In Denmark, the local assemblies (herredsting) formed the courts of law. These had originally been administered by the peasant landowners, but beginning in the thirteenth century they came increasingly under the control of the aristocracy, which during this period acquired ownership of most of the land, while the majority of the peasants became their tenants. The new landowners eventually became the patrons of their tenants, while at the same time they also received the fines their tenants paid when convicted in court. A tenant would thus have to face the court with the knowledge that his patron would profit from his conviction!
Nevertheless, there is evidence that the sway of royal justice also expanded during the second half of the thirteenth century and the first decades of the fourteenth, both in Denmark and Sweden. Special royal courts of law emerged with jurisdiction above the local courts. They served partly as courts of appeal and partly as courts of the first instance, though the latter mostly for the aristocracy and the upper classes. While in the 1282 statute of the diet of Nyborg, issued in favor of the aristocracy, the king promises to bring his cases before the ordinary local courts, the statute issued by King Christoffer II at his accession in 1320, which is equally aristocratic in its contents, takes a special royal court of law for granted. A royal court of law also developed in Sweden in connection with the peace legislation. As for Iceland, the main changes came with the island’s submission to the king of Norway, which led to new legislation, based on similar principles to that enacted in Norway (in 1271–1273 and in 1281), and to a system of public justice administered by royal officials. There were however already detectable tendencies in this direction in the principalities formed by the great magnates in the first half of the century.
In all three countries, homicide was in principle punished by outlawry, which meant that the culprit had to leave the inhabited community; if not, the victim’s relatives could kill him without incurring punishment. However, outlawry in Denmark and Sweden only applied to the law district where the crime had happened, whereas in Norway it applied to the entire country. In practice, therefore, feuds and revenge could continue more easily in the former countries, particularly among powerful men, and the resolution of such conflicts was more often the result of negotiation than of formal judicial procedure. Although the Danish and Swedish kings tried to restrict feuds, they were prevented by the strong aristocracy in these countries, who resented infringements on their freedom to uphold their honor. Feuds between nobles were not banned in Denmark until 1683. The sources give evidence of a number of feuds in Denmark in the later Middle Ages, particularly among the nobility. The king often tried to mediate between the parties and to regulate the conduct of the feud, but he had no power to prevent it.
In 1405 Queen Margrete personally intervened in a conflict between two noble families. The County Justice of Jutland, Lord Jens Nielsen (Løvenbalk) of Avnsbjerg had killed Jens Jensen Brok of Clausholm. Accompanied by two hundred noblemen, the killer knelt before the victim’s widow and family and humbly asked the victim’s father for forgiveness with the words, “If I were the noblest and most powerful knight in Denmark, I would also have entered such an agreement.” He then transferred a substantial tract of land to found an altar on which a priest appointed by the deceased’s descendants would say masses for his soul in perpetuity. The formula spoken by the killer illustrates the attitude that made it difficult to abolish feuds, particularly within the nobility. The only real compensation for the loss of a life was another life. Consequently, the man who accepted fines as compensation for a dead relative risked incurring shame. To avoid this, the one who paid the fine had to swear an oath that he, too, would have accepted a fine if he had been in the opposite situation. Such oaths are known from the Icelandic sagas, and they became a standard condition in settlements between nobles in the later Middle Ages. Although the killer in all likelihood paid a heavy fine to the victim’s kinsmen, it is probably significant that this sum is left unmentioned, whereas there is a detailed account of the gifts given to the Church to purchase masses for the dead man’s soul. In this way, any intimation that the receivers profited from the death of their relative or preferred material goods to revenge was avoided. Nor could the king or royal officials feel safe against attempts at revenge for actions they had taken in their official capacity. Consequently, the king also had his opponents issue letters of reconciliation. It must be added that Denmark was probably closer to the European average in this respect than Norway. Feuds and revenge were not prohibited in France, for example, until the first half of the fourteenth century and then only as a measure to unite the country against attacks from England during the Hundred Years’ War. England forms an exception in this respect, for here a system of public justice and strict rules against feuds and revenge developed from the twelfth century onwards.
In order to prevent feuds in Norway, the king became directly involved in cases of homicide. To ensure that the crime was punished in the proper way, without setting off a series of feuds, the royal representative, the sysselmann, had to handle matters and send the offender off to the king with a letter explaining the circumstances of the crime. The king then normally would pardon the offender on the condition that he paid compensation to the victim’s relatives and two heavy fines to the king himself, one as compensation for having killed the king’s subject and one to buy his peace. A number of such letters have been preserved, from the early fourteenth century onwards, including some of the sysselmann’s reports, which often give a vivid picture of the event and of contemporary local society.
