The Function of Kinship in Medieval Nordic Legislation 900418922X, 9789004189225

Table of contents :
Abbreviations ix
Kings of Denmark xi
Kings of Norway xiii
Kings of Sweden xv
Maps xvii
Introduction 1
PART ONE. THE IDEOLOGICAL AND PRACTICAL BACKGROUND FOR THE LEGISLATION OF THE PROVINCIAL LAWS
Chapter One. Kinship as Strategy 9
Chapter Two. The Legal Sources 27
Chapter Three. The Scandinavian Societies at the Time of the Provincial Laws 33
Chapter Four. The Emergence of the Provincial Laws and their Dating 61
Chapter Five. The Fathers of the Laws 81
Chapter Six. The Peace Ideology 87
Chapter Seven. The Legislator and the Law 95
Chapter Eight. The Application of the Provincial Laws 105
PART TWO. THE FUNCTION OF CANONICAL KINSHIP IN THE PROVINCIAL LAWS
Chapter Nine. The Function of Kinship in Legal Disputes 111
Chapter Ten. Collective Sanction 125
Chapter Eleven. Inheritance Law in the Provincial Laws 155
Chapter Twelve. Donations, Pious Donations, and the Right of Disposal of Property 185
Chapter Thirteen. The Right of "Allodium" 209
Chapter Fourteen. "Fledføring" — Elder Care 225
Chapter Fifteen. Marriage 235
Conclusion 259
Bibliography 267
Index of Names and Places 277
General Index 280

Citation preview

The Function of Kinship in Medieval Nordic Legislation

Medieval Law and Its Practice Managing Editor

John Hudson (St Andrews) Editorial Board Members

Paul Brand (All Souls College, Oxford) Dirk Heirbaut (Ghent) Richard Helmholz (Chicago) Caroline Humfress (Birkbeck, London) Magnus Ryan (Cambridge) Stephen White (Emory)

VOLUME 9

The Function of Kinship in Medieval Nordic Legislation By

Helle Vogt

Leiden  • boston 2010

On the cover: Fragment from Digest ca. 1300, re-used as cover to the accounts from Hatzburg county. The Danish National Archive, Fragmentsamlingen, Aftagne fragtmenter no. 294. © Photo Mia Münster-Swendsen Translation: Jens Ulff-Møller Language-editing: Juleen Audrey Eichinger (Eichinger Communications, LLC) Part of the translation was paid by Ernst Andersen’s Foundation This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Vogt, Helle.   The function of kinship in medieval nordic legislation / by Helle Vogt.    p. cm. — (Medieval law and its practice ; 9)   Includes bibliographical references and index.   1. Kinship (Law)—Scandinavia—History—To 1500. 2. Domestic relations (Canon law)—History—To 1500. 3. Canon law—History—To 1500. 4. Law, Medieval—History. I. Title.   KJC1100.V625 2010   346.4801’5—dc22 2010032783

ISSN 1873-8176 ISBN 978 90 04 18922 5 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Brill has made all reasonable efforts to trace all rights holders to any copyrighted material used in this work. In cases where these efforts have not been successful the publisher welcomes communications from copyrights holders, so that the appropriate acknowledgements can be made in future editions, and to settle other permission matters. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

Contents Abbreviations  ...................................................................................... ix Kings of Denmark  .............................................................................. xi Kings of Norway  . ............................................................................... xiii Kings of Sweden  ................................................................................. xv Maps  ..................................................................................................... xvii Introduction  ........................................................................................ . Area of examination  ...................................................................... . Methodology  ...................................................................................

1 4 5

PART one

THE IDEOLOGICAL AND PRACTICAL BACKGROUND FOR THE LEGISLATION OF THE PROVINCIAL LAWS Chapter One  Kinship as Strategy  ................................................. . Elective- and alliance-based kinship  ........................................... . Canonical kinship  ..........................................................................

9 11 14

Chapter Two  The Legal Sources  ...................................................

27

Chapter Three  The Scandinavian Societies at the Time of the . Provincial Laws  . ............................................................................. . Scandinavia as model of analysis  ................................................ . The genesis of the Norwegian laws  ............................................. . The genesis of the Danish laws  . .................................................. . The genesis of the Swedish laws  .................................................. . Construction of the society  .......................................................... . Resources and prestige—the importance of land in the .  provincial laws  . .......................................................................... Chapter Four  The Emergence of the Provincial Laws and . their Dating  ..................................................................................... . Customary law or newly developed law?  ...................................

33 33 37 44 49 53 57 61 61

vi . . . .

contents The dating of the provincial laws  ................................................ The dating of the Danish laws  ..................................................... The dating of the Norwegian laws  .............................................. The dating of the Swedish laws  ...................................................

63 64 73 75

Chapter Five  The Fathers of the Laws  .........................................

81

Chapter Six  The Peace Ideology  ...................................................

87

Chapter Seven  The Legislator and the Law  ................................ 95 . The king as legislator—The ideological construction  .............. 95 . The king’s power to legislate  ........................................................ 101 Chapter Eight  The Application of the Provincial Laws  ............ 105 . The functions of the laws—Ideology or practice?  .................... 105 PART two

THE FUNCTION OF CANONICAL KINSHIP IN THE PROVINCIAL LAWS Chapter Nine  The Function of Kinship in Legal Disputes  ...... . Structure and context...................................................................... . The kin’s board  ............................................................................... . Land and inheritance  . ................................................................... . Violence and homicide  ................................................................. . Marriage and incest  .......................................................................

111 111 114 116 118 121

Chapter Ten  Collective Sanction  .................................................. . Crimes that could not be atoned by a fine  ................................ . Wergeld   ........................................................................................... . The Danish legislation  ................................................................... . The Swedish legislation  ................................................................. . The Norwegian legislation  ............................................................ . Personal guilt, collective responsibility, and theological .  reflections  ....................................................................................

125 127 133 133 138 143 150

Chapter Eleven  Inheritance Law in the Provincial Laws  ......... 155 . Dowry  . ............................................................................................. 157 . The capital portion  . ....................................................................... 157

. . . . .

contents

vii

Sons and daughters as joint heirs  . .............................................. Marriage presents............................................................................. Male right of priority to inheritance  .......................................... Inheritance rights before the arrival of the provincial laws  . ... Patrilineal tendencies and female inheritance rights  ...............

160 168 170 175 177

Chapter Twelve  Donations, Pious Donations, and the Right . of Disposal of Property  ................................................................. . Danish materials  . ........................................................................... . Swedish materials  ........................................................................... . Norwegian materials  . ....................................................................

185 190 198 204

Chapter Thirteen  The Right of Allodium  .................................... . Odelsret  ............................................................................................ . Lovbydelse  ........................................................................................ . Bördsrät  . .......................................................................................... . The right of first refusal and the tax base  ..................................

209 211 215 218 222

Chapter Fourteen  Fledføring—Elder Care  . ................................. 225 Chapter Fifteen  Marriage  ............................................................... . Marriage based on agreement—canonical prescriptions  ........ . Marriage law in the provincial laws  . .......................................... . Marriage by force  ........................................................................... . Incest, marriage, and canonical kinship  . ................................... . Incest in the provincial laws  ........................................................ . Nordic or canonical marriage law?  .............................................

235 235 239 245 249 253 255

Conclusion  ........................................................................................... 259 Bibliography  ........................................................................................ 267 . Sources  ............................................................................................. 267 . Literature  ......................................................................................... 268 Index of Names and Places  . ............................................................. 277 General Index  ...................................................................................... 280

ABBREVIATIONS A&O.: Arvebog og Orbodemål (The Book of Inheritance and Heinous Crimes) BKr.: Borgartings Kristenret (The Borgarthing’s Christian Law) DL.: Dalaloven (The Dala Law) EKr.: Eidsivatings Kristenret (The Eidsivathing’s Christian Law) EsL.: Eriks sjællandske Lov (King Eric’s Law of Zealand) FL.: Frostatingsloven (The Frostathing Law) GL.: Gulatingsloven (The Gulathing Law) HL.: Hälsingeloven (The Hälsinge Law) JL.: Jyske Lov (The Law of Jutland) MEL.: Magnus Erikssons Landslov (Magnus Eriksson’s Law of the Realm) MML.: Magnus Lagabøters Landslov (Magnus Lawmender’s Law of the Realm) SjKl.: Sjællandske Kirkelov (The Church Law of Zealand) SkKl.: Skånske Kirkelov (The Church Law of Scania) SkL.: Skånske Lov (The Law of Scania) SlKl.: Smålands Kirkelov (The Småland’s Church Law) SmL.: Södermannaloven (The Södermanna Law) UpL.: Upplandsloven (The Uppland Law) VgL1.: Ældre Västgötalov (The Older Västgöta Law) VgL2.: Yngre Västgötalov (The Later Västgöta Law) VmL.: Västmannaloven (The Västmanna Law) VsL1.: Valdemars sjællandske Lov, ældre version (King Valdemar’s Law of Zealand, Older Version) VsL2.: Valdemars sjællandske Lov, yngre version (King Valdemar’s Law of Zealand, Later Version) ÖgL.: Östgötaloven (The Östgöta Law)

Kings of Denmark Harald I Bluetooth Swein I Forkbeard Harald II Cnut II the Great Cnut III Magnus the Good Swein II Estridsson Harald III Saint Cnut IV Oluf I Hunger Eric I the Good Niels Eric II Eric III Swein III Cnut V Valdemar I the Great Cnut VI Valdemar II the Victorious Eric IV Christopher I Eric V Eric VI Christopher II Valdemar III Interregnum Valdemar IV Olav II Margrethe I Kalmar Union of Denmark,   Sweden and Norway

958–986/7 986/7–1014 1014–1018 1018–1035 1035–1042 1042–1047 1047–1074 1074–1080 1080–1086 1086–1095 1095–1103 1104–1134 1134–1137 1137–1146 1146–1157 1146–1157 1154–1182 1182–1202 1202–1241 1241–1252 1252–1259 1259–1286 1298–1319 1320–1326, 1329–1332 1326–1329 1332–1340 1340–1375 1375–1387 1387–1397 (1412) 1397–1523

Kings of Norway Olav Kyrre (the Peaceful) Haakon Magnusson Magnus Barefoot Olav Magnusson Øystein Magnusson Sigurd the Crusader Magnus the Blind Sigurd Mouth Øystein Haraldsson Inge Hunchback Haakon II Sigurdsson Magnus Erlingsson Sverre Sigurdsson Haakon III Sverresson Guttorm Sigurdsson Inge Baardsson Haakon IV Haakonsson Magnus the Lawmender Eric Magnusson Haakon V Magnusson Magnus Ericsson Haakon VI Magnusson Olav IV Haakonsson Margrethe I Eric of Pomerania

1066–1093 1093–1094 1093–1103 1103–1115 1103–1123 1103–1130 1130–1136 1136–1155 1136–1157 1136–1161 1157–1162 1162–1184 1177/84–1202 1202–1204 1204 1204–1217 1217–1263 1263–1280 1280–1299 1299–1319 1319–1343 1343–1380 1380–1387 1387–1389(1412) 1389(1412)–1442

Kings of Sweden Sverker I the Elder Eric IX the Saint Magnus Henriksson Karl VII Sverkersson Cnut I Ericsson Sverker II the Younger Eric X Cnutsson Eric XI the Lisp and Lame Cnut II the Tall Eric XI the Lisp and Lame Valdemar I Birgersson Magnus III Barnlock Birger Magnusson Magnus IV Ericsson Albert Margrethe Eric of Pomerania Christopher of Bavaria

1125–1156 1156–1160 1160–1161 1161–1167 1167–1196 1196–1208 1208–1216 1222–1229 1229–1234 1234–1250 1250–1275 1275–1290 1290–1318 1319–1364 1363–1389 1389–1396(1412) 1396(1412)–1439 1441–1448

Schleswig

Ribe

JUTLAND

FUNEN

Odense

Århus

Viborg

Børglum

Ringsted

Roskilde

ZEALAND

DENMARK

HALLAND

Lund

SCANIA

SWEDEN

BORNHOLM

BLEKINGE

HALSINGELAND

DALARNE

UPPLAND

NORWAY

Uppsala VÄSTMANNALAND Strängnäs SÖDERMANNALAND EASTERN GÖTALAND

WESTERN Skara

Linköping

GÖTALAND

SMÅLAND Växjö

DENMARK

SWEDEN

NORWAY

Frosta Nidaros LAW OF FROSTATHING

LAW OF EIDSIVATHING

Gulen

Bergen

LAW OF GULATHING Eidsivathing LAW OF BORGARTHING

Stavanger

Oslo Borgarthing

INTRODUCTION This book is a revised version of my PhD dissertation that appeared in Danish in 2005.1 I introduced the Danish edition with the question, “Why write yet another treatise about Nordic provincial laws? Most of the stipulations and legal problems in the laws have already been put forward, described, and discussed. Renewed battle with dated sources may lead only to an endless reiteration of the rules and procedures, which are the substance of the provincial laws, without throwing any new light on the sources.” But by asking new questions, my dissertation provided new answers and allowed greater insight into the subject. The question is not so relevant for this English edition, because very little of the extensive literature about legislation and social conditions in Scandinavia in the High Middle Ages is available in non-Scandinavian languages. German research prior to 1945 is available, but German scholarship fell in disrespect after that date. In recent years, Scandinavian and foreign researchers have begun to recognize the importance of comparative studies within the area of legislation, especially by turning Robert Bartlett’s2 excellent centre-periphery model upside down. Actually, it was not in France or Germany but in peripheral areas such as Scandinavia where massive legislative activity occurred in the High Middle Ages. This book contributes to the international discussion of medieval laws and legislation by conveying a more nuanced depiction of Scandinavia as a part of the body of research on medieval legal history. Earlier Nordic research in legal history has focused primarily on the stipulations of the provincial laws3 in a narrow juridical context rather than on the correlation and interaction between the development of 1   The Danish edition includes an analysis of concepts and other elements that are relevant to Danish readers only. In the English version, I have inserted explanations about Nordic conditions that I cannot expect an international readership to know. 2   Robert Bartlett, The Making of Europe: Conquest, Colonization, and Cultural Change, 950–1350 (Princeton 1993). 3   The Nordic kingdoms consisted of several provinces, each of which had its own provincial law and thing. The provincial thing originally functioned both as a court and as an assembly, approving new legislation for the province and taking part in the election of kings. The provincial things lost their political power in the Middle Age, but continued as law courts.

2

introduction

law and the society in which the laws emerged, or on the underlying political significance of the formation of juridical institutions. By contrast, this book will examine the provisions of the provincial laws in their social and legal-ideological context by uncovering the ideology they expressed and their political goals. This does not imply that legal theory is unimportant for research on the legal history of the provincial laws. But the building blocks provided here constitute the first step towards awareness that the provincial laws were a part of a larger legal tradition and context. And without this awareness, it is meaningless to ask questions such as who had a political, ideological, or economic interest in the creation of a particular composition of society through the laws. An investigation of this kind brings us to the great centres of learning in Paris, Bologna, and elsewhere in Western Europe, because it is necessary to understand what scholastic training the men who created the Nordic provincial laws must have had. ‘Scholastic’ should not be understood in the narrow theological meaning it has today but, rather, as a term denoting a shared intellectual understanding which emerged among those educated at the major centres of learning abroad.4 The special tradition and legal knowledge acquired by those with legal training is traditionally labeled ius commune. The concept of ius commune is anchored in canon and Roman law, which really began with the study of law in Bologna in the twelfth century. The term ius commune describes a common West-European understanding of law that originated in learned legal systems; this legal basis formed the background for a common ideology, even though it found various expressions on the local level. The common European current of learned law has often been set in opposition to local law, ius proprium, of which the provincial laws are an example. When one focuses on the ways in which learned jurisprudence influenced local legislation, the distinction between ius commune and ius proprium becomes difficult to uphold, however. Even though the direct influence of Roman law on local laws was minimal, that of canon law is evident, and the entire

4   Most research in the history of learning in recent decades has focused on promoting the importance of observing the intellectual weight and self-perception of the fathers of the law. Concerning the academic self-concept, learning, and form of education, see e.g.: Mia Münster-Swendsen, “The Model of Scholastic Mastery in Northern Europe c. 970–1200,” in J. Rubenstein and Sally N. Vaughn, eds., Teaching and Learning in Northern Europe 1000–1200 (Turnhout 2006), pp. 318–356.



introduction

3

construction of legal texts attests to a familiarity with the European legal tradition of which Roman law was such an important part. However, far more difficult than understanding certain esoteric ideological constructions is discerning how they took root in domestic legislation. One might think, for example, that legal clauses regulating inheritance and donation and laying down sanctions for manslaughter reveal a reality far removed from the ecclesiastical ideal of mutual love and peace between all blood relations. Nevertheless, when the legal historian leaves the safe world of reading the law closely and steps into the larger universe of theology in which many medieval lawmakers had been trained, this connection becomes evident. Theology and law become difficult to separate, because canon law developed in close interaction with Roman law and theology and because, in a dialectical process, Roman law participated in the formation of, and was itself shaped by, a Christian legal understanding. The aim of this book, which emerged from the realization that the Nordic kingdoms were also a part of the common Christian scholarly culture within the legal sphere, is to raise once again the question of what function kinship had in Scandinavian provincial laws. I intend to uncover the ideological and political motivations that lay behind the formulation of both kinship and the legal stipulations of rights and obligations linked to kinship. The point of departure for this investigation is a thorough examination of the sections of the laws in which kinship contributed to the definition of legal stipulations concerning transfer of property—through inheritance, sale, or gift, or in relation to marriage, where the mutual rights and obligations of the families are regulated. Furthermore, I investigate how the kin group appears as a legal subject in relation to third parties in cases of collective payment, or receipt of wergeld, as well as in cases where the laws prescribe that members of the family should document or take an oath—for example, with regard to property issues. With few exceptions,5 scholars have abandoned the idea that a legal order consisting of kin groups exerting socio-legal control over their members dominated pre-Christian Scandinavia. Consequently, legal historians no longer consider the form of kinship that appears   For example Annette Hoff, Lov og landskab. Landskabslovenes bidrag til forståelsen af landbrugs- og landskabsudviklingen i Danmark ca. 900–1250 (Århus 1997); and Helge Paludan: Familia og familie. To europæiske kulturelementers møde i højmiddelalderens Danmark (Århus 1995). 5

4

introduction

in the provincial laws to be a remnant of a prehistoric social order.6 Instead, they articulate a more nuanced view in which lords, kings, and other power brokers are seen as authorities as well.7 That said, historians have not yet examined the particular understanding of kinship that is found in the provincial laws. This examination is undertaken subsequently. Area of examination The focus of this investigation is the provincial laws in medieval Scandinavia. Because this covers a long period, I have chosen to focus on the period from the mid-twelfth to the beginning of the fourteenth century. The investigation centres on the Scandinavian kingdoms and the importance of royal power for the provincial laws but excludes the Icelandic Grágás from the beginning of the twelfth century. This is because Iceland only came under the government of a king in 1262, with the recognition of the suzerainty of the Norwegian king; previously, the government was in the hands of a group of lords. Magnus Lawmender’s Norwegian Law of the Realm was accepted already in 1274, when the Swedish provincial laws were not yet finalized. Thus, while the focus of my investigation is the provincial laws, I will also include the laws of the realms for Norway and Sweden. This provides the opportunity to observe possible changes in the practice that was followed within the individual areas of law as well as any change in the role of the king with respect to law and the execution of justice. Laws of both realms are of interest because they provide an insight into the decrees and powers that the legal administration wanted to maintain from earlier practice, and those that no longer were considered useful.

6   For a presentation of the perception of kinship in legal history at the time of the provincial laws see: Lars Ivar Hansen, “ ‘Ætten’ i de eldste landskapslovene—Realitet, konstruksjon og strategi,” eds. Else Mundal and Ingvild Øye, Norm og praksis i middelaldersamfunnet (Bergen 1999), pp. 25–34. 7   Even though the terms family and kin are often used simultaneously, the terms will be distinguished subsequently for the reason of clarity. Family is defined as the closest relatives, which are part of the same household, in which the basis is parents with children and potential in-laws, grandchildren, and possibly other descendents. The term kin or kinsmen is used for the total cognatic kin group (cognatic refers to a kinship in which each person is related on both the mother’s and the father’s side, and therefore only full siblings are members of the same lineage).



introduction

5

Methodology This study is divided in two main parts: a broad introductory part and a second part more concerned with legal dogma. In the first part, the preconditions for understanding the provincial laws are presented through a wide range of aspects, including even the theological and ideological background for legislation and kinship, which is found in the laws; the historical context of the provincial laws politically, socially, and economically; the scholastic background for the legal ideology, including the relation between law and peace; and, finally, the ideological and practical function of the king as legislator. This method of presentation allows me to examine the Scandinavian provincial laws both from the outside and “inside” in order to identify external influences which have had an effect on Nordic provincial legislation and to seek traces of those influences in the laws themselves. The second part is more concerned with dogma: I examine the legal provisions in order to observe how canonical kinship was employed in the laws. This part is divided in two main sections: the former deals with kin as a legal subject in relation to a third person; whereas the latter examines the rights and obligations within a kin group. This subdivision is somewhat fluid, however, since collective payment of wergeld actually relates to both categories. As the last theme in this part, I will present the provisions for contracting a marriage, in relation to both canon law and the customary practice prescribed by the provincial laws. It was essential that Christian marriage and the restrictions tied to the contract—especially those prohibiting incest—take root in the consciousness of the lay population in order to lay the groundwork for establishment of a canonical kinship.

part one

the ideological and practical background for the legislation of the provincial laws

chapter one

KINSHIP AS STRATEGY Scholars have rarely used kinship as a means to understand provincial laws. The Norwegian historian Lars Ivar Hansen is an exception.1 In an article from 1999 dealing with kinship in the oldest provincial laws, he states that there are two views on kinship: either kinship was a fixed entity, or kinship strategies were dependent variables. In the latter case, kinship is an alterable entity, but an elastic notion that could be adapted to existing economic and political interests, and could, thus, be used as a tool. Like Hansen, I use here the latter approach to kinship. I will additionally discuss the importance of ideological currents from abroad, which influenced the political, social, and economic conditions in Scandinavian societies and resulted in the creation of new kinship strategies. The theoretical basis for this book is to consider kinship, as it appears in the provincial laws, as a strategy used by the central authorities. This approach has inspired not only Hansen but also Eleanor Searle, who has analyzed kinship in Normandy,2 and Constance Bouchard, who has examined marriage and kinship patterns in France in the early Middle Ages and the beginning of the High Middle Ages.3 With regard to the Danish material, the approach was used by Lars Hermanson and Thyra Nors in order to explain the political conditions in the twelfth century, which they see as depending on the skills of the actors to use kinship strategically to strengthen their own interests.4

 Hansen, “Ætten I de eldste Landskabslove,” pp. 23–34. In another article he used a similar Bourdieu-inspired strategy model (for more about Bourdieu, see note 5) to explain the development of the Nordic inheritance system in the Middle Ages, Lars Ivar Hansen, “Slektskap, eiendom og sociale strategier i nordisk middelalder,” Collegium Medievale, vol. 7, 1994/2 (Oslo 1995), pp. 103–154. 2  Eleanor Searle, Predatory Kinship and the Creation of Norman Power, 840–1066 (Berkeley 1988). 3  Constance Brittain Bouchard, “Those of My Blood” Constructing Noble Families in Medieval Francia (Philadelphia 2001). For an introduction to her theories, see pp. 1–12. 4  Lars Hermanson, Släkt, vänner och makt. En studie av elitens politiska kultur i 1100-talets Danmark (Avhandlingar från Historiska Institutionen i Göteborg) 24 1

10

chapter one

Here the theory about kinship as a strategy will be used to give a legal historical interpretation of how kinship appear in the Nordic provincial laws, and which strategy is behind the way, in which kinship is presented in them. Kinship as a strategy is not a new approach for understanding the social conditions in the Middle Ages.5 Undoubtedly the strategic approach to kinship would never have found its way into the law codes had the central authorities not followed a deliberate strategy in matters of both proprietary rights (in particular with regard to an individual’s right of disposal of his estate), and payment and receipt of wergeld, which acknowledged the importance of the kin as a legal unit (when taking oaths, presentation of proof, etc.). It is important to note that the notion of central power is not identical to royal power and that the clergy often held high positions in the secular administration, which blurs the distinction between royal and ecclesiastical policy. The word strategy is equally blurred, because it is difficult to determine what is a strategy and what is a manifestation of the ideological currents, since these entities are often closely interwoven. In the legal historical research of the role of kinship in the provincial laws, the focus has traditionally been on the responsibility of the kin or family, not on the structure of kinship and function. If one follows Lars Ivar Hansen’s concept that the definition of kin could vary (Göteborg 2000); and Thyra Nors, “Slægtsstrategier hos den danske kongeslægt i det 12. århundrede: svar til Helge Paludan,” Historie 1, 2000 (Århus 2000), pp. 55–68. 5  In this study I use the conceptual apparatus of Pierre Bourdieu at times, to explain and conceptualize the power struggles and exchanges of values that occurred. But the theoretical basis of this investigation does not rest on Bourdieu alone; I use his ideas selectively. Bourdieu saw the notions of discourse, field, strategy, and capital as essential to an understanding of power struggles and exchanges of values. Kinship, which is central to my investigation, is actually an empty discourse that various actors were interested to define, through both conscious and unconscious strategies. The notion of kinship is not justified as a topic in and of itself but instead is a part of the values—or capital, in Bourdieu’s terminology—which existed in the field or fields in which the actors acted. Even though ideological currents will often be mentioned in the text, in fact they also are only another construction or empty discourse; they cannot exist independently and can be understood only when seen as a part of the capital that the actors brought with them into the fields where the struggle occurred about the ideological currents or, rather, about which interest group’s interest should be given preference. This “struggle” occurred in the legal, cultural, and social fields among a number of different actors, all of whom belonged to the social elite, although not all were prepared to act on the cultural level. The fact that the struggle occurred in several fields makes it complicated to handle, since it is very difficult to trace which power relations existed among the fields and how much importance the different forms of capital had in relation to each other.



kinship as strategy

11

according to the political and economic interests of the rulers, kinship suddenly becomes an important factor in the struggle for power. That was especially the case in a society in which transfer of property and administration of justice took place at a local level, a society whose central administration was rarely powerful enough to dictate the outcome of lawsuits. In the following, I will present the changes in the concept of kinship, which I argue took place with the introduction of the provincial laws. Elective- and alliance-based kinship Both Thyra Nors and Lars Hermanson have examined the kinship strategies behind the actions of the elite in twelfth-century Denmark. In other words, they have mainly focused on the period before the provincial laws were recorded in writing.6 Here, the kinship strategies that Nors and Hermanson observed in twelfth-century Denmark are supplemented with observations from other areas, because the dominant kinship strategies in Denmark resemble those that are found in Norway and Sweden in the early Middle Ages and in the beginning of the High Middle Ages.7 This does not preclude the existence of regional differences in kinship relations, which might manifest themselves in different inheritance patterns, but the fundamental idea behind the construction of kinship was identical. Here, the kinship strategy that was dominant in Scandinavia before the strategies of the provincial laws took root will be called elective- and alliance-based kinship, because kinship in this period was not definitive. Kinship was more or less a matter of personal choice, though in most cases the central element was blood relationships8 that might be

6  Even though detailed examinations of kinship strategies in Norway have not been undertaken, Sverre Bagge and Lars Ivar Hansen a.o. have observed the existence of kinship strategies from the eleventh and twelfth centuries, which in general correspond to the conclusions of Nors and Hermanson. Hansen, “Slektskap,” and Sverre Bagge, “Borgerkrig and statsudvikling i Norge i middelalderen,” Historisk Tidsskrift, vol. 65 (Oslo 1986), pp. 181–195. With regard to Sweden, the sources for this period are very sporadic, but nothing disproves the fact that the kinship strategies there were similar to those in Danish and Norwegian areas. 7  Erik Gunnes, Erkebiskop Øystein. Statsmann og kirkebygger (Oslo 1996), p. 102. 8  Blood relations refer to both maternal and paternal kin, in other words a bilateral family system.

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supplemented with ties of friendship.9 Normally, solidarity between blood relatives constituted the core of a group, in which there existed mutual obligations. But the lack of fixed norms for how kinship functioned made it possible that “within these groups [the bilateral kinship group] one could hand-pick one’s ‘relatives’ and deselect persons, which for different reasons one would not want to belong to the kin.”10 Furthermore, one could construct new family relationships, such as foster-brother-hood and godfather-hood. A perception of kinship that incorporates some of these elements appeared in Iceland at the time of the “Free State,” as described by Jon Viðar Sigurðsson: “As a starting point there is a clear difference between friendship and kinship. Ties of friendship are often entered voluntarily, in contrast to kinship ties that are inherited. It is, however, problematic to distinguish strictly between blood relations and friends. . . . When the ties of kinship had to be safeguarded with friendship, the weakness of the ties of kinship is revealed.”11 This complicated perception of kinship also appears in William Ian Miller’s description of the Icelandic society based on the sagas. Miller thought that ties of kinship played an important role, but he also emphasizes the element of choice, and that other ties than the kin were of great importance, especially through marriage and between foster parents, foster children, and foster siblings.12 One of the consequences of this vague notion of kinship was that the individual had ties and obligations toward some of his blood relatives, which enabled conflicts between near relatives. In general, this understanding of kinship, which in part rested on alliances, did not provide a foundation for stable and peaceful social structures, because the alliance system was upheld by personal ties, which ended when one  9  It was not friendship in modern sense, since friendship in the Middle Ages functioned as a contract of mutual support and could occur between equals or as a client/ patron relationship. 10   “Inom dessa sammanslutningar kunde man handplocka sina “släktingar” och välja bort personer, vilka man av olika anledninger inte ville skulle höre til släkten.” Hermanson, Släkt, vänner, p. 10. 11   “I utgangspunktet er det en klar forskjell på vennskap og slektskab. Vennskapsforhold ble oftest inngått frivillig, i motsetning til slektsbåndene, som var medfødte. Det er imidlertid problematisk å trekke opp klare linjer mellom slektninger og venner. Slektsbåndene var nemlig ikke sterkere enn at de måtte sikrest med vennskap. . . . Når blodbåndene må sikres med vennskap, understreker det svakheten ved slektsbåndene.” Jon Viđer Sigurđsson, “Forholdet mellom frender, hushold og venner på Island i fristatstiden,” Historisk Tidsskrift, vol. 74, serie 3 (Oslo 1995), p. 328. 12  William Ian Miller, Bloodtaking and Peacemaking. Feud, Law, and Society in Saga Island (Chicago and London 1990), especially pp. 139–178.



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of the parties died. A good example of this can be observed in alliances entered through a marriage. Obviously, marriages had a peacemaking function, for example as an indication of an alliance entered between two previously contesting parties. Marriages were also the root of discord, however. Hermanson points to the government of the Danish king Niels (1104–34) as an example of such a shortsighted alliance. King Niels was able to hold the throne as long as he did, Hermanson argues, because of marriages between domestic magnates and because of ties of friendship between his wife’s relatives and potential competitors to the throne. This well-constructed system totally collapsed with the death of his wife Margrethe, because the ties of friendship, and thereby ties of kinship, were held together by her personally. The original peace strategy collapsed, new conflicts were born.13 The described kinship system, in which strategic motives might lie behind the choice of relatives, does not resemble the system of strong kinship ties among blood relatives, which many historians and legal historians claim characterized the pre-Christian period. Those same historians often claim as well that the Church and royal power jointly pressured old social structures to the breaking point. What advantages did a kinship system such as the elective- and alliance-based system have, and why did the authorities seek to break it down during the High Middle Ages? As mentioned before, the kinship system had an inherent instability. It was an advantage in a society that lacked a strong central power and in which advantageous alliances, combined with a certain amount of luck, might lead to social ascent. But it also had a disadvantage: the risk of coming down in society if you had no luck. The struggle for power and resources through the kinship system appears to have been central to social development in the Nordic Viking Age and early Middle Ages. The unstable conditions became problematic, however, when power became centralized around the king and when the Church introduced new ideals about law, peace, and justice, which slowly gained hold in society.

13   The Corsican saying, which Anne Knudsen cites in her book about Corsica, expresses the weakness of alliances based on marriages: “Morta a moglia si porta sa famiglia appresu.” (“When the wife dies she takes her family with her.”) Anne Knudsen, En 0 i historien. Korsika. Historisk antropologi 1730–1914 (Copenhagen 1989), p. 195. In the case of Margrethe, it should instead have been “when the wife dies she takes the alliance network with her.”

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In the following chapter, I argue that the notion of kinship that appears in the provincial laws expressed a new kinship strategy, which the authorities attempted to introduce through legislation. This new strategy was based on theological currents and gained influence among lawgivers, who believed that a more stable kinship system would have a peacemaking effect. By breaking down the elective- and alliancebased kinship system, they reasoned, the inherent instability and deeprooted conflicts of the system might, at least in theory, be ended. The new kinship strategy will here be called “canonical kinship.” It is the main purpose of this book to demonstrate the introduction of canonical kinship in the provincial laws, with all its implications. As we sharply juxtapose these two kinship systems it is important to emphasize that they are ideal types and are therefore not an absolute reflection of reality. Even though a kinship system is, according to the ideal, strictly constructed, so that selection of relatives was not possible, any kinship system will, in reality, contain an element of choice, since it is not possible through legislation to make people love and respect each other. Therefore, it is impossible to prevent enmity among blood relatives, and a selective element certainly continued to exist regarding with whom you associated and for whom you felt responsible. Legislators were undoubtedly aware of this, and they undoubtedly realized that it was not possible to force people to love all their relatives. Nonetheless, the practical purpose of canonical kinship was undoubtedly to create a moral code according to which violence and killing among blood relatives was unacceptable. This legislation is derived from the notion of canonical kinship and should therefore be seen as a part of the “cultural struggle” to not only command but also influence the population’s perception of right and wrong. Canonical kinship As the name implies, canonical kinship is defined by canon law, which places precise limitations on kinship. These limitations were the foundation of the elaborate incest decrees that existed in the Middle Ages. The canonical way of defining kinship was based on a graduated system. You were related to your parents one generation removed, grandparents a second generation removed. etc. The kin of an individual contained all these persons and descendants up to the limit stipulated by the Church, which in the early Middle Ages (and also in Gratian’s



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Decretum) was the seventh generation removed. To keep track of your relatives through seven generations was complicated. Furthermore, canon law prohibited levirate marriage (people who were related by marriage), so it could be difficult to find a suitable match in smaller communities.14 Thus the Fourth Lateran Council (1215) limited the prohibition of marriage within the kinship group to the more realistic fourth generation removed, which limit persisted throughout the remainder of the Middle Ages.15 The notion of canonical kinship also had great mental importance. Kinship played a role not only in material matters, such as inheritance, but also in theological matters, for example defining the important moral obligations which connected kin groups. The most important moral command was the obligation for relatives to love each other.16 Enmity or even violence between relatives was in sharp opposition to this command and was, in the extreme consequence, a crime against God’s order. All Scandinavian provincial laws follow the canonical definition of kinship. This cannot be a coincidence, especially considering that the canonical command of loyalty and peace among blood relatives within an established group was a novelty in comparison to the elective- and alliance-based kinship that appear in the documents from the eleventh and twelfth centuries. It is therefore possible that the appearance of canonical kinship in the provincial laws reveals a deliberate attempt to supplant an earlier dominant definition of kinship with a new one. What motives actually lay behind this strategy? We know that the learned society, through its education (mainly at the great centres of learning in Europe) came to consider the canonical definition of kinship as the only correct one. The Church prescribed this model, so

14   The dioceses under the Norwegian archbishop at the creation of the seat (1152–53) received a dispensation to move the limitation for entering into marriage from the seventh to the sixth generation removed. 15   J. Alberigo, P.-P. Joannou, C. Leonardi, and P. Prodi, eds. Conciliorum oecumenicorum decreta, “Concilium Lateranense IV” (Basilieae, Barcinone, Friburgi, Romae and Vindobonae 1962), ch. 50, pp. 233–234. The decrees have been printed in a LatinGerman edition in Josef Wohlmuth, Dekrete der ökumenischen Konzilien II: Konzilien des Mittelalters vom ersten Laterankonzil (1123) bis zum fünften Laterankonzil (1512–1517) (Paderborn, Munich, Vienna and Zürich 2000). 16   The word “love” is not used in the modern sense, which rests on feelings, but instead in the medieval sense, which rested on rights and obligations that tied people together and demanded that they show respect and loyalty to one another.

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it consequently was valid for all Christians. It would be incorrect to claim a sharp distinction between religion and politics, however, since such a distinction was unknown in the Middle Ages, when religious ideas often became political prescriptions, and practical policies often took on religious expression. The canonical writings emphasized that eternal peace was integrally connected with love among relatives. Christian rulers were supposed to be creators of peace (likewise on the practical level, it enhanced the prestige of the ruler, as upholder of justice, if he could limit strife); and the introduction of canonical kinship was an attractive model for limiting strife. The laws alone are not sufficient, however, to understand the extent of the new definition of kinship, because in order to change the existing elective- and alliance-based kinship system, more serious intervention than just promulgating new laws was needed, for laws might take a long time to be accepted. Promulgation of canonical kinship was an ideological project which was more deeply ingrained than the provincial laws indicate and in which the Church throughout Western Christendom actively participated. Unfortunately, only few books of sermons or similar texts have survived, so we do not have a detailed picture of the religious preaching in Scandinavia. However, materials from abroad reveal that the Church preached the moral obligation of love between relatives. See, for example, the Lucidarius, a French catechism of theology, use of churches, and morals. The book was written in the early twelfth century by an unknown author who clearly was well educated and familiar with the theological currents of his time. Lucidarius quickly became very popular, and its popularity continued throughout the Middle Ages, as evidenced by the many translations into the vernacular, including Swedish and Icelandic. The book was eminently suitable for reading from the pulpit.17 Lucidarius explains the background for the incest decrees of the Church the following way: Among us Christians [in contrast to the Jews of the Old Testament] love is extended to enemies according to the command of God, in which he says: You shall love your enemies. Now since blood forces us to love our relatives, the Holy Ghost states that through the Holy Church we should take the daughters of unrelated men as wives, so that the wife should 17  For Lucidarius in Sweden, see: Robert Geete, ed., Svenska Kyrkobruk under Medeltiden. En Samling af utläggningar på svenska öfver Kyrkans Lärobegrepp, Sakrament, Cermonier, Botdisciplin m.m. (Stockholm 1900), pp. vii–ix.



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constitute the tie of love between us and the foreigners, so that love in the end should cover all humanity.18

The background for canonical kinship can barely be expressed more clearly than in this citation. Having blood in common means mutual love, which results in avoidance of strife by creating ties of blood among enemies through marriage.19 The connection between kinship and love was in no way a new thought at the time of the provincial laws. Already in his De Civitate Dei (book 15), the Church Father Augustine explained how important it was to have ties of kinship with as many people as possible, because ties of kinship equaled ties of love.20 How important Augustine’s thoughts about the connections among incest, peace, and love can be seen in Gratian’s Decretum, where Augustine is cited for an explanation of the stipulations of incest.21 Considering the popularity of the Decretum, it has certainly been important for the transmission of the connection between canonical kinship and peace. Even though the early Church already operated with a theory that combined kinship with moral obligations, several hundred years went by before the canonical writings established a precise limitation of

18   “Än j blandh os cristet folk vthrekker sik kerleken jemuel til vara uvener Effter gudz bodh Huaris han siger j sculin älskä jdhre ovener Nu fore thy at blodhen twingar oss älskä vara vener ok fränder Stadgadhe then helge andhe om the helga kirkio, tagha sik oskylda manna dötter til hustrur At hustrun sculi vara kerleksens bandh mellan oss ok oss frömendom Ther pa at én kerleker sculi vara ok räkkä ouer alt mankönet.” Cited from the Swedish late medieval text. Ibid., p. 193. 19  It is based on the citation from the Bible (Gen. 2:24) that married couples become one flesh: “That is why a man leaves his father and mother and attaches himself to his wife, and the two become one.” It was expounded literally, so that a marriage meant that the families in-law were also considered blood relatives. 20  Augustine: Concerning the City of God against the Pagans, ed. and trans. Henry Bettenson (London 1972) book 15, chap. 16, pp. 675–676. David d’Avray, and later M.H. Gelting, has drawn attention to the doctrine of kinship and love, which must be considered one element behind the extensive prohibition of incest, which later came to play an important role in the teaching of the Church about canonical kinship. David L. D’Avray, “Peter Damian, Consanguinity and Church Property,” eds. L. Smith and B. Ward, Intellectual Life in the Middle Ages. Essays Presented to Margaret Gibson (London 1992), 71–80; Michael H. Gelting, “Marriage, Peace and the Canonical Incest Prohibitions. Making Sense of an Absurdity?” ed. Mia Korpiola, Nordic Perspectives on Medieval Canon Law (Publications of Matthias Calonius Society) 2 (Saarijärvi 1999), p. 96. 21   Corpus Iuris Canonici I: Decretum Magistri Gratiani, ed. Lipiiensis secunda post Aemilii Ludovici Richteri curas, ad librorum manu scriptorum et editionis Romanae fidem reognovit et adnotatione critica instruxit Aemilius (Friedberg, Tauschitz, Lipsiae 1879–81), 2. pars, Causa XXXV, q. 1, p. 1262.

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canonical kinship. That occurred under Pope Gregory III, who in 732 set the limit at the seventh generation removed. He probably chose the seventh generation removed because this was the limit stipulated for inheritance in the Roman law as well as in several later vulgar laws, among them the Lombard Law, which was valid in large parts of Italy.22 Georges Duby identified a shift in the social order in the Frankish Empire in the eleventh century, which other researchers, such as Dominique Barthélemy, interpreted as a change in the character of the diplomatic materials. The outdated Carolingian style was replaced by one that was more contemporary. Consequently, where earlier documents stated that two persons were related, documents in the new style specified the precise ties of kinship.23 This change has been interpreted as an expression of a change from cognate to a more clearly defined agnatic lineage. It could just as well be maintained that the importance of the doctrine of canonical kinship in the intervening centuries had grown in importance, not only on the ideological level but also on the practical—where it became so important that it influenced the writing of diplomas. In Scandinavia, as already mentioned, there existed an antagonism between the canonical and the elective- and alliance-based systems. Despite the introduction of Christianity, the latter long continued to be valid, probably because the introduction of canonical kinship required a well-organized Church structure, as well as support from

22  Kathrine Fischer Drew, ed. and trans., The Lombard Laws (Philadelphia 1996), “Rothair’s Edict,” ch. 153, p. 77. The seventh generation removed was not prevalent everywhere: in Lex Ribuaria (ca. 629–639), the limit for inheritance was set at the fourth generation removed (Theodore John Rivers, ed. and trans., Laws of the Salian and Ripuarian Franks (New York 1986), “Lex Ribuaria,” ch. 57, § 1–4, p. 192. It should be added that the Roman and the canonical method of determining kinship were not the same, since the canonical or Germanic (which it is sometimes called) was far more inclusive than the Roman. Each degree of kinship according to the canonical method corresponded to two degrees in the Roman law. Canonical kinship is elaborately described by Isidore of Seville and is included in Gratian’s Decretum, where Gratian attempts to explain the connection between the Roman and the canonical methods of determining kinship. Corpus Iuris Canonici I: 2. pars, Causa XXXV, q. 5, c. 1, 2, 4, and 6, pp. 1271–1277. 23  Pauline Stafford, “La Mutation Femiliale: A Suitable Case for Caution,” J. Hill and M. Swan eds., The Community, the Family and the Saint. Patterns of Power in Early Medieval Europe. International Medieval Research. Selected Proceedings of the International Medieval Congress University of Leeds, 4–7 July 1994, 10–13 July 1995 (Turnhout 1998), p. 109.



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the royal power in the form of legislation. Any active role played by the Church has left few vestiges in the documents. One Danish example is the Vita of Saint Cnut Dux.24 It is the earliest source to describe the moral part of canonical kinship. It describes many of Cnut’s relatives as treacherous, because they did not live up to the canonical ideal of kinship and acted based on the elective- and alliance-based kinship ideal.25 The description of the death of Saint Cnut as a martyr in the Vita can be regarded as testimony to opposition between the two systems of kinship, in which Saint Cnut exemplifies the new canonical ideals and the scoundrels, headed by Cnut’s cousin and killer Magnus, represent the old elective- and alliance-based kinship. Furthermore, Saxo Grammaticus in his Res Gesta Danorum (ca. 1200) also emphasizes the demand that blood relatives love another. After having subdued Swein III,26 Valdemar I the Great pardoned Magnus Ericsson, who had fought at Swein’s side of; moreover, he also gave Magnus presents and honors. Because he [Valdemar] would not conduct himself as such a hard-handed avenger that it would appear as if anger had more hold on him than the feeling of kinship. Therefore, even though the crime deserved punishment kinship ensured the salvation. To him kinship of an adversary thus weighed just as heavy as faithfulness and obedience among his adherents, and he rewarded his enemy on equal terms with his friends.27

In another literary genre as well, we can observe the impact of the doctrine of canonical kinship and its command of mutual love combined with the prohibition of incest. The Icelandic “Völuspá” (The Prophecy of the Volva), although it pretends to render pagan mythical materials,

24  Saint Cnut Dux (ca. 1090–1131) was the son of the Danish king Eric I the Good (king, 1095–1103). He was Duke of Schleswig and would be a strong candidate for the throne after the death of King Niels (king, 1104–1134), which was probably why Niels’ son Magnus killed him. The murder provoked a civil war that ended with a victory for Cnut’s son, Valdemar I the Great (king, 1157–1182), who in 1170 at Church Feast in Ringsted had Saint Cnut canonized and translated; his grandson Cnut VI (king 1182–1202), who was seven years old, was crowned as his father’s co-ruler and successor. 25  Nors, “Slægtsstrategier,” p. 61. 26  When King Eric III (king 1137–1146) abdicated in 1146, civil strife broke out among the adherents of Eric II’s (king 1134–37) son Swein III, King Niels’ grandson Cnut, and Valdemar I, son of Saint Cnut Dux. The strife ended in 1157, when Valdemar defeated and killed Swein at Grathe Moor and Valdemar became sole ruler. 27  Saxo Grammaticus, Gesta Danorum, vol. 2, Latin text ed. Karsten Friis-Jensen (Copenhagen 2005), 14:19:17, pp. 239–240.

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reveals the theological background of the author by presenting Ragnarók as a Christian horror scenario: “Brothers will combat and kill each other, siblings will break ties of kinship.”28 The following reveals that it was incest which would break the ties of kinship. The prohibition regarding marriage was, as previously mentioned, not only confined to blood relatives but even included relatives by marriage and spiritual relatives, that is, godparents and godchildren and their closest families. The prohibition of marriage between spiritual relatives was justified on the grounds that baptism established a spiritual kinship. The prohibition of matrimonial cohabitation between people related by marriage and its classification as incest was justified by the biblical statement that a man and a wife, by entering marriage, become one flesh; which accordingly meant that their families also became blood relatives. Based on this, one would expect that if the definition of kinship in the provincial laws was based on the ecclesiastical doctrine of incest, people related by marriage and spiritual relatives would have the same rights and obligations that tied the kindred organization together. But we have seen above that this was not the case. It is therefore noteworthy that the version of canonical kinship that is found in the laws, except in a few scattered decrees, includes blood relatives only, not people related by marriage and spiritual relatives. This can probably be explained by understanding that for canonical kinship to work, it should not be too complicated. As long as the building block of canonical kinship was blood, each person could keep track of his relatives. But if people had to keep track of and have responsibility and rights relating to relatives by marriage several generations back, it would be too complicated.29 Another explanation might be that because one of the main functions of canonical kinship was to be the foundation of the inheritance law and the related areas of property transaction, it was natural that only blood relatives should constitute the kinship group. It would probably be unthinkable to implement an inheritance system that preferred, for example, relatives by marriage

28  Preben Meulengracht Sørensen and Gry Steinsland, eds., Vølvens spådom (Copenhagen 2001), ch. 45, p. 25, “Brødr muno berias ok at bönom verdaz, muno systrungar sifiom spilla.” p. 131. 29  Later in this book, in the chapter on wergeld in the Norwegian legislation, I present examples from the Norwegian provincial laws where the stipulations were unrealistic to uphold in practice.



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one generation removed before blood relatives of the second generation removed, for example. Furthermore, if the canonical kinship group to which you had obligations became so encompassing that in reality you would not be able to keep track of all relatives beyond the nearest generations, you might be forced to select those whom you could trust, which would blur the difference between the elective- and alliance-based kinship and the canonical. Even though scholars such as David Gaunt,30 Michael H. Gelting, and Lars Ivar Hansen have promoted the connection between canonical kinship and parts of the decrees in the provincial laws, it does not follow that the connection between canonical kinship and the peace ideology has been generally accepted. Both in Europe and in Scandinavia, scholars have offered other explanations of the function of kinship in the High Middle Ages, concerning both practice and theory and the underlying ideological motivations. Jack Goody provided the most well-known theory about the motives behind the ecclesiastical definition of incest and, thereby, the kinship definition.31 He argued that the Church’s motive for imposing the commands of incest was hunger for land and riches: Prohibitions against incest would lead to a change in marriage patterns, so that several people would be unable to find suitable partners and would consequently not enter a marriage. The result would be that more people would die childless, which Goody thought would motivate them to donate to the Church. Many scholars have criticized his very materialistic view of the intentions of the Church, among them David Herlihy, who put forward four counterarguments. First, nothing in the writings of the Church itself support the idea that the aim of the incest prohibition was to prevent entering marriages. Second, Herlihy argues that it is very difficult to imagine how the early medieval Church, whose structure was still very decentralized, could have thought out and, not least, carried out such a strategy all over the Catholic world, without the real motives being discerned. Third, nothing in the sources seems to imply that childless people were more generous towards the Church than those with children. In fact, many large donations came from widows who, having lived a secular life as wife and mother, withdrew to the Church. Finally, the continued

 David Gaunt, Familjeliv i Norden (Malmö 1983).   Jack Goody, The development of the family and the marriage in Europe (Cambridge 1983). 30 31

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existence of the Church depended on a continued recruitment from the ranks of the nobility, since the Church often filled its higher positions with members from that group. “To interfere with the fertility of the magnates would have been to obstruct the Church’s own capacity to maintain its cadres over time. The strategy envisioned by Goody, unmentioned by any contemporary source, does not make much sense.”32 Herlihy is definitely not the only scholar who has criticized Goody’s explanation for the incest provisions and the canonical kinship system. As a result, Goody’s theories can no longer be considered to be the state of the art. The French historian Georges Duby has provided another explanation of how kinship functioned in Europe in the High Middle Ages, specifically in northwestern France in the eleventh and twelfth century. He concentrated his studies on the marriage and kinship patterns of the aristocracy.33 For the aristocracy, it was essential that the estate was passed on undivided from generation to generation—a dynastic kinship ideology—in order to uphold the image and importance of the family. Consequently, the oldest son or—in case of lack of sons— eldest daughter inherited everything, and younger children were cut off. For younger sons, this also meant that they could not marry. The advantages of this system were that the estate of the family was not reduced by inheritance divisions and that the head of the family continued maintain his grandeur. The disadvantage was the danger that the direct line of kin might die, causing the estate to pass to a side branch through the marriage of a daughter, or, even worse, that the family might die out totally. The system depended upon the heir obtaining legitimate issue, preferably sons, which not only should outlive him but also produce healthy legitimate issue. The system was rendered even more precarious by the tradition that the oldest son usually married only after the death of his father, because castle households were centred on the lord of the castle and his family, and there was no space or influence for two aristocratic couples. Another problem with the 32  David Herlihy, “Making Sense of Incest: Women and the Marriage Rules of the Early Middle Ages,” in B.S. Bachrach and D. Nicholas, eds., Law, Custom, and the Social Fabric in Medieval Europe. Essays in Honor of Bryce Lyon (Kalamazoo 1990), p. 8. 33   The marriage patterns among peasants differed completely from those of the aristocracy, since the peasantry was not seriously concerned with the kinship ties. In reality, they only considered the closest family as actual kin. George Duby, Love and Marriage in the Middle Ages (Chicago 1994), p. 110.



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system was that the large number of unmarried men led to concubine conditions and, thereby, to a large number of children born outside marriage. This problem was more moral than practical, however, since the illegitimate children functioned as a recruitment material for the Church and the nobility, and illegitimate girls made fine wives for the vassals of the lord of the castle. From the beginning of the thirteenth century, a softening of the marriage patterns of the aristocracy occurred, and more sons were allowed to marry. That led to the division of estates among more hands. The main estate still went to the eldest son, and the inheritance land was selected from the dowry of their mother or more remote possessions. At the same time, it was expected that the younger sons would declare an oath of fealty to the older brother. Duby explains that the changed practice resulted from general economic progress in society and a more widespread monetary economy, which meant that the aristocracy had more liquid resources at its disposal. It became much less problematic to split up estates when land did not hold the same importance for acquiring wealth as it had previously held; no longer was it necessary to keep the whole estate united through generations.34 It is, of course, easy to criticize Duby for presenting a very schematic model for aristocratic marriage patterns in northwestern France in the eleventh and twelfth centuries, because the situation was much more nuanced than he described.35 Nonetheless, Duby presents an ideal type, and he is aware that there were many exceptions to the rule. In his opinion, he uncovered an aristocratic marriage ideal that might not always have been possible or convenient to adhere to in practice. A society in which only the oldest son inherits, as described by Duby, appears at first to be a very different inheritance pattern from the one that the provincial laws attempted to introduce in Scandinavia. Duby describes a patrilineal kinship strategy within the aristocracy, whose aim was to concentrate power in the hands of one man rather than to disperse the family estate. This was the opposite of what the canonical kinship system in Scandinavia desired, that is, to assure more

34  A presentation of Duby’s arguments can be found in: George Duby, The Knight, the Lady and the Priest. The Making of Modern Marriage in France (London 1984), pp. 253–284. 35   Theodore Evergates, “Nobles and Knights in Twelfth-Century France,” Thomas Bisson ed. Cultures of Power. Lordship, Status, and Process in Twelfth-Century Europe (Philadelphia 1999), pp. 11–35, especially, p. 21.

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equality among all children. Does this then mean that Duby’s conclusion argues against the canonical kinship pattern and connected legal initiatives that appear in the provincial laws? In no way! Fundamentally, it is questionable to compare the eleventh- and twelfthcentury French aristocracy to Scandinavian developments during the High Middle Ages. In the French areas, central power was weak, giving aristocrats great leeway. It would have been very difficult for the French king to change the kinship patterns of the aristocracy through legislation. In contrast, at the time of the provincial laws, the Nordic kingdoms were experiencing a significant strengthening of the central power. Furthermore, around 1200 the French pattern begins to break apart, and a new inheritance tradition emerges, which recognizes the rights of an increased number of relative to a portion of the property. Perhaps the canonical kinship system also began to influence the French aristocracy. The manuscript on customary law by Philippe de Beaumanoir for the area around Paris in 1283, the Coutumes de Beauvaisis, reveals that the aristocracy was acutely aware of the rights and responsibilities that canonical kinship brought. Beaumanoir emphasizes that in times of strife or other unrest, help from relatives up to the fourth generation removed could be expected, but such rights and responsibilities did not extend to more distant blood relatives.36 Peter Sawyer, Lars Ivar Hansen, and Eleanor Searle have noted that in fact there existed a notion of variable kinship. Although each person knew his blood relatives on both the maternal and paternal side, one’s function and allegiance to various relatives varied widely, depending on the situation. A person often would approach a small circle of kinsmen for assistance but might expand the circle in special situations; or a person might approach an entirely different grouping within the kin group if it seemed better suited for providing assistance. The only thing that these variable kinship groups share is the criteria that established kinship: blood. Scholars have identified different versions of the variable kinship system, for example in Normandy in the tenth and eleventh centuries,37 in Anglo-Saxon England,38 and in Scandinavia, in particular in Norway 36  Philippe de Beaumanoir, Coutumes de Beauvaisis, vol. 2 (Paris 1970), pp. 362– 364. 37  Searle, “Predatory Kinship,” pp. 159–177, in particular p. 161. 38  Peter Sawyer, From Roman Britain to Norman England (New York 1978), ch. I, 4, in particular p. 77.



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in the High Middle Ages.39 How can this be linked up with the introduction of canonical kinship, with its ethics of rights and responsibilities towards all kinsmen in Scandinavia in the twelfth and thirteenth centuries? There is not necessarily a sharp opposition, for it is unlikely that canonical kinship was accepted overnight or that it was easily able to sweep away earlier customs. Furthermore, the idea of canonical kinship is based on an ideal which in practice was difficult and inexpedient to live up to, so it was likely that many people adhered to only a limited part of the kinship group. The last argument raises a new question, namely, whether it makes sense to use canonical kinship as a starting point for an interpretation of provincial laws that deal with issues beyond marriage law, where the prohibition of incest made the connection of great immediate interest. Yes, it does! As the second part of this book will show, a principle may be used as background for legal provisions, even without the involvement of the persons who theoretically should be involved in the dispute. The thoughts and ideals on which canonical kinship rested were well-suited as background for legal provisions and legal ideology. In conclusion, the following quotation from Michael H. Gelting is suitable: the crucial role of kin groupings for the problem of peace is thus a general feature of medieval European societies, the more so as no public authorities anywhere were capable of effectively containing conflicts at the local level. . . . It also explains why ecclesiastical authorities might wish to insist upon the absolutely binding obligations entailed by kinship, fictive or by blood, in the widest possible sense: this was an indispensable corollary to the continuing function of the mechanisms of kinship in securing social peace through legal means.40

How the implementation of such a system was attempted in the Scandinavian countries, and how it came to function outside the ideological level is another story that his book attempts to uncover.

39  Hansen, “Ætten,” p. 50. Torben Vestergaard in his examination of the Norwegian provincial laws described a system that resembles the concept of variable kinship. He called it “minimal kin,” and it consisted of men three generations back on the paternal side; Vestergaard considered attachments and obligations to extend only that far. But at the same time he acknowledged the existence of a much broader concept of kinship, which included both maternal and paternal kinship. Torben A. Vestergaard, “The system of kinship in early Norwegian law,” Mediaeval Scandinavia 12 (Odense 1988), pp. 160–193. 40  Gelting, “Marriage,” p. 101.

chapter two

THE LEGAL SOURCES By far, the largest collection of legal sources extant from the High Middle Ages includes laws, decrees, deeds, agreements, and legal settlements. These primarily related to canon law, which consists of decrees and papal letters in which the pope considered specific cases and then had his decision entered into the canonical legal collections, which some scholarly canonist now and then gathered. The aim of the provincial laws and the law of the realms was to regulate purely secular matters. Theoretically, at least, the legal procedure should occur at the district or provincial thing, even though the king had supreme authority. Even though the laws regulated secular matters, the secular concept of justice was influenced by canon law and theological doctrines. Therefore, violations of Christian peace and morals for example, adultery and other sexual relations, belonged in principle to the sphere of canon law but also led to secular sanctions. In addition to vernacular laws, canon laws were also in force. The latter were international, since all Christians in principle should adhere to there prescriptions, in order to ensure the soul’s salvation. Another and more immediate reason to follow the commands of the Church was to avoid ecclesiastical punishment, which could be severe for the body (with fines such as fasting, prayer, and pilgrimage) as well as expensive (with fines to the bishop) and could also injure one’s reputation and social standing. Ecclesiastical courts passed sentences according to canon law, employing the inquisitorial process.1 In this legal system, witnesses played an essential role; in contrast, compurators2 dominated the secular system. Ecclesiastical courts in Scandinavia are known only from the late Middle Ages, and their function in

1   The inquisitorial process was gradually developed within the Church and was ultimately established under Innocent III. Winfried Trusen, “Der Inkvisitionsproces. Seine historischen Grundlagen und frühen Formen,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung LXXIV (Vienna/Cologne/Weimar 1988), pp. 168–230. 2  Compurators is the term for the twelve men—the tylft—who were obliged to swear that the defendant was trustworthy.

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the early and High Middle Ages can only be deduced in comparison to the practices used in the rest of Europe. The Church tried several times during the Carolingian period and the later centuries to regiment and combine the different and at times contradictory canonical legal compilations. Among those, the Decretum of Burchard of Worms from ca. 1000 should be mentioned. The most recent Norwegian research has shown that Burchard’s Decretum was known and used in Norway already in the 1060s.3 The actual regimentation began with Gratian’s Decretum from the first part of the 1150s,4 which was used as an authority even though it was not officially recognized by the pope. Gratian’s Decretum, together with the Liber Extra from 1234, which incorporated the decisions of the Third and Fourth Lateran Councils, formed the pillars of medieval canon law. These two canonical legal compilations had an important impact on the provincial law and the general development of law in the Scandinavian countries.5 In the grey area between canon and secular law there existed in Norway and Sweden the Christian laws, Balks as they were called.6 The Christian laws regulated matters concerning religion, church buildings, and the functions of the priest. Even though the Christian laws were a part of the provincial laws, they were in principle under the jurisdiction of the Church, which meant that action on them should be brought to the ecclesiastical courts. This would require the existence of an extensive ecclesiastical court system, however, and that the religious and political position of the Church be strong enough

3   Benedicte Ellen Flood Leborg, De dødes manglende fred pr. 1066 i lys av Harald Hardrådes to konflikter med sacerdotium (Master Thesis. University of Bergen, 2003). 4   The history of the creation of Gratian’s Decretum is described by Anders Winroth in “The Two Recessions of Gratian’s Decretum,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, 114. Band, Kanonistische Abteilung Bd. 83 (Vienna/Cologne/ Weimar 1997), pp. 22–31; and The Making of Gratian’s Decretum (Cambridge 2000). 5   Later came two new compilations: Boniface VIII’s Liber Sextus from 1298 and John XXII’s Constitutiones or Clementina Clementinerne from 1317. These four compilations were combined in 1582 under the title “Corpus Iuris Canonici,” a title that presumably was chosen in order to emphasize that the collection was a counterpart to the Corpus Iuris Civilis, which received its title around 1580. 6   In Denmark there also existed Church laws for Scania and Zealand. The inhabitants of these provinces entered a compromise with the bishop about which legal procedure there should be valid in cases under the jurisdiction of canon law. These Church laws were very brief, however, and did not regulate Christian life like they did in Sweden and Norway.



the legal sources

29

to enforce the legal claims. Such a situation was inconceivable in the establishment phase or at a time when royal power did not support the ecclesiastical demand to jurisdiction, as was the case in Norway under King Sverre. With regard to Norway, the jurisdiction of the Church in Christian matters was recognized in the second half of the twelfth century, though it is difficult to establish what that meant in practice.7 In Sweden, efficient ecclesiastical legal control was not established in many areas before the thirteenth century, and there were probably variations among the provinces. It is conceivable, however, that in both countries, lawsuits in matters of Christian law were initiated at the local thing if the ecclesiastical court was far away and if the political position of the Church was weak. The oldest Norwegian Christian laws had several decrees on behavior that might have been relevant for a newly christened people who had to be turned away from pagan practices; no similar traces can be found in the Swedish Church laws. Ecclesiastics were in a double position, considering that Christian laws existed in the vernacular and were incorporated into the secular legislation, which did not follow the prescriptions of canon law in detail. On one hand, the aim of the ecclesiastical courts was to adhere to the doctrines of canon law; on the other, it was impossible to ignore the vernacular Christian laws. The ecclesiastical authorities must at times have been in doubt which law code had precedence. The legal practice has unfortunately not survived, so it is impossible to conclude how common such conflicts were or how they were solved. As mentioned previously, the law codes form the mainstay of the legal materials, as few sources concerning legal practice have survived. Most of the sparse documents are found in monastic records of how they acquired land and property; in other words, documents concerning donations, conveyance transfer, exchange of real property, and purchase. This skewed material does not provide a representative image of the activities at the thing or the property market, but it does give an impression of the legal procedures that were followed. It is also possible to find a few vestiges of the legal practice in literary texts. Neither the Danish historian Swein Aggesen nor Saxo describe the legal system in any detail. Where legal topics are mentioned, they relate mainly to events that occurred before the creation

7   Sverre Bagge, “Kirkens jurisdiksjon i kristenrettssaker før 1277,” Historisk Tidsskrift, vol. 60 (Oslo 1981), pp. 144–145.

