Division of the land—Supposed origin of the division—The odal—How land could become odal—Redemption of the odal—Laws in regard to redemption—Purchase of land and closing of the bargain—Existence of leaseholds—Commons—Rights of common—Laws regulating commons.

In old Sweden and Norway, and no doubt all over the North, the land was divided into Herad and Fylki. In Sweden there were small and large Herad; in Norway there were both Herad and Fylki, the latter probably corresponding to the larger Herad in Sweden.

We are unable to find how and when such division of land began to take place among the people: that a sudden emigration burst upon the country we have no proof whatever.

The word her (“host”) implies a certain number of people or families coming together for mutual protection or otherwise, and the whole was called host. These either took by force or settled peacefully upon certain tracts of land, which were then called Herad, probably on account of being the land of the her. In the course of time—perhaps for mutual protection, or for some other reason unknown to us—those Herad or Fylki, though entirely independent of each other in their internal affairs, were united together, and were called thjod, or veldi, which means a nation made up of different Fylki and Herad. So the land of the Swedes was called Svi-thjÓd, or Svia-veldi: and that of the Danes and Norwegians, Dana-veldi and Noregs-veldi.

A man who settled upon a Herad without lawful right could be summarily ousted without resorting to legal remedies.

Thormod and Thorgeir made themselves obnoxious to the people of the neighbourhood by their wild habits. Those who thought themselves wronged by them went to Vermund (chief of the Herad), and laid their complaints before him. Vermund summoned HÁvar and Bersi (the fathers of the two young men) to him, and told them that the people disliked their sons.

“‘Thou, HÁvar,’ he said, ‘art a man not belonging to the herad, and hast settled here without permission. We did not object to thy living here till thy son Thorgeir caused dissension; we want thee to break up thy residence and depart from Isafjord; but Bersi and his son we will not drive away, for they are heradsmen’” (Fostbroedra Saga).

Odal.—We find a great part of the land divided into Odal—i.e., the title to which was absolute, and not dependent on a superior—but how this was acquired we do not know. The probability is that in the beginning of the migration or conquest each head of a family took, or had allotted to him, a certain amount of land as odal—the extent of land being proportionate to the size of his family or to his rank. Then the settler became a buandi^[453] (a dweller), that is, of the Herad of which he formed an integral part. The word bondi is still applied in Norway to odal men, who own farms in their own name. To this day there are odal farms in Sweden and Norway which have remained in the same family almost from time immemorial; and such were the safeguards in olden times against alienation of land, that it has been impossible for those estates to be gradually absorbed into the hands of comparatively few men, as has been unfortunately done in some other countries; and as no conquerors have come to dispossess the original owners, and give large tracts of land to their followers, the land in many parts of Scandinavia, with the exception of Denmark, has remained much divided to this day. Besides odal there was kaup land, the latter being freehold land that could be bought, and loose property.

The Gulathing’s Law enumerates seven ways in which landed property could become odal:—

“1. When it had descended through four generations in unbroken succession. 2. When the land had been given as weregild.^[454] 3. When it had been got by so-called branderfd.

4. When it was received as heidlaun (fee-reward), i.e., when, in later times, it was given by a king to his servant for faithful services. 5. At a later period, when it was given by the king as drekkulaun (drink-reward), either for having been well entertained, or as a reward for nursing the king. 6. When it was received as reward for fostering a child (barnfÓstrlaun). 7. When it had been acquired in exchange for another odal” (Gulathing’s Law, 270).

“The inheritance is called branderfd if a man receives another to keep him in bad and good circumstances, and feeds him till fire and pyre (until he dies)” (Gulath., 108).

In all the last six modes of acquiring the land, it is of course understood that the land must have been the odal of the grantor.

The odal could not be alienated from the family, and if sold to any one outside the family, the latter had the right of redemption, which consisted in this: that in case the land was sold to a stranger, the nearest of kin had the right to redeem the odal from the new owner within a certain time and on certain conditions. These differed in the different laws. The Gulathing’s Law, which most extensively treats this subject, sets as a rule for the redemption, that it could be made by the nearest of kin after lawful notice, on payment of a sum one-fifth less than that at which the land was appraised by arbitrators. The kinsman, however, in order to keep this right open, had to publicly announce it at the Thing under whose jurisdiction the land lay, within twenty years after the sale, so that twenty years should never be allowed to pass between two announcements. If this was neglected, the next of kin had not thereby lost his right of redemption, but he had to pay the full value of the land.

