Tribal Custom in Anglo-Saxon Law: Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'Seebohm, Frederic
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Tribal Custom in Anglo-Saxon Law: Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'
Seebohm, Frederic
Anglo-Saxons; Law, Anglo-Saxon; Law, Medieval; Tribes -- Great Britain
The emphasis laid in the Lex Salica upon the distinction in social
status between persons ‘living under the Lex Salica’ and those living
under Roman law suggests that _land_ held under the Lex Salica was not
held under the same rules as those under which the ‘Romanus possessor’
held his ‘res propria.’ It would seem natural, then, that _terra Salica_
should be land held under Salic custom as opposed to land held under
Roman law. And if this be the simple rendering of the term _terra Salica_
in the Lex, then returning to the likeness of the Salic ‘alod’ to the
Cymric family holding some likeness might be expected in the rules of
succession to the land of the alod when compared with the Cymric rules of
succession to the ‘tir gweliauc’ or family land of the gwely.
We have seen that in the gwely the descendants of a common
great-grandfather were kept together as a family group till, after
internal divisions between brothers and then between cousins, there was
at last equal division of landed rights between second cousins, _i.e._
great-grandsons of the original head of the gwely. The fact of this right
of redivision at last between great-grandchildren was apparently what
held the family group together till the third generation.
The last clause of the ‘de alodis,’ even as it stands in Codex 1,
coincides with Cymric custom in so far as it excludes females from landed
rights and confines inheritance in the land of the alod in the first
instance to _sons_ ‘… _qui fratres fuerint_.’
And when at last later Codices call the land of the alod _terra Salica_,
and the addition in Codex 10 is taken into account, the evidence becomes
very strong indeed that under Salic custom the land of the alod or
terra Salica was held as a family holding, and, like the land of the
gwely, divisible, first between sons, then between grandsons, and at last
between great-grandsons.
But when among grandsons or great-grandsons contention arises,
after long time, concerning the alod of land, they [the lands of
the alod] should be divided, not _per stirpes_, but _per capita_.
The later the date at which this sentence was added to the final clause
of the ‘de alodis,’ the stronger becomes the evidence of what ancient
Salic custom on this matter was.
[Sidenote: The final clause protects the family holding.]
Assuredly the object of these words is not to introduce a new principle.
They obviously describe ancient Salic custom in order to protect it.
And how could a division _per capita_ amongst great-grandsons take
place unless, as in the Cymric gwely, the holding of terra Salica had
during the whole period of the three generations been kept in some sense
together as a family holding?
Public-domain text, read in full here on John Shaqi.
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