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.

[Sidenote: Both in Norse and Scanian custom originally on a son’s death his share in the odal merged in the common stock.]

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:--

Nu ero brœðr tveir oc andast annar fyrr en faðer þeirra oc livir sunr efter hinn dauða. Þa scal hann þann lut leysa oðrla at fimtungs falla, undan faður brœðr sinum, sem faður hans stoð til efter faður sinn. En eigi ma hann fyrr leysa en faður faðer hans er andaðr.

Now there are two brothers and one of them dies before their father, and a son lives after his death. He shall redeem from his father’s brother, at one fifth less, that part of the odal to which his father was expectant heir after his father. But he may not redeem it till his father’s father be dead.

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]

[Sidenote: The new rules to amend tribal custom show what it once was. Thus the Scanian laws throw light on Norse odal holdings. They were family holdings.]

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.

* * * * *

[Sidenote: The _paterfamilias_ and those in communion with him.]

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.