuncti proximos cum prediis que propria ipsius fuerant et uxorem altera cum suis prediis contingente.…

All things in the _hereditas_ which are moveable or cattle or immoveable, brought in by value fixed at the time of the marriage, are to be divided in equal parts, one part appertaining to the next heirs of the deceased [husband] with the lands which were his own, and the other part to the wife together with her lands.

This clause may very possibly represent an extension of the rights of a childless widow beyond what tribal custom may have originally given her. But certainly the fact that under Scanian law the childless widow was entitled to half of what by compact at the time of the marriage had become the joint property of husband and wife, while the other half went to the husband’s next heirs, is good evidence that marriage was by no means a surrender of the wife and her property once for all into the power of the husband and his family. And evidence of the accord of Scandinavian with other tribal custom on this point is not without value.

It may be observed, however, that in the case mentioned there had been something like a compact or valuation of the property brought under the marriage arrangement at the time of the marriage. The result might therefore have been different if no special compact had been made. The inference might well be that the childless widow in that case would not have been allowed to take her half share with her away from her husband’s kindred.

[Sidenote: Family holding vested in the grandfather as _paterfamilias_.]