Sigfred, Arminius and Other Papers
The Voice of the recorded law.
What scanty direct knowledge one can get of old heathen custom or common law among the Scandinavian peoples must be gathered from two main sources --- first, the Eddic Lays, the product of the Wicking-tide; and secondly, the traditional lore embedded in the works of Ari. These may be supplemented by the Histories of Adam and Saxo, and the Icelandic Family Sagas (which last are to be used with caution), as also by notices scattered here and there in foreign chronicles. The comparative method, of course, helps us to get a better idea of the whole condition of early Scandinavian law, by the evidence it supplies from the law of the other Teutonic peoples.
It is not safe to build upon the later Icelandic law-books. In the first place they give us Icelandic law not Scandinavian law; they reflect the peculiar characteristics and idiosyncrasies of the new Settlement and the Land which it occupied. In the next place they represent a distinctly later stage of legal development, and came out of what we might call the legal epoch of Icelandic history (1050-1135), when Christendom was wholly accepted, and when the foreign influences it brought with it had deeply tinged the ideas and ways of leading Icelanders.
With later Icelandic law proper we hope some day to deal elsewhere, and it is not proposed in the present little paper to touch on the notices of the earlier law given by Ari, but simply to classify roughly the material yielded by the Eddic Lays, and add a few words upon the conclusions they appear to suggest.
The words and phrases here gathered together have, as might have been expected, more to do with adjective than with substantive law, and fall mostly under those great heads of procedure, family, property, crime, and contract with which the XII Tables and other early codes and custumals are chiefly taken up.
I have not tried to force the classification into accordance with modern law.
The worth of the evidence taken from these poems is even greater than if it were gotten from archaic law-books, and they often contain theoretic law, whereas here the allusions and incidents supplied are drawn after the quick, taken from actual life, and reflect the every-day practice of the time.
The different Lays, as might be expected, are very unequal in the amount of matter they yield. Of the older poems, the Guest's Wisdom has a few valuable words, and the Old Play of the Wolsungs several important allusions. Of the Western poems Loka-senna and the Long Brunhild Lay, which are better preserved than most of the rest, supply much material of the later poems. The matter-of-fact and prosaic Gripi Lay (which as the editor of the C. P. B. suggests may even be Icelandic) is helpful, but most rich of all is the Greenland Lay of Attila, which one might take to be the work of some early Greenland Law-Speaker on as good evidence as persuades the commentators that Shakspere served his articles and spoiled sheepskin in his youth. Ynglinga-tal is full of old law-words, and Egil once or twice has a vivid allusion. The Thulor (ll. 21-32, 113-222), compiled from poems older than the twelfth century at least, have preserved several terms which would otherwise have perished with the verses from which they are taken.
It must be remembered that these Lays are not the product of one single Scandinavian stock or tribe, but that they were composed for and no doubt by men of very different origin. Throwends, Reams, Danes, Swedes, Goths, Halogamen, Rugians, Neams must all have listened to them; though, judging from the evidence of Landnáma-bóc, the bulk of their hearers would have come from the west coast of Norway or the Wick. Hence one must not be surprised to find many parallel phrases, or disappointed at not being able in every case to draw a clear distinction between the different terms used with like connotation. Each tribe or folk had of course its own peculiar law-phraseology, though there was, as we shall see, a general consensus in legal plan and idea over all the Scandinavian area.
Certainly here if anywhere we must look for the earliest traces of Teutonic law and polity. It is with a full knowledge of the evidence which they furnish that we must supplement and develop the brief rapid sketches of Caesar, Strabo, and Tacitus.
There can be no pretence of Roman influence on the tribes whence the makers of these Lays came; even the Irish and Old English legal systems have left scarce a trace of their existence in the whole of these Lays. Such conquering and colonizing hosts as those from whose midst these Lays issued, do not take the law of their subjects and prisoners, but impose their own on them. The one division of law in which the influence of the conquered race must have needs asserted itself --- the land-law --- is but little touched on in these poems.
The Old English poems (with which I hope to deal elsewhere) present the nearest parallel to these, in their preservation of archaic law-terms and phrases and their pictures of early Teutonic life and polity; but I have thought it best to keep the two masses of evidence separate, and have only a stray reference to them here and there. With the same view of giving as far as possible the plain facts, I have not filled up the blanks or gaps from Saxo or the later Northern authorities.