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of the provincial laws. The Swedish Chronicle of Eric also describes the big political events and only indirectly mentions legal occurrences. The situation is somewhat better with regard to Norway because of royal sagas throughout the thirteenth century; still, political events are the centre of attention, and only from 1329 has a detailed description of a lawsuit and its verdict survived.8 Ideally, there existed within canon law, as described in Gratian’s Decretum, a hierarchy of different legal sources, with canon law being the highest and applicable for all Christians. In practice, the situation was different. It might be imagined that there existed an interaction among different law codes, which in modern jurisprudence is called legal pluralism, since several legal systems were valid. Legal power did not emanate from one centre. There was no hierarchical structure. Different customary norms probably were enormously important.9 The extant written law codes that are known today probably reflect only the tip of the iceberg. It is likely that norms existed in the villages as well as among lords for what was legally reasonable, and for how to solve conflicts.10 With regard to secular laws, the decrees may have functioned as subsidiary stipulations that could be used if nothing else was approved, or if the existing norms were insufficient for establishing a compromise. With regard to the Nordic provincial laws, it should be kept in mind that canonical kinship emerges for the first time in legislation in the twelfth century, at a time when canon law was still in a formative phase. New decrees in the form of papal letters and decisions of councils were continually added, altering the existing practice with regard to matters such as marriage law, clerical celibacy, and the development of the inquisitorial procedure as the only universally accepted

  Jørn Ø. Sunde et al., Audun Hugleiksson. Frå kongens råd til galgen (Selja 2002), p. 110.  9   It is usually problematic to use a modern legal concept about medieval conditions, but since legal pluralism was developed for studying the legal situation in colonies, both when they were subject to a colonial power and later when they were independent states, the notion is not so closely connected with modern western legal system. 10   That was the practices in the medieval Two Sicilies, where Frederick II’s Liber Augustalis regulated only what we now call public law, process law, and penal law, but not private law. H. Hübner, “Die Gesetzgebung Kaiser Friedrichs II. Von Hohenstufen und das Privatrecht,” K. Kroeschell ed., Festschrift für Hans Thieme zu seinem 80. Geburtstag, 1986, pp. 97–107.  8



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procedure (before 1215, ordeals also accepted).11 This led the scholarly elite to believe that both canon law and its theological insights might be altered and improved. And this, in turn, may have led to the idea that parts of a body of knowledge might be exploited in a context other than that to which they seem to belong. Another impediment is that later in the Middle Ages, both canon law and theology became more inflexible. It is possible that the influence of canon law on provincial law in the twelfth and early thirteenth centuries could have been an ideological influence rather that a direct borrowing. Therefore, my examination is not focused narrowly on the introduction of canon law in Scandinavia or on the ways it interacted or conflicted with secular law. Instead, I will focus on which learned ideologies, theological as well as canonical, influenced the designing of the provincial laws. In practice, there probably existed a multitude of different norms, legal provisions, and considerations which influenced the legal landscape. The central power was not developed enough to effectively enforce the use of legal courts in all matters, nor did the accusatory procedure that dominated the secular laws enhance public authority.12 The main emphasis in this book is on the ideological aspects of the legislation. But legal practices will be included to the extent the scarce sources allow, because there was a narrow interaction between ideology and practice and because the intention of the legislation was known and was used in the practical enforcement of law.

11   This may explain why the Church laws for Zealand and Scania have an accusatory instead of inquisitorial procedure; the bishops and other clerics may not have considered it problematic in relation to canon law that the laws employed the accusatory procedure. Later it became a matter of conflict that, in the 1250s, led to a bitter clash between the Scanians and the archbishop Jacob Erlandsen over the procedure to be employed. Niels Skyum-Nielsen, Kirkekampen i Danmark 1241–1290 (Copenhagen 1963), pp. 67–88. 12   The interaction among the legal sources, as described above, applies primarily to the countryside. Conditions in the towns were different, which led to different enforcement of law. In towns, the central power was stronger, and the larger concentration of people meant that the authorities punished delinquents more harshly than they did in the provinces. Finally, there existed different social and legal associations in towns, since master artisans organized in guilds. Still, the inquisitorial procedure was partly introduced in the later provincial laws such as The Law of Jutland and King Eric’s Law of Zealand. Per Andersen, Lærd ret og verdslig lovgivning. Retlig kommunikation og udvikling i middelalderens Danmark (Copenhagen 2006), pp. 171–178, 253–270.

chapter three

THE SCANDINAVIAN SOCIETIES AT THE TIME OF THE PROVINCIAL LAWS Scandinavia as model of analysis Here, as in much other research, the word Scandinavia is used as a natural united concept for the Scandinavian kingdoms. The idea of the Nordic area being something unique is deeply rooted, and in the modern political debate Nordic collaboration is often juxtaposed with European cooperation. The focus on the uniqueness of the Nordic area that binds Scandinavians together has many causes—linguistic, geographical, and not least historical. The Kalmar Union between the three Nordic kingdoms in 1397 is the most significant example of the special Scandinavian interconnectedness. Furthermore, Finland was a part of the Swedish kingdom until the Russian takeover in 1809, and the double monarchy between Denmark and Norway was succeeded by a Swedish-Norwegian union in 1814. In the nineteenth century, the idea that Scandinavia was a united and unique area gained influence with the political movement Scandinavism, which had the ideological aim of uniting Scandinavia. Even though the project never materialized, it left its marks in the form of increased Nordic collaboration, which legally led to the establishment of the Nordic legal collaboration in 1872. This in turn has had a profound influence on the creation of the idea of Scandinavia as a legal unit. Historians and legal historians of the nineteenth century strengthened and developed the idea of the special status of Scandinavia. In Germany, the Germanists attempted to find out how the social- and legal order had functioned before the Romans and, later, Christianity brought changes. Within legal history, the theory of the original Germanic kinship society gained influence. This construction, whose ideological basis was the national romantic pursuit of the antique past, had its foundation partly in the extant “tribal” and provincial laws and partly in two antique books relating to Germanic people: Caesar’s

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Commentarii de bello gallico and Tacitus’ Germania.1 Even though it is well known that Scandinavia was a part of the Germanic civilization, the Nordic areas did not develop like the German areas, first because Christianity came much later to Scandinavia than to most German areas. The desire to demonstrate a unique Nordic culture was nurtured by the imminent nationalism that, throughout the nineteenth century, led to conflicts between Denmark and Germany. Germany’s defeat of Denmark in 1864 led not only many Danish scholars but also their Norwegian and Swedish colleagues to turn their back on the south. A shared Nordic past was recreated from a combination of Icelandic sagas, the Edda-poems, Saxo, and other medieval historians, with the idea of a kinship society that was nurtured by the interpretation of the provincial laws by legal historians. The most explicit expression of the idea of a single Nordic culture is probably the construction of the notion the Viking Age2 as well as the theory that one can trace the existence of a particular Nordic identity far back in time. Many still perceive this idea to be valid because historical texts consciously or unconsciously still present research that confirms that all Nordic territories in the pre-Christian era had identical social and political structures. Since the sources are very sporadic, regional differences are very difficult to uncover, not only from the pre-Christian era but also from the Middle Ages. Focus on the Nordic and the more narrowly national has also meant that archaeological finds have often been interpreted in a national context, a tendency that has changed in the archaeological research in the most recent decades, when objects dated as far back as the Bronze Age and, in the current context even more interestingly, Germanic Iron Age have been interpreted within a continental European context. There evidently are many similarities between the objects, which  Even though the idea of a primeval kinship society can still be found in more recent works (such as, e.g., Hoff, Lov og landskab, p. 325), they are unique exceptions. Most legal historians have rejected the idea, because the foundation of the arguments conflicted with source criticism (see, e.g., Elsa Sjöholm, Sveriges medeltidslagar. Europeisk rättstradition i politisk omvandling (Lund 1988), p. 51. Furthermore, the documents on which the Germanists based their studies cannot be distinguished as either “true” Germanic or Roman/Christian (Alan Murray, Germanic Kinship Structure— Studies in Law and Society in Antiquity and the Early Middle Ages (Toronto 1983), pp. 116–130). 2   For the construction of the Viking Age concept, see: Anders Lundt Hansen, I begyndelsen var Ordet . . . Overgangen fra runer til romerskrift i Danmark 800–1300 (Copenhagen 2001), pp. 71–84. 1



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may be interpreted as a sign that structures known in, for example, the Merovingian kingdom can be also be found in Denmark. This has led to speculation that Danish territory resembled much more closely the cultural and political situation described by written sources from the continent. We must conclude that there was a reciprocal influence between Denmark and the Merovingian kingdom even on the organizational level, in which the legal thoughts were a part.3 The aim of the previous argument was to discuss whether the use of Scandinavia as an analytical unit makes sense in the period popularly called the Viking Age. I do not intend to enter a wide-ranging discussion of the social structures that existed in this period. It could rightly be argued that other units of analysis are more relevant, such as comparing Norwegian laws to Anglo-Saxon laws or focusing on the Danish legal development in the light of the German. Nevertheless, this study considers the Scandinavian kingdoms in the High Middle Ages as a unit. Even though the political and social conditions were not identical everywhere, there usually existed cultural and legal exchanges between neighboring regions. Furthermore, none of the Nordic states were under the German Empire,4 and therefore they were not under imperial legislation—the king’s peace. Most important in this context is the fact that the Scandinavian countries were closely interconnected linguistically and dynastically. The royal families often intermarried. This ensured close relations between the states and among alliance partners in conflicts both within and outside of Scandinavia. The close dynastic ties could also be a two-edged sword, however, since the ties of kinship meant that inheritance claims might lead to conflicts. Before the advent of the provincial laws, the three Scandinavian kingdoms experienced analogous developments toward a stable sovereignty. This had an impact on their historical and legal development: that civil wars emanating from succession disputes, which occurred in all countries, were replaced by peaceful successions. The memory of the chaos and lawlessness rampant during the civil wars certainly promoted the wish for law and order and, thus, led legislation activity to flourish from the mid-twelfth century onward. Despite similarities 3   Jens Jensen, Danmarks Oldtid, Bronzealder, 2000–500 f. Kr. (Copenhagen 2002); and Lars Jørgensen, “Stormandssæder og skattefund i 3.–12. århundrede,” Fortid og Nutid, serie 1 (Copenhagen 1996). 4   The only exception was when Valdemar the Great in 1162 swore an oath of fealty to Frederick Barbarossa, but that was not repeated by his successors.

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among the kingdoms, however, we cannot talk of parallel developments, because the developments did not occur simultaneously in all three kingdoms, and the conflicts that gave rise to civil wars had different causes in each country. In Norway, for example, joint kingship caused the strife, but this was almost unknown in Denmark. There, in contrast, the cause of strife was that all the male offspring of the king were potential pretenders. While all three Scandinavian kingdoms moved toward peaceful successions, very different legal cultures existed in each area before the appearance of the provincial laws. The Norwegian legal culture was strongly influenced by Anglo-Saxon law, whereas the Danish legal culture was more influenced by her German neighbor. Connections to the south and east dominated the political history of the twelfth century. Furthermore, the three kingdoms had different legal customs, which certainly were not static (otherwise foreign influences would not gain influence), and each kingdom’s customs rested upon different principles. For example, customs regarding inheritance law rested upon principles that varied widely among the kingdoms, despite influence from the scholarly legal cultures. In the Swedish kingdom, there apparently existed several customs, seasoned with influences from other legal cultures. But the Swedish laws, except the older Västgöta Law, are much later than the Danish and Norwegian laws, so the influence from scholarly law was probably stronger. Furthermore, it is more difficult to find vestiges from older customary law in the Swedish law codes. When an ideology such as canonical kinship was introduced in Scandinavia, the starting point naturally was the existing legal concept, as long as it was not too different from the new ideas. Since it was usually ideologies and not firm legal stipulations that were introduced, the people who influenced the legislation had little interest in abolishing earlier concepts. From the time of Montesquieu, who advocated the idea that the law should fit geographical and meteorological conditions, scholars have accepted that such elements may influence how legislation functions. That may be why thing-structure and church-organization differed in Norway from Denmark: in Norway, for example, the travel distance was longer to the thing or the country church. It is not my aim to try to create a theory of how legislation in Scandinavia was before the introduction of the provincial laws. Nonetheless, it is important to emphasize that the legal structures that existed before the legislation was codified were important for the design of the stipulations of the



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provincial laws, despite the influence of both scholarly law and other legal systems. Part of the explanation for differences among the laws in the three kingdoms can be influences from earlier legal cultures. The genesis of the Norwegian laws All the editions of the Norwegian provincial laws that have survived until our time are the result of several redactions and written versions. This makes it difficult to establish when the individual decrees entered the laws and to discern what amendments they may have endured. Several extant copies of the Gulathing Law provide an insight into the development of the law, however. Several paragraphs in four of its chapters contain both the law text that was passed at the time of Magnus Erlingsson’s rule, probably between 1164 and 1170, and an earlier version, known as the “Olav text.” Even though the older version of the law carries the name of Saint Olav, the consensus now is that the law was later and is only attributed to Saint Olav because the sagas and saints lives created a myth that he was a great legislator.5 The “Olav text” and possibly other early versions of the provincial laws are more likely dated to a period with inner peace and prosperity. Such conditions prevailed in Norway from the rule of Olav Kyrre (1066–1093) to the death of Sigurd the Crusader in 1130. During the rule of Olav Kyrre, Norway obtained the first established bishoprics, and since the role of the bishop is well defined in the “Olav text,” it must have been written later. It is not only though direct legislation, however, that we can observe the development of the public authority in this period. The Borgarthing was established at the beginning of the twelfth century, so Norway had four provincial things.6 The provincial thing undoubtedly played an active role in the passing of laws, and perhaps also in the recording and design of the laws in the formative period. The sagas give the impression of a strong tradition that saw the king as legislator, an idea

5  Per Norseng, “Lovmaterialet som kilde til tidlig nordisk middelalder,” G. Karlsson, ed. Kilderne til den tidlige middelalders historie. Rapporter til den XX nordiske historikerkongres Reykjavik 1987, vol. 1 (Reykjavik 1987), pp. 51–52. 6   Frederik Brandt, Forelæsninger over den norske Retshistorie, vol. 1 (Kristiania 1880), p. 13.

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that was probably not taken out of the blue.7 The interest of the king in legislation is not surprising, since any ruler has a natural wish to influence the framework of his subjects. But the legislating might also ideologically enhance the king’s legitimacy as a legislator, by projecting him as the protector of peace and justice—a royal ideal that was acclaimed all over Christian Europe.8 The period of stability and growth in Norway ended abruptly with the death of Sigurd the Crusader in 1130.9 The lack of an established succession procedure meant that all male royal scions had equal claim to the throne. A decade of civil war followed among several pretenders to the throne and their supporters. In the beginning of the 1140s, Norway had three brothers as joint kings: Inge Hunchback, Sigurd, and Øystein. As long as the brothers were minors the arrangement was not problematic, but when they grew up, their political ambitions grew. The peace lasted only until the middle of the 1150s. Despite the tense relations that emerged among the three kings, it was toward the end of their joint rule that Norway obtained its archbishopric and thereby was separated from Lund, which had wielded authority over the Norway from 1103/04. The consecration of the archbishopric occurred in either the fall of 1152 or the spring of 1153 during the Nordic itinerary of the English papal legate Nicolaus Breakespear, the future Pope Hadrian IV. At that occasion, when the kings, bishops, and lords of Norway were assembled, a national assembly10 was held that passed a variety of legal amendments within the ecclesiastical sphere. Christian laws were amended in order to comply with the requirements of canon law. Among the amendments were the introduction of the Peter’s pence and a stipulation of an upper limit on frankalmoins (gifts for the soul). The national assembly passed these amendments, even though it did not have the authority to dictate  Per Sveaas Andersen, Samlingen av Norge og kristningen av landet. Handbok i Norges historie, vol. 2 (Bergen/Oslo/Tromsø 1977), p. 342.  8  R.I. Moore: “Postscript: The Peace of God and the Social Revolution,” eds. Thomas Head and Richard Landes, The Peace of God. Social Violence and Religious Response in France around the Year 1000 (Ithaca and London 1992), p. 309.  9   This chapter up to the end of the kingship of Magnus Erlingsson is based on Snorri Sturluson’s sagas of the Norwegian kings from time immemorial to 1177. Snorre Sturlassøn, Konge-Sagaer fra de ældste Tider indtil Aar efter Christi fødsel 1177, ed. and trans. P.A. Munch (Christiania 1859), pp. 449–560. 10   The national assemblies normally had the character of a synod, since some of their decisions were valid for the Norwegian church. Knut Helle, Konge og gode menn i norsk riksstyring ca. 1150–1319 (Bergen/Oslo/Tromsø 1972), p. 246.  7



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them. In principle, the amendments should first have been passed by the provincial things, but this procedure was probably a mere formality, since the lords in the different provinces had already endorsed the new provisions at the national assembly. The consecration of the archbishopric and the holding of the national assembly in that connection were the last events at which the three kings acted in harmony. Tension increased in subsequent years, and the peaceful situation ended in 1155 when Inge’s men assaulted and killed Sigurd. Two years later, Øystein was killed, whereupon Inge for a short time was sole king. Inge’s immediate success was probably facilitated by a group of powerful lords who supported him. The lords who belonged to the circles around Sigurd and Øystein, however, were not satisfied with their weakened position under Inge’s sole rule. Therefore, they rallied round one of Sigurd Mouth’s sons Haakon, offspring of a concubine, and he was elected king in 1157. For several years Norway was tormented by fighting between the two kings, which ended finally when Inge was killed. He left no sons, and there were no royal sons among his supporters. The circle of lords around Inge had no other choice but to acknowledge Haakon as a king. But Inge’s supporters did not give up; they united under the leadership of Erling Skakke11 and decided that Erling’s five year old son, Magnus, through the kinship of his mother had first claim to the Norwegian throne;12 whereupon he was elected as rival king. Haakon was defeated in 1162, and shortly after that, the opposition was also broken. The time that followed was characterized by collaboration between the Crown and the Church—or, more precisely, between Erling Skakke and Archbishop Øystein. Øystein himself came from one of the kingdom’s leading families and was destined for an ecclesiastical career. He studied for years abroad13 and became King Inge’s fehinde (treasurer) when he returned to Norway. When the archbishopric became vacant in 1157, the king appointed him to fill the position. This collaboration between king and archbishop produced many result. Most important among was were a series of amendments made to ecclesiastical and criminal law. The law on heinous crime (Orbodemål) was introduced so that “the  He was married to Kristin, the daughter of Sigurd the Crusader, and he was himself one of the most powerful men in Norway. 12   Sturlassøn, Norges Konge-Sagaer, p. 535. 13   For more information se the chapter “The Fathers of the Laws.” 11

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new penalty clauses steps into the contemporary pattern for the king’s peace legislation.”14 The new amendments were passed at a national assembly which included the king, the bishops, and “all the wisest men in the country,” but the amendments would not be valid until they were passed by the provincial things. This led to a difference between the stipulations contained in the Gulathing and Frostathing Laws. Even certain sections of the Christian Chapter were probably revised after the national assembly in 1152/53; they were considered defective, and several parts were quickly outdated. Clearly, canon law was not a static entity. It was amended through decrees and council decisions, a process that reached its zenith in the period from Gratian’s Decretum to the edition of the Liber Extra in 1234. The sagas tell us that the Christian Chapter of the Frostathing Law was thoroughly revised by Øystein.15 Also, the Gulathing Law was revised; the new version, the “Magnus text,” was composed during the reign of Magnus Erlingsson. One can only speculate about whether the Borgarthing or Eidsivathing Laws were also revised. Of all the legislation activities during the reign of Magnus Erlingsson, it is not the amendments of the provincial laws that have been the main subject of research, but the Law of Succession and the enclosed charter. In fact, these are some of the most debated documents from medieval Norway. The collaboration between Church and Crown resulted in the crowning and anointment of King Magnus in 1163, making him the first Nordic king to be set up as king by the grace of God. Magnus’ opponents argued that he was not the son of a king and therefore was not worthy of the royal throne. Magnus countered that he had been born in wedlock by parents born in wedlock. This issue had not had such great importance previously, but it became increasingly important when the ecclesiastical viewpoint that marriage was the only appropriate relation between man and woman gained widespread support in Norwegian society. Magnus’ rivals were all

14   Knut Helle, “Under kirke og kongemagt 1130–1350,” ed. Knut Helle, et al., Aschehougs Norgeshistorie, vol. 3 (Oslo 1995), p. 40. 15   The legislation activities of Øystein is presented in Erik Gunnes, “Erkebiskop Øystein og Frostatingsloven,” Historisk Tidsskrift, vol. 5 (Oslo 1975), pp. 109–121; and ibid., “Erkebiskop Øystein som lovgiver,” Norske historikere i utvalg IV. Nye middelalderstudier—Kongedømme, kirke, stat (Oslo 1983).



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illegitimate sons, and therefore they had according to canon law no inheritance right after their father.16 The Law of Succession (probably from 1164, the year after the coronation) had three major innovations. First, birth in wedlock became an important criterion for becoming a king. Second, the law established the single kingship. Only one would be king of Norway. Finally, the law also stipulated a procedure for election of the king: the eldest son of the deceased king had precedence if the bishops and twelve men from each diocese endorsed him. Furthermore, the king became the vassal of Saint Olav according to the charter of Nidaros, since he took Norway as a fief from the saintly king. The significance of the charter has been much discussed. Did it imply that the king was subject to the Church as a vassal, or was submission to Saint Olav a way for Magnus to emphasize his lineage with Saint Olav and bask in the glory from the saintly king?17 Øystein’s ambitions and politics have also been interpreted in several ways. He has been considered a rabid Gregorian, who thought that the Crown should be subservient to the Church,18 and also as a realist, who requested huge liberties for the Church, recognizing that the Church had to rely on support from the Crown.19 Even though the provincial things had passed the Law of Succession and it had been entered into the provincial laws, the principles did not gain general support. Yet another pretender to be a royal son, Øystein Møyla, rebelled in 1174 and declared himself king. The rebellion was suppressed in 1177, and Øystein was killed. But his men did not give up; they rallied round Sverre, yet another of the many men claiming to be the son of Sigurd Mouth. The civil strife probably ended the process of modernizing the laws, which may explain why the Christian Laws of the Borgarthing and Eidsivathing continued to have archaic features. Furthermore,

16  Cf.: Corpus Iuris Canonici I, Causa XXXII, q. IV, c. XV, § 1: “Hii uero, qui non sunt de legitimo matrimonio, matrem potius quam patrem secuntur.” 17   There have been many suggestions about how to interpret the documents. A survey of the discussion is found in: Tobias Tobiassen, “Tronfølgelov og privilegiebrev. En studie i kongedømmets ideologi under Magnus Erlingsson,” Historisk Tidsskrift, bind 43 (Oslo 1975), pp. 218–219; and Gunnes, “Erkebiskop Øystein. Statsmann,” pp. 119–120. 18  Arne O. Johnsen, Fra ættesamfunn til statssamfunn (Oslo 1948), pp. 73–77; and Helle, Under kirke, p. 40. 19   Gunnes, “Erkebiskop Øystein. Statsmann,” p. 170.

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the civil war may have weakened the enforcement of the law and, thereby, the function of the law to create peace. The warfare between Sverre and Magnus continued for seven years until 1184, when Magnus was killed and Sverre became the victorious single king. The Norwegian Church, particularly the bishops, did not regard Sverre with mild eyes: by opposing God’s anointed, King Magnus, Sverre also opposed the Church and God. During the fighting, Sverre was banned, and Øystein proclaimed a crusade against him, promising salvation to those who fell in the battle against Sverre.20 After Magnus’ death, Øystein reconciled with Sverre because they both recognized the advantages of a good relationship. Øystein died in 1188, and his successor was one of the supporters of Magnus Erlingsson, the Victorine Eric. In the first years, good relations between the Crown and the archbishopric prevailed. In 1189/90, Eric and Sverre jointly issued a king’s peace, which, in accordance with the best European exemplars, threatened with banishment as outlaws those who violated women, the Church or ecclesiastics, or the thing peace.21 The antagonism between the two men was so deep, however, both personally and ideologically, that in 1190 Eric went into exile in Lund. The bishops that remained in Norway supported Sverre more or less voluntarily, and in 1194 he was crowned in Bergen Cathedral. Not only the Norwegian church opposed Sverre; so did the pope, who sided with Eric. In a charter, the pope took the archbishop and the archbishopric under apostolic protection and confirmed the ecclesiastical arrangement from 1152/53. Sverre was again excommunicated, and he was banned for the rest of his life. One by one, the bishops chose to leave Norway to join Eric in his exile, leaving Sverre truly isolated. Sverre’s time as a king was no more peaceful than that of his predecessors. In 1196, a new army, the Baglers,22 rebelled on the initiative of the archbishop and bishop Nikolas of Stavanger. The Baglers at first had great success and held power in several areas. Sverre was able to stay in power, however, and he was the first Norwegian king 20   “Archbishop Øystein and many other scholars have said about those who protect the country for king Magnus and die for him that their souls will be in Paradise before the blood on the earth is cold.” Anne Holtsmark, ed. and trans., Sverres Saga & En Tale mot Biskopene (Oslo 1961), p. 68. 21   Norges gamle Love indtil 1387, vol. 1, eds. R. Keyser and P.A. Munch (Christiania 1846), “Kong Sverres Christenret,” p. 409. 22   From bagall, a crozier.



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since Sigurd the Crusader to die in his bed in 1202 rather than at the hand of his enemies. During Sverre’s reign, the Law of Succession and several decrees from 1152/53 were revoked, and attempts to amend the provincial laws were possibly suspended. At the same time, the internal administration was considerably enlarged during his reign, which strengthened the Crown and benefitted his successors. Haakon, Sverre’s son, succeeded his father. One of his first acts as a king was to call back the bishops and reconcile himself with them by confirming the decrees from 1152/53. Unfortunately, Haakon died in 1204, and the contest over the throne resumed until 1217, when Haakon, an illegitimate son of King Haakon Sverresson, became king. His rule lasted until 1263 and saw the establishment of a strong government. The stable conditions in Norway, in particular in the later part of Haakon’s rule, allowed him to carry out an expansive foreign policy. He annexed Iceland and Greenland to the Norwegian Crown and asserted authority over Man, the Hebrides, and the Orkney Islands, which he secured in a raid against Scotland in 1263. The promise of a crusade given at his coronation impressed the French and Catalan kings. Internally, the strong and stable Crown influenced legislation. The Christian Laws in the Gulathing and Borgarthing Laws were probably revised as a result of collaboration between the king and archbishop Sigurd (1231–52).23 A new Succession Law was passed in 1260, in which hereditary, single kingship was established. In contrast to Magnus Erlingsson’s Succession law, the new law rendered succession automatic; endorsement by the national assembly was not necessary. In the same year, the Frostathing Law was amended with a new ordinance on manslaughter and other serious crimes, and the responsibility of kin was redefined. The introduction to the law reveals how the position of the king as lawgiver had changed over the preceding hundred years. Previously, legal amendments were introduced at the national assembly, in which the king, the bishops, and the lendemen24 participated, whereas the formal power to pass laws belonged to the provincial thing. Its preamble stated that the king, with advice from

 Anne Irene Riisøy and Bjørk Dale Spørck, “Dateringen av nyere Borgartings kristenretter,” Collegium Medievale, vol. 12 (Oslo 1999), pp. 60–61. 24  A group of lords that existed in Norway and Västgötaland; their origin is uncertain, but during the civil wars they were appointed by the kings. 23

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the bishops, the lendemen, and other scholars in the state, gave the Frostathing Law.25 When Haakon died in 1263, his son Magnus (who in posterity was called Lawmender, an understandable nickname, considering his encompassing legislative work) succeeded him. Before 1268, the Gulathing, Eidsivathing, and Borgarthing Laws were revised, but Magnus had even greater ambitions. He wanted to have common laws for the whole kingdom. In 1274 he issued the Law of the Realm, and two years later the Law of the Cities, which would be valid for all Norwegian cities. Both laws were thoroughly amended, but most of the new stipulations were based on developing the traditions of the provincial laws. There was, however, one important change on one point: The provincial courts had been the supreme authority in the provincial laws, but the king was the supreme judge in the new laws. In this way, albeit only in secular matters and not in the ecclesiastical area, Norway obtained legislation that was valid for the whole kingdom. Neither the Law of the Realm nor the Law of the Cities had a developed Christian Chapter. This is probably because the archbishop, Jon the Red, was opposed to royal endeavors to revise the Christian Law in the Frostathing Law, which was the jurisdiction of the archbishopric. After some tug-of-war, the parties in 1277 agreed to draw up a joint Christian Law, usually called the “Sættargjerden” (the reconciliation). The Law of the Realm and the Law of the Cities of Magnus Lawmender was modified throughout the Middle Ages with minor additions, but in general it was the law of Norway until the Norwegian Law of Christian V from 1687. That was not the case with the “Sættargjerden,” however, which was abolished in 1290 during the regency for Magnus’ son Eric, who was a minor. From 1290 to 1458, when Christian I reintroduced “Sættargjerden,”26 each province had its own Christian Law. The genesis of the Danish laws We do not know whether laws in the modern sense existed for the Danish territory before The Book of Inheritance and Heinous Crimes. The Res Gesta Danorum by Saxo and the Roskilde Chronicle ca. 1140   Norges gamle Love, vol. 1, FL. Indledning, ch. 1, p. 121.  H. Koht, “Sættergjerda i Tønsberg 1277,” Sverreættens kongedømme. Norske historikere i utvalg III (Oslo 1970), pp. 192–193. 25 26



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certainly mention earlier legislation—from the legendary Peace-Frothi to Swein Forkbeard, Cnut the Great, and Harald III—but the sources do not reveal whether these laws actually existed, nor do they reveal the probable form and content of earlier legislation. There is, however, no doubt that some kind of legal system existed in earlier times. The oldest extant source pertaining to this matter is Ælnoth’s Vita of Saint Cnut Rex, from the beginning of the twelfth century. He mentions that in Viborg, a large thing crowd often gathered here from all areas of Jutland in order to negotiate common matters and to discuss the fairness of the laws, their continuous validity, and to make them firm. And what is there decided by the attendants of the assembly can nowhere in the districts of Jutland be invalidated unpunished.27

Ælnoth’s text does not provide much information about the legal situation in Jutland, because it does not state which kind of issues the law regulated. Probably the issue was naval warfare and other military actions, because the rebellion against Saint Cnut Rex grew from that particular issue. Civil war broke out after the murder of Saint Cnut Dux in 1131, with intermittent periods of peace until 1157, when Valdemar the Great took power as single ruler. Despite clashes and insurgences from other royal descendants, the rulers Valdemar and his sons succeeded in creating fairly stable conditions in the realm. That was due not least to support from powerful lords, such as the members of the Hvide kin group, and good relations with the Church. In the first decades, the relationship with the Church was impeded by Archbishop Eskil’s disapproval of Valdemar’s support of Frederick Barbarossa’s papal candidate under the investiture controversy.28 The conflict was solved, and it was Eskil who, as the head of the Danish Church, was in charge of enshrining the canonized Saint Cnut Dux and crowning his 27   “Ubi ex totis Jutiæ partibus quam sæpius non minima multitudo, tam de causis communibus tractatura, quam & de legum veritate, sive sirmitate, discutienda simul & stabilienda, comvenit: &, quod ibi communi consilio aggregatæ multitudinis stabilitum fuerit, non im pune uspiam in Jutiæ partibus irritum sieri valebit.” Ælnothus, Monachus Cantuariensis, De vita, & Passione S. Canuti, Regis Daniæ (Item Anonymus, De Passione S. Caroli, Comitis Flandriæ), ed. J. Mevrsivs (Copenhagen 1631). 28  At the crowning in 1157, Valdemar’s position was far from stable, and he therefore tried to obtain support from the German emperor. In return, Denmark supported the emperor when the schism erupted in 1159, when Barbarossa nominated a rival candidate to Alexander III, whom the cardinals had elected.

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grandchild, the later King Cnut the VI, as co-ruler in 1170. This Church festival was undoubtedly of utmost importance for Valdemar the Great, because it signified that the dynasty was descended from a saint and also that the family had a future claim on the throne. The Church festival was not the only reason why 1170 was an important year, however. The Ryd Chronicle annals for this year state that the Laws of the Danes were issued: “Leges Danorum edite sunt.”29 This information is very important, because it tells us that in the formative phase the attempt was made to introduce a law for the entire realm, not for just a single province. The attempt to issue nation-wide legislation was later abandoned, and the provincial laws were reintroduced. Recently, several researchers have hypothesized that the law which was passed was the Book of Inheritance and Heinous Crimes, either in part or totality, and that therefore it must have been a law of the realm.30 An early date may also explain why the Book of Inheritance only treats the inheritance law narrowly and does not mention pre-emption to land and fledføring, legal concepts that were closely connected to inheritance laws.31 The necessity of supplements to the inheritance law may have been realized only after the laws had gone into effect. The available information about legal activities at the time of Valdemar the Great is very sporadic, as it is for the rest of the twelfth century. The only source to discuss legal activity is Saxo, who in relation to an assembly consisting of the king and the most prominent men on Samsø in 1184 reports that they were assembled in order to “mend the civil laws.”32 There has been little research into which legislation might actually have been debated. Poul Johannes Jørgensen suggested 29  Erik Kroman, ed., Danmarks middelalderlige annaler (Selskabet for Udgivelse af Kilder til dansk Historie (Copenhagen 1980), p. 166. 30   This idea was first proposed by Ole Fenger in 1991. Ole Fenger, “Jydske Lov og de øvrige danske landskabslove,” in Ole Fenger and Christian R. Jansen, eds., Jydske Lov 750 år (Viborg 1991), pp. 43 and 47. If this assumption is correct, it must be the Book of Inheritance and Heinous Crimes and the Church Law of Scania that Saxo refers to in relation to the second rebellion in Scania when he states that Absalon issued “a conscientious legal declaration that reinstated the old laws, which the people had abolished at their deeply unjust vote” (“Sed etiam leges, quæ iniquuissimis eiusdem suffreagiis convulsæ fuerant, piissimo iudicuu decreto ad pristinæ auctoritatis habitum reduxit”). Saxo, Gesta Danorum, 16:1:8, p. 516. 31   Fledføring is a Danish legal term encompassing the care of persons who, because of old age, illness or otherwise, were no longer able to provide for their own support, as well as the protection of their heirs’ interests. 32   “Iuris civilis emendandi.” Ibid., 16:4:2, p. 520.



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in 1940 that it might have been the Veder Law,33 but that suggestion is opposed by Saxo’s statement that it was “ius civilis”34—the private laws—which does not fit with the Veder Law. The Veder Law was the Law for the royal housecarls and does not pertain to the concept ius civile. It is more likely that the assembly to which Saxo refers amended the Book of Inheritance and Heinous Crimes. Most recently, Michael H. Gelting has argued that it was actually the Book of Heinous Crimes that was issued; he thinks that it is later than the Book of Inheritance and that the two laws became combined in one book for the first time at the beginning of the thirteenth century.35 The Ordinance on Manslaughter from year 1200 indicates the transition to a period of blooming legislation—at least that is the picture the extant legal documents draw. The province of Scania obtained it own law, and Zealand obtained a law that was later called the Law of King Valdemar. Unfortunately, we have only sporadic information about the creation of the provincial laws. Nonetheless, it is reasonable to believe that a strong royal power as that of the Valdemars would be involved in the legislation process of the provincial laws. Valdemar the Victorious died in 1241, which ended the relatively peaceful internal conditions prevailing during the time of the Valdemars. Turbulent times came again with the sons of Valdemar the Victorious. His son Eric IV succeeded him and earned the unfavorable nickname Plovpenning (he who taxes ploughs). However, his two younger brothers were not satisfied with their positions as duke of South Jutland and Lolland, respectively, and they fomented rebellions and unrest. But Eric managed to stay in power. Lawgiving activity was not quite at a standstill; during his rule, probably in the 1240s, the two first books of Eric’s Law of Zealand came into existence, at least in the form we know today. Eric’s rule ended abruptly when he was murdered by the henchmen of his brother Abel, and Abel succeeded Eric on the throne.36 He did not manage to stay in power for long, though; 33  Poul Johs. Jørgensen, Dansk Retshistorie. Retskilderne og Forfatningsrettens Historie indtil sidste Halvdel af det 17. Aarhundrede (Copenhagen 1940), pp. 59–60. 34   Saxo, Gesta Danorum, 16:4:2, p. 541. 35   Michael H. Gelting, “Pope Alexander III and Danish Law of Inheritance,” eds. Ditlev Tamm and Helle Vogt, How Nordic are the Nordic Medieval Laws? (Copenhagen 2005), pp. 86–115. 36   Before he could succeed Eric on the Throne, Abel had to swear with compurators that he was not involved in the murder of the king. This illustrates the legal and moral development that had occurred over the previous hundred years; during the

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he was killed in 1252 in a war against the Ditmarshers. With Abel’s death, his brother Christopher acceded to the throne. As kings, both Abel and Christopher attempted to follow in their father’s and Eric’s footsteps as legislators. That manifested itself in the ordinance of Abel-Christopher, which primarily addressed the issue of high treason.37 The power of the king to legislate on his own was seriously reduced in the reign of Eric V, Christopher’s son. In 1282, he was forced to sign a charter that stipulated, “We decree and promise to maintain and keep unbreakably the Law of the deceased King Valdemar, as it is stated in his law codes, and recall as invalid all abuses and deviations introduced against the laws.”38 The concept “King Valdemar’s Laws” should not be taken literally, however; the charter aimed primarily at abolishing the different decrees promoting royal prerogatives that had been introduced under Abel, Christopher, and Eric V; it was not concerned to revert to the legal situation of 1241. It is important in this context to distinguish between royal decrees, which were dictated by the king directly, and the provincial laws, which the provincial things endorsed. Therefore, the charter was unimportant in relation to King Eric’s Law of Zealand or potential amendments to the Law of Jutland, because the purpose of those two laws was to improve the legal situation and not to give the king particular privileges. But the charter is an expression of the political defeat of the Crown. Behind it were, undoubtedly, powerful groups within the aristocracy which were opposed to the gradual increase of royal power that had taken place. Furthermore, the Crown had an exceedingly problematic relation to sections in the Danish church after the protracted conflict between the king and Archbishop Jacob Erlandsen, a conflict that King Eric had inherited from his father.39 Eric V’s charter did bring all legislative activity to a total standstill, however. The Law of Jutland seems to have been amended sometime civil wars, claimants had murdered each other and even the proclaimed kings without being brought to court or condemned in literary or ecclesiastical sources for having killed brothers or other blood relatives. 37   The ordinance increased the number of penalty clauses for crimes against the king considerably, and permitted the henchmen of the king to imprison on the basis of suspicion. 38   “Ordinamus insuper et firmiter promittimus leges regis Waldemari clare memorie, prout in suis libris legalibus continentur, inuiolabiliter obseruare, omnes abusiones et dissuetudines contra leges introductas penitus in irritum reuocantes expresse.” Diplomatarium Danicum 2. serie, 3. vol., no. 45, p. 40. 39   This conflict is described in Skyum-Nielsen, Kirkekampen.



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between its formation and 1276.40 The amendments were not sufficient to solve the problems in that law, however, because its content focused on procedure and omitted important areas of legal regulation. Therefore, it was decided around year 1300 to add to the Law of Jutland. These “Thord’s Articles” further developed the legislative process and solved many of the legal questions that the Law of Jutland did not regulate. The genesis of the Swedish laws Our knowledge of the history of Sweden in the eleventh century and the first part of the twelfth is very poor, as a result of the scarcity of documents. The Swedish state was being formed at that time, but the process was uneven because the power and position of individual kings differed substantially. A king would often have his power base in one particular part of the realm, and his sovereignty over other parts was precarious. One explanation for the slow unification of the realm is found in the individual provinces. Thomas Lindkvist explains that in western Sweden, a kingdom emerged early, in close collaboration with Christianity.41 Due to its position and close relations to the Danish and Norwegian areas, that area was Christianized much earlier than, for example, Uppland. In addition, the close relationship to Norway and Denmark meant that the Anglo-Saxon influence that was particularly evident in Norway could also be traced in Västgötaland. Towards the east, in Uppland, there was no similar political interest in Christianization until after the beginning of the eleventh century, when a mission and the construction of an ecclesiastical structure began for real. Far into the thirteenth century, the Swedish realm is best described as a federation in which powerful local lords were able to influence the actions and decisions of the king to varying degrees. The suzerainty of the king was often weakened by the lack of firm provisions for the order of succession, which gave rise to a huge number of both domestic and foreign pretenders. Several Danish princes, for example, thought they had a claim to the Swedish Throne.

  See the chapter “The Dating of the Danish Laws.   Thomas Lindkvist, Plundring, skatter och den feodala statens framväxt. Organisatoriska tendenser i Sverige under övergången från vikingatid till tidig medeltid (Opuscula Historica Upsaliensia) 1 (Uppsala 1988), p. 27. 40 41

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The organization of the Church to some extent strengthened the idea of Sweden as a united state, especially after it had become an independent Church province with the establishment of the archbishopric in Uppsala in 1164. Already in 1154, there must have been plans for Sweden, just like Norway, to have its own archbishopric, but the papal legate Nicolaus Breakespear obviously did not find the Swedish Church ready for such a step.42 The situation was not substantially different in 1164, but international political events were probably involved. Frederick Barbarossa was in open contest with Pope Alexander III, and for political reasons the Danish king and Church supported Barbarossa’s papal candidate, Victor IV. The second part of the twelfth century was, in general, a period in which the Church flourished in Sweden, and a series of monasteries was established, mostly as a result of royal donations. The motivation of the kings for establishing monasteries was, beyond the religious motivation, that they functioned as educational establishments for educating the administration that the kings needed if they were to extend royal power nationwide. In the late twelfth century and the beginning of the thirteenth, two rival families took turns acceding to the throne: the Sverker line, descended from Sverker I; and the Eric line, descended from Saint Eric. In the 1130s, Sverker was elected king of Sweden. He reigned until his death by murder in 1156. He was succeeded by Saint Eric. In 1160, the Danish pretender, Magnus Henriksson, murdered Eric. Sverker’s son Karl defeated Magnus and became king in 1161. Karl’s rule did not last: in 1167, he was killed by Eric’s son Cnut, who was accepted as king after prolonged battles. There followed a period of almost thirty years of relatively stable conditions. Sverker’s family still upheld their claim to the throne, though, and eventually the son of Karl Sverkersson, Sverker, succeeded Cnut. The two families were able to maintain this rivalry because each had its economic power base in a different region, and strong regional conflicts of interest meant that it was easy for a pretender to obtain local support. The rivalry between the two families ended in 1222 when the Sverker family became extinct on the male side; the last male member of the family of Eric (Eric Ericsson, nicknamed “Lisp and Limp”) became king. Later, Eric Lisp and Limp married Catharina, a member

42  Arne O. Johnsen, Studier vedrørende kardinal Nicolaus Breakespears legasjon til Norden (Oslo 1945), pp. 349–375.



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of Sverker’s family, and the two families were finally united. The union was fruitless, however, as the marriage was childless. When Eric died 1249, there was no direct heir to the throne. Therefore, his sister’s son Valdemar became king. The king being a minor, his father and guardian Birger Earl43 held virtual power until 1266. From 1248, Birger Earl had been earl of the state and had been King Eric’s strong supporter and advisor. Besides having political skills, Birger also belonged to one of the most powerful and richest families in Sweden, the Bjälbo-Family, so called after the location of their main estate. In Birger’s family there were two other earls, and his mother descended from the Sverker line. Having defeated a rebellion in 1251, Birger remained in power unopposed until his death in 1266. Due to his active and strong domestic and foreign policy, the reign of Birger Earl has left an impact on Swedish legislation that is traceable in the extant sources. The stable conditions under the latter part of the reign of Eric Lisp and Limp and under Birger Earl laid the foundation for a flourishing legislative activity from the middle of the twelfth century. For the king, the Edsöre Law was of particular importance. The Edsöre was a peace legislation, and the particular Edsöre crimes were breaking the peace according to the general Christian prescriptions—among others, the peace of the home, the thing, the Church, and women. It is uncertain whether the precursor to the Edsöre Law, the definitive version of which is found in the provincial laws, was created under the rule of Eric Ericsson or after his death. At least one document explains that Eric gave peace to the peasants, whereas the Chronicle of Eric (from the 1320s) and Magnus III Barnlock credit Birger Earl. This may not be a contradiction, because Birger Earl held virtual power in the final years of Eric’s rule. If peace legislation emerged in the reign of King Eric, it is probable that it was a precursor of the Edsöre Law. Maja Hagerman proposes that Birger Earl instituted the Edsöre Law in the 1250s, possibly as a direct result of the visit of Cardinal William of Sabina to Sweden in 1248. In the wake of this visit, many principles of canon law were acknowledged and the legislative power of the king

  Birger Earl (approx. 1210–1266) was nominated Earl, Sweden’s highest office, in 1248, and married King Eric’s sister Ingeborg. When the king died childless in 1250, Birger’s son became king, and Birger was made Guardian Regent, a position he retained until his death. 43

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was emphasized.44 During the cardinal’s visit, a council of the Swedish Church province was held, at which it was requested under the threat of excommunication that the bishops acquire the Liber Extra. The importance of this has been emphasized by many historians, most ardently by Lars-Arne Norborg,45 who regards it as the definitive introduction of canon law in Sweden. Maybe that is somewhat too categorical, but nevertheless, particularly the second half of the thirteenth century, the Swedish church undoubtedly began to interfere in the legal sphere. Of course, that may also be explained as a result of a general legal development in Sweden in these decades. Even if one accepts that the Edsöre Law was introduced by the government of Birger Earl, it does not necessarily mean that an earlier peace legislation had not existed in Sweden.46 in addition to the peace legislation of Birger Earl, several provincial laws and the Chronicle of Eric reveal that he introduced female inheritance rights in accordance with the Danish legislation; a daughter had the right to inherit half the amount of a son.47 After the death of Birger Earl, his son Valdemar had to focus on staying in power; perhaps that is why there are no traces of royal legislation from his reign.48 Royal legislation activities resumed when Magnus III Barnlock became king in 1275. During his reign the Edsöre Law obtained its definitive form, which is the version that is known today. The king summoned the secular and ecclesiastical aristocracy to a national assembly at Alsnö, a royal castle near Stockholm. The assembly passed legislation that exempted men who brought horses and men for active military service from taxation, which we can interpret as the foundation for the establishment of a secular nobility. Even though Magnus Barnlock is known for the Edsöre legislation, he also promoted other decrees about witchcraft, Church peace, and adultery. When Magnus Barnlock died in 1290, his three sons were minors. Birger, the oldest son, became king, but for the first ten years of his 44   Maja Hagerman, Spåren av kungens män. Om när Sverige blev ett kristet rike i skiftet mellan vikingatid och medeltid (Stockholm 1996), pp. 397–38. 45   Lars-Arne Norberg, Källor till Sveriges historia (Lund 1968), p. 88. 46   Jerker Rósen was of the opinion that peace legislation can be traced to the end of the twelfth century. Jerker Rósen, Den svenska historia, vol. 1 (Stockholm 1997), p. 31. 47   More information about Birger Earl’s inheritance law is found in the chapter “Inheritance Law in the Provincial Laws.” 48   Gösta Åqvist, Kungen och rätten. Studier till uppkomsten och den tidigare utvecklingen av kungens lagstiftningsmakt och domsrätt under medeltiden (Lund 1989), p. 53.



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rule the power resided with a regency, which passed the Uppland Law and gave the Östgöta Law the form that is known today. As long as Magnus’ sons were minors, the country was peaceful and in agreement. However, when they grew up, Birger’s younger brothers, the dukes Eric and Valdemar, opposed their older brother. The antagonism culminated in 1306, when they captured King Birger. In 1310, a settlement was reached with the interference of Denmark and Norway, and the realm was divided between King Birger and his brothers. This solution quickly proved to be very unstable, however and King Birger decided in 1317 to capture and later kill his brothers. That did not have the desired effect, however, because supporters of the dukes rebelled against the king and forced him into exile in Denmark. Magnus, the infant son of Duke Eric, was proclaimed King of Sweden.49 This time of unrest was certainly not conductive for major legislative works, and it is therefore understandable that the extant versions of the Södermanna Law and the Hälsinge Law are from the time of the reign of Magnus Ericsson. In general, Magnus was able to incrementally expand his suzerainty until in 1347 he was able to issue a Law of the Realm. The legal system required provincial things to pass the Law of the Realm, however, and this meant that the law first became valid for the entire realm under the reign of Queen Margrethe (1389–1412).50 Construction of the society The aim of the provincial laws was primarily to regulate legal conflicts and problems that were of importance for landowners. The landowners were far from a homogenous group, however, even though they had identical privileges according to the laws. We can distinguish between two groups of landowners: lords and peasants. I use lords here to describe the men51 who, through ownership of an estate, privileges, or other factors, held economic, political, and social 49   Shortly after, he was also proclaimed King of Norway; he had a claim to the throne through his mother, who was a Norwegian princess. 50   In Hälsingeland the law was never adopted. Only with the Law of the Realm of Christopher of Bavaria did legislation for all of Sweden come into existence. Åke Holmbäck and Elias Wessén, trans. and eds., Magnus Erikssons Landslag i nusvensk tolkning (Lund 1962), pp. xl–xli. 51   In the following, I discuss men and their positions because women played only a minor role legally, and in many situations they had to have a guardian to act on their behalf.

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power which gave them a certain influence locally and on the national level. Owning an estate was not the only way to obtain riches and influence; it could also be accomplished by holding the office of provincial governor or being a member of the royal administration. But in order to become influential, an affiliation to the elite was necessary, either through one’s own possessions or merits or with the help and support of kin. Even though the lords belonged to society’s elite, they should not be considered a homogenous group, because they had conflicting interests. It is well known, for example, that lords with a close connection to the Crown supported the king in order to enhance their own position, whereas the lords who did not have that kind of relation wanted to promote their own position and influence to the detriment of the Crown.52 Among the lords were also numbered the ecclesiastical aristocracy. Most bishops and abbots came from the ranks of the lords, and they consequently would share their culture and their outlook. Often the ecclesiastical lords held powerful positions within the secular administration because of their scholarly training, and they thereby came to have double loyalty, to both the Church and the Crown. The word nobility is often used synonymously with lords. This notion is somewhat problematic, however, because the notion of nobility implies a limited group that had a special status due to inherited privileges. The notion of nobility does not reach Scandinavia until the late Middle Ages and the Renaissance. Therefore it is not applicable to the early medieval society.53 The distinction between a large farmer and a lord was often fluid, and in the end the difference was more about prestige and political and social power than mere economic criteria. The word bonde was originally a legal term that described a full citizen, so in fact, the lords were also bondsmen. But since their position was based on more than legal rights, it makes sense to uphold the distinction between the two groups. The term bonde does not cover all people who till the land, only those who owned the land were they lived. The landless were described 52   Sverre Bagge has convincingly argued that it is problematic to see the lords as a homogenous group with similar interests, and he has provided a far more nuanced picture description in Bagge, “Borgerkrig,” p. 165. 53   The “Lendeman” system in Norway has some similarities with the later nobility, but since the appointment was in the hands of the king, it is not comparable with the later nobility by birth. The first step towards the creation of a nobility in Sweden too place at Alsnö Stadge in 1280, where the lords who brought horses and men for military service became tax free, a privilege that distinguished the nobility later.



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by different names, most commonly landboer or bryder.54 Neither the peasantry nor the landless should be considered homogenous groups, because there were huge social differences within each category. Large farmers, for example, might be rich, owning several farms, and to be a bryde did not necessarily imply that you were poor, because it could be more profitable to be a manager of a large estate than to own a small farm in an area with poor quality land. The main distinction between freeholders and landless was not necessarily economic but legal. The provincial laws reveal that landboer and bryder were subject to certain limitations in relation to the enforcement of law. In almost all Swedish laws, it was not the landbo but the landowner who had to right to ask for peace for the guilty.55 Legally, it was a matter of a mere contractual arrangement, which is evident in the Law of Scania and several Swedish provincial laws.56 Probably there also existed ties that were not regulated by law. The relation between tenants and the landowning lord probably had the character of a client/patron relationship, in which the lord supplied the landless work and protection in exchange for allegiance. Such ties unfortunately are almost impossible to trace in the legal sources, but literary works allow us to glimpse that kind of relationship. The legal system was largely based on the concept that kin helped its members in crises, so a clientele relationship with a lord must have been attractive for poor people, whose kin might not be able to ensure sufficient support.

54  A bryde was a person who managed a farm for somebody else, whereas a landbo did not necessarily have to live on a farm but could also till land belonging to somebody else. The difference between the two groups has been discussed by two Danish historians, Thomas Riis and Erik Ulsig. Thomas Riis, “Vilici og coloni indtil 1340. Et forsøg på en begrebsanalyse,” in Svend Gissel ed., Landbohistoriske studier tilegnet Fridlev Skrubbeltrang på halvfjerdsårsdagen (Kerteminde 1970), pp. 1–20; and Erik Ulsig, “Landboer og bryder, skat og landgilde. De danske fæstebønder og deres afgifter i det 12. og 13. århundrede,” in Karsten Fledelius et al., eds., Middelalder, metode og medier. Festskrift til Niels Skyum-Nielsen på 60-årsdagen (Copenhagen 1981), pp. 137–65. 55   See, for example: H.S. Collin and D.C.J. Schlyter, Corpus iuris sueo-gotorum antique, vol. 2 (Stockholm 1830); ÖgL., “Ethzöre Balken,” ch. 1, pp. 28–30. The Law of Jutland has similar decrees: Johs. Brøndum-Nielsen and Poul Johs. Jørgensen, eds., Danmarks gamle Landskabslove med Kirkelovene, vol. 2 (Copenhagen 1933), JL., text 1, book 2, ch. 32, p. 200. 56   See, for example: ibid., vol. I, 1, SkL., text 1, ch. 238, 239, and 241, pp. 195–198. Schlyter, Corpus iuris, vol. 1, UpL. “JorÞæ Balken,” ch. X, pp. 190–191, vol. 4, SmL. “JorÞa Balken,” ch. XI, pp. 77–78.

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Among the cultivators of land in the early Middle Ages were also slaves. They formed the bottom of society, and their legal rights were very limited. They were subject to the authority of their master, and they were only allowed to respond to violations and infringements of their closest family.57 The parish priest was an important character at the fringe of the agrarian society. In particular, the Norwegian and Swedish Church’s Balks allow a detailed view of the duties and daily life of the village priest. He was, on one hand, a peasant among peasants, and he probably would often originate from the peasantry. But on the other hand, his function as spiritual advisor and the requirement of celibacy that emerged at the time of the provincial laws set him apart from other peasants. The society described in the provincial laws was hierarchical. One may even use the anachronistic expression of “a class society.” This concept is problematic, however, not only because one may link the term to historical materialism but also because the division into classes was fluid. A good example of the blurred transitions between classes is the Norwegian Church laws, according to which the position of the tombs of the dead in the graveyard depended on the status of the deceased.58 The most powerful were buried closest to the church and the most inferior farthest away. The positioning has been described in detail: the position of the graves was not a matter of individual discretion but depended on the social and thereby the legal status of the deceased. Next to the church was the grave of the lendeman, and farthest away at the cemetery wall were slaves and foreign sailors—in other words, people who did not have legal rights. This arrangement in fact must have meant that at each funeral there had to be an assessment of how close to the church the deceased should be buried within each social group; the graves could not possibly have been in one long

57   The rights of the slaves, or rather the lack of them, is only sporadically treated in the laws. They did have rights according to the Older Borgarthing Law, in which free men had the right to kill any man found in the bed of one of the nearest 13 closest female relatives. For freedmen this was reduced to wife, daughter, sister, and mother. Slaves were only permitted to kill only if they found a man in bed with their wife or daughter. Norges gamle Love, BKr. ch. 15, p. 358. A detailed presentation of the sources of the status of slaves is found in Tore Iversen, Trelldommen norsk slaveri i middelalderen (Bergen 1997). 58   Norges gamle Love, BKr. ch. 20, p. 24.



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row that enabled everyone in the social group to be buried the same distance from the church. Resources and prestige—the importance of land in the provincial laws It has already been mentioned that the legal status of a person according to the provincial laws depended on possession of land. Indeed the importance of land is evident in the laws. Despite their differences, all the laws have a well-developed set of provisions for conducting real-estate transactions and, in that connection, for disposing of property—in particular land. That is why it is also here that the mutual relations between the canonical kinsmen appear most explicitly. In order to understand the motivations behind the creation of the provincial laws and the importance of canonical kinship, then, we must study the acquisition of property and the concept of property in the period when and just before the laws were recorded. The Danish sources, in particular those from Zealand, are the most informative, and therefore our point of departure will be from there. All Scandinavian provincial laws draw a distinction between movable property and real estate, a distinction that is not found in Roman law. The classical Roman law only knew a very firm concept of estate, the complete property law, which was altered only in the thirteenth century, when the rigid concept of property conflicted with the actual conditions. The Norwegian historian Tore Iversen has shown that the Roman law and the change of the property right were important for the legal position of the landowners in the Norwegian provincial laws.59 The lack of the mentioned distinction between real estate and movable property in the Roman law may be explained by the fact that in Roman society, prosperity was based on many valuables other than agricultural production, such as trade, craftsmanship, or a career within the intellectual disciplines. In most parts of Scandinavia in the early Middle Ages, wealth was almost exclusively based on agricultural production. It is true that, especially in Norway, fishing and fur trading played a considerable role in creating the wealth in the West. But maybe ownership of land became prestigious exactly because good agricultural land was in short supply. 59  Tore Iversen, “Jordeie og jordleie—Eiendomsbegrepet i norske middelalderlover,” Collegium Medievale, vol. 14 (Oslo 2001).

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It should be emphasized that a strictly defined concept of property right as it is known today60 cannot be found in the provincial laws. With regard to Denmark, the definition of medieval ownership was studied in detail by Ole Fenger, who proposes that instead of using the term property right, one should use the expression I være have (In being have) about the possession of real estate.61 Fenger is correct, of course, that it is anachronistic to use a strictly defined legal concept for the description of a situation when exploring a period in which the concept was unknown. However, Fenger’s studies do raise the question of whether it might make sense to use a concept from our time when discussing what it means to possess real estate in the Middle Ages. The important thing must have been whether the owner, within the framework of the law, had the right of disposal of his own property. Stipulations concerning donations, the right of allodium, and fledføring in the provincial laws clearly limiting the right of disposal there probably had not been present in earlier law. Studies of the letter book from Esrom Abbey62 support the theory that the concept of land ownership was vague in Denmark in the twelfth century and at the beginning of the thirteenth. Donators or the kin of the vendor or descendants may, generations later, claim the land that had been donated or sold to the monastery. They could claim the land on the grounds that they had not agreed to the transaction, which then was often renegotiated. At the same time, there seems to have been some confusion about what rights the king had to land he had donated to a layperson who had subsequently died. Did the heirs or the king (whether the same king or his successor) have the right to the land? Letter books not only at Esrom but also at other monasteries reveal that it was not uncommon to donate or sell not only farms but

60  A concept of property right can be defined briefly as: “a right of ordinary control over objects in any aspect, for which there is not by law or private agreement is stipulated limitations of this. . . .” Inger Dübeck and Erik Ulsig, “Anmeldelse, Lov og landskab,” Historie 1998 (Jysk Selskab for Historie. Århus 1998), p. 117. 61   Ole Fenger, Bodil Møller Knudsen, and Helle Reinholdt, “I være have” om ret til hus og jord i middelalderbyen (Århus 1982). The term i være have about possession is found in many documents in particular from the late Middle Ages, and Fenger considers it to be a functional concept of title, but the actual meaning could vary according to the context. 62   Kim Esmark has examined the problems of Esrom Abbey in upholding its property rights of its estate. Kim Esmark, “Godsgaver, calumniae og retsantropologi. Esrom kloster og dets naboer, ca. 1150–1250,” in Hanne Sanders et al. eds., Ett annat 1100tal. Individ, kollektiv och kulturella mönster i medeltidens Danmark (Riga 2004).



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also entire villages to the monasteries, which tells us that there were lords who might own land and estates that they did not till in largescale operations. This is supported by archaeological finds from a lord’s farm at Tissø in Western Zealand, which was in use until the middle of the eleventh century. The material evidence indicates great wealth, but vestiges of agricultural production were missing. At the same time, there were indications of great storage capacity in the area. The archaeologist Lars Jørgensen suggests that the wealth might be based on tribute from the surrounding area.63 If one follows the thought that tribute was the main source of income for lords in the Viking Age and the early Middle Ages, that would provide a better understanding of the apparent diffuse concept of property that one finds in a great number of examples in the Esrom letter book. If the right to land should be defined as the right to levy tribute,64 it was not a matter of direct interference in the tillage of the land. For the tenants, the question of direct ownership to the land was not relevant, because the individual farmer could pass the farm and the farming uninterrupted to his children, probably through a procedure that was governed by local custom. As long as the system functioned in this way, it would be pointless to discuss who actually owned the land—the cultivator or the person who had the right to the tribute. This right could probably vary, and it is reasonable to think that the lords would be obliged to pay tribute to the king or to a more powerful lord. The problems only became serious when land was taken out of this context by being transferred or sold to ecclesiastical institutions, which had a quite different and absolute definition of property, rooted in the Roman law. Furthermore, some monastic orders even went as far as to dissolve the farming structure and replace it with grangia production.65

  Jørgensen, “Stormandssæder,” pp. 85–89.  Tribute is actually the same as taxation, but since the collection of taxes normally is connected with the Crown or the state, it is better to use the term tribute for fees that lords might request, in exchange for protection, from peasants living in the area they controlled. 65   Grangia production was used by the Cistercians. In short, this form of production was based on dissolving smaller production units and combining them with larger units in large-scale farming—grangia production. At the grangia, lay brothers, not tenants, tilled the land. No extant Scandinavian documents describe this condition. 63 64

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Another problem emerged if the land belonged to the king or a lord, who levied taxes on it. The civil wars in the twelfth century led to numerous dislocations of the power structures, in particular because of one widely used sanction towards lords who had supported a losing pretender: the new king would confiscate their estate and then give it to his supporters. Over the long term, this led to disagreements about who had the right to the estate—the new owner, the king who might claim that the donation was for the lifetime of the recipient only, or some third party, a monastery for example, to which a new occupier might have transferred to land. Even though the concept of tribute is only a theory and is difficult to prove, it is beyond doubt that the establishment of large monasteries in the twelfth century and the huge number of large donations of land that followed contributed to pushing the ownership problem to the extreme. The theory is based on documents from Zealand, and the conditions probably varied from region to region. The huge donations from lords may imply that estates in Zealand were held by fewer people than in other areas, where we do not see a comparable wealth of estates in the donations. Undoubtedly, there was a great uncertainty about ownership and how estates might be sold, and that may help explain why, exactly at that time, firm inheritance rules and, subsequently, allodial rights and stipulations about donations were developed. As long as all parties agreed on the rules in the continuous negotiation of the right to land and other property, the system might function and even be justified; it could be used to emphasize status and create narrow ties between large monasteries and the aristocracy.66 But the system could not be sustained, once the growing interest in Roman law and legal thinking that emerged throughout Europe in the twelfth century began to focus on property rights.

