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
Now there are two brothers and one of them dies before their
father, and a son lives after his death. He shall redeem from his
father’s brother, at one fifth less, that part of the odal to
which his father was expectant heir after his father. But he may
not redeem it till his father’s father be dead.
In this case, as before, there are living a grandfather and a son and a
grandson (son of a deceased son). The share which the deceased son as
coheir with his brother might at first sight be expected to take in the
grandfather’s odal does not go directly to the grandson. By apparently a
new law he has permission after the grandfather’s death to redeem it from
his uncle at one fifth less than its value.
This can only be explained upon the principle that under ancient
Norse custom the sons of a deceased son would not succeed by right of
representation to their deceased father’s share in the division of the
grandfather’s property. Evidently the right to redeem it from their uncle
was an innovation of later law.[190]
[Sidenote: The new rules to amend tribal custom show what it once was.
Thus the Scanian laws throw light on Norse odal holdings. They were
family holdings.]
These and other innovations may have been the result of a new sense of
justice brought in with Christianity or under the influence of Roman law.
The question for us is the meaning of the ancient custom. And we are
brought back to the point that in so far as the family group more or less
may have resembled the Cymric gwely, and is approached from this point
of view, it must be regarded as the group of descendants of a common
grandfather or great-grandfather, who is, in the Archbishop’s phrase,
the _paterfamilias_. While he is alive the landed rights are vested in
him. On his death his sons take his place with divided or undivided
equal shares, but still as the representative members of the original
gwely or family group. One of them dies, and the question is whether the
surviving brothers ‘of the prior grade’ are to promote into this grade at
once the sons of their deceased brother. Such a course might naturally
be regarded as preferring these nephews to their own sons. The rights
of all the members of the ‘lower grade’ will come in time when all of
the ‘prior grade’ are gone and the grandsons share equally _per capita_
in the family property. In the meantime the sons of deceased parents,
like those whose fathers are alive, must wait. So it may have been under
ancient custom. But in course of time family ties weaken and individual
rights grow stronger in national feeling, as we have seen them everywhere
doing. And then little by little compromises are made. The joint property
of husband and wife, even if not properly ‘defined,’ is recognised in the
Scanian law as belonging to the sons of the marriage to the very limited
extent that they may have equal shares with the other _consortes_ whether
uncles or cousins.
Public-domain text, read in full here on John Shaqi.
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