There is some inequality between the sections into which I have divided my material, but this is a natural inequality and gives a rough index of their relative weight in the daily life of their age.
I have used the 'Corpus Poeticum Boreale' for the text and numbering of the poems I quote from, as well as the abbreviations for the titles of the poems (see C. P. B. ii. 659), and have marked corrected texts with cor. In the Excursus on the Metaphors of Old Northern poetry in vol. ii. pp. 445-86 of that work will be found some illustrative matter which I have not repeated here, as it is already accessible to English scholars.
The mosaic which may be put together out of these various fragments is a striking one; it testifies to the long existence of a regular system of law, as far removed from mere savage customs on the one hand as it is on the other from the Roman polity (by which it was to be so powerfully affected in England), a system rough and simple to the first glance, but at the same time a system capable of growth and adaptation to a wider and more complex set of social phenomena --- a system which after all is the direct well-spring of that under which we live.
The following is the arrangement adopted as the most practically convenient: ---
I. War-law --- age for service, declaration of war, truce, hostage, captive, booty, heralds.
II. Feud --- causes of feud, settlement of feud, compensation, arbiters.
III. Procedure --- moot, court, pleading, ordeal, combat, punishment.
IV. Crimes --- greater or bootless and lesser.
V. Oaths --- oath taking, perjury.
VI. Family --- kinship, fosterage, sworn-brotherhood.
VII. Marriage --- wooing, espousals, wedding, dowry, morning-gift, marriage-ties, polygamy, polyandry, divorce, concubinage, adultry.
VIII. Property --- heritage, landed estate, slaves.
In the North, especially in Denmark, there was a tradition that many of the customs of this War-Law owe their origin to a king whose eke-name Fróði (Wise) has alone come down to us, and the regulations for discipline and good order on board the Wicking fleets were adorned with the sanction of his name. Professor Steenstrup discusses this subject with his wonted ingenuity.
The citizen, looked at, as it were, from the outside of his own state, was the free warrior of full age, the words for free-man and warrior being identical; cf. such common expressions as 'seggr,' exactly as the same terms which apply to the Armed Nation in the pitched field, may denote the Whole Congregation at the moot, cf. al-þióð. Many of the ordinary regulations of daily life were modified or affected by the importance of war. Thus among the Northern Teutons the coming of age appears to have been fixed with reference to service in war as much as to puberty. The same age as the Kentish gavel-cind custom has kept up the remembrance of in England is mentioned in the Helgi Lays, 'When the prince was fifteen winters old.'
þa es fylcir ........ was fimtán uetra. Helg. I. 38.
Children younger than this were irresponsible beings left to the care of their mothers or foster-parents, e.g. the children of Gudrun, the children of Nidad, the child of Sigfred, in the Lays of Gudrun, Weyland, and Attila.
The terror caused by the invasion of the Huns is shown in one poem by the levy of the whole nation, the arriere-ban being called out, and the age of service being lowered to twelve instead of fourteen for men, and two instead of three for horses.
uel scolom uer Hlœðr herlid bva
með tolf-uetra mengi oc tuæ-uetrom fola. Hlod. 59-61.
The declaration of war took place as by the Roman fecial law, by words of challenge and the casting of a spear.
oc láti sua Óðinn flein fliúga sem ec fyr mæli. Hlod. 94.
Sometimes the time and place were fixed for a battle, and a regular summons issued as if for a moot. The battle-place or field was pitched or squared out with posts and lines, as the court at a moot. Our prize-ring and the mediaeval wrestling ring and lists present traces of this custom.
Býð-ec yðr at Dylgio oc at Dun-heiði
orrosto undir Iosur-fiollom. Hlod. 91-2.
Mer hefir stillir ........ stefnt til eyrar
þriggja nátta scylac til þings coma. Helg. II. 55-6 cor.
In these instances the very phrases 'bióða orrosto,' 'stefna,' 'eyri,' which are later only applied to the private wager of battle between two men at feud, are used of the regular conflict between two tribes or races.
The same regulations, which afterward survived as to the judicial combat, were held with regard to public war in old days, and the Teuton like the Spartan used to take care to go to battle, as he went to moot, combed, washed, and with a fully belly.
cemðr oc þueginn scal cœnna huerr
oc at morni mettr. W. Pl. 61-2.
The word for the general state of peace was 'frið' (connected with 'friend' and other words), a term which in our O. E. law came to mean the nation's peace and later the king's peace.
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