 Esmark, “Godsgaver,” pp. 166–168.

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THE EMERGENCE OF THE PROVINCIAL LAWS AND THEIR DATING Customary law or newly developed law? A classic debate over the content of the provincial laws is whether they represent newly created legislation or were a written record of an orally based customary law with roots far back in time. Today, only a minority of researchers argue that the decrees of the provincial laws express a codified customary law that originated in the haze of antiquity.1 At the same time, virtually no researcher will claim that all the decrees of the laws emerged at once ex novo. The disagreement now is mainly over whether the laws were recorded so that they could be used as tools to organize a legal landscape that was a chaos of customs punctuated with a few royal decrees, as Ole Fenger2 argues, or whether the provincial laws expressed a particular political will and power, not custom, as Elsa Sjöholm3 proposes. Lars Ivar Hansen and Michael H. Gelting have refined the latter viewpoint. They both argue that the legislation maintained older stipulations that were politically relevant

1   This concept was opposed already by Poul Johs. Jørgensen, Manddrabsforbrydelsen i den skaanske Ret fra Valdemarstiden (Copenhagen 1922) and Poul Gædeken, Retsbrudet og Reaktionen derimod i gammeldansk og germansk Ret (Copenhagen 1934). 2   Ole Fenger, Fejde og mandebod. Studier over slægtsansvaret i germansk og gammeldansk ret (Århus 1971), pp. 359–360; and Ole Fenger, Romerret i Norden (Copenhagen 1977), pp. 57–58. That this was the case was also suggested by, e.g., Aksel E. Christensen in 1945: “They [the provincial laws] must be conceived, not as much a down writing of the legal customs of the ancestors, but as an establishment of the current interest. Aksel E. Christensen, Kongemagt og aristokrati, epoker i middelalderlig dansk statsopfattelse indtil unionstiden (Copenhagen (1945) 1976), p. 13. 3   Sjöholm, Sveriges medeltidslagar. This disagreement about the origin of the laws led to a virtual polemic between Fenger and Sjöholm. Ole Fenger, “Anmeldelse Elsa Sjöholm: Gesetze als Quellen mittelalterlicher Geschichte des Nordens” 1976, Historisk Tidsskrift, vol. 79, serie 1 (Copenhagen 1979), pp. 112–124; and Ole Fenger, “Afsluttende bemærkninger,” Historisk Tidsskrift, vol. 81, serie 1 (Copenhagen 1981), pp. 222–225; Elsa Sjöholm, “Replik til Ole Fenger,” Historisk Tidsskrift, vol. 81, ser. 1 (Copenhagen 1981), pp. 219–222.

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and important.4 Even though it is reasonable to assume that the laws had been approved by the Crown at some level, it seems exaggerated to assume that all legal provisions were of immediate interest of those in power. For example, there were lawsuits relating to neighbor law, and questions about roping and fencing-in that were important primarily at the local level. Furthermore, we can assume that when a law was amended, antiquated forms that were without meaning in practice might be preserved in order to provide a touch of antiquity and continuity. That seems to have happened with the Norwegian provincial laws, the Västgöta Law, and King Valdemar’s Law of Zealand. Several studies and theories try to explain what happens when a new legal system or a new form for legal thinking clashes with a local customary law.5 Even though theories about the clash between local and foreign may lead to many interesting discussions, they are not particularly apt for explaining what gave the Scandinavian provincial laws their shape as we know it today. We cannot characterize the interaction between customary law and canon law in Scandinavia at the time of the provincial laws as an encounter between two alien legal concepts. When the provincial laws were written, Christianity had been the dominant religion for centuries, so Catholic theology and the legal thinking associated with it were not new or foreign. The encounter between customary law and the moral and legal thinking of the Church occurred much earlier than the arrival of the provincial laws. We have barely any documents describing this encounter, but can imagine it as a slow and gradual process. Christianity and the morals connected with it must have been known in Scandinavia, at least in the areas that were in contact with the rest of Europe through trade or military expeditions, long before a targeted missionary activity was undertaken. At the same time, we cannot talk about the provincial laws as a completely new legal practice rooted in a well-defined legal system. 4  Hansen, “Slektskap,” p. 136; Michael H. Gelting, “Odelsrett- lovbydelse- bördsrättretrait lignager. Kindred and Land in the Nordic Countries in the Twelfth and Thirteenth Centuries,” ed. Lars Ivar Hansen, Family, Marriage and Property Devolution in the Middle Ages (Tromsø 2000), p. 134; and Michael H. Gelting, “Predatory Kinship Revisited,” ed. John Gillingham, Anglo-Norman Studies XXV (Woodbridge 2003), p. 109. 5   Most well known is probably the theory about the legal revolution in medieval Europe by the American Harold J. Berman. Harold J. Berman, Law and Revolution. The Formation of the Western Legal Tradition (Cambridge, Massachusetts 1983).



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Instead, it was an ideology rooted in the ecclesiastical concept of kinship that became important for the operation of a number of legal functions of the laws. The main aim of the laws certainly was not only to introduce this ideology but also to enhance the position of the king, and to create the foundation for a uniform and precise establishment of legal norms that should prevail. It is therefore difficult to imagine that the authors of the laws, despite their schooling, did not take the point of departure in the already existing norms and customs and then simply combine them with the ideological concepts. The dating of the provincial laws The dating of the laws is a particular problem in itself, because very few of the extant provincial laws can be dated precisely, either from a year written in the law or from external information. Legal historians have to determine the age of the remaining laws from references to persons or events mentioned either in other sources or from stipulations that can be dated.6 Finally, the language itself used in the laws has been used for dating: the more archaic the language, and the fewer German or other loanwords found in the laws, the older they were assumed to be.7 This method has been contested, however, because it has been demonstrated that it was a literary style in the thirteenth and fourteenth century to use antiquated linguistic expressions, a tendency found also in the Icelandic sagas and Edda literature.8 The transmission of the laws entails yet another difficulty, in addition to the dating problem, when using them as historical documents. Often there is a distance of 100 or more years between the first written version of any law and the version that has survived until our time. The extant versions may contain later amendments. Another important consideration is that the recording of any implied that that it became fossilized in a way different than if the extant regulations had been verbally transmitted, which allowed alterations from time to 6   That is a.o. the case for the canonical limit for kinship, which according to the Fourth Lateran Council was changed from the seventh to the fourth degree removed. The council also prohibited priests from assisting at ordeals. With regard to Swedish legislation, the Edsöre is also applicable. 7   Johs. Brøndum-Nielsen, Om Sprogformen i de sjællandske Love (Acta Philologica Scandinavia 29:1971–73), pp. 81–110. 8   Norseng, “Lovmaterialet,” pp. 49–50 and 62–63.

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time. Therefore, even though the extant manuscripts are later than the passing of the law, they are usually direct transcripts of older texts.9 As previously discussed, the Nordic provincial laws were not all written in the same time period. In Norway the recording began toward the end of the eleventh century. In Denmark the recording started in the second half of the twelfth century. In Sweden it began at end of the thirteenth century, the Older Västgöta Law being the only exception. No simple causes explain this gap of more than 100 years between Norway and Denmark, on one side, and Sweden, on the other. Power political differences may have played a role, just as it might have been important that the Church and a stable, nationwide Crown was established later in Sweden than in the other Nordic countries. Only by the middle of the twelfth century was Sweden genuinely unified, and only with the Chronicle of Eric did a national historical writing appear. Historical writing had had a long and rich tradition in Norway, with the royal sagas by the Icelander Snorri Sturlusson being best known. With regard to Denmark, the histories of Swein Aggesen and Saxo were a part of that tradition. The aim of the historical writing was doubtless ideological, because it conveyed the idea that the realm was a unified entity under the rule of one king. The dating of the Danish laws The Book of Inheritance and Heinous Crimes has already been discussed. The law soon turned out to be inadequate, as it left many areas unregulated. In Zealand, the Book of Inheritance and Heinous Crimes was the basis of the law book that is known by the name King Valdemar’s Law of Zealand. Just like Eric’s Law of Zealand, nothing is known about the emergence of King Valdemar’s Law of Zealand, and very little is known about its date. The law now exists in an older and a later version. The later version was probably from 1241 or shortly after, because it contains decrees from a Church council that took place in Roskilde in that year.10 It also makes reference to the Law of Jutland  9   That some versions were copied uncritically is evident from several of the later versions of the Law of Scania that describe ordeal by hot iron instead of tribunals; tribunals had supplanted the ordeal by hot iron at the time of the rule of Valdemar the Victorious. 10   Erik Kroman, Danmarks gamle Love. Deres Alder og indbyrdes Slægtskab (Acta Philologica Scandinavia) 29 (Copenhagen 1971–73), p. 120.



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from the same year.11 The older version is more difficult to date, and even though several attempts have been made,12 they are only more or less qualified guesswork. These are based on similarities with the Law of Scania, and therefore it has been dated to the first decade of the rule of Valdemar the Victorious, 1202–22. The lack of the ordeal by hot iron and the fact that that the inheritance right, in contrast to the older Book of Inheritance and Heinous Crimes, goes to the fifth generation and not to the seventh might indicate that the law should be dated to after year 1215. An a cautious dating would be between 1215 and 1222.13 The Law of Scania and Anders Sunesen’s Latin paraphrase of it, Liber Legis Scania, are traditionally dated to between 1202 and 121614 or immediately after, because the law includes royal legislation from 1202 and also some decrees concerning ordeal by hot iron. Legal historians traditionally thought that the ordeal by hot iron was abolished in Denmark in 1216, or shortly after, since the Fourth Lateran Council had abolished clerical participation in ordeals, and steps to implement the decree were taken as soon as the information reached Denmark. The result was the Ordinance of Ordeals by Hot Iron by Valdemar the Victorious, which decreed that tribunals should supplant the ordeals by hot iron. Michael H. Gelting has questioned this argument, claiming that the nowhere else in Catholic Europe were the ordeals abolished immediately after the Fourth Lateran Council. It took a long time before the Curia succeeded in implementing the decree.15 Instead, Gelting suggests that the Law of Scania might be considered a preparatory work to a national law, a project that was commenced in the first half of the rule of Valdemar the Victorious but terminated due to the illness of Anders Sunesen and the catastrophes that hit the royal family in the 1220s. The huge project collapsed but was resumed towards

  Andersen, Lærd ret, p. 140.   It has a.o. been dated to the time shortly after 1216 because it does not mention ordeal by hot iron, which traditionally has been considered to have been abolished that year. Fenger, “Jydske Lov,” p. 46; and Norseng, “Lovmaterialet,” pp. 53–54. 13   Per Andersen argues that the law is later than the Law of Scania, which he, just as M.H. Gelting, dates to around 1222. Therefore, he thinks it is from the period 1222–41. Andersen, Lærd ret, p. 143. Per Andersen does not clarify why he dates the older version to as late as 1241. 14   Erik Kroman and Stig Iuul, Danmarks gamle Love paa nutidsdansk, vol. 1 (Copehagen 1945), p. ix. 15   Ibid. 11 12

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the end of the rule of Valdemar the Victorious.16 Gelting also asserts that Anders Sunesen wrote the Paraphrase in preparation for the legation of Cardinal Gregorius de Crescentio to Denmark in 1222–23. De Crescentio was one of a number of cardinals who were charged with carrying out the decisions of the Fourth Lateran Council. The Latin version of the law would enable him to understand the legal situation in Denmark, and thereby enable him to actively participate in the discussion about how the law could be adapted to the commands of the Curia.17 Gelting’s arguments have many lose ends and appear less convincing than the traditional dating of the Law of Scania. Gelting’s article also presents the concept of a law of the realm as existing as early as in the twelfth century. True, the legal situation in the various provinces did have much in common, but when interpreting certain passages in Saxo, it is only possible to conclude that enormous antagonisms existed between the provinces.18 Therefore, the alleged intention of the Crown to introduce national legislation might be the result of a desire to enhance the unification of the realm by abolishing local variations of the legislation, which was not accomplished. The Book of Inheritance and Heinous Crimes might have been intended as a law for the entire realm, but it had to be presented and passed locally at the provincial things. The focus on a proper law of the realm easily ends up being a straitjacket. Is there actually no more than a terminological difference between a law of the realm and provincial laws that were identical in all parts of the realm? If one has to uphold such a clear-cut distinction between the two concepts, how should we then interpret Magnus Lawmender’s Law of the Realm? Even though four almost identical texts exist, each of the four provincial things passed them,19 and the preambles of the laws specifically mention that the laws had been laid down specifically for a particular province. Another objection is that Gelting bases his thesis on the idea that the Law of Scania supplemented the Law of Jutland in many areas that

16   Michael H. Gelting, “Skånske Lov og Jyske Lov: Danmarks første kommissions­ betænkning og Danmarks første retsplejelov,” in Henrik Dam, Lise Dybdahl, and Finn Taksøe-Jensen, eds., Jura & historie. Festskrift til Inger Dübeck som forsker (Copenhagen 2003), p. 72. 17   Ibid., pp. 72–76. 18   See Saxo, Gesta Danorum, 15:6:3, p. 534, and 14:3:6, pp. 376–377. 19   Magnus Rindal, “Dei norske mellomalderlovene,” ed. Magnus Rindal, Skriftlege kjelder til kunnskap om nordisk mellomalder (KULTs skriftserie) vol. 38 (Olso 1995), p. 10.



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were either unclear or uncovered in the Law of Jutland. The fact that his examples concerning fledføring are found in identical paragraphs in both King Valdemar’s Law of Zealand and in the Law of Scania weakens his arguments. Furthermore, there are strong indications that the Book of Inheritance and Heinous Crimes was a law of the realm. Therefore, a connection between the Law of Jutland and King Valdemar’s Law of Zealand, which is a redaction the Book of Inheritance and Heinous Crimes, appears to be just as likely as a connection between the Law of Jutland and that of Scania. Finally, it should be noted that the Law of Jutland and King Valdemar’s Law of Zealand are often found in the same manuscript, which also speaks for a connection between the two laws.20 It is certainly not a matter of exclusivity; the authors of the Law of Jutland could have borrowed from both King Valdemars’ Law of Zealand and the Law of Scania, and they certainly would have known both laws. Even though one must be critical of Gelting’s theory that the Law of Scania was a draft of a never-issued national law and his postulated close connection between the Law of Jutland and the Law of Scania, his analysis of the content and aim of the Law of Jutland is more acceptable. The dating of the Law of Jutland is not in doubt, as the preamble dates its origin to the year 1241. Most legal historians now believe that the Law of Jutland was conceived as a national law—a project that in the end proved unsuccessful. Per Andersen and Michael Gelting have found evidence in chronicles and elsewhere that in the years after the appearance of the law there were attempts to introduce it throughout the entire realm.21 It is more difficult to figure out whether the law actually functioned as a law of the realm or whether it was valid in Jutland only. The fact that the notions sandemen (sworn judges) and kin’s board appear only in Jutland may indicate that the law was not valid in other parts of Denmark. Gelting also has a theory about why the third book of the Law of Jutland has a disorganized structure that has puzzled legal historians. They have for a long time realized that large parts of the law (the two first books and chapters 1–37 of the third book) were not organized   Jørgensen, Dansk Retshistorie, p. 32.   Fenger, “Jydske Lov,” pp. 47–50; Ditlev Tamm, Dansk og europæisk retshistorie (Copenhagen 2002), p. 25; Per Andersen, Rex imperator in regno suo. Dansk kongemagt og rigslovgivning i 1200-tallets Europa (Odense 2005), pp. 58–95; and Gel­ ting, “Skånske Lov,” pp. 46–51. 20 21

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according to content but according to the process—i.e., which tribunal had jurisdiction over the individual issue. Since the last part of the third book does not follow this pattern and does not have a logical internal arrangement, and because one of the paragraphs supersedes a paragraph in chapter one,22 Gelting concludes that these chapters (38–68) must be later additions to the law and must have been added between 1241 and 1276. The oldest extant manuscript that dates to the latter year contains the edited version of the Law of Jutland, and therefore the editing must have been completed in that year.23 King Eric’s Law of Zealand (together with the two redactions of King Valdemar’s Law of Zealand) is the least studied of the Danish provincial laws. The dating of the law is very uncertain, leading to a variety of suggestions. On one hand, the law contains a large number of low-German loanwords, which dissociates it stylistically from King Valdemar’s Law of Zealand and points toward the time of the Law of Jutland.24 On the other hand, the law has a decree concerning ordeal by hot iron that might indicate the beginning of the thirteenth century.25 The law was presumably written as a supplement to King Valdemar’s Law of Zealand, since it repeats only few of the decrees of the latter, but expands them and adds new decrees. Therefore, King Eric’s Law of Zealand must be later than at least the oldest version of King Valdemar’s Law of Zealand.26 However, it also could actually have been a supplement to the later version. King Eric’s Law of Zealand may also be dated on the basis of criteria other than the legal development. Another method is to examine if any of the extant diplomas might be used as an indication of the age of the law. Since King Valdemar’s Law of Zealand is the foundation of King Eric’s Law of Zealand, it seems reasonable to seek decrees in King Eric’s Law of Zealand that are not found in King Valdemar’s Law of Zealand and to see if the introduction of those decrees can be traced in the diplomas. We can trace a change with regard to decrees about what one could donate at death, often in relation to frankalmoins to 22   The provisions state how much a married wife may donate for the salvation of her soul. The Law of Jutland, 1. book, ch. 39, 3. book, ch. 45. 23   Gelting, “Skånske Lov,” pp. 58–67. 24   Brøndum- Nielsen, “Om Sprogformen,” p. 81. 25   This has earlier been interpreted as an interpolation, but Per Andersen has recently suggested that instead the provision was included to solve a procedural problem. Andersen, Lærd ret, pp. 160–163. 26   Fenger, “Jydske Lov,” pp. 45–46.



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ecclesiastical institutions. King Valdemar’s Law of Zealand stipulates that a person may donate half of the capital portion. If there was a conflict between the heirs of the deceased and the recipient of the donation over whether it was given or not, the matter should be solved either by jurors or swearing by twelve men (tylftered), depending on whether there were witnesses to the donation or not. The law did not provide a genuine assurance that the heirs would actually hand over the donation from the deceased; the paragraph allows the donation to be annulled, even though the recipient had witnesses, if the heirs could convince the jurors.27 King Eric’s Law of Zealand, in contrast, offered the possibility to prevent heirs from annulling a donation if it was recorded at the thing. The law states, “If he gives half his capital portion and it is recorded at the thing, then it will always be sustained if there are witnesses to it.”28 In order to observe if a change in legal practice occurred, we must undertake an examination of documents that deal with conveyance practices. First we should examine the letter books from the monasteries, because they contain copies of many documents that record conveyances. A good portrayal of how to perform the conveyance to religious institutions is found in a papal letter from 1198 from Pope Innocent III to Archbishop Absalon. The letter reproduces the information that Absalon had provided to the papacy concerning the normal procedure of conveyance transfer of donations to ecclesiastical institutions: The procedure at such donations is usually to take some earth and put it either at the extreme end of the altar cloth, which the bishop or another prelate holds in his hand, or you envelope earth in a small piece of cloth and place it humbly on the altar, while the attestation of the spectators and listeners follow the procedure for the form of gift giving which in the vernacular is called ‘scotatio.’ But since you [the archbishop] claim that such a gift is questioned wickedly by certain quibblers.29   Danmarks gamle Landskabslove, vol. VIII, VsL1 text 1, ch. 47, pp. 24–25.   “Æn giuær han half sin houæth lot oc scøtær a thingi. tha hwat sum han giuær hældær guthz husæ ællær andræ mannæ. tha standæ e thet ær thing witnæ ær til. Ibid., vol. V. EsL text 1. 1. book, ch. XXXII, pp. 40–41. 29   “[A]ut in extremitate pallii quod manu episcope uel cuiuslibet alterius prelati ecclesie sustinetur. aut super ipsum altare aliquot inuolutum panniculo cum debita humilitate ponendum sub testimonio uidentium et audientium forma donationis huiusmodi subsequente que scotatio uulgariter appellatur. Uerum quia huiusmodi donatio maliciose a quibusdam cauillatoribus sicut asseris impeditur.” Diplomatarium Danicum, 1. serie, 3. vol., no. 238. 27 28

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These “cauillotores”/quibblers, Innocent prescribed, should be subject to ecclesiastical punishment, though he did not specify the punishment precisely. But punishment was not likely to be carried out if the legal side of the contestation were valid. In 1198, Absalon was certainly bishop of Lund and no longer at Roskilde, but it would be strange if there were that big a difference in the procedures of conveyance transfer between Scania and Zealand. This is particularly so because the above-mentioned procedure of conveyance was used elsewhere in Europe, for example in France. Documents that mention conveyance transfer from Zealand toward the end of the twelfth century and into the middle of the thirteenth century are rare; there are a few examples from Zealand from the end of the twelfth century to the mid-thirteenth century. These examples are found in monastic books describe three kinds of conveyance: 1) conveyance over the altar;30 2) conveyance with witnesses who, together with the person who was in charge of the conveyance, attached their seal to the document;31 and 3) a single example of conveyance by handshake, which was the canonical method of agreement.32 Despite all these precautions, many documents reveal a fear that the contract would later be questioned by heirs or other kinsmen. As an extra precaution, many documents threaten them with Hell and Doomsday if they challenge the donation.33 At the mid-thirteenth century, registration of sales of estates and exchanges of real property emerges in documents from Zealand. The first registration that is datable with certainty is an exchange of real property between Jon Jonsen and Esrom Abbey in 1248. The exchange of real property was recorded first at the Treherredsting in Slangerup, and subsequently at the provincial thing in Ringsted.34 This procedure is totally in accordance with King Eric’s Law of Zealand that prescribes a proclamation at the thing as a remedy against a later contestation of

30   Diplomatarium Danicum 1. serie, 5. vol., no. 43. Here, bishop of Roskilde Peder Sunesen in 1214 donated a farm with adjoining land to Sorø Abbey. 31   Ibid., 1. serie, 7. vol., no. 24, and no. 90. Here, Valdemar the Victorious in 1239 sold an estate to Esrom Abbey, and Gunde Jensen in 1241 donated an estate to Æbelholt Abbey. 32   Ibid., no. 221. Here, Sakse Torbensen confirmed Esrom Abbey that he and his heirs had no rights to a village to which ownership had long been disputed. 33   Examples are found in Ibid., 1. serie, 3. vol., no. 183, and 1. serie, 5. vol., no. 54. 34   Ibid., 1. serie, 6. vol., no. 289.



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an exchange of real property. In 1250, Tokke Nielsen conveyed estate to Æbelholt Abbey. The description of the conveyance mentions that he had freely transferred the estate “and had proclaimed the conveyance at Strøherred’s Thing according to the Law of Zealand.”35 Later, it became quite normal to proclaim the conveyance at the thing. Previously, the practice was to convey the transfer in the presence of witnesses at the altar in the church or other locations, and possibly have it confirmed in a document to which the parties and the witnesses had attached their seals. It is therefore likely that the conveyance at the thing was a new practice. The change of the conveyance procedure was most likely the result of a change of the law. Neither the Book of Inheritance and Heinous Crimes nor King Valdemar’s Law of Zealand mentions the option of safeguarding against contests through proclamation at the thing. It is therefore most probable that King Eric’s Law of Zealand dates from 1248 or the years immediately before. In this context, it should be mentioned that Per Andersen argues convincingly that the King Eric’s Law of Zealand was recorded incrementally.36 The first two books, he argues, are the oldest, and on the basis of the argument above, he agrees that it is older than 1248. But he argues in favor of a broader dating, namely, that it is from the period when Eric IV became co-ruler with his father Valdemar the Victorious in 1232 and 1248.37 I think it is unlikely that a law issued while Valdemar the Victorious was still alive would carry the name of his son. Furthermore, if the conveyance method became law in the 1230s, why would they wait until 1248 to mention the procedure in the diploma, a period from which several diplomas from Zealand are available? In all probability, the date of the first two books would be the years immediately before 1248. The third book, Per Andersen argues, should be ascribed another king, namely Eric VI (king 1286–1319), or the end of the thirteenth century. He argues for this date partly from observing an influence from the Law of Jutland and partly from information in Thord’s Articles from the beginning of the fourteenth century. However, as Andersen also emphasizes, this dating is very uncertain.38

35   “In placito prouincie Strø secundum exigenciam legum Selendie.” Ibid., 2. serie, 1. vol., no. 18. 36   Andersen, Lærd ret, pp. 157–164. 37   Ibid., p. 165. 38   Ibid., p. 166.

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Despite Per Andersen’s great effort, the Laws of Zealand need a thorough study of their mutual relations, their relationship to other Danish provincial laws, the manuscript situation, and their transmission. It is quite possible that such an investigation would lead to an understanding of how legislation developed in this period between the appearance of the Book of Inheritance and Heinous Crimes and the mid-thirteenth century. The great advantage of the Laws of Zealand is actually the close connection among them. For example, King Valdemar’s Law of Zealand exists in just three versions. I will have to abstain from such an investigation here, because it would be too encompassing and outside the focus of this book.39 Finally, Church laws must be mentioned. Church laws for Scania and Zealand have survived from the beginning of the 1170s. The laws themselves state that they emerged as a compromise between the bishop and the inhabitants, because the old law “was too harsh.”40 In exchange for the new law, the inhabitants committed themselves to pay a tithe to the bishop. It is very questionable if similar Church laws existed in the province of Jutland, because it is known that even into the late Middle Ages, the bishop found it difficult to collect his tithe or donation. It is difficult to express an opinion about Church legislation before the introduction of the Church law. Maybe Church laws similar to the Norwegian Church laws did exist, according to which any offence against sacred regulations, such as breaking Lenten fast or working on holidays, involved heavy fines and, in the worst cases, prohibition and excommunication. These kinds of violations were not regulated in the Danish Church laws; they dealt almost exclusively with procedures. Michael H. Gelting has suggested that the Church laws replaced an earlier system, in which the practice of canon law functioned through Old Danish institutions such as tribunals and ordeal by hot iron.41 Undoubtedly, the existence of a negative proof in the Church laws

  For the dating of Danish laws, see also Ibid.   “fore þy at rætæn uar af harþær før” “Danmarks gamle Landskabslove,” vol. I. 2, text 1, SkKl. p.821, “for thæt at ræt wor før of harth.” Ibid., vol. VIII, SjKl. text 1, p. 446. 41   Gelting: “Marriage Peace,” p. 108. 39 40



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was a concession from the Church’s side,42 but that was not necessarily the case with the ordeal by hot iron.43 The dating of the Norwegian Laws Most of the development of Norwegian legislation has been described previously, but the history of the transmission of the Frostathing and Gulathing Laws needs further elaboration. Both law codes have been through several versions, and it can therefore be difficult to know when individual provisions entered the laws. Many provisions can undoubtedly be dated to Magnus Erlingsson’s rule; the first part, in particular, can be dated to the mid-1160s. Therefore, it is possible that subsequent revisions altered the content of the law code. The version of the Frostathing Law which is known today and which is transmitted in its entirety, is the result of a revision that occurred in the 1260s. Furthermore, a fragment of a manuscript from the first part of the 1220s has survived. Thus, more than 90 years lie between some of the stipulations in the version that is known today and those that, without doubt, date to the 1160s. This presents a problem that cannot be solved unless one prefers to not express an opinion about the legal landscape in the Frosta-area for the years before the documents were written. What has been preserved of the Olav text of the Gulathing Law is very limited, making it difficult to determine what portion of the decrees of the Magnus text are based on the earlier version. Gratian’s Decretum was undoubtedly important for the canonical decrees of the Magnus text. The main question asks which collection of canon law actually inspired the Olav text. Torgeir Landro has pointed to the importance of Burchard of Worms’ Decretum for the early Norwegian Christian law,44 and Benedicte Leborg has demonstrated that Bernhard of Saxony, bishop for Olav Kyrre’s housecarls, probably used Burchard’s 42   The inquisitorial process was finally accepted as universally acceptable in ecclesiastical legal process under Innocent III, from the beginning of the thirteenth century. The absence of reference to it in the Church laws does not imply that it was used earlier in Denmark. See: Trusen, “Der Inkvisitionsproces,” pp. 168–230. 43   Robert Bartlett, in his study of the ordeal, has demonstrated that the ordeal by hot iron spread from the Frankish empire to the remotest places in Europe with the spread of Christianity. Robert Bartlett, Trial by Fire and Water. The Medieval Judicial Ordeal (Cambridge, Massachusetts 1986), in particular pp. 4–33. 44   Torgeir Landro, Dei eldste norske kristenretteane. Innhald og opphav (Master’s thesis, University of Bergen, 2005), pp. 55–62.

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work.45 If that was the case, we must assume that the decrees concerning incest, which is the topic of the seventh book, entered Norwegian law under the influence of Burchard. Also supporting this assumption is the fact that the oldest Norwegian laws calculate canonical kinship to the eighth generation removed, as does Burchard.46 In addition to the differences between the Olav and Magnus texts, there is also an older and a later version of the Gulathing Law. The law was thoroughly revised in 1267. It is, of course, the older version that is of interest in this context, and it is normally only this version that is called the Gulathing Law. The older version is found in the manuscript “Codex Ranzovianus” from around 1250, which is the only manuscript that has the full version of the Gulathing Law. This version has a few additions, some of which seem to be insertions of laws that date earlier than 1250.47 The content of the law shows clearly that it has undergone several revisions, the largest of which occurred under the rule of Magnus Erlingsson. The law also has an addition about payment of wergeld, which carries the name “The Scale of Bjarne Mårdsson,” and it was probably added to the law in the beginning of the thirteenth century. Of the two remaining provincial laws, the Borgarthing and the Eidsivathing Laws, only the Christian laws and a few fragments have survived. It is therefore difficult to say whether or not the legal landscape has been identical all over the realm. Gula and Frosta were the most important things, and it is therefore possible that the two other law codes were not as interesting for the legislators as the Gulathing and Frostathing Laws. We have one version of the Christian law of the Eidsivathing, and two versions of that of the Borgarthing. The later version dates to the reign of Haakan Haakonsson, more specifically to the time when Sigurd was archbishop (1231–52).48 The older version is more difficult to date, and it, as well as the Eidsivathing Law, has many archaic features that may indicate an origin from the twelfth century. The question of transmission, however, makes it difficult to establish a more specific date.49   Leborg, De dødes manglende fred, pp. 103–107.   Tore Iversen, “Anmeldelse: Helle Vogt, Slægtens funktion i nordisk højmiddelal­ derret,” Collegium Medievale (Oslo 2006), p. 229. 47   Knut Helle, Gulatinget og Gulatingslova (Leikanger 2001), p. 11. 48   Riisøy and Spørck, “Dateringen,” 57–74. 49   Bertil Nilsson, De Sepulturis. Gravrätten i Corpus Iuris Canonici och i medeltida nordisk lagstiftning (Stockholm 1989), pp. 27–28. 45 46



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The dating of the Swedish laws As mentioned previously, Birger Earl and his successors were far from unique legislators in their family. Birger’s oldest brother Eskil was a provincial governor in Västgötaland in the beginning of the thirteenth century,50 and it was probably he who took the initiative to codify the Västgöta Law. A list of all provincial governors from the mid-thirteenth century notes that Eskil altered the law. The same list also notes that Folke, who was provincial governor between the 1220s and 1230s, removed many pagan decrees from the laws and ensured that children of concubines lost their right of inheritance.51 These statements might imply that Eskil started the immense revisions of the law, whereas the actual wording that it contains today is the result of Folke’s editing. In any event, it is not curious that the focus is mainly on Eskil. He was an important person at his time. His wife was a relative of Saint Eric and widow of the Norwegian Haakon Earl, and their son had a claim to the Throne of Norway. The older Västgöta Law resembles in many areas the east-Norwegian laws, and it therefore has been suggested that Eskil knew the Norwegian legislation well.52 The Västgöta Law is interesting not only because it is the oldest existing Swedish provincial law but also because it was revised in the 1290s. The two versions demonstrate how jurisprudence changed in Västgötaland in the roughly 70 years between them. Two addenda to the later Västgöta Law have also survived, which were not incorporated into the law but supplemented and invalidated older decrees.53 The Västgöta Law was far from being the only provincial law that was edited or codified in the reign of Magnus Barnlock. In his time, the Östgöta Law probably obtained its final version, and again a kinsman of Birger Earl, the grand nephew Bengt Magnusson and provincial governor of Östgötaland in the 1290s, took the initiative. There are several hints about the existence of an older version, but

50   Åke Holmbäck and Elias Wessén, trans. and eds., Svenska Landskapslager—Tolkade och förklarade för nutidens svenskar, vol. 5 (Uppsala 1946), pp. xix–xxiii; Norborg, Källor till Sveriges historia, p. 81. 51   Gerhard Hafström, De svenska rättskällornas historia (1964; Lund 1973), pp. 22–23. 52   Svenska Landskabslagar, vol. 5, pp. xix–xxiii. 53   Gösta Åqvist, Frieden und Eidschwur. Studien zum mittelalterlichen germani­ schen Recht (Lund 1968), p. 166.

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it unfortunately has perished.54 The language in the later version of the law has strong elements of departmental language; it also is an advanced legislation, implying that the circle around the king or the royal chancellery was involved in its elaboration.55 Family relations back to Birger Earl’s family can also be found in relation to the Uppland Law. The king approved the law in 1296 for the newly established legal unit Uppland,56 that was created by merging three smaller legal units: Attundalland, Fjädrundalland, and Tiundaland. The provincial governor of Tiundaland, Birger Persson, may have initiated this process. Birger Persson was married to the daughter of the provincial governor of Östgötaland, Bengt Magnusson, the grandson of Birger Earl’s brother. Not much is known about the creation of the Hälsinge Law, but there is a consensus that the extant version was the result of an initiative of Archbishop Oluf Björnsson. Oluf Björnsson was a relative of Birger Persson, and in this way, the circle between the creators of the laws is completed. Like the Uppland Law, the Södermanna Law from 1327 has a confirmation charter.57 The confirmation charters, which in general are identical and therefore probably standard formulas, state that the law was drawn up by the provincial governor together with knowledgeable men from the province, both secular and ecclesiastical. After the law was written down, provincial court passed the code, and the king

  Hafström, De svenska rättskällornas, p. 40.   Åqvist, Kungen och rätten, p. 111. 56   Sten Gagnér has, however, argued that the date on the Letter of confirmation is a falsification. He has demonstrated a close connection between the content of the letter and the introduction of Liber Sixtus—“Sacrosantae.” Since the Liber Sixtus was issued first in 1298, Gagnér claims that the ratification letter must be dated to that year. Sten Gagnér, Studien zur Ideengeschichte der Gesetzgebung (Uppsala 1960), pp. 362–366. Gagnér does not touch the issue of whether the law might also be more recent than 1296, but this is doubtful, because why would one lie to assert that the law would be older than it was? Another explanation might be that the work on the law was completed in 1296, but that the ratification was drawn out, with the result that it received its final form in 1298. 57   Gagnér has again questioned the date. The law is extant in only two manuscripts, and only one has the ratification letter. The ratification letter begins with the wording “Magnus, the son of Duke Eric, with God’s grace king of Sweden, Norway, and Scania” (“Magnus sun hærtugh eriks međ guz nađum konunger suerikis ok norghis ok scane”). Schlyter, Corpus iuris vol. IV, SmL. Confirmatio, p. 1. Only in 1332 did Scania come under the Swedish Crown (Gagnér, Studien, p. 363). Still, Gagnér does not explain if it is only the letter that is a later addition, or if the law had to be dated between 1332 and the arrival of the Law of the Realm. 54 55



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finally confirmed the law.58 The confirmation charters are an important source of information about the procedure of passing a provincial law in the years around 1300. Even though the Södermanna Law was finally confirmed in 1327, an earlier law code probably existed already at the end of the thirteenth century or earlier, although nothing is known about it.59 Just as in the case of the Uppland Law, a group of scholars and influential men had drawn up the Södermanna Law, but it seems that the clergy was not involved. After the recording of the law code, they announced the law and the law code on many provincial things in the presence of everyone concerned. Then, since everybody and without contest happily passed the law, except for two points: one concerns donations to the Church, and second about testaments, because for those two subjects the men of the province and the bishops and clerics had not yet reached an agreement.60

The disagreement meant that the matter was passed on to the king, who took the final decision to endorse and confirm the law. This procedure shows that the position of the clergy had become so strong that the stance of the Church could impede the passing of the provincial law that the provincial thing had endorsed. The content of the Södermanna Law reveals that it was inspired by the Uppland Law, as were the Västmanna Law and, to a lesser extent, the Hälsinge and the Dala laws. However, it is very difficult to date the genesis of the Dala and the Västmanna laws more precisely than to some time between the emergence of the Uppland Law in 1296 and the passing of the Law of the Realm around 1347. A cautious guess is that the two laws may be dated to the first three decades of the fourteenth century, because that would be in accordance with the general activities of legislation that occurred in those years. Finally, the “Smålandskirkebalk,” also called the “Church balk of the Ten Districts,” should be discussed. Just like with the two Norwegian 58   Schlyter, Corpus iuris,” vol. 3. UpL. Confirmatio, pp. 3–6. Vol. 4, SmL. Confirmatio, pp. 1–4. 59   Svenska Landskapslagar, vol. 3, SmL. pp. xxv–xxvi. 60   Schlyter, Corpus iuris, vol. IV, SmL. Confirmatio, p. 3, “tha lysto the them laghum ok laghbook a magnum lanzthingum them alum ahorandum thær um uarđađe. Framaleđes siđan alle međ samsæt ok utan genmæle uiđer tham laghum glađlica tacit hafđo. undan taknum at enosto tuem punktum. en ær um kirkiu gif. annar ær um testament. for thy at um þænne tu haua sic lanzmænnene ok biscopen oc klækane æi æn sampt eller iuir eno comit.”

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Christian laws, only the Church chapters have survived from the Law of Småland.61 These do not provide an indication of their date, but a cautious suggestion would be the 1290s.62 Both the Norwegian and the Swedish provincial laws are handed down in much fewer manuscripts than the Danish provincial laws. Some laws have been transmitted in one manuscript only, which makes the dating and the transmission process difficult to study. The explanation for this is undoubtedly that both Norway and Sweden passed Law of the Realms in medieval time, whereas Danish provincial laws were in force until the passing of the Danish Law of 1683. Why did Norway and Sweden obtain law of the realms already in the Middle Ages, and thereby a uniform legal order in all provinces, while Denmark first obtained a nationwide legal unity only in 1683? We can identify two possible reasons for this as we look at how the Norwegian Law of the Realm emerged. The provincial laws contained many complicated and outdated provisions and rules that had been developed as theoretical products of a certain ideology but had never had any impact. This made legal reform necessary. A strong king, who certainly would have liked to regulate the legislation so that it suited the actual social conditions and would have liked to increase his prestige through such a demonstration of power, also gave the Law of the Realm. In Sweden, other circumstances may have been important. The desire to have a uniform legal unit may have been more urgent in Sweden than in Norway, because the different Swedish provincial laws varied widely in their content, an impractical situation as seen from the viewpoint of the state. It is surprising that the Law of the Realm was passed during the reign of King Magnus Ericsson, who cannot be said to have been a strong king. Therefore, the law—in contrast to the Norwegian situation—may be considered as the attempt of a weak king to strengthen national unity. The project must have obtained support from at least a section of the magnates, since King Magnus succeeded in having the Law of the Realm issued and approved. It took

61   Gösta Åqvist has questioned whether there ever existed a law for Småland, which has now disappeared, and has instead proposed that the province adhered to the Östgöta Law. It is also possible that there had only been one separate Church Chapter (balk), since large parts of Småland were under Väksjö, not Linköping diocese. Åqvist, Kungen och rätten, p. 110. 62   Svenska Landskapslagar, vol. 5, pp. LXXVII–LXXVIII.



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some time before it was recognized in some provinces, however, and it was first generally acknowledged only later, in the reign of Queen Margrethe. This shows how dependent Swedish kings were on local support in order to uphold their executive power. In Denmark there were no attempts to issue a Law of the Realm. At first, it appears as though the reason may be that the provincial laws functioned there, so there was no need for a new law code. However, that does not explain why no Danish kings attempted to issue a Law of the Realm as a prestige project, except for the case of the Law of Jutland, which came to nothing because of internal disagreements. Other explanations might be that regional differences among the various provincial laws were not great enough to create serious problems with regard to, for example, inheritance rules, if a person owned estates in several provinces. Furthermore, there seems to have been a general aversion to changing the system of the provincial laws, which may indicate that there existed deeper conflicts than those that prevailed in the reign of Eric V. If a national law was actually urgent, one might expect that a strong king such as Valdemar IV would have imposed it, but he did not. This may indicate that the laws in general functioned, and that the magnates and the Crown had a joint interest in upholding the existing legal order. Furthermore, the system had the advantage of being easily be regulated through royal decrees, which ensured that the system was flexible; this may in fact have been more preferable than a national law, no matter how much prestige a national law may have provided.

chapter five

THE FATHERS OF THE LAWS All things considered, the early Danish law codes, as far as we can get an impression of them, were a part of the politically colored negotiations and agreements, and they were made by people with a high education and thus related to the contemporary European law codes that manifested a scholarly legal culture designed for the legal-political institutions of the elite, and to a lesser extent the result of a practical—legal initiative emanating from the provincial things.1

In this way, Inger Dübeck concludes her article about the Law of Scania and its European background from 1989. She argues that it was Absalon, not Anders Sunesen as traditionally assumed, who played the decisive role in the legal development in Denmark around 1200. The question of which archbishop was responsible for the legal development is not so very interesting. The important point is her conclusion that the provincial laws were made by people with a solid education. That was the case not only for the Danish laws but also for the Norwegian and Swedish laws as well, to which specifically mentioned people were directly or indirectly attached. It is possible to establish that these people had been educated at one or more centres of learning. I will in the following focus on some of those persons and their educational background. I have already pointed out Absalon and Anders Sunesen as important for legal developments. It is only possible to deduce Absalon’s contribution from his intellectual background and his great political importance. In contrast, the role of Anders Sunesen is more noticeable, due to his Latin paraphrase of the Law of Scania, and so it is more likely that he was involved in creating the law code. Anders Sunesen’s brother, the bishop of Roskilde Peder Sunesen (ca. 1160–1214, bishop in 1191), functioned for long periods as the chancellor of the king. Therefore, he was undoubtedly involved in legal endeavors under the kings Cnut VI and Valdemar the Victorious. Of the three bishops,

1  Inger Dübeck, “Skånske lov og den europæiske baggrund,” Historie. Jyske Samlinger, Ny række XVIII (Århus 1989–91), p. 420.

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Anders Sunesen seems to have been the most learned, but all three of them studied abroad. Anders Sunesen had studied in England, Paris, and Bologna; the two others, as far as we know, only studied in Paris. Even though we know little about their time in Paris, the three bishops did have one thing in common: all, directly or indirectly, had contact with the Victorine scholarly environment. Peder Sunesen’s connection is most apparent, because when he studied in Paris he stayed at the monastery Saint Geneviève. Anders’ magister belonged to the circle around Peter Cantor, who was strongly influenced by the theological currents that emanated from Saint Victor.2 Nothing is known about Absalon’s stay in Paris, but the fact that he was able to get the canon Saint Vilhelm to go to Denmark to reform the Augustinian canon society that later became Æbelholt Abbey indicates that he had contacts with the Victorine environment while in Paris. A close connection between the monastery of Saint Victor and Norway can also be observed in the second part of the twelfth century. At the time of archbishop Øystein, who was a central figure in the legislative process of Magnus Erlingson, several Victorine monasteries emerged in Norway. These were doubtless intended to function as schools for the education of both clergy and secular administrators, who would develop the legal apparatus. The sources do not tell whether or not Øystein had studied in Paris in addition to his studies in England3 and France, but the two bishops who succeeded him had been canons at two Parisian monasteries.4

2  Torben Nielsen, Cølibat og kirketugt. Studier i forholdet mellem Innocens III og Anders Sunesen, 1198–1220 (Århus 1993), p. 27. 3   Not much is known about the scholastic contact between Scandinavia and, in particular, Norway and England in the eleventh and twelfth centuries. There are certain similarities between the English laws and the Norwegian provincial laws, and there may have been a well-developed contact. It seems as if the focus changed in Norway during the time of archbishop Øystein, from a westward orientation to a focus on the south—especially toward Paris and the Victorine monastic and scholarly tradition, which in the same period also became influential in England. Unfortunately, the scholarly contacts between Scandinavia and England have not been studied, and therefore the connections are only a hypothesis. 4   The future archbishop Eric studied at St. Victor from about 1150 and managed to become canon before he returned to Norway. Ivan Boserup, “Ærkebiskop Erik Ivarsson og abbed Vilhelms brevsamling,” in Lars Boje Mortensen, Inger Ekram, and Karen Skovgaard-Petersen, eds., Olavslegenden og den latinske historieskrivning i 1100tallets Norge (Copenhagen 2000), p. 316.



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The number of Norwegian and, in particular, Danish students in Paris was undoubtedly much larger than the few known examples. Arnold of Lübeck wrote in his Chronicle of the Slavs from the beginning of the thirteenth century: “Also in scholarly education they [the Danes] have had no small progress, since the nobility sends their sons to Paris, not only to elevate the clergy but also to educate them in all kinds of secular knowledge.”5 Throughout the thirteenth century, Paris maintained and reinforced its scholarly position, especially with regard to theology. Theological scholars such as Abelard, Peter Cantor, and Peter the Lombard made Paris a theological centre, and the papacy promoted this leading position. Pope Honorius III prohibited the study of Roman law in Paris in 1219 with the bull “Super Speculam”; he presumably intended to strengthen theological study.6 Furthermore, as universities emerged in the thirteenth century, the papacy gave Paris and the two English universities Oxford and Cambridge the monopoly to have theological faculties, a monopoly which these universities upheld until the end of the fourteenth century. The study of canon law also flourished in Paris, and since canon law cannot be studied without knowledge of the Roman process, students got a basic introduction to Roman legal understanding, despite the “Super Speculam.”7 The number of known Nordic students in Paris grew significantly in the thirteenth century. The best known is probably Andreas And (d. 1317). He was the son of a magnate, and the family was closely related to the archbishopric in Uppsala, where he became dean. He had previously studied in Paris, and in 1285 he established that Collegium Upsalense in Paris, where Swedish students could live for free.

5  Arnold from Lübeck, Slavekrønike, ed. and trans. P. Kierkegaard (Copenhagen 1885), p. 92. 6   Stephan Kuttner, “Papst Honorius III. und das Studium des Zivilrechts,” in E. von Caemmerer, F.A. Mann, W. Hallstein, and L. Raiser, eds., Festschrift für Martin Wolff. Beiträge zum Zivilrecht und internationalen Privatrecht (Tübingen 1952), pp. 84–101. 7  In principle, canon and Roman law were two separate disciplines, but in practice, the border between them was fluid. As James Brundage states: “Indeed it is sometimes difficult, and may even be misleading, to classify medieval writers about the learned laws as exclusively “canonists” or “civilians” [those who were experts in Roman law]. The two laws were, to borrow a term from popular psychology, co-dependent upon one another.” James A. Brundage, “From Classroom to Courtroom: Parisian Canonists and Their Careers,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, 114 Bd. Kanonistische Abteilung LXXXIII (Vienna/Cologne/Weimar 1997), p. 344.

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Little is known about Andreas And’s studies in Paris, but the fact that he was a member of the commission that compiled the Uppland Law implies that he had studied canon law, and the law seems to follow its prescriptions. Furthermore, he was probably involved in the compilation of Alsnö Stadga, in which the peace legislation through the edsöre obtained its final version. Another scholar who had studied in Paris, Brynolf Algotsson, bishop of Skara (ca. 1248–1317, bishop 1278), appears to have been involved in the compilation of the later Västgöta Law. The law was compiled while he was bishop, but we cannot prove that he actually influenced the recording of the law. A meeting of the clergy in Skara in 1280 passed a series of decrees, which were incorporated into the law. Late medieval sources state that he had studied 18 years in Paris.8 That sounds very plausible, and in any circumstance he established, just as Andreas And had done, a college in Paris, Domus Scarensis, for students sent from the diocese. Even though Paris was the leading university within the theological discipline and therefore attracted a large number of students, Bologna surpassed it with regard to jurisprudence. The first information concerning a Scandinavian student relates to Anders Sunesen, who almost certainly studied canon law in Bologna.9 In the twelfth and early thirteenth century, few Scandinavians studied there, but later in the century, there was a continuous presence of Swedish and Danish students in particular. In his dissertation about Scandinavia and Bologna, Åke Sällström concludes that he had found only two Norwegian

8   Sven-Erik Pernler, Sveriges kyrkohistoria, 2. Hög- och senmedeltid (Trelleborg/ Stockholm 1999), pp. 49–51. 9   The Norwegian historian Tore Iversen claims to have found evidence of Norwegian students at Bologna already towards the end of the eleventh century. His documentation is a letter from Pope Gregor VII to King Olav Kyrre from 1078. In the letter, the pope asked the king to send young aristocratic sons to Italy to be trained in “holy and divine laws.” The Danish king Harald III also received the request in the same year. Unfortunately we have to reject Iversen’s intriguing idea that Norwegian students were among the pioneers at the Bologna law school. First, Anders Winroth’s research, which leads him to argue convincingly that the Bologna law school had not yet obtained an international reputation at the end of the eleventh century (Winroth, The Making), makes it seem improbable that Pope Gregor VII would bring Norwegians there. Another argument is derived from the papal letter itself, which states that the young men should receive training in holy and divine laws under the auspices of the Apostles Peter and Paul. (Iversen, “Jordeie,” pp. 85–86). But since those two apostles are the protective saints of Rome, it was undoubtedly in Rome that the young men should receive training.



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students in Bologna,10 but there might have been more, who do not appear in the surviving sources. Systematic records of students began only toward the end of the thirteenth century, and they provide a more nuanced picture of the students and their background. The number of Norwegians that Sällström found in the records does not appear to be representative, for several reasons. Sverre Bagge has created a list of all Norwegians and persons in Norwegian service who bore the title “magister” between 1200 and 1350.11 He found no fewer than 81 persons, and even that number appears to be too low, considering the haphazard transmission of sources. Furthermore, Sällström has not registered all Norwegians who studied in Bologna. For example, he does not mention Bjarne Lodinsson (ca. 1250–1311), who in the second half of the twelfth century was the chancellor of the Norwegian king. The Chronicle of Eric12 mentions that he had studied in Paris, but since he also carries the title “juris civilis professor,” he must have studied Roman law in Bologna, where he got his diploma in 1293.13 Obviously there was a need for highly educated people in Norway, in particular in the second half of the thirteenth century. The extensive legislative work that was carried out in the reign of Magnus Lawmender must have required an educated elite that could draw up and implement the laws. The study of law attracted students to Bologna. The university had huge faculties of canon and Roman law, and each faculty had its own administration and structures. Nevertheless, there was an overlap between the professors of each college, because many professors had a degree in both Roman and canon law.14 And it was not only the professors who were familiar with both legal systems, as expressed by García y García:

  Åke Sällström, Bologna och Norden, intill Avignonpåvedömets tid (Lund 1957), p. 270. 11   Sverre Bagge, “Norge,” M. Jokipii, ed., Universitetsbesöken i utlandet före 1660 (Jyväskylä 1981), pp. 143–147. 12   Sven-Bertil Jansson ed., Erikskrönikan (Stockholm 1986), pp. 140 and 229–230. Jansson does not comment on the fact that one could not become master of Roman law in Paris, and he does not explain where Lodinsson might otherwise have studied or taught, since his title of professor could indicate that. 13   Sunde, Audun Hugleiksson, p. 97. 14  Antonio García y García, “The Faculties of Law,” ed. Hilde de Ridder-Symoens, A History of the University in Europe I: Universities in the Middle Ages (Cambridge 2003), p. 399. 10

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chapter five None the less, in the Middle Ages it was inconceivable that anyone versed in canon law should not know civil law, and vice versa. Each faculty gave some training in both, and in addition many students studied civil as well as canon law.15

The close connection between the two legal systems means that we must recognize that, by the time they ended their studies in Bologna, students trained in one system must also have had an intrinsic knowledge of the other. We must therefore not be surprised if a scholar of canon law mastered the principles of Roman law, or the other way around. The University of Bologna had its golden age in the second half of the twelfth century, after which time the university lost its prominent position to the French schools in Orléans and Montpellier. Then the Scandinavian students began to study at the French schools instead of Bologna.16 But the study of law at Bologna retained much of its status and continued throughout the Middle Ages to be an important scholarly centre. Not only “fathers of the law” but also many other persons in the royal chancelleries or the chapters of the cathedrals carried the title “magister,” indicating that they had been trained at a far higher level than possible at the existing Scandinavian cathedral schools.17 The scholars we know of now constitute just the tip of the iceberg. An entire theologically and legally trained elite was integrated into the catholic, European intellectual circles. Their education and ideas inspired them to construct the society in their native countries s according to European principles. Several of these unknown persons may have been involved in compiling the different provincial laws. It means that even men who wrote laws or decrees, who are known not to have been trained abroad (such as Bjarne Mårdsson and Eskil of the Västgöta Law), may have trained scholars in their service to “hold the pen.”  Ibid., p. 402.  Vello Helk, “Danmark,” M. Jokipii ed., Universitetsbesöken i utlandet före 1660 (Jyväskylä 1981), p. 28. 17   The individual cathedral chapters were, after the Third Lateran Council, obliged to hire a teacher so that the students, who for the most part were aspiring priests, might receive the necessary schooling in Latin and theology. At the Fourth Lateran Council, chapters of the cathedrals were again admonished to hire at least two teachers, one to teach grammar (Latin), and the other to teach theology. But the aim of these schools was primarily to educate aspiring priests, and they could hardly offer a variety of scholarly knowledge that could compete with centres abroad. Conciliorum Oecumenicorum Decreta, “Concilium Lateranense III,” canon 18, p. 196, IV, canon 11, p. 216. 15 16

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THE PEACE IDEOLOGY We often forget that the word peace has two meanings. Most Europeans today define peace as the absence of war. This is a modern simplified definition of the word peace, which is the result of the fact that we live in a society governed by law. In the Middle Ages, another definition of the word peace dominated: order and law. Peace should guarantee a society’s internal order.1 In other words, peace meant legal protection of each individual and upholding of order or, more precisely, since the state was too weak to guarantee this, a regulation of strife. There was a close connection between canonical kinship and the concept of peace in the High Middle Ages. Christianity from the outset advanced a pacifistic ideology that is best expressed in the words of the Bible, “But what I tell you is this: Do not resist those who wrong you. If anyone slaps you on the right cheek, turn and offer him the other also.”2 The Church Father Augustine (354–430) described the peace ideology that medieval theologians followed. His De Civitate Dei depicts history through the fight of the city of God (Civitas Dei) against the earthly city (Civitas terrena).3 Originally, God created peace in the Garden of Eden as a natural condition, but with the fall of man, humankind lost this peace. Therefore, the natural aim of the Church was to recreate peace, an aim that influenced Church policy throughout most of the Middle Ages, even though this peace was, in the end, impossible to create on earth.4 Augustine presents peace as having an almost metaphysical character: The desire for peace is found in all people, but the haughty, who belonged to the earthly city, longed 1  Hans-Werner Goetz, “Gottesfriede und Gemeindebildung,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung. 105. Bd. (Vienna/Cologne 1988), p. 122. 2   Matt. 5:39. 3  It is difficult to translate the word civitas, as “city,” like the better-known Greek word polis, directly translated, means “town” or “city.” The Roman concept did not only mean city but covered a larger geographical area, which included the surrounding area. 4   Kurt Villads Jensen, “Bellum Iustum i 1200-tallets vesteuropæiske tænkning af kirkens fred,” Historisk Tidsskrift, vol. 93, ser. 1 (Copenhagen 1993), p. 39.

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for their own tyrannical peace, and not God’s. “This means that it [the haughty human being] hates the just peace of God, and loves its own peace of injustice. And yet it cannot help loving peace of some kind or other.”5 True peace, in contrast, created harmony and balance in society. Peace between mortal man and God is an ordered obedience, in faith, in subjection to an everlasting law; peace between men is an ordered agreement of mind with mind; the peace of a home is the ordered agreement among those who live together about giving and obeying orders; the peace of the Heavenly City is a perfectly ordered and perfectly harmonious fellowship in the enjoyment of God, and a mutual fellowship in God.6

Some of the notions Augustine used to describe the good society are peace, order, and justice. These idealistic terms were also used to describe the good ruler as model for his government and realm. Augustine was not the first to foster the concept of the good sovereign versus the bad; it can be found in the Old Testament as well as in antique philosophy.7 Again, Augustine’s interpretation became the foundation for the later philosophical and theological reflections about the duties of a prince. The ideal of peace, justice, and order (pax, iustitia et ordo) laid the foundation for reforms of the legal system that Charlemagne attempted to introduce. The capitularies issued to supplement the local laws emphasized that the weak groups in society, such as widows and the Church, should enjoy a special peace, and violators were fined. Furthermore, after his coronation and with the support of the Roman law and the Church in 802, Charlemagne succeeded to assure that all free men should swear fealty to the emperor, and swear to uphold justice by protecting the above-mentioned weak groups.8 It is difficult to say whether the oath or the peace proclamations had any real impact, or whether they were merely declarations of intention.9 Nevertheless,

 Augustine, City of God, book 19, ch. 12, p. 869.  Ibid., ch. 13, p. 870. 7  Sverre Bagge, Den politiske ideologi i kongespejlet (Bergen 1979), p. 222. 8   Fenger, Fejde og mandebod, pp. 247–251. D.C. Munro, Translations and Reprint from the Original Sources of European History, vol. 1 (Philadelphia 1900), § 2, pp. 16–17. 9   The English historian Timothy Reuter has demonstrated that the ordered conditions in the Carolingian empire was more a part of the panegyric rhetoric than a reality. Timothy Reuter, “Plunder and Tribute in the Carolingian Empire,” Transaction of the Royal Historical Society, 5 series, vol. 35 (London 1985), p. 91. 5 6



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several initiatives did influence the later peace movement, such as taking oaths and sanctification of weak social groups. To understand Charlemagne’s peace legislation, one should be aware that the Carolingians focused on canonical kinship,10 which was ideologically connected with the notion of peace. Charlemagne’s legislation was not the first legislation that contained peace legislation. Already the preamble to the oldest version of Pactus Legis Salicae (ca. 507–511) states, “it is agreed and resolved among the Franks and their nobility that they must make every attempt to prevent violence by striving for peace among themselves.”11 Traditionally, the law has been considered to be free from Christian or Roman influences.12 That position is no longer tenable,13 and therefore we must consider the law to be one of the first examples of the Christian peace ideology in a law code. Peace as a legal concept is also found in Rothair’s Edict from 643, the first and largest collection of Lombard law. The edict cites “scandalum,” meaning breaking the public peace, as a serious crime.14 The edict also considers breaking the peace of the Church to be a particularly serious crime.15 Even though the Christian West adhered to the ideology that preserving peace was the duty of the prince, reality was a far cry from the ideal. The prince was either too weak or had no interest in maintaining justice; or he lacked real princely power, as was the situation in Southern France at the end of the tenth century. Earlier research has concentrated on the peripheral areas after the fall of the Carolingian state and has concluded that they were without proficient princely power—the Capetians were only kings by name—and that anarchy and chaos was widespread. Earlier power and legal structures had collapsed and, in reality, local counts and owners of large estates, who had  A movement rooted in the early Middle Ages, which tried to introduce the provisions of incest for people related through their godparents. It was, however, a slow process, which only became a success in the eighth century. Gelting, “Marriage, Peace,” pp. 96–97. 11  Rivers, Law of the Salian, p. 39. “Placuit atque convenit inter Francos atque eorum proceribus, ut pro servandum inter se pacis stadium omnia incrementa ‹virtutum› rixarum resecare deberent.” § 1, Karl August Eckhardt ed., Pactus Legis Salicae (Hannover 1962), p. 12. 12  See a.o. Rivers, Law of the Salian, p. 4. 13   Murray, Germanic Kinship, pp. 116–117. 14   Drew, The Lombard Laws, “Rothair’s Edict,” ch. 8, p. 54, and ch. 39, p. 60. 15  Ibid., ch. 35, p. 59. 10

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their own strong military units, held power and enforced law. From this chaos, in around 1000, emerged the phenomena of feudalism and peace councils.16 But some historians have lately questioned this interpretation. They argue that the apparent huge changes at the millennium were actually not so big but, instead, constituted a continuous development. The actual break that occurred in the last decades of the tenth century, they claim, was due to a change in the construction of documents, as scribes gave up antiquated Carolingian composition styles. In other words, the change was found in the construction of documents and not in the change of social structures.17 Even though the decades around the millennium may not have been as turbulent as researchers have assumed, it does not change the fact that the peace of God movement originated in Southern France at that time. In this peripheral area of France, the power structures developed locally as the monarchical power was absent. Power was in the hands of counts, magnates, abbots, bishops, or other landowners, who controlled larger or smaller territories. One method the counts or magnates used to maintain their power or extend their territory was by plundering and destroying the estates of other landowners. This practice was particularly devastating for the peasants, whose crops and farmsteads burned down and whose cattle were killed or carried away. The clergy also suffered. In theory, monasteries and bishops did not participate in this warfare, but that did not prevent the warring parties from attacking the Church. Furthermore, plunder and arson meant that the Church’s profit from the tithe was miniscule.18 The destruction of crops and animals could have serious consequences not only for the

  Marc Bloch (La société feodale, 1939) and Georges Duby (La société aux XIe et XII siècles dans la règion mâconnaisem, 1953) became the ideological founders of the idea that the years around the millennium were a time of transformation. This concept has been upheld unchallenged and has been taken up lately been studied by Thomas Bisson, “The “Feudal Revolution” Past and present 142 (Oxford, 1994). R.I. Moore’s explanation of the emergence of the peace movements is close to that of Bisson. R.I. Moore, “Postscript: The Peace of God and the Social Revolution” 1992, p. 310f. 17  See, for example, Dominique Barthélemy, “Castles, Barons, and Vavassours in the Vendois and Neighboring Regions in the Eleventh and Twelfth Centuries,” ed. Thomas N. Bisson, Cultures of Power. Lordship, Status, and Process in Twelfth-Century Europe (Philadelphia 1995), p. 68. 18  Heinrich Hoffmann, Gottesfriede und Trauga Die (Schriften der Monumenta Germaniae historica) vol. XX. Deutsches Institut für Erforschung des Mittelalters (Stuttgart 1964), pp. 11–12. 16 e



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Church but also for society as a whole. Hunger reduced productivity and profits and damaged the authority of the rulers.19 The lack of a central authority did not necessarily imply that society ended in anarchy. Kim Esmark20 has shown that alternative models for conflict handling emerged in the county Anjou in the tenth to the twelfth centuries, and we must assess the peace councils from this viewpoint. The peace of God movement was born in Aquitaine in Southern France, in an area where new unstable power structures had led to precarious conditions for the clergy and peasants.21 The first oaths of peace were sworn in 975, and peace councils were held, with new swearing of oaths, through the following decades. The local bishops summoned the councils and were the driving force in the early peace movement. The procedure was simple: The assembled magnates and knights swore to keep the peace decrees that had been passed. At first, these decrees could vary from time to time, but over time they became more standardized. One swore not to attack unarmed clergy, pilgrims, traveling merchants, women, peasants, and their animals.22 The peace of God movement emerged in an area that lacked secular authorities to punish perjurers. That did not mean that the peace oath could be broken without consequences. Since a peace oath had been sworn to a bishop, a violation meant that the breaker of peace would be subject to ecclesiastical punishments—at first through penance and 19  Hans-Werner Goetz, “Protection of the Church, Defence of the Law, and Reform: On the Purpose and Character of the Peace of God. 989–1038,” in Thomas Head and Richard Landes, eds., The Peace of God. Social Violence and Religious Response in France around the Year 1000 (Ithaca and London 1992), pp. 264–265. Goetz’s very materialistic explanations for the emergence of the peace movement are debatable, because even though it emanated from concrete problems, it does not follow that the ideology behind it was simply a material mask. 20   Kim Esmark, De hellige døde og den sociale orden. Relikviekult, ritualisering og symbolsk magt. Anjou, 10.–12. århundrede (unpublished PhD diss., Roskilde 2002). Esmark demonstrates how rituals related to the local saint, and thereby often also to monasteries, were used to end conflicts and to emphasize new ties of friendship. 21   For the most recent presentation of research on the early peace movement, see Thomas Head and Richard Landes, eds., The Peace of God. Social Violence and Religious Response in France around the Year 1000 (Ithaca and London 1992). 22   Gradually the peace provisions were extended to include time and places. One swore not to shed blood from Wednesday at sunrise to Monday at sunset, during Advent, from Christmas until Epiphany, during the long fasting before Easter, on the Easter, and on other holidays. Bloodshed in the Church has been unacceptable since antiquity, and now the home also became sacred. The very stereotypical positioning of the peace stipulations was the result of a gradual development, and therefore they only reflect partly the early peace councils.

