The Old Icelandic and Norwegian heathen law was restitutive rather than punitive, civil rather than criminal, and emphatically pragmatic. The closest approximation to a crime was a Níðingsvíg [2], a foul or dastardly deed, committed "under such circumstances and by such methods as to give the doer the character of a mean, infamous, treacherous person" (Larson 1935:423). The man who committed a "foul deed" was not punished in the sense that he was subjected to treatment which would purify him or frighten him into mending his ways. Rather he, like his detestable deed, was declared "outside the law" by the Thing (the general assembly). In theory, this declaration put the evil-doer and his deed out of the society. All of his property was forfeited and all of his social ties were dissolved. If he did not leave the district within a specified time, anyone might kill him without having to pay a recompense to his kin.
The man who lived "within the law" did not necessarily refrain from injuring his fellow man, for it was his manly right and duty to seek vengeance. He stood ready to demand or take payment from any individual or group that had injured either his person, or his property, or any person for whom he was responsible. Conversely, he stood ready to pay or "do right by" any individual or group (within his district) for any injury perpetrated upon them by himself or by any person for whom he was responsible (compare Nuer as described in Evans-Pritchard 1940:139-191 or Mair 1962:37). That the individual's willingness to stand up for himself and strike back at anyone who offended him was the keystone of the heathen conception of law and order is not explicitly stated in the ancient literature. But it is implicit in the law itself and in every story of the doings of men. As Sveinsson (1953:70-71) puts it, "The idea of the state can hardly be seen for mere individuals. It is they who must take all of this [the law] on their own shoulders."
There is no evidence in the law (or any of the literary works) that payment or the settling of a dispute through payment was viewed as a punishment established and meted out by a superordinate authority embodying justice, or that the obligation to pay was regarded primarily as a deterrent to future injuries. Rather the act of payment was seen as an honorable compliance with a jural agreement. All free men had agreed that the loss of a thumb was worth three marks. If a man had his thumb cut off, his honor required—or, "it was his right"—to be paid three marks by the offender; if he cut off another man's thumb, it was the other man's "right" to demand three marks. One gains the impression that if a man did not wish to pay the proper recompense for an injury, he was supposed to refrain from committing it. But if he were willing to pay the price, there was no clearly expressed moral reason for restraining himself. (Of course, there were obvious social and financial reasons.)
Because of this pragmatic emphasis, the Old Scandinavian laws resemble a detailed and complicated price list. Every man had his wergeld (man-price), the payment due his kin should he be slain. The higher a man's status, the higher the wergeld, which means that accepting a meager payment lowered the status of the slain man and his kin. Almost every injury which a "decent man" might conceivably inflict in the course of an active and energetic life was described and assessed. Thus, one paid more for a wound that exposed the bone than for a flesh wound, and still more if the weapon touched the bone. A wound in the abdomen was more expensive than a wound in the chest, and a wound in the back was twice as expensive as a wound in the chest. In preliterate times an official called the Lawspeaker bore the responsibility of memorizing all the laws, including these "price-lists," and reciting them before the Thing at stated intervals.
This price list functioned as a guide both in the settlement of minor disputes (which might be decided between the individuals concerned) and in the arbitration proceedings by which a feud involving a series of injuries might be brought to a conclusion. Indeed, as Jones (1935:31) points out, the arbitration procedures bore an interesting resemblance to modern accounting practices:
"The making of the award was like the drawing up of a balance sheet, which showed clearly the assets and liabilities of the disputants. The assets of the one side were the liabilities of the other. The two accounts were then compared, and the common factors struck out. In its simplest form this meant that a death on the one side tallied with death on the other, a wound with a wound, and so on through the whole range of wrongs and injuries. At the final reckoning a balance would be left on one side or the other, and it was the business of the arbitrators to make a pronouncement as to its value in terms of money fines or lesser outlawries, the only punishments which they were allowed to inflict. This was called 'paying the difference.' " (For an excellent example, see Eyrbyggja Saga [Schach and Hollander, trans. 1959: 100:101].)
In heathen Iceland a great number of disagreements were settled by arbitration, each side choosing its umpire or umpires and agreeing to abide by their decision. The initiation of a case at law was entirely the responsibility of the injured party, though he almost always acted with the assistance of friends and relatives. For example, if a prominent man wished to bring suit against another man, he would first visit relatives and friends and try to enlist their support. Poor men, freedmen, women, or minors would try to get a powerful kinsman or their goal to act for them. Lacking such support, an aggrieved person usually would not institute a suit. Theoretically, only cases which could not be settled privately or by arbitration were brought to the Thing. However, the sagas suggest that a vengeful individual might deliberately reject an informal settlement and force a case to the Thing if he believed that he could do his opponent greater harm through formal legal procedure.
The conduct of a formal law suit was so complicated that it cannot be adequately described here. For detail the reader should consult Larson (1935:13-20) or Jones (1935:16-36). Suffice it to say that in Iceland the plaintiff (among other things) was obliged to give notice before witnesses that he intended to bring a suit. Next, he summoned his witnesses, the men who were to testify for him before the Thing. He was also obliged to summon his opponent in person and in his own house, and this was often a dangerous undertaking. Then he would either have to plead his case himself or place it in the hands of a chieftain who would plead for him.