In the year 1501, a certain Jon Eiriksson killed one Olav Olavsson. We have the following account of the circumstances: Olav had wanted to buy a horse from Jon. Jon refused, because he had had trouble in earlier dealings with Olav and his father. A heated discussion broke out, which eventually touched on a horse Jon had bought from Olav’s father and with which he was dissatisfied. Olav’s reply to Jon’s complaint was: “If you regret that horse, may you get it back again and in your arse and may you ride straight to the devil on it.” Jon answered, “May God let no one ride there.” Jon then left the house where the quarrel had taken place, intending to go home. As it was dark, however, and the host asked him, he returned and sat down, whereupon the quarrel started up again. Olav stood and stabbed Jon, who stabbed back and killed Olav. He then left the house and declared that he had killed Olav. The sysselmann ends his report by declaring that he has received trustworthy evidence of the event and that the culprit now needs God’s and the king’s grace. At this point in time, the king did not decide in person; from around 1400 at the latest, such decisions had been delegated to the chancellor.
Figure 8. The king hands over a letter of pardon, from the fourteenth-century Codex Hardenbergiensis. The Codex, named after its owner in the sixteenth century, is a collection of legal texts, written by altogether thirteen scribes at different dates. It includes a richly illuminated manuscript of King Magnus Håkonsson’s Code of the Realm, dated to ca. 1325–1350. Facsimile from the Codex Hardenbergiensis, Corpus codicum norvegicorum medii Aevi, quarto series, vol. 7 (Oslo, 1983), facsimile 15v, page 66. Dept. of Special Collections, University of Bergen Library.
The letter is in many ways typical. It uses a standard terminology and some standard formulas, such as the final line about the need of grace. The killing is referred to euphemistically—the killer “happened to harm” the victim, which meant that the killing was not premeditated. (In some case documents, it is added that there had been no enmity between the parties beforehand, which was important, because killing in revenge was considered more serious than killing spontaneously.) As usual, there is no shortage of witnesses. Most killings took place in public, normally in connection with drinking, and this was the case here as well. The sysselmann names the witnesses and takes care to quote exactly what they have said. In contrast to ecclesiastical officials, however, he does not examine the witnesses separately; his report gives the impression of being the collective account agreed
upon by the local community. It is a detailed and vivid narrative, which resembles similar episodes in the Icelandic sagas, but it is not told for the sake of the story. Rather, the details in the account are relevant testimony necessary to inform the king’s decision. Its aim is to show that Jon had been seriously provoked; we may suspect that the witnesses and perhaps also the sysselmann have contrived to tell the story in such a way as to get Jon off as lightly as possible. Olav’s words, quoted above, are highly insulting, while Jon’s answer is a model of moderation and self-control. It is significant that Olav refers to the devil and Jon to God. Moreover, it speaks in Jon’s favor that he wanted to leave the party in order to avoid further quarrelling, as he in fact did after the killing, when he went directly to the house next-door to report the crime, a report being absolutely essential if he was to gain the king’s pardon. According to the law, a killing must be reported in the nearest house, unless it belongs to a relative of the victim. If the killing has not been reported, it no longer counts as “a harm that has happened,” but as murder. Unfortunately, we do not know how this particular case was settled. We know from other cases, however, that the conditions for gaining the king’s peace might vary, but there are no cases where both the report and the king’s decision have been preserved, so we cannot weigh the importance of the various aggravating or attenuating circumstances for the outcome.
The idea of crime and subjective guilt would logically imply a focus on individual responsibility. Nevertheless, even in thirteenth-century laws, a large number of relatives have to contribute to paying one man’s fine, while an equally large number are entitled to receive it, the amount for each depending on how closely they were related to the deceased. Traditionally, these rules have been considered evidence of extensive kindred solidarity in the old society, in accordance with the idea of a society of kindred. More recently, scholars have objected that the rules often give the impression of being learned constructions without any practical importance; thus, the rules of the Norwegian Law of Gulating from the eleventh or twelfth century seem so complicated that it difficult to imagine how they might have been put into effect. Moreover, as we have seen (above, p. 16), most scholars nowadays reject the idea of large family clans in Western Europe, including Scandinavia, in the Middle Ages and earlier. An alternative theory is therefore that these rules were new and may even have been introduced by the Church or under ecclesiastical influence, whereas, according to the old theory, the Church was the main opponent of kindred solidarity and a staunch proponent of individual responsibility. Arguments in favor of this view are that collective responsibility is not mentioned in the earliest Danish laws and that a passage in the Law of Jutland (1241) defines relatives within the fourth degree as liable to pay fines, which corresponds to the incest prohibitions introduced at the 1215 Lateran Council.
However, the fact that the degree of kinship is consonant with canonical rules is not evidence that kindred solidarity as such was invented by the Church. The absence of the rule in the earliest Danish laws is a more serious objection, but on the other hand, there are detailed rules about collective responsibility in the Norwegian Law of Gulating, which is older than the oldest Danish laws. Moreover, the evolution of the Norwegian laws corresponds perfectly with the traditional theory. They show a gradual reduction of the importance of kindred solidarity until the Code of the Realm is reached (1274–76), which only demands payment from the killer to the victim’s nearest heir. The Swedish laws, which all date from the second half of the thirteenth century or later, are divided on the issue; some require collective payment, others do not.
