Tribal Custom in Anglo-Saxon Law: Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'Seebohm, Frederic
History
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
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.
[Sidenote: 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.
[Sidenote: 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.
Public-domain text, read in full here on John Shaqi.
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