CUSTOMARY LAW

The evidence of Saxo to archaic law and customary institutions is pretty much (as we should expect) that to be drawn from the Icelandic Sagas, and even from the later Icelandic rimur and Scandinavian kaempe-viser. But it helps to complete the picture of the older stage of North Teutonic Law, which we are able to piece together out of our various sources, English, Icelandic, and Scandinavian. In the twilight of Yore every glowworm is a helper to the searcher.

There are a few MAXIMS of various times, but all seemingly drawn from custom cited or implied by Saxo as authoritative:—

"It is disgraceful to be ruled by a woman."—The great men of Teutonic nations held to this maxim. There is no Boudicea or Maidhbh in our own annals till after the accession of the Tudors, when Great Eliza rivals her elder kins-women's glories. Though Tacitus expressly notices one tribe or confederacy, the Sitones, within the compass of his Germania, ruled by a woman, as an exceptional case, it was contrary to the feeling of mediaeval Christendom for a woman to be emperor; it was not till late in the Middle Ages that Spain saw a queen regnant, and France has never yet allowed such rule. It was not till long after Saxo that the great queen of the North, Margaret, wielded a wider sway than that rejected by Gustavus' wayward daughter.

"The suitor ought to urge his own suit."—This, an axiom of the most archaic law, gets evaded bit by bit till the professional advocate takes the place of the plaintiff. "Njal's Saga", in its legal scenes, shows the transition period, when, as at Rome, a great and skilled chief was sought by his client as the supporter of his cause at the Moot. In England, the idea of representation at law is, as is well known, late and largely derived from canon law practice.

"To exact the blood-fine was as honourable as to take vengeance."—This maxim, begotten by Interest upon Legality, established itself both in Scandinavia and Arabia. It marks the first stage in a progress which, if carried out wholly, substitutes law for feud. In the society of the heathen Danes the maxim was a novelty; even in Christian Denmark men sometimes preferred blood to fees.

MARRIAGE.—There are many reminiscences of "archaic marriage customs in Saxo." The capture marriage has left traces in the guarded king's daughters, the challenging of kings to fight or hand over their daughters, in the promises to give a daughter or sister as a reward to a hero who shall accomplish some feat. The existence of polygamy is attested, and it went on till the days of Charles the Great and Harold Fairhair in singular instances, in the case of great kings, and finally disappeared before the strict ecclesiastic regulations.

But there are evidences also of later customs, such as "marriage by purchase", already looked on as archaic in Saxo's day; and the free women in Denmark had clearly long had a veto or refusal of a husband for some time back, and sometimes even free choice. "Go-betweens" negotiate marriages.

Betrothal was of course the usage. For the groom to defile an espoused woman is a foul reproach. Gifts made to father-in-law after bridal by bridegroom seem to denote the old bride-price. Taking the bride home in her car was an important ceremony, and a bride is taken to her future husband's by her father. The wedding-feast, as in France in Rabelais' time, was a noisy and drunken and tumultuous rejoicing, when bone-throwing was in favor, with other rough sports and jokes. The three days after the bridal and their observance in "sword-bed" are noticed below.

A commoner or one of slave-blood could not pretend to wed a high-born lady. A woman would sometimes require some proof of power or courage at her suitor's hands; thus Gywritha, like the famous lady who weds Harold Fairhair, required her husband Siwar to be over-king of the whole land. But in most instances the father or brother betrothed the girl, and she consented to their choice. Unwelcome suitors perish.

The prohibited degrees were, of course, different from those established by the mediaeval church, and brother weds brother's widow in good archaic fashion. Foster-sister and foster-brother may marry, as Saxo notices carefully. The Wolsung incest is not noticed by Saxo. He only knew, apparently, the North-German form of the Niflung story. But the reproachfulness of incest is apparent.

Birth and beauty were looked for in a bride by Saxo's heroes, and chastity was required. The modesty of maidens in old days is eulogised by Saxo, and the penalty for its infraction was severe: sale abroad into slavery to grind the quern in the mud of the yard. One of the tests of virtue is noticed, "lac in ubere".

That favourite "motif", the "Patient Grizzle", occurs, rather, however, in the Border ballad than the Petrarcan form.

"Good wives" die with their husbands as they have vowed, or of grief for their loss, and are wholly devoted to their interests. Among "bad wives" are those that wed their husband's slayer, run away from their husbands, plot against their husbands' lives. The penalty for adultery is death to both, at husband's option—disfigurement by cutting off the nose of the guilty woman, an archaic practice widely spread. In one case the adulterous lady is left the choice of her own death. Married women's Homeric duties are shown.

There is a curious story, which may rest upon fact, and not be merely typical, where a mother who had suffered wrong forced her daughter to suffer the same wrong.

Captive women are reduced to degrading slavery as "harlots" in one case, according to the eleventh century English practice of Gytha.

THE FAMILY AND BLOOD REVENGE.—This duty, one of the strongest links of the family in archaic Teutonic society, has left deep traces in Saxo.