“If the land lies (is in possession of the buyer) for twenty winters and no notice is given, full value must be paid for it” (Gulath., 272).

The right of redemption was not forfeited until the land had been in the family of the new owner for the period of sixty years without any notice of redemption having been given.

“If the land belongs to the same line of family for sixty years or more, it becomes the odal of the owner, so that no man can buy it from him” (N. G. L., ii. 93).

“If there are two brothers, and one of them dies before his father and leaves a son, then he shall redeem that part of the odal at four-fifths^[455] of the value from his father’s brother. But he cannot do it before his grandfather is dead” (Gulathing’s Law, 294).

“When the redeemer has claimed the land according to law, he shall carry the money to the land at the middle of the fast on the morning next after the washing-day (Saturday), when three weeks of the fast are left. He shall put it on a stone where field and meadow meet. He shall speak thus: ‘Be here on the land Thursday in the Easter-week, and take the value of the land, as much as it is valued in lawful money. I will come here with honest men, and thou shalt have as many here. They shall value the land as it is done when men redeem their odals. The half of the money shall be in gold and silver, and the other half in native bondsmen not older than forty and not younger than fifteen winters’” (Gulath., 266).

If the king was odalsman (i.e., next of kin) to land in the possession of another, then the redemption was to take place within the reigns of three kings, for otherwise the right of redemption was forfeited.

“If land falls to the king it must be redeemed from his steward who has the survey in the Fylki in which the land lies. If there is no king’s steward in the Fylki, it must be redeemed from the steward who is next in rank and before the lives of three kings are gone. If the land is not redeemed before, it must lie where it is. Though three kings rule the land the time is reckoned as the life of one king. If the king wants to redeem land his steward shall redeem it as we do among ourselves. He must have redeemed it also before the lives of three kings are gone, else it lies where it is. Land cannot be redeemed while the king is in the Fylki in which the land lies” (Gulath., 271).

“The land of no man can become odal before three generations have owned it in unbroken succession and it falls to the fourth (as inheritance)” (Frostath., xii. 4).

“Land becomes the odal of a church if she has owned it for thirty winters” (Frostath., xii. 4).

The land was bought in the following manner, and the bargain was closed by weapon-taking and the shaking of hands.

“If a man buys land in the presence of many men, the thingmen shall convey the land to him. He shall summon the other man home, and thence to the Thing, and have witnesses at the Thing that he has lawfully summoned him. He shall take mould, as is mentioned in the laws, to the four corners of the hearth, and to the high-seat, and where field and meadow meet, and where pasture and stone-ridge meet, and have witnesses, and those who were present at their bargain, at the Thing that he has taken the mould lawfully. If he has full witnesses, the Thingmen shall with weapon-taking convey the land to him. Wherever they agree about the bargain, and the sale and the mould is rightly taken, it, and also the conveyance, shall be kept at a church and at an ale-house, and at a manned ship with several rowing-seats, as if it were made at a Thing. Wherever the king conveys land it shall be kept”^[456] (Gulath., 292).

“The silver was then all counted, and every penning paid for the land. BÖrk then took the money, and by a hand-shaking transferred the land to Snorri” (Eyrbyggja Saga, c. 14).

“If a woman is baugryg,^[457] she can inherit both odal and (loose) property, and no man can redeem it from her. The women who are odal-women and whom the odals follow are these. Daughter and sister, and father’s sister, and brother’s daughter, and son’s daughter. The daughter and sister are two baugrygs. They can pay and receive wergild like men. They also have, like men, the first right to buy the land” (Gulath., 275).

Leaseholds also existed in these early days.

“Thrand leased out the lands at Gata to many, and took as high a rent as possible” (FÆreyinga Saga, c. 2).

