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.
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.
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.
Family holding vested in the grandfather as paterfamilias.
Chapter III. refers again to a wife’s property and adds important information. It brings before us a family group with something like a family holding. And it becomes intelligible only, I think, when approached from this point of view.
Into this family group a wife has been brought apparently without the special ‘definition’ or arrangement. There are also children of the marriage. And the question asked in the heading of the Latin text is, what shares the grandchildren take on their father’s death, not in their parent’s property, but in the property of the grandfather.
The grandfather is the head of the family group. In the Latin version he is elsewhere styled the paterfamilias and in this clause his sons are filiifamilias.
In the Danish version the family group is simply that of an ordinary bonde and the family character of the holding is taken for granted as not needing special mention or explanation.
The chapter is as follows (divided into sections for convenience in comparison of the Latin and Danish texts):—
De bonis avitis que portio contingat nepotes post obitum filiifamilias.
Of the grandfather’s property what portion goes to the grandchildren on the death of a filiusfamilias.
(1) Filiifamilias[188] in sacris paternis cum uxore constituti, si sine diffinicione certe quantitatis bonis patris addiderit bona, que ipse habuit, cum uxore, quotcumque fuerint filii de communi substantia, etiam prediorum post contractas nuptias comparatorum, cum avo et aliis consortibus post obitum patris viriles et equales accipient porciones, (2) per priorem gradum ab aliis prediis excludendi. (3) Si vero, in mansione patris, bona, que habuit cum uxore, fuerunt diffinita, illa sola, si vivente avo pater obierit, filii, quotcumque fuerint, obtinebunt.
(1) If a filiusfamilias established with his wife in the paternal rites shall, without definition of the exact quantity, have added to property of his father property which he himself had with his wife; then, however many sons there may be, they shall, after the death of their father, receive equal shares per capita with the grandfather and other co-sharers in the common substance even of lands acquired after the marriage was contracted, (2) they having to be excluded from other lands by the prior grade. (3) But if in the mansio of his father the property which he had with his wife, had been defined, that alone, if the grandfather was alive when the father died, shall go to the sons, however many they may be.
The Danish text (I. 5) is as follows:—
Vm bondæ sun förœr kono sina j bo mœth faþœr sinum.
If a bonde’s son brings his wife into the house with his father.
(1) Far bondæ sön konu oc förær hanæ j bo mæth faþur sinum, oc aflær barn wiþær hana oc læghs æy fælegh theræ i mællin, um tha dör bondans sön, tha taki all hans börn fullan lot æftir theræ faþær æm wæl j köpæ iorth sum j bolfæ. (2) Æn af hans fæthrinis iortho fa the æy wattæ mer æn han will giuæ them. (3) læghs fælagh, tha fa the æy mer æn han atte j bo.
(1) If a bonde’s son gets a wife and brings her into the house with his father and begets a child with her and no partnership is made between them,[189] if the bonde’s son dies, then let all his children take a full lot after their father as well in land purchased as in moveables. (2) But of his [the bonde’s] father’s lands they get not a whit more than he will give them. (3) If partnership is made, then take they no more than he [their father] owned in the house.
If no arrangement on marriage wife’s property merged into the family stock.
This clause, in both the Latin and the Danish version, confirms the inference from the previous one, that there was a difference of destination as to the property of husband and wife according to whether it had or had not been ‘defined’ and so put in partnership as joint property of the husband and wife separately from the property of the family group represented by the grandfather.
If not so defined, it became apparently under ancient custom part of the common family property and so divisible after the grandfather’s death among all the consortes instead of going solely to the children of the marriage.
The clause pictures for us the family group as bound together by paternal rites (sacris paternis). The grandfather is alive and is the paterfamilias. A son who is a filiusfamilias (i.e., as we shall see presently, not an emancipated son) has married and brought into the mansio, or family homestead of the grandfather, property which he had with his wife. This, not having been ‘defined’ on marriage, so as to keep it separate, has become, in the phrase of the Latin text, ‘added to the property of the grandfather.’ The husband has died leaving several sons, it matters not how many. The question is, what share these grandsons are to take in the property which their father had with their mother, which, for want of ‘definition,’ has become added to the grandfather’s property, or, in other words, become part of the ‘substantia communis.’
There was no succession by representation to a deceased parent during the grandfather’s lifetime.
The answer is that the parents’ property does not go exclusively to their children as it would have done if it had been defined and separate property. It has become merged in the family property, and there is no sharing of this till the grandfather’s death. But apparently by a compromise, due probably to recent legislation, they are allowed on their father’s death, according to the Latin text, to take equal shares in his property per capita ‘with the grandfather and other consortes,’ or, according to the Danish text, a ‘full lot’ in it. We are not told who were the ‘consortes’ with whom and the grandfather it was to be shared. The consortes, whether uncles or cousins or both, were the co-sharers in the ‘communis substantia’ of the family holding.
In the final paragraph of the clause both texts give the alternative rule applying to cases, probably the most frequent, in which proper ‘definition’ of the wife’s property had been made on the marriage. And the rule is stated to be that the property so defined and made joint or partnership property on the marriage, and that alone (illa sola), would go to the children of the marriage at their father’s death during the life of the grandfather. According to the Latin text, they were excluded from the other family property ‘by the prior grade.’ As the Danish version puts it: ‘not a whit of the other property would they get except what the grandfather chose to give them.’
That this is the true meaning of these clauses is confirmed by other chapters.
Permission to the grandfather to give succession to a deceased son’s children.
Chapter XVI. is headed: ‘How much may be conferred by a father upon the sons of a deceased son during the lives of the other sons, their uncles.’ The text is as follows:—
Licet cuique post mortem filii quantum ipsi deberetur si viveret, ejus filio nepoti conferre.
It is lawful to every one after the death of a son to confer upon a grandson, the son of that son, whatever would have been due to the son had he lived.
This seems to be a special permission to the grandfather during his life to mitigate the injustice of the customary rule excluding grandchildren from succession by representation in their deceased parent’s property.
If under Scanian custom the children of a dead filiusfamilias had succeeded by right to their father’s property, this special permission would not have been needed. But it seems to be clear that no such right of succession was recognised by ancient custom.
Chapter XI. opens with the following general statement, there being in this case no question of a marriage or a wife’s property.
Otherwise no succession given by custom.
Patre superstite defunctus filiusfamilias nullum habet, ac si nunquam fuisset genitus, successorem.
The father surviving, the dead filiusfamilias has no successor, as if he had never been born.
This seems to make it clear that, the grandfather being alive, the grandchildren took by right under ancient custom no share in their deceased father’s property. It was simply merged in the family holding, and they must wait for their shares in it along with the other co-sharers after the grandfather’s death.
The growing feeling of the injustice of this from the individual point of view was probably the reason, not only why the permission in Chapter XVI. was given, but also why, following the example of Roman law, the emancipation of sons was admitted.
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.
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]
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.
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.
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.
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.
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.
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.
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.
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]
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]