Meanwhile, if the suit were for a manslaying—the usual cause of a feud in the sagas—the defendant would try to "unhallow" (óheilagr) the man he had killed. He might seek to prove that his action was unavoidable, that he had acted in self-defense, or that the slain man had put himself outside the law by breaking an agreement. Or, he might try to prove that the plaintiff had neglected to fulfill some technicality, for example, that he had not served the summons properly. If the offender succeeded in finding and exploiting any of these loopholes, the case would be dismissed.
But if no defense was put forward, or if the injured party pleaded his case well and had plenty of support from his followers and particularly from chieftains, the judges would find in his favor and declare the offender, "out of the law." In theory this meant that he had no worth. If he were slain, his relatives had no legal right to wergeld. The greater outlawry was for life, the lesser for a period of three years. The lesser penalty was the more usual and, judging by the sagas, provided the occasion for spirited young men to travel abroad and acquire wealth and fame.
Fair and precise restitution seems to have been the primary legal principle, and, implicitly, it may have been the primary principle of psychological and social organization. Although the law books do not tell us why a man ought to pay or demand the payment of a fine, the characters in the sagas are pictured as devoting the greater part of their time to what the Northmen called "the return of a fair balance" or what Durkheim (1947:69) described as "the return of things as they were." When the balance of an individual's relationship to others was disturbed by an unpaid injury, he was inwardly impelled to take action to restore it. If the offender did not offer to even the score by a proper payment, the injured party might simply go to his farm and appropriate his fair due in livestock or other property. And if the circumstances were such that he could take no action at all, he might try to destroy himself, as did Egil Skallagrímsson (Eddison 1930:187) when, his son being drowned, he felt aggrieved by the gods. (See also The Saga of the Jómsvikings Hollander 1955:46-47 and Whitelock 1952:40.)
As for society, the sagas provide us with evidence that the Icelanders spent a great deal of time trying to resolve feuds through discussion, arbitration, or formal legal action. Though they were admittedly a contentious and easily offended people, they believed, like the warrior Sioux, that "hard feelings, and quarrellings between families is not a good thing" (Wax, et. al. 1964:49). From the sagas one also gains the impression that ideally the act of paying a debt resembled the giving of a gift; it did not complete or make final a relationship but initiated, maintained, and legitimized it; so that it was a concrete manifestation of the existence of a social obligation. Thus, a man brought his wife a "morning gift" of silver or cattle which he paid directly to her on the morning after they had lain together. By "buying his wife" he legitimized their children, for only children born of such a union were automatically the inheritors of their parents' property (Larson 1935:72-73; 79-80). When Auðr was saved from violence at the hands of her husband's enemies, she immediately gave her rescuer a gold ring "for his goodwill" (Gísli's Saga, Allen 1936:123). When Hjialti, in Bjarkamál, (Hollander 1936:6, vers. 2), exhorts the housecarls to battle, he reminds them first of all of the gifts given them by their king, "gifts in peace must be gained in war."
Certain of the Icelanders' oaths of peace or truce—formulae to be repeated by both parties after the settlement of a major dispute—have been preserved. These reflect a thoroughly magical point of view. The first part defines a new or different state or relationship to which the oath-takers pledge themselves. The second part consists of the curse which the oath-takers lay on themselves should they deviate from the behavior demanded by the new relationships. A part of one of these formulae (Hollander 1936:80-89) is cited below:
Ye shall henceforth be men
at peace and pledged
at ale and eating,
at thing and at folk-meet, at kirk-going
and in king's hall;and wherever men gather together, there shall ye be so agreed as though this matter had never come between you.
Ye shall share both steel and steak
and all the things that are betwixt
like friends [4] and not like foes. ...But that one of you
who is traitor to this truce
and goes against word given,he shall be as ill outlaw hunted and hated,
as far as men ever an outlaw hunt,
as Christian [5] folk visit churches,
as Heathen folk have hallowed shrines,
as fire doth flame and earth is green,
as babe calleth mother, and mother suckles child,
as folks kindle fire, ships sail the sea, and shields are borne,
as the sun shineth, snow drifteth, Finn glideth, fir-tree groweth,
as falcon flieth on a fair summer-day with brisk-blowing breeze under both his wings,
as the sky arches and earth is tilled, wind doth howl, waters flow seaward, and seed is sown.
He shall shun churches and churched ones,
God's house and men's homes—every abode
but hell only. ...Now, then, are N. N. and N. N. agreed and at one, where'er they may meet
on shore or on water,
on ship or on snow-shoe,
on high sea or on horseback,
to share in the rowing or in baling out,
on bench or on deck,
if need there be,
at one with each other as is father with son or son with father,
in all their dealings. ...