Commons.—From time immemorial the large extents of land and sea, which belonged to no individual, and used by one or more communities as their common property, were called almenning or commons, and were under the power of the herad. Every one had the right to make use of wood and water on these commons; to build himself sÆter,^[458] as well as smithies and hunting-huts; to fish in the waters, hunt and trap animals; to cut timber and mow grass, observing the previous rights of any earlier user. The settler ought then to fence around his property within twelve months. Outside his home field he owned as outgrounds all the surrounding land as far as he could throw his knife. All fishing-places at some distance from the coast were commons, but the king had a right to get a fee or tax from those who fished there, which tax was one of his sources of revenue.^[459]

“Every man is allowed to use water and wood on a common. Every one shall have his common as he has had it from old time. If a settlement is made on a common, the king owns it. If there is a field and meadow fenced in, he owns the land as far from the fence as he can throw his knife. The remaining is common. All that is thrown up on the coast of a common is owned by the king. If people sail along the coast or from sea and their ships founder, whoever owns the land where they are wrecked owns as much property as he can prove with witnesses. The king owns all other sea-wrecks” (Gulath., 145).

“This law have the kings given to all the men of HÁlogaland; namely, the kings have given up all fish-gifts (taxes) from all capes and all fishing-places, except that men shall give to the king five fishes. That shall every man do who fishes in Vagar (in HÁlogaland)”^[460] (Frostath., xvi. 2).

“The law of seal-catching places is, that within three weeks from St. John’s Mass, and six weeks from Yule, all such places are holy, and no man shall go into another’s ground without leave. If a man is found in another’s fishing-ground during these weeks and catches seals, he is a thief. Between these times they shall protect their seal-catching places like their land with a law stick (lag kelfi), and a ran baug (fine); if the thief goes then, he is fined for trespassing in another man’s land....” (Frostath., xiv. 11).

“Deer-enclosures every man can make on common land, if he does not spoil another’s hunting.... A spear-fence shall not stand longer than ten winters” (Frostath., xiv. 9).

Later, and after the establishment of the kingdom of Harald Fairhair, the commons as well as the odal became the property of the king; and William the Conqueror, after the conquest of England, considered himself to have the same powers as those usurped by Harald Fairhair and other northern kings.

“King Harald became the owner of all odals, and of all the land cultivated and uncultivated in every Fylki, and even of the sea and the rivers and lakes. All boendr were to be his tenants, both those who cultivated the field and the saltmakers; and all fishermen, hunters and trappers, both on sea and on land, were his men” (Egil’s Saga, c. 4).^[461]

If a person had been living on a common during the time of three kings, none of whom reigned less than ten years, he had thereby acquired full and legal rights to his land, even though he lacked the formal consent of the king.

“If a steward or messenger of the king charges a man with dwelling on land taken from the common without the king’s leave, and the man answers that the land has been held by him during the lives of three kings, none of whom ruled less than three winters, then if the steward or king’s messenger denies this he shall bring forward witnesses” (Frostath., xiv. 7).

When the king gave land to a man, his successor could take it back, so the gift was only valuable for the lifetime of the king.

The customs which regulated settlements made on the land in Iceland were probably very ancient, but it is impossible to tell whether they were handed down from the time of the first settlers in the North.

AsbjÖrn, son of Heyangrs-BjÖrn, a hersir (chief)^[462] in Sogn, died at sea on his journey to Iceland, but Thorgerd, his wife and their sons came to Iceland.

“It was the custom that a woman should not take up more land than a half-grown and well-kept heifer, two winters old, could be led across during the spring-long day from sunrise to sunset; therefore Thorgerd led her heifer from Thoptufell, near KviÁ, southwards to Kidjaklett at JÖkulsfell” (LandnÁma, Pt. iv., c. 10).

“Those who came out later thought the first comers had taken too much land, and on that account King Harald Fairhair established a law that no one should take up more land than he could walk over with fire in one day with his ship-companions. They were to light fires when the sun was in the east, which were to burn until night; then they were to walk until the sun was in the west and make other fires; the smoke was to be seen from the one fire to the other” (LandnÁma, v., c. 1).