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.’
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.)
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.
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.)
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.)
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.
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.
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.
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.’
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.
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.
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.