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 remainder of the clause is very difficult to construe in the
imperfect state of the text, and it is not necessary to dwell upon it.
It seems to apply to newcomers (‘qui adveniunt’) and their rights _inter
se_.[119]
We have then in these clauses an allusion to ancient tribal custom as
well as to the change made necessary by the new circumstances.
[Sidenote: Analogy of Cymric custom.]
The implication is that under the rule of ancient custom, on a brother’s
death without children, _his brothers did not succeed to his land, but
the vicini_. Now the brother is to succeed, _not the vicini_.
At first sight this seems unnatural and unlikely. But it ceases to be
so if we may regard the alod of terra Salica as a family holding under
conditions somewhat like those of the gwely. For under Cymric custom
the brother did not succeed to the childless brother as his heir. The
co-inheritors, as far as second cousins, were his heirs. In other words
the lapsed share went to his _vicini_, but they were the kinsmen of his
own gwely.[120]
Nor did a brother succeed to his brother’s _da_, and the grazing rights
and homestead connected with it. He had received this _da_, as we have
seen, from his chief of kindred by ‘kin and descent,’ _i.e._ by tribal
right in his kindred, and therefore if he should die without children his
_da_ and everything he had by kin and descent went, not to his brothers,
but back to the kindred or the chief of kindred from whom he received it.
If the son die after 14 years of age and leave no heir, his
‘argluyd’ is to possess all his _da_ and to be in place of a son
to him and his house becomes a dead-house. (_Ven. Code_, i. p.
203.)[121]
The lapse of landed rights in family holdings to the kindred was one
thing. Their passing out of the kindred to vicini who were strangers
would be quite another thing.
When after a time, let us say under cover of the title ‘de migrantibus’
or upon extended conquests, others, perhaps ‘Romani possessores,’ had
taken places in the villa side by side with the tribesmen living under
the customary rules of _terra Salica_, or when Salic Franks had settled
among strangers, the new element would have to be reckoned with.
In the clause ‘de migrantibus’ the protection of ancient Salic custom was
sought by the exclusion of strangers at the instance of a single objector
from terra Salica. In the Edict of Chilperic, on the other hand, the
presence of stranger vicini was taken for granted, and the protection of
terra Salica sought by extending the right of succession to brothers and
females, so that at least fewer cases might arise of lapsed inheritances
falling away from the kindred into the hands of the _vicini_ who might be
strangers.
Public-domain text, read in full here on John Shaqi.
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