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then, if the offender continued, through banishment or excommunication. Just as important as the threat of ecclesiastical sanctions was collective pressure or public opinion. To be a perjurer stained your honor seriously, which might be fatal in a society where power and influence depended on honor and prestige. The reason for the success of the peace decrees was also the fact that the magnates and the Church had a joint interest in setting up rules for the use of power. This meant that the country was spared severe damages, which threatened the wealth and ultimately the life style of the aristocracy. But this regulation also allowed feuds and power struggles to occur, thereby upholding a central element in the culture of the aristocracy. As mentioned previously, Augustine had already written about peace, and he emphasized that the most important duty of the Christian prince was to protect the peace. This idea influenced the relationship between the Church and princes throughout the Middle Ages. Obviously, princes were not interested in promoting law and order only because of ecclesiastical prescription. One should also observe it from the other side: ecclesiastical ideology was useful for authorities who attempted to expand their power and authority within the legal sphere. The early God’s peace was based on agreements between armed groups and local bishops, but this characteristic vanished in the second half of the eleventh century, before it managed to spread throughout Christian Western-Europe. In the mid-eleventh century, princes promoted new peace initiatives, such as the land-peace in the German Empire. The land-peace was based on the same principles as the God’s peace, namely protection of unarmed people, places, and times against assaults in connection with feuds or other kinds of disturbance of private character. It is difficult to determine whether the early landpeace should be considered actual legislation or a contract between the king or emperor and his vassals or magnates. Scholars have traditionally considered them laws.23 The distinction between law and contract is not particularly pertinent, because neither German emperors nor other princes were able to legislate without the backing of the magnates, thus blurring the distinction between contract and law.

23   Joachim Gernhuber, Die Landesfriedensbewegung in Deutschland bis zum Mainzer Reichlandfrieden von 1235 (Bonn 1952), p. 103; and Åqvist, Frieden, p. 25, This interpretation has been opposed by a.o. Andersen, Rex Imperator.



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The ideology behind the peace legislation slowly gained a foothold in most areas of the secular legislation, either as an integrated part of the legislation or in specific land-peace agreements. The peace ideology became official Church policy too, which was manifested by their adoption at the three first Lateran councils, where they, together with the other decrees from the Third Lateran Council, ended in the Liber Extra.24 The more the idea of peace as an ideal spread, the more important it became in the consciousness. The God’s peace became synonymous with the peace that princes were required to uphold. In other words, breaking the peace would appear to be a double crime, since it was against both ecclesiastical and secular law.25 Assault and murder, of course, were not permissible according to either canon law or secular law, but the peace ideology led to a distinction depending on the circumstances, and breaking the peace was punished much more harshly than “ordinary” violence. Consequently, it is difficult to operate with a schematic division between ecclesiastical and secular peace, because it was not apparent in practice. The Church was under royal protection in areas with an efficient royal power, such as in Denmark.26 The concept that the law should be just was already present in Roman legislation. Since peace and justice were closely connected, the law was required to severely punish those with evil intentions, in order to ensure peace and justice for everyone. This idea of the function of the law was the foundation of one of Isidore of Seville texts and was generally acknowledged when it was incorporated into Gratian’s Decretum.27 The argument explaining the purpose of the law is also found in Scandinavia and is repeated in the preamble to the Law of Jutland:

24   The peace stipulations are found in Conciliorum Oecumenicorum Decreta, Concilium Lateranense I, canon 15, p. 169, Concilium Lateranense II, canon 11, p. 175; and Concilium Lateranense III, canons 21 and 22, p. 198. 25   Thomas Head and Richard Landes, “Introduction,” in Thomas Head and Richard Landes, eds., The Peace of God. Social Violence and Religious Response in France around the Year 1000 (Ithaca and London 1992), p. 8. 26   Fenger, Fejde og mandebod, p. 362. 27   Corpus Iuris Canonici, I, “Decretum Magistri Gratiani,” Dist. IV, 1. pars, C. I, p. 5. “Factae sunt autem leges, ut earum metu humana coherceatur audacia, tutaque sit inter improbos inocentia, et in ipsis improbis formidato supplicio refrenetur nocendi facultas.”

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chapter six Therefore shall the law be made for all men, that just men and the peaceful and the innocent may enjoy their peace, and unjust men and the evil obey that which is written in the law and, for that reason, not dare to carry out the evil which they have in mind . . . The law shall be honourable, just and tolerable.28

Also, the preamble of the Uppland Law states: “Law must be established and created for the guidance of the entire people, both rich and poor, and for the distinction between right and wrong.”29 In both cases, the definition of peace of the canon law was used as a foundation of the secular legislation. The importance of the peace ideology in Scandinavia is not confined to the two preambles but was a part of the terminology. The German philologist Klaus von See has analyzed the language of Nordic texts from the early and the High Middle Ages. He concludes that the use of the notion peace increases considerably throughout the period, and that the term in general progresses, in law codes as well as in literary texts, from being focused on the interest of individuals to being a more community-inspired and peace-ideological usage.30 This indicates that the peace ideology on which canonical kinship was based was generally accepted in Scandinavia. Peace has been a Christian ideal that has been of central importance in theology since the early Church. The peace ideology expanded into secular society, emphasizing the ideal of the prince as the creator of peace. The peace of God movement came into being in Southern France, an area characterized by anarchy, where a central power was nonexistent. The peace-councils led to the idea that certain times, places, and persons were sacrosanct, which later became a cornerstone in the secular legislation in the twelfth and thirteenth centuries.

28   F.J. Billeskov Jansen and P.M. Mitchell, eds., Anthology of Danish Literature (Carbondale 1971), p. 5. “Thu scal logh æftær allæ men gøræs. at rætæ men oc spakæ oc sacløsæ nutæ theræ spækæ. oc u rære men oc folæ ræthæs ther thær i loghæn ær scriuæt . . . Logh scal wæræ ærlig oc ræt.” Danmarks gamle Landskabslove, vol. II, JL. pp. 4–5, 7. 29   “Lagh skulu wæræ satt ok skipaþ almænni til styrsl baþi rikum ok fatökum. ok skiæl mellum ræt ok o ræt,” Schlyter, Corpus iuris, vol. III, UpL. Preafation, p. 7. 30   Klaus von See, Altnordische Rechtswörter. Philologische Studien zur Rechtsauffassung und Rechtsgesinnung der Germanen (Tübingen 1964), especielly ch. 4.

chapter seven

THE LEGISLATOR AND THE LAW The king as legislator—The ideological construction Even though I have focused on the connection between canonical kinship, the peace ideology, and the provincial laws, another important issue is the background for creating legislation. By this I mean the ideological construction of the king as legislator, which had its roots in antiquity but was still alive in the High Middle Ages. When panegyrics had to praise medieval princes, the recurrent theme was to praise the prince as lawgiver and his ability to uphold justice and peace in the realm. The focus on the king as lawgiver had its roots partly in the law codes of Roman emperors, in particular Constantine and Theodosius. After the reappearance of the Digest, Justinian too was considered to be one of the great legislators, a reputation other kings would have. Veneration of the king as legislator also had a theological aspect, since God, through the ten commands, had appeared as legislator. It was the duty of the Christian prince to adjust legislation to the teaching of the Church.1 The English legal historian Patrick Wormald describes the exemplars of the codified laws: Foremost among these was the example of God’s holy people. A second was the general sense that that other people of destiny, the Romans, specialized in the art of law as that of war. Third was awareness that an early medieval people were identified by its law. Last, pulling all four together was the growing feeling that royal law should look like the Learned Laws of God’s Church and Rome’s Empire.2

The focus on the king as legislator, according to Wormald and the historian Wallace-Hadrill, played a role for the early Anglo-Saxon legislation, and maybe also for legislation in the kingdoms that appeared 1   When we talk about the king as lawmaker in this context, it is an ideological construction that is in the centre, because not many medieval lords could legislate autocratically, without support from at least parts of the secular and ecclesiastical aristocracy. 2  Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century, vol. 1. Legislation and its Limits (Oxford 1999), p. 143.

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in the West after the weakening and collapse of the West Roman Empire. The Danish historian Niels Lund concludes, with regard to the legislation, the problem was not so much what the king did for or with the law. It was what the law did for him. A law promoted his status as king, because a Christian and civilized country had to be ruled according to law, a codified law, and a Christian king had to be able to display such a law. It was almost a symbol of status. What was written in it was less important.3

In other words, the earlier legislation, at least among Anglo-Saxons, did not have to reflect the actual conditions that the law had to regulate; it could have been written as a means of propaganda. One has to be cautious in accepting all legislation as an expression of a sincere wish to regulate through legislation. Nonetheless, veneration of the king as legislator has been important for the development of the legislation, since it could only have been in a formative phase that laws without practical application could have been issued. When an administrative bureaucracy came into existence, the desire for increased control through legislation must have emerged. The tradition of focusing on the lawgiver continued uninterrupted from antiquity and reached a peak under the Carolingians and the later dynasties, the Ottonians and the Staufers. His contemporaries and posterity particularly emphasized Charlemagne’s legislation as a classic example of the work of a great legislator, naming him of the greatest legislators among the Roman emperors. The panegyric poetry not only mentions legislation as important for the prince but also prescribes that he should be educated in the liberal arts, litteratus; not least, he should be the teacher and example for his court and subjects. To have a well-educated king guaranteed justice and peace, whereas an uneducated king was equated with a crowned donkey.4 The strong emphasis on the prince’s personal abilities is obvious in WallaceHadrill’s description of the requirements of Charles the Bold as a 3  Niels Lund, “Anmeldelse Annette Hoff, Lov og landskab. Landskabslovenes bidrag til forståelsen af landbrugs- og landskabsudviklingen i Danmark ca. 950–1250. Aarhus 1997,” Historisk Tidsskrift, vol. 98, serie 2 (Copenhagen 1998), pp. 391–392. 4   J.M. Wallace-Hadrill, Early Germanic Kingship in England and on the Continent (Oxford 1971), pp. 101–106 and 136–137. This image of the uneducated ruler was later used by a.o. William of Malmesbury and John of Salisbury. Mia Münster-Swendsen, Masters and Paragons. Learning, Power, and the Formation of a European Academic Culture c. 900–1230 (unpublished PhD diss. Copenhagen 2004), p. 472.



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prince: “He had been required to be a Solomon in wisdom, a warrior like David, a champion of religion like Constantine, an observer of law like Theodosius, a father of his people like Charlemagne.”5 Another example of the importance of classical legal thought at the court of the German emperors is Godfrey of Viterbo’s panegyric to Frederick Barbarossa. He chose not to describe the emperor as a great war lord, instead describing Barbarossa as the expression of the living law, because the emperor personally had the power and ability to give, create, and abolish legislation.6 It is possible that the panegyrists who praised the good king as being a legislator were identical with the legal scholars who enabled the king to carry out this function. The prologue to the Lex Baiuvariorum (744–48) suggests this by stating, “Moses from the tribe of Hebrews first elucidated the divine laws into writing.”7 Then it mentions the first known legislators of the Egyptians, Greek, Athenians, and the Romans. “Gradually, however, the Romans repealed the old laws because of their antiquity and neglect, but mentioning them [here] seems necessary, although they are no longer in use. New laws began with Emperor Constantine and the rest of his successors.”8 It may appear strange to mention a multitude of laws and legislators whose laws were no longer in use, but the reason must be to show that laws and legislation can be found from the beginning of time; also to show that laws changed and were not static. At the same time, it is emphasized that he duty of a good prince is to ensure that the law is good and appropriate to the present time. Having mentioned the laws of the Roman emperors, the prologue turns to the legislation of Frankish princes and ends with Dagobert (king 629–39): “The best laws were recorded, and he [Dagobert] gave each tribe a written law, which still exists today.”9 Throughout the prologue, Dagobert’s legislation is described as the culmination of a long line of excellent legislators, starting with Moses, who through the will and guidance of God was the first legislator in history.

  J.M. Wallace-Hadrill, The Frankish Church (Oxford 1983), p. 257.   Kenneth Pennington, The Prince and the Law 1200–1600. Sovereignty and Rights in the Western Legal Tradition (Los Angeles 1993), pp. 6–7. 7   John Rivers, ed. and trans., Law of the Alamans and Bavarians (Philadelphia 1977), p. 109. 8   Ibid., p. 109. 9   Ibid., p. 110. 5 6

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The prologue was not a product of Carolingian legal experts, however. It was almost verbally a transcript of Isidore of Seville’s (560–636) “Etymologiae,”10 which was extremely important for medieval jurisprudence (Isidore’s view of the function of the law was incorporated into Gratian’s Decretum). Not only did Isidore give Moses a central place in legal history, but his words about the function of the law was seen as the foundation of all Christian legislation. Two Swedish provincial laws exemplify the influence of Isidore, in particular his focus on the importance of Moses on view about laws and legislation. The prologue of the Södermanna Law is a slightly revised version of that of the Uppland Law, which states: God instituted the first law and sent it to his people through Moses, who was the first lawgiver of his people. Similarly the monarch of the Svear and Goths, Birger, son of King Magnus sends this book to those who live between the sea and Sagår and Ödmården.11

The prologue provides two important in formations. First, it inscribes Birger Magnusson in a long tradition of legislators; second, it gives the legislation a divine appearance, since God was the first legislator and King Birger follows this tradition. The two prologues provide a glimpse of how important the rhetoric about the king as legislator was, even in the Scandinavian kingdoms. This rhetoric is found everywhere at the time of the provincial laws, as I will demonstrate later. When comparing the prologue of the Uppland Law to that of the Law of Jutland, it is interesting to observe that Isidore’s “Etymologiae” or a prologue to an older law from the Frankish territory, inspired the Uppland Law. The two Nordic prologues have similarities, such as defining the function of the law based on Isidore’s ideal that Gratian’s Decretum repeated. The basic ideology of both prologues was based on the same model. Nevertheless, the author of the prologue to the Law of Jutland started his introduction with the catchphrase from the Roman law: “Land must be settled through the rule of law,” whereas 10  San Isidoro de Sevilla, Etimologías, eds. J.O. Reta, M.-A.M. Casquero, and M.C. Diaz y Diaz (Madrid 1982), vol. 1. Liber V, ch. 1 and 3, pp. 508 and 510. For an introduction to Isidore, and Etymologiae, see Ernest Brehaut, An Encyclopedist of the Dark Ages—Isidore of Seville (New York 1912), pp. 166–167. 11   “Gvþ siælwær skipapi fyrstu lagh. ok sændi sinu folki mæþ moyses. ær fyrsti laghmaþær war. fore hans folki. Swa sændir ok en waldughær kunungær sweæ oc giötæ. Byrghir som magnusæ. kununx. allum þem ær byggiæ mellum haffs ok sæw ströms ok öþmorþæ bok þessæ mæþ wigers flokkum. ok laghum. upplænzkum.” Schlyter, Corpus iuris, vol. III, UpL. Praefatio, p. 6.



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the author of the Uppland Law introduced his work with a formula known from other law codes, stating the divine origin of the law. One should probably not overemphasize the difference between the two prologues, but it is remarkable that they both are based on the same principles about the function of the law and both place the laws within a scholarly European context with their introductory words, and then later mention the specific national circumstances. The close connection between the legislator and the Christian tradition is most clearly manifested in the Norwegian history of the legislation of Saint Olav. Even though Saint Olav’s involvement with the laws may only have been a myth, it still had a special power, since a saintly king, whose acts would be pleasant to God, gave it. The Danish expression King Valdemar’s Laws did not have the same divine aura, a term commonly used to describe the provincial laws. The notion did have a symbolic power, however, giving the laws at least an antique aura, and it also produced the memory of a great king, whose legislation reflected his prominence. And the myth of the good legislator was tenacious: from 1282 until the Danish Law of 1683, the documents use the expression “King Valdemar’s Laws.”12 Another Danish myth of a great legislator relates to Saxo’s history about Peace-Frothi’s laws. Peace-Frothi’s mythical rule was a kind of parallel to Augustus’ “Pax Romana.” Like Augustus, Frothi supposedly lived at the time of the birth of Jesus and successfully turned a long period of unrest into a stable epoch of peace. Here one may spot the divine relation: Frothi and his kingdom shared the great peace that prophesized the arrival of Christ. Saxo praises Frothi both as a prince of peace and as a great legislator, and the divine inspiration is therefore evident. Frothi’s legislation covered a number of matters. Within the stipulations concerning marriage, the influence of canon law is particularly evident—for example, regarding the stipulation that free accord between the parties and consensus were the only requirements for entering marriage.13 Saxo presented Frothi as both a prince   Gelting, “Skånske Lov,” p. 51.   “Arbitrariam feminis nubendi potestatem indulsit, ne qua tori coactio fieret. Itaque lege cavit, ut iis in matrimonium cederent, quibus inconsulto patre nupsissent. At si libera consensisset in servum, eius condicionem æquaret libertatisque beneficio spoliata aervilis fortunæ statum indueret. Maribus quoque, quamcumque primitus cognovissent ducendi legem inflixit.” Saxo, Gesta Danorum, 5:5:3, p. 128. (“He therefore kindly permitted women their own choice of partner in order to avoid compulsory matches. He ensured that they should be legally married to any they had wedded 12 13

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of peace and legislator, which again demonstrates that, according to Saxo’s mental understanding, the ideal king was a prince of peace and a legislator. There also existed a moral obligation to legislate. Augustine created the ideal that a Christian prince protected peace and justice. This ideal meant that each individual abstained from revenge and taking the law in his own hands and instead left punishment to the prince. Justice was ensured through the obligation to take matters to court and reconcile the parties. Of course, it was not possible for the prince to take action without a law. Therefore, in the High Middle Ages a definition of the good prince and his antithesis, the tyrant, was advanced on the basis of the Augustine’s writings, most prominently by the theologian John of Salisbury in his “Policraticus” from 1159. He considered the difference between the good prince and the tyrant to be that the former ruled by law and was subject to it, whereas the tyrant ignored the law to his own advantage.14 “The Prince defends the Laws and the freedom of the people, but the tyrant thinks he has done nothing unless he destroys the laws and brings the people into slavery.”15 These ideas were very widespread among scholars in the High Middle Ages and contributed to the contemporary image of the prince. Torfinn Tobiassen has demonstrated that these thoughts influenced the charter that Magnus Erlingson issued at his coronation.16 The above-mentioned examples demonstrate that the portrayal of the king as legislator is important because it reveals the ideological and symbolic background of the legislation activities, not only the practical circumstances. Legal historians have often been inclined to consider legislation as a practical tool of governing and have, in this way, ignored the function of the law in a broader context. Laws are not

without consulting their fathers. On the other hand, if a free woman united herself to a slave, they should be of equal condition; she must adopt servile status and loose the privilege of liberty. Men too were forced by law to marry women they had previously seduced.” Saxo Grammaticus, The History of the Danes, Book I–IX, ed. Hilda Ellis Davidson, trans. Peter Fisher (Cambridge 1998), p. 143). 14   John van Engen, “Sacred Sanctions for Lordship,” in Thomas Bisson ed., Cultures of Power. Lordship, Status, and Process in Twelfth-Century Europe (Philadelphia 1995), p. 225. 15   Gerd Tellenbach, Church, State and Christian Society at the Time of the Investiture Contest (Oxford 1966), p. 14. 16  Tobiassen, “Tronfølgelov.” It is to the credit of Tobiassen that already in 1964 he pointed out the necessity of reading Scandinavian documents in the light of the general development of European scholarship in the twelfth century.



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always passed in order to meet an actual demand; they can also have the goal of glorifying the king as legislator. The king’s power to legislate The extent of the royal right to legislate in Scandinavia in the High Middle Ages recurs constantly in the research on provincial laws. It is argued, on the one hand, that the king had extensive powers to legislate but also, on the other, that the power of the king to legislate on his own hand was virtually nonexistent. Several elements affected the king’s relationship to legislation, such as legislative power and competence to judge. The king might have been the supreme judge but might have lacked the power to legislate. In theory, the king may have had the power to pass judgment but the situation may have been more complex in practice. For example, he may have had to share the position of supreme judge with a group of magnates, who controlled the provincial thing. The situation might also differ when speaking of judging according to provincial laws, that were issued for a single province, or royal decrees, which affected the whole nation. Narrative sources that describe conditions in Norway and Denmark—such as Saxo or Swein Aggesen’s histories of Denmark, chronicles, royal sagas, and saint’s lives—often portray kings as legislators in both the present and the past. This leads us to suspect that, at least in Denmark and Norway, there existed a perception that the king personally was in charge of the legislative power. That may be a literary phenomenon, however, and more an expression of an ideal than of reality. According to Ole Fenger, it is anachronistic to speak of royal legislation in the early Middle Ages. He argues that neither Charlemagne nor Saint Cnut Rex, both of whom were known as legislators according to contemporary historical writings, legislated single-handedly but, instead, administered the laws of the Church and the existing customary law.17 It is not quite clear what Fenger had in mind. Which custom would the kings administer, and how could they enforce the laws of the Church without adapting the remaining legal regulations to the doctrines of the Church? Fenger’s opinion about royal legislative power is even more confusing in his book Fejde og mandebod, where 17   Fenger, Gammeldansk ret: Dansk rets historie i oldtid og middelalder (Viborg 1983), pp. 76–78.

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he concludes on the basis of the Saxo’s statement concerning Saint Cnut Rex as legislator that “one has to understand these statements as expressions of a genuine royal legislation that benefited the Church as well as the Crown.”18 The confusion even becomes greater when Fenger discusses the existence of Cnut the Great’s secular and ecclesiastical laws.19 If Cnut’s laws were royal, why would that not be the case with the capitularies of Charlemagne? Fenger proceeds by stating that the largest part of Cnut’s legislation was actually the endeavor of the Church20 and that Cnut was reduced to being a tool of the Church. Fenger’s interpretation of the competence of the king as legislator is somewhat confusing: on one hand, he had none; on the other hand, the legislation was an ideology that the Crown and the Church shared. Fenger does not explain why the Church was the initiator, if the law was an expression of a shared interest. Aksel E. Christensen’s viewpoints are more unequivocal than Fenger’s. Based on a statement in Cnut the VI’s Ordinance on Manslaughter from 1200, he tries to explain the function of the king as legislator. In principle, when the king arbitrarily has issued the law, then he has acted as legislator as a result of his position, his ministry that God has bestowed on him with the appended authority (auctoritas). Furthermore, the king claims that it is his prerogative (potestas) to “give and change laws” (leges condere vel mutare).21

At the same time, he emphasizes that the Law of Scania reveals discrepancies between what the kings wanted the law to be and how the law was in reality. Furthermore, he sees the introduction to the Law of Jutland, which states that “the king gives and the province accepts the law,” as a sign that the wording of the decree concerning the power of the king was an expression of an ideal more than an accurate statement of the political practice. According to Christensen, the king was able to legislate, in the end, only with the acceptance of the provincial thing.22

  Fenger, Fejde og mandebod, p. 362.   Ibid., pp. 285–92. 20   Ibid., p. 293. 21  Aksel E. Christensen, Ret og magt i dansk middelalder (Copenhagen 1978), p. 31. 22   Ibid., pp. 29–31. 18 19



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When Aksel E. Christensen uses both the Ordinance on Manslaughter and the provincial laws to create an understanding of the legislative competence of the king, he does not explain the difference between the two kinds of laws. The Swedish legal historian Gabriela Bjarne Larsson has noted the existence of a distinct difference between ordinances and provincial laws. The king issued ordinances (called retterbøder in Norwegian or stadger in Swedish), and his successor was required, in principle, to renew them in order to uphold their force of law—a practice that soon disappeared. Examples of royal decrees are the Swedish Edsøre, the Ordinance of Ordeal by Hot Iron, the Ordinance on Manslaughter for Scania, and Haakon Haakonson’s Ordinance on Manslaughter. Changes or additions to the provincial laws involved a much more difficult process, which began at the provincial thing and might involve a revision of the law.23 This may explain why the Scandinavians operated with both provincial laws and ordinances and why apparently there was no conflict between the practices of the two types of legislation.24 The distinction between ordinances and provincial laws is important. The king could legislate either directly through ordinances or indirectly through the provincial laws. He could legislate without having to challenge the provincial thing and the provincial laws. Of course he could still have a direct impact on the content of provincial laws, but ordinances gave him another option. Direct royal legislation developed earlier in Norway and Denmark than in Sweden. The oldest Danish example is the previously mentioned Ordinance on Manslaughter from 1200, but statements in literary sources demonstrate that ordinances existed earlier. However, the lack of documents makes it difficult to determine the extent to which the king could legislate single-handedly; how reliant was he on support from the magnates? In Norway, the national assembly would issue legislation as early as the 1150s, and the king legislated throughout the twelfth and thirteenth centuries with the support of “good men” or magnates who attended the meetings. Knut Helle has argued that the

23   Gabriella Bjarne Larsson, Stadgelagstiftning i senmedeltidens Sverige (Lund 1994), pp. 1–21. 24  Helle Vogt, “The King’s Power to Legislate in Twelfth and Thirteenth Century Denmark,” in Per Andersen and Mia Münster-Swendsen, eds., Law and Power in the Middle Ages (Copenhagen 2008), pp. 1–10.

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king and the magnates already at an early time obtained the real legislative power in Denmark and Norway, whereas the acceptance of the provincial thing was a formality.25 The situation in Sweden was different. Before the time of Birger Earl, no traces of royal interference in the legislation can be found. From the mid-thirteenth century, the king issued a large number of ordinances, and this trend continued into the fifteenth century, interrupted only by periods with weak rulers who had great difficulty retaining power.26 Probably, Swedish kings found it difficult to become legislators because the nation was established so late. Swedish kings did not hold suzerainty over the whole nation even late in the twelfth century; instead they operated from regional power bases. In conclusion, the royal authority to legislate depended on the power of the individual king. A strong king may have had considerable legislative power vis-à-vis the provincial laws, even though the provincial things officially had to accept changes. In order to oppose the will of a strong king, it had to be a matter of principal, such as that an ordinance violated canon law. If the king, in contrast, was weak and did not have a well-developed network, he could not execute sanctions against magnates who opposed his legislation.

25  Helle, Konge og gode menn, p. 254. Thomas Riis, Les institutions politiques centrales du Danemark 1100–1332 (Odense 1977), pp. 270–282. 26   Åqvist, Kungen och rätten.

chapter eight

THE APPLICATION OF THE PROVINCIAL LAWS The functions of the laws—Ideology or practice? How would one work with law codes that include such different types as the Nordic provincial laws? One must always recognize the problem of differences in content and construction. Even when examining just a few themes within the laws, it is difficult to identify all the laws that might regulate those subjects. Or, the regulations can vary so widely that it is difficult to identify structures. Furthermore, one must observe the purpose of the laws and that which they were designed to regulate. Even though this examination aims to study the ideology of the laws more than their application and meaning (which is difficult to study, as legal usage is lacking), it is still relevant to ask what was the purpose of the individual laws. If you follow the theory that the known provincial laws were written with the mediation of the king or at least with approval by the Crown, the next question inevitably is what was the function of the laws; and what the aim of their being recorded? Is it mandatory to imagine that the law codes had a practical function? Or were the provincial laws ideological products without relation to reality? There have been many answers to these questions. Ole Fenger and David Gaunt have, based on Danish and Norwegian laws respectively, pointed out that the development of the system of fines meant that an abyss emerged between the decrees of the law and daily practice.1 In contrast, Elsa Sjöholm and Per Norseng claim that the aim of the law codes certainly was practical. They argue that laws were not likely to be codified unless their application was of importance.2 But is it possible to distinguish between ideology and practice 1   Fenger, Fejde og mandebod, pp. 360, 386, and 394; and Gaunt, Familijeliv, pp. 203–215. Gaunt is of the opinion that there was an obvious ideological aim with being fined and receiving wergeld according to the seven canonical degrees, because even though it was unrealistic to carry out, the rules aimed to support and strengthen the control of the relatives with each other. 2   Sjöholm, Sveriges medeltidslagar, p. 27; and Norseng, “Lovmaterialet,” p. 69.

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that is imbedded in the legislation? Torben Vestergaard describes this problem straightforwardly in his dissertation from 1979. It should be kept in mind that such code does not show us the factual social order as it was at a certain point in time. It tells us the rules of what the social order ought to be like, and gives access to a specific conception of what the social order was like.3

Vestergaard actually points out the real danger of drawing legalistic fallacies,4 which is problematic when studying source material such as the provincial laws: the lack of other sources about the order of society makes it extremely difficult to establish an opinion about the practical importance and function of the laws. In the end, it is pointless to try to differentiate between ideology and practical use of the laws, since the ideology and legal thinking they reflect may easily have infected the legal understanding, even though the individual lawsuit may not always follow the intention of the law.5 The meaning of the provincial laws—whether ideological or practical—depended on whether the decrees reached larger segments of the population. It is very likely that those in power, both secular and spiritual, were interested to integrate the ideology that the laws expressed into the collective consciousness, because to do so would strengthen their position in relation to other groups that were also striving to increase their influence. Such groups probably attempted to propagate not only the legal command of canonical kinship but also the image of the king as the supreme ruler of the secular realm and the Church as ruler over souls and the afterlife. Hierarchical thinking was important for upholding the power base of both Crown and Church. One of the main theses in Carsten Breengaard’s dissertation from 1982 is that the Danish church throughout the eleventh and twelfth centuries promoted an ideological fortification of the Crown, manifested in the canonization of Saint Cnut Rex and later culminating in the Church feast in Ringsted in 1170. According to Breengaard, the explanation 3  Torben A. Vestergaard, Social Structure of the Medieval North and the Ideology of External Relations. A Fieldwork in a twelfth Century Norwegian Law Code, Gulaþingslög, with Special Attention to Kinship and Marriage (Moesgaard 1979), p. 5. 4   Legalistic fallacies are drawn when a legal rule is described as reality. 5   One of the earliest examples of Scandinavian legal practice is found in Norway in 1329, where a case about the intention behind a death was brought up at the Gulathing. The case was evident according to The Law of the Realm: when a killing was unintentional the defendant should pay a ¼ of the wergeld, but instead the lagman chose to acquit the defendant. Jørn Ø. Sunde, Speculum legale—Rettspegelen. Ein introduksjon til den norske rettskulturen si historie i eit europeisk perspektiv (Bergen 2005).



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for the endeavors of the Church was that both Crown and Church had a weak position in society. In particular, the position of the Church was fragile, when the country was ravaged by succession disputes and strife. Therefore, the Church saw a strong and unassailable Crown as its best protector.6 Even though Breengaard probably exaggerates the weakness of the Church by diminishing the importance of salvation, it is still a fertile viewpoint that the Church and the Crown had identical interests in establishing a joint ideological foundation that might strengthen their positions within the social as well as the cultural sphere. If the ideology expressed in laws was to take root in the local societies, the laws had to be designed so that they did not seem too alien in relation to customary practice. I have previously argued that the customary practices were not static but were in constant flux, which means that one should not necessarily imagine that peasants were ultra conservative and that they rejected all innovation. Nonetheless, there was no reason to abolish existing legal practice; it often probably could accommodate the new ideas if they were not radically opposed to the commands of the Church or the legal order that the king wanted to introduce. This accommodation between ideology and customary practices may explain the apparent paradox that all Scandinavian provincial laws came into existence through the mediation of persons who belonged to the intellectual elite and, therefore, shared a similar social ideology. Offhand, one might expect them to draw up almost identical law codes, but this far from the fact. There must also have been limits to how dramatically laws could be shaped to conform to the canonical kinship principle or other scholarly ideals, either because they met local opposition7 or because the author was not particularly interested in it, thus reflecting a varying degree of their presence in the laws.

6  Carsten Breengaard, Muren om Israels hus. Regnum og Sacerdotium i Danmark 1050–1170 (Copenhagen 1988). 7  An example is the stipulation about frankalmoins at the death bed in the Older Västgöta law, which stipulated that “On the day of death you may not according to the law give away anything from the inheritance unless the heir agrees. Learned men say that you do not have the right to say no according to God’s law” (“A dözfdæghi ma ikki fra aruæ giuæ at lagmæli. num arvi. quædær fialvær ia viþr. fva figiæ. lærþir mæn at eig ma ne uid kvæþæ mæþ gufz ræt”). Schlyter, Corpus iuris, vol. I, VgL1, Arfþær, p. 27. This decree respects the local concept of law, but it is also made obvious that it is against God’s will if the heir opposes.

PART TWO

THE FUNCTION OF CANONICAL KINSHIP IN THE PROVINCIAL LAWS

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THE FUNCTION OF KINSHIP IN LEGAL DISPUTES Structure and context Canonical kinship doubtless had a wide-ranging legal function in provincial law, but the very fact that it was canonical makes it unlikely that it predated the laws. Clauses in the laws show that the legal function of canonical kinship can be separated into two main categories: the family as the legal entity as far as third parties are concerned; and the relatives’ mutual rights and obligations to one another. Using the term legal entity in association with the canonical kinship group’s function in the provincial laws may seem a strange choice, one that needs more in-depth explanation. Legal entity was not a recognized concept in the Middle Ages, so is an anachronism when used to refer to legal matters. The provincial laws do not employ an equivalent concept that can be used as a generic term for legal entity or legal capacity (which can be defined as the capacity to be the entitled or obliged subject in legal matters). No such definition is used in the provincial laws, whose legal language seems not to distinguish between the obligations and rights of canonical kinship in relation to third parties and those between family members. Perhaps we should not use such a distinction and should instead talk in overarching terms about the role of canonical kinship within the legal system. However, this choice is problematic, as the types of legal cases in which canonical kinship was invoked appear to have had different purposes. The role of kinship vis-à-vis third parties was subject to the legal system, as it consisted of taking an oath or paying a fine. Kin rights and obligations to each other were primarily a matter of regulating the distribution of land and other assets, with the dual purpose of guaranteeing that the land remain in the kin group and preventing conflicts that may arise from the allocation of resources. This overarching distinction means that legal entity plays a useful role as an analytical concept. When explaining medieval legal systems or conceptions of law, it is not necessarily helpful to use the terminology of the period, if appropriate words exist at all, because these concepts

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require explanation using the legal language with which we are familiar in order to be understood. It can also be argued that the difference between the medieval and modern uses of the concept of legal entity is not as significant as one might think. Although Nordic legal language in the Middle Ages did not have an explicit concept of legal entity, it does appear in canonical law in the sense that churches and convents acted as legal entities, even though they were run collectively and no single person or group of people owned the church estate. Nevertheless, clerical institutions were able to act as legal entities vis-à-vis third parties and were entitled to operate under different rules internally and externally. As a result, in cases concerning collective payment and receipt of wergeld, the kinship group acted as a legal entity vis-à-vis a third party. The same was true of cases which prescribed that the members of the kin group should provide proof, act as a tribunal, or, because of their kin connection, be exempted from complying with the ombudsman’s call to take part in the persecution and capture of criminals. Similarly, in certain cases they were also able to circumvent the ban on aiding criminals. The kin’s rights and obligations towards one another are illustrated clearly in cases dealing with property transactions, especially in relation to the sale or distribution of an estate or endowments, and also in rules regarding marriage. In other words, Aksel E. Christensen is not right when he asserts that “the kin group as legal entity seems almost to have disappeared in the provincial laws.”1 The following section will address several of the areas in which canonical kinship was important in provincial law, including such widely different areas as collective wergeld payments and fledføring. The relationship between them is not obvious at first glance, but when one looks more closely at how the rules are designed, it becomes apparent that, despite their great differences, there is nevertheless one important common denominator: canonical kinship. In many areas, the rules were devised and amended in response to indirect demands that resulted from the canonical manner of defining kinship. The influence on the law and its rules was direct in terms of a fixed method for defining kinship under which everyone is related to a certain degree, thereby negating any debate about who was one’s closest relations.

1   He neglects to define precisely what is meant by legal entity, but he probably means a legal unit. Christensen, Ret og magt, p. 14.



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This also precluded disputes about who should inherit, or in any other way have first right to, the resources within the kinship group—as expressed, for example, through the rules about inheritance rights and fledføring. In addition, in cases of collective responsibility associated with the payment of wergeld, the individual relative’s duty depended on the nature of his relationship to the killer—the closer the kinship, the greater the responsibility. The influence was also indirect in terms of the moral demands placed by kinship, which had a longer-term peace-keeping effect. The legal and moral duty to help a relative with the payment of wergeld must have acted as an incentive for families to keep their unruly and violent members under control. However, sometimes the moral responsibility to help one’s relatives could place both legislators and relatives in a dilemma, as illustrated by the example from the Norwegian rules about the pursuit and persecution of offenders. If the criminal was your relative, did you follow your loyalty to the kinsman or to society?2 The different rules for property transactions also had a peace-making function, whether they had to do with a sale or death. They prevented conflicts between relatives and ensured the economic basis for a close family unit by preventing the uncontrollable transfer of assets to a third party outside of the kin group. Similarly, the marriage doctrine sought to prevent violence, which ran counter to the ideals of peace and love. At the same time, however, prevailing moral norms meant that marriage without the family’s approval was frowned upon. Also essential to canonical kinship was the incest doctrine, whose purpose was to extend the kin group, and therefore the mutual love and accompanying moral responsibility, to as large a group as possible. These commonalities indicate that the rules in the provincial laws, in a range of areas, were influenced and shaped by the social consequences of canonical kinship. Clearly, the new doctrine of canonical kinship was wide-ranging and touched on virtually every aspect of life. By focusing on just a single area—for example, property transactions—the clarity and richness of detail would undoubtedly have been enhanced, but the full legal and ideological significance of the

2   See further info about this below in the section “The function of kinship in legal disputes.”

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t­ ransition from choice- and alliance-based affiliations to canonical kinship would have been less obvious. The kin’s board The most obvious expression of the kin group’s legal function is found in the Law of Jutland Kin’s board institution3 (from the old Danish kin or kyn, meaning kinship). The kin’s board comprised 12 members selected from within the canonical kinship group. All members had to be related within the first three degrees and reside within the syssel (legal district) in which the case was raised.4 The defendant would nominate the board’s members, although the other party had the right to object to up to three of them—and, in the case of aggravating circumstances, he had the right to have a further three replaced.5 The kin’s board dealt with all cases concerning land, except for Church land, which was not subject to the same rules.6 Thord’s Articles show, however, that the use of the kin’s board was more complicated than its creators evidently believed it would be. First, finding 12 male relatives of full legal authority within one district was obviously not always that easy. This may explain why Thord’s Articles expanded the circle to include relatives up to the fourth degree. This, of course, can also be seen as recognition of the fact that the entire canonical kinship group ought to play a part in the judicial process. The same article stresses another problem, namely, the difficult legal position of those who did not have relatives within the district and were, consequently, unable to invoke a kin’s board. In such cases the defendant had to swear “that he does not have relatives in the district, and then he has to identify [select] 12 men with full legal rights”7 to take the place of the relatives. This illustrates the consequences of canonical kinship on mobility: the greater the legal influence of the 3   The designation “kyni næfna” may well also be found in the Church Law of Scania, but it is only used in one highly specific situation, namely swearing how the implicated parties were related. Danmarks gamle Landskabslove, vol. I, 2, SkKl. text 1, ch. 7, p. 840. 4   “Kyns næfvænd thæt ær [tolf ] mæn innæn thrithi byrth oc innæn sysæl.” Ibid., vol. II, JL. text 1, book 1, ch. 1, p. 20. 5   Ibid., pp. 20–21. 6   Ibid., book 1, ch. 38, p. 91. 7   “At han haffuer æy frender j then egn tha ma han taghe til sigh xij lawfeste men.” Ibid., supplement to vol. IV, 1961. “Thords Artikler,” text 2, ch. 63, p. 122.



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family on the individual, the more problematic it was to move away from one’s native heath. This may explain at least in part why canonical kinship never assumed the same importance in market towns as it did in the provincial laws. The kin’s board is an example of the legislator’s marked interest in strengthening the kin group’s jurisdiction over its members. It seems probable8 that the Law of Jutland was originally intended to be made national. As such, it is a significant milestone in the attempt to propagate canonical kinship, even though it failed because of domestic political disorder. A probable forerunner to the kin’s board was described in Valdemar the Victorious’ Ordinance of Ordeal by Hot Iron, which cannot be dated more accurately than to somewhere between 1216 and 1241.9 In the vast majority of cases, Valdemar’s Ordinance replaced the hot iron ordeal with a tribunal composed of selected participants attending the district thing. However, there were two known exceptions. If a murder was committed and the killer did not admit guilt, then the deceased’s nearest male relative had the right to initiate legal proceedings against the accused, during which a tribunal of 12 men from the defendant’s district, selected from the thing, would judge the case. If the tribunal acquitted, the accuser had the right to raise a case against another man; however, this time a ruling would be made by a tribunal of 12 men appointed by the accused person’s kin group. This procedure was repeated if the second man was acquitted and the aggrieved party opted to serve a writ against a third person for the murder.10 The second exception was violence against women, in which case the accused was required to defend himself by means of an oath sworn by 12 relatives. For all other types of violence, the tribunal would consist of local squires.11 The kin’s board was employed only in cases of inheritance and property, and the Ordinance of Ordeal by Hot Iron applied to a wider range

  See chapter 4 above, on the dating of the laws.   Traditionally the decree is dated to 1216 or immediately thereafter, on the basis of the argument that Danish legislation had instantly complied with the decree of the Fourth Lateran Council that clerics may not take part in trial by ordeal. This dating has been questioned in recent decades, as it is exclusively based on the hypothesis that Denmark, unlike more or less the entire Catholic world, complied without hesitation with the Lateran Council’s vision. 10   Ibid., vol. 2, SkL. Supplement XII: 3, p. 789. 11   Ibid., supplement XII: 4, p. 790.  8  9

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of offenses including murder and violence towards women. Nonetheless, it is significant that in the case of serious crimes the Ordinance allowed the person’s relatives the right to submit evidence. The exceptions relating to murder and violence against women were not likely significant, as they do not appear in the later laws, namely, the Law of Jutland and Eric’s Law of Zealand. Under the Law of Jutland, criminal cases were entrusted to the sandemændene (sworn judges).12 By including these exceptions and claiming conformity to the decree of the Fourth Lateran Council, the Ordinances sent a political signal, certainly domestically but especially abroad, that they were in compliance with canon law. But the fact that no trace of these rules was passed down to later legislation suggests that no consistent attempt was made to ensure that they were followed in all respects, as long as their primary purpose—replacing the ordeal of hot iron with the tribunal—was achieved. Land and inheritance The kin group’s function as a legal entity in Danish provincial law is particularly distinct in cases involving disagreement about the distribution of an estate. This is also seen in several Swedish laws. For example, if stepchildren were to inherit from a stepfather, or two different sets of half-siblings were to inherit from a stepfather, doubts could arise about what were the mother’s goods and what belonged to the father. The procedure for these cases shared a number of common features with The Book of Inheritance, Valdemar’s Law of Zealand, and the Law of Scania. Twelve relatives, six per side, were appointed to rule on which goods belonged to which party.13 However, in similar cases under Law of Jutland and Eric’s Law of Zealand, it was prescribed that 12 men from the kin group to which both sets of siblings belonged should be appointed to distribute an estate. 12   The sandemænd tribunals were peculiar to Jutland. They consisted of eight sworn judges in each district, nominated by the king, who sat on property and criminal law cases. The sandemænd took majority decisions. About the sandemænd and their function, see Andersen, Lærd ret, pp. 230–238. 13   Danmarks gamle Landskabslove, vol. VII, A&O, text 1, book 1, ch. 70, p. 53, vol. I, 1, SkL, text 1, ch. 27, pp. 16–17, vol. VIII, VsL1, text 1, ch. 70, pp. 34–35. In most cases of sibling-to-sibling inheritance it has to be presumed that the case refers to inherited assets, since household effects and purchased land were distributed by means of drawing lots among the members of the kin group.



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Similarly, 12 relatives resolved the conflict in inheritance disputes between full brothers and sisters.14 To avoid disputes between siblings about an estate on the death of their parents, the Uppland Law prescribed that the kinship group on both the mother’s and the father’s side be responsible for the distribution of the estate. If one heir lodged a complaint, 18 cousins who had been witnesses to the division of the estate would rule on the dispute. If that many cousins did not exist (which was surely often the case), the numbers would be made up from among the closest relatives.15 It was not only in the event of disagreement about inheritance between siblings that a certain number of relatives were called upon to resolve disputes. According to the Book of Inheritance and Valdemar’s Law of Zealand, 12 relatives were required to judge those cases where the inheritance extended so far out in the degrees of kinship that the identity of an immediate heir was uncertain.16 The Hälsinge Law contains a regulation that addresses this same problem, but it is unclear as to whether jurisdiction in inheritance disputes was specifically the preserve of relatives. “If men dispute inheritance and say they are both equally closely related [with the deceased], they must find two men who are experts in kinship.17 He whose right they corroborate with 14 men’s oath, shall inherit.”18 On the face of it, there is a temptation to believe that the two experts were supposed to belong to the same kinship group, but it is hard to believe that every family included people with those skills. This provision should, therefore, be interpreted as a reflection of the authorities’ desire that in every hundred should there be two individuals who were specialized in calculating degrees of kinship according to the canonical method.

14   Ibid., vol. I, 1, SkL, text 1, ch. 28, p. 17. Vol. II, JL, text 1, book 1, ch. 16, pp. 50–52. Eric’s Law of Zealand (vol. V, text 1, ch. XXI, p. 27) states that “tha [scal] man næfn til tolf theræ frændær the bæstæ” (“Then 12 of the closest and most suitable kinsmen should act as jury”). 15   Schlyter, Corpus iuris, vol. 3, UpL, ÆrfÞæ Balken, ch. XI, p. 117. 16   Danmarks gamle Landskabslove, vol. VII, A&O, text 1, book 1, ch. 82, p. 63. Vol. VIII, VsL1, text 1, ch. 82, p. 41. 17   The old Swedish term is talumän, from the verb tälia: to calculate. In other words, these were people who specialized in calculating degrees of kinship. This is quite interesting, as it shows how insistent the legislators were that relatives be able to calculate the exact degree of kinship. 18   “Delæ mæn v, arf ok sighiæ sik baþir iæmpskyldir wæræ. hawi þa frammæ. II. talu mæn. þæn þe wiliæ till arfs swæriæ mæþ XIIII. manna eþe þa taki han arff.” Schlyter, Corpus iuris, vol. VI, HL. Ærfþa Balken, ch. 12, § 3, p. 35.

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A final example of how the kin group acted as legal entity in inheritance cases can be found in the Östgöta Law. In the provision in the old inheritance law, in which sons precluded daughters from inheritance, it states that if a sister contends that her brother inherited from their parents after the new inheritance law came into force, then the brother could, on the basis of a judgment from 14 relatives within the third degree of kinship, confirm that he would have inherited under the old law, and therefore had a just claim to the inheritance.19 In this case, the selection of relatives as adjudicators was quite natural, as their equally close kinship with brother and sister would increase the probability that their oath was not controlled by bias. However, the relatives’ possible bias could also be used to argue that they should not take part in the judicial process, as is seen in the older Eidsivathing Law. This stipulated that if woman gave birth to a still-born child, she should immediately follow a particular procedure for announcing the birth. Should she fail to do so, perhaps due to illness, then she and two older women were required to swear that the child was still-born. However, it was stipulated that those who were to assess the validity of the oath could not be members of the woman’s kin group because being related might influence their judgment.20 More evidence that it was thought that kinship could influence judgment is found in Magnus Lawmender’s Law of the Realm. In it, he prescribes that those related by blood or marriage within the fourth degree were not able to bear witness for one another in debt cases, unless the one who was to bear witness was equally closely related to both implicated parties.21 In other words, it was expected that those within the limits set by canonical kinship were naturally inclined to act in each other’s favor. Violence and homicide Both versions of the Västgöta Law contain a peculiar provision about how to defend yourself against the accusation that your advice led to a killing. A man accused of this had to defend himself with the oaths of 18 men, 12 of whom were to be from his father’s side, and six from   Ibid., vol. 2, ÖgL. Ærƒþa Balken, ch. 2, p. 114.   Norges gamle Love, vol. 1, EKr. ch. 3, pp. 375–376. 21   Ibid., vol. 2, MLL. Kjøpebolken, ch. 2, pp. 150–151. 19 20



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his mother’s. Furthermore, according to the later version they were all to be related within the sixth degree. If both sides broke the oath, a fine of four-and-a-half marks would be imposed. If the 12-man oath was broken, then the fine was three marks. If half of them failed to swear to the man’s innocence, the fine would be one ortu and five ore.22 This provision, which does not recur in other Swedish laws, is interesting for several reasons. For no other serious accusation were the relatives required to swear an oath. The weighting between the mother’s and the father’s relatives, and the fact that each had to swear a different oath, suggests a connection with the rules governing inheritance, under which daughters were only entitled to half as much as sons. But this seems improbable, because the older law stipulated that daughters had the right to inherit only if there were no sons. Nevertheless, despite the recognition of canonical kinship, the procedure seems to suggest that the father’s relatives were of greater importance than the mother’s. It should be noted as well that the older Västgöta Law says nothing about the expected degree of kinship but that the later version fixes the limit for participation at the sixth degree.23 This is not in accordance with how kinship was otherwise calculated in the late thirteenth century. That said, the accounts of the older Västgöta Law that have been handed down are so sketchy that it is possible to imagine that the sixth degree may have existed in other non-surviving versions of the law—or that, like the kin’s board, it often proved impossible to find the necessary number of relatives within the valid canonical degrees of the time, making it necessary to expand the circle. Many provincial laws include specific regulations about violence towards or the killing of close relatives, proving that these kinds of violent crime were considered far more serious than other violations. Indeed, sometimes they were even considered sacrilege, so the punishment was administered by both the clergy and the temporal judiciary. However, only the Church laws for Scania and Zealand differentiated between violence or other crimes committed against relatives further removed and those committed against strangers. Church law regulated 22   Schlyter, Corpus iuris, vol. 1, VgL1. Af mandrapi, ch. 3, p. 12, VgL2. Dræpare Balken, ch. 8, p. 125. In the supplement to the later version, this procedure is extended also to cover cases of accusations of calling someone a “thrall,” although the fines were different. VgL2. Additamenta, ch. 2, § 13, pp. 224–225. 23   The limit for payment of wergeld in the Västgöta Law was the sixth degree. This might suggest a strong influence from Norwegian law, where the sixth degree had been the limit for canonical kinship since 1152/53.

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violence against or theft from relatives up to and including second cousins. Violations against this part of the family led to the appointment of a tribunal of 12 relatives to judge the case. If the crime was against relatives further removed or against strangers, the evidence was submitted as an ordinary violence or theft case and was judged by a tribunal of 12 men with full legal rights.24 It is interesting that these clauses about infringements against a large proportion of the kinship group are found in Church laws, which were issued as a supplement to local canonical law. Again, this shows the major importance of the kinship group’s jurisdiction in the Church laws. However, it was not only in cases of violence within the family that the kinship group had a particular legal function. The Norwegian laws also afforded relatives a special status in the pursuit and punishment of killers. If a man was killed at the thing, all present were duty-bound to pursue the murderer on pain of fine, with certain exceptions. According to the Frostathing Law, baugildemænd, neugildemænd,25 and close måger26 were exempt. In addition, they had the right—once and only once—to help the fugitive.27 According to the Law of the Realm, all relatives by blood and marriage up to and including the fourth degree were exempt from prosecution, but aiding the fugitive was forbidden under threat of being outlawed.28 The Law of the Realm stipulated that there was a duty to pursue and apprehend a person who was a murderer or had carried out a similarly evil action, if it was known where they were to be found. In addition, the people were duty-bound to assist in the pursuit if required. However, relatives by blood or marriage up to the fourth degree were again exempt.29 Since the system of fines depended on killers accepting the consequences of their actions, the law also had to provide for the situation

24   Danmarks gamle Landskabslove, vol. I, 2, SkKl, text 1, ch. 7, pp. 838–844. Vol. VIII, SjKl. text 1, ch. 10, pp. 450–451. 25   The baugildemænd consisted of the closest male relatives on the father’s side: the father, paternal uncle and his sons and sons of sons, as well as brothers and sons. Members of the neugildet included sons of daughters, sons of sons of daughters, sons of daughters of sons, sons of sisters, sons of sisters’s daughters, and male relatives on the mother’s side (such as maternal grandfather, maternal uncle and his sons and any sons of daughters, maternal aunt’s sons and sons of daughters), in addition to the paternal sister’s sons and sons of daughters. 26   Måger is a term for intermarried male relatives. 27   Norges gamle Love, vol. 1, FL. IV, ch. 9, p. 161. 28   Ibid., vol. 2, MLL. Mandhelgebolken, ch. 8, p. 214. 29   Ibid., ch. 17, p. 219.



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in which the killer wished to explain the murder. According to the Gulathing Law, viglysning, as it is known, took place in the nearest house, unless it was owned or inhabited by the deceased’s baugilde or neugildemænd.30 In the Law of the Realm, this was extended to include all relatives and in-laws to the fourth degree. It was not mandatory that the viglysning be held in the first house; instead, it had to be held in one of the first three farms the killer passed after committing the deed, unless the previously mentioned relatives owned the next farm.31 It is characteristic of Norwegian provincial law that the people who were to participate in the payment of wergeld were exempt from playing a role in the persecution. In the Law of the Realm, where collective payment of wergeld was abolished, the group was extended to include all kinship groups, including the in-laws. The question of persecution was one of economic relations, not emotional. This, presumably, is why relationship by marriage was taken into consideration. This had both a stabilizing and a peace-making effect. Splits and enmity could easily have arisen if a man was forced by law to pursue or refuse to help his wife’s father, brother, or another relative; both parties would face a moral choice between their love for and duty towards their spouse and kin, and their duty to society. The rules show that the legislators were aware of the conflict that could arise if relatives were forced to choose between the law and the family duty that had been so persistently imprinted through the teaching of canonical kinship. Marriage and incest The Church laws for Zealand and Scania contain an unusual provision about incestuous engagement. It covered cases where a man became engaged to either a relative, someone who had been married to one of his kin, or a relative of his previous wife. In these cases, the bishop was called upon to forbid the marriage, after which the man could either ignore the ban and marry (and thereby suffer excommunication) or have his case heard. In the latter case, six kinsmen from the man’s side and six from the woman’s were nominated to pass judgment upon the marriage. Together, these 12 would affirm by oath to what extent the two could marry or not, and their judgment was also valid vis-à-vis   Ibid., vol. 1, GL. ch. 156, p. 61.   Ibid., vol. 2, MLL. Mandhelgebolken, ch. 12, pp. 216–217.

30 31

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the clerical authorities.32 On the face of it, this procedure seems like a gross circumvention of canon law’s incest regulations. However, it probably should be seen instead as an attempt to highlight the problem of incest in local communities by forcing the implicated relatives to take a position on such a serious theological issue. From the Church’s perspective, it was presumably more important for people to understand the new canonical kinship ideology than for the ban to be strictly applied, even out to the most distant degree.33 At the same time, the provision should surely be seen also as recognition of the fact that a ban on seventh-degree relationships was in practice very difficult to enforce in small communities, where suitable prospective spouses were to in short supply. Similar regulations do not appear in other Danish laws, as this area otherwise fell exclusively under clerical jurisdiction. But we do find something similar in the Småland Law’s Church law. If a couple was accused of being too closely related, but both agreed that this was not the case, then all was well. The law continued, If they do not agree, then right will be judged to the one who wants to preserve the marriage, with their relatives, six on the father’s and six on the mother’s side. They swear on oath that they were not bound in kinship and so closely related that they could not be husband and wife, according to the laws of both God and man.34

This regulation was certainly included in the law in order to prevent the ban on incest from being used as an easy way out if one party wanted to end the marriage. It is worth mentioning a curious clause in the Östgöta Law that stipulated who the bridegroom must invite to his wedding: “He shall invite to his wedding all his relatives up to the third degree. If he does not invite them, he will be fined three marks or have 12 men affirm by

32   Danmarks gamle Landskabslove, vol. I, 2, SkKl. text 1, ch. 6, pp. 835–838. Vol. VIII, SjKl, text 1, ch. 9, pp. 449–450. 33   The ban on incest was mainly aimed at the aristocracy, so it was accepted that peasants and commoners did not follow it to the letter. Gelting, “Marriage, Peace,” p. 99. 34   “Sæmber ey them aa. giæti æ thet wizcustæ som hionælagh will haldæ. meth frændom sinom. oc kunnum mannum siæx aaf fæthringum oc siæx aaf möthringum. witi thet aat ethe. at the waro ey swa kneum kumin. oc swa nithium næær. at the magho ey hionælagh sit byggiæ. bathe meth guz laghum oc swa mannæ.” Schlyter, Corpus iuris, vol. 6, SmKb, ch. 13, § 8, p. 109.



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oath that he was not aware they were so closely related.”35 Although the regulation is somewhat heavy-handed, it illustrates effectively that the solidarity of kinship, the ideological basis for which was canonical kinship, was not always particularly easy to introduce voluntarily. Most of the examples mentioned from the different areas—inheritance, violence, and marriage—illustrate how legal disputes were decided by members of the implicated canonical kinship group(s), by means of the sworn testimonies of relatives. However, there are also examples of the opposite, where members of the canonical kinship group were excluded from bearing witness for fear of bias or were exempted from carrying out the civic duty to pursue violent criminals or killers. This apparent discrepancy illustrates the complexity of canonical kinship. Because duty to kin was not only legal but also moral, canonical kinship could also have a negative effect. It could place relatives in a moral dilemma between, on the one hand, following the call of the authorities and, on the other, helping a relative in need—a conflict of which several of the laws’ authors were evidently mindful.

35   “Nu skal han frændum sinum bruþlöpi biuþa: allum þöm sum innan þriþia kan æru. uill han egh þem buiþa þa böte þre markær: ælla dyli mæþ tolf manna eþe at han uisse han sik egh sua skyldan uara.” Ibid., vol. 2, ÖgL. Gipta, ch. VIII, § 1, p. 100.

chapter ten

COLLECTIVE SANCTION The payment of fines as a penalty for manslaughter was in no way unique to Nordic provincial laws. Most early medieval law codes from the area that previously made up the Western Roman Empire imposed fines, and collective liability was common. Collective liability was not a feature of Roman law, so it obviously was a Germanic legal phenomenon. It first entered into custom and was later written into law in Southwest Europe after the Roman Empire was weakened and then invaded by Franks, Goths, and others.1 However, this division between Roman and Germanic concepts of law in relation to collective responsibility is not as obvious as it first appears. Although it may well be true that Roman law did not acknowledge collective responsibility, it is also important to consider the fact that Roman codes emerged in the context of an empire with a well-developed central government whose arms had the power to punish criminal actions. The central administrations that were established in the new civilizations that arose from the ruins of the Western Roman Empire were weaker and had far less extensive administrative systems, which made it extremely difficult to control how the law was applied. Under such conditions, the threat of collective punishment for infringements of the law and revenge, if wergeld or similar compensation was not offered, was an acceptable alternative.2 Revenge would normally be played out as a blood 1   Ole Fenger argues that within these laws it is possible to differentiate between the characteristics of Germanic customs and those derived from Roman or canon law, as we are familiar with the Roman and ecclesiastical understanding of law from extant sources. Phenomena such as revenge, feuds, and payment of wergeld were not immediately compatible with the practices of Roman law and the Church, which required there to be culpa/guilt behind an action before there was any basis for punishment. Ole Fenger, “Germansk retsorden med særligt henblik på det 7. århundrede,” in Peter Mortensen et al., eds., Fra stamme til stat i Danmark—2. Høvdingemagt og Kongemagt (Århus 1991), p. 158. 2  Anthropological studies reveal that wergeld and the threat of revenge for infringements of the law was a widespread phenomenon in areas where the central government was either too weak to maintain law and order, or did not exist. See Max Gluckman, “The Peace in the Feud,” ed. Tove Hylland Eriksen, Sosial-antropologiske grunntekster (Oslo 1996); and Fenger, Fejde og mandebod. Of course, this does not mean that all

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feud between two groups, and in this connection it is probably worth mentioning Wallace-Hadrill’s observation about blood feuds in the Merovingian kingdom: Revenge and feuds were not sanctioned by law, but the fact that they existed is evident from several sources, especially literary. However, there is a danger that these concepts could be deceptive, and that a lot of bloodshed that had nothing to do with revenge and feuds, could easily be interpreted as such by posterity.3

The literary sources had a predilection for drama, which perhaps also encouraged authors to exaggerate the importance of the feuds. Peter Sawyer applies this observation to the Nordic sources,: “The blood feud flourished best not in the real world, but in the fictions of poets, storytellers and lawyers.”4 Although few extant sources address the concept of law in the Nordic region prior to the existence of the provincial laws, in all probability there must have existed structures based on wergeld and threats of revenge. However, who was obliged to pay wergeld, and upon whom any given act of revenge might be inflicted, is in no way clear. Was it the perpetrator alone who was liable, or did networks exist that offered some form or other of collective liability? If so, what form did they take? An obvious choice of network was the kin group, and the kin group’s responsibility is found in one form or another in most Germanic laws. But, then who comprised the kin group? As far as the Nordic region is concerned, kinship groups based on choice and alliance had no fixed limits on size or membership. Was it then this constructed kinship group that was liable for wergeld and avenged one forms of revenge and collective liability can be equated uncritically. A large number of variations existed in practice, depending on which codes of honor and cultural and religious ideas were prevalent. However, what is important in this context is to point out that the difference between the use of revenge and collective punishment in Roman law and in the Germanic kingdoms does not need to be rooted in a fundamental difference between Roman and Germanic concepts of law but instead could be an expression of differences in their administration and in their ability to maintain law and order. Recent research has focused on how the feud developed and adapted new social conditions in the later Middle Ages and the early modern era. Jeppe Büchert Netterstrøm, “The Study of the Feud in Medieval and Early Modern Europe,” Bjørn Poulsen et al., Feud in Medieval and Early Modern Europe (Århus 2007), pp. 9–67. 3   J.H. Wallace-Hadrill, The Long-Haired Kings—and Other Studies in Frankish History (London 1962), pp. 122–123. 4  Peter Sawyer, “The Bloodfeud in fact and fiction,” in Kirsten Hastrup and Preben Meulengracht Sørensen, eds., Tradition og historieskrivning. Kilderne til Nordens ældste historie (Acta Jutlandica) LXIII: 2, hum. serie 61 (Århus 1987), p. 36.



