78

then the offended party had the right to choose whether he would accept settlement or not.

Half-humorous is an improvement which at one time seems to have been regarded with great hopes; that a man taking vengeance shall be held guilty of no crime as long as his vengeance does not exceed in magnitude the wrong for which it is taken. Any surplus is to be duly assessed at its proper value on settlement, and indemnity paid accordingly. A well-meant idea, if only it were possible to agree as to what punishment fitted the crime, and what the surplus, if any, might be worth. The thought looks better in the form of a gentle exhortation, as put forward to guide the conscience of the king's retainers: Do not take vengeance too suddenly, and let not the vengeance taken be over-great. Thus run the words in King Magnus' court-law of 1274.

All these interferences bear the stamp of weakness and lukewarmness; the improvements themselves show us how clearly and simply the old régime is imprinted on the mind: that injury, whether of this sort or that, demands its cure, and that the cure is certainly to be found in vengeance. True, new ideas are beginning to germinate; but for the present, the reformers have nothing wherewith to lay a new foundation, and are thus obliged to build upon the old, basing their edicts against vengeance upon the fact that vengeance is a thing no man can do without.

Surely enough, a contrast may be noted between law and life. The man of law appears to have had a keen eye for shades and degrees of offence, which practical men never recognised, or recognised only while in company with the jurists. These Norsemen, good souls, sat at the law-thing and listened 'with interest when those versed in law expatiated on the distinction between a wound laying bare the bone, but closing entirely on proper treatment; and the legally graver case where a piece of flesh of such and such a size was shorn away and fell to the ground. The hearers would make a mental note of how much was to be paid for the first sort, and how much for the second. Or they ‚would be given a classification of the various terms of abuse. “Full fine shall be paid, firstly, when a man reviles another

79

as having lain in childbed; secondly, if he declare that the other is possessed of unnatural lusts; thirdly, if he compare him with a mare, or a troll, or a harlot;” likewise full fine if he be called slave, or whore, or witch; and for the rest, there are only words of abuse for which a minor fine can be claimed, or which can be avenged by saying: you are another. — Then the assembly dispersed, and the good men went back to their homes, and took vengeance in blood as well for great injuries as for small insults, as if no such scale had ever been. Or the Icelanders, those hard-bitten champions, who quarrelled and fought and took their revenge in all the simplicity of honour, they went to their Al-thing and heard the lawman recite the chapter on killing, in all its artificial complexity, with conditions, possibilities and circumstances endlessly tangled and woven in and out. Never a man laughed; on the contrary, all listened with the deepest interest.

This picture has a magnificent humour of its own. If we did not know better, we might be led to imagine a schism in the community. But no. In Iceland, at any rate, there is no trace of any distinction between a law-giving caste and a lawless mob. The same headstrong yeomen who fought with one another in their own districts, were jurists to a degree, with a fondness and a gift for the intricacies of law. It is these peasants, indeed, who have made Icelandic law the fine-patterned web of casuistry it is. Law, in the saga isle, has its own particular stamp of almost refined systematism, that we find in Iceland and nowhere else, built up by constant lawsuits and constant legislation. Something similar applies in the case of Norway. Even though there were everywhere men learned in law, in the narrower sense, to be found beside the unlearned, the distinction is only valid as a matter of actual knowledge, and does not apply to the interest displayed.

Another and more likely explanation may be advanced. Men do not remain always at the same stage; but they move only with part of their soul at a time. The same individual contains a progressive self, which asserts itself triumphantly when the man appears in some public function or in co-operation

80

with other kindred soul-halves; and an old-fashioned, conservative self, which takes the lead at home in daily life, and manages altogether to take advantage of any disturbance of balance in the soul to surprise and depose its rival. The laws of Norway and of Iceland do not represent any primeval law; on the contrary, both are phenomena of progress. It is the progressive self that speaks through them. And strangely enough, while the Norsemen have a scale of values for wounds, according to whether they penetrate to a cavity (which costs 1/2 mark) or do not go beyond the skin (price 1 ounce), according as the breach heals without a scar (price 1 ounce) or with a scar (6 ounces), the Icelanders, on the other hand, have plainly not advanced beyond the stage of calling a wound a wound. If we could follow the course of the laws back century by century, we should see how the forms became simpler and simpler, see them more and more nearly approaching the simplicity of everyday thought.

