Chapter IX. is as follows:--

Universos contingit de communi consortio quicquid vel culpa amittitur vel industria conquiritur singulorum.

As regards the common consortium whatever is lost by the fault of or acquired by the industry of individuals concerns all.

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,

… non de sola patrisfamilias porcione sed de bonis communibus quotcunque fuerint cum patrefamilias in communione. Nam cum omnes lucrum respicerent in detentione non est mirum, si dampnum in ejusdem rei contingat omnibus restitutione.

… not from the portion of the paterfamilias alone, but from the common property, however many there may be with the _paterfamilias in communione_. For since all expect gain from the detention [of the thing stolen] it is not strange if all sustain loss in its restitution.

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.

[Sidenote: The resort to the ordeal if no co-swearers.]

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.

[Sidenote: The Scanian wergeld.]

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

[Sidenote: How it was divided.]

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.

[Sidenote: Later modifications.]

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.

[Sidenote: Payment for the servus and libertus.]

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]

* * * * *

[Sidenote: The Scanian wergeld perhaps that of the ‘bonde.’]

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.

[Sidenote: Lombardic custom.]

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.

[Sidenote: Edict of Rothar. A.D. 643. Kindred of seven generations.]

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.

Omnis parentilla usque in septimum geniculum nomeretur, ut parens parenti per gradum et parentillam heres succedat: sic tamen ut ille qui succedere vult, nominatim unicuique nomina parentum antecessorum suorum dicat.

Let every parentilla up to the seventh knee be named, so that parent to parent by grade and _parentilla_ the heir may succeed; so moreover that he who wishes to succeed must tell name by name the names of his antecedent _parentes_.

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:--

[Sidenote: Family holdings.]

Si fratres post mortem patris in casa commune remanserint, et unus ex ipsis in obsequium regis aut judicis aliquas res adquesiverit, habeat sibi in antea absque portionem fratrum; et qui foras in exercitum aliquit adquisiverit, commune sit fratribus quod in casa dimiserit.

If brothers shall have remained in the common home after the father’s death and one of them shall have acquired some property in service of the king or judge, let him henceforth have it for himself without the brothers sharing in it. And if one shall have acquired anything abroad in the army let that be in common to the brothers which he left behind in the home.

Et si quis in suprascriptis fratribus gairethinx fecerit, habeat in antea cui factum fuerit.

And if any one of the said brothers makes a donation, let him to whom it was made have it henceforth.

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.

Et qui ex ipsis uxorem duxerit, et de rebus communes meta data fuerit: quando alteri idem uxorem tollere contigerit, aut quando ad divisionem faciendam venerit, simili modo de comunes rebus ei refundatur aliut tantum quantum frater in meta dedit. De paterna autem vel materna substantia quod relicum fuerit inter se æqualiter dividant.

And he who of them marries a wife and her _meta_ was given from the common property, whenever it happens to another likewise to take a wife or whenever it comes to a division being made, in the same way there shall be refunded to him from the common property as much as the brother gave in meta. But whatever is left of the paternal or maternal substance let them divide among them equally.

[Sidenote: Rules of family divisions.]

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.

[Sidenote: No succession of sons by representation at first, but afterwards allowed.]

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:--

Si quis habuerit filios legitimos unum aut plures, et contigerit unum ex filiis vivente patre mori, et reliquerit filios legitimos, unum aut plures, et contigerit avo mori, talem partem percipiat de substantia avi sui, una cum patruis suis, qualem pater eorum inter fratribus suis percepturus erat si vivus fuisset.

If any one shall have legitimate sons, one or more, and it happens that one of the sons dies, the father being living, and he leaves legitimate sons, one or more, and it happens that the grandfather dies, let him [the son] take such part of the substance of his grandfather together with his uncles as their father if he had been alive would have taken among his brothers.

Similiter et si filias legitimas unam aut plures, aut filii naturales unum aut plures fuerint habeant legem suam, sicut in hoc edictum legitur. Quia inhumanum et impium nobis videtur, ut pro tali causa exhereditentur filii ab hereditatem patris sui pro eo, quod pater eorum in sinu avi mortuos est, sed ex omnibus ut supra aequalem cum patruis suis in locum patris post mortem avi percipiant portionem.

Likewise also if there were legitimate daughters, one or more, or natural sons, one or more, let them have their rights as is decreed in this edict. Because it seems to us inhuman and impious that for such a cause sons should be disinherited from the inheritance of their father because their father died in the mund of their grandfather. But let them take an equal portion with their uncles of everything in the place of their father.

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.