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