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another? The possibility certainly exists. Saxo reports that the Skjalm sons, Peter Bodilsson and Haakon Sunnivasson, explained that they avenged the killing of Saint Cnut Dux because they were friends.5 Since choice- and alliance-based kinship probably had the greatest importance for the more affluent peasants and lords, it is reasonable to imagine that other networks might have functioned as part of the administration of justice. Patron-client relationships may well have guaranteed help for the poor from a more powerful person if a violation of the law being committed by or against them. One can imagine that the sanction imposed on a killer, both before and after the advent of the provincial laws, varied according to both his social position and the circumstances under which the killing was committed. However, no matter how plausible the above explanations may sound, the paucity of sources means that these can be no more than qualified guesses. Actual written procedures only appear for the first time in the provincial laws. Even then, it is an open question as to whether the rules were followed rigidly or whether they simply functioned as guidelines in case the parties were unable to reach a better solution. In the provincial laws, a killing was not just a killing. The sanction imposed on the killer depended on the conditions under which the killing had taken place. The legislation defined two types of killing: those which could be atoned for by wergeld; and those that could not. Heinous crimes, villainy, or edsörebrud were used to describe actions so gross that the guilty could not immediately atone via the usual sanction—paying a fine. Likewise, the kinsmen’s obligations to a killer depended on whether the killing was manslaughter or a heinous crime. In cases of manslaughter, most laws held the kin collectively responsible along with the killer, whereas in the event of a heinous crime, the focus was on individual guilt. Crimes that could not be atoned by a fine The development of a special category of violent crimes—the heinous crime—probably stemmed from the Church’s pursuit of an ideology of peace. There are many conspicuous parallels between the heinous

  Saxo, Gesta Danorum, 13:7:1, p. 356.

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crimes and the peace regulations, the theological basis for which is found in the first three Lateran Councils, and in temporal legislation in the form of the ‘king’s peace’ in Germany. The punishment for a heinous crime was also an extension of the Church punishment. Heinous crimes were called orbodemål in Danish, crimes that could not be atoned for by means of fines. The punishment was more or less the same in all the laws: confiscation of everything the perpetrator owned, and forfeiture of his lawful status (i.e., declaring him an outlaw). Short of capital punishment, being made an outlaw was the harshest penalty available—only the worst criminals were punished by exclusion from the community. The outlaw was stripped of his social and his family identity, and he became a pariah. Just as in the Church punishments—injunction and excommunication—the temporal punishment of being made an outlaw was both a social and a psychological death; the outlaw was denied burial in consecrated land. This harsh punishment was a consequence of the fact that, in breaching the peace, the heinous crime was a crime against the whole of the community, not just against a single person or kin group. As with so many of the legal measures in the provincial laws, those governing heinous crimes, at least in the form with which we are familiar, date back to the second half of the twelfth century. The Frostathing Law states that, at the time of the amendments initiated in 1164 by King Magnus and Archbishop Øystein and supported by the nobility, the punishment for those who had committed heinous crimes was made more severe.6 Similarly, in the Gulathing Law, two of the regulations about heinous crimes, in the form they are found in the law, were introduced by Magnus Erlingsson.7 Øystein’s involvement in the drawing up of the heinous crimes provision and the consequent punishment therefore comes as no surprise, as it must have been important for the Church that those who breached the peace could be subjected to both temporal and clerical sanctions. The concept of heinous crime is also known from the older Christian Law’s from the Eidsivathing and Borgarthing, but not in the form it would later assume, when they included incest with one of the 17 women to whom a man was most closely related by blood or marriage. The crime’s close connection to canon law is also evident in parts of the punishment, as described in

  Norges gamle Love, vol. 1, FL. Book V, ch. 44, p. 182.   Ibid., GL. ch. 32, pp. 19–20.

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the Borgarthing Law. The deed led to outlaw status and forfeiture of assets, which were split between the king and the Church, although the outlawing could be revoked if the perpetrator had confessed and done penance. If the person who committed the heinous crime failed to do this, then the Eidsivathing Law prescribed the same punishment in death as for banished people, namely exclusion from burial in consecrated land.8 Even the title of the law Orbodemål—heinous crime—proves that such crimes occurred in Denmark in the 1170s. Was the concept of the heinous crime an innovation that arose with the advent of the statute book? Or was it based on earlier regulations? It can be argued that the concept of the heinous crime dates at least from the end of the previous millennium, when Saint Cnut Rex, in his privileges to Lund Cathedral in 1085, mentions two examples of outlaws buying back their freedom from the king.9 This must mean that some form of being made an outlaw existed, although it is not synonymous with the concept of heinous crime. Men who committed acts of treachery against the king, for example, could have been outlawed.10 Although heinous crime was an established category of crime in Norway and Denmark in the late eleventh century, it is not certain whether the same was true across the whole Swedish area, where heinous crime is first mentioned in the older Västgöta Law.11 Although heinous crime was known throughout the Nordic region, it was not formulated in the same way everywhere. In the Danish laws, four types of killing were designated as heinous: killing in the home; at the thing; in the church; and after the wergeld was paid. Anders Sunesen’s paraphrase adds kidnapping women, arson, and killing a host or guest.12 The Law of Jutland does not use the term heinous crime, but Thord’s Articles stress that heinous crime included all crimes for which

 8   Vikens Kristenret. Ældre Borgartingslov. Tillikemed en del ældre lovregler om ekteskapsstiftelse og trolovelse m.m., som er indført deri fra Eidsivalovens eller Borgartingslovens verdslige del, ed. and trans. T.O. (Kristiania 1914), ch. 17, pp. 17–18. Ældre Eidsivatings Lov, Kristenretten tillikemed et opbevaret brudstykke av den verdslige lov, ed. and trans. T.O. (Kristiania 1914), ch. 50, p. 33, ch. 52, p. 34.  9   “Pro pace sua emendauit.” Diplomatarium Danicum, serie 1, vol. 2, no. 21, p. 49. 10   Saxo was full of examples of rebellious lords in the eleventh and twelfth centuries, so it is an obvious thought. 11   Schlyter, Corpus iuris, vol. 1, VgL1. Orbotæ mal, pp. 23–24. 12   Danmarks gamle Landskabslove, vol. I, 2, ASP. ch. 61, p. 552.

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you would be outlawed.13 Nor did the Norwegian laws only cover killing; they also addressed other actions that threatened social order, such as witchcraft/sorcery, highway robbery, and kidnapping women. Several crimes that Danish laws categorize as heinous are found under the breaches of the peace punishable by outlawing in the Frostathing Law and the Law of the Realm,14 illustrating the close connection between heinous crimes and the peace ideology. In Denmark and Norway, the notion of heinous crimes was retained as a part of legislation, while in Sweden it were incorporated into what are known as edsöre, of which more anon. Although a breach of the peace occurred when a heinous crime was committed, Danish law allowed the outlaw to buy back his freedom by paying 40 marks each to the victim’s heirs and to the king. However, between The Book of Inheritance and Heinous Crimes and Eric’s Law of Zealand, the procedure governing this provision changed. The former stipulates: “The King may not reinstate or allow justly the outlaw to buy back his freedom except in the single case that he receives the agreement of the closest fully grown relatives of the victim who are entitled to receive promises and fines.”15 The wording in Eric’s Law is as follows: And in these cases [of heinous crime] the heirs cannot accept fines from the killer’s kin unless they receive the King’s consent, and the King may not revoke the outlawing of the perpetrator without the consent of the victim’s kinsmen. However, the kinsmen may accept the two payments from the relative of the perpetrator even if the outlaw has fled with one of the parts.16

13   Ibid., supplement to vol. 4, text 6C, no. 56, p. 261. Add. XXII, text 6D, no. 32, p. 278 and text 6E, no. 87, p. 321. 14   Norges gamle Love, vol. 1, FL. IV, ch. 5, pp. 158–159. Vol. 2, MLL. Mandhelgebolken, ch. 4, pp. 51–52. 15   “Æn frithkøp ma ey konung af thøm taka oc ey thøm therre frith mz rettu at gewe num thes at ena at han far therris willie til ær nest æræ then dræpne att biwrthum oc fulaldra æræ oc mz rettu aghu vith boda festning at taka.” Danmarks gamle Landskabslove, vol. VII, A&O. Book III, ch. 1, p. 69. 16   “Oc thæræ mughæ ey arwngæ bøtær takæ at hins næstæ. ær dræpæt hauær. num the fa kunungs wiliæ til. oc kunung ma them ey theræ frith atær giftæ. num han hauær frændær wiliæ til. Æn the twa salæ mughæ frændær wal af kyn takæ.” Danmarks gamle Landskabslove, vol. V, EsL. text 1, book 2, ch. 9, pp. 83–84. The idea behind the clause was that when the killer was outlawed for a heinous crime, the victim’s kinsmen did not automatically have the right to demand that the outlaw’s closest kin should take over his wergeld payment, which was the usual procedure in cases of punishment by outlawing. However, the kinsmen still had to pay the two remaining installments.



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An interesting development evidently took place during the approximately 70 years between the two documents. According to both laws, the victim’s heir had the right to veto decisions by the king to allow outlaws to buy back their freedom, but the king had greater influence in Eric’s Law of Zealand. Provision for outlaws to buy back their freedom does not occur in the Norwegian laws with the same clarity as in the Danish. The phenomenon is not mentioned at all in the Gulathing Law, while the Frostathing Law states that an utlæg (outlaw) was not allowed back into the kingdom without the king’s consent.17 The Law of the Realm mentions the possibility of buying back freedom only indirectly, in a passage outlining the status of an outlaw’s inheritance in case he should return.18 Therefore, some form of opportunity for outlaws to buy back their freedom must have existed. It is difficult to say how far back the outlaw legislation extends in Sweden. The first Västgöta Law was familiar with the concept of heinous crime, which must be seen as a part of its rules regarding outlaw status. Traditionally, Birger Earl is credited as having introduced major outlaw legislation across the whole of Swedish kingdom, although this is an area of some uncertainty, as the oldest source to mention the outlaw legislation is the Chronicle of Eric. However, it is possible that outlaw legislation promulgated by the central government emerged during Birger’s reign. We see both a significant rise in the number of heinous crimes and stricter punishments for them between the older and later versions of the Västgöta Law. At the same time, there is other evidence that Birger was willing to update the legal landscape in Sweden in line with the Church’s regulations. For example, it was under his government that the Skänninge Synod was held and that the ordeal by hot iron was abolished.19 As mentioned previously, heinous crimes were incorporated into the edsöre regulations in Sweden. Edsörebrud was the collective term for a number of serious crimes that more or less correspond to heinous crimes. Tradition would have it that legislation on edsöre emerged as an agreement between the king and the people, as the lords had to swear an oath that they would keep the early edsöre.

  Norges gamle Love, vol. 1, FL. IV, ch. 41, p. 170.   Ibid., vol. 2, MLL. Mandhelgebolk, ch. 6, p. 52. 19   Åqvist, Frieden und Eidschwur, p. 116. 17 18

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The actual term edsöre is also highly informative, deriving from oath and swear. The concept of edsöre entered into the tradition from the great peace councils,20 and the central government introduced the legislation, which meant that it covered the whole kingdom and was incorporated into provincial law. It became a fixed part of legislation in the late thirteenth century, sometime between the passing of the older Västgöta Law (it is not part of the original wording of the act but is inserted in a later supplement) and 1296, when the Uppland Law, including edsöre regulations, was ratified. Much of edsöre fell within the classic breaches of the peace: rape: killing in the home, in the thing, and in the Church; and the taking of undue revenge (in other words, after oaths had been affirmed or an agreement entered into). The punishment for edsörebrud was to be declared biltog21 (outlaw) throughout the kingdom. This is different from previous practice, where outlaw status was only valid in the appropriate province and where the perpetrator’s assets were split between the king, the district/ the hundred,22 and the victim’s heirs. As in the Danish laws, the outlaw could regain his freedom upon the request of the aggrieved party and after paying 40 marks to the king. Even in the edsöre legislation, which was so closely associated with royal power, the victim’s kin were of central importance: they decided whether the assailant should have the opportunity to reclaim his freedom. Despite this, edsöre legislation must be seen as a key step towards central power claiming jurisdiction over breaches of the peace.

 Rosén, Den svenska historia, p. 31.   The term biltog predates even the edsöre legislation. It was already known from tenth-century Östgötaland, where a runic carving explains that “he who carved this, Gunnar, fled biltog, and sought refuge in this sanctuary.” Hafström, De svenska rättskällornas, p. 32. 22   Uppland, Södermannaland, Västmannaland, and Dalarne were subdivided into hundreds, not districts. Hundreds did not work as courts in the same way as districts but had similar functions with regard to warfare and payment of fines. Why these areas had a different administrative subdivision from the rest of the kingdom is difficult to say. The subdivision into hundreds is not even an exclusively Swedish phenomenon; it is also known from both Anglo-Saxon England and the Frankish Empire. Susan Reynolds, Kingdoms and Communities in Western Europe, 900–1300 (Oxford 1986), p. 225. 20 21



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Wergeld In cases of “ordinary” killing, i.e., one that did not threaten the peace, the penalty demanded the payment of wergeld. Several laws apparently based the procedure for receipt and payment of wergeld on canonical kinship. But wergeld regulations differed dramatically among the Nordic countries, illustrating that kinship responsibility evolved differently in each country. This observation stands in sharp contrast to Ole Fenger’s arguments against the inclusion of Swedish or Norwegian sources of law in his study of the feud and the wergeld’s emergence in Denmark. He opined that, despite the time displacement, development in the three kingdoms was uniform23 and that, therefore, there was no reason to involve Nordic materials other than the Danish. In the case of collective wergeld payment, the kin group appeared as a legal entity vis-à-vis third parties—i.e., the victim’s kinsmen and, if relevant, the authorities. At the same time, the wergeld also covered the mutual rights and obligations of the relatives. Collective payment meant that the assets transferred as sanction were sourced not solely from a single member, and thereby indirectly from his heirs, but from all the kinsmen. The fact that many laws articulated the duty to pay but also granted the killer the right to help with the payment from his kinsmen must have meant that relatives would have tried to control each other’s behavior. The Danish legislation The Danish wergeld regulations have already been discussed in-depth by Poul Johs. Jørgensen and Ole Fenger, but because my objective is to look at the development across all three kingdoms, they will be described nevertheless. The idea that collective kinship responsibility in the case of manslaughter could be used actively by the central government to regulate strife at a time when it was not yet strong or developed enough to carry out the job efficiently was first presented by Troels Dahlerup in his review of Ole Fenger’s Feuds and Wergeld.24 It

  Fenger, Fejde og mandebod, pp. 209–212.  Troels Dahlerup and Stig Jørgensen, “Anmeldelse: Ole Fenger, Fejde og mandebod,” Historisk Tidsskrift, 12. ser. vol. VI (Copenhagen 1972), p. 203. 23 24

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is these ideas that are pursued and placed into the context of canonical kinship in the following section. The Book of Inheritance and Heinous Crimes does not deal with wergeld, but the mere use of the phrase “heinous crime”—i.e., cases that could not be atoned for by fines—indicates that paying a fine was a known practice. Nor was payment of wergeld particularly prominent in Valdemar’s Law of Zealand; the Law merely states that the killer should offer up fines to the victim’s nearest kin.25 This might suggest that it was the killer’s sole responsibility to pay fines, and that the fines did not have to be divided between anyone else other than the victim’s nearest kin. However, we cannot exclude the possibility that a form of collective payment occurred in these cases, even though it was not legally prescribed. This vague formulation about the payment of the wergeld is not known from the other laws. In the Law of Scania, the Law of Jutland, and in Eric’s Law of Zealand, the burden of payment was upon all the kinsmen. First, the killer paid one-third of the fine, also called a sal, after which the mother’s and the father’s side each had to pay a sal, “as far as the kinship stretches,”26 as it says in Eric’s Law of Zealand. The most obvious conclusion seems to be that “kinship” here refers to canonical kinship.27 In fact, there is no room for ambiguity in the Law of Jutland: He who is further removed in the kin than the fourth man does not need to pay unless he wishes to. In the same way, if wergeld is received, those who are further removed than the fourth man are not entitled to payment unless the kinsmen wish to give them something.28

It can hardly be stated more clearly that collective responsibility was built on canonical kinship as defined by the Fourth Lateran Council in 1215. However, kinship responsibility was not dependent upon the killer fulfilling his part of paying wergeld. In both the Law of Jutland and   Danmarks gamle Landskabslove, vol. VIII, VsL. text 1, ch. 139, pp. 65–67.   Ibid., vol. V, EsL. book 3, ch. 26, p. 283. 27   Fenger was of the opinion that the wording should be understood as though the kinship could in theory be infinite—a highly improbable contention, as it agrees with neither canonical kinship nor the choice- and alliance-based model. Fenger, Fejde og mandebod, p. 150. 28   “Hwa sum vttær meræ ær i byrth æn at fiarthæ mannæ. han tharf ækki bøtæ vtæn han wil. takæs oc boot in. tha takæ the thær vtæn fiarthæ mannæ ækki. vtæn of frændær willæ thæm nokæt giuæ.” Danmarks gamle Landskabslove, vol. II, JL. text 1, ch. 25, p. 190. 25 26



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Eric’s Law of Zealand, the kinship group had to pay even if the killer had not—because he was unable to, had fled and become an outlaw, or because he was dead, whether from natural causes or because he had been killed or executed.29 Collective responsibility was at its widest in the earliest of the provincial laws, i.e., Eric’s Law of Zealand, which stipulated that, should the killer fail to pay his part of the wergeld, the responsibility passed to the first male relative on the father’s side. If that relative was unable to pay the first installment, he lost his mandhelg—the rights of the free man, which allowed him to, for example, raise cases in the thing. The obligation to pay the wergeld then passed on until either the first installment was paid or the three nearest kin on the father’s side had lost their mandhelg. In the latter case, the duty passed to the mother’s side and followed the same procedure.30 Only in Eric’s Law of Zealand do we find the principle that kin should pay the first installment. Elsewhere, the prevailing principle was that the kinsmen paid the second and third installments, whether the first had been paid or not. This is seen for the first time in “the Ordinance of the kin’s collective payment of wergeld” (Ættebodslov), which Valdemar the Victorious proclaimed for Scania and is traditionally dated to sometime between 1202 and 1215. We know of two royal regulations in legal landscape of Scania in the early 1200s that aim to regulate payment of wergeld. The first, from 1200, is usually known as “Cnut VI’s Ordinance on Manslaughter for Scania.” Its purpose, according to its own wording, was to abolish the abuse that took place in manslaughter cases: Although no one ought to be supported in his evil, those who cast themselves out into manslaughter, for which they deserve to be impoverished, become rich, as they by theft and violent robbery force those who they consider their kinsmen, even though they are unrelated, to pay with them as much as they demand.31 29  Execution did not nullify kinship responsibility, as it was equivalent to being made an outlaw. 30   Ibid., vol. V, EsL. text 1, book 3, ch. 30, pp. 295–298. If, however, the killer died before he lost his freedom, his nearest heir was required to pay the first installment. Ibid., ch. 31, pp. 298–300. 31   “Quippe cum nemini deberet sua malicia suffragari. in homicidium corruentes. efficiuntur unde depauperari debuerant. locupletes. quos sibi consanguineos annumerant, licet extraneos. rapinis et depredacionibus uiolentis. ad satisfaciendum secum quantum exigunt. compellentes.” Diplomatarium Danicum, 1. serie, vol. 4, no. 24, p. 45. The passage outlining who is required to pay along with the killer (“Quos siberia consanguineos annumerant, licet extranet”) has been interpreted in differently over

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In other words, the problem was not the collective payment itself, but that people outside the kinship group had a kinship responsibility forced upon them, without any fixed framework for who should pay and how much. The regulation has the hallmarks of a law passed in a transitional period, in which canonical kinship had not yet supplanted choice- and alliance-based kinships from the ordinary man’s consciousness. It also served to strengthen canonical kinship responsibility, as the duty to take part in paying wergeld originated in “the bond of blood,” as Anders Sunesen wrote.32 Thus was established a procedure for sanction. It was asserted that these were not new regulations, merely a refreshing of old, forgotten ones.33 Nevertheless, legal historians recognized that the rules were in fact new and that to invoke their age alone was merely to reflect an ideological style.34 In addition, when the regulations are examined in the context of The Book of Inheritance and Heinous Crimes and Valdemar’s Law of Zealand, which do not mention kinship payment of wergeld, it appears that this was a relatively new practice. If one argues that collective kinship payment as found in the provincial laws did indeed have deep historical roots, one would expect that measures designed to prevent abuse would be mentioned in earlier legislation. The absence of such mention may be explained by the fact that the burden of payment was not previously on a fixed, defined group and was therefore a matter of the individual’s network. Furthermore, the introduction of canonical regulations for kinship certainly took a long time to be recognized, and then, many probably did not know who comprised their canonical kinship group—a situation that, according to the Ordinance on Manslaughter, was exploited by some killthe years. A translation of the regulation from 1546 says: “Even though they are from far away and foreign.” Ludvig Holberg wrote in Dansk og fremmed Ret. Retshistoriske Afhandlinger (Copenhagen 1891): “Force their kin, although the case has nothing to do with them.” Kroman and Iuul also translated extraneos as “unrelated” (Danmarks gamle Love, vol. 1, supplement to SkL. p. 84). Fenger was of the opinion that the regulation stipulated that it was distant kin who did not have a duty to pay (Fenger, Fejde og mandebod, p. 363, note 85). This interpretation is an excellent extension of my theory about canonical kinship, which might be summarized as: “Force those who do not belong to the canonical kinship group.” 32   “Obligatum autem coniuneccione sanguinis.” Danmarks gamle Landskabslove, ASP. ch. 45, p. 524. 33   Ibid., vol. I.2, supplement to SkL. p. 777. 34   See, for example, Fenger, Romerret, p. 62; and Knut Helle, “Lov og rett i middelalderen,” in Else Mundal and Ingvild Øye, eds., Norm og praksis i middelaldersamfunnet (Bergen 1999), p. 18.



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ers. In other words, collective wergeld payment as a principle was not necessarily new, but placing responsibility for the payment upon the canonical kin group was. However, Cnut’s regulation did not last long. It was soon replaced by Valdemar the Victorious’ Ordinance on the kin’s collective payment of wergeld, which tightened up the issue of the killer’s personal responsibility. Now, the killer himself was to be responsible for the payment of the wergeld if none of his kin offered to help him, which at first glance seems to alleviate the kinsmen’s responsibility. However, if the killer did not pay the fine, he was outlawed and had to flee—which probably happened more often than not, as very few could afford to pay a full wergeld. The flight of the killer did not close the case; the wergeld still had to be paid. The first third of the wergeld was deemed lost, but the killer’s kinsmen were obliged to pay the remainder, with the mother’s and the father’s side each paying one installment. If the wergeld was not paid, the victim’s kin had the right to take revenge. [The killer’s kinsmen] “can reproach themselves that they did not pay the wergeld,” as the Ordinance states.35 In other words, the kin might as well help the killer pay the fine in the first instance, since the kin’s liability was the same no matter what happened. In the longer term, the rules from the Ordinance on the kin’s collective payment of wergeld established a precedent for the rest of the Danish kingdom. The same principle is seen in Thord’s Articles, the Law of Jutland,36 and in Eric V’s Helsingborg Regulation from 1283, which states: The kinsmen shall not by the King be forced to give something [of the wergeld], unless he [the killer] flees as an outlaw. Then the closest kin shall pay two installments and according to the country’s old customs receive the support of their kin.37

35   “Oc kunnj sic sialua yuir. at the buthu æi bøtær.” Danmarks gamle Landskabslove, vol. I.2, supplement to SkL. text 2, p. 735. 36   Ibid., Thords Artikler, text 6A, no. 61, p. 184; text 6B, no. 66, p. 234; text 6D, no. 63, p. 289; text 6E, no. 66, p. 316; text 7, no. 71, p. 350; Erik Krabbe: 61, p. 421. 37   “Nec cognati compellantur per dominum regem contribuere cum homicidis, nisi forte pace priuati fugerint, tunc propinquiores soluant duo ættæ sal et secumdum terre antiquam consuetudinem recipiant suum stuth de cognatis.” Aage Andersen ed., Den danske rigslovgivning indtil år 1400 (Det danske Sprog- og Litteraturselskab og Selskabet for Udgivelse af Kilder til dansk Historie) (Copenhagen 1991), Lex Erici regis Danorum, ch. 4, p. 106.

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Ole Fenger has convincingly argued that the Helsingborg Regulation had all the characteristics of a ‘king’s peace,’ and that is why the rules covered the whole kingdom.38 In other words, even though the killer’s individual responsibility was increased, the kin group’s collective responsibility was retained. In the vast majority of cases, this presumably had only ideological, not practical, consequences, since the kinsmen gained nothing by not helping the killer. At the same time, the wergeld regulations clearly illustrate the far-reaching consequences of the canonical perception of kinship: it forced the transformation of the earlier, more fluid practice so that it could fit the new definition. The Swedish legislation Unlike in Denmark, the laws in Sweden did not reach the same consensus about how wergeld should be paid and by whom. Wergeld regulations can largely be divided into two categories: one in which the kin were collectively liable, as in the Norwegian and Danish provincial laws; and one in which the opposite principle held sway, i.e., that kin had no obligations vis-à-vis the killer. Between those two categories lies the Östgöta Law, under which kin had no direct duty vis-à-vis the killer but did have an obligation towards the victim’s kin. In terms of the kin’s responsibility for wergeld payments, it is difficult to accurately date and geographically locate a specific progression in the Swedish laws. Kinsmen were forced to contribute to the payment under both versions of the Västgöta Law—the Hälsinge Law and the Dala Law—albeit to different degrees. The two regulations are more or less identical; both presented a choice between being made an outlaw or paying wergeld. However, the snag was that it was up to the victim’s heirs to decide whether they would accept the wergeld. If the parties reached agreement about fines, then (as in the Danish laws) the killer first paid his share, after which his heir or heirs had to pay fines to the victim’s heirs. The installment amounted to six marks, the same as the kinship fine, which was to be paid to the victim’s kinsmen— three marks each from the father’s and the mother’s side. This was divided in such a way that the closest kin paid and received the most.

  Fenger, Fejde og mandebod, p. 449.

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Under both laws, kinship was calculated “until sixth man,”39 i.e., up to and including the sixth degree. All killings also required that wergeld be paid to the king and to “all men.”40 The responsibility for payment is quite remarkable, as it follows neither the old canonical manner of calculating kinship, which was valid until the Fourth Lateran Council, nor the new one that replaced it, but instead lies somewhere in the middle. A possible explanation for the use of the sixth degree in the older Västgöta Law might be that it was borrowed from one of the Norwegian laws. If so, the appearance of the sixth degree in the later version must mean that its scribe or author directly copied the rule from the older version and did not consider the relationship between canonical kinship and wergeld payment. In other words, there was no universal, natural link between canonical kinship and wergeld payment. Rather, it was the canonical method of counting kinship that was the basis of the rule and, thereby, defined the limits of responsibility. The Hälsinge Law’s procedure for wergeld payment has many similar features. Again, the victim’s closest kin could determine whether they wished to accept payment or whether they preferred revenge, which in practice probably meant that the killer had to flee as an outlaw. If they chose wergeld, the law included highly specific rules governing how much the individual kinsmen should pay or receive, covering all kin “to the fourth degree.”41 The law adjusted the payment in accordance with the prevailing canonical regulations for kinship. As in the Västgöta Laws, the killer also had to pay the king, whereas districts did not have the same right to payment. In the Dalar Law, sanction was paid in a slightly different way. The killer himself had to pay half of the wergeld, and “his brother, if such existed and has shared assets with him, shall pay along with the kinsmen: together they will pay half of the wergeld.”42 This regulation is notably vague. It makes no mention of the degree to which kinship should be calculated, nor of how much each should pay, nor whether

39   “Til sættæ mans.” Schlyter, Corpus iuris, vol. 1, VgL1. Af mandrapi, ch. 1, pp. 10–11 and VgL2. Dræpare, chs. 4–7, pp. 123ff. 40   “Allir mæn.” Ibid., VgL1., Af mandrapi, ch. 5, §1, p. 13 and VgL2. Dræpare, ch. 10, p. 126. “All men” referred to all of the district’s inhabitants and meant that in practice wergeld applied to districts. 41   “Till fiærþae manz.” Ibid., vol. 6, HL. Manhæliæs, ch. 38, p. 60. 42   “Hans broder, om sådan finnes och har skiftas med honom, skall gälda böter tillsammans med ätten: de alla böta halva boten.” Svenska Landskapslager, vol. 2, DL. Manhelgdsbalken, ch. 10, p. 32.

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the mother’s side should pay as much as the father’s side. On the face of it, it seems that such a fluid rule would be a source of strife, as the only people who were definitely obliged to pay were the killer’s brothers. The clause even suggests that the main responsibility for payment of half of the wergeld lay with the brothers, even though it was expected that the kinsmen would lend a helping hand if the brothers did not manage to pay the whole of their share. If that happened, or if the killer had no brothers, it must surely have led to grave problems in negotiating the wergeld agreement. While the other laws stipulated that when the closest or one of the closest kin were expected to pay extra, this duty fell in the first instance on the heirs—in other words, the killer’s sons. In the Dalar Law, the heirs seem to have no particular responsibility. Instead the burden was placed upon the brothers, even though heirs were ahead of brothers in the line of succession. The brothers were only obliged to pay half of the wergeld if the parents’ estate had been shared; otherwise the “the brothers who live together all pay together if a crime was committed, except in those cases where the crime fell under the category of heinous crime or prostitution.”43 In this case, it is not clear whether the killer and his brothers would pay the whole wergeld or whether the kinsmen were expected to pay half. As discussed previously, the kin had no responsibility to help the killer under the Östgöta Law. The act of killing automatically meant “he who killed has through the act forfeited his freedom and everything he owns within the country and provincial thing, land exempted.”44 However, the killer’s kin did have obligations vis-à-vis the victim’s kinsmen: “Now the man of strife’s kin must pay a fine of reconciliation; [. . .] the kinsmen on the father’s side pay two parts and those on the mother’s side one third.”45 The victim’s kinsmen should receive and distribute the payment in the same way, and wergeld should be paid to both the king and the district. There are several important aspects to the Östgöta Law’s wergeld regulations. First, the killer was required to pay without assistance from his kinsmen, while they were required to pay

  Ibid.   “Þæn sum drap han hauær firihuggit friþi sinum. ok allu þy firi huggit sum han a innan lanzs ok laghsaghu. for utan eghn sinne.” Schlyther, Corpus iuris, vol. 2, ÖgL. Drapa, ch. 3, p. 48. 45   “Nu skal þön æt oranbot böta sum araþær . . . þær skulu tua lyti fæþrinis frændær böta ok þriþiung frændrini a möþrinit.” Ibid., ch. 7, pp. 53–54. 43 44



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fines to compensate for the breach of their peace inflicted upon the victim’s kin. Another aspect of interest to legal historians is that the wergeld was not evenly divided between the mother’s and the father’s side of the kin group. Instead, it followed the new rules for inheritance, according to which daughters inherited half as much as sons, meaning in the case of wergeld that the father’s side paid and received twice as much as the mother’s. The law elsewhere explained that this was a relatively new regulation, so the same must be true of the chapters about wergeld. This demonstrates that the formulation of the wergeld regulations was closely linked to the kin’s inheritance claims against one another. In the Östgöta Law, it was the duty of the victim’s family to accept fines—unless they apprehended the perpetrator red-handed, in which case they were permitted to kill him without consequence. Should this occur, however, the killer’s kinsmen were not freed from their responsibilities. They were still obligated to pay both a reconciliation fine to the kinsmen and a wergeld for the killing to the district and the king.46 The wergeld to the king and the district was largely unavoidable. Even in cases where two men killed one another in a fight or combat, their kin had to pay wergeld, although there was no need for a reconciliation fine, since the loss was mutual.47 In the Uppland, Södermanna, and Västmanna laws, kinsmen bore no responsibility for killers.48 Under these laws, the killer had to pay the whole 40-mark wergeld himself. The payment was distributed three ways among the victim’s heirs, the hundred, and the king. It is quite clear in all three laws that the kinsmen were not expected to help pay wergeld if the killer was too poor to pay the whole amount. If the killer was unable to pay, then his property was divided evenly between the three parties. However, under the Uppland Law, the killer who was unable to pay faced loss of his own life in compensation for the one he had taken. The regulations show that killing was not regarded as a matter simply between the killer and the victim’s heirs but as a public crime that required atonement. Underscoring this is the fact that the laws make provision for the possibility that the victim’s heirs might

  Ibid.; ÖgL. Drapa Balken, ch. 2, pp. 46–47.   Ibid., ch. 1, p. 46. This regulation recurs in the Uppland, Södermann, and Västmanna laws and finally became national when it was included the Law of the Realm. 48   The regulations about killing are found in the following places: ibid., vol. 3; UpL. Manhælghis Balken, chs. 9 and 10, pp. 138–140; vol. 5, VmL. Manhælghis Balken, ch. 9, pp. 143–144; and vol. 4, SmL. Manhælghis Balken, ch. 25, p. 153. 46 47

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not want to accept wergeld but instead desired revenge. In these cases, the Södermanna Law prescribed that “If he [the heir] wishes to avenge himself and not accept fines, then he must pay to the wife and the hundred the fines due to them.”49 A similar resolution appears in the Uppland Law.50 Since the authorities’ rights remained the same, these regulations must have meant that refusing wergeld was a major economic burden. Only the Västmanna Law allowed the plaintiff to freely choose between revenge and wergeld without financial repercussions. The killer’s personal liability was more clearly stipulated with the introduction of the Law of the Realm, and capital punishment became more important. Yet the close kin’s responsibility vis-à-vis the victim’s kinsmen and the authorities was retained when the killer was unable to fulfill his obligations himself. Furthermore, the law clearly differentiated between whether the killer was captured shortly after the killing or not. If a killer was caught red-handed or within 24 hours of the killing, the law prescribed a life for a life.51 Within the first 24 hours, the victim’s kin also had the right to commit revenge—although this meant that they then had to pay wergeld to both the king and the district.52 If the killer survived the first 24 hours, then the law demanded that wergeld be paid—although, as point of departure, the burden of responsibility lay solely with the killer, with the important exception that the killer’s heirs inherited the wergeld should he die before it was paid.53 In many respects, the regulations in the Law of the Realm are similar to those in the Uppland, Södermanna, and Västmanna laws. This is not surprising, considering that the Uppland and Södermanna laws arose from royal mediation. However, despite the closer focus on personal guilt in the Law of the Realm, and despite the near abolition of the kin’s responsibility at this time, later documents show that collective responsibility did not entirely disappear until the seventeenth century.54

49   “Will han hæmmæ oc ei böter taka. fæstins kununge oc hundare böter æpte brutum sum þem til höre.” Ibid., vol. 4, SmL. Manhælghis, ch. 25, p. 154. 50   Ibid., vol. 1, UpL. Manhælghis Balken, ch. 10, pp. 139–140. 51   Magnus Eriksson Landslag, Dråpamålsbalken I, ch. 2, p. 222. 52   Ibid., ch. 3, p. 222. 53   Ibid., chs. 23–25, p. 227. 54   Bertha Phillpotts, Kindred and Clan in the Middle Ages and After: A Study in the Sociology of the Teutonic Races (1913; New York 1974), pp. 76–77.



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The Norwegian legislation Norwegian laws followed the same evolution as the Swedish, albeit in a more radical form. The collective wergeld payment was completely abolished by a national assembly under Magnus Lawmender’s government in Bergen in 1271.55 This prohibition was also included in the Law of the Realm: “Henceforth the wergeld will solely be paid from the assets of the killer, and solely to the victim’s heirs.”56 In addition, the rest of the victim’s kinsmen no longer had legal recourse to wergeld. If the killer’s assets were insufficient to pay the whole wergeld, the same regulations came into force as in the three East Swedish laws: the killer’s property was divided evenly between the heirs and the king.57 The reason for the abolition of the collective kinship payment can probably be traced back to early regulations about wergeld. Both the Gulathing and the Frostathing Laws contain a wealth of regulations about who should pay and receive wergeld.58 These regulations are exceptionally complicated, and it must have been almost impossible to keep track of who should pay whom, as payments had to be made and received in all manner of directions between kin on each side. The Gulathing Law was presumably an attempt to simplify the rules, albeit a not very successful one. A more drastic approach was adopted with Haakon Haakonsson’s addendum to the 1260 version of the Frostathing Law, which considerably reduced kinship responsibility and simplified the rules for payment.59 The most likely reason for the abolition of the collective payments is the confusion the regulations may have caused. The rules probably entered the statute book as part of the wide-ranging legislation intro55   The first steps were already taken in 1260 with King Haakon Haakonsson’s regulation for the Frosta area, in which collective responsibility was reduced and the killer’s liability increased. The regulation begins with a preface, parts of which were copied word for word from Cnut VI’’s Ordinance on Manslaughter. The starting point of Haakon Haakonsson’s regulation was that the killer should pay wergeld himself, but if he were not in the country, his kin should pay half, divided in such a way that the mother’s and the father’s side each paid a quarter. Jan Ragner Hagland and Jørn Sandnes, eds. and trans., Frostatingslova (Oslo 1994), Innleiing and chs. 1–8, pp. 3–6. 56   “Þa skal þar nu af þers eins fe bota er drap erfingia hins dauda einum.” Norges gamle Love, vol. 2, MLL. Retterböder, ch. 2, p. 176. 57   Ibid., Mandhelgebolk, ch. 3, pp. 49–50. 58   For a total overview, see: ibid., vol. 1, FL. VI, chs. 2–3 and 7–47, pp. 184–197; GL. chs. 69–88, 90 and 92–103, pp. 74–82. 59   Ibid., FL. Innleiing, chs. 1–5, pp. 121–122.

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duced around 1164.60 Maybe the rules were perceived as an expression of a wide-ranging kinship responsibility that followed the limits of canonical kinship, but it is difficult to perceive the rules as a legal construct without a basis in actual conditions. In fact, their purpose seems far more ideological than practical. This hypothesis is strengthened by the wording at the start of the regulations about the payment and sharing of wergeld in the Frostathing Law.61 The words reveal uncertainty about how much wergeld should be paid, and also that noted that the enmity between two men’s families decreased as the nature of the kinship became more remote. This arguably explains why the wergeld became smaller and smaller in the outer reaches of the kinship.62 It is certainly conceivable that collective payment of wergeld was a practice in the Norwegian provinces before 1164, but that it took place in accordance with a choice- and alliance-based kinship system that knew nothing of the narrow and complicated canonical regulations. Lars Ivar Hansen is somewhat more careful in his dating and will not date the wergeld regulations, as they are known today, any more closely than to between 1152 and 1153, during which period the dispensation to calculate kinship to the sixth degree was given, and the Fourth Lateran Council was held.63 A similar example of constructed rules that were very difficult to implement in practice can be found in the Frostathing Law’s proclamations on the rights of freed thralls. By comparing different rules about the transition from one type of freedman to the next, Tore 60   Bertha Phillpotts proposed that the regulations’ real use must have been highly restricted, because, in her view, they would have been used only if a kinsman on the victim’s side insisted upon his right. In addition, he would also need to possess the necessary strength and power to ensure that his demands were met. As a result, she warns against using the regulations as an expression of real kinship, solidarity, and responsibility. Phillpotts, Kindred and Clan, pp. 64–65. 61   “Her hefr upp oc segir i frá þvi er flestum er myrkt oc þyrktu þó marger at vita. fyrer þvi at vanđræđi vara manna á millum. en þeir þverra er bædi hörđu til vit oc gođan villia. hvesso scipta scylldi ákveđnum bótum ef þar ero đomđar. fyrer þvi at þat er nú meiri siđr at ánemma bætr hvesso margar marcr gills uppi sculu vera epter þann era f var tecinn. oc vellđr þat at marger vito eigi hvat laga bot er. en þó at vissi. þá vilia nú fár þvi una.” Norges gamle Love, Ældre Frostathings-Lov, VI, ch. 1, p. 184. 62   This contradicts the interpretation of Jørn Ø. Sunde, who believes that the wording should be understood to imply that the duty to pay was, to a great extent, based on a special affiliation with the killer rather than on family connections. Sunde, Speculum legale, 54. 63   Lars Ivar Hansen, “The Concept of Kinship According to the West Nordic Medieval Laws,” in Ditlev Tamm and Helle Vogt, eds., How Nordic are the Nordic Medieval Laws? (Copenhagen 2005), pp. 170–201.



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Iversen reached the conclusion that from release to the achievement of full status as årboren64 could take up to eight generations. The first four generations were spent as a løsning (freedman) of lower grade, the fifth to eighth as a freedman of first grade. After that came a further four generations as årboren before one was able to enter the highest of the peasant classes, haulderne—assuming, that is, that you possessed sufficient land and prestige.65 As Iversen himself implies, it is very difficult to imagine that many people, especially those from society’s lower strata, would have been able keep track of the social status of family and kin over 12 generations. How many genealogists could do it today? It is quite possible that the rules were intended to hold groups of people in a state without full legal rights in order guarantee the existence of cheap labor, but this can hardly be the full explanation. It can be no coincidence that the process from being in thrall to entering the upper social layer among the peasants took three times four generations—meaning that, at each stage, four generations must pass before the descendants could be freed from their earlier status. These four generations corresponded to the during which it was forbidden to marry a kinsman, because it took that many generations for the blood tie to be considered nullified. It seems quite probable that canonical kinship was the model for this apparently absurd process.66 It would take far too long to go through the Norwegian wergeld regulations in detail here, as they are extremely complicated.67 They take into account and specify every single kinsman’s contribution, and there are so many minor variations between the Frostathing and Gulathing Laws that to cover them all would fill a whole book on its own. Our emphasis here is not on outlining how much the killer’s maternal uncle had to pay to the victim’s sister’s son, etc., but rather reaching an understanding of how and why the system was developed. We are trying to identify overall patterns, not apply the law in practice.

64   Årboren was the name of the next-highest status of free peasants, whose ancestors had been freed eight generations earlier. Unlike haulderne, årboren could not possess freehold land. 65   Iversen, Trelldommen, pp. 210–229. 66   In addition, there must be a direct link between the rules for when land could achieve the status of freehold land, namely that it had to have been in the same family’s possession for four generations, and the social ascent from thrall to full legal citizen. 67   For a more detailed account, see, for example, Hansen, “The Concept,” pp. 170– 201; or Vestergaard, “The System of Kinship,” pp. 160–193.

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The fundamental principle was a hierarchy created around male kin on both sides. The closest relatives—the father, sons, brothers and a couple of the closest kin on the father’s side—made up a special group called a baug. The bauggildemen from the killer’s kin group had to pay a fixed sum to those from the victim’s kin. Each bauggildeman paid the person who was related to the victim in the same way as he was to the killer. After the bauggildemen came the closest kin on the mother’s side and then the people who were most closely related through women on the father’s side. Under the Gulathing Law, the killer was supposed to pay each of these a fixed sum, while the Frostathing Law prescribes that the killer’s kinsmen should pay the corresponding person on the victim’s side, for example, maternal grandfather to maternal grandfather—the same principle as for the bauggildemen. However, after this first stage, the details became tortuous. Kinsmen on the killer’s side had to pay wergeld to kin on the victim’s side, but it was not merely as simple as the killer’s paternal uncle paying the victim’s paternal uncle—he also had to pay the victim’s son, brother’s son, maternal grandfather, daughter’s son, maternal uncle, sister’s son, and so on and so on. The same pattern repeated itself for a whole string of kin, even as far removed as illegitimate maternal uncles. On top of that, wergeld was sometimes paid in pairs that did not exactly correspond—for example, the maternal mother’s brother to the sister’s daughter’s son and vice versa. There was also the question of who should pay for or receive the wergeld if one of the aforementioned kin did not exist, e.g., if the maternal uncle had no son or, even more problematic, if the mother had no brother. In these cases, another kinsman was expected to step in and take over the obligation.68 Lars Ivar Hansen lists the number of transactions that in theory should take place in the event of payment of wergeld according to the Gulathing Law, and he reached the overwhelming figure of 210.69 In the Frostathing Law, the duty to take part in paying wergeld went to the sixth canonical degree, which was also the limit for kinship: “Further out in the kinship group we do not levy fines for the reason that it is then legal to get married and the kinship stops. Such must 68   The wergeld regulations were not absolutely identical in the Gulathing and Frostathing Laws, but the above is an attempt to illustrate the core essence of the collective wergeld regulations. The starting point is an overall view rather than the specific details. 69  Hansen, “The Concept of Kinship,” pp. 170–201.



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be the interdependence between wergeld and kinship.”70 The legislators could not have expressed the relationship any more clearly. The Gulathing Law does not contain the same obvious relationship, as the duty in this case extended all the way to the eighth canonical degree, which is somewhat strange, because it is even further than the limit for kinship prior to 1152/53 in Norway.71 Lars Ivar Hansen made the following observations about this curiosity: However, the amount of the fines to be paid shows a sharp break in value calculation when moving from the sixth to the seventh canonical degree. This would also suggest that the theoretical scheme originally had been limited to the actual extension of the canonical marriage prohibition—as implemented in the Norwegian archdiocese—and that a further construction had been appended at a later time.72

The existence of a clearly delineated difference between collective responsibility within and outside the canonical kinship group is interesting in itself, but Hansen does not explain why responsibility was later expanded from the sixth to the eighth degree. Indeed, the argument can also be turned around. A case can be made that the eighth degree was parameter that predated 1152/53 and that the regulation thereafter ensured that the main responsibility fell well within the parameters of canonical kinship. The somewhat cryptic eighth degree was changed in the early thirteenth century. The exact year of its introduction is not known, but a new part, The Scale of Bjarne Mårdsson, was added to the Gulathing Law.73 The Scale was a revision of the earlier regulations about wergeld, but it was no less complicated than its predecessors. Hansen suggests that the regulations could have been a compromise between different principles of how wergeld should be administered, and that the Frostathing Law regulations, for example, were a source of inspiration. Overall, Hansen’s study confirms, in the finest manner, the main hypothesis of this book—namely, that there was a close

70   “Taci þeir er setta manne er frændsemi viđ hinn đauđa. . . . En fyrir þvi bøtum ver nú eigi lengra upp i ætter. at á þá er byggianđa oc liđin frændsemi. Varla má vel allt samen vera satir oc sifstapir.” Norges gamle Love, Frostathing-Lov, VI, ch. 11, pp. 186–187. 71   Where it went to the seventh degree until papal dispensation was granted in association with the establishment of the archdiocese. 72  Hansen, “The Concept of Kinship,” pp. 170–201. 73   For more on Bjarne Maardsson as a historical figure and his Scale, see, for example, Helle, Gulatinget, pp. 14–17.

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connection between wergeld legislation and canonical kinship.74 Since the collective responsibility extended beyond the sixth degree, The Scale of Bjarne Mårdsson probably dates from the first decade of the thirteenth century, i.e., before news of the Fourth Lateran Council reached Norway. It is highly conceivable that a new law would have to be adjusted to the new limits for kinship, although this cannot be ascertained for certain, as there are several other laws that retained the old method of calculating kinship. The Norwegian wergeld regulations clearly illustrate that intention and practice do not always go hand in hand. In all probability, the intention was to strengthen family ties according to the canonical pattern, but this did not work very well in practice. Furthermore, by the time that collective responsibility was eventually abolished, the political agenda likely had changed over the 100 years since the strict rules had been introduced. The concept of canonical kinship had broken through in society on other fronts, for example, through law pertaining to freehold rights, Moreover, the central authorities were far better equipped to cope with civil strife than they had been during Magnus Erlingsson’s uncertain reign. All the laws about killing differentiated between those killings which broke the peace (known as heinous crimes or edsörebrud) and were particularly severely punished, and “ordinary” killings that did not break society’s peace and therefore were largely considered private matters between the killer and the victim’s nearest kin—or, when appropriate, both kin groups. The Danish provincial laws clearly developed over time. The oldest legislation only regulated heinous crime and non-payment of wergeld. The payment and distribution of wergeld was entrusted to the parties themselves, without any strict instructions governing how fines should be paid and received. In later laws, collective kinship responsibility became institutionalized, and kin to the fourth degree within the canonical kinship system either had the right to receive or were obliged to pay wergeld. The Swedish area was not as consistent in its wergeld regulations. Roughly speaking, there were two principles: one where the kinsmen had no duties vis-à-vis the murderer; and one where the kin had to take part in the paying of wergeld. In the middle is the Östgöta Law’s  Hansen, “The Concept of Kinship,” pp. 170–201.

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mixed model, in which duties were divided between the killer and the victim’s kin, while no responsibility existed vis-à-vis the killer from the kinsmen’s side. No direct geographic or chronological pattern for the two principles can be extrapolated. Collective payment was found in both versions of the Västgöta Law as well as in the later laws from Hälsingeland and Dalerne. The principle that ultimately emerged as victorious was that which assigned the killer sole responsibility, as laid down in Magnus Ericsson’s Law of the Realm. However, the killer’s kinsmen did not lose responsibility completely; they were required to contribute if, for example, the killer fled or in some other way failed to pay the wergeld. The relationship between canonical kinship and wergeld payment was therefore not as pronounced in the Swedish laws as in the Danish and Norwegian laws. The reason for this is difficult to determine, but one explanation might be that the royal power attempted both to maintain control of the financially profitable murder cases and to secure its position of power by demonstrating that it was able to regulate strife without the help of kinsmen. As in the Danish laws, the Norwegian provincial laws feature a clear link between canonical kinship and the collective payment of wergeld. Nevertheless, collective responsibility was completely abolished with Magnus Lawmender’s Law of the Realm. The reason for that can probably be found in the ways the provincial laws organized the collective payment of wergeld. In Danish law and several Swedish laws, wergeld was split between the father’s and the mother’s sides of the kin, and the amount paid and received by individuals on each side was based on how closely related they were to the killer or victim. In the Norwegian laws, every single kinsman’s obligations were spelled out, and the number of transactions was huge. Certainly the system was highly structured compared to simply reciting all conceivable kin, but in practice, it must have been very unwieldy. The complexity of the wergeld system, along with the fact that Magnus Lawmender enjoyed a strong position of power that rendered him capable to regulate strife, probably led to the abolition of collective sanction in Norway. The wergeld regulations are a good example of the different ways in which kinship responsibility was applied in the Nordic kingdoms. However, it is difficult to avoid speculation about the extent to which the prescribed patterns of payment were used in practice. Since virtually no sources have survived, we are forced to fall back on hypotheses. The procedures outlined in the Norwegian provincial laws seem so unrealistic that we must conclude that their purpose must have been

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more ideological than practical. According to Ole Fenger, something similar could also have been the case with the Danish rules. He argues that stricter responsibility vis-à-vis the killer and the kinsmen, especially as prescribed by the Ordinance of the kin’s collective payment of wergeld, led to a gulf between the legal culture, of which the laws were an expression, and the customs of revenge and feud that he believes were dominant.75 Fenger’s contention that the feud played a great role in the application of the law is debatable, but high wergeld demands (a major share of which went to the king) must undeniably have been motivated the involved parties to seek a solution that avoided the courts. This section has shown that many of the laws maintained a close link between collective payment of wergeld, maintenance of the peace, and canonical kinship. This relationship showed up in the mutual control of acts of violence between kinship groups—a natural consequence of collective responsibility whereby an individual’s actions could have serious financial and social consequences for his kin. The canonical kinship group’s mutual obligations, and therefore their responsibilities, were used for peace-making purposes at a time when the central authorities were not strong enough on their own to prosecute all violent crimes. This meant that a differentiation was made between those offences that breached the peace and other forms of violence. Whereas the Crown’s efforts were directed towards penalizing those who broke the peace, it was the kinsmen’s duty to deal with “ordinary” killers, just as prosecution of such killings was the responsibility of the victim’s heir and his kinsmen. This is supported by the fact that a strong central power—such as Magnus Lawmender’s Law of the Realm or the East Swedish provincial laws—had to be in place before collective kinship responsibility could be abolished or restricted. Personal guilt, collective responsibility, and theological reflections Legal historians are divided over whether the collective payment of wergeld was fought by the Church and the Crown or not. Most historians believe that the Church fought to abolish the notion of collective responsibility; far fewer support the notion that the Church did

  Fenger, Fejde og mandebod, pp. 386 and 394.

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not actively seek to abolish it. This is probably because more scholars see the Church as focused on subjective guilt and salvation. Indeed, Church teaching naturally leads to the thought that any attempt to increase the subjective guilt of the killer must be derived from theological ideas. The Church’s interest in subjective responsibility can easily be connected with opposition to collective responsibility. The Church allegedly was motivated by an aversion to penalizing innocent people for the acts of others, and the Crown desired to break down the solidarity of the kindred, which according to many legal historians, and general historians as well, regard as a threat to the establishment of a proficient royal power.76 Ole Fenger described most clearly the theological foundation of the Church’s opposition to kinship solidarity and responsibility: Generally, Christianity, with its commands to the individual, disconnected from any grouping, and with its emphasis of the personal guilt and responsibility of the individual, would be destructive to any sense of group responsibility, and in general to any responsibility for others.77

Bertha Phillpotts was the first to oppose this argument. She pointed out that the Church in many places in Europe derived economic advantages from the collective payment of fines.78 Elsa Sjöholm has similar ideas, and she uses a similar argument about the interest of the Crown in fines. She asserts that the collective payment of fines assured payment of large fines, which the king would receive. If only one person had to pay the fine, the royal income would tend to decrease, since a murderer might not possess a large estate from which he could pay the fines. For example, in Norway, the royal part of the wergeld decreased dramatically when collective payment of fines was abolished.79 How two such different perceptions of the Church’s attitude towards collective kinship could emerge calls for an explanation. Parts of

76   The following scholars present these ideas: Gædeken, Retsbrudet, pp. 42–43, 46, and 64–68; Jørgensen, Manddrabsforbrydelsen, p. 29; Niels Skyum-Nielsen, Kvinde og slave (Copenhagen 1971), pp. 252–253; Fenger, Romerret i Norden, p. 101; Christensen, Ret og magt, pp. 14–15; and Hoff, Lov og landskab, p. 25. 77   Fenger, Fejde og mandebod, p. 198. 78  Phillpotts, Kindred and Clan, pp. 257–258. Phillpotts’ argument never gained a foothold in later research. More recently, David Gaunt has argued that the Church had no interest in weakening the collective responsibility between kinsmen because it tranquilized hotheads and therefore had a pacifying function. Gaunt, Familjeliv i Norden, pp. 209–210. 79   Sjöholm, Sveriges medeltidslagar, pp. 194–97.

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­Christian doctrine actually do focus on individual guilt and intention, but in the past, the distinction between the public and the private was not as sharp as it is today. The communal ideal for Christians was not to be a part of a collective but to take care of others rather than oneself. The doctrine of love of the New Testament aimed at doing good for your neighbor, without thought of your own profit. Central to this doctrine are scriptural passages such as “you must love your neighbor as yourself”80 and the regula aurea “always treat others as you would like them to treat you.”81 The best way to comply with the doctrine of love was to comply with the interest of the community. The reason why Christianity viewed promotion of the individual so negatively was probably the Christian ideal of humility: it should be present in all aspects of life, such as behavior, dress, food, and drink. This ideal became apparent and easier for the priests to convey in the preaching of the doctrine of the Seven Deadly Sins. The doctrine had its roots in the early Church but received its final form by Gregory the Great (590–604).82 “People who fall into vice of the seven main sins, sin against the first command. They have other gods, because they love other things more than God.”83 This is in essence the doctrine of the deadly sins. The seven sins were haughtiness, avarice, unchastity, gluttony, slothfulness, anger, and envy. The sins were closely connected; one often led to another. Haughtiness (superbia) was considered the worst—at least in the early and the High Middle Ages.84 Haughtiness emerged in particular with people who felt they were above the community, who thought they were better than others. Thereby it became the mother of the other sins and also the most serious.85 Haughtiness could be fought with humility, by being satisfied with what you had and submitting oneself to the common good. Not everyone was able to control his or her haughtiness. The Roskilde Chronicle describes Eric II as being extremely haughty, which in 80   Originally from Lev. 19:18, but repeated several times in the New Testament, a.o. Matt. 19:19, and 22:37, Mk. 12:31, and Gal. 5:14. 81   Matt. 7:12. 82  A thorough description of the development of the doctrine about the deadly sins is found in Morton W. Bloomfield, The Seven Deadly Sins (Lansing, MI 1952), pp. 72ff. 83  Anne Riising, Danmarks middelalderlige prædiken (Copenhagen 1969), p. 345. 84   In some areas of Europe, avarice takes the lead, but Anne Riising’s study of the Danish medieval prayers show that in the late medieval Denmark, priests still considered haughtiness the worst sin. Ibid., pp. 348–349. 85   Bloomfield, The Seven Deadly Sins, pp. 69–104.



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the end led to his death. The Chronicle hints at his salvation: “But Eric behaved as if he was an emperor, removed all hindrances, did not tolerate any equal or superior; haughty, elated, great in wickedness, terrible in everything, behaving like a thunderbolt.”86 At a thing near Ribe, he encountered a man named Plov (Plough), who killed him. “Plov, a cripple and short in stature, who could do nothing himself unless the Lord was in the plough, and the Lord was in the spear, just as the Lord was in the sling and the Lord in the stone.”87 When trying to construct kinship in this light, the meaning becomes different from just creating peace. By forcing people into a situation where solidarity and obligations toward relatives was the leading principle, canonical kinship became a way in which people were able to escape the haughtiness of the self and instead concentrate on others, thereby bringing themselves closer to their own salvation. It is therefore untenable to claim that the Church opposed communal thoughts because they may distract from personal guilt and salvation. The theological context was much more complex.

86   “Hericus autem, per omnia ut Cesar factus, omnia obstacula superans, nullum parem sibi, nullum priorem uolens, superbus, elatus et in malicia potens, per omnia terribilis more fulminis incessit.” Scriptores minores historiæ Danicæ medii ævi I–II, ed. Michael Cl. Gertz (Copenhagen 1970), vol. 1, Chronicon Roskildense, p. 31. Roskildekrøniken, ed. and trans. Michael H. Gelting (Copenhagen 2002) pp. 32–33, about haughtiness see also p. 74. 87   “Vir deformis, breuis stature, per se nichil [sic!] faciens, nisi dominus in aratro, dominus in lancea, ut dominus in funda, ut dominus in lapide.” Scriptores Minores, vol. 1, Chronicon Roskildense, p. 31. The sling and the stone refer to the tale about David and Goliath.

chapter eleven

INHERITANCE LAW IN THE PROVINCIAL LAWS The inheritance law was crucial for defining the mutual rights and responsibilities of kindred, because it specified the rules for donation and allodial rights (and thereby the decrees about fledføring) and thereby limited the full passion of people’s faculties. For the Church, nothing was more important in relation to the population than promoting the concept of canonical kinship. Inheritance laws protected and regulated the transfer of the material assets of the kin from generation to generation and were therefore the manifest expression of canonical kinship on the legal ideology. The right to dispose of one’s property and the closely connected right to inherit from others is of great importance for understanding the relation of, on one side, the wishes of the individual and, on the other side, the economic and social safety of the family and the kin, which the established inheritance laws safeguarded, to some extent. These desires could easily be in conflict, and the legal stipulations clearly indicate which interests those in power wanted to promote. For Scandinavia in general, not much information is available about rules or norms regarding inheritance that existed before the provincial laws. From the Swedish province Östergötland there is evidence that daughters were excluded from heritage if they had brothers,1 but it is impossible to conclude that this stipulation was valid all over Sweden. Most scholars believe that the earlier inheritance stipulations benefited one or all sons. Of equal importance is the question of whether the inheritance law before the introduction of the provincial laws consisted of a fixed set of regulations, which allowed no deviation, or if there existed a more flexible set of norms, which could be fitted to the will of the testator without greater consequences. Earlier researchers tended to regard firm inheritance rules as an institution that existed long before medieval times. They used the concept that the oldest son was the universal heir to explain Viking raids as an attempt by younger

  Schlyter, Corpus iuris, vol. 2, ÖgL. ÆrfÞa Balken, ch. II, pp. 114–115.

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sons to acquire an estate and prestige.2 Modern scholars have abandoned this interpretation in favor of a more nuanced debate. They see the norms and stipulations prior to the provincial laws being modified and discussed, driven by conflicting interests among diverse social groups regarding the distribution of inheritance and other resources.3 Another discussion deals with the problem of whether the individual had more options before the provincial laws with respect to distribution of his estate mortis causa, whether he could decide by himself how to distribute the inheritance among children and relatives. That would certainly be the case if no inheritance law existed, and if only the above-mentioned set of norms were to be found. If a more free right of disposal of estate existed, this would have implied that threatening and competitive conflicts over access to the resources of the family or the relatives would be immanent in the kinship group. Lars Hermanson describes the kinship understanding in twelfth-century Denmark as based on networks of alliances. He states, “The political kinship groups were a permanent hotbed for feuds over inheritance, since no stringent rules of inheritance could be based on this multifaceted kinship system.”4 At the same time, one could argue that firm inheritance rules make it impossible for parents to favor one child and thereby open the opportunity for the social ascent of a favorite. The same is actually the case in relation to the dowry. When daughters obtained inheritance rights, the dowry was to be returned to the estate at the death of the parents; it would then become a part of the inheritance that would be shared. The dowry became a kind of advancement or initial capital. If one could not offer a large permanent dowry, it was more difficult to attract suitors of a higher social status. Firm inheritance rules therefore limited social mobility and thereby preserved the existing social order. It must be acknowledged, however, that the laws also limited inheritance conflicts among relatives. Thus, inheritance rules had a peace-creating effect that connected them to canonical kinship. Within the inheritance law there are several exceptions to the decrees about who had the right to inheritance, and I will treat these 2   Åke Holmbäck, Ätten och arvet enligt Sveriges medeltidslagar (Uppsala 1929), p. 69; and Jørgensen, Dansk Retshistorie, p. 194. 3  Lars Ivar Hansen attempts in “Slekskap, eiendom” to identify the different interests groups in the Norwegian materials. 4  Hermanson, Släkt, vänner och makt, p. 10.



