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.
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.