To slay those most close in blood, even by accident, is to incur the guilt of parricide, or kin-killing, a bootless crime, which can only be purged by religious ceremonies; and which involves exile, lest the gods' wrath fall on the land, and brings the curse of childlessness on the offender until he is forgiven.

BOOTLESS CRIMES.—As among the ancient Teutons, botes and were-gilds satisfy the injured who seek redress at law rather than by the steel. But there are certain bootless crimes, or rather sins, that imply "sacratio", devotion to the gods, for the clearing of the community. Such are treason, which is punishable by hanging; by drowning in sea.

Rebellion is still more harshly treated by death and forfeiture; the rebels' heels are bored and thonged under the sinew, as Hector's feet were, and they are then fastened by the thongs to wild bulls, hunted by hounds, till they are dashed to pieces (for which there are classic parallels), or their feet are fastened with thongs to horses driven apart, so that they are torn asunder.

For "parricide", i.e., killing within near degrees, the criminal is hung up, apparently by the heels, with a live wolf (he having acted as a wolf which will slay its fellows). Cunning avoidance of the guilt by trick is shown.

For "arson" the appropriate punishment is the fire.

For "incestuous adultery" of stepson with his stepmother, hanging is awarded to the man. In the same case Swanwhite, the woman, is punished, by treading to death with horses. A woman accomplice in adultery is treated to what Homer calls a "stone coat." Incestuous adultery is a foul slur.

For "witchcraft", the horror of heathens, hanging was the penalty.

"Private revenge" sometimes deliberately inflicts a cruel death for atrocious wrong or insult, as when a king, enraged at the slaying of his son and seduction of his daughter, has the offender hanged, an instance famous in Nathan's story, so that Hagbard's hanging and hempen necklace were proverbial.

For the slayer by a cruel death of their captive father, Ragnar's sons act the blood-eagle on Ella, and salt his flesh. There is an undoubted instance of this act of vengeance (the symbolic meaning of which is not clear as yet) in the "Orkney Saga".

But the story of Daxo and of Ref's gild show that for such wrongs were-gilds were sometimes exacted, and that they were considered highly honourable to the exactor.

Among OFFENCES NOT BOOTLESS, and left to individual pursuit, are:—

"Highway robbery".—There are several stories of a type such as that of Ingemund and Ioknl (see "Landnamaboc") told by Saxo of highwaymen; and an incident of the kind that occurs in the Theseus story (the Bent-tree, which sprung back and slew the wretch bound to it) is given. The romantic trick of the mechanic bed, by which a steel-shod beam is let fall on the sleeping traveller, also occurs. Slain highwaymen are gibbeted as in Christian days.

"Assassination", as distinct from manslaughter in vengeance for a wrong, is not very common. A hidden mail-coat foils a treacherous javelin-cast (cf. the Story of Olaf the Stout and the Blind King, Hrorec); murderers lurk spear-armed at the threshold, sides, as in the Icelandic Sagas; a queen hides a spear-head in her gown, and murders her husband (cf. Olaf Tryggvason's Life). Godfred was murdered by his servant (and Ynglingatal).

"Burglary".—The crafty discovery of the robber of the treasury by Hadding is a variant of the world-old Rhampsinitos tale, but less elaborate, possibly abridged and cut down by Saxo, and reduced to a mere moral example in favour of the goldenness of silence and the danger of letting the tongue feed the gallows.

Among other disgraceful acts, that make the offender infamous, but do not necessarily involve public action:—

"Manslaughter in Breach of Hospitality".—Probably any gross breach of hospitality was disreputable and highly abhorred, but "guest-slaughter" is especially mentioned. The ethical question as to whether a man should slay his guest or forego his just vengeance was often a "probleme du jour" in the archaic times to which these traditions witness. Ingeld prefers his vengeance, but Thuriswend, in the Lay cited by Paul the Deacon, chooses to protect his guest. Heremod slew his messmates in his wrath, and went forth alone into exile. ("Beowulf's Lay".)

"Suicide".—This was more honourable than what Earl Siward of Northumberland called a "cow-death." Hadding resolves to commit suicide at his friend's death. Wermund resolves to commit suicide if his son be slain (in hopelessness of being able to avenge him, cf. "Njal's Saga", where the hero, a Christian, prefers to perish in his burning house than live dishonoured, "for I am an old man and little fitted to avenge my sons, but I will not live in shame"). Persons commit suicide by slaying each other in time of famine; while in England (so Baeda tells) they "decliffed" themselves in companies, and, as in the comic little Icelandic tale Gautrec's birth, a Tarpeian death is noted as the customary method of relieving folks from the hateful starvation death. It is probable that the violent death relieved the ghost or the survivors of some inconveniences which a "straw death" would have brought about.

"Procedure by Wager of Battle".—This archaic process pervades Saxo's whole narrative. It is the main incident of many of the sagas from which he drew. It is one of the chief characteristics of early Teutonic custom-law, and along with "Cormac's Saga", "Landnamaboc", and the Walter Saga, our author has furnished us with most of the information we have upon its principles and practice.