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only sporadically in the following chapters. In particular, the status of children born out of wedlock is regulated in a series of laws according to the status of the cohabitation—whether it was an official concubine, a casual relation between two unmarried persons, or adultery. There were also particular regulations concerning the inheritance of halfsiblings and nokke-women—that is, women, who did not have brothers or other male wardens—the loss of the right to inheritance when entering a monastery, when murdering the testator, and the right of spouses to inherit from one another. I exclude these topics because the focus here is on the distribution of inheritance among relatives under “normal” circumstances. Moreover, to address them would demand an extensive presentation of the inheritance law. Because my aim is to determine how canonical kinship appears in the laws, I give the special cases a lower priority. Dowry Dowries are important for understanding the sale of real estate, but it seems more appropriate to treat them together with the inheritance law, because provisions concerning dowry are intimately connected with provisions of inheritance. There were two kinds of inheritance provisions in the provincial laws. In the first instance, daughters had equal inheritance rights with brothers, and in these instances there were few dowry provisions. Instead, there were so-called “marriage gifts” that parents could give to a child, son or daughter, when entering marriage. This gift should be returned to the parents’ estate, however, and should included when the estate is divided at their death. The other form was actual dowry, which is found primarily in Norwegian laws, in which male right of inheritance preceded that of females. The capital portion In order to understand the rules of inheritance in the Danish provincial laws and in Nordic laws influenced by the Danish legislation, one first must explain the notion of the capital portion. The capital portion functioned as a scale for distribution of the estate at the division of the inheritance or at donations. At death, the capital portion was estimated on the basis of the number of heirs, so in case of heirs of the body, a son got a full portion whereas daughters got a half portion

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only. If there were three sons and no daughters, each got one-third of the inheritance. If there were three sons and two daughters, the sons got one fourth each, and the daughters one eighth part, etc. If the heir wanted to donate part of the estate to others than the legal heirs, he would take part in the distribution of capital portions, as he had the right to dispose of a half capital portion. At the division of inheritance the distribution of capital portions could be performed in two ways. If it was inherited land, the inheritance would be distributed among the legal heirs, whether or not they were members of the same fællig5 as the testator. At the death of a member of the fællig, his movable estate and potential purchased land was to be distributed within the fællig; external heirs would not have a share in it. Movable estates and purchased land might also be inherited according to the ordinary inheritance rules, if the testator was not a member of a fællig. It is not known, however, how common it might have been in the High Middle Ages that childless or unmarried people, for example, were not a member of a fællig. The main purpose and character of the capital portion has an important position in legal history. The most important contribution on the topic is Stig Iuul’s 1940 dissertation, “Fællig og Hovedlod,” which discusses all aspects of the capital portion.6 I will not discuss the capital portion in detail but will consider it as a tool that facilitated the division of the estate.7 The calculation of capital portions was not unique for Danish inheritance law; it was also found in classical Roman inheritance law, specifically the Institutes of Gaius from around AD 160, which states: “But it has been settled for some time now that the inheritance should be divided by heads.”8 The Justinian Roman law maintained the Capita-

5   Fællig is the name for a special kind of household community found in Denmark in the Middle Ages. The members of a household, often parents, children, and perhaps sons or daughters-in-law and grandchildren, had joint ownership of chattels and land, if it was not inherited or bought from a third party who was not a relative. 6   Stig Iuul, Fællig og Hovedlod. Studier over Formueforholdet mellem Ægtefæller i Tiden før Christian V’s Danske Lov (Copenhagen 1940). 7   The problem of the capital portion will also be discussed in the chapter on donations. 8   My emphasis. “Iam dudum tamen placuit in capita diuidendam esse hereditatem,” The Institutes of Gaius, eds. and trans. W.M. Gordon and O.F. Robinson (Cornell 1988), III, 16, p. 129/275.



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model both in the Institutiones and in Novella 118.9 The fusion of Capita and inheritance law can be found in several European law codes from the early Middle Ages. Some sporadic inheritance stipulations can already be found in the Pactus Legis Salicae from around 507–511 (in other words before the compilation of Justinian’s law code) implies that it was normal to calculate inheritance based on heads.10 The Danish notion of capital portions, therefore, follows a long legal tradition in dividing property according to the number of heirs. In Danish laws, the capital portion had an extended meaning, since the notion did not refer to division of inheritance only but also to the size of an estate, a person could dispose of freely. In general, the inheritance laws of the provincial laws follow either the gradual system or the parental principle. The basis of the gradual system was exclusively the distance to the deceased, typically in the way that if the deceased has no children, the inheritance goes to the parents instead of potential grandchildren or great grandchildren. The parental principle, in contrast, is based on the parents and their descendants. The first parental consists of all the descendants of the deceased, and only if there are none does the inheritance goes to the earlier generations, the parents and their potential descendants, and only if this category is bare does the inheritance go to the third parental, the grandparents and their descendants. With regard to inheritance law, it is possible to distinguish between provincial laws, whose inheritance systems are based on either the gradual principle or the parental principle. The Norwegian and West Swedish laws follow the gradual system, whereas the parental principle dominates in Denmark and Eastern Sweden. However, parental inheritance in its absolute meaning is not found in the provincial laws.11

  Justinian’s Institutes, eds. and trans. P. Birks and G. McLeod, Latin text Paulus Krueger (Cornell 1987), III, 1.16, pp. 30/ 93–94, and III, 3.5 p. 31/97. The last decree deals with the division of inheritance if a person left a mother and siblings. The method resembles the one that is found in the Danish laws, since the portion given to the mother varies if there were sisters or brothers. Corpus Iuris Civilis I–III, eds. Theodorus Mommsen, Paulus Krueger, Rudolfus Schoell, and Guilelmus Kroll (Weidmannos, Berolini 1963–66), vol. III, Nov. 118, ch. III, § 1, p. 520. 10   The Law of the Salian, Pactus Legis Salicae, ch. 59, § 6, p. 107. 11  Lars Ivar Hansen, Birgit Sawyer, and Elsa Sjöholm, in particular, have studied the difference between the gradual system and the parental principle in the Nordic provincial laws. Sjöholm, Sveriges medeltidslagar, pp. 120–129; Hansen, “Slekskap, eiendom,” pp. 119–123 and “‘Ætten’ i de eldste landskapslovene,” pp. 38–42. Birgit  9

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Whereas Danish inheritance law is uniform, the Swedish rules of inheritance have two categories. In the first, sons superseded daughters when inheriting from their parents; in the second, daughters also inherited even when there were male heirs, though their inheritance portion was smaller. Furthermore, the rules of inheritance in the Norwegian laws often differed from the Danish and Swedish. Most conspicuously, Norwegian provincial laws describe the inheritance procedures in the minutest detail. The laws mention almost all relatives who may become heirs. This minute survey of kinship relations constitutes a large portion of the laws, and I will only present the main features here. The enumeration of almost all possible relationships of the kindred who can also be observed in relation to the stipulations of wergeld is interesting, because it confirms that the authors of the laws found it important to mention all relatives who might inherit, even if their chances were minimal. They probably did so because the Norwegian laws were created at an early date, which made it more important to emphasize canonical kinship than it was in the later Danish and Swedish law codes. Another peculiarity about the Norwegian rules of inheritance is the strong patriarchal element. Men, and in particular the agnatic lineage, had precedence in comparison to women or the maternal lineage to such an extent that it was not only the relative on the father’s side who inherited if two people were equally close in relation. Even more distant paternal relatives inherited before closer relatives on the maternal side! The decrees of the Gulathing Law are not identical to those of the Frostathing Law. The patrilineal features are more prominent in the Gulathing Law, but only with the Law of the Realm by Magnus Lawmender were these tendencies broken. The Law of the Realm allowed daughters to inherit together with sons, using the principle of the Danish and Swedish laws that a daughter obtained a half portion of a son’s inheritance.12 I will first discuss this model, which became the dominant in Scandinavia.

Sawyer, “Son skal taka arv etter far sin . . .” in Else Mundal and Ingvild Øye, eds., Norm og praksis i middelaldersamfunnet (Bergen 1999), pp. 61–63. 12   The mentioned inheritance provisions are found in: Norges gamle Love, vol. 1, GL. ch. 103–105, pp. 48–49. FL. VIII, ch. 1–15, pp. 205–207, and IX, ch. 8, and 9, pp. 201–202. Vol. 2, MML. Arvebolk, ch. 7, pp. 80–84.



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The rules of inheritance were similar in the Danish laws, and there were only miniscule differences between the Book of Inheritance, the Law of Scania, and the Laws of Zealand in the procedures of how to inherit.13 The main principle was that children inherited from their parents, but the surviving parent retained a portion of that part of inheritance which consisted of movable goods, and this portion would become available for the children only after the death of the surviving parent. If a child died before both its parents but had left an heir, the grandchildren had the right to the portion of their parents, according to the stipulation that sons of a son shared the son’s portion, and a daughter’s children shared a daughter’s portion without considering the sex or number of the grandchildren. This principle was not valid for great-grandchildren, who only inherited if they were the only heirs of the body; otherwise they were excluded. This was also the case even when the generations between the deceased and the great-grandchildren had died, as stated in the Book of Inheritance: But if there are no children nor grandchildren, but only their children, then these take inheritance, because inheritance should always go forward as long as there are descendants, but they inherit according to number, women as much as men, because it is “gang” inheritance.14

The inheritance of grandchildren was called “gang” inheritance, meaning that women and men inherited equal portions. “Gang” inheritance also included inheritance by ancestors and collateral kindred. If the deceased had no heir of the body, the inheritance went to the parents and siblings. In this case, the laws have different provisions: a sister, according to the Book of Inheritance and King Valdemar’s Law of Zealand, only received a half capital portion compared to others. The Law of Scania also has an exceptional stipulation: if a son died without heir and had exchanged strip holdings from the fællig, only the father inherited from his son.15 Despite these minor deviations, the structure

13   The mentioned decrees are found in Danmarks gamle Landskabslove, vol. VIII, A&O. text 1, 1. book, ch. 1, pp. 3–4, chs. 12–13, p. 10, chs. 80–81, pp. 61–63. Vol. I, 1, SkL. text 1, chs. 33–36, pp. 20–22. Vol. V, EsL. text 1, 1. book, ch. 9, pp. 12–13, chs. 15–17, pp. 19–23. Vol. VII, VsL1. text 1, chs. 11, and 12, pp. 7–8. 14   “En ær ey børn til oc ey børna børn vdan ær therra børn. tha take the arf. fare thy at arf a e fram at ganga mæthin af kymmandi ær til. Æn skulu skifta at mantali em mikit kuna som manne fore thy at thz ær gange arf.” Ibid., vol. VII, A&O. ch. 13, p. 10. The Laws of Scania and Zealand repeats this stipulation almost verbally. 15   Ibid., vol. I, 1, SkL. ch. 35, p. 21.

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is evident: after the heirs of the body, the relatives of the first canonical degree inherited. The clearest expression that the canonical method of calculating kinship controlled the succession is found in the Laws of Scania and King Eric’s Law of Zealand. If none of the above-mentioned relatives existed, relatives of second degree should inherit: father’s father, father’s mother, mother’s father, mother’s mother, father’s brother, father’s sister, mother’s brother, mother’s sister, brother’s children, and sister’s children. They would all have equal parts, as it was “gang” inheritance. The Book of Inheritance and King Valdemar’s Law of Zealand split the group in two, so that at first, only the father’s parents and children of siblings inherited. In this case, the lawmakers deliberately gave priority to the paternal kin and the immediate collateral kinship through the children of siblings. If the hypothetical situation occurred that the deceased had none of the above-mentioned relatives, the inheritance right went to more remote relatives. This is most clearly expressed in King Eric’s Law of Zealand, which states: If none of those are found, where there are two men between [related to the second generation removed] it goes to those where there are three men between, and if there are none of those, where there are three men between, then where there are four men between, and all as “gang” inheritance, just as long as there are kinship. If there is no kin, the king is the closest heir.16

It seems that this law limited kinship to four generations removed, which at the time of the writing of the law was the limit for canonical kinship. The Book of Inheritance, in contrast, stipulates that the limit of inheritance is seven generations removed, which again reflects the limit of canonical kinship before 1215. The older version of King Valdemar’s Law of Zealand also upholds the stipulation up to the seventh generation removed, but the later version states “then the one takes it, who is the closest relative to the fifth generation removed.”17 In other 16   “Æræ ey the til ær twa æræ i mællæn. tha gar thet a them ær thre man æræ i mællæn. æræ ey the til ær thre man i mællæm. tha gar thet a them ær fyuræ æræ mællum. alt. oc tho til gang arf. e swa længæ sum frænsum ær til. thæghær æy ær frændsum til tha ær kunung næst ærfuæ.” Ibid., vol. V, text 1, EsL. 1. book, ch. 17, pp. 22–23. 17   “Tha takæ e then thær næst ær at burdh til fæmtæ mannæ.” Ibid., vol. VIII, VsL2. book 1, ch. XX, p. 280. Kolderup-Rosenvinge thought that the fifth generation removed should be interpreted as the seventh. He claimed that the counting of gen-



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words, the right to inherit ceased after the fourth generation removed. Consequently, the right of inheritance was adjusted to the stipulations of canonical kinship. But that was not the case with the Law of Jutland, which limited the right of inheritance to the seventh generation removed.18 The Law of Scania limits the right of inheritance to the fourth generation removed.19 The Law of Jutland employs, in general, the same principles as the Laws of Zealand and Scania, but with a few substantial differences. Heirs of the body had precedence in inheritance, just as in the other laws, but the Law of Jutland did not distinguish between grandchildren and great-grandchildren. If the generations between the deceased and the grandchildren or their descendants are absent, the great-grandchildren stepped in and shared the inheritance of the capital portion of their deceased grandparents. The Law of Jutland extended the equality principle further than the other laws, so that the principle was also valid for their descendants, no matter whether it was the first or the fourth generation removed. If no heir of the body could be found, the parents would inherit first, then siblings, and at last grandparents. When siblings were to inherit from each other, a sister got only half of a brother’s portion, and the same method applied to inheritance after the parents.20 This principle was not confined to close relatives, but was a general rule: “a man always takes the double amount of all inheritance compared to a woman.”21 This principle sets the Law of Jutland apart from other laws, in which women and men had equal right to inheritance when inheriting from ancestors and collateral kindred. Next after the grandparents, the father’s brothers, mother’s brothers, and children of siblings constituted a joint inheritance group. The law is silent about the hierarchy which existed among those heirs. The only other mention of inheritance in the Law of Jutland states that the inheritance right went to the seventh generation removed.22 This is erations began after the two first generations that were mentioned in the inheritance procedure. This argument, which is a defense of Kolderup-Rosenvinge’s idea that King Valdemar’s Law of Zealand was later than the Law of Jutland, must be rejected. “Lex Siellandica Erici Regis. Kong Eriks Sjellandske Lov med Indledning, Oversættelse, og Anmærkninger” ed. Janus L.A. Kolderup-Rosenvinge (Copenhagen 1821), p. xxxv. 18   Danmarks gamle Landskabslove, vol. II, JL. text 1, book 1, ch. 23, pp. 59–62. 19   Ibid., vol. 1. SkL. text III, B viij, p. 290. 20   Ibid., vol. II, JL. text 1, book 1, ch. 4, pp. 26–27. 21   “Man takær e haluæ meræ æn kunæ i alle arf ” Unless the couple was separated. Ibid., ch. 5, p. 27. 22   Ibid., 2. ch. 23, p. 146.

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remarkable; it proves that the inheritance right, even though inspired by canonical kinship, still preserved the older methods of calculating generations. This cannot be a coincidence, since the Law of Jutland was influenced by canonical legal thinking. Perhaps the seventh generation removed was simply taken over from the Book of Inheritance; or perhaps the rules of inheritance had been adapted from the Law of Scania or King Valdemar’s Law of Zealand, which limited the right of inheritance to the seventh generation, and the author of the Law of Jutland thought that the old limit of kinship should be maintained within the inheritance law. The Swedish Chronicle of Eric relates that, in connection with the marriage of Birger Earl’s son Valdemar to Sophie, the daughter of Eric IV, around year 1260: then Birger Earl gave the law, which had been effect since then, that a sister should inherit from both father and mother one third of the inheritance of a brother, and at any other inheritance, she should inherit the same as he.23

The alleged reason was that Birger Earl did not want his daughter-inlaw to be in a worse position with regard to inheritance in her new country compared to the old. It was probably a myth that Birger Earl issued an inheritance law in collection with the marriage.24 The Dalar Law speaks against such a royal decree, since the law dates from the period between 1296 and 1347 and does not give daughters the right to inherit together with sons. The story about Birger Earl’s inheritance law may nevertheless contain a grain of truth, since the Danish stipulations functioned as an exemplar of the inheritance rules for the Swedish provincial laws, even though construction of the individual laws did vary. The Danish influence did not lead to standard Swedish rules of inheritance, except with regard to the rule that daughters inherited together with brothers, but always less. Otherwise there was great variation, particularly on two matters: the precedence of heirs of the body; and whether or not women always inherited the half of a male capital share. The inheritance laws that were most similar to the Dan-

  “Tha gaff Birge jerl the lagh ther sidhan haffwa standit marghan dagh, at syster matte erffwa med broder tridiungh bade epter fader och moder ok swa annan skyllan man, tha skal hon ärffwa swa fast som han.” Erikskrönikan, p. 42. 24   Sjöholm, Sveriges medeltidslagar, pp. 126–27. 23



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ish were the Laws of Uppland, Hälsinge, and Södermanna.25 All three gave precedence to the heirs of the body, and if the inheritance went to ancestors of collaterals, the closest kindred inherited. In all three laws grandchildren did inherit the portion of their parents if they had passed away. After the heirs of the body, the parents inherited.26 When siblings inherited, the laws prescribed the same principle that applied to children, so that a sister got half a brother’s portion.27 In the Uppland and Södermanna Laws, children of siblings came next in succession, in such a way that the inheritance was distributed according to children of those marriages and not to individuals. Then the law divided into groups: The Hälsinge Law gave equal right to inheritance to the father’s father and mother’s father, and if they were not found, the inheritance went to mother’s mother and father’s mother. In the other two laws, all four grandparents had equal right to inheritance; the laws also added that the same was the rule for aunts and uncles, who were ranked after the grandparents in the line of inheritance.28 Only the Uppland Law states the number of generation that had the right of inheritance, “the fifth generation may not inherit.”29 The rules of inheritance of both the Södermanna and the Hälsinge Laws were strongly influenced by the Uppland Law, and it is reasonable to consider that the limit of inheritance was left out simply because it must have been very rare that an inheritance went so far back in the ­family. The Västmanna Law30 also gave priority in inheritance to heirs of the body. The children of the deceased inherited together in such a way that a son got twice as much as a daughter. In contrast to the previously mentioned laws, the grandchildren did not receive their deceased 25   Schlyter, Corpus iuris, vol. 3, UpL. ÆrfÞæ Balken, chs. XI, XII, XIV, XV, and XVI, pp. 114–121. Vol. 4, SmL. ÆrfÞæ Balken, chs. I, pp. 61–62, HL. ÆrfÞa Balken, ch. XI, and XII, pp. 34–35. 26   The Uppland Law decreed that siblings should divide the inheritance with the parents, whereas the two other laws gave preference to siblings over parents. 27  Actually, the difference was not so great if parents inherited before or together with siblings, since sibling would get their inheritance when all parents had died. 28   The Södermanna Law furthermore decreed that inheritance should divided so that the children of aunts and uncles inherited in such a way that one half of the inheritance was reserved for the mother’s relatives and the other half went to the father’s relatives. The other two laws specified that the inheritance was reserved for the closest relatives, and if there were persons on both sides who had equally close relatives to the deceased, the inheritance should be divided so that each side obtained a half. 29   “Æi ma. fæmpti man arff takæ.” Ibid., vol. III, UpL. Ærfþæ ch. XI. p. 116. 30   Ibid., bd. 5, VmL. ÆrfÞa Balken, chs. XI, and XII, pp. 129–131.

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parents’ share. Instead, the children of sons pre-empted children of daughters, so the daughter’s children inherited only if there were no children of sons. In general, the Västmanna Law established an inheritance hierarchy of the closest relatives, including the siblings of the parents.31 If no close relatives could be found, the law operated with a very complicated distribution system. The inheritance was divided in four parts, which should go to the relatives of the father’s father, the father’s mother, the mother’s father, and the mother’s mother. It appears to be inconsistent that, according to the rules for close relatives, a single person excluded all others, whereas for more distant relatives, including the relatives of the mother, the rules made equal allowance for all branches of the kin group. Maybe the law exemplifies the ideological problems that emerged when canonical kinship, which considered male and female lineages equal, was introduced into a foreign inheritance tradition. The Östgöta Law and the later Västgöta Law32 differ from the other laws by not privileging the heirs of the body.33 Children were closest to inherit from their parents; daughters still inherited half of a son’s portion; whereas grandchildren came further down in the inheritance hierarchies that both laws contained. The biggest difference between the two laws is that the Västgöta Law recorded even the closest relatives in pairs, whereas the Östgöta Law did so only for distant relatives. The order of heirs in the Östgöta Law34 was father, mother, brother, grandson. Then came the pairs of equally distant heirs: daughters of sons and sons of daughters; mother’s father and father’s mother; sons of the sister and daughters of the brother; mother’s brother and father’s sister. For those relatives in pairs, the inheritance was divided in two: one part to each branch, no matter the number of people on each

31   If there were no grandchildren, the right of inheritance went through the following line: Brother, sister, brother’s children, sister’s children. The children of each marriage inherited a separate part independently of sex and number of children. Then came father, mother, father’s father, father’s mother, mother’s father, mother’s mother, father’s brother, father’s sister, mother’s brother, and mother’s sister. 32   The older Västgöta Law privileged the inheritance of sons from parents compared to daughters. A change in the rules of inheritance must have occurred in the time between the writing of the two versions. 33   Ibid., vol. 1, VgL2. Aruæ Balken, ch. I, p. 133. Vol. 2, ÖgL. ÆrfÞa Balken, ch. I, p. 114. 34   Ibid., ÖgL. chs. II, III, and V, pp. 114–118.



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side.35 If the heir was further removed, it was the closest relative who inherited, but if two relatives were in equal proximity to the deceased, and one was a woman, she was excluded, unless the two relatives were siblings. If the two relatives were in equal proximity to the deceased but one on the mother’s side and the other on the father’s side, the relative on the father’s side inherited. The prioritising of the male line also appeared in the later Västgöta Law, but it was less distinct. Following the stipulation concerning potential children was an inheritance hierarchy that was divided into pairs: first father and mother, then sister and brother, grandsons and granddaughters, brother’s and sister’s children, father’s father and mother’s father. For all of those pairs, the rule was that any woman, woman’s child, or relatives on the female side in equal proximity to the deceased as any man would inherit one-third of the portion of the man. Of the more distant heirs, the mother’s mother and father’s brother inherited first, and then came mother’s brother and father’s sister, who were “jämnarvinger” (equal heirs). For more distant relatives, the law prescribed giving equal shares to the paternal and maternal side, and the inheritance was to a brood and not to “heads.”36 Even though “Birger Earl’s Inheritance Law” was introduced in the later version, the law still favored men and the patrilineal line. That appears to have been fortified in the addition to the law, which may imply that either the phenomenon had strong roots in Västgötaland or there existed strong political interests in strengthening men and the male lineage when the law was recorded. Magnus Lawmender’s Law of the Realm also displays the same prioritising,37 both with regard to closer and distant relatives. The

35   It is curious that the father’s father and father’s brother are not mentioned in the inheritance hierarchy. Since the Östgöta Law, in general, favors the paternal kinship group and men, it is impossible to imagine that a father’s father, and father’s brother came after a mother’s father and mother’s brother. Perhaps they appeared in the line of inheritance after the sons of sons but were omitted from the manuscript due to a scribal error. 36   This decree, however, was removed in the addition to the law, which stated that if relatives on both the male and the female side were in equal proximity to the deceased, the male relative inherited two-thirds of the inheritance, leaving the last part to the female side, unless the relative on the female side was a man and the relative on the male side was a woman, in which case each inherited a half portion. Ibid., vol. 1, VgL2. Additamenta, ch. 11, § 16, pp. 247–248. 37   The rules of inheritance are found in Norges gamle Love, vol. 2, MLL. Arvebolk, ch. 7, pp. 80–84.

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children were the closest heirs, and sons obtained double the portions of daughters. However, whereas the inheritance of the sons was in allodial land, the girls were obliged to take land there was bought and movable property. Grandchildren did not have an automatic right to inheritance if their parents were deceased; the privilege was only valid for grandsons, and even they had the right to a daughter’s portion. If none of those existed, the father inherited followed by a grandson born in wedlock (even if his father had been illegitimate), son’s daughter born in wedlock (if her father was also born in wedlock), and daughter’s son born in wedlock; all the three aforementioned had equal right to inheritance. After them, the right of inheritance went to the daughter’s daughter of the deceased, if she and her mother were born in wedlock. Children of a concubine’s daughter born in wedlock had a low position in the hierarchy. The Law of the Realm, evidently, had a strong interest in births in wedlock over births out of wedlock, which was important not only for the birth status of the individual but also their parents, because grandchildren born in wedlock inherited before illegitimate children.38 This propensity pervades all rules of inheritance, and not only in relation to descendants but also to ancestors and collateral branches. That the legitimate children of concubines were entitled to inheritance before siblings and the mother, who was next in line, shows that the lawgivers must have considered the birth of grandchildren in wedlock as a considerable progress in status in comparison to that of their illegitimate parents. After the siblings, the right of inheritance went to the grandparents and the siblings of the parents and their children, but the male side and men in particular still had precedence over maternal relatives and women. Marriage presents Dowries played an insignificant role in the Danish documents, but the little extant information demonstrates that dowries were considered advancements. The Law of Jutland explains the procedure of dowries: if a father married off his daughter and gives her or a son a dowry, the dowry must be deducted from the capital portion of their inheritance

  Ibid., vol. 2, MLL, Arvebolk, ch. 7, p. 82.

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at the death of the parents.39 Parents while alive could favor a child by providing initial capital, but the aim of the decree was to ensure economic equality among all children. Apparently a similar decree is found in King Eric’s Law of Zealand, which states that if a child married out of the fællig, the father could provide a present in inheritance land, but he was then obliged to give a similar portion to any other sons who had also left, and the half to any daughter who left the fællig.40 A similar decree is found in the Law of Jutland, though it was not specifically aimed at dowries. Parents did not have to give their children anything while they were alive, but if they gave anything to one child, the others had the right to receive a similar gift.41 There was, however, one important difference between the two stipulations. King Eric’s Law of Zealand specifically made ample provisions for an equal distribution of the inheritance land among the children, which was a natural consequence of the kinsmen’s right of pre-emption of land.42 The decree of the Law of Jutland more generally made provision for equality among the children, no matter whether the gift was land or movable property. Dowry or hemföljd, as it is called, appears in most Swedish laws.43 Generally, Swedish laws applied the same principle that we have seen

39   Danmarks gamle Landskabslove, vol. II, JL. 1. book, ch. 15, p. 48. That the dowry should be returned at the division of the inheritance can also be found in the classical Roman law, where a brother in special cases could demand that the dowry of the sister (dos) be included in the division of the inheritance, even though the sister did not want to accept the inheritance. That might have been the case if a daughter got a large dowry that resulted in economic difficulties for the father (i.e., he lost his estate), reducing the inheritance left for the son to a portion far smaller than the dowry. Erik Hambro, Den romerske Familie- og Arveret (Copenhagen 1923), pp. 116–117. It was, of course, not the same situation that appears in the Law of Jutland and other provincial laws, where the requirement to return the dowry to the estate is formalized, but the inspiration is possibly the Roman law. 40   Danmarks gamle Landskabslove, vol. V, EsL. text 1, book 1, ch. 7, pp. 10–11. 41   Ibid., vol. II, JL. text 1, book 1, ch. 14, p. 47. 42   The Danish term is lovbydelse, but in the Nordic countries the Norwegian word odelsret is probably better known. A family’s pre-emption right to land was also found in France as the retrait lignager, and in Germanic countries it has been known as Familienvorkaufsrecht, Rektraktrecht and Näherrecht. Per Norseng, “Kommentar til Christer Winberg,” Historisk Tidsskrift, vol. 70, 2 (Oslo 1991), pp. 275–281. Gelting, “Odelsrett—lovbydelse.” 43   Schlyter, Corpus iuris, vol. 2, ÖgL. ÆrfÞa Balken, chs. IX, and X, pp. 121–124. Vol. 3, UpL. ÆrfÞæ Balken, ch. VIII, pp. 111–112. Vol. 5, VmL. ÆrfÞa Balken, ch. VII, p. 124, and ch. IX, pp. 126–127. Vol. 4, SmL. Gipninga Balken, ch. V, pp. 59–60. Vol. 6, HL. ÆrfÞa Balken, ch. VIII, pp. 32–33. Vol. 1, VgL2. Aruæ Balken, ch. 30, pp. 141–142.

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in the Law of Jutland, namely, that a potential dowry or marriage gift, whether given to sons or daughters, should be returned to the estate when the parents died and should be considered part of the total when calculating the division of the estate. Consequently, the dowry was a voluntarily given advancement. In contrast, the Östgöta Law emphasizes that all free women should receive a dowry, and then it states what it should consist of if the parents could afford it.44 The law also mentions that the law might request return of the dowry at the division of the inheritance, a decree that was probably added to the law when daughters obtained the right to inherit together with the sons. Male right of priority to inheritance Only two Swedish provincial laws—the older Västgöta Law and the Dala Law—excluded daughters from inheritance if there were sons. A decree in the Östgöta Law reveals that this stipulation also applied to that area before the revision of the rules of inheritance. The stipulation dealt with the procedure that would be applied if a conflict arose between siblings over the division of the inheritance. Under the old law, sisters had no right to inherit if they had brothers, but under the new law, all siblings had the right to inherit.45 This statement, together with the differences between the older and the later Västgöta Law, reveals that the right of inheritance was undergoing transformation, at least in some areas of Sweden in the thirteenth century. Even though the main concepts in the construction of the rules of inheritance were similar in the Dala Law and the older Västgöta Law, they did not agree about the inheritance hierarchy. In the Dala Law, the order was: son, sons of the son, daughter, daughter’s children; then came brother, sister, children of siblings, half brother, half sister, and children of half siblings; and only then did the inheritance goes back to the ancestors, first to parents, then grandparents, uncles, and aunts. The guiding principle is that the paternal side has precedence over the maternal, and men have precedence over women. If none of the mentioned relatives were alive, the inheritance was divided into two parts, which were given to the closest relative on the maternal and paternal

  Ibid., vol. 2, ÖgL. Gipta Balken, ch. 1, p. 96.   Ibid., vol. 2, ÖgL. Ærƒþa, ch. II, pp. 114–115.

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side.46 It is quite remarkable that male precedence was the guiding principle within the first two canonical degrees of kinship, whereas equality reigned in the degrees that were further removed. The older Västgöta Law also enumerated the hierarchy of heirs in the following order: sons, daughters, father, mother, brother, sister, son’s children, daughter’s children, brother’s children, sister’s children, father’s father, mother’s mother, father’s brother. The hierarchical division, according to which only one person inherits, disappears in a later stipulation that mentions “jämnarve” persons (equal heirs) notes that they had equal rights to inheritance.47 This grouping is also found in Norwegian stipulations concerning wergeld, where relatives on the maternal and paternal side are placed according to their proximity to the killer or the killed.48 Even though daughters were excluded from inheritance if they had brothers, they were not excluded from the resources of the home. Both laws mention dowry,49 even though it was not stated as a legal requirement that the daughters should have a dowry. Marrying off one’s daughter with a dowry did not imply that she could not later inherit from her parents if there were no brothers. The Dala Law implies that, in such a case, the dowry should be returned to the estate and be considered in the division of the estate. Further, the law prescribes that the dowry should be in cash.”50 A

  Ibid., vol. 5, DL. Gipninga Balken, ch. XI, pp. 49–50.   They were daughter’s son, son’s daughter, sister’s son, and brother’s daughter, followed by mother’s father, and father’s mother, and mother’s brother, and father’s sister. The two decrees must be interpreted that mother’s father/father’s mother, and mother’s brother/father’s sister came after the father’s brother in the order of heirs. It is difficult, however, to fit it into the general concept, because the mother’s mother generally has precedence over the mother’s father and the father’s brother (Holmbäck, and Wessén thought that this was a scribal error and that the mother’s should be placed after the father’s father in the hierarchy of heirs. Svenska Landskapslagar, vol. 2, DL. note 4, p. 83). That does not fit the general precedence of men and their descendants that is clearly stated in the law. In general, the older Västgöta Law appears to be strangely unfinished. The law does not mention how far the right to inheritance went, if it was valid for the mentioned relatives only, or if it went further out in the kin group. 48   In this way, for example, the father’s sister’s son paid to the mother’s brother’s son, and vice versa, since they were equally close relatives in relation to the killer/the killed and a person from the maternal side was balanced by the other person, who on the father’s side was also related through a woman. 49   Schlyter, Corpus iuris, vol. 1, VgL1. IordÞær Balken, ch. 1, p. 42, and Vol. 5, DL. Gipninga Balken, ch. 5, pp. 48–49. 50   Svenska landskabslagar, vol. 2, DL. Giftermålsbalken, ch. V, p. 79. 46 47

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dowry of ready money made it much easier to return to the estate than if it was a dowry of movables or land. The Swedish rules of inheritance followed the same outline, but their design differed. The inheritance law evidently was being discussed and modified in the thirteenth century and the first half of the fourteenth. Canonical kinship played a role in this transformation, with its message that relatives were calculated on both sides and far back into the generations, which was difficult to avoid when the regulations of inheritance were drawn up. A general tendency was that canonical kinship first influenced the more remote relationships, even though the influence from canon and Roman law is also revealed by the fact that women and their descendants in several laws were well situated in relation to inheritance. The Norwegian inheritance laws in the provincial laws differed substantially from those in the other laws. The laws arranged the order of inheritance in 13 or 14 minutely described inheritance procedures, in which the heirs were placed in order of priority. Fundamentally, the inheritance procedure was arranged in such a way that sons excluded daughters from inheritance, and if there were no sons, daughters inherited together with potential sons of sons. The Gulathing Law had the rest of the heirs of the body further down in the hierarchy, whereas sons’ daughters were the next in line to inherit according to the Frostathing Law, and then the inheritance with further back in the genealogy. The father was the universal heir to all without issue.51 The father’s father was next in line to inherit after the father according to the Gulathing Law, whereas he had a less prominent position in the Frostathing Law. After the father and father’s father potential siblings were next in line to inherit, though brothers excluded sisters. Then inheritance went to collateral branches. Both laws favored men on the paternal side, who were closer to inheritance than women were or men were on the maternal side. There were, however, significant differences between the two laws. The Frostathing Law emphasized not only that the closest relative in the inheritance hierarchy be born in wedlock but also the parents. If 51  Even though daughters did not have inheritance rights together with sons, the Frostathing Law decrees that daughters had the right to inherit from their mother, even together with sons. The inheritance of daughters consisted of movable property, such as utensils, clothes, and cloth, but not the most costly items, those of gold. Norges gamle Love, vol. 1, FL. IX, ch. 9, pp. 210–211.



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that was not the case, they obtained a lower position in the inheritance hierarchy. The Gulathing Law only mentions the deceased’s children born out of wedlock, and with regard to other relatives, the marital status of their parents was apparently unimportant. This implies that the inheritance rules entered the Frostathing Law at a time when marriage had become important as the only acceptable connubial life and when the canon law prescriptions, that children born out of wedlock could only in special circumstances inherit from the father and relatives on the father’s side, had become known.52 Jan Ragnar Hagland and Jørn Sandnes argue that some of the rules of inheritance are very old but that amendments were added in the 1150s.53 The influences from canon law contradict this theory, however, but it cannot be ruled out that the strong patrilineal elements go back to an older tradition. Several decrees can be dated with certainty to the time after 1152/53, as they refer to the donation agreement that Cardinal Nicolaus Breakespear entered with the national assembly. Several other decrees presumably date to that time as well, and the rules of inheritance may date to a revision from the 1160s. It is possible that the revision was inspired by canon law, and if so, the Frostathing Law may have been used to promote the idea that it was important to be born in wedlock, propaganda that the Church as well as the Crown stood behind in the reign of Magnus Erlingsson. Even though the ecclesiastical influence was evident in the Frostathing Law’s rules of inheritance, it was not successful in all areas. Kinship was calculated according to the canonical model, since all relatives were mentioned, and it was impossible

52  Even though canon law only took a definite position concerning the right of children born out of wedlock to inherit their father with the Liber Extra, the general attitude of canonists was that they were excluded from inheritance unless they were born in a stable concubine relation, in which the father later married the mother. No general study of the Norwegian documents concerning the inheritance rights of children born out of wedlock has been undertaken. The topic has been studied on the basis of Danish documents, by Thyra Nors, who considers the development in view of royal concubine sons from the time of Swein II Estridsson and later. In the early Middle Ages, the Danish laws did not distinguish between royal sons born in or out of wedlock. But birth in wedlock gradually became important, especially after the Church feast in Ringsted in 1170. This feast favored Valdemar the Great’s son who was born in wedlock and disadvantaged the much older son Christopher, who had been born to a concubine. That event occurred only few years after the coronation of Magnus Erlingson. Thyra Nors, “Illegitimate Children and Their High-Born Mothers. Changes in the Perception of Legitimacy in Medieval Denmark,” Scandinavian Journal of History, vol. 21, no. 1, 1996 (Norwich 1996), 17–37. 53   Frostatingslova, “Introduction,” p. xxxii.

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to leave someone out of the hierarchy of inheritance, but it was not canonical kinship that limited the extent of the inheritance rights. The Frostathing Law set the limit to the fifth generation removed, whereas the Gulathing Law did not state any limit, except that the most distant relative mentioned in the law was the “father’s father’s brother’s son’s son.” Since daughters were more or less excluded from obtaining inheritance, one would expect that a dowry was a way to secure daughters socially and economically. There exists only a little information about a dowry institution, however. The older Borgarthing’s Christian Law is most informative. It states that when entering an engagement, the suitor should first contact the woman’s closest heir, who decided the size of her dowry and trousseau.54 The Gulathing and Frostathing laws decreed that when daughters were inheriting from their parents, unmarried daughters should first be given the same amount the married daughter had received in dowry, before the rest of the estate was divided up. The Gulathing Law had a similar decree concerning sons who received a dowry.55 This system was also valid in the national law, which states, “A father or mother should not marry off a son or a daughter with a larger dowry than just as much can be given the unmarried, if the inheritance was divided.” If it occurred anyway, and “if the inheritance does not suffice, then everyone, who has had more than what the law permits, must give back to equal out the amount.”56 Several Danish and Swedish laws have a similar pattern, according to which sons and daughters inherited together. The missing decrees about dowry in relation to cases where daughters did not inherit are sharply contrasted by the minute rules of inheritance. Why do we not find minute specifications of payment of dowry comparable to those we find regarding the right of inheritance? This question becomes even more pertinent when the person involved had both the right of inheritance and obtained a dowry. The explanation cannot be that presents and other economic transactions were regulated while people were alive; the rules of donation and the rules of allodium are examples of the contrary. It seems as if the dowry existed 54   Norges gamle Love indtil 1387, vol. I. BKr. ch. 7, p. 343. The person from whom women who were not widows would inherit was normally the father. 55   Ibid., GL. chs. 128, and 129, pp. 54–55. FL. XI, ch. 3, p. 230. 56   “En ef arfr uinzt eigi. leggi aptr til iamfnađar huerer meira hafđe en log uatta.” Ibid,. vol. II, MLL, Arvebolk, ch. 7, p. 81.



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in a grey zone between the inheritance law and the marriage law, and consequently it may not have had the attention of the lawgivers. Inheritance rights before the arrival of the provincial laws As previously mentioned, it is very difficult to state with certainty which norms for inheritance existed before the arrival of the provincial laws. The Swedish historian Birgit Sawyer has, based on an examination of who erected the rune stones in Scandinavia, developed a theory about the inheritance practice. She has found that in Eastern Sweden, several people together often erected the rune stones, many of them women.57 In the rest of Scandinavia, the majority of the erectors were individuals and men. Sawyer interprets this difference to indicate that the gradual inheritance system was dominant in Norway, Denmark, and Western Sweden and that men had precedence over women. The opposite was the case in Eastern Sweden, particularly in Uppland, where parental inheritance dominated. Sawyer undoubtedly has carried out an impressive investigation. There are, however, certain imbalances in the materials that may undermine her conclusions. The distribution of rune stones is uneven in Scandinavia: in Sweden, there are around 1750, in Denmark about 200, and in Norway only about 50. A lack of stone cannot be the explanation for why there are so few rune stones in Norway; it therefore may be that rune stones did not have the same social importance in Norway that they had in Uppland. This would weaken the thesis that rune stones were a way to record inheritance rights all over Scandinavia. Furthermore, the uneven distribution of inscriptions may simply indicate fortuitous instances of survival, not structures, as Sawyer argues. Sawyer also overextends her interpretation of the inscriptions. For example: In the text “Björn and his brothers raised this stone in memory of Sigbjörn in Holm,” we can be fairly certain that the sponsors were Sigbjörn’s sons. Another case is . . . “Sven and Sten raised this stone in memory of Toste, their father, who died in Ingvar’s liđ [retinue], and in memory

 An introduction to her method is found in Birgit Sawyer, “Son skal taka arv etter far sin . . .” in Else Mundal and Ingvild Øye, eds., Norm og praksis i middelaldersamfunnet (Bergen 1999), pp. 63–79; and The Viking-Age Rune-Stones. Custom and Commemoration in Early Medieval Scandinavia (Oxford 2000), pp. 24–70. 57

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chapter eleven of Torsten and of Östen, Alvhild’s son.” Presumably Torsten and Östen were also Toste’s sons, Sven’s and Sten’s brothers. The fact that Östen is referred to as “Alvhild’s son” must indicate that he had a different mother from his brothers.58

Sawyer is so sure of her thesis that she goes to extremes, interpreting even texts that do not explicitly mention kinship as doing so and entering them into her statistical materials. Elsa Sjöholm has similar objections to Sawyer’s method: Sawyer moves around in a circle. She assumes what has to be demonstrated. She “knows” from the outset how the inheritance law has to be that she later “detects” in the inscriptions. The documents never get a chance to contradict the theory.59

Furthermore, it is questionable whether rune stones in general indicated a claim to inheritance. Rune stones seem rarely to have been an indication of a claim to inheritance. Some inscriptions, for example, do not mention any family relation between the person who created the monument and the person commemorated in the inscription. Therefore one can argue that rune stones were not always indicators of inheritance rights. If disagreement arose over the right to inherit, one can imagine that the disagreement emerged immediately after the death, not several months later, when the inscription had been cut. If there was a reason to inscribe a claim to inheritance in a rune stone, it should have occurred while the testator was still alive. Sawyer’s theory also implies that there was uncertainty as to who had the right to inherit, and therefore one would expect that the testator would create an official statement of whom he selected as heir or heirs. A confusing aspect of Sawyer’s theory is that she claims on one hand the existence of firm principles of inheritance law in Scandinavia in the centuries before the arrival of the provincial laws and argues, on the other, that the heirs had to state firmly their claim to inheritance. An alternative suggestion of how the inheritance law functioned must be considered together with the selective and alliance based kinship system. No doubt some concept of inheritance of the kin existed;

  Sawyer, The Viking-Age Rune-Stones, p. 68.  Elsa Sjöholm, “Runinskrifterna som källa till svensk arvsrätt under alder medeltid,” Scandia. Tidskrift för historisk forskning, vol. 57, hf. 1 (Lund 1991), p. 123. Even though Sjöholm’s critique relates to an earlier book by Birgit Sawyer, she still uses the same method, and therefore the critique is still valid. 58 59



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hardly any society or culture has not recognized such a principle. But the greater freedom of choice made it possible to give preferential status to one child, or to the child of one sibling to the detriment of others. Such a loosely defined inheritance system allowed a dynamic social system, because even though children or other heirs were equal in many inheritance situations, the system allowed the testator to favor a single heir and thereby confer better opportunity for social mobility The drawback was that favoring one person could lead to hostility and contests among siblings and other relatives. And favoring one individual was always detrimental to the collective. Including firm inheritance provisions in the provincial laws undoubtedly had a stabilizing and peace-keeping effect. The provisions were relatively easy to regulate, and since their aim was both to create peace and stabilize society, they helped the Crown establish a strong central power. Patrilineal tendencies and female inheritance rights As already mentioned, Elsa Sjöholm and other scholars have demonstrated a distinction between inheritance rights in the provincial laws of the Norwegian and the Götalands and the Dalar inclusive, on the one hand, and the rest of the Swedish area and Denmark, on the other.60 The West-Nordic laws had strong patrilineal elements, whereas those of South-Eastern Scandinavia had a linear system. Scholarship on this topic has concentrated on the peculiarity of the Norwegian laws, not an actual comparison of the laws. Two theories dominate. The first holds that Norwegian laws had roots far back in time, to an orally transmitted law. Torben Vestergaard opines that the 13 orders of succession found in the Norwegian laws were based on an oral tradition, because they were easy to recite.61 The theory implies that inheritance right was conservative and inflexible in the Norwegian provinces. A second theory is also possible, however: that the patrilineal tendency that appears in the laws was a new phenomenon introduced precisely when the laws were being recorded. The aim might have been to prevent spreading an estate too widely by reducing the number of heirs; maybe it was an expression of the patriarchal currents that dominated

  Sjöholm, Sveriges medeltidslagar, pp. 124–125.  Vestergaard, “The System of Kinship,” pp. 162–163.

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in France and England in the eleventh and twelfth centuries.62 The latter explanation is based on the theory that the inheritance system was variable; was dependent upon the political climate; and changed according to which groups dominated the legal and economic field. The first explanation, in contrast, implies that the inheritance law, like other important social and economic phenomena, was concrete and static and that society in general accommodated itself to the law.63 Since canonical kinship is an example of how ideology was used actively to develop legislation, evidently, the strong patrilineal initiatives in the inheritance laws ought to be considered a result of the political situation at the time they were recorded. If an earlier institution was in question, it would probably not have been copied blindly but would have been upheld because it reflected a specific interest.64 The strong patrilineal inheritance law came in the twelfth century under pressure from both a linear inheritance law based on Roman and canon law and from canonical kinship, which did not distinguish between kinship through men or women. When the ideology changed, the inheritance law also changed, as is evident in both Magnus Lawmender’s Law of the Realm, and the laws of the Götalands in the 1280s and 1290s. Only the Dalar law was not subject to a similar ideological influence, and only at the time of Magnus Eriksson’s Law of the Realm was the patrilineal inheritance system abolished. The laws give the distinct impression that the inheritance law was under discussion when the provincial laws were being recorded. One contested topic was the right of women, in particular daughters, to inherit equally with men whose relationship to the deceased was equivalent. We know when female inheritance rights were introduced in Norway and in some parts of the Swedish provinces, but researchers still debate about when women obtained the right to inherit in the rest of the Swedish and Danish provinces. In my opinion, the introduction of canonical kinship necessitated the introduction of greater equality between maternal and paternal kin, as well as siblings, but other explanations can be found. Saxo and Swein Aggesen explain when and why

62  Hansen, “Slektskap, eiendom,” p. 143; and Helle, Gulatinget og Gulatingslova, p. 137. 63  Hansen, “Slektskap, eiendom,” pp. 103–154. 64  Elsa Sjöholm has argued that one must always realize that the decrees of the provincial laws were a result of the political situation prevailing when the laws were written; they were not an archaic relic. Sjöholm, Sveriges medeltidslagar, p. 50.



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Danish women obtained the right to inherit their parents. According to them, Swein Forkbeard gave inheritance rights to women who had ransomed him, as a gift of gratitude.65 This explanation is rather dubious, but it has been interpreted in several different ways. Birgit Sawyer, as well as Thyra Nors, believes that Saxo considered female inheritance to be against God’s will, since it was an unholy and wicked king who gave that privilege.66 This may be an attractive idea, but it actually does not fit well with later developments: when Swein Forkbeard repented his apostasy and became the champion of Christianity, he did not revoke the female inheritance law. He would have done so if Sawyer’s and Nors’ arguments were sustainable. Michael H. Gelting considers the arguments of Saxo and Swein Aggesen to be an attempt to give the female inheritance law a touch of antiquity, which it did not have in reality. Gelting argues that it was first introduced in Denmark with the Book of Inheritance in 1170.67 This theory is contradicted by the fact that no more than 15 years elapsed between the appearance of this law Swein Aggesen’s writing of his Chronicle of Denmark. Furthermore, Saxo wrote his book not much later. Seen in this perspective, it appears strange that both would convey the story about Swein Forkbeard if female inheritance law had first been introduced with the Book of Inheritance in 1170. But why would it be only the regulations concerning female inheritance, and not the rest of the inheritance decrees, that were new in 1170? Maybe the Book of Inheritance was the first inheritance law in Denmark? Maybe the earlier inheritance system had been based on customs and practices that could more easily be customized to actual wishes than written regulations could be, and maybe that system had indeed allowed women as well as men to have been chosen to be heirs.68 Maybe there existed a tradition that allowed women to own an estate and possess prestige, but that tradition was not recorded specifically

65   Scriptores minores historiæ danicæ, vol. 1. “Svenonis Aggonis filii Breve historia regum Dacie,” ch. VIII, pp. 120, and 121. Saxonis Gesta Danorum, 10:9:4–5, pp. 278–279. 66   Thyra Nors, “Kampen om ægteskabet. En konfliktfyldt historie om kirkens forsøg på at genne lægfolk ind i den hellige ægtestand,” Den jyske Historiker, no. 42, 1987 (Århus 1987), p. 44; and Birgit Sawyer, “Saxo—Valdemar—Absalon,” Scandia. Tidskrift för historisk forskning, vol. 51 (Lund 1986), p. 49. 67   Gelting, “Odelsrett—lovbydelse—bördsrätt—retrait lignager,” p. 140. 68  Pauline Stafford shares this consideration in her investigation of the inheritance patterns in France in the eleventh century. Stafford, “La Mutation Familiale,” p. 125.

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within the inheritance law. Lars Hermanson, for example, describes how many royal descendants and magnates at the time of King Niels possessed position and/or property that had been passed on to them through women, either mothers or wives.69 This suggests that it was not a rare situation, or at least was not unknown, for women to inherit in eleventh- and twelfth-century Danish society. Even the right to the throne might be inherited through women: the son of a king’s daughter had the same right to the throne as the king’s son. The same practice must have existed in at least some parts of Sweden, where Danish princes through their mothers (the Stenkil family) obtained or at least demanded the right to the throne. The sons of Birger Earl provide yet another example; they claimed royalty through Birger’s marriage to the sister of King Eric Ericson. In Norway, in contrast, the strong patrilineal element in the laws seems also to appear in matters concerning inheritance, including prestige and claims to royalty. There, only sons of kings or grandsons of kings had a claim to the throne. Magnus Erlingsson exemplifies the patrilineal preferential status, since his problem of legitimacy emerged because he was “only” the king’s daughter’s son. I have previously mentioned that in both canon and Roman law recognized the principle of female inheritance rights. In particular in Roman law, women held a good position in the inheritance law, which did not distinguish between the sexes of the children when distributing inheritance. The Church took over this principle of the inheritance law. Researchers have traditionally explained the introduction of the inheritance law that is found in the Danish provincial laws— that daughters inherit half of a son’s capital portion—as a result of a compromise between “the old patriarchic society,” in which sons and potential other male heirs inherited before daughters, and the Church, which represented the principle of the Roman law. This theory is in conflict with the situation in other places in Catholic Europe, however. For example, in France, the inheritance system gave preferred status to the oldest son, and no documentation can be found to show that the Church tried to alter the inheritance law by improving the position of younger sons and women.

69   For example, Haakon Sunnivason, the Bodilsons, Saint Cnut Dux, and, earlier, Swein Estridson. Hermanson, Släkt, vänner och makt.



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Perhaps the Danish/Scandinavian type of inheritance law took its inspiration from a totally different source. The principle that women inherited less than men appears in the law code of Justinian—in the Institutiones, which refer to an earlier decree that the grandchildren of a deceased woman should not inherit in her place if she had brothers or if there were descendants of brothers: The emperors could not allow such an injustice to continue . . . However they decided that, to give rather more to the ones who had the support both of nature and the old law, the shares of these grandsons, granddaughters, and so on, mentioned above, should be slightly reduced: they should take a third less than their mother or grandmother had been qualified to get.70

We cannot prove any direct connection between the inheritance decree in Institutiones and those employed in the Nordic laws. The differentiation of inheritance was used only in one special case in the Institutiones, and the descendants of the women obtained only one-third less than the men. Nevertheless, the possibility of influence cannot be excluded. The decree in the Institutiones shares at least as much with the inheritance system is found in the provincial laws as the system in Novella 118, which is the focus of recent research.71 Therefore, unless it can be demonstrated that the Novella possessed great authority in the second part of the twelfth century when Danish inheritance law was established, we cannot preclude the possibility that the decree of the Institutiones was the model for the Danes.72 70   Justinian’s Institutes, 3.1, 15, p. 93. (“Divi autem principes non passi sunt talem contra naturam iniuriam sine competenti emendatione relinquere . . . sed ut aliquid amplius sit eis, qui non solum naturae, sed etiam veteris iuris suffragio muniuntur, portionem nepotum et neptium vel deinceps, de quibus supra diximus, paulo minuendam esse existimaverunt, ut minus tertiam partem acciperent, quam mater eorum vel avia fuerat acceptura.”) 71   Stephan Kuttner has found the use of the Novella in the High Middle Ages problematic, since he has demonstrated that many collections were incomplete. The version printed in the Corpus Iuris Civilis is based on later manuscripts. Stephan Kuttner, “On the Medieval Tradition of Justinian’s Novellae: An Index Titulorum Authentici in Novem Collationes Digesti,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, 111 Bd. Kanonistische Abteilung LXXX (Vienna/Cologne/Weimar 1994), pp. 88–98. 72   In order to understand canon law it was necessary to know and understand the construction of the legal system. The best introduction is Justinian’s Institutiones, which resembles a textbook and was probably often used as such. It seems reasonable to hypothesize that many Scandinavian students, most of whom studied theology rather than canon law, obtained their knowledge of the Roman law through the Institutiones. Therefore, we should probably consider the Institutiones to be more influential in relation to the provincial laws than has usually been assumed. Several persons

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The extent to which the Danish canonists knew the Roman law is uncertain because we do not know much about the curriculum in Bologna until later in the thirteenth century—long after the development of the Danish inheritance law. We do know that the lectures became divided into ordinary and extraordinary. The ordinary, which were taught in the morning, was over Digesta and Codex and Gratian’s Decretum and Liber Extra; whereas the extraordinary dealt with Roman law and with the Institutiones and the Novellae, and were held in the afternoon. Which textbooks the students of canon law used has not been studied in detail.73 If the theory about Institutiones is correct, they had at least later the option to attend lectures about it.74 The Roman law was, however, not the only source for potential exemplars for laws in which daughters inherited a smaller portion than sons did. Other European law codes from the early and High Middle Age had stipulations that divided inheritance according to a fraction system. The oldest part of the Lombard law code, Rothair’s Edict from around 643 had stipulations that if a deceased father had daughters born in wedlock and sons born out of wedlock, the daughters should inherit half, the sons one-third, and the rest belonged to the royal fisc.75 Furthermore, an addition to the law from 728 stipulated how much a father, who had both sons and daughters born in wedlock had to give his daughters.76 The Burgundian law code prescribed that nuns had the right to a certain percentage of the inheritance after their father, depending on the number of brothers.77 Finally, a great variety of distribution principles can be found in Dutch law codes. Usually the oldest son took the major part of the inheritance, whereas a smaller,

who were involved in the legislative work were trained in theology and canon law. In contrast, those who specialized in Roman law also knew canon law, as many lawsuits fell into the grey zone between the secular and the canon law. 73  Not only in Bologna but also in Paris, where a separate study of Roman law was prohibited, the students of canon law must have been introduced to the process and construction of the Roman law. That may have been on the basis of the Institutiones, which was the best textbook in Roman law. 74  Hastings Rashdall, The Universities of Europe in the Middle Ages, vol. 1, “SalernoBologna-Paris,” (Oxford 1942), pp. 205–208. 75   The Lombard Laws, “Rothair’s Edict,” no. 159, pp. 78–79. If there were only one daughter, the procedure was different. Then she, the sons, and the closest relative or the Royal fisc have one third each. Ibid., no. 158, p. 78. 76   Ibid., addition 728, no. 102, pp. 188–189. 77   The Burgundian Code, ed. and trans. Katherine Fischer Drew (1949; Philadelphia 1996), “Book of Constitutions,” ch. XIV, pp. 32–33.



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varying portion was distributed among the younger siblings according to very different distribution numbers.78 The examples from Justinian’s Institutiones and other different law codes show that it is not very useful to try to explain the Danish halfcapital portion in a narrow Danish/Scandinavian context. The notion that the inheritance portion of a sibling depended on sex, age, and social status can be found in a number of countries and should therefore be considered a recognized European legal practice. Why daughters inherited less than brothers according to Danish and also, later, other Nordic provincial laws cannot be explained from such an observation. Maybe men were given larger portions than women because women—married or unmarried—lacked legal power and were not expected to establish their own household.

78   Dirk Heirbaut, “The Germanic Character of the Oldest Laws of the Low Countries,” in Ditlev Tamm and Helle Vogt, eds., How Nordic are the Nordic Medieval Laws? (Copenhagen 2005), pp. 40–61.

CHAPter twelve

DONATIONS, PIOUS DONATIONS, AND THE RIGHT OF DISPOSAL OF PROPERTY Narrowly connected to the inheritance law is the right of disposal of property to benefit others than those heirs entitled to a portion by law. How much of one’s estate, if any, would you be able to dispose of either as presents when you are alive or mortis causa through donations or a will? The testator may have wished to favor a third party from personal motifs, or wanted to donate a part of his estate to an ecclesiastical institution due to piety or to assist the salvation of his own soul or potential relatives. If the testator gave the donation in hopes of saving his soul, the donor often requested annual requiems for the soul in return. Diplomas from the cities show that heirs could demand the return of pious donations if the ecclesiastical institution did not keep the promised obligations.1 Most pious donations were motivated by a desire for the salvation of the soul. But so little Nordic material is available that we cannot study in general the complicated religious, social, and political motives behind the donations. These connections have been made on the better-documented French situation, however, by Stephen White and, most recently, by Kim Esmark.2 Their studies focus primarily on the eleventh and twelfth centuries—in other words, the period before the provincial laws. The big difference in time and space between Scandinavia and France makes it difficult to compare the situations. Nevertheless, the results from France may help us understand the much more sparse Nordic documents. White and Esmark show that when a donation was given to a monastery or another ecclesiastical institution, the act obligated both parties. Donor and potential members of his family entered a kind of contract with the local saint, represented by the religious society, which acted as the saint’s familia. A

  That was the case especially after the Reformation, when masses for the souls ended. Fenger, I være have, p. 107. 2   Stephen White, Custom, Kinship, and Gifts to Saints. The Laudatio Parentum in Western France, 1050–1150 (London 1988); Esmark, De hellige døde. 1

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social relationship between donor and the saint was created, which in the end led all the way to God. The relationship is reminiscent of the patron/client relation in several ways. Before giving the donation there was a long drawn-out process in which the monks and the donor negotiated the conditions of the donation. The negotiations covered which spiritual or material services the monks were expected to give in return and who should ensure that the donation was not challenged by the donor’s heirs after his death, etc. When the negotiations were concluded, the transfer took place at a ceremony, which indicated the importance of the donation and the donor.3 Donations that took place while donor was still alive and fully capable contrasts strongly with those made on deathbeds, that is, donations that the dying decided upon only as his life was ending. A donation given when alive had a greater importance ritually and indicated greater status for the donor than donations made on the deathbed. The donation showed the donor’s wealth and piety, so many made a donation in order to save their soul in due time. Donations at the deathbed would normally have the character of a frankalmoin; the fear of the Purgatory or Hell was certainly very present. The provincial laws considered this fact; several laws specified how much property a testator was allowed to dispose when he was healthy and when he was ill. A more carefully planned kind of deathbed donation was the will, which one could prepare while still in good health but which would come into force only at death. The will was only slowly accepted in the Nordic societies. Late into the thirteenth century, most wills were issued by ecclesiastical persons. The advantage of the will compared to the verbal donation given on the deathbed is evident. The written will was a certain proof of the donation, whereas it might be difficult for ecclesiastical institutions to provide witnesses to a verbal promise, if the family later denied that the donation had taken place. The most common donation was the frankalmoin. Another reason for donation might be penance for sins committed, but since the donation for penance also aimed at saving the soul, the line between these different kinds of donation is blurred. Donations could be given while the person was alive, after death, or at the deathbed. A donation could be given well in advance of a person’s illness and death; a donation after death could be specified in a will and so would occur after the donor’s death. In contrast,  White, Custom, Kinship, pp. 27–50; and Esmark, De hellige døde, p. 119.

3

donations, pious donations, & the disposal of property 187 provisions made on the deathbed were more complicated, because they were taken while the donor was dying, not when he was healthy. The actual difference between donations while the person was alive and at the deathbed is not as clear-cut at it at first may appear to be. Often the donor, after having donated while alive an estate to the Church, retained the right to use the donation for himself and possibly his wife, and at times also his children while they were alive, sometimes for the payment of a small rent.4 This kind of arrangement could in the end lead to conflicts between heirs and the ecclesiastical institution over the right to the property or the use of the donations. Of course, the situation is much more complicated than can be described here. For example, relatives in areas where donations were not regulated by law might later oppose them. Such a contest was called calumnia,5 which meant that the donation should be renegotiated and possibly new rituals should be performed. The basic element was the mutual relation that the donation created between recipient and donor, or between donor and the saint. The provincial laws regulate how much property a person was allowed to donate. This was important not only for the secular legislation but also for the Church. The earliest Christians did not have guidelines as to how much they could donate to the Church. It was also problematic for them to donate to the Church, because it was not recognized as an independent legal entity. Therefore, donations could not be given to the institution as such but had to be given to a single church or a person, for example, a priest. This precarious legal position was solved when Christianity gained a stronger position in the Roman Empire in the fourth century, when Constantine as the first emperor supported the Church and gave it privileges. The Church obtained its legal status in 321, so testamentary donations to the Church as an institution obtained the force of law, even though there was no specific recipient. Donations, however, were not only a legal but also a theological issue, in which Augustine played an important role. He stated that

  Fenger, I have være, p. 71.   The classical Latin meaning of the word calumnia is “wrongful accusation,” but Kim Esmark has pointed out that it would not have that meaning in medieval documents dealing with conflicts about donations. Instead, Esmark suggests that calumnia in these diplomas be translated as “objections” or “demands.” Esmark, “Godsgaver, calumnia og retsantroplogi,” pp. 144 and 172. 4 5

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one should make Christ a co-heir together with one’s children, so that the Christian could both provide for his descendants and help his soul.6 The Augustinian principle was not forgotten in the subsequent centuries, but only with the inclusion in Gratian’s Decretum was it stated in minute detail. It thereby became the exemplar for donations even though the Church did not attempt to execute it through specific legal decrees. Nevertheless, a letter from Alexander III to the secular and ecclesiastical authorities in Götaland in the 1170s shows that the Church condemned the practice, apparently permitted according to Swedish secular laws, of parents disinheriting their children through donations.7 It was probably in the interest of the Church that the law codes include decrees concerning donations, which would prevent unjust treatment of children or other heirs and, at the same time, safeguard the right of the Church to keep donations.8 6   Augustine was not the first Church Father to suggest that a portion of the inheritance should be given to the poor or Christ (alias the Church). The most radical interpretation came from the Greek father Basili, who argued that all estates should benefit the Church, even if it meant leaving children or a widow unprovided for. Other more realistic theologians suggested that one should provide a certain part (for example one-third), which was the ideal in a.o. Syrian and Armenian Church law. Jerome formulated the idea of giving the Church the portion of a son, which gained support in the Western Church through the writings of Augustine. Despite the authority of Augustine for the theology in the High Middle Ages, and the fact that the command was included in Gratian’s Decretum (Corpus Iuris Canonici, “Decretum Magistri Gratiani,” Causa XIII, q. II, c. VIII, p. 723), Augustine’s principle was far from being the exemplar for the donation stipulations of the West-European secular laws The quotation that Gratian selected is not unambiguously from Augustine; it is derived from a manual for priests advising that they may not exploit enmity between father and son to the extent that the father would donate all the inheritance of the son to the Church. Instead, the priests should encourage a reconciliation in which Christ (i.e., the Church) would enter as an heir together with the son. Stig Iuul formulated the Augustinian principle: “Fac locum Christo”—“Give space for Christ” (Iuul, Fællig og Hovedlod, p. 69), which in later Danish legal history erroneously has been perceived as a quote from Augustine (see, e.g., Inger Dübeck, “Testationsfrihed og tvangsarv i retshistorisk belysning,” Bonus Pater Familias, Festskrift til Peter Lødrup (Copenhagen 2002), p. 7; and Ditlev Tamm, Dansk og europæisk retshistorie (Copenhagen 2002), p. 100). Augustine himself never expressed his principle in such a categorical way. For more information about the attitude of the Church Fathers towards frankalmoins and the subsequent importance, see Eberhard F. Bruck, Kirchenväter und soziales Erbrecht. Wanderungen religiöser Ideen durch die Rechte der östlichen und westlichen Welt (Berlin-Göttingen-Heidelberg 1956), especially pp. 1–126 and 241–256. 7   For a more specific description, see the section on Swedish materials in this chapter. 8   This idea is found at Stig Iuul and is repeated by Michael H. Gelting and Inger Dübeck. Iuul, in contrast to the two other scholars, rejects the idea that the Augustinian principle functioned as a direct source of inspiration for the Danish stipulations regarding donations. Instead, Iuul maintains that the division in capital portions

donations, pious donations, & the disposal of property 189 Other scholars have a more conflict-oriented view of the stipulations regarding donations. Birgit Sawyer, for example, assumes that limitations were introduced because frankalmoin gifts became a threat to the family land. According to Sawyer, the problem was primarily female donations; she maintains that women were, in general, much more generous to the Church than were men. A limitation of the size of the frankalmoins was introduced in order to contain female donations.9 Sawyer’s investigation of women as donors and the threat to the allodial land is very thorough in many ways, but she does not query men’s donations; she focuses only on the sex of the donor, not the donation itself. She sees women as a problem for the family and in opposition to their own family and kin, which does not appear convincing. Why would only women, due to their sex, have interests different from those of their male relatives? If the problem actually was female donations, why would there be limits on donations made by both sexes? Notwithstanding, Sawyer has followed the idea that donation regulations entered the laws in order to protect the position of the heirs, an interpretation that legal historians have never questioned. The law’s interference in an individual’s options for disposal of his or her estate is related to the desire to strengthen the family ties; the demand for a more stable kinship structure necessitated this control in order to avoid huge social changes each time someone died in a family. The earliest Nordic examples of donations relate to the royal families. The first Danish example of a pious donation is from Estrid, sister of Cnut the Great, to Roskilde Cathedral in 1072 or 1073, but it is known only through information in the Roskilde Chronicle.10 The earliest legal document, Saint Cnut Rex’s famous deed to Lund Cathedral, is ten years later, from 1085. Throughout the twelfth century, Danish diplomas reveal royal generosity to ecclesiastical institutions. A similar pattern is found Norway. Members of the royal family gave huge donations, of which a large share went to the Cathedral of Nidaros, where Saint Olav, the saintly king of the family, was enshrined. It was not particularly Norwegian to bestow foundation, in which one had

entered Danish law before the Augustinian principle became known. For a more detailed explanation, see Iuul, Fællig og Hovedlod, pp. 77–80.  9   Birgit Sawyer, “Famijen, förmögenheten och fromheten. Kvinnornas roll i dragkampen om egendom under äldre medeltid,” ed. Birgit Sawyer, Manliga strukturer och kvinnliga strategier (Göteborg 1987), pp. 62–76. 10   Roskildekrøniken, p. 20.