This, however, does not by any means imply that the forefathers of those Norsemen and Icelanders had no idea of distinction. A valuation of the injury done lies, after all, so deep in the character of the law, that it must be supposed to have its roots in the attitude of mind among the people. Even though we find, in the Icelandic law-book, the Grágás, the limit for right to vengeance set very far down, so that a simple blow is included, the mere presence of such a limit still denotes that certain injuries were counted too slight to be paid for in blood. Undoubtedly our forefathers must, at an early stage of their existence, have made the discovery that a man might sometimes do another harm on purpose, and sometimes by accident. Or they have been led to observe that certain epithets in their vocabulary were stronger than others; and the difference was recognised in their intercourse of everyday.

The interest in shades of difference was strong and deep, and undoubtedly of ancient date; men knew and recognised well enough the possibility of a difference between small injuries and great. There is no reason to doubt but that men were from the first more inclined to come to a peaceable settlement in the

81

case of slight wounds than in the case of wounds more serious. Whether it were possible would depend on the individual character of the case; what had led up to the injury, how it had been dealt, and not least, who the offender was; whether he and his kin were of such standing that a peaceable settlement with them meant honour. But one thing was certain; the will to reconciliation was not based on any inclination to let the insignificant blow pass unheeded; if the culprit would not or could not make good the damaged honour, then vengeance must be taken, no less than in matters of life and death.

On this point law was as stiff and uncompromising as any private feeling enjoining unconditional restitution. That the offender is not in a condition to pay, or that he no longer exists, does not dispose of the fact that the other party stands there in need of payment. The slightness of an offence does not diminish the necessity of its being made good. And in face of this basic principle, all attempts at progress come to a standstill. The law reformers of Norway thrust vengeance as far as possible into the background. They urge, that the courts are ready for those who need them, and in addition there will now be royal officials, whose task in life will be to give men the restitution they had before to get for themselves as best they could. But they cannot refrain from adding, that if the opponent will not give way, and the will of the official is not enough, then the man who takes vengeance himself for his dishonour shall be regarded with all possible consideration; ay, if the vengeance taken does not exceed desert, he shall be held not guilty. “If payment of the fine for killing a man be not made, then the dead man's kinsmen may take vengeance, and they are to be no wise hindered by the fact that the King hath given the slayer peace and leave to be in the country,” — these are the very words of King Hakon's great reform edict, which prefaces the Frosta-thing's Law.

In this ideal of justice the apparent conflict between the theories of law and the practice of everyday life is accounted for. The Teutons had a strong inclination for peaceable settlement of disputes, but mediation stood outside trying to effect a reconciliation by mutual agreement without in the least pre-

82

judicing the right of frith. Later law reflects an original Teutonic sense of justice insofar as it works up two separate tendencies into one system. The lawyers of the transition age tried to make mediation an integral part of the judicial proceedings and thus tend towards a legal system built up on the weighing and valuation of the offence at the same time as they worked for the abolishing of the ancient right of private revenge. By this harmonising process, Teutonic jurisprudence was gradually led into correspondence with Roman law, but it was slow in abandoning the idea of absolute reparation as the paramount condition of right and justice.

The demand for personal restitution, indeed, is not a thing that life and society merely acknowledge, it is the very innermost secret, the sustaining power itself, in the legislation of the North. When the Gula-thing's Law breaks out with its: “Then it is well that vengeance be taken” or when it says: “None can demand payment for injury more than three times without taking vengeance between them,” then it is not defiance of law, mischievously putting on the legal wig and uttering cynicisms with comic seriousness. These sentences are nothing but the direct expression of that law-craving energy which has built up and maintained the entire network of ordinances from which they emerge.

The spirit of the law may be characterised as a juridical sympathy with the offended party and his sufferings. The law-thing is the place whither he comes to seek healing. In other words, any attack is regarded from the point of view of personal wrong. It matters not whether a man comes bearing the body of his slain kinsman, or leading in a thief caught in the act and bound, or with the odium of a scornful word to be wiped out, the cry is the same: “Give me restitution, give me back my honour.”

A deed can never be a crime in itself, it only becomes a crime, if we will use the word, by its effect upon a person. If it falls upon a man sound and whole, it is equivalent to damage done, and he must have it made good. The fine society takes upon itself to procure for him, if he appeals to it, is, according to

83

ancient terminology, his “right” — which means, approximately, his value. And if there be “no right in him”, i. e. if he is a man without honour, then there can be no crime.

The law-maintaining energy which goes out to the complainant from the seat of justice is by no means less than elsewhere where the judge sits to punish and protect. On the contrary. It is the stronger, inasmuch as it is inspired by the fundamental idea: that restitution must and shall be made, since the well-being of the complainant stands in jeopardy; he is a marked, a fallen man, if we cannot procure him “honour”. If the culprit is out of reach, his kinsmen must come forward; it is not a question of finding any offender, but of finding someone to make restitution.


Among the southern tribes of Teutonic stock, the right to vengeance is everywhere on the decline during historical times.

The extreme standpoint is represented by the Burgundians' law, which decrees capital punishment for killing, and thus aims at abolishing altogether the taking of the law into one's own hands. But the good Burgundians were not yet farther on the road to perfection than that the lawgiver finds it necessary in the same breath to point out that no other than the guilty person is to be prosecuted. The remaining peoples had evidently not advanced beyond the stage of restrictions when they began to write down their ordinances. Unfortunately, owing to the casual nature of the laws, we are only able to follow the movement by occasional glimpses here and there. The law of the Alamanni seems inclined to distinguish between satisfaction of the impulse to revenge arising at the moment and vengeance planned and carried out in cold blood; a man who, with such helpers as may be at hand, sets off immediately in pursuit of a slayer and strikes him down in his own house, is fined the simple price of a man's life; but if he procures assistance first, the fine is raised to nine times that sum. Among the Franks, it is the Carolingians who first set about reforms in earnest. In the earlier periods, vengeance is still fully recognised, at any rate

84

for more serious injuries. The Salic Law mentions punishment for anyone independently taking down the head set up by an avenger on a pole to advertise his deed. We happen to learn of a good man, Gundhartus, that he was obliged to remain at home by reason of vengeance threatening. In his need he has applied to Eginhard, who now (presumably about the year 830) writes a feeling letter to Hraban, urging this servant of Christ to release the man from his military service, as his coming to the army would infallibly throw him into the power of his enemies. The kings' attempts at reform amount for the most part to earnest and cordial exhortations to the parties concerned, to compel people to be reconciled and give up taking vengeance.

Most instructive are the limitations to which vengeance is subjected in the law of the Saxons. In the first place, it is banned in every case where damage has been done by a domestic animal, or by an implement slipping from the hand of the person using it; the owner shall pay a fine, but shall be secure against vengeance. Furthermore, a man innocent himself is not to be held responsible for acts of his people; if the deed be of his secret devising, then of course, he must be mulcted or suffer vengeance, but if the person actually guilty have acted on his own initiative, it is permissible to disown him, and let him, with seven of his nearest kinsmen, bear the blame, that is, serve as the objects of vengeance. Finally, when a question of murder, the family, in its wider sense, is entitled to purchase immunity from vengeance by payment of the third part of the simple fine for killing; the entire remainder of the enormous indemnity (nine times the fine simple) falls upon the murderer and his sons, and they alone are open to vengeance if payment be not made.

In the brief Frisian law we find the following: He who incites another to homicide — here again the relation of master and servant is probably in mind — can only escape vengeance if the offender has fled; he then pays a third part of the fine. If the slayer remains in the country, then it must be left to the judgement of the offended parties whether they will relinquish their vengeance on the instigator and accept a settlement. And