The house-lot or family curtilage at first devolved strictly
within the limits of the family. Here again, at least in England,
freedom of alienation seems to have grown up by gradually
increased latitude in the choice of successors. If we may trust
the order of development to be noticed in the early charters,
which it is hard to believe [358] accidental, although the
charters are few, royal grants at first permitted an election of
heirs among the kindred, and then extended it beyond them. In a
deed of the year 679, the language is, "as it is granted so do
you hold it and your posterity." One a century later reads,
"which let him always possess, and after his death leave to which
of his heirs he will." Another, "and after him with free power
(of choice) leave to the man of his kin to whom he wishes to"
(leave it). A somewhat earlier charter of 736 goes a step
further: "So that as long as he lives he shall have the power of
holding and possessing (and) of leaving it to whomsoever he
choose, either in his lifetime, or certainly after his death." At
the beginning of the ninth century the donee has power to leave
the property to whomsoever he will, or, in still broader terms,
to exchange or grant in his lifetime, and after his death to
leave it to whom he chooses,--or to sell, exchange, and leave to
whatsoever heir he chooses. /1/ This choice of heirs [359]
recalls the quos heredes appellavit of the Salic law just
mentioned, and may be compared with the language of a Norman
charter of about the year 1190: "To W. and his heirs, to wit
those whom he may constitute his heirs." /1/
A perfect example of a singular succession worked out by the
fiction of kinship is to be found in the story of Burnt Njal, an
Icelandic saga, which gives us a living picture of a society
hardly more advanced than the Salian Franks, as we see them in
the Lex Salica. A lawsuit was to be transferred by the proper
plaintiff to another more versed in the laws, and better able to
carry it on,--in fact, to an attorney. But a lawsuit was at that
time the alternative of a feud, and both were the peculiar affair
of the family concerned. /2/ Accordingly, when a suit for killing
a member of the family was to be handed over to a stranger, the
innovation had to be reconciled with the theory that such suit
belonged only to the next of kin. Mord is to take upon himself
Thorgeir's suit against Flosi for killing Helgi, and the form of
transfer is described as follows.
Public-domain text, read in full here on John Shaqi.
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