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special interests. Danish kings were also fervent donors, first to Saint Cnut’s Church in Odense where Saint Cnut Rex was enshrined, and later to Ringsted Abbey, which had the bones of Saint Cnut Dux. In these cases it is possible to talk about family monasteries, to which a group of the kin throughout several generations donated and at which they were buried. Family monasteries indicated the position of the kinship group. The Swedish royal family in the twelfth century made similar donations. The Eric, Sverker,11 and Bjälbo kin groups each had their favorite ecclesiastical institution. Danish materials Not only royalty but also the high aristocracy had family monasteries. The earliest example is from 1135, when Peder Bodilson, his two brothers, and their mother gave large donations for the establishment of an abbey at Næstved.12 Later generations of the family also had connections with the abbey: Bodil, the daughter of Hemming Bodilson, withdrew to the monastery around 1200.13 Another known example is the sons of Skjalm Hvide, who established Sorø Abbey, to which their descendants gave considerable donations for generations.14 However, let us return to the donation of the Bodilsons, which is interesting because it was given several decades before secular inheritance and donation legislation was known in Denmark. One can only guess which rules or norms dominated. The donation was set up according the previously mentioned Augustinian principle.15 “In this vale of tears [the Bodilsons] have their hearts aimed at the Highest, made God their co-heir . . . And as payment for those, who at the same place [the newly established abbey] have done military service for God, the monks shall have a part in their paternal inheritance.”16

11  Tryggve Lundén, Sveriges missionärer, helgon och kyrkogrundare. En bok om Sveriges kristnade (Malmö 1983), pp. 292–293. 12   It cannot be excluded that Bodil was of royal descent. See Hermanson, Släkt, vänner och makt, pp. 154–56. 13   Further discussion in the chapter on fledføring, below. 14   A more detailed presentation of the donations is found in Sven Ranvig, Sorø Krøniken, vol. II (Copenhagen 1986), pp. 77–163. 15  Which has been pointed out by a.o. Iuul, Fællig og Hovedlod, p. 71. 16   My underlining. (“In hac igitur conualle lacrimarum. ascensiones in corde suo disponentes/ ut recipiant pro paruis magna/ pro terrenis celestia. coheredem sibi Deum

donations, pious donations, & the disposal of property 191 In other words, the Augustinian principle was known in Denmark in the 1130s, which indicates that a well-educated Church administration was in place, to which the canonical ideals were known, even in the sphere of donations. Maybe it was Peder Bodilson personally who knew the Augustinian principle, as the Roskilde Chronicle states that he was strongly involved in the religious and canonical currents of his time. He was one of the leaders in the celibacy rebellion in 1124, whose aim was to compel priests to live in celibacy by forcibly sending away their wives or concubines.17 It is also interesting that the legal term capital portion was not used as a unit of measure with regard to the size of the donation in the deed of gift of the Bodilsons. We should hesitate, however, to draw the logical conclusion that the term capital portion was not yet used in a legal context. Peder Vognsen’s will from Århus in 1203 simply stated that he made Christ a co-heir to his estate. The will originated at a time when the capital portion terminology was known in Jutland, and it therefore was deliberately dropped.18 Helge Paludan is mistaken when he states that the deed of the Bodilsons that the “formulations that God should be the Bodilsons’ coheir, and the monks should share their patrimonium is quite unusual to find in a letter issued by an ecclesiastical instance.”19 Actually, it was not exceptional that the Augustinian principle appeared in a document issued by a theologically trained person who knew the writings of Augustine and the canonical interpretation of his words. The Augustinian principle, in fact, was employed in Denmark before the arrival of Gratian’s Decretum. This shows that ecclesiastical circles accepted the canonical interpretation of his words even before the 1150s. With this scattered information in the surviving diplomas, it is only possible to guess which regulations or norms regulated how much of the estate an individual could dispose of freely without infringing on the rights of the heirs before the arrival of the provincial laws. The scattered information cannot clarify whether or not the same norms existed in all provinces. With the deed to Tommerup Abbey from fecerunt . . . Ad stipendia quoque ibidem Deo militantium; suum participati sunt patrimonium”). DD 1. ser., vol. 2, no. 64. 17   Roskildekrøniken, p. 24. Probably, Peder Bodilson spent some time in his youth at one of the centres of learning in Western-Europe, which may explain his eager for ecclesiastical reforms. 18   DD 1. ser., vol. 4, no. 82. 19   Paludan, Familia og familie, p. 87.

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1161,20 Valdemar the Great took the abbey under his protection, giving it property and privileges. This confirms that an ill person, but with a sound mind, on his deathbed was allowed to give to the abbey (“lege Danorum seruat, quod medietatem in omnium suarum facultatum”).21 It is interesting that Inger Dübeck translates this passage to imply that one was permitted to donate half a capital portion to the abbey.22 The Danish translation of Diplomatarium Danicum, Danmarks Riges Breve, translates the passage as “half of their estate.”23 The two interpretations actually differ substantially,24 even though the decree in both circumstances is interpreted as the one that is found in the Church Law of Scania from the beginning of the 1170s. It decrees the largest amount of a donation at death to be half a capital portion, and not half of what one possessed.25 The possibility cannot be excluded that the Tommerup privilege meant half a capital portion, which would compare to what later decrees stipulate. Against this interpretation, the introduction to the Church Law of Scania states that it came into existence as an agreement between the archbishop and the peasants, because the earlier legislation was too harsh.26 This statement should caution us not to transfer the decrees back in time to before 1171 without extreme care. The passage should be interpreted as permission to give half of one’s estate to the abbey without considering the number of heirs, a practice that the Church Law of Scania ended. We must assume that the half capital portion had already by the middle of the 1170s became 20   The authenticity has is contested by Iuul, Fællig og Hovedlod, pp. 332–343, but his arguments have not obtained general recognition. See Gelting, “Odelsrett— lovbydelse,” footnote 36, pp. 155–156. 21   DD 1. ser., vol. 2, no. 143. 22   Dübeck, “Skånske Lov og den europæiske baggrund,” p. 410. 23   “Halvdelen af alle deres midler.” “Danmarks Riges Breve,” 1. ser., vol. 2, no. 143. The same meaning is also found in Jon Liedgren et al., “Sjelegave,” Kulturhistorisk Leksikon for Nordisk Middelalder, vol. 15 (Viborg 1982), p. 315; and Herluf Nielsen, “Testamente,” Kulturhistorisk Leksikon for Nordisk Middelalder, vol. 18 (Viborg 1982), p. 218. 24   For a childless person, there was no difference between half the estate and half the capital portion, since the capital portion was the total estate. For a person with children, the difference between the two statements becomes great, since the size of the capital portion depended on the number of children, and their sex. If a man had two sons, his capital portions would be one third of his estate, and if he was only allowed to donate a half of a capital portion for his soul, it would be one sixth of his estate. 25   Danmarks gamle Landskabslove, vol. I, 2, SkKl. text 1, ch. 5, pp. 833–835. 26   Ibid., p. 821.

donations, pious donations, & the disposal of property 193 a recognized upper limit for donations in all provincial laws. In that era Valdemar the Great donated a half capital portion to Saint Peter’s monastery in Slesvig “according to what our provincial laws have approved (to transfer) after our bodily death.”27 The Sorø Chronicle shows how tricky the half capital portion can be. The chronicle states that Toke Skjalmson, on his deathbed in the beginning of the 1140s, gave a half capital portion to build Sorø Abbey.28 The Sorø Chronicle, however, is written much later, with the aim to legitimate the possessions of the monastery, so it must be expected that the chronicle chose to define the size of the donations according to the legislation at the time of writing. Therefore, we cannot know if half the capital portion was also the norm for donations in Zealand in the 1140s. Another document that may illuminate the right of donation is King Niels’ deed to Saint Cnut’s Church in Odense from between 1104 to 1117. The document states that if a man living on the land of the Church died without leaving heirs,29 the Church had the right to half the estate, whereas the other half was the property of the king. Furthermore, the privilege states that: a man, who owns land or other possessions, who had no heir, and who while he was sound and healthy, and who wants to donate his estate to the Church, and only wants to keep the yield while being alive is allowed to donate his land to the Church and half of all the second part of the capital belongs to [the kings] right.30

This privilege is interesting for several reasons. First, it should be emphasized that donations on the deathbed are not mentioned, only

27   “Preterea dimidiam capitalem porcionem patrimonii nostri sed et aliarum acquisicionum nostrarum sunnen. a. quas inpresenciarum possidemus aut in futurum adepturi sumus eidem loco iuxta predictum [m]od[um se]undum quod legis terre nostre sanxit auctoritas post corporis nostri dissolucionem contulimus.” DD ser. 1, vol. 3, no. 50. 28  Ranvig, Sorø Krøniken, vol. II, p. 80. 29   In the document it is described in Latin as “danefe,” which must be related to the term danefæ, which later meant treasures found in the earth, so without an owner, were the property of the king. The usage of the word danefe may imply that the legal description was used in the beginning of the twelfth century. DD ser. 1, vol. 2, no. 32. 30   My underlining. “Quis [h]ab[ens] terras uel alias possessiones heredem autem non habens res suas dum adhuc est sanus et [inc]olumis ecclesie uolerit conferre. et si tantum quamdiu uixerit usum fructuarium ex eis [reseru]a[re] terras ei ex integro et tocius pecunie medietatem donare liceat et nostro iuri pars altera cedat.” Ibid.

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those made by person who were sound and healthy. This may be because the Crown wanted to prevent property which otherwise would become danefæ from becoming a donation at the deathbed. It is also remarkable that it addresses the question of what it meant not to have any heirs We do not know the rules of inheritance from the time before the provincial laws, or whether there were firm rules at all. Certainly, stipulations concerning heirs were not the same as those found in the provincial laws, since persons who did not have relatives within seven generations must have been so rare that it would have had little importance for the income of the monastery. The most evident option must be that the existing inheritance law was less encompassing than that which the provincial laws introduced. In that case, it may mean that being without heirs may indicate that the person had no children or close kin (siblings or parents). The privilege relates specifically to persons who had no heir, and if the testator had no heir and his right of disposal was totally free, this wording would be superfluous. The lack of firm stipulations for donations could lead to other problems, which can be seen in a document that Archbishop Asser issued in 1133 regarding his donations to Lund Cathedral. The document explains how he had acquired the donated estate, about which he writes, “Others donated to benefit of the souls of good men and their closest relatives, and those lands I acquired in actual purchase from the closest heirs.”31 Michael H. Gelting interprets this sentence as a sign that allodial rights, that the kin had pre-emption to land that was being sold, were rooted in the time before the provincial laws existed.32 That does not have to be the case, however, since the wording may indicate that Asser feared that the heirs would create a calumnia.33 Gelting’s interpretation has another problem relating to Asser’s statement “some I bought fairly expensively from kin and friends.”34 If allodial rights existed, Asser could not simply donate land he had bought from his relatives!

31   My underlining. “Alias dederunt quidam boni uiri pro animabus suis et proximorum suorum. quas tamen iterum integra empcione comparaui a proximis heredibus eorum.” DD ser. 1, vol. 2, no. 56. 32   Gelting, “Odelsrett—lovbydelse,” p. 143. 33   Calumnia took place in areas where there were no established rules for the size of donations and the rights of the heirs, which the introduction of allodial rights and the decrees on donations created. 34   “Quasdam emi satis preciose a cognatis meis uel familiaribus.” DD ser. 1, vol. 2, no. 56.

donations, pious donations, & the disposal of property 195 It is difficult to state which norms for donations and other gifts existed before the arrival of the law codes. The diplomas contain sparse information which reveals that the Augustinian principle was known, but that does not mean that the principle was generally accepted. Other documents concerning donations mention privileges to single ecclesiastical institutions, but they cannot be understood as containing definite information about general conditions. It appears that no general set of norms or provisions existed for donations or gifts. Consequently, we may assume that, just as within the area of inheritance, each individual generally had more latitude in the disposal of his property before the arrival of the provincial laws. We can be much more confident about provisions of the Danish provincial laws concerning donations. The Laws of Zealand, the Law of Scania, and the two Church Laws have minute decrees about donations and other gifts. They all allow the donation of half a capital portion to parties other than the heirs.35 The Book of Inheritance states, “If he will give after his death, then he may not, neither if he is health nor ill, donate more than half a capital portion, neither to church, monastery, nor priest, nor another man.”36 Donations that were to be given after death could be given while one was in good health, as well as when ill, which possibly meant on the deathbed. In this case, there is less difference between the Law of Scania and the Church laws, which mention donations at the deathbed only, not donations made while alive or distributed after death. Furthermore, documents from towns show that it was common to convey deeds at the thing, and these became valid only after the death of the donor.37 The Law of Jutland has only one provision concerning donations, which limited the right of married women to donate. Thord’s Articles state that the donation of half a capital portion was the ordinary practice in Jutland for donations and gifts in general. It is maintained that for frankalmoins—or another kind of present—one was allowed to give a maximum of half a capital portion of all inherited estate, whereas one could dispose freely 35   Danmarks gamle Landskabslove, vol. I,1, SkL. text 1, ch. 38, p. 23. Vol. VII, A&O. text 1, 1. book, ch. 50, p. 36. Vol. I,2, SkKl. text 1, ch. 5, pp. 832–935. Vol. VIII, VsL1. ch. 47, pp. 24–25. SjKl. text 1, ch. 8, p. 449. Vol. V, EsL. text 1, 1. book, ch. 32, pp. 40–41. 36   “En vm han wil gewe eftir sik døthan. tha ma han hwerkin heel ellir siwkir. hwerkin kyrke ellis clostræ. ellir presti ellir andrum manni meræ æn halwan sin howith løt vt gewa.” Ibid., vol. VII, A&O. 1. book, ch. 50, p. 36. 37   Fenger, I være have, p. 104.

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of the bought estate.38 It should be noted that the right to donate without the consent of the heirs was greater than permitted by the Laws of Zealand and the Law of Scania, since these limited the half of a capital portion to both the inherited estate and the bought land. When returning to the right of married women to donate, the Law of Jutland stipulates, “The wife, who had husband and child with him may not give more in frankalmoins than the husband gives his consent to . . . But if she has no children with him, she may donate half a capital portion for her soul.”39 This provision is very extraordinary, since no similar stipulation is found in any other Scandinavian law code. However, even though the Laws of Zealand did not require the consent of the husband to the wife’s donation, a document from 1291 from Esrom Abbey may indicate that it was an established practice on Zealand. Margrete, the wife of Cnut Rød, gave a donation to the abbey “with the consent and approval of my beloved spouse.”40 The laws also took into consideration that the heirs might object to the donations or presents that the deceased had given. The procedure followed on Zealand and in Scania was prescribed in the Church laws, in the Book of Inheritance, and repeated in King Valdemar’s Law of Zealand. Here the heirs’ right to object was not questioned, but the laws prescribed two procedures according to whether there were witnesses to the donation or not. If the alleged recipient had two witnesses to the donation, the heirs should deny its existence by oath from 12 jurors from the parish. If there were no witnesses, the heirs should refuse by “tylvtered”—oaths of 12 men.41 With Eric’s Law of Zealand, it became more difficult for the heirs to object to a donation or other presents if they had been given at the thing. This may be con38   Danmarks gamle Landskabslove, Addition to vol. VI, text 1, ch. 24, p. 87; text 2, ch. 31, p. 115; text 6A, ch. 28, p. 172; text 5, ch. 46, p. 157; and text 6B, ch. 33, p. 222 all have the addition that one could only give half a capital portion in movable property. 39   “Hwsfrø thær bondæ hauær oc barn with. ma æi giuæ at sialæ gift meræ æn bondæ giuær ia withær. . . . Æn hauær hun æi børn with hanum. tha ma hun giuæ half sint houæth lot for sinæ sial.” Ibid. vol. II, JL. book 1, ch. 39, pp. 92–93. This decree is expanded in book 3, in the part of the text that is added after 1241. Gelting, “Skånske Lov og Jyske Lov,” pp. 60–61, in which the expanded text dealt with objections to the decision of the husband. 40   “Accedente ad hoc consensu et licentia dilecti mariti mei.” DD ser. 2, vol. 4, no. 7, p. 8. 41   Danmarks gamle Landskabslove, vol. VII, A&O. text 1, 1. book, ch. 51, pp. 36–38. Vol. I,2, SkKl. text 1, ch. 5, pp. 833–835. Vol. VIII, SjKl. text 1, ch. 8, p. 449. VsL1. text 1, ch. 47, pp. 24–25.

donations, pious donations, & the disposal of property 197 nected to the introduction of registration at the thing, which became a general legal practice in the 1240s. The law prescribed, “if he gives his half capital portion and performs registration at the thing, then always it is upheld what there is a witness to at the thing, no matter whether he donates to the house of God or to others. But if he donates outside the thing . . .”42 the heirs could object with an oath of jurors, if it was a donation to an ecclesiastical institution and there were two witnesses. If it was not a donation to an ecclesiastical institution, the heirs could rebuff the donation with an ordinary “tylvtered.” The decree seems to indicate a desire that all donations taking effect at mortis causa should take place at the thing, since it prevented any potential challenge. That again suggests that the written will was not yet very common or recognized and that the secular rulers did not necessarily wanted them to be in the future, since cases about wills adhered to the ecclesiastical jurisdiction and law courts. The Law of Jutland did decree that if a husband had children with his wife, he could prohibit her donations. In conclusion, I would like to discuss why the Danish provisions concerning donations limited donations to half a capital portion without the consent of the heirs. The Augustinian principle to make Christ a co-heir has already been mentioned, and it is likely that Augustine was the source of inspiration. Half a capital portion was the size of the smallest inheritance portion, the portion for the daughter. But why was the limit set at a half, not a full, capital share, since Augustine had stated that Christ should be an heir similar to a son. Inger Dübeck follows the explanation of Stig Iuul, who explained that half a capital share was the result of a compromise between the Church and the population.43 Unfortunately, she does not explain what she means by “the population”—was it the magnates or a policy that had the general support among peasants? Michael H. Gelting has suggested that the aim was to defend the children, and that it was a natural consequence to limit donations to the smallest inheritance portion, the daughter’s portion. If a full capital share were the limit, a person who, for example, had only one daughter would be allowed to donate two-thirds

42   “Æn giuær han half sin houæth lot oc scøtær a thingi. tha hwat sum han giuær hældær guthz husæ ællær andræ mannæ. tha standæ e thet ær thing witnæ ær til. Æn utæn thing at giuæ.” My underlining. Ibid., bd. V. EsL. 1. book, ch. 32, pp. 40–41. 43   Inger Dübeck, Kvinder, familie og formue. Studier i dansk og europæisk retshistorie (Copenhagen 2003), p. 112.

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of the estate.44 Michael H. Gelting is probably right that the half a capital share became the limit in order to protect the heirs, but it can be argued that his interpretation is insufficient, because it only takes the heirs of the body into consideration. The limit of donations to half a capital portion was a general protection of heirs not only of the body but also on the sidelines. If a childless person was able to donate the full capital portion, heirs on the sidelines were at a disadvantage. And this does not fit the picture that the laws present of a general strengthening of the kinship group in the economic sphere. The capital share of a childless person was, in fact, done as follows: “If a man has other heirs than his children [i.e., if he is childless], then everything he owns, both movable property and land, is his capital portion.”45 In other words, the limitation to half a capital portion protected the interests of relatives of childless persons and assured that at least half of the estate of the childless person stayed within the kinship group. This does not imply that considerations for female inheritance did not play a role. The later Västgöta Law, based on the Danish stipulations regarding donations, states about donations and presents that if the heirs were all women, they were allowed to donate as much as one of them would inherit.46 Stated differently, you were only allowed to donate a daughter’s portion if all heirs were women. Swedish materials We do not know much about Swedish property law before the arrival of the provincial laws. With regard to the right of disposal of one’s property, not much is known before the previously mentioned letter from Pope Alexander III from the 1170s to the Swedish king, the earl, the bishops, and the population of Götaland.47 The pope prohibited parents from donating all their possessions to the Church and thereby disinheriting their children. Alexander III stated that the Augustinian principle should prevail, which meant that one was allowed to donate   Gelting, “Odelsrett—lovbydelse,” p. 139.   “Hafær man andræ arfæ æn børn sin, þa ær alt þæt, han a, baþæ i fæ ok i iorþ, hans hofoþlot.” Danmarks gamle Landskabslove, vol. I,1, SkL. ch. 40, p. 24. 46   Schlyter, Corpus iuris, vol. I, VgL2. Kirkyu, ch. 60, p. 102. 47   The text of the letter is explained in L.M. Bååth, Bidrag till den kanoniska rättens historia i Sverige (Stockholm 1905), pp. 123–135; and it has recently been studied in detail by Michael H. Gelting in “Pope Alexander III.” 44 45

donations, pious donations, & the disposal of property 199 only the capital portion of a child. If one had no children, however, a person was free to dispose of his property without constraint. Alexander the III’s letter implies that in Götaland in the 1170s, there was free right of disposal of property. The tightening of the freedom of donation that is found in the legislation must have been of a later date, even though not necessarily from the time of the provincial laws. Åke Holmbäck has argued that the Östgöta Law forbade the donation of “land or other property to the detriment of the legal heirs, which the law permitted earlier.”48 Holmbäck thought that free disposal of property was an old practice. It can even be found in the sagas and appeared in Beowulf, which reveals that owners donated land and inherited objects.49 Another papal bull from 1206 to the archbishop and his subordinate bishops states that Swedish practice required the consent of heirs to validate donations to religious institutions.50 The difference between the two papal bulls is undeniably huge. It is, of course, legitimate to question how much papal bulls influence conditions, but someone in Sweden must have informed the Curia about conditions there; otherwise the pope would not have had any reason to send the bulls. How informed would the Curia have been? Maybe one or both letters related to extreme cases, or maybe the pope was fully informed of the situation, and practice had changed in the time between the two documents. It is, of course, difficult to know whether Alexander III’s command to introduce the Augustinian principle was carried out. When it appears in later provincial laws, the inspiration might have been Danish laws. Unfortunately, the lack of documents makes it difficult to get a more precise answer. With some caution, it may be possible to trace a development from free right of disposal over property to a later situation in which the consent of the heirs, at least in some places, was required. That is apparent in the Older Västgöta Law, which only states that donations at the deathbed were not allowed without the 48   “Nu ma egh man iorþ ælla annat gozs giua undan rættum aruum sua sum för uar i laghum.” “Samling af Schlyter, Corpus iuris, vol. 2, ÖgL. Ærfþa Balkan, ch. XI, p. 129. 49   Holmbäck, Ätten och arvet, pp. 67–68. It appears somewhat farfetched to use Beowulf as a source to the right of disposal of property. It is, however, an interesting observation to see the decree in the Östgöta Law as an expression of an earlier and more liberal right of disposal. 50   Gelting, “Odelsrett—lovbydelse,” p. 141.

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consent of the heirs.51 Alexander III’s bull of 1206 was addressed to the population of Götaland, so one may, with some hesitation suggest that practice changed between 1170s and the 1220s, when the older Västgöta Law was written down. It is much more difficult to know the conditions in other Swedish provinces. Only with the provincial laws from around 1300 is it possible to get an impression of the stipulations regarding donations. There is one single exception: the oldest surviving Swedish diploma from around 1165 deals with a case from Sigtuna, in which a son opposed his mother’s donation to a monastery. The case was solved with a compromise between the mother and the son, probably through mediation by the bishop, the king, and the earl, who all signed the diploma.52 This case from Uppland implies that regulations in that district differed from those in Götaland. Yet we cannot use a single document as the basis of an interpretation, especially when the controversy was between mother and son. It is possible that women did not have the same rights of disposal over their possessions as men had. Three principles for donation- and gift-giving existed in Swedish legislation. One followed the Danish system with principal portions. In the second, the donation or gift could not exceed a certain limit, no matter whether the donor was rich or poor. Finally, there also existed a third system based on the right to donate up to one-tenth of the property to recipients other than the heirs. The later Västgöta Law and the Östgöta Law, in general, were based on similar principles for donations and presents, even though the stipulations in the Västgöta Law are much more detailed. Both laws allowed donation of a capital portion to ecclesiastical institutions while the donor was healthy, but if the donation took place on the sickbed, no more than half a capital portion could be donated.53 Both laws distinguished between donations for the Church and for secular people. As the Östgöta Law states, “No one may donate to the detriment of the rightful heir except to monastery or churches, without the consent of the heir.”54 Furthermore, the law prescribed that if one donated land   Schlyter, Corpus iuris, vol. 1, VgL1. Arƒþær, ch. 10, p. 27.   Hagerman, Spåren av kungens män, pp. 352–353, where the text of the letter is printed in full. 53   Schlyter, Corpus iuris, vol. 2, ÖgL. Kristnu Balken, ch. XXIV, p. 21. Vol. 1, VgL2. Kirkyu Balken, ch. LX, p. 102. 54   “Nu ma egh giua undan rættum arua utan til klostra ælla kirkiu utan þæs uilia sum aruin.” Ibid., vol. 2, ÖgL. Ærfþa Balkan, ch. IV, p. 117. The Västgöta Law has 51 52

donations, pious donations, & the disposal of property 201 to non-ecclesiastical institutions, the recipient could keep the land as long as he lived; then, if he did not have children, the land would revert to the donor or his heirs, unless it was donated, using specific legal forms to which there were witnesses or documents confirming the donation.55 Both laws have strong measures to protect the rights of heirs to the detriment of the free right of disposal of property, in particular land. It should be noted that the legislation followed the Augustinian principle, since the size of donations to the Church was determined based on the number of heirs and were not restricted like donations to other parties were. The addition to the Västgöta Law states that if, following the directions of the law, a person donated land or movable property without the consent of the heirs, then the gift was valid only for the lifetime of the donor. For three years after the death of the donor, heirs had the right to order the donation returned. If any of the heirs agreed to the donation, the recipient was allowed to keep the part of the donation corresponding to that heir’s share of the inheritance. The share of the heirs who had not given their consent was returned to them.56 This stipulation was a tightening compared to earlier practice. It limited the right of free disposal to the lifetime of the donor. It is questionable, however, whether this stipulations was valid for the Church as well. It would be a violation of the canonical legal principles, which had been officially accepted in Sweden since the mid-thirteenth century. Furthermore, the stipulation is ambiguous. The law does not specify whether it implied donations within the permitted size or if the stipulation dealt with situations in excess of the maximum limitation. The only stipulation concerning donations in the Dalar Law states that a person could donate less than the value of three Mark without the consent of the heirs, unless the donation was to the Church. The law does not stipulate which rules to follow in the latter case.57 Similar stipulations are found in the Church Law of the Law of Småland and

more complicated stipulations in these matters. First, it was stated that no inherited land could be donated without the consent of the heirs, and then one could donate half of the movable property and one-third of the bought land or land that had been given in “herretjeneste.” The term herretjeneste meant conditions where the person was in the service of a magnate or a peasant (bonde). 55   Ibid., vol. 1, VgL2. Aruæ Balken, ch. 26, p. 140; Retlosæ Balken, ch. 30, p. 159; and IorÞæ Balken, ch. 46, p. 192. 56   Svenska Landskapslagar, vol. 5, VgL2. Addition, § 12, pp. 388–389. 57   Schlyter, Corpus iuris, vol. 5, DL. Gipninga Balken, ch. XVI, pp. 52–53.

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the Hälsinge Law. The former law stipulates that the heirs could object to donations, if a donation to the Church was in excess of one Örtug land of a Mark land.58 The Hälsinge Law stipulated that a person could donate an estate worth 16 Øre in either land or movable estate without the consent of the heirs. In contrast, the right of disposal for purchased estate was free.59 Here is yet more proof that the particular protection pertained only to the inherited estate. The free right of disposal to purchased estate (avlingejord) is also found in the Uppland, the Södermanna, and the Västmanna Laws; these laws decreed, however, that the free right of disposal to the purchased estate was only valid for donations to the Church.60 The rest of the stipulations regarding donations were the same in the Uppland, the Södermanna, and the Västmanna Law. The three laws did not allow the donation of more than one-tenth of all börds61 land to the Church without the consent of the heirs. Furthermore, donations to non-ecclesiastical institutions were only valid approved by the heir.62 The Södermanna Law expanded the provision. A person had the right to donate one-tenth of his paternal inheritance to the Church. If he donated land, the heirs had the right to redeem it within a year and six weeks.63 The extraordinary protection of the rights of the heirs to the börds land may be connected to the problem of obtaining consensus about the donation stipulations of the Södermanna Law.64 The reason for fixing the maximum amount for donation without the consent of the heirs to one-tenth is probably that the stipulation

58   That corresponds to 1/24 of the land. Svenska Landskapslagar, vol. 5, SmKl. Kykobalken, ch. 15, p. 431, Fl. 18, note 2, p. 449. 59   Schlyter, Corpus iuris, vol. 6, HL. Kyrkiu Balken, ch. XIV, pp. 11–12. 60   The Västmanna Law does not state the provisions for donations to non-ecclesiastical recipients. The Södermanna Law stipulates that if the donation was not for sacred purposes, the person was allowed to donate half the purchased estate if he was healthy. If he was ill, he could donate only one-third. The addition to the Uppland Law stipulates that if the donor was healthy, he had free right of disposal of his purchased estate, but if he was ill he could only give donations to the Church. Ibid., vol. 3, UpL. Kirkiu Balken, ch. XIV, pp. 48–58; Additamenta, ch. I, p. 276. Vol. 5, VmL. Kristno Balken, ch. XIII, pp. 97–98. Vol. 4, SmL. Kirkiu Balken, ch. Xl, pp. 30–32. These examples demonstrate again that the particular protection of the rights of the heirs related to the inherited estate, whereas the purchased land did not have a similar protection. 61   Börd means rank, birth, and kinship. 62   Ibid., vol. 3, UpL. Kirkiu Balken, ch. XIV, pp. 48–58. Vol. 5, VmL. Kristno Balken, ch. XIII, pp. 97–98. 63   Ibid., vol. 4, SmL. Kirkiu Balken, ch. XII, pp. 32–33. 64   Ibid., Confirmatio, p. 3.

donations, pious donations, & the disposal of property 203 was rooted in an older arrangement, according to which the Church expected to receive a capital tithe (decimal capitalis) from each person.65 The Östgöta and the Västgöta Laws indicate that the capital tithe had been used in these provinces,66 and similar vestiges can be found in Norwegian legislation. The Norwegian donation provisions will be presented in the next chapter, but first I will investigate how the Swedish rules were kept and where the inspiration came from. Several documents reveal that it was difficult to find a model that would satisfy the interests of the heirs, as well as the considerations for the salvation of the soul. In 1274 Pope Gregory X complained that the principles of canon law had not been carried out in Sweden, since that law ruled that no donations were valid without the consent of the heirs.67 This statement is difficult to interpret, however, since the information that was available for the pope was second-hand. His statement may be a generalization based on few examples. The confirmation charter of Södermanna Law provides more solid proof that donation provisions were a matter of contest. It states: then, since everybody in agreement and without opposition have accepted the law with pleasure, except for three points, one donations to the Church, second about wills, because regarding these point the men of the province, and the Bishop and the clerics are not yet in agreement.68

The stipulations of the Södermanna Law were thus the result of a compromise or, more likely, a royal decree, since the king was the supreme authority. Despite the lack of agreement among the Swedish stipulations, they did have some general features. First, most of them limited the size of the donations or gifts—and not calculated on the size of the total estate, as was the case in the Denmark. In Denmark, in fact, the capital portions for donations were calculated on the basis of the total

  One-tenth of everything you owned.   Herman Schück et al., “Tiend,” Kulturhistorisk Leksikon for Nordisk Middelalder, vol. 18 (Viborg 1982), p. 296. Bertil Nilsson, Sveriges kyrkohistoria I. Missionstid och tidig medeltid (Arlöv 1998), p. 219. 67   Diplomatarium Suecanum, vol. 1, ed. Bror Emil Hildebrand (Kungl. Vitterhets historie och antikvitetsakademien och Riksarkivet, Stockholm 1829), no. 577, pp. 475–477, Svenska Landskapslagar, vol. 5, VgL1. p. 88, note 33. 68   “Framaleđes siđan alle međ samsæt ok utan genmæle uiđer them laghum glađlica takit hafđo. undan taknum at enosto tuem punctum. en ær um kirkiu gif. annar ær um testament. for thy at um þænne tu haua sic lanzmænnene ok biscopen ok klærkane æi æn sampt eller iuir eno comit.” Schlyter, Corpus iuris, vol. 4, SmL. Confirmatio, p. 3. 65 66

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estate, both inherited and purchased, the only exception being Thord’s Articles. Second, although most Swedish laws are from around 1300 and are, thus, contemporary with Thord’s Articles, most distinguish between purchased and inherited land (allodial rights), and this distinction evidently influenced the stipulations regarding donations. Norwegian materials In contrast to Denmark and Sweden, Norway already at an early date limited the amount a person could donate for the salvation of the soul. Stipulations came into place when the English cardinal Nicolaus Breakespear came to Norway in 1152/53 to negotiate the creation of a Norwegian archbishopric. In return for the archbishopric, the Church obtained a number of privileges. Within the sphere of donations, it was agreed that a person might donate one-tenth of all inherited estate and one-quarter of the purchased estate, land, or movable property, without the consent of the heirs.69 These stipulations were immediately incorporated into the provinces of the Gula and the Frostathing. In the Frostathing Law, the stipulations were incorporated with the addition that women were allowed to donate one-tenth of their dowry and onequarter of the tridjungasuken.70 The stipulations of the Frostathing Law were adapted to the economic situation of women, who were excluded from inheriting according to the already described inheritance stipulations. In 1224, Haakon Haakonsson confirmed this stipulation for the whole country, including the Borgarthing and Eidsivathing jurisdictions.71 Finally, it was incorporated into the national law with the extension that it was valid not only for donations but also for all kinds of presents. Still, pious donations had precedence over other kinds of presents.72 It is surprising that the 1152/53 decree on donations did not follow the Augustinian principle, which stipulated that the size of donations should depend on the number of heirs. Instead, the law prescribed fractions without considering the number of heirs. There can be two   Johnsen, Studier vedrørende kardinal Nicolaus, pp. 230–34.   A supplement to the dowry of a woman corresponding to half of the dowry is known from the Law of the Frostathing only. Norges gamle Love, vol. 1, FL. III, ch. 17, p. 153, and IX, ch. 18, p. 213. 71   Ibid., “Kong Haakon Haakonssöns Stadfæstelse af Cardinal Nicolaus’s Bestemmelser om Gaver.” 1224, pp. 447–448. 72   Ibid., vol. 2, Arvebolk, ch. 21, p. 90. 69 70

donations, pious donations, & the disposal of property 205 explanations for this, which are not mutually exclusive. First, the Augustinian principle may not have had a preferential position within the mid-twelfth-century canon law philosophy. Maybe Gratian’s Decretum, which promotes the Augustinian principle, was not generally known. This would not come as a surprise, since the second and more important version was completed around 1150. The second possible explanation is that capital tithe was known and accepted in Norway before 1152/53. Therefore, the law chose to retain that tithe rather than introduce a new principle. The concept of the capital tithe was based on payment of a yearly tithe payment on all receipts and crops, which the Church tried to introduce on a permanent basis. The capital tithe may very well have been an older version, since the permanent tithe required control and administration and must therefore have been difficult to handle during the establishment phase of the Church. Decrees concerning capital tithe are found in the older Christian Law of the Borgarthing Law, which states that it everyone had the duty to pay both capital tithe and ordinary tithe.73 Here we have a transitional form, where ordinary tithe had been introduced but the capital tithe had not been abolished. In relation to the Borgarthing Law, the decrees of 1152/53 alleviated the duties to the Church, since the new stipulations did not force donations. The fact that one-tenth was chosen as a limit of donations in several Swedish laws, and vestiges can be found in the Västgöta Laws and Östgöta Law,74 may indicate that the capital tithe was more widespread in Scandinavia than the surviving documents indicate. It is noteworthy that the arrival of the Law of the Realm did not alter the provisions concerning donations but did revise the inheritance law so that the stipulations regarding the inheritance rights of heirs of the body followed the “Danish” model. The donation model was not based on the number of heirs, however. This may have been because lawgivers did not want to provide the Church easier access to the limited amount of Norwegian agricultural land, which a donation system based on the Augustinian principle would imply. The testator would have to have many children before the donation part would be less than one-tenth of the inherited land and one-quarter of the purchased land, respectively, which the old model prescribed.

  Vikens Kristenret, ch. 26, p. 29.   Schück, “Tiend,” p. 296.

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It is likely that the firm limits on the amount a person could donate to ecclesiastical institution and other than the legal heirs was ultimately settled with the passing of the provincial laws, just as we saw with regard to the inheritance law. For example, we saw that Danish provincial laws permitted the donation of up to a half capital portion without the consent of the heirs, rendering the size of a donation dependent upon the number of heirs.75 Likewise, documents from West-Sweden seem to imply that before the arrival of the provincial laws there were practically no limitations on how much one might donate to the Church. The legislation tightens this situation.76 The older system based on the capital tithe likely determined the Norwegian provisions concerning donations that were established during the legation of Nicholas Breakespear’s legation to Norway in 1152/53. Therefore it allowed donations of one-tenth of all inherited estate and one-quarter of all other property without obtaining the consent of the heirs. These provisions were entered in all provincial laws and were finally included in the Law of the Realm. It should be noted that, with the exception of the Borgarthing and the Eidsivathing Laws, none of the Scandinavian provincial laws prescribe forced donations. The aim of the established regulations was exclusively to protect the descendants. The donations were undoubtedly accepted in general as beneficial for the soul of the donor. It was, however, the duty of the legislation to safeguard the interests of society, not just individuals. That may explain the popularity of the Augustinian principle: it was applicable and allowed for the interests of the family, the Church, and the soul.

75   This was inspired by the Augustinian principle to make Christ a co-heir, but unlike Augustine, the Danish laws did not consider the Church on par with sons. It was probably motivated by a desire to protect a minimum inheritance when only daughters inherited or when the inheritance did not go to heirs of the body. 76   The Swedish laws have three principles for giving gifts and donations. The later Västgöta Law and the Östgöta Law incorporated the “Danish” principle that a person may donate a part of the capital portion. The Hälsinge, Dalar, and Småland Laws specified a maximum amount that might be donated or given, without consideration for the economic situation of a donor. The remaining laws operated similarly to the West-Swedish laws, permitting donations of a certain fraction of the estate, but the fraction did not depend on the number of heirs and was, instead, limited to one-tenth. It is not a coincidence that the limit was one-tenth; it presumably emerged from an older practice, according to which it was expected that persons donated a capital tithe to the Church once in their life.

donations, pious donations, & the disposal of property 207 The general aim of the donation and gift provisions to protect the interests of the heirs becomes more evident when considering that donations above the stipulated limits were not prohibited if the heirs consented to it. The inherited estate was regarded primarily as an object of protection. A greater difference between inherited and purchased estate is evident in the later laws, undoubtedly because of the allodial rights. In several laws, the limits on what a person could donate to secular people was less that what he could donate to ecclesiastical institutions. It could also be more difficult for a secular person to obtain prescriptive rights to a donation that extended beyond his lifetime. This might indicate a recognition of the particular meaning of donations as well as the rights of the kinship group. Donations that left the family but did not profit the Christian community did not deserve the same protection as those that went to the Church.

chapter thirteen

THE RIGHT OF ALLODIUM Today, few if any scholars hold the previously dominant opinion—that allodial rights were a relic from primitive Germanic times.1 Instead, the allodium right is believed to have been introduced in Scandinavia in the early and the beginning of the High Middle Ages. A more precise dating continues to be vague, however; we can only state that the right of first refusal appears in most provincial laws. It is also uncertain why allodial rights were introduced. Maybe to limit the Church’s access to land through donations. Maybe to protect heirs at a time when purchase and sale of land increased. Maybe the concept of property rights changed and allodial rights were actually a way to protect the tax base.2 The explanations are legion and may overlap. Nevertheless, we can posit a connection between control over the sale of inherited land and the introduction of other rules that limited the free right of disposal. In 1991, the Norwegian historian Per Norseng drew attention to the fact that the Nordic allodial right was not unique. The right of the kin to first refusal to inherited land existed in France under the term retrait lignager and in Germany under the terms Familienvorkaufsrecht, Rektraktrecht, and Näherecht.3 The phenomenon also existed in

 An exception is Paludan, Familie og familia, p. 93.   Stig Iuul was of the opinion that pre-emption to land was a new phenomenon at the arrival of the provincial laws, and that it was introduced due to a substantial increase in the sale of land in this period. Stig Iuul, “Lovbydelse,” Kulturhistoriske Leksikon for Nordisk Middelalder, vol. 10 (Viborg 1982), p. 699. Søren Lau Moeslund agrees, but he thought that Danish peasants experienced a poverty crisis around the year 1200, which forced them to sell the land. Earlier, it would have been unthinkable to do so, because land, kin, and honor were narrowly interconnected. Søren L. Moeslund, “Thet collum wi men alt fæthirnis iorth”—Slægt-individ relationer omkring jord, Den jyske Historiker, no. 42, 1987 (Århus 1987), p. 79. M.H. Gelting suggests, in an article about allodial rights, a connection with the construction of an efficient taxation system, which I will discuss later. Gelting, “Odelsrett—lovbydelse”. 3   Retrait indicates the right to have something returned, and lignager with regard to the kin, so retrait lignager may be translated as having the right to have something returned that belonged to the kinship group. Rektraktrecht also signifies the right to have something returned. The meaning of Familienvorkaufrecht evidently means the right of first refusal of the family, and finally, the Näherecht is another term for first refusal. 1 2

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several other locations in Southern Europe,4 and it is found in Corsica even later.5 The right of first refusal appears in several Scandinavian documents from around year 1200, which is simultaneously with the emergence of the Scandinavian provincial laws. The model for the allodial right may be found in classical Roman law, which operated with a prescriptive right of two years on land in Italy and one year for all other land. This period was expanded over time and finally fixed by Justinian, who settled the prescriptive right to ten years between present parties and 20 years between absent parties. An illegitimate owner, who had acted in good faith, could even obtain prescriptive rights after 30 years.6 The Lombard legislation contains a variant of this stipulation: a person could invoke prescriptive rights if he could prove that his father or grandfather had owned the property unchallenged for 30 years.7 There is a significant difference between the Roman/Lombard principle and the allodial right, however. The former referred to obtaining prescriptive rights and thereby unchallengeable rights of possession, whereas the aim of the allodial right was to control the purchase of land to which there were prescriptive rights. The Roman law did know the right of first refusal, but hardly any evidence survives from the classical period. The right of first refusal was used mainly in towns where the building lay close together, which meant that neighbors might have had the right to first refusal.8 Christer Winberg has reopened debate about this right in his book about the börds right.9

 Norseng, “Kommentar til Christer Winberg,” pp. 275–276.   Knudsen, “En Ø i historien,” p. 173. 6   Fenger, I være have, p. 23f. 7  Chris Wickham, “Land Disputes and Their Social Framework in Lombard-Carolingian Italy, 700–900,” in Wendy Davies and Paul Fouracre, eds., The Settlement of Disputes in Early Medieval Europe (Cambridge 1986), p. 110. 8   Fenger, I være have, p. 23. 9   One of Winberg’s major conclusions was that the bördsrätten should be studied not as a unique phenomenon but as a supplement to the inheritance law. Christer Winberg, Grenverket: Studier rörende jord, släktskapssystem och ståndsprivilegier (Göteborg 1985). As previously mentioned, it Per Norseng’s (1991) is credited with creating an awareness of the widespread right of kin’s first refusal of land throughout Europe. Michael H. Gelting carried on this work in his article about allodial rights from 2000, in which he tried to place the Nordic allodial rights in relation to both the French retrait lignager, the inheritance and donation right of the provincial laws, and canonical kinship (he did not employ this term). Gelting ended with some theories about a potential connection between protection of the tax base and allodial rights. 4 5

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Michael H. Gelting chose in his article about the allodial rights to mention all the terms he knew signified the claim of the kin to first refusal before other potential buyers at a sale of inherited land. The most commonly used term for this phenomenon is the Norwegian odelsret, which in Danish laws are called lovbydelse, and in the Swedish, bördsrätt.10 The connection between odelsret, inheritance, and donations, briefly stated, is that the odelsret aims to prevent inherited land from being sold without the consent of the relatives. Inheritance laws and decrees concerning donations strove to protect the material foundation of the nearest kin and also prevent strife between the nearest kin when somebody died in a family. The odelsret served the double purpose to make it impossible for a landowner to sell land to one child or relative at a favorable price, and thereby circumvent the requirement of the inheritance law of equality among heirs. At the same time, the odelsret prevented sale to, for example, an ecclesiastical institution at an inferior price, which might have been a method to circumvent limitations on the size of the donations. These example shows that the odelsret was a necessary supplement to the other measures, if the purpose of the inheritance law was to protect the canonical relatives and at the same time prevent strife over the right to land and other resources. Even though the right of first refusal appeared in most provincial laws, there still were regional differences that make it necessary to study the decrees for each region. Odelsret The word odel has ancient roots in the Norwegian language. It was used long before it obtained the specific meaning through the odelsret. Odel appears for the first time on a rune stone that mentions odel to fishing water.11 Apparently, odel originally referred to a right, which did not necessarily relate to the right to land. The broader definition that signified specific rights to resources seems, in the provincial laws, exclusively to signify the rights of the kinship group to land. The

  Gelting, “Odelsrett—lovbydelse.”   Knut Robberstad et al., “Odelsrett,” Kulturhistorisk Leksikon for Nordisk Middelalder, vol. 12 (Viborg 1982), p. 494. 10 11

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odelsret is a tenacious phenomenon, which even today is important when land is sold in Norway. For a long time, legal historians have accepted the idea that the odelsret found in the provincial law took its final shape after the acceptance of Christianity in Norway. They argue that limitations on who had the odelsret followed the limitations of kinship stipulated in canon law.12 This consensus about the connection between the odelsret and the introduction of Christianity still leaves wide options for dating its emergence. Knut Robberstad, for example, concluded that the known odelsret had to be later than 1024, when, he asserts, Norway passed the first Christian law.13 The existence of such a Christian law is, however, very uncertain, and even if it did exist, there are no guarantees that it adopted the incest problem, and thereby introduced canonical kinship, or that it was carried out in its totality. Other factors speak for a later dating of the odelsret. Frederik Brandt, in his study of the Norwegian legal history, remarks with surprise, “It is strange that indictments regarding odel almost never get mentioned in the Sagas.”14 We should use the sagas with caution, of course, but it is still surprising that the odelsret is barely mentioned. Perhaps it was of minor importance, or maybe even nonexistent. The text, “A Speech against the Bishops” may also indicate that the odelsret did not have deep roots in Norwegian society. The text was written shortly after the papal excommunication of King Sverre in 1198. It is an indictment of the clergy, bishops in particular,15 accusing the latter of having neglected their offices in a variety of ways, both spiritually (thereby endangering not only their own but also the souls of the people) and economically. The bishops are accused of greed and of having usurped the position and rights of churchwardens. However, the peasants’ odel is not mentioned anywhere as belonging to the rights. That became common later in the thirteenth century. Nowhere in this polemical text from the end of the twelfth century is the odel of the peasantry mentioned. The text appears to be address to the magnats and the more 12   This was already pointed out by Torben Vestergaard in 1979. Vestergaard, Social Structure, p. 36. He did not think that the odelsret was an innovation; instead he thought that it was rooted in a time when the kin owned land in common. The odelsret appeared only after buying and selling land became more common. Ibid., p. 29. 13  He refers to the Christian law at the Mostrathing, mentioned in the Icelandic sagas. Robberstad, “Odelsrett,” p. 495. 14   Brandt, Forelæsninger, vol. 1, p. 176. 15  Holtsmark, Sverres saga, pp. 8 and 263–290.



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wealthy peasants (which owned land). The text may be an indication that the odelsret was not an old institution. It is known that already in 1164 the Norwegians distinguished between odel land and other kinds of land. The proof is the “Bolk om ymse emne” of the Frostathing Law. The law ends with Magnus Erlingson’s criminal code, which was passed that year after negotiations with Archbishop Øystein. The punishment for a person who had committed a heinous crime is, “they are all heinous criminals, and have lost their estate, legal rights, land and movable property, odel land as well as other land.”16 This implies that some kind of odelsret must have existed already in the 1160s, and it is reasonable to imagine that some kind of odelsret, which is found in the Gulathing Law, should be considered part of Magnus Erlingson’s great legal reforms. Of course, this is only a qualified guess, since the application of the term in the 1160s does not reveal the age of the procedure. The Norwegian odelsret provides the strongest expression of the right of first refusal of the kin. At the same time, it draws a definite division between odel and other kinds of land, much more so than the Swedish laws. The Norwegian odelsret distinguishes between land that had came into the hands of the owner by purchase or inheritance and inherited land that had been in the same family for generations before it obtained odel status. Neither the Gulathing Law nor the Frostathing Law mention a specific period; instead, land becomes odel land according to the prescriptions of canonical kinship. According to the Gulathing Law, the land should have been inherited within five generations, and when it entered the possession of the sixth generation, it became odel land.17 If two brothers inherit odel land, their successors “were not separated from the odelsret [to the land which each line obtained] before the one which belongs to the one line, can marry the daughter of the one which belongs to the other line”18 According to the Frostathing Law, the land became odel when it was taken over by the fourth generation.19 The connection to canonical kinship cannot be a coincidence. Since Norway received a dispensation from the sixth 16   “De er alle orbodemænd og har spildt ejendom og retsikkerhed, land og løsøre, odelsjord såvel som anden jord” Frostatingslova, eds. and trans. Jan Ragner Hagland and Jørn Sandnes (Oslo 1994), Bolk om ymse emne, ch. 44, p. 95. 17   Norges gamle Love, vol. 1, GL. ch. 266, pp. 86–88. 18   Gulatingslovi, ed. and trans. Knut Robberstad (Norrøne Bokverk) vol. 33 (Oslo 1952), Odelsløysing, ch. 18 (282), p. 257. 19   Norges gamle Love, vol. 1, FL. XII, ch. 4, p. 237.

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generation, the limit of canonical kinship, in 1152/53, the stipulations in the Gulathing Law regarding odel must have been added after that date, and the stipulations of the Frostathing Law must be later that the Fourth Lateran Council. The Law of the Realm upheld the fourth generation for odel land, but added that the land had to have been in the possession of the family for 60 years before it became odel land.20 Perhaps this limitation on prescriptive rights was introduced because the method of calculation in generations meant that the land had to be inherited in a direct line. It would be more difficult to obtain the status of odel land for land inherited by relatives other than children. Only the Frostathing Law mentions Church land, “but it becomes Church odel land what the Church has owned for 30 winters.”21 As previously mentioned, there was a limit to prescriptive rights, which the canon law prescribed and which is found in Roman law too. It should be noted how closely connected canon law, Roman law, and Norwegian ownership conditions were in Norway. A similar close connection between status and canonical kinship can be found in the stipulations of the Frostathing Law concerning how many generations should pass before the successor of an emancipated slave could obtain full legal rights—and thereby also obtain the right to own odel land. Three times four generations should pass, which shows that not only the legal status relating to odel land or purchased land was important but also the personal status, defined based on canonical kinship. The odelsret experienced intense development in the years between the Gulathing Law and Magnus Lawmender’s Law of the Realm. Most important was the redemption of the land that had been sold out of the kin group. All the laws stipulated that if odel land had to be sold, the vendor had the duty to offer it to his relatives, who subsequently had a certain time to purchase the land. It is, of course, natural that the closer relatives had the right of first refusal before more distant relatives. The timeframe for any such purchase was limited in the Gulathing Law, which prescribed that the land be offered for sale in the fall and that the sale should take place the following year at Easter.22 Furthermore, relatives had a window of one year to buy back the land, even if it had not been legally advertised for sale. According to the

 Ibid., vol. 2, MLL. Odelslösningsbolk, ch. 2, p. 93.   Frostatingslova, Andre landsleigebolk, ch. 3, p. 203. 22   Norges gamle Love, vol. 1, GL. ch. 276, pp. 92–93, and ch. 287, p. 95. 20 21

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Frostathing Law, the relatives had a short time to purchase odel land that was put up for sale. The seller, in contrast, had up to 20 years after the sale of the land to buy it back again, at a sum comparable to the sum of purchase.23 Both the Gulathing Law and, to a lesser extent, the Frostathing Law safeguarded the buyer from subsequent requirements to have the land returned to the family whence it came. The Law of the Realm changed this radically. It still mandated that six months should elapse between the time the land was offered for sale until it was transferred to the new owner. But if a relative wanted to make use of his right of odel and could not afford the land, the Law of the Realm allowed him to renew his claim every tenth year within a span of 60 years. This requirement undoubtedly deterred many buyers and probably prevented a number of transactions where odel land would have otherwise been sold out of the kin group. It also meant that it became important for each individual to know all his canonical kin, both so that unknown relatives could not claim odel land at a sale and so that he did not lose the chance to purchase land due to lack of knowledge of the extension of the kin group. Any person until the fourth generation removed, in principle, could claim odel land. It this was based on the teaching of canonical kinship, it was an extreme interpretation. Not all land was odel land. As described above, to transform purchased land into odel land was a slow process. The process seems to have needed a substantial amount of land available for ordinary purchase or sale, otherwise social mobility among farmers would be nearly impossible. Curiously, however, the right of odel in Scandinavia was most dominant in Norway, where the lack of land, particularly good land, meant that the prestige around ownership of land was greater there than in the other countries. Apparently, the landowning groups there tried to maintain their prestige by supporting the designation of some of their land as odel land. Lovbydelse Pre-emption to land (lovbydelse) was a long-lived phenomenon in Denmark. It was finally abolished with the Law of Land Registration of 1926, although, it lost importance much earlier. Already in the

 Ibid., FL. XII, ch. 1, pp. 235–236.

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sixteenth century the nobility was exempted from pre-empting their estate. And most land transactions took place between nobles. The Danish provincial laws reveal that pre-emption to land was a legal phenomenon introduced in the beginning of the thirteenth century. Neither the Book of Inheritance nor King Valdemar’s Law of Zealand contains stipulations about pre-emption. King Valdemar’s Law of Zealand mentions transactions but focuses on prescriptive rights. The buyer obtained prescriptive rights if the land had been in his possession unchallenged for three winters. The other laws had same period for prescriptive rights.24 The Law of Scania explains the background for the three winters’ stipulation. Prescriptive rights corresponded to having three seeds in the ground. That must indicate that the prescriptive rights depended on the three-course system, and the buyer obtained prescriptive rights when the cycle was complete. Before three winters had lapsed, the seller had the burden of proof if there were objections to the sale and the procedure that was followed.25 Then followed a decree that may be interpreted to give relatives the right of first refusal. If someone other than the seller objected to the transaction before the buyer obtained prescriptive rights, the seller should protect the land. If he could not provide proof, the transaction was cancelled, and the buyer had the right to a fine of three Mark.26 None of the decrees indicate that relatives or heirs had priority to the land. A third party could just as well object to the seller’s right to the land, which is mentioned in the subsequent paragraph.27 In the Law of Scania there is some ambiguity about which rules should be applied to land transactions. Clearly, pre-emption to land was a legal claim, since one of the law’s paragraphs states, “If a man sells land to a man outside the kinship group, and the relatives object later that it was not offered to them, they cannot claim the land, nor challenge the buyer, but they have to sue the seller.”28 Anders Sunesen added in his Paraphrase that some thought that the buyer could not keep the land, but “the learned men find the former most

24   Danmarks gamle Landskabslove, vol. VIII, VsL1. text 1, ch. 204, p. 97. Vol. I 1, SkL. text 1, ch. 78, pp. 55–57. Vol. II, JL. text 1, 1. book, ch. 41, p. 96. Vol. V, EsL. text 1, 3. book, ch. 1, pp. 236–237. 25  Ibid., vol. VIII, VsL1. ch. 206, pp. 99–100. 26  Ibid., ch. 207, p. 100. 27  Ibid., ch. 208, pp. 100–101. 28   Danmarks gamle Love, vol. 1, SkL. ch. 51, p. 16.

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knowledgeable.”29 The kind of pre-emption to land that the Law of Scania prescribes was, in other words, strong enough to ensure that land which had not been offered to relatives would not be returned to the family. The only compensation they could obtain was a fine of three Mark from the seller. Anders Sunesen’s comment is also interesting because it reveals that the right of relatives to cancel a transaction was not generally recognized. This may indicate that a more free right of disposal had existed prior to the pre-emption to land. The later laws, King Eric’s Law of Zealand and the Law of Jutland, expand the procedure of pre-emption to land. Both laws require that land which was pre-empted should be offered to relatives in three things before the seller could freely dispose of the estate. King Eric’s Law of Zealand contains the exception that if the nearest of kin want to purchase the land, the sale must be proclaimed at one thing.30 Only in the jurisdiction of Jutland could a missing pre-emption to land mean that the sale was revoked. The seller had to prove the pre-emption to land by tylvtered, and if he could not, he was fined three Mark to the Crown and to the plaintiff. The stipulation was repeated and emphasized in Thord’s Articles.31 The Law of Jutland and the Articles supplement the Laws of Scania and Zealand, and the provisions they include for buyback of land show the kin significantly strengthened their control over land transactions in Denmark in a short time. Obviously it was in the interest of the elite to expand the use of the pre-emption to land—and thereby expand the right of the kin to control and limit the right of disposal of individuals over his estate to the benefit of the kin. As previously mentioned, the buyer obtained prescriptive rights to land after having owned it for three years. The Law of Jutland has one exception: Church land. A lay person had prescriptive rights to Church land for 40 years, but ecclesiastical institutions had prescriptive rights to lay land for only 30 years.32 Niels Knud Andersen demonstrated in 1941 that this decree was based on canon law, as included in Liber Extra33 It is also known to be older, as it was used in a lawsuit between  Ibid., ASP. ch. 19, p. 111.   Danmarks gamle Landskabslove, vol. II, JL. text 1, 1. book, ch. 34, pp. 84–86; and Vol. V, EsL. text 1, 3. book, ch. 2, pp. 238–240. 31  Ibid., JL. addition to vol. IV, Thords Artikler, text II, no. 27, text III, no. 21, text VIa, no. 23, text VIb, no. 25, text VIc, no. 20, text VId, no. 23, text VII, no. 26; and Erik Krabbe’s text, no. 24. 32  Ibid., vol. II, JL. text 1, 1. book, ch. 44, pp. 102–103. 33   Corpus Iuris Canonici, “Decretales Gregorii papae,” IX, C.3 X II, 26. 29 30

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Løgumkloster and a lay person in 1228.34 Annette Hoff holds that the Church tried to introduce the long period of prescriptive rights on all land but only succeeded on its own estates.35 That is probably not true. Canon law dealt only with land transactions to the extent that Church property was involved. Nothing in the canon law or the ecclesiastical legal policy points to an interest in meddling with the business of lay people in these matters. A peculiar characteristic of the Danish pre-emption to land was its lack of a specific prescription as to how relatives should be offered land. There was no limitation, but since pre-emption to land was closely connected with the rights of heirs, the duty of pre-emption followed the same lines as the inheritance law. It is also important to notice that the pre-emption to land did not distinguish between inherited and purchased land. The Law of Jutland specified that land should be offered to the side of the kin from which it came. The paragraph does not allow us to conclude that one could sell purchased land freely. The lack of distinction between inherited and purchased land may relate to the fact that the buyer obtained prescriptive rights after just three years, thus diminishing the importance of the origin of the land. Furthermore, purchased land would be cultivated in common and would be considered part of the common land. The surplus that the transaction might bring would subsequently benefit all members of the common. Bördsrät The Swedish term for the preferential rights of the kin at the sale of land is the bördsrät, which gained ground throughout the Middle Ages. The word is related to the word börd/byrd, which means rank, birth, and kinship. The bördsrät is the right of the kin to land. The bördsrät was a long-lived phenomenon. Seriously curtailed in 1720, it was definitively abolished in 1863. Even though the bördsrät appears in all provincial laws, certain main features are common. The lack of standards may imply that the bördsrät was a relatively new phenomenon when the provincial laws 34  Niels Knud Andersen, “Kanonisk Rets Indflydelse paa Jyske Lov,” in Med Lov skal Land bygges, ed. Erik Reitzel-Nielsen (Copenhagen 1941), p. 119. 35  Hoff, Lov og landskab, p. 350.