From a practical point of view, collective payment has much to recommend it, as it increases the chance that the victim’s relatives will get full compensation; not all killers would be able to pay a heavy fine alone. An objection might be that individual responsibility would be weakened and that people might kill more readily if they knew that they would not have to pay the full damages themselves. However, this argument may also be turned upside-down: collective payment would guarantee that responsible people within the kindred would control their young hotheads and thus prevent killings in the first place. Scholars who believe in ecclesiastical influence attribute arguments like this to the Church. If that were the case, however, kindred solidarity must already have been a factor; it is difficult to imagine the churchmen being so unrealistic as call upon nonexistent kindred solidarity to prevent killings. But if the solidarity was already operative, what prevents us from believing that collective fines might also have been customary before the Church intervened? The evidence from the Law of the Gulating is a strong argument in favor of this assumption. As for the oldest Danish laws, they can be read as suggesting either that collective responsibility existed in some places but not in others, or that the earliest laws left it to the parties themselves to arrange compensation. In this context, it may be pointed out that fines were by no means the only way of settling a murder case; as we have seen, there is evidence, even from the later Middle Ages, that taking revenge was considered a more satisfactory and honorable action than accepting a fine.
Finally, the collective payment must be considered in connection with collective revenge. There is ample evidence, both from the Icelandic sagas and the laws of the three Scandinavian kingdoms, that not only the killer himself but also his relatives could be killed in revenge. There is also a clear connection between the abolition of collective revenge and collective fines in the Norwegian laws. In his 1260 decree against manslaughter, Håkon Håkonsson restricts the number of relatives entitled to fines, while at the same time curtailing the right to revenge by forbidding the killing of others in the place of the killer himself. In the Code of the Realm, King Magnus completely bans revenge, while restricting the right to fines to the victim’s direct heirs and abolishing the payment of fines by the killer’s relatives. While it is possible that the Church introduced collective fines, it is inconceivable that it would also have introduced collective revenge. Consequently, both phenomena are likely to have their origins in the early period, although collective fines were clearly more acceptable to the king and to the Church than collective revenge. This does not mean that the exact rules found in the laws were of ancient origin, however. Kindred solidarity may well have been less extensive as well as less formalized in the early period. The numerous examples of revenge and conflict in the Icelandic sagas show people seeking support from relatives, but not according to specific rules about proximity. The rules found in the laws may therefore well be artificial, though not without some connection to actual links between people. The argument that the detailed rules are unrealistic and that people were unlikely to know their ancestors up to the seventh degree is not convincing, for there are examples of illiterate societies in other parts of the world where knowledge of kinship relations is equally exhaustive.
Regardless of the origin of collective payments, the practice was clearly handled differently in the different countries. Its abolishment in Norway already in the 1270s was exceptional. Danish provincial laws that included this provision were in force until 1683, when they were replaced by Christian V’s Danish Law, the first code that applied to the whole of Denmark. The Swedish Code of the Realm of 1350 emphasized individual responsibility and made the punishment more severe. A killer caught on the spot or within twenty-four hours after the murder was liable to the death penalty, whereas afterwards, he could atone by paying fines. If he were to die before the full amount had been paid, however, his heirs would be responsible for the rest. Despite this provision, there is evidence of collective responsibility in Sweden as late as in the seventeenth century.
Royal legislation developed parallel to the expansion of royal justice. The earliest provincial laws of Norway were written down in the late eleventh or early twelfth century and the earliest Danish ones in the late twelfth or early thirteenth century, while in Sweden the earliest written laws are of the late thirteenth century and later. These laws are not codes issued by a l
egislature and organized in a systematic form, but rather records of what were believed to be the laws of a particular area. These Scandinavian laws have been the subject of much discussion. In the nineteenth and early twentieth century, the extant written laws were mostly believed to have been preserved orally over centuries and were used as sources for an alleged ancient, common Germanic law. This theory is now almost universally rejected and greater importance has instead attached to the king and the Church, although there is still disagreement about what is old and what is new. Influence from canon law can be traced already in the earliest extant laws, the late-eleventh- or early-twelfth-century Norwegian provincial laws, but these laws also contain elements that point to a traditional or popular origin. In particular, it would seem that the procedural rules in many cases reflect established practice. In a similar way, some provisions in thirteenth-century Swedish laws resemble statements in early-medieval runic inscriptions.
The royal legislation of the thirteenth and fourteenth centuries, the Danish Law of Jutland (1241), and the Norwegian and later the Swedish Code of the Realm (1274–77 and 1350, respectively) represent something new. They are codes issued by a legislative authority, they show greater influence from Roman and canon law, and they are composed in a systematic way. The Law of Jutland opens with a passage influenced by Gratian’s Decretum:
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