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
This clause may very possibly represent an extension of the rights of
a childless widow beyond what tribal custom may have originally given
her. But certainly the fact that under Scanian law the childless widow
was entitled to half of what by compact at the time of the marriage had
become the joint property of husband and wife, while the other half
went to the husband’s next heirs, is good evidence that marriage was
by no means a surrender of the wife and her property once for all into
the power of the husband and his family. And evidence of the accord of
Scandinavian with other tribal custom on this point is not without value.
It may be observed, however, that in the case mentioned there had been
something like a compact or valuation of the property brought under
the marriage arrangement at the time of the marriage. The result might
therefore have been different if no special compact had been made. The
inference might well be that the childless widow in that case would not
have been allowed to take her half share with her away from her husband’s
kindred.
[Sidenote: Family holding vested in the grandfather as _paterfamilias_.]
Chapter III. refers again to a wife’s property and adds important
information. It brings before us a family group with something like
a family holding. And it becomes intelligible only, I think, when
approached from this point of view.
Into this family group a wife has been brought apparently without the
special ‘definition’ or arrangement. There are also children of the
marriage. And the question asked in the heading of the Latin text is,
what shares the grandchildren take on their father’s death, not in their
parent’s property, but in the property of the grandfather.
The grandfather is the head of the family group. In the Latin version he
is elsewhere styled the _paterfamilias_ and in this clause his sons are
_filiifamilias_.
In the Danish version the family group is simply that of an ordinary
_bonde_ and the family character of the holding is taken for granted as
not needing special mention or explanation.
The chapter is as follows (divided into sections for convenience in
comparison of the Latin and Danish texts):--
De bonis avitis que portio contingat nepotes post obitum
filiifamilias.
Of the grandfather’s property what portion goes to the
grandchildren on the death of a _filiusfamilias_.
(1) Filiifamilias[188] in sacris paternis cum uxore constituti,
si sine diffinicione certe quantitatis bonis patris addiderit
bona, que ipse habuit, cum uxore, quotcumque fuerint filii de
communi substantia, etiam prediorum post contractas nuptias
comparatorum, cum avo et aliis consortibus post obitum patris
viriles et equales accipient porciones, (2) per priorem gradum ab
aliis prediis excludendi. (3) Si vero, in mansione patris, bona,
que habuit cum uxore, fuerunt diffinita, illa sola, si vivente
avo pater obierit, filii, quotcumque fuerint, obtinebunt.
Public-domain text, read in full here on John Shaqi.
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