The legal and ethical principles of the Northmen rested upon a particular conception of personal rights (réttr). However, the Northmen did not employ this term in any general or universal sense as we do when we speak of civil or human rights. Rather, it was used in reference to a particular individual, a particular status group, or to a concrete situation (as with Hindu dharma): social status, sex, and maturity entitled one to certain rights and informal reciprocal obligations. One's rank was one's right; in case one suffered an injury, the specific compensations proper to one's rank were also one's right. Moreover, the concept of right was inseparable from concrete action. The just or honorable man was not right, nor precisely speaking, did he do right. Rather, he acted according to his rights or, by taking lawful vengeance, he "did himself a right."
A great part of Old Icelandic and Norwegian law consists of the definition of what individuals of a given rank or status were and were not permitted to do without laying themselves open to a demand for compensation. For example, in Norway any free man had the right to kill a man who attempted to violate his wife, sister, daughter, mother, stepmother, brother's wife, or daughter-in-law, or any man caught in the act of stealing his goods or cattle. He had this "right," however, in the sense that the evildoer, by his act, was considered legally "unhallowed" and therefore he and his kin had no "right" to ask for compensation. Similarly, a man did not have the right to strike his wife "in the sight of assembled men." If he did, she had the right either to ask for as much compensation as he could demand in his case or to leave him and take with her his contribution to the wedding portion and that property set aside to balance the wedding portion (Larson 1935:132-133; 75-76).
In the ancient Norwegian law even the rights of kings were limited. [6] For example we are told (Larson 1935:314-, 278) that:
"It is the king's right to command and to forbid, but [he must] rule according to the law..."No man shall attack another in his [the host's] home, neither the king nor any other man. If the king does this, the arrow shall be sent forth through all the shires, and [men shall] go upon him and slay him, if they are able to seize him; and if he escapes he shall never be allowed to return to the land."
(A token shaped like an arrow was sent through the community to summon the farmers to the Thing. Whoever received the token was obliged to carry it to his neighbor.)
Rights were, in their very essence, personal, individual and private. Characters in the poetic or prose literature always spoke of their personal rights or the personal rights of some specific individual—never of farmers' rights, thralls' rights, women's rights, the rights of the Althing or of all Icelanders. Most offenses and demands for restitution were committed or made by individuals against individuals, and a settlement, when instituted, involved first the offender and the injured person, and then, when necessary, the kith and kin of both parties and, finally, the Thing. On the other hand, the sagas make it abundantly clear that these private acts, like those of a member of an African or American Indian community, were also essentially social or public—in the sense that everyone in the community knew, appreciated, and understood what was going on and, if he wished, could make his influence felt. There was no abstract notion of a society or state against which crimes might be committed and thus no offense could be "social" in the modern legal sense. The one type of behavior that harmed "all the people" or (as the sagas put it) "the folk" was the messy and inconvenient dragging on of a state of hostility. The Icelanders do not seem to have suffered overmuch from this phenomenon until the thirteenth century when the great families began to fight in a fashion which could not be resolved.
Since the system was intended to settle disputes either man-to-man or through the use of arbitrators, there was no need for a formal executive "arm of the law" so long as (1) men were both willing and able to defend themselves, (2) the participants in a dispute were more or less evenly matched, and (3) the community could bring pressures on a proud or contentious man who had refused to accept what everyone considered ajust settlement.
If the Northmen anticipated the modern capitalist in their invention of the balance sheet, they also anticipated him in what we today rather inaccurately call "respect for private property." While it would seem that the Northmen were all too prone to appropriate the property of strangers of enemies, yet raiding as a Viking was defined as an activity entirely different from that of theft. For example, on one of his Viking expeditions, Egil Skallagrímsson and his companions were taken prisoner by a farmer. They managed to escape, taking with them the farmer's treasure chests. But Egil stopped in mid-flight and announced that he would not be a thief. Against the advice of his companions, he returned alone to the farm, set fire to the farmer's house and killed the men as they tried to escape. Then, having won his treasure "honorably," he returned to his friends and, with easy consciences, they sailed away (Eddison 1930:89-90).
However the Vikings may have regarded looting from the outsider, on their home ground they put an extraordinary amount of effort into the establishment of formal rules (Larson 1935:102, 103, 96) which were intended to keep their personal property inviolate:
"No man shall take another man's boat or his horse without his permission; if he does take it, he shall pay one and one-half oras ... No man shall set traps on [another] man's land and, if he does, he shall pay the fine for trespass and deliver the catch to the owner of the land...If a stream runs between farms and there are fish in it, each farmer shall control the half out to the mid-channel, if the have the land on the two sides..."
The laws dealing with the inheritance of property are equally specific and detailed. The complex order of inheritance within the blood and affinal kin groups is precisely stated. Exceptional cases, such as the inheritance of illegitimate children, freed-men, house-carles, ship-masters, partners, guests, and even inheritance by gift are carefully regulated. Sometimes, the listing of fines for the destruction of private property approaches the ludicrous, as for example (Larson 1935:369): "If a man kills another man's lap dog, he shall pay twelve oras." (And it is a lap dog if one can place his hand about the dog's neck so that the fingers meet.)