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appeared. The phenomenon developed at different speeds in different locales and was adapted to local practices for land transactions. From Magnus Ericsson’s Law of the Realm, land transactions developed uniformly all over the country. The oldest decree on bördsrät is found in the Older Västgöta Law and is extremely brief. It states that if a person wanted to sell land, it should first be offered to his heir. Additional relatives are not mentioned, but maybe the decree functioned similarly to the way it did in the Later Västgöta Law. That law stipulates that when land was offered for sale to one of the heirs at the thing, it had to be offered to everyone. This implies a duty of the kin to inform each other of land transactions.36 The Västgöta Laws were the only Swedish laws that did not distinguish clearly between inherited börds-land and purchased land.37 Most of the laws stipulated that the land be offered to relatives three times, either at three thing or first with the neighbors as witnesses, then with the witness of the parish, and finally at the thing.38 Some laws have sanctions against the sale of land that had no pre-emption. They prescribe that any such sale should be annulled and that the seller could be fined three Mark, divided among the plaintiff, the Crown, and the district.39 When buying-back is not mentioned as a sanction in the other laws, it does not mean that it was implied. It could be that the sanctions varied from case to case, leading to negotiations among the involved parties. Negotiations to solve conflicts that emerged when relatives were not notified about land transaction were probably more relevant during the introduction phase of the bördsrät. When comparing the brief decree of the Older Västgöta Law to the severe procedure for sale in the Hälsinge Law, one sees clearly that sanctions were necessary in the Hälsinge Law because land transactions were

  Schlyter, Corpus iuris, vol. 1, VgL1. IordÞær Balken, ch. 3, p. 43, and VgL2. IorÞæ Balken, ch. 4, p. 181. 37  It is possible to imagine a similar explanation with regard to Danish laws. The background was the three-year prescriptive right. At the same time, the three-year prescriptive right appears also in the Hälsinge Law, which still upholds the distinction between purchased and inherited land. 38  Ibid., vol. 2, ÖgL. Eghna salur, ch. III, pp. 134–135, Vol. 3, UpL. JorÞæ Balken, ch. I, pp. 180–181, Vol. 4, SmL. JorÞa Balken, ch. IV, pp. 70–71, and Vol. 6, HL. JorÞæ Balken, ch. I, p. 61. 39  Ibid., ÖgL. UpL. SmL. vol. 5, VmL. JorÞa Balken, ch. I, pp. 172–173; and DL. Bygninga Balken, ch. I, pp. 26–27. Finally, it was confirmed by the Law of the Realm. Magnus Eriksson Landslag, Jordabalken, ch. IV, p. 73. 36

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complicated. In reality, it was not difficult for the neighbors, and thereby the kin, to be aware of the sale. Despite the uniform bördsrät, local variants existed. The procedure for sale of bördsrät land according to the Hälsinge Law differed from the other laws by stipulating that relatives may at first prevent the sale, even though they were not potential buyers. If a relative after completed pre-emption insisted, the seller was only allowed to sell as much of his land as he needed for three years’ maintenance. Then he had to go through the entire bördsrät procedure again in order to sell the rest of the land.40 Why the extreme version of the bördsrät developed in particular in Hälsingeland is difficult to state. Maybe regional traditions or political forces wanted to strengthen the kin’s control over the sale of land. Nevertheless, it is not difficult to understand the argument that the kinsmen could prevent the sale for three years. This period was long enough for an interested relative to find the money for the required price. The respite could not be extended, unlike the Norwegian odelsret, where the claim to land could be upheld for generations after it had been sold to a third party. The Södermanna Law contains a unique provision about buying back börds-land that had been used to pay fines. Relatives within the district had three weeks, and those outside had one month, to buy back land that had been used to pay fines.41 Although this decree is found only in the Södermanna Law, it was not the only province to accept börds-land as payment for fines. One can hardly imagine that the plaintiff in other provinces would wait for payment of the fine until after the slow bördsrät procedure had been carried out. In fact, it is possible that the period of prescriptive rights aimed at giving the family the option to buy back the land was part of the fine. It appears natural that the closest relative according to the parental method of calculating kinship was also the closest heir, and that it was he who had preference to buy börds-land. It is not surprising for two people equally close in kin to inherit, both having the same right to purchase the land.42 We must also assume that the two persons either   Schlyter, Corpus iuris, vol. 6, HL. JorÞæ Balken, ch. I, p. 61.  Ibid., vol. 4, SmL. JorÞa Balken, ch. VII, pp. 73–74. 42  Ibid., vol. 3, UpL. JorÞæ Balken, ch. II, p. 181, Vol. 5, VmL. JorÞa Balken, ch. II, pp. 173–174, and DL. Bygninga Balken, ch. V, pp. 27–28, Vol. 4, SmL. JorÞa Balken, ch. II, p. 69, and Vol. 6, HL. JorÞæ Balken, ch. II, p. 61. 40 41



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each bought their rightful share or purchased the land and then tilled it jointly.43 Even though all laws state that the land should be offered to all relatives, no law defined how far out in the family lines the duty existed. In many cases, that was probably not a problem. But sometimes, when land was sold to a close relative, it could create problems further out in the lines. Christer Winberg has studied the bördsrät intensely, and he concludes: the bördsrät complements the seriously regulated inheritance law, not as an expression of the love of Swedish peasants to the land. The provincial laws have regulations, which are in direct opposition to the idea that the bördsrät regulated old kin land; their rights were transferred to the purchased land.44

His conclusion is interesting because it underlines that the bördsrät did not necessarily deal with land that had been in the possession of the family but that it was closely connected with the inheritance law. Therefore it may be assumed that the limitations which applied to inheritance of land applied also to the bördsrät. Winberg’s study shows that the documents did not limit how far back in the family lines the bördsrät went, which may have made it difficult to carry out land transactions. It finally meant that the bördsrät became limited in 1720, valid only in direct family relations. Finally, the sidelines were limited to the children of siblings.45 The lack of limitations specified in the existing documents does not mean that there existed no limitations of the duty of bördsrät throughout the Middle Ages. A case from 1719 reveals that the canonical method to calculate kinship was used in the transaction of land.46 This shows that the connection between canonical kinship and the bördsrät existed at that time.

43   That several relatives might have the same right to purchase the börds land, which would subsequently be split up through sale, contradicts Michael H. Gelting’s theory that the relatives’ right of first refusal was introduced to safeguard the tax base. More about this later. 44   Winberg, Grenverket: Studier rörande jord, p. 29. 45  Ibid., p. 53. 46  Ibid., p. 52.

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In conclusion, I will discuss the problem of safeguarding the tax base, which Michael H. Gelting presented in his article about the odelsret. Gelting states that the odelsret should be considered in the context of the expansion of the taxation system that occurred in many place of Europe in the twelfth and thirteenth centuries. If the options for selling land were too broad, the central power risked having that land purchased by magnates or gathered into fewer hands. This would mean that fewer peasant paid taxes and that the tax base was diminished. Gelting argues that the odelsret not only protected taxable land for the central power but also prevented individual magnats from obtaining a dominant position, and thereby threatening the central power and the stability of the state, through purchase of peasant land. Gelting thinks that the Crown learned from the civil strife in Scandinavia during the twelfth century. Both the Church and the Crown supported introduction of the odelsret, since it strengthened kinship ties—which were closely related to ecclesiastical incentives to create peace.47 Gelting’s arguments are interesting but raise several questions. If concern to preserve the tax base led to establishment of the odelsret, shy not simply prohibit peasant land from being converted into taxfree land, even when purchased by persons or institution whose estate was tax-free?48 Further, if the purpose of the odelsret was to preserve the tax base, why did so many laws distinguish between inherited/odel land and purchased land? It is difficult to know how much of the land, for example, in Norway was reckoned as odel land. There were strict guidelines for declaring land odel, which meant that much land was not under the right of first refusal of the kinsmen. Moreover, Gelting focuses exclusively on magnats’ purchase of peasant land; he does not mention ecclesiastical institutions, which acquired estates through donations as well as through purchase. Ecclesiastical land was generally exempted from taxes and fees, so its purchase must also have threatened the tax base. Gelting argues that both the Church and the Crown were interested in promoting the odelsret, but he ascribes different motives to them. Yet it is doubtful whether one can draw a

  Gelting, “Odelsrett—lovbydelse,” pp. 149–152.  A prohibition was introduced in Denmark in the late Middle Ages.

47 48



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clear distinction between the interests of the Church and the Crown. The clergy held high posts in what we today would call the central administration, and they educated the people who created the laws. Therefore, it is difficult to speak about the interests of the Church as being separate from those of the Crown. The right of first refusal of the kinship group is found in most Scandinavian provincial laws in one form or another. This right of first refusal must be seen in the context of other legal measures that aimed at defending economic rights such as the regulation of inheritance and donation. These did not regulate the sale of land, because the decrees could be circumvented if the testator could sell off land freely and use the profit as he wished; it could also be circumvented if he was allowed to sell the land to a favorite relative, a friend, or an ecclesiastical institution at a price less than market value. The right of first refusal of the kin was probably introduced in Scandinavia in the twelfth century; it entered the legal code in the second part twelfth century in Norway and in the beginning of the thirteenth century in Denmark. The situation in Sweden is more uncertain, but the decrees were probably developed during the thirteenth century. In Norway, the odelsret developed significantly in the period between the provincial laws and the adoption of the Law of the Realm. All the laws are based on canonical kinship as the framework for the odelsret. However, whereas an outside buyer according to the provincial laws was in a relatively good position when buying odel land, the Law of the Realm changed that completely. Relatives who could not afford to buy odel land when it was offered for sale could maintain their claim on the land and hope to buy it back when they could afford it—up to 60 years after the sale. The priority of the kinship group at purchase of land does not appear in the oldest Danish laws. Also, according to the Law of Scania and King Eric’s Law of Zealand, the only consequence of ignoring the pre-emption to land was that the seller was fined; the sale could not be revoked. The Law of Jutland had this stipulation, and it is repeated and extended in Thord’s Articles. The Danish laws do not have the same perceptible connection between pre-emption to land and the canonical kinship group that is found in Norway, since they do not extend the validity of pre-emption to land to the total canonical kinship group. Since pre-emption to land appears to be a supplement to the inheritance law, it is reasonable to think that it was valid for the same group as did the inheritance law.

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The bördsrät is found in all Swedish laws, though it is only sporadically mentioned in the Older Västgöta Law. The other laws are almost identical. In general, land should be offered for sale three times to the relatives. A sale without such notification of relatives may be invalid, in which case the seller would be fined. As in Denmark, there is no immediate relation between the obligation of pre-emption to land and canonical kinship. In all likelihood, however, pre-emption to land in the Danish laws functioned as a supplement to the inheritance law. This representation becomes more evident in the late Middle Ages, when supplementary information becomes available. Even though neither the Danish nor the Swedish laws, in contrast to the Norwegian, mention a specific context of the duty to offer land to relatives and the canonical kinship group, the connection is still evident. The odelsret must have been a supplement to the inheritance law. Canonical kinship limited the rights of the heirs. The fact that the laws merely state that the land had to be offered the relatives implies that it was evident who the relatives were. Since canonical kinship was used in the laws, we can assume that the odelsret also was based on the canonical way of counting kinship The introduction of pre-emption to land must have led to an emphasis on knowing who your canonical relatives were, so that you would not miss an opportunity to purchase pre-empted land just because you were not aware of your relationship to the seller. If the right of pre-emption to land is considered a supplement to the inheritance law, the next question is whether there is a connection between the inheritance rules and the construction of an efficient tax system. The inheritance system that became dominant in the Scandinavian kingdoms, where all children inherited their parents, does not seem compatible with the desire for a stable taxation system. Divisions of inheritance could lead to the dispersal of farms and land, which would make it difficult for the taxation authorities to administer.49

49  In the late Middle Ages, this created a problem in Denmark, where the duty to pay tax led to a prohibition of division of farms among heirs at inheritance. Either the heirs had to manage the farm in common, or one of the siblings had to purchase the farm from the other siblings. Michael Herzt, “‘Beskeden mand.’ Landalmuen som politisk faktor i dansk senmiddelalder. En skitse,” Bol og By. Meddelelser fra Landbohistorisk Selskab, 2, 2. ser. (Copenhagen 1978), pp. 90–91.

chapter fourteen

FLEDFØRING—ELDER CARE The odelsret in its different forms was a new phenomenon in the beginning of the thirteenth century. It emerges as a way to clarify the somewhat fluid decrees concerning the right of disposal of land. However, should fledføring, which entered Danish legislation at the same time, also be considered in this context? Before answering this question, it is necessary to examine the actual conditions of fledføring. Fledføring has been described in several legal historical books by among other Matzen, Jørgensen, and Iuul. Still I will try to describe the conditions, first by focusing on other parts of the stipulations, before presenting the arguments on which the legal historians have focused.1 Fledføring is first a Danish notion. It does not appear in the Norwegian laws and appears in Sweden only in the Västgöta Law and a few diplomas. A similar phenomenon is found in most other Swedish laws, however, but is called “to move from the high seat to the bench.” The notion fledføring is derived from the word flæt, which mean house or household.2 The fledføring meant, in other words, to be adopted by another household. The background for the fledføring may be old age, illness, poverty, or other factors that made it impossible for the person to support himself. The Book of Inheritance and Heinous Crimes is the only Danish law that did not include provisions about fledføring. Detailed provisions about fledføring can be found in the Laws of Zealand and the Law of Scania, making it very probable that the version of fledføring found in the laws was a novelty from the end of the twelfth or the beginning of the thirteenth century. Eldercare did exist previously, but the strict legal form must have been an innovation. The legal procedures around fledføring were in general identical in the Laws of Zealand and 1  Henning Matzen, Forelæsninger over den danske Retshistorie, Privatret, vol. I (Copenhagen 1895), pp. 18–20; Iuul, Fællig og Hovedlod, pp. 84–86; and Jørgensen, Dansk Retshistorie, pp. 208–209. 2   G.F.V. Lund, Det ældste danske skriftsprogs ordforråd, Ordbog til de gamle danske landskabslove, de sønderjyske stadsretter samt øvrige samtidige sprogmindesmærker (Copenhagen 1967), p. 34.

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the Law of Scania.3 A man or a woman who desired to be fledførning was obliged by the thing to offer himself to the closest heirs. If no one heir wanted to receive the person, the heirs should take turns caring for the person. If neither the old person nor the heirs wanted such an arrangement, the future fledførning could chose to divide his estate among his heirs and keep a capital portion for himself. He could then bring that portion to the heir he was going to live with, as payment for board and lodging. But the law did not oblige the heirs to accept the old person and did not oblige the older person to leave his estate to his heirs, in that case. If the heirs refused to accept the old person, that person should declare at the thing that if “the heirs are not willing to go to the thing to accept him, he has the right to go to whoever he wants with everything he owns; he should first have pre-empted himself to all heirs.”4 Both the Law of Scania and King Valdemar’s Law of Zealand used the term pre-emption to land, which usually is used in relation to the odelsret, but here also about the legal act that was used for fledføring. This shows that the laws did not distinguish between land transactions and fledføring. When the old person entered fledføring, it was in reality his estate, not his person, that he should pre-empt. According to King Eric’s Law of Zealand, the legal act also corresponded to the pre-emption to land. The old person had to pre-empt himself at the thing that he wanted to be led into fledføring before he could take his estate to somebody else. In addition to giving up economic autonomy, the person entering fledføring also gave up the right to represent himself. The person who entered a relation as fledførning could no longer conduct his own cases at the thing, just as the guardian, who had received the person, was obliged to pay and receive fines for acts committed or done to the fledførning. The Law of Jutland explains how encompassing the position of guardian was. If the fledføring wounded the guardian, the guardian still had to pay a fine for the wound, not only to himself but also to the king.5

3   Danmarks gamle Landskabslove, vol. I,1, SkL. text 1, chs. 41–44, pp. 23–28, Vol. VIII, VsL1. text 1, chs. 83–88, pp. 42–44, and Vol. V, EsL. text 1, 1. book, chs. 38–41, pp. 51–57. 4   My underlining. Danmarks gamle Love, vol. 1, SkL. ch. 42, p. 14. 5   Danmarks gamle Landskabslove, vol. II, text 1, ch. 32, pp. 80–81.



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Entering fledføring meant a radical change of status, which was virtually irreversible. The Law of Jutland and King Eric’s Law of Zealand stipulated that if the agreement about fledføring was entered at the thing, it was irrevocable; if it had not been entered at the thing, the fledføring was able to revoke the agreement.6 This position is similar to that in the same laws which stipulated that conveyance of land should take place at the thing.7 Registration of fledføring agreements was an ordinary procedure according to King Valdemar’s Law of Zealand and the Law of Scania, which stipulated that a fledføring agreement had to be entered at the thing. The Law of Jutland is also peculiar with regard to fledføring. The law does not have basic stipulations regarding how a fledføring agreement should be entered. It only stipulates the legal condition after fledføring had occurred. That it was a practical problem can be seen from Thord’s Articles. They decree that if anyone became old, a cripple, or mad, his heirs should take care of him, together with his estate.8 Furthermore, the Articles state that fledføring is performed according to the regulations of the Law of Zealand.9 Michael H. Gelting, in his article abut the relation between the Law of Scania and the Law of Jutland, uses the stipulations about fledføring to argue that the Law of Jutland depended on the Law of Scania.10 However, here is an example that the Law of Zealand was used to supplement the Law of Jutland. Even though the manuscripts of Thord’s Article date to the late Middle Age, it refers to the Law of Zealand and not to that of Scania, which is astounding, if the relation between the Law of Jutland and the Law of Scania was as close and evident as Gelting claims. I have already mentioned the close connection between fledføring and odelsret. Maybe fledføring entered the legislation as an extension of the duty of pre-emption to land. This impression is enhanced by the problems stated in Anders Sunesen’s Paraphrase. The land had to be sold because the owner had become poor and lacked money for his care. The sale of land meant a division of a tax-paying unit. Did  6   Ibid., vol. V, EsL. text 1, 1. book, ch. 38, pp. 51–52. Vol. II, JL. text 1, 1. book, ch. 32, pp. 80–82.  7   Ibid., vol. V, EsL. 3. book, ch. 1, pp. 236–238, and Vol. II, JL. 1. book, ch. 37, pp. 89–90.  8   Ibid., addition to vol. IV, Thords Artikler, a.o. text II, no. 25, pp. 113–114, text III, no. 19, p. 126, text V, no. 17, p. 148.  9   Ibid., text 6C, no. 62, p. 263, Text 7, Add. XXVI. 10   Gelting, “Skånske Lov og Jyske Lov,” pp. 54–58.

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the next owner of the farm have the right to buy back the land that had been sold?11 The problem could be solved by fledføring instead of sale of the land. For tax purposes the estate would not be diminished, and for the heirs the family estate would be maintained. I will present other factors that may explain why the fledføring institution emerged, although it is possible that different factors together were behind the introduction of fledføring into Danish legislation. The Danish fledføring differs in one major provision from the Swedish. According to Danish laws, the old person in guardianship lost almost all his rights, which did not occur according to Swedish legislation. Undoubtedly, fledføring was a socially degrading institution, indicated by the tern “to move from the high seat to the bench.” With the exception of the Older Västgöta Law, all Swedish provincial laws had provisions for fledføring, and a kind of fledføring existed at the time the laws were written.12 One provision stated that no one should be moved into “flæt” unless he himself wanted to do so.13 Unfortunately, the law text did not define the legal content of the act, which makes it impossible to know if the older procedure was similar to the later version of the law code. The fact that the addition to the Later Västgöta Law was a supplement to the fledføring procedure of the law may imply that the legal definition of the procedure was relatively new when the later law was passed.14 The procedure was, briefly stated, that the old person should offer himself and his estate to the closest heirs. The Uppland, Södermanna, Dalar, and Hälsinge laws, as well as Magnus Eriksson’s Law of the Realm, state specifically that it should occur at the thing.15 The Later 11   Danmarks gamle Landskabslove, vol. I,2. ASP. ch. 35, pp. 506–508; and Vol. I,1. SkL. text 1, ch. 76, pp. 53–55. 12   I have used the Danish term fledføring knowingly as a concept for Swedish conditions (even though for East-Swedish provinces it is an anachronistic concept) for the want of a more suitable term. The expression “the person moved from the high seat to the bench” is somewhat complicated, and the Västgötic expression “at flytte til flæt” or “flæt fare,” has the identical meaning as fledføring. Furthermore, the Danish and Swedish provisions are almost similar, so the term fledføring may be used a generic term. 13   “Eig skal a flæt faræ num vili hvat Þæt ær maÞær ællær konæ bo fitær.” Schlyter, Corpus iurus, vol. 1, VgL1. IordÞær Balken, ch. 3, p. 43. 14   Ibid., vol. 1, VgL2. IorÞæ Balken, ch. 5, p. 181. Additamenta, ch. 11, § 10, p. 245. Perhaps the term high seat was not closely connected to the fledføring institution but was simply a term used about owners of estate. The expression high seat is also used in the Frostathing Law in a decree about madness. 15   Decrees about fledføring are found in these paragraphs of the Swedish laws: Ibid.



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Västgöta Law states that if a person wants to enter fledføring, he must “offer himself to his heirs according to the permission of the lagman or provincial governor as it should be done with other land.”16 The land transaction should take place at the thing also when fledføring was involved. It should be noted that fledføring negotiations were comparable to those relating to the sale of land. The other laws simply state that the old person should offer himself, but do not specify where. It is, evident however, that it would have to take place at the thing. There are also other similarities between fledføring and sale of land. The Dalar Law states that the old person at three things should offer himself to his heirs, and if nobody wanted to take him, he could go to whomever he wanted with his property, a procedure comparable to the one for sale of börds land. Basically, there existed two different procedures of fledføring. The first, found in the Later Västgöta, Östgöta, Dalar, and Hälsinge laws, is very similar to the Danish. The old person should offer himself to his heirs, and if they would not accept him, he had the right to go wherever he wanted with his property. The Hälsinge Law has the exception that if the closest family would not accept him, he should first sell land for three years’ maintenance. Then he could offer himself again, and only then was he allowed to go wherever he wanted.17 The second procedure, found in the Uppland, Västmanna, and Södermanna laws, was very different. Here it was the children’s duty to take care of the parents if they became too old or too poor to care for themselves. Each child was obliged to take care of his parents to an extent corresponding to his inheritance portion. The parents would then circulate among the children. The inheritance that left over at the death of the parents was to be shared among the heirs. The Västmanna Law makes the importance of the land very clear, because it calculates the cost of the support in relation to its value. The duty of supporting the parents existed in these three laws even though the parents were too poor to pay for their maintenance. Any child who would not accept this duty vol. 2 ÖgL. ÆrfÞa Balken, ch. XII, pp. 124–125; Vol. 3, UpL. JorÞæ Balken, ch. XXI, pp. 200–201; Vol. 5, DL. Gipninga Balken, ch. XVI, pp. 52–53. VmL. JorÞa Balken, ch. XVII, pp. 183–184; Vol. 4, SmL. JorÞa Balken, ch. XVII, pp. 82–83; Vol. 6, HL. JorÞæ Balken, ch. XV, p. 66; and Magnus Erikssons Landslag, Jordabalken, ch. XXXIV, p. 82. 16   “Bjude han sig åt sina arvingar med lagmannens eller häradshövdingens lov, såsom annan jord.” Svenska Landskapslagar, vol. 5, VgL2. Jordabalken, ch. 5. p. 331. 17   This was the same procedure that existed for sale of börds land.

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was fined three Mark per year. The laws also considered the childless. The nearest of kin had the duty to take care of them, but there were no sanctions if the nearest kin would not maintain them. It is possible that a similar expectation that children would support their parents existed in Östergötaland. The law states that the childless old person should offer himself and his estate to the closest heir but says nothing about what to do if the old person had children. The principle that children were obliged to maintain their parents was incorporated into the Law of the Realm. It thereby became the dominant principle and continued to dominate Swedish law for a long time. The Norwegian law contains no stipulations similar to the Danish fledføring. The closest is that in the Frostathing Law which stipulates that moving from the high seat could only take place if a psychic illness emerged. The main rule was that each person should manage his own estate, woman as well as man, as long as she or he can sit in the high seat. But if somebody is so weak mentally that it both for the bauggilde men and the nevgilde men is obvious that he no longer is able to manage his estate, then the closest heir has to take care of him.18

This decree is interesting for several reasons. First, it did not withdraw the senile or incapacitated person’s right to own land. Instead, the property was to be managed by the closest heir. Even these limitations alone were considered sufficient. Second, the nearest heir could not single-handedly decide if the old person was able to take care of his property. Both the maternal and paternal side of the kin had to agree. This provision may have been introduced so that no heir would have a relative declared incapable of managing his own affairs from selfish motifs. The paragraph does not mention which procedure to follow if the heir would not accept the mad person, or he did not have enough property to pay for his maintenance. Specific provisions with regard to madness are found in the Swedish and Norwegian provincial laws, but other than the previously mentioned decrees, the legislation dealt only with who would be responsible for their actions. Their property is not a matter of discussion. The Danish historians Erik Kroman, Stig Iuul, and Aksel E. Christensen have perceived the fledføring a humane institution, rooted in an earlier society in which the kin played a more important role in   My underlining. Frostatingslova, Andra Arvebolk, ch. 20, p. 145.

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relation to its members. They see the fledføring’s aim as to take care of the old, the sick, and the poor in the family.19 The situation that the laws reveal, however, is almost the opposite. With the exception of the three Swedish provincial laws that obligated the children to maintain the parents, the provisions concerning fledføring focused on the right to land and estate, not on elder care. With few exceptions, old people had to give up their property to pay for their maintenance, and therefore the fledføring institution was not welfare. The aim was to establish who had the right to administer the older person’s estate. It was expected, of course, that children would take care of old relatives or parents who were unable to maintain themselves, but that expectation was not legally regulated. Only the Norwegian laws prescribe poor relief, and then only as relates to emergencies and beggars; there is no reference to elder care.20 Entering fledføring undoubtedly meant a social comedown. This is evident in the Danish documents, which notes the loss of legal rights. The Law of Jutland even mentions fledføring together with thralls.21 The expression “to move from the high seat to the bench” also reveals that loss of status that was inherent in the institution. Who were the potential fledførings? One can exclude the lords and the wealthy, who employed so many people that they were not dependent on their own labor for support. Furthermore, it is difficult to imagine that the highest echelons of society would enter such a degrading institution as fledføring. If they wanted to leave their homes and be taken care of professionally for the remainder of their lives, they would give suitable donations and then enter a monastery. The Danish Diplomatarium has a few examples of such agreements. The 19   Danmarks gamle Love, vol. 3, p. xxiii; Stig Iuul, Forelæsninger over Hovedlinier i europæisk Retsudvikling (Copenhagen 1970), p. 37; Christensen, Kongemagt og aristokrati, p. 137. 20   The Gulathing Law stipulates that if a peasant became poor, his relatives should take care of him, and two-thirds of the children, whereas the relatives of the wife should take care of her and one-third of the children. The nearest heir took care of as many as he could afford (according to specified rules), and the persons he could not afford to maintain were passed on to the next heir, and so on. Norges gamle Love, vol. 1, GL. ch. 118, p. 52. This provision cannot be found in the Frostathing Law and the Law of the Realm. Instead, the latter stipulates that it is the last duty of the peasants in the district to take care of the poor who had no relatives. Ibid., vol. 2, MLL. Landleiebolk, ch. 57, pp. 140–142. 21   Danmarks gamle Landskabslove, vol. II, JL. text 1, 1. book, ch. 25, p. 66. Even though it should not be overemphasized, monks were mentioned in the same context.

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first dates to between 1192 and 1225. The widow Bodil Hemmingsdatter entered Næstved St. Peder Abbey as lay sister with all her property, in return for receiving maintenance, clothes, linen, etc. The document shows that Bodil was the mother of two sons. One had died, and the other was an ecclesiastic. Another example is the widow Agate Nielsdatter, whose sons had died. She donated, with the consent of her half-brother and her brother-in-law, property to Æbelholt Abbey. In return, she was accepted as a sister, and the canons were to take care of her maintenance. From the year 1300 there are two more examples. Jens Regensen Thott donated property to Æbelholt Abbey, in return for being able to enter the abbey when he wanted; he would then be maintained until his death, at which time the canons would arrange his funeral. The other example is the priest Niels Attesen, who, being sick and frail, donated all his property to Esrom Abbey in return for being admitted into the order and buried in the abbey. As in the case of Jens Regensen Tott, no relatives co-signed the document, but the text states that his parents had died and that he had inherited from a sister’s son, which meant that his sister all of her children had also died.22 In addition to these examples, there are several instances mentioned in diplomas, which are difficult to interpret. They could be either retirement arrangements or actual admissions to a monastery on the same terms as ordinary monks or nuns. There is no doubt that the documents reveal that monasteries offered a kind of retirement arrangement, in return for a donation ranging from half a capital portion to the entire estate, depending on the number of heirs and their willingness to let the old person dispose of his estate. It is obvious that this solution was an alternative to fledføring and was attractive to the wealthier, whom the monasteries were willing to accept. Care at the monasteries was probably good, and it was probably a relief to not have to enter a humiliating fledføring situation. But it also was probably considered beneficial for one’s soul to have spent the last period of one’s life in prayer and other spiritual activities. Since fledføring was based on the philosophy that the person entering fledføring had to pay for his maintenance, the institution excluded persons who did not own the land they tilled and therefore did not have the necessary funds. In addition, it would not be attractive for   DD 1. ser., vol. 3, no. 183. 2. ser., vol. 1, no. 159. 2. ser., vol. 5, no. 118, and 119.

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relatives to take care of a penniless and landless old aunt or uncle, so it would not be necessary to carry out a legal case. A relative who would take on the burden would, unopposed, take on the old person. The remaining category would then be farmers who owned their farm, but whose farms were dependent on the farmer’s own work. The fledføring must have protected small- and subsistence farmers. The fledføring would often have been childless. Probably the fællig meant that parents in many cases would keep at least one child as part of the fællig, so that child would provide for the parents when they could no longer do so themselves. As I have already stated, the aim of fledføring was primarily related to who had the right to the estate of older people. It was therefore a natural consequence of the arrival of the odelsret. It became necessary to establish that one could not dispose freely of one’s estate without the consent of the heirs, and consequently the heirs were the nearest in line to take care of the old and receive their estate. If this assumption is correct, you may ask why fledføring is not found in Norwegian laws, where you find the extreme version of the odelsret. This apparent paradox may also contain the answer, because the odelsret was so strict and thoroughly controlled by law that it may not have been necessary to include additional decrees about fledføring. Seen in this perspective, fledføring becomes yet another example of the enormous consequences that the new system of canonical kinship had on the free right of disposal. It emphasized the rights of the heirs, which also appear through the odelsret, and the inheritance and donation provisions. The social position of the kinship group was safeguarded at the cost of the will of the individual.

Chapter Fifteen

MARRIAGE The institution of marriage is fundamental if one wants to uncover all aspects of canonical kinship, since the severe legislation regarding incest was the basis for the notion of canonical kinship and thereby the basis for all legal institutions based on canonical kinship. Marriage based on agreement—canonical prescriptions The institution of marriage was under the jurisdiction of canon law. Because provincial laws were meant to regulate secular, not ecclesiastical, matters, they contain only sporadic decrees about marriage. Perhaps because ecclesiastical jurisdiction was established and accepted earlier in Denmark than in other Scandinavian countries, Danish laws are particularly lacking in provisions concerning marriage contracts and marriage. It is primarily the Norwegian and Swedish Christian laws that contain provisions concerning marriage. How much control did the family have over the contracting of marriage and its subsequent economic transactions? To what extent did canon law became incorporated into secular legislation? From a purely theological viewpoint, marriage is a very simple matter. Two people declare to each other that they enter the marriage freely, and simultaneously the relationship is established with God, even though there are no witnesses.1 Such a simple marriage law was complicated to manage, however, since marriage had wide social and economic consequences. Therefore, canon law prescribed certain procedures for entering a marriage. Canon law tried to prevent two types of marriage: those lacking specific consent from the parents or guardian; and secret marriages. The former undermined parental authority and violated the fourth commandment to “honor your father and mother.”   The doctrine that the consent, not the coitus, established the marriage was ultimately established by the pope ca. 1180. James A. Brundage, “Implied Consent to Intercourse,” ed. A.E. Laiou, Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies (Washington D.C. 1993), p. 247. 1

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In order to deter rebellious youngsters from entering a liaison without the consent of their parents, several canonists recommended allowing parents to disinherit the child.2 This punishment related primarily to daughters, who spent their entire lives under the guardianship of a father, a guardian, or a spouse and whose disobedience, therefore, was most egregious. A grown son was acknowledged to have independent authority, so an unapproved marriage might be considered only a premature exercise of the rights he would have later in life. Furthermore, “free consent” is relative, and today’s individualistic concept of the notion “voluntarily” cannot be read into the medieval concept. The concept of canonical kinship meant that the actions of individuals had consequences for the entire family group. Thereby, individuals often believed that what was best for him/herself was that which was best for the family. The problem of secret marriages was more difficult in canon law. On one hand, canon law prohibited secret marriages and admonished against them repeatedly.3 On the other, the rule of consent meant that no one had to be present except the couple when the vows were given. The lack of witnesses made it impossible to prove whether the alliance was a marriage or concubinage.4 Yet the difference not only had moral implications but also was important with regard to inheritance law and the status of children if the relationship dissolved. If one party wanted to get out of the secret marriage, he or she could simply claim that no vows had been exchanged, and this claim could not be disproved. If the marriage could not be proved, any children born of the liaison would be considered illegitimate, and they lost the right to inherit from their father. A similar situation prevailed if the liaison was dissolved because the partners were too closely related. If the parties in an ordinary marriage had been unaware of the close relation, the marriage would be dissolved but the children would still be considered legitimate and would still have inheritance rights to both parents. This was not the case for secret marriages, probably because nobody could

2   J.A. Brundage: “Law, Sex, and Christian Society in Medieval Europe” 1997, p. 397; and Thyra Nors, “Ægteskab og politik i Saxos Gesta Danorum,” Historisk Tidsskrift, vol. 98, ser. 2 (Copenhagen 1998), p. 5, note 13. 3   For example in Corpus Iuris Canonici, vol. 2, “Decretales Gregorii papae IX,” lib. IV, tit. III, c. 3, pp. 679–680. 4   James A. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago and London 1997), p. 341.



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present a possible objection to the marriage before it took place.5 The same paragraph in the canon law instructed the priest to announce upcoming marriages so that objections could be put forward before the marriage. Mia Korpiola has pointed out that even though the Church, in theory, acknowledged consent as the only condition for a valid marriage, the question of whether the liaison was consumed or not had great importance in matrimonial cases.6 Even though the blessing of the Church was not necessary for entering a marriage, canon law prescribed a procedure for entering the ideal Christian marriage. Marriage in the twelfth century was recognized as a sacrament, but the actual marriage procedure was primarily a secular act. Canon law prescribed that both sides gave presents to the bride. Her father or guardian should provide a dowry, and the groom should marry the bride by placing a golden ring (if he could afford it) on her finger. Besides the “golden-engagement,” the groom was expected to provide a greater present to the bride, which in Swedish legislation is called the “morning gift.” The couple should confirm their marriage in front of witnesses, but only the man was obliged to say yes. If the woman remained silent, and did not say no, the silence was interpreted as her approval of the liaison.7 The priest often played a role at marriages too. In many locations, he gave his blessing at the church door. With the elevation of marriage to a sacrament, the Church also signaled that its view of matrimonial life had altered. Previously, the Church had considered marriage beneficial only rather grudgingly, because sexual intercourse within marriage prevented people from committing even worse carnal sins. With the beginning of the High Middle Ages, this attitude altered, and the Church emphasized marriage as actually beneficial for lay people. The marriage bed became a symbol of the marriage, and the priest even began to bless the marriage bed.8 5   This paragraph was accepted at the Fourth Lateran Council and was subsequently included in the Liber Extra. Corpus Iuris Canonici, vol. 2, “Decretales Gregorii papae IX,” lib. IV, tit. III, c. 3, pp. 679–680. 6   Mia Korpiola, Between Betrothal and Bedding: The Making of Marriage in Sweden, ca. 1200–1610 (Vantae 2004), pp. 93–96. 7   This principle is rooted in Roman Law and is emphasized by a.o. Ivo of Chartes in his account of the conditions of marriage around year 1100. Later it became incorporated into canon law. Gunnes, “Erkebiskop Øystein. Statsmand og kirkebygger,” p. 160. 8   Brundage, Law, Sex, and Christian Society, p. 279.

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From a theological standpoint, marriage was indissoluble. “What therefore God has joined together, let no man put asunder.”9 The Church did not allow divorce, but a marriage could be declared invalid in certain circumstances, for example if it was an incestuous liaison, if one of the parties was impotent,10 or if the marriage had been entered under duress.11 A family or the other party might use coercion, for example abduction. This was a serious problem, as shown by the fact that canon law discusses in detail whether a marriage between abductor and victim was permissible if the woman agreed to the liaison.12 Canon law underwent intense development in the centuries before the arrival of the Liber Extra. Gratian had rarely given a final answer on matrimonial issues, which led to uncertainty about the legal situation and discussions between canonists and theologians. Popes Alexander III (1159–81) and Innocent III (1198–1216), who were trained in canon law, settled several uncertainties through papal decrees. The marriage reforms culminated in the Fourth Lateran Council, which changed the limits of marriage, and thereby incest. This clarification is found in the Liber Extra, which until 1918 was the main principal work in canonical marriage law. Within certain areas, canon law was based on Roman matrimonial law. In ancient Rome, marriage was a matter between the involved parties and thus was under very limited legal regulation. This situation changed with the arrival of Christianity, and from the time of Constantine the Great, decrees about incest began to appear in the legislation. The principle of consent was rooted in Roman law, according to which the parties and their parents were obliged to consent to

  Matt. 19:6, Mk. 10:9.   Impotens was the term used in the Middle Ages to denote a lack of ability for either sex to carry through coitus. Today, it relates to the ability of the man. Stipulations concerning female impotence is found in Corpus Iuris Canonici, “Decretales Gregorii papae IX,” lib. IV, tit. XV, c. III, p. 705, and c. VI, p. 706. 11   Canon law adopted the concept of duress from the notion “vir constans” in Roman law. This notion referred to duress that was so powerful that it might make a staunch man shiver. If “vir constans” had occurred, the marriage could be dissolved. Agnes Arnórsdottir and Thyra Nors, “Ægteskabet i Norden og det europæiske perspektiv—overvejelser om især danske og islandske normer for ægteskab i 12.–14. århundrede,” in Ægteskabet i Norden fra Saxo til i dag eds. Kari Melby et al. (Copenhagen 1999), p. 31. 12   Corpus Iuris Canonici, vol. 1. “Decretum Magistri Gratiani,” causa 27, q. 1, c. 1, c. 27, q. 2, c. 47, c. 27, q. 2, c. 49, part 5. Vol. 2, “Decretales Gregorii papae IX,” lib. IV, tit. I, c. 1.  9 10



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the liaison.13 Dissolution of marriage or divorce was not as great a problem in Roman law as in canon law, so canon law was not able to find a Roman model for its stipulations. Marriage law in the provincial laws It is possible that a model existed that was similar for all Scandinavia in outline. Most Swedish provincial laws describe in minute detail how a marriage should be carried out according to law. Of course, regional and social differences occurred throughout Scandinavia, but the model found in the Swedish provincial laws and repeated in the Law of the Realm14 resembles that found in Norwegian provincial laws and Danish documents that become available from the late Middle Ages.15 When a marriage was arranged, the official betrothal was to take place with witnesses from the families of both parties in attendance. During the betrothal ceremony, the groom and the marriage guardian (giftoman, literally: “giving man”) exchanged betrothal presents. On the wedding day, the bride and her wedding procession went to the house of the groom, where the celebrations took place. The East Swedish provincial laws and Magnus Eriksson’s Law of the Realm mention a particular formula that the marriage guardian had to recite during the celebration; it listed the legal conditions of marriage and the property rights between the spouses.16 Then the liaison was confirmed by

  Justinian’s Institutes, I, 10, p. 4/43.   Mia Korpiola has recently completed an examination of marriage in Sweden in the Middle Ages and the early modern period. See Korpiola, Between Betrothal and Bedding, in particular pp. 1–54. 15   Marriage is mentioned in the following sections of the provincial laws. Schlyter, Corpus Iuris, vol. 3, UpL. ÆrfÞæ Balken, chs. I-IV, pp. 103–108, Vol. 2, ÖgL. Gipta Balken, chs. IX, and X, pp. 100–102, Vol. 5, VmL. Ærfda Balken, chs. I–III, pp. 119–122, DL. Gipninga Balken, chs. I-III, pp. 47–48, Vol. 4, SmL. Gipninga Balken, chs. I–III, pp. 56–58. Vol. 6, HL. ÆrfÞa Balken, chs. I-IV, pp. 27–31, Vol. 1, VgL1. Giptar Balken, ch. 2, pp. 32–33, VgL2. Giptæ Balken, ch. 2, pp. 144–145. Magnus Eriksson Landslag, Giftemålsbalken, ch. I. V, pp. 38–41, Norges gamle Love, vol. 1 FL. III, ch. 22, p. 155. GL. ch. 51, pp. 27–28, Vol. 2, MLL. Arvebolk, chs. 1–2, pp. 74–76; and Danmarks gamle Landskabslove, vol. II, JL. 1. book, ch. 33, pp. 82–84. 16   “He [the marriage guardian] shall give the woman to the man to honour and as wife, to half of the bed, to the locks and keys and to every third of that he owns or require at chattels personal except gold and chattels, and to all the right in the law of Uppland and that Saint Eric gave, in the name of the Father, the Son and Holy Ghost.” Svenska Landskapslagar, vol. 1, UpL. Ärvdabalken, ch. III, p. 65. 13 14

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handshakes.17 The party ended with putting the couple in bed, and the next morning the groom gave the bride a morning gift, to which there were witnesses. The bride had the right to give a present to the groom in return, but it was not allowed to be more valuable than the morning gift.18 The precondition for entering a marriage was, as previously mentioned, that the spouses exchange vows, which many laws extended with vows from the man who gave the bride away and the nearest family. The consent of the groom was taken for granted, because he was actively involved in the betrothal, whereas the role of the woman was more passive. The Law of Scania and the Laws of Zealand did not include marriage prescriptions so do not mention the consent. The other provincial laws do mention the consent of the woman, except the Gulathing Law, the Borgarthing Law, the Östgöta Law, and the Older Västgöta Law. Not all the laws required the woman’s verbal consent to the marriage; silence was considered consent, as described previously. The Uppland Law and the Västmanna Law restricted how a woman could get out of a betrothal that had been entered without her knowledge or while she was a minor. In those cases, “she had the right to refuse with the acceptance of her kin.”19 However, the “acceptance of her kin” might not have been so easy to get if they had taken part in the betrothal. Still, the decree can be considered a measure against marriage by force. The decree does not stipulate that the “acceptance” had to be from the same relatives who had taken part in the betrothal, nor does it require that the man who gave the bride away to agree to the dissolution of the liaison. Therefore, if the parents or other close relatives tried to force a girl into marriage, she could get assistance from other, possibly more distant, relatives. The Södermanna and Dalar laws did not specifically mention the consent of the woman. Instead, both laws prescribed that a marriage should be proclaimed at church on three Sundays. This would allow persons who knew any impediments to the marriage to come forward with their knowledge. Coercion was 17   The handshake is mentioned only in the Later Västgöta Law. Handshake was the canonical method of sealing an agreement, so it seems plausible that it was used in other provinces too. Schlyter, Corpus iuris, vol. 1, VgL2. Giptæ Balken, ch. 2, p. 144. 18   The morning gift was an institution that developed in Sweden, and it did not have the same importance in Norway or Denmark, where it was mainly used by the magnats. Korpiola, Between Betrothal and Bedding, p. 49. 19   Svenska Landskapslagar, vol. 1, UpL. Ärvdabalken, ch. 1, p. 64.



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regarded an impediment to marriage, so it was possible to come forward with that during the period of proclamation.20 A woman could not act on her own behalf in matrimonial cases. She had to have a marriage guardian, normally her father. If he had died, another relative took his place. Several laws stipulate who the marriage guardian could be, and they vary. A main topic was whether the mother was allowed to decide her daughter’s marriage. The Frostathing Law and Magnus Lawmender’s Law of the Realm stipulated that father and the mother jointly decided the marriage.21 The Uppland, Västmanna, Hälsinge, and Dalar laws allowed the mother to become the marriage guardian at the death of the father.22 Magnus Ericsson’s Law of the Realm did not grant the mother the right to appear as the marriage guardian, but it was emphasized that she had to be consulted when the daughter was going to marry. The laws prescribed which male relative was next in line to take over of the mother and father were deceased.23 The Göta, Dalar, and Södermanna laws and the Swedish Law of the Realm determined that the marriage guardian had to be from the father’s side, although the maternal kin had to be consulted. The right to be the marriage guardian did not extend further back than the canonical fourth generation removed. The addition to the Later Västgöta Law explains, “because should the fifth generation removed be responsible for marriage, then he could both ask for the woman and carry out the marriage.”24 In such cases the marriage guardian became the nearest male relative on the maternal side. Most laws specified that the duty of marriage guardian went to the nearest male relative. For example, if there was a father’s brother or a mother’s brother, the latter was dismissed, as the paternal side had a preferential status. Furthermore, King Eric’s Law of Zealand emphasizes that other relatives should also give their consent to the   Schlyter, Corpus Iuris, vol. 5, DL. Kristnu Balken, ch. 7, p. 7; and Vol. 4, SmL. Kirkiu Balken, ch. XIII, p. 34. 21   Norges gamle Love, vol. 1, FL. XI, ch. 2, p. 230. Vol. 2, MLL. Arvebolk, ch. 1, pp. 74–75. 22   Schlyter, Corpus Iuris, vol. 3, UpL. ÆrfÞæ Balken, ch. 1, p. 103, Vol. 5. DL. Gipninga Balken, ch. III, p. 48, VmL. Ærfda Balken, ch. 1, p. 119; and Vol. 6. HL. ÆrfÞa Balken, ch. I, p. 27. The Dalar Law allows this only if the mother was either an unmarried widow or had entered a new marriage of which the deceased husband’s relatives approved. 23   The Uppland, Västmanna, and Hälsinge laws decided that married sisters came after brothers. 24   Svenska Landskapslagar, vol. 5, Tillægget til VgL2. § 8, p. 383. 20

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marriage.25 Only the Hälsinge Law gave equal footing to both sides. If there were no parents, brother, or married sister, the two nearest relatives on both the father’s and the mother’s side were in charge of the marriage.26 It was a general practice that widows had more freedom to decide their next marriage than a virgin, even though the widow’s family still had to be consulted. Two Norwegian laws give this right to women who marry for the first time, but they limited its validity: “the maiden, who is the heir, no matter after whom, she can marry herself with whom she wants when she is fifteen winters old, with the advice of those relatives who are the closes and most important, both in bauggildet and nevgildet.”27 The Borgarthing Law gave this privilege only to girls who inherited from their fathers.28 These two paragraphs are very interesting, because these girls, who were going to be future landowners, had to enter the male sphere, and they actually became almost equal to men. It is not possible to determine whether the institution of the marriage guardian was new at the time of the provincial laws or if it was ancient. It is reasonable to assume, however, that parents or the family controlled the marriage of women, even before the arrival of Christianity. It is probably not a coincidence that the maternal relatives had barely any rights according certain laws, whereas their position in other laws was somewhat stronger. The reason may be the construction of the inheritance rules: in areas where female inheritance rights were new, the maternal relatives had a weaker position historically than in the provinces, where female inheritance rights had been recognized back in time. This interpretation is supported by the fact that the maternal kin had greater influence in the Danish and East Swedish legislation, which were also the areas where the female inheritance right probably was deepest rooted.29 It is strange that even though the consent of the woman was a canonical requirement for entering a valid marriage, it was only the Later

  Danmarks gamle Landskabslove, vol. V, EsL. text 1, 1. book, ch. 48, pp. 66–69.   Schlyter, Corpus Iuris, vol. 6, HL. ÆrfÞa Balken, ch. 1, p. 28. 27   Frostatingslova, Kvinnebolk, ch. 18, p. 177. 28   Norges gamle Love, vol. 1, BKr. ch. 7, p. 343. 29  Elsa Sjöholm has pointed out the existence of a division between East-Swedish and Danish inheritance right on one hand, and Norwegian and West-Swedish on the other. According to the East-Swedish and the Danish legislation, women and the maternal kin had better inheritance rights than they did in the other areas. Sjöholm, Sveriges medeltidslagar, pp. 123–129. 25 26



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Västgöta Law that prescribed punishment for marrying off a woman against her will.30 Most of the laws required that that not only the woman but also her closest relative consent to the liaison. If a woman married without this consent, it could have serious economic consequences for her. The most common sanction was that she could lose her inheritance right. This penalty follows the sanctions the canonists prescribed, since there could be no request to dissolve a marriage that had been entered without the consent of the man who gave the bride away, or the family. As the Uppland Law states, If a maiden takes a man against the wishes of her father or mother, if they are alive, whether she marries him or not, her inheritance right depends on the mercy of her father and mother, but not on any other relative nor of the man who gave the bride away. If father or mother want to forgive her crime she takes a full capital portion.31

This was also the case in the Swedish laws (except the Västgöta Law) and the Law of Jutland.32 Magnus Lawmender’s Law of the Realm33 extended this provision to young men under guardianship who married before they were twenty, at which age they became of age and took charge of their own inheritance.34 It is noteworthy how serious the perception of disobedience in matters of marriage was. The sanctions were the same whether a woman committed fornication or married without consent. According to Swedish laws, with the exception of Östgötaland,35 the girl lost only the right to inherit from her parents. Magnus Lawmender’s Law of the Realm went one step further, stating that a girl who married without the consent of the parents or the marriage guardian:

  Schlyter, Corpus Iuris, vol. 1, VgL2. Kirkyu Balken, ch. 52, p. 99.   Svenska Landskapslagar, vol. 1, UpL. Ärvdabalken, ch. I, § 2, p. 64. 32   The difference was that, according to the Law of Jutland, if a woman entered marriage without the approval of her nearest relatives, she lost the right to use her inheritance, which her relatives would enjoy as long as she live. After her death, potential children would have access to the inheritance from their mother. Danmarks gamle Landskabslove, vol. II, JL. 1. book, ch. 33, pp. 82–84. 33  No similar provision is found in the Norwegian provincial laws, perhaps because they already limited daughters’ inheritance rights. Norges gamle Love, vol. 2, MLL. Arvebolk, ch. 2, p. 75, and ch. 22, pp. 90–91. 34  Ibid. 35   Which states: “The person, who does not take inheritance after father or mother does not take inheritance of relatives on the side he has lost and which he does not inherit.” Svenska landkapslagar, vol. 1, ÖgL. Ärvdabalken, ch. 1, p. 123. 30 31

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chapter fifteen forfeited all her inheritance that may belong to her from that time, and the nearest heir should take the inheritance as if the woman was not born to it—unless the man who gave the bride away would refuse her to marry a man who was her peer, then she can marry with the advice of selected relatives, who finds the match to be equal or better [than her rank].36

A similar provision is found in the Law of Jutland and is repeated and extended in Thord’s Articles: the guardian (often a brother) may not let a woman who had lost her parents stay unmarried against her wishes, if there is a suitable match. The law explains that the brother may be not want to marry off his sister because she would have already received her portion of the inheritance from her parents, and the guardian controlled her estate until she married.37 The aim of the two decrees was possibly to prevent a single relative from deciding on the marriage of a ward exclusively because of his own economic interests. However, not all women had the right to marry, Knud Mikkelsen’s glosses to the Law of Jutland explains. “If she behaves badly, her relatives are not obliged to marry her off.”38 To act badly may refer to fornication or other behavior that might destroy the reputation of a woman and thereby make it difficult to find a suitable match for her. This was not the case, however, if the girl her relatives refused her permission to marry after she was 18 years old and if a suitable match was found. “If a guardian would not marry them off, and they let a man lie with them, then they do not forfeit their estate.”39 This decree resembles Novella 115, which mentions that a woman at age 25, if denied a suitable marriage, could either marry or fornicate without the consent of her parents without losing her estate or right to inheritance.40 According to some laws, a marriage without consent of the family would have consequences not only for the woman but also for the man. The Östgöta Law and Magnus Lawmender’s Law of the Realm stipulated that the groom had to pay the marriage guardian a sum

36   Magnus Lagabøters Landslov, ed. and trans. Absalon Taranger (Kristiania 1915), Arvetallet, ch. 2, 1. p. 73. 37   Danmarks gamle Love, vol. 2, JL., 1. book, ch. 8, pp. 140–141. Danmarks gamle Landskabslove, Tillæg til Bd. IV. Thords Artikler. 3:14, p. 125, 5:39, p. 155, 6A:67, p. 186, 6B:76, p. 238, 6D: 71, p. 292, 6E:78, p. 319, 7:84, p. 356, and EK:74, p. 424. 38  Ibid., Knud Mikkelsens Glosser, ch. 25, p. 20. 39   Danmarks gamle Love, vol. 2, JL. 1. book, ch. 8, p. 141. 40   Korpiola, Between Betrothal and Bedding, p. 125.



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corresponding to the size of the woman’s wergeld, if he had not consented to the liaison.41 If the man did not pay or the woman did not posses enough estate to pay the fine, the Östgöta Law opened the possibility to outlaw the man. If the man had paid a fine to the marriage guardian, the law additionally allowed both the king and the district to sue him for a similar amount. Marriage by force Even though the Church throughout Scandinavia required that marriage be entered by free will, marriage by force seems to have existed. Some Norwegian laws stipulate what a woman could do if she had been forced to agree to a marriage. The Eidsivathing’s Christian Law states that if a woman had been forced into marriage, she could “declare divorce between her and her spouse any day she wanted within the next 12 months.”42 The law gave her the right to dissolve the marriage, but it was not likely that easy in reality. The Frostathing Law tightened provisions. If a woman within 12 months of her marriage regretted it and stated that she had been forced, it was up to the spouse to prove the she was incorrect. If he could find witnesses to the marriage, who would swear that he had not used force, the marriage vows were still legal. If the groom could not present the necessary witnesses, the woman and her parents (or other relatives, if the parents had died) could declare by oath that the marriage had taken place against her will and was therefore void.43 This decree must have been aimed at abductions, not cases in which the woman had been married off against her will by her parents or by the family. Only one principal decision about marriage by force is known in Scandinavia. In a papal bull from 1219, later incorporated into the Liber Extra,44 Pope Honorius III replied to Bishop Niels of Schleswig’s question of how to deal with brides

41   Schlyter, Corpus iuris, vol. 3, ÖgL. Gipta Balken, ch. VI, pp. 58–59. Magnus Lagabøters Landslov, Arvetallet, ch. 2, 1. p. 73. 42   Ældre Eidsivatings Lov. Kristenretten tillikemed et opbevaret brudstykke av den verdslige lov, ed. and trans. T.O. (Kristiania 1914), ch. 23, p. 14. 43   Norges gamle Love, vol. 1, 1, FL. III, ch. 22, p. 155. 44   Which erroneously states that the Bishop of Bergen had sent the enquiry.

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chapter fifteen who according to custom come to the door of the church to be blessed with their groom, and there protests and assures that they have never given their consent to marry. When the groom according to the legal procedure proves the opposite, since a simple assurance should not be put higher than legal and to that assigned witnesses.45

If the bride ran away between the blessing and the putting to bed ceremony, and she wanted to demonstrate that she had only given her vow out of fear, her legal status was different, however. With such brides, the bull explains, “one should not simply deny access to the court of law, but a careful investigation should be carried out of the fear that has been inflicted on them.”46 Historians have interpreted this papal bull very differently. Helge Paludan believes that it reflects a conflict between the Church’s marriage ideology and that of the surrounding society. He thought that the letter opened the option for recalcitrant brides to get rid of a groom they did not like. According to Paludan, the families were the losers, because the Church, through its decision, tried to sabotage marriage alliances.47 Paludan is evidently influenced by the British historian and anthropologist, Jack Goody, who argues that the Church wanted to break down the cohesiveness of families.48 Paludan argues even more forcibly than Goody that the Church wanted to break down the family structures. But Michael H. Gelting disputes Paludan’s interpretation. He points out that it was not easy for a bride to prove her fear: Furthermore, the Pope only decided matters of principle, whether the case could be brought before the ecclesiastical court of law, or if it should be dismissed as unfounded. Honorius’ decision did not mean that the woman had won her case at all.49

Gelting also points out that the bull nowhere states that it was the woman’s kinship group which inflicted the great fear on her.

45   DD 1. ser., vol. 5, no. 152, p. 141. (“quae de more veniunt ad valvas ecclesiae benedicendae cum sponsis, et ibi reclamantes affirmant, se nunquam in eorum matrimonuim consensisse, audiri sponsis legitime probantibus contrarium non oportet, quum legitimis et idoneis testibus non debeat illarum simplex assertio praevalere.”) Corpus Iuris Canonici, vol. 2, “Decretatium d. Gregorii papae IX,” lib. IV, tit. 1, ch. 28. 46   “Non statim est audientia deneganda; sed de illato metu est cum diligentia inquirendum.” Ibid. 47  Paludan, Familia og familie, pp. 258ff. 48   Goody, The development of the family. More about this later. 49   Gelting, “Det komparative perspektiv,” p. 152.



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Instead, Gelting argues that Pope Honorius wanted to avoid serious abuses, such as marriage by force or kidnapping.50 He repeatedly notes that consent given under duress is not valid according to canon law. The Liber Extra also contains several decrees about consent and abduction.51 If Gelting’s assumption is correct, that the case from Schleswig was a matter of abduction, the papal bull echoes previously mentioned provisions in the Frostathing Law, which make the groom responsible for disproving the woman’s claim that force had been used. Despite the sparse number of documents, I believe we can conclude that canon-law provisions against marriage by force were not aimed solely against the control of the family over its members. They were just as much aimed against abduction, which violated the family’s authority and canon law. Abduction of women was a problem throughout the Middle Ages, as not only canon law decrees but also provincial laws addressed the topic. In Sweden, abduction of women was traditionally considered a break of peace, so it is not surprising to see it described as breaking the edsöre. If a rapist fled out of the country with the woman, he could only obtain peace again if the marriage guardian asked him, and he paid the imposed fines.52 The decree did not address whether the man and the woman would be able to continue living together, if the woman agreed, after the man had bought peace. The Västgöta Laws also considered this question. If a betrothed woman was abducted, her closest relative, the marriage guardian, the king, and the district would determine whether the abductor could buy his peace again. The Laws state, though, that even if he was permitted to buy back his peace, he could never live together with the woman.53 A similar concept is found in Thord’s Articles to the Law of Jutland. The paragraph dealing with punishment for abduction or violation of  Ibid., p. 153.   Corpus Iuris Canonici, vol. 2, “Decretalium d. Gregorii papae IX,” lib. IV, tit. 1, chs. 14, and 15. 52   Schlyter, Corpus iuris, vol. 3, UpL. Konunx Balken, ch. VI, § 2, pp. 91–92, Vol. 5. VmL. Konongs Balken, ch. III, pp. 113–114, Vol. 4. SmL. Kununx Balken, ch. VI, p. 49; and Magnus Erikssons Landslag, Giftermålsbalken, ch. V, § 1, p. 41, here there were an important different that it was only valid for betrothed women, and the groom had to ask for it. 53  It is possible that the prohibition of a later cohabitation may relate to the possibility that the woman had already given another person a promise of marriage. Schlyter, Corpus iuris, vol. 1, VgL1. Giptar Balken, ch. 3, p. 33, VgL2. Giptæ Balken, ch. 2, pp. 144–145. 50 51

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women begins: “If you take from another their daughter, sister, or other kin, and lie with them with wedding or without wedding. . . .”54 Then follows a statement that if a marriage had been entered, it would not be recognized, no matter whether the woman had eloped (came along freely) or not. If the man had abducted the woman by force, the punishment was not mitigated even if the abductor later married the woman, with her consent. The Gulathing Law reveals that sometimes a woman consented to marriage with an abductor. Magnus Erlingson, in contrast, considers abduction of women against the will of the guardian and the women to be a heinous crime. He prescribes that the perpetrator should forfeit his peace and all his estate, even if the woman later agreed to the liaison.55 Both canon law and several provincial laws found it likely that a woman who had been abducted and raped would later marry the perpetrator. Even in this situation, though, canon law prescribes that her family consent to the marriage. What might motivate such consent? There evidently existed a grey zone between force and willingness. The girl may have liked the man but, out of respect for the family or fearing the consequences, may have opposed at first. Or, the girl may have been innocent, but the abduction would have tainted her reputation so that the parents or the guardian would find it difficult to find a suitable groom. If the family did not consent to the girl’s marriage with the abductor, the girl might have faced an even bleaker future. She may have only had the choice to become a spinster, take the veil if a monastery would admit her, or marry beneath her station. The laws do not explain why stealing a woman was sometimes considered rape and abduction, even though the woman eloped freely. Maybe the laws simply reflected the prevailing view of women in the High Middle Ages. Women were considered weak and easy to tempt, which is why they should be subject to the control of a guardian or a spouse all their life. Men were considered to be the opposite: sensible and in control. A man ought to know better than to run off with a women, even if she was willing, so he was considered guilty. A woman could not be trusted anyway, so she should not bear the same guilt. 54   Danmarks gamle Landskabslove, Tillægget til Bd. 4, text 6A, ch. 74, p. 189. I cite the text 6A. The Latin original states: “Item si aliquis alicui abstulerit filiam, sororem uel aliam cognatam et ipsam carnaliter cognouerit per nupcias uel sine nupciis.” Ibid., text 1, ch. 97, pp. 104–105. 55   Norges gamle Love, vol. 1, GL. ch. 32, pp. 19–20.



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This view of women probably led to the decrees about fines for fornication. Only the man was sentenced, and the fine had to be paid to the man who gave the bride away. The woman, even though willing to participate in the act, was not punished. The laws have many provisions regarding abduction by force, yet it was not uncommon for parents or guardians to force women into marriage Mia Korpiola has found several forced marriages in the documents from Sweden in the late Middle Ages. It seems that the free consent to marriage that the law required was an ideal, far from reality.56 Incest, marriage, and canonical kinship Prescriptions concerning incest formed the basis of canonical kinship, since marriage was prohibited to those to whom you were related physically and spiritually. Therefore, the doctrine of canonical kinship was intimately connected with the development of the doctrine of incest. The incest doctrine of the early Church was in part based on the Mosaic Law, which prohibited sexual relations between relatives and people related by marriage.57 Incest legislation in classical Roman law was very limited.58 A more developed version appears in the imperial legislation of Constantine the Great and later, and it must have been introduced because of Christian influence. During the next centuries, the Church tightened the incest prohibition far beyond the limits of Mosaic Law. Up until the eighth century, the limit of kinship and thereby incest was set at the seventh generation removed. Even though the Church itself had introduced these strict incest rules, the clergy was limited in its ability to enforce the prohibition, except within the closest generations., as seen from the laws of the early Middle Ages

  Korpiola, Between Betrothal and Bedding, pp. 112–116.   Lev. 18:7–8, 20:11, 12, 14, 17, 19, 20, and 21. An exception is the brother’s wife. If a brother died, it was the duty of one of his brothers to marry the widow and educate his children as if they were his own. Intercourse with aunts was prohibited, but not with cousins. It was also prohibited to have intercourse with the wife of a father’s brother, but not with the wife of a mother’s brother. Mosaic Law did not prohibit marriage between uncle and niece, but by the time of Constantine the Great it was prohibited by law, so it must have developed in the early Church. 58   Marriage within the first four Roman degrees of kinship (including cousins) was prohibited. Bouchard, Those of My Blood, p. 40. 56 57

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that regulated marriage.59 The doctrine of incest was undoubtedly recognized and upheld (though not to its full extent) among the Lombard, Merovingian, and Carolingian aristocracy. From the eleventh century, the Gregorian reform led to increased focus on the problem of incest. The reform took aim not only at the secular investiture but also against the habits of the clergy. In order to uphold it special status, the Church first had to