VI. SCANIAN AND LOMBARDIC CUSTOM COMPARED.
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.
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:—
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.
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.
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.