Apparently only a very few material objects in Old Scandinavia escaped ownership. Among these were the wild bear and wolves. These, a man did not own, since bears and wolves (Larson 1935:103) "are outlawed everywhere, for no man wants to be answerable for their doings." But even this exception was qualified if a man penned a bear in its lair. Then the bear was his property, providing he had given "notice where men come together that the barred lair belongs to him."
It is not to be wondered at that a people who guarded their property so jealously should regard theft as a major crime. Theft was, perhaps, the most repellent deed, a deed so awful that it could not be handled within the bookkeeping system of the law: a man who stole as much as a third of an ounce of silver was outlawed. Most of the laws dealing with theft are intended to be applied to bondmen or thralls (slaves), and they provide one of the very few examples in the legal system of genuine punishment used as a deterrent to wrongdoing. Indeed, with their attitude toward theft, the Northmen began to approach the notion of a social offense. Significantly, the group which here protects itself from offense is the freeborn men, the people who have property.
"If a well-born woman steals, she shall be driven out of the land into another kingdom. If a minor steals, the penalty shall be according to the deed. If a thrall of native birth steals, let his head be stricken off, or let his master clear him with a six-fold oath. [This is an oath taken by the accused and five oath helpers to deny and refute an allegation.] If an alien thrall or the son of an alien [thrall] steals, he shall be flogged, and let his master have him flogged within five days... If a man's freed-woman steals, or a native bondwoman, one of her ears shall be cut off. If she steals a second time, the other ear shall be cut off; and if she steals a third time, her nose shall be cut off. After that she shall be called 'stumpy and stubby,' and let her go on thieving if she likes." (Larson 1935: 167-168)
One is given the impression not only that theft was abhorred in and of itself, but that it was a deed from which all freeborn or decent persons disassociated themselves. Only thralls were expected to steal and the free person who stole was, by implication, no better than a thrall. Also worthy of note is the sharp distinction between an offense and a theft. An offense, such as a slaying, was not in and of itself a dishonorable deed or in any way outside the law if the slayer announced his deed and made proper recompense. But the man who slew or injured the member of another kin group with no intent to make recompense was, by implication, a thief, divorced from honor,
Any injury to the person inflicted in a proper combat situation fell within the law. No shame accrued to either party, providing a satisfactory payment was made. But striking or injuring even a hated enemy in a situation defined as improper was a shameful act that dishonored both the giver and the receiver of the blow. The odium attached to this ill deed seems to have increased in direct proportion to the helplessness of the injured person or his inability to defend himself. The heaviest fines of all were assessed for deliberate mutilation or torture. Castration or cutting out a man's tongue were outlawed. The older Gulathing law places the fine for torture at forty marks—a small fortune. The Frostathing law states that anyone who cuts off a man's hand or foot shall be outlawed or pay a fine of fifteen marks. Accessories to the deed (those who held the victim) were to pay a half wergeld. This intense respect for the person was not extended to thralls or bondmen. As we have noted, the laws order that the latter be flogged or mutilated for theft. But even thralls accused of theft, the Gulathing law warns us, ought not to be tortured, for (Larson, 1935:168) "if a man is tortured to such a degree that he admits the theft, he speaks in fear; and he is guilty only if his confession bears the clear mark of truth."
The sagas, with their interest in human interaction, make skillful use of the dishonor attached to assault or injury suffered outside of proper combat. One high-spirited wife divorced her husband because he accidentally struck her in the face during a pillow fight. Another woman brought her husband to his death because, under great provocation, he had slapped her. More understandable to us is the terrible rage of Thórarin when he discovered that his wife's hand had been cut off during a fracas that she had attempted to stop (Eyrbyggja Saga, Schach and Hollander 1959:28-30). Even children do not seem to have been beaten by parents who expected to have proud and high-spirited offspring. Occasionally we read of a father who strikes a small child, but he is usually presented as a boor.
There is in the Old Scandinavian law a notable emphasis on due process, impartial judgment, precision as to time and place, and eyewitness rather than circumstantial evidence. This phenomenon has already been illustrated in our brief description of the business of putting a man outside of the law. The outlaw, we have seen, was óheilagr—that is, the opposite of hallowed or taboo. He was no longer in the pattern or scheme of things. But a man could be "unhallowed" only through a complicated and highly secular legal procedure. While public opinion, gossip, hearsay evidence, or supernatural sanctions may have operated in actual cases, the law itself gave them no recognition, except, of course, in the oath. The accuser had to produce valid evidence and reliable witnesses and he had to serve his summons exactly at the proper place, the proper time, and in the proper manner.
Due process, valid evidence, impartial judgment, and precision as to time and place are so strongly emphasized in the language of the law itself that it is difficult to cite any law without exemplifying one or more. The following excerpts (Larson 1935: 67, 66, 62-3) are typical of the older Norwegian law:
"If a man who has a debt to pay shall die and the one to whom it is owing survives, the latter cannot obtain his dues unless he comes with witnesses; for no one shall swear a [negative] oath on a dead man's behalf. But he [the heir] shall take an oath that 'to my knowledge the debt did not exist'; then he swears only to what he himself knows and not to the knowledge of the deceased. ... And if this one [the plaintiff] has taken into his doom any near kinsmen on either side or any one closely related by marriage or someone who has a suit against the defendant, these shall arise and leave the doom, and the suitor shall find disinterested men in their stead." [A doom was a tribunal of twelve men called in by the parties to a suit to hear the contention and, if possible, to pass judgment.] "...if a man owes money to another and the debt is known to witnesses, he [the creditor] shall summon him to be at home in his high seat ... to hear the demand for payment and the statement of witnesses.... [The creditor may give him] as brief a respite as he likes, but fifteen nights at the longest. Now he [the debtor] shall say that he will be at home when he comes there. The entire day is available for the appointment, whether the summoner comes early or later in the day but [comes] openly and [while] there is yet daylight. Then the witnesses to the home summons shall be heard at once and after that the complainant shall offer testimony as to the amount of money owing to him. If he (the debtor] refuses to make payment, he [the creditor] must summon him before the thing after five nights, at the shortest, and five times five at the longest, if he knows when the thing is to meet; if he does not know, the business will have to wait till he does know." [When the merits of a dispute were not generally known, the claimant proceeded with a "demand" (literally, a greeting) that the defendant do right in the matter. The defendant then had to comply with the demand or agree to have the complaint heard and considered by a doom.]
The structural and functional resemblances between the Old Scandinavian law and that of many of the recently studied tribal African peoples is striking. Particularly if one compares the Icelanders with a proud, touchy, and warlike people like the Nuer, the specific resemblances are almost uncanny. Both peoples maintained order by a system of fighting or, at least, by standing always ready to fight (Mair 1962:40).
"It is an ideal standard of conduct, rather than a rule, that every man should be quick to retaliate against an offense, either to his honour or to his rights. It is taken for granted that a man who was afraid to fight for his rights need not hope that they would be respected. Yet the knowledge that a man who considers himself wronged will not hesitate to fight, though at first sight it may seem to indicate a condition of lawlessness, is in fact what maintains the law."
A virtually identical point of view is expressed in the sagas. For example, Gísli's saga (Allen: 1936) opens with a series of incidents which demonstrate Gísli's willingness to exact vengeance. He slays Barði for seducing his sister and Skeggi for offering him an obscene insult. He retaliates immediately when Kolbjorn bums his (Gísli's) father's house and twelve of his dependents, by burning Kolbjorn's house "along with twelve men." Thus, we are at once informed that Gísli is an able and valiant young man, zealous in keeping the law as it was then defined.
Nuer and Icelandic procedures for redressing offenses are similar. An offended Nuer may simply go and take a cow from a man who has wronged him. Similarly, Arnkel appropriates seven of his father's oxen when the latter refuses to pay a debt (Eyrbggja Saga, Schach and Hollander 1959:62). Again, a Nuer, like an Icelander, may challenge an offender to a duel. Both societies had elaborate rules for reducing the risks of dueling. Among the Nuer, men who live in the same camp are supposed to duel with clubs rather than spears and older men will often try to separate the duelists. Among the Old Scandinavians, a hold (a formal duel in which the participants went to an island to fight) was fought with both men standing on a single hide. If one man stepped off the hide or a drop of blood fell on it, the duel, in theory, was at an end (Vigfusson and Powell 1905:320-321).
Among the Nuer, kith and kin are much concerned to bring about a reconciliation between feuding lineages and a great deal of time is spent in formal and informal arbitration proceedings. For though feuding is an intrinsic part of the system of law and order, a slaying disrupts what the people themselves consider the normal life of the community. It is believed that if persons between whom there is a blood feud eat or drink from the same dish they will die. Since a feud involves lineages and everyone customarily visits about a great deal, whole villages may have to break off relationships while a feud endures. The saga writers speak with marked respect of noted conciliators and devote many pages to the details of arbitration and to the efforts of "friends of both parties" to bring about a settlement. Men who otherwise were in no way cowardly or bashful, are pictured as refraining for a long time from a deed that would initiate a blood feud, and the saga writers, in telling the story of a feud, usually state very carefully exactly how and where the feuding parties kept their winter feasts. And when one reads that if a Nuer kills a near neighbor, his kin may immediately present a cow to the injured family, signifying their willingness to make good the offense (Mair 1962:45), one is reminded of the incidents in which Gunnar and Njál indemnify each other (Bayerschmidt and Hollander 1955:85-90). All in all, the following statements (Mair 1962: 44,43—italics hers) about the Nuer apply equally well to the Icelanders:
"...although the lineage kin of a man who has been killed are expected to show implacable resentment against the killer and his lineage kin, and do in fact often maintain this resentment for years, many other people are always anxious to persuade them to accept compensation for the injury that they have suffered... When it comes to making peace, the people who are asked to accept compensation...make it very clear that they are yielding only to persuasion, and keep up a show of intrasigence to the last moment."
The Icelandic system for keeping law and order also resembles not only the system of the Nuer but that of many tribal or folk societies, in that no person or group had the right to coerce any free man in any way whatever. As Sveinsson (1953:71) puts it: "Compulsion was the negation of the very spirit of the Commonwealth." No oath or bargain made under force was binding. And no man had the right to order others to stop fighting or to force an offender to pay the man he had injured. There was, in short, no police force, no executive arm, no purely secular authority at all—in the sense that we understand the term. A court might hear a case and decide on a proper settlement, but this decision merely gave the plaintiff the lawful right to take what had been awarded to him.
So long as one remains on the level of structure or function, the legal practices of the Old Scandinavians seem very similar to those of the Nuer, the Samburu, or other pastoral African peoples. But when one compares detailed case histories, and especially magical or quasimagical legal practices, certain striking differences immediately become apparent. Among the most obvious of these is the disposition of the African peoples to use the curse as a means of paternal or paternalistic moral coercion. That is to say, if the participants in a quarrel, feud, or lawsuit are immoderately stubborn, an elder or council of elders may threaten to lay a curse on the troublemaker(s). This threat is often sufficient to bring about a speedy resolution of the hostile situation. Or if the curse is pronounced, the "offender" may repent, offer gifts and recompense, and have the curse lifted. Judging by most of the cases related in the old literature, the Icelanders and Norwegians used the sanctioned curse somewhat differently, turning its power on themselves, swearing to live in peace with their co-swearers as bloodbrothers, and laying the most dreadful penalties on themselves should they fail to keep their word. One might say that the Nuer or Samburu use the curse like a paternal rod, to pacify quarreling children, whereas the Old Scandinavians used it as a self-imposed fetter, binding the oathtakers into a state of peace. Whether this difference in emphasis—the African paternalistic curse as opposed to the Old Scandinavian contractual curse—reflects a basic difference in the social system or a difference in level of political sophistication, I am not now prepared to say. I am inclined to see the magical contract as more sophisticated, since it involves the enlargement of familial or regional relationships and could be used in the development of confederations.
There is some evidence that the Icelanders of the latter part of the tenth century did, on occasion, use the curse as an instrument of moral and even jural retribution. When Egil Skallagrímsson was, as he thought, unlawfully used by King Eiríkr, he recited an anathema against the Earl, asking the gods to punish him. Subsequently, Egil erected a níðstong, a "spite-pole" with a horse's head on it, and, turning the head toward the land, he announced that he was turning this níð against the Beings of the land who would now go wild and take no rest until they had driven the erring King and Queen from the country (Hollander 1945:58-0; Almqvist 1965:215-216). Another interesting case appears in Heimskringla where Snorri related that the Icelanders "put into law" that all Icelanders heap shame on Harald Gormsson, King of Denmark, by composing níð verses against him. This, to them, was a lawful action justified because the Danes had appropriated the cargo of a wrecked ship owned by Icelanders. Unfortunately, Snorri does not explicitly state that these verses were supposed to excite the rage of powerful Beings against Harald. We learn only that Harald decided to avenge this "insult" by invading Iceland and so sent a warlock to spy out the land. The warlock took the shape of a whale but was driven away by the fierce and powerful Beings native to Iceland. When Harald heard the report of his warlock spy, he sailed home (Hollander 1964: 173-174).
No doubt a study of the literature would reveal other instances of cursing used as an instrument of law and justice and even instances in which an individual refrained from committing an offense because he knew that the offended person would have the moral right and the Power to curse him.[7] But the precise meaning of these incidents is hard to assess because the recorders—either out of disenchantment or Christian piety—were often disposed to underplay or omit the notion of moral magical retribution in the heathen scheme of things.
That the Scandinavians of the old heathen times took the oath of truce and blood-brotherhood very seriously is suggested by the context of the heroic lays and by the fact that almost all of the oath-breakers mentioned in the lays promptly proceed to unpleasant ends. For example, in the Fragment of a Sigurd Lay Gunnar and Högni swear the oath of blood-brotherhood with Sigurð and then slay him, whereupon a raven "wrathfully" warns them: "your mainsworn oaths will murder you" (Hollander 1962:244 vers. 5). In the First Lay of Guðrün, Sigurð's widow tells his slayers "May ye lose your land, and lieges also, as ill ye kept the oaths ye sware" (Hollander 1962:250 vers. 21). And in the ancient second lay of Helgi, the Hunding Slayer, Sigrún, on hearing that her brother had slain her lover, begins to curse him with the wish that all his foresworn oaths (to her lover's kin) strike him down (Hollander 1962:198, verses 30-33). Even the downfall of the gods is traced to the breaking of their contract with the giants (Vóluspá, vers. 26, Hollander 1962:5).
That the Icelanders of the tenth and eleventh centuries customarily used the contractual oath-curse is suggested by the fact that it was written down in a twelfth century compilation of laws. Moreover, the laws and curses of various kinds are frequently mentioned in the sagas. On the whole, however, the attitude of the classic saga writers of the thirteenth century was disenchanted. None wrote a saga demonstrating in detail how an oath or truce breaker was punished by the curses he had placed upon himself Gísli (Allen 1936:17-18) tries to avert discord by the suggestion that he, Thorgrím, Thorkel, and Vestan swear an oath of blood-brotherhood, but the attempt goes awry. Víga-Glúmr (Head 1866:102-103) puts an end to a lawsuit by swearing falsely on the ring of the god Frey that he has not committed a particular slaying. Frey does not punish this insult so long as Glúmr keeps the Power-filled weapons and cloak given to his grandfather by Óðin. But, when Glúmr gives these away, his "luck" is gone, and he loses his status and property.
Some of the tribal peoples who keep order through the feud assert that if they do not avenge a slain kinsman his ghost will torment them and bring misfortune upon them, the implication being that the ghosts of the dead lack the power to avenge themselves and must drive a laggard kinsman to the deed. This particular notion does not appear either in the sagas or the early literature. Even in the oldest known source of Hamlet, which appears in Saxo Grammaticus and is, apparently, derived from a very ancient tale, Hamlet's murdered father does not walk (Gollancz 1898). On the occasions when a vindictive ghost does walk, he is quite capable of taking out his spite for himself, killing cattle, and frightening to death the humans who see him (Eyrbyggja Saga, Schach and Hollander 1959:69-70). In general, it is the living kin of a slain man, and especially his female relatives, who egg on the avenger.
On the other hand, the heathen Icelanders were anxious to keep the men they had slain in their graves. When Véstein is buried, Thorgrímr, who has killed him, binds the Hel-shoes on his feet, remarking, "I do not know how to tie Hel-shoes, if these come loose" (Gísli's Saga, Johnston 1963:19). Later, when Gísli slays Thorgrímr to avenge Véstein, he, in his turn, drops a great rock upon Thorgrímr's burial ship, remarking, "I cannot make fast a boat if the weather moves this one" (Johnston 1963:25). But whether these slayers were afraid that the walking dead would harm them or inform upon them, we are not told, though judging from the few narratives we have of the matter, the walking dead sought to exact a personal retribution.
Another magical sanction that seems to be weak or lacking in the Old Scandinavian literature is the belief that a slaying charges or pollutes the slayer and his kin with Power deadly to them and to others. Until this Power is neutralized by ceremonies or conciliation, normal social existence cannot be carried on (cf. Mair 1962: 43-45; Chona, Papago Woman 1936:13-18). On the other hand, the saga writers suggest that the heathen Icelanders placed great emphasis on the ancient Old Scandinavian sanction which forbade fighting and bloodshed within the precincts of the Thing. This, however, may be a reflection of the power of the oath of truce which the participants in the Thing laid upon themselves. (Tacitus mentions that the assemblies of the German tribes were placed under divine protection which would make a breach of their peace an act of sacrilege.)
Another magical sanction of certain relatively sophisticated tribal societies, is the notion that it is far more seemly to pay back an offense through sorcery than through violence (Thomas 1962:2). [8] In such societies, the correct behavior for an injured man is to treat his offender with outward courtesy and, simultaneously, bewitch him. Any show of violence—even a harsh word—is improper. There is, so far as I know, no indication that the Northmen ever deemed sorcery more seemly than a blow with a sword or spear. Thór, the most popular deity of all, seldom does anything that is not violent. And Óðin, the greatest of sorcerers, uses his Powers to incite men to combat. The heroes, skalds, and chieftains much prefer fighting to casting spells and, in the sagas, those men who hire male or female witches to curse their enemies are usually presented as pusillanimous, while the witches themselves are usually of low social status. A notable exception is the Viking poet, Egil Skallagrímsson, who curses King Eirík Bloodyaxe, but few persons who read the saga can doubt that Egil would have preferred to take vengeance with his own hands. The only Old Scandinavian tales that carry some flavor of a moral preference for witchcraft as against open violence are those which involve the sanctity of the community of the gods. When the gods bind the Fenris-Wolf with the magical rope made by the dwarfs, the implication seems to be that this is a wise and moral act, far preferable to shedding the blood of a hostage within the sacred precincts of the gods' abode.
I do not wish to imply that the Northmen of high heathen times were inexpert or reluctant sorcerers. From Skaldic verse (Ynglingatal) composed in the first half of the ninth century, one gathers that sorcery was common practice among the ruling folk of Sweden (where heathendom prevailed longer than among the other Scandinavians). But it does seem as if the heathen Norwegian and Icelandic warriors of the tenth century were beginning to regard certain types of witchcraft as beneath them. Of all the notable men of the classic sagas, only Egil is depicted as a practicing magician.
In societies pervaded by the magical world view, a man who suffers misfortune or serious illness tends immediately to wonder who among his acquaintances dislikes him sufficiently to hire a sorcerer to bring trouble upon him. Alternatively, he may wonder whether he has offended a Being of Power who is paying him back by visiting misfortune upon him. If his troubles continue he will hire a diviner to find the source and then proceed to make peace with gifts or by offering other means of conciliation. Or, if he suspects that he has been unjustly bewitched, he may hire a counter-sorcerer or go to law and turn the magical sanctions of the elders against the sorcerer. A similar modality of action may be maintained in the art or drama of highly sophisticated societies. Thus, the Greek tragedy of Oedipus begins with the onset of a terrible plague; the "cause" of this plague is then sought through divination, whereupon the gods disclose that they are angry because a tabu has been broken.
This point of view plays a very minor role in the Old Scandinavian literature. There are only a very few incidents or anecdotes which begin with a mysterious ailment or misfortune which is subsequently explained by divination and cured. The clearest case appears in Egil's saga when Egil discovers that a young woman's illness comes from improperly cut runes left under her bed by a hopeful young man (Eddison 1930: 174-5, 182). Another example occurs in Eyrbyggja Saga, where Thorbjorn consults a diviner to find his lost cattle (Schach and Hollander 1959:26-27). As far as the literary form is concerned, the emphasis is always the other way around, the narrator beginning at the beginning of a sequence of events, hiding nothing, and presenting his materials so as to demonstrate the inexorable workings of fate. This procedure sets the second sight quite outside the area of morality or law, for what we get are numerous incidents in which wise individuals foresee what is going to happen without being able to do anything about it. This variety of second sight, I suggest, is at some remove from being thoroughly magical and is related to the heroic traditions discussed in Chapter 9.
There are in the sagas a number of interesting incidents in which ordinary folk who appear to be living solidly within an enchanted view, ask the advice of men (e.g. chieftains) who are pictured as more sophisticated and sceptical. Thus, the people who are being haunted at Fródá (Schach and Hollander 1959:105-117) may have approached Snorri goði as they would a diviner. In this account, the mistress of the house had invited Thorgunnur, a wealthy woman traveler whose goods she had coveted, to stay at the homestead. Thorgunnur, who obviously was gifted with mysterious powers, died with the urgent request that her beautiful and costly bedding be burned. But the greedy housewife had insisted on keeping them. Finally, the master of the house and his men were drowned while fishing, and at their funeral feast, they had walked into the hall, dripping wet and sitting at the fire "without returning anyone's greeting." Folk at first had taken this for a good omen, "for at that time," the narrator tells us, "a great deal of heathendom still prevailed even though all the people had been baptised and were nominally Christians." But when the feast was over and the revenants kept appearing night after night, wringing out their wet clothing, and were then joined by seven additional recently buried dead men "all covered with earth ... the people of the household fled from the kitchen, as was to be expected." The next night they built their fire in another room but the ghosts followed them there. Finally, two fires were built, the ghosts appropriating the larger and the living members of the household, the smaller. After additional marvels and deaths, Kjartan, a bright youth, went to his uncle, Snorri goði, and asked advice. Snorri's advice was eclectic and inclusive. Following it, they burned the bed curtains as their dead owner, Thorgunnur, had suggested. Next they summoned the revenants to a court held at the house door and cited them for "haunting the house without permission and depriving people of health and life."
"Then the door court was set up, the charges were stated, and the procedure was exactly as at an assembly court. The testimony of the witnesses was heard, the cases were summed up, and the verdicts given. When sentence was pronounced against Thórir Woodenleg, he got up and said, 'Sat I have while the sitting was good.' Thereupon he left by way of the door before which the court was being held."
The remainder of the revenants were also sentenced, arose, and left, though it "was obvious from their comments that they were reluctant to leave." A priest then carried holy water and relics through the house and sang a solemn mass, after which all apparitions and haunting at Fródá ceased.
In another case (Hollander 1964:80-81), King Harald Fairhair loved a beautiful and magically gifted woman who, like Snow-white, died and remained ruddy and unchanged in appearance. The King neglected his duties to sit by his wife, imagining that she would revive. Finally, the people consulted Thorleifr the Wise, who cured the King of his illness by suggesting that he dress the corpse in fine new raiment. Thereupon the corpse disintegrated and the King "was brought back to his sense and reason, and swore off his folly." Finally, there is the case of Gísli (Allen 1936) who, though a valiant and able man, was unjustly outlawed and, moreover, was never able to get his brother or his friends to help him redress his case. He does, however, obtain help from people who live on the outer islands. The saga writers derive this ill luck from a spell cast by Thorgrímr Nose—a spell which extended only to the main and not to the outlying islands. And since Thorgrímr had been slain by Gísli before lifting the spell, there was, seemingly, nothing that could be done about it. While this is not precisely an example of divination it is, nonetheless, a thoroughly magical explanation of a misfortune put forward either by the folk who passed on the story of Gísli or by the man who recorded it. The incident is interesting on another level because it is one of the few cases in which sorcery plays a role in formal legal action—that is to say, if Thorgrímr had not cast the spell, Gísli's friends would have stood by him at the Thing and he would not have been outlawed. On the other hand, since Gísli's saga is one of the most fate-oriented of the sagas, there may be a more subtle explanation: Gísli is fated to be outlawed and slain; therefore he is also fated to injure Thorgrímr, be cursed, and then kill Thorgrímr before anything can be done about the curse.
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Last Modified 3 May 2000
Comments to Manny Olds, oldsma@pobox.com