Steps in the process are the Challenge, the Acceptance and Settlement of Conditions, the Engagement, the Treatment of the vanquished, the Reward of the conqueror, and there are rules touching each of these, enough almost to furnish a kind of "Galway code".

A challenge could not, either to war or wager of battle, be refused with honor, though a superior was not bound to fight an inferior in rank. An ally might accept for his principal, or a father for a son, but it was not honourable for a man unless helpless to send a champion instead of himself.

Men were bound to fight one to one, and one man might decline to fight two at once. Great champions sometimes fought against odds.

The challenged man chose the place of battle, and possibly fixed the time. This was usually an island in the river.

The regular weapons were swords and shields for men of gentle blood. They fought by alternate separate strokes; the senior had the first blow. The fight must go on face to face without change of place; for the ground was marked out for the combatants, as in our prize ring, though one can hardly help fancying that the fighting ground so carefully described in "Cormac's Saga", ch. 10, may have been Saxo's authority. The combatants change places accidentally in the struggle in one story.

The combat might last, like Cuchullin's with Ferdia, several days; a nine days' fight occurs; but usually a few blows settled the matter. Endurance was important, and we are told of a hero keeping himself in constant training by walking in a mail coat.

The conqueror ought not to slay his man if he were a stripling, or maimed, and had better take his were-gild for his life, the holmslausn or ransom of "Cormac's Saga" (three marks in Iceland); but this was a mere concession to natural pity, and he might without loss of honor finish his man, and cut off his head, though it was proper, if the slain adversary has been a man of honor, to bury him afterward.

The stakes are sometimes a kingdom or a kingdom's tribute, often a lady, or the combatants fought for "love" or the point of honor. Giants and noted champions challenge kings for their daughters (as in the fictitious parts of the Icelandic family sagas) in true archaic fashion, and in true archaic fashion the prince rescues the lady from a disgusting and evil fate by his prowess.

The champion's fee or reward when he was fighting for his principal and came off successful was heavy—many lands and sixty slaves. Bracelets are given him; a wound is compensated for at ten gold pieces; a fee for killing a king is 120 of the same.

Of the incidents of the combat, beside fair sleight of fence, there is the continual occurrence of the sword-blunting spell, often cast by the eye of the sinister champion, and foiled by the good hero, sometimes by covering his blade with thin skin, sometimes by changing the blade, sometimes by using a mace or club.

The strength of this tradition sufficiently explains the necessity of the great oath against magic taken by both parties in a wager of battle in Christian England.

The chief combats mentioned by Saxo are:—

Sciold v. Attila. Sciold v. Scate, for the hand of Alfhild. Gram v. Swarin and eight more, for the crown of the Swedes. Hadding v. Toste, by challenge. Frode v. Hunding, on challenge. Frode v. Hacon, on challenge. Helge v. Hunding, by challenge at Stad. Agnar v. Bearce, by challenge. Wizard v. Danish champions, for truage of the Slavs. Wizard v. Ubbe, for truage of the Slavs. Coll v. Horwendill, on challenge. Athisl v. Frowine, meeting in battle. Athisl v. Ket and Wig, on challenge. Uffe v. Prince of Saxony and Champion, by challenge. Frode v. Froger, on challenge. Eric v. Grep's brethren, on challenge, twelve a side. Eric v. Alrec, by challenge. Hedin v. Hogni, the mythic everlasting battle. Arngrim v. Scalc, by challenge. Arngrim v. Egtheow, for truage of Permland. Arrow-Odd and Hialmar v. twelve sons of Arngrim Samsey fight. Ane Bow-swayer v. Beorn, by challenge. Starkad v. Wisin, by challenge. Starkad v. Tanlie, by challenge. Starkad v. Wasce—Wilzce, by challenge. Starkad v. Hame, by challenge. Starkad v. Angantheow and eight of his brethren, on challenge. Halfdan v. Hardbone and six champions, on challenge. Halfdan v. Egtheow, by challenge. Halfdan v. Grim, on challenge. Halfdan v. Ebbe, on challenge, by moonlight. Halfdan v. Twelve champions, on challenge. Halfdan v. Hildeger, on challenge. Ole v. Skate and Hiale, on challenge. Homod and Thole v. Beorn and Thore, by challenge. Ref. v. Gaut, on challenge. Ragnar and three sons v. Starcad of Sweden and seven sons, on challenge.

CIVIL PROCEDURE.—"Oaths" are an important art of early procedure, and noticed by Saxo; one calling the gods to witness and therefor, it is understood, to avenge perjury if he spake not truth.

"Testification", or calling witnesses to prove the steps of a legal action, was known, "Glum's Saga" and "Landnamaboc", and when a manslayer proceeded (in order to clear himself of murder) to announce the manslaughter as his act, he brings the dead man's head as his proof, exactly as the hero in the folk-tales brings the dragon's head or tongue as his voucher.

A "will" is spoken of. This seems to be the solemn declaration of a childless man to his kinsfolk, recommending some person as his successor. Nothing more was possible before written wills were introduced by the Christian clergy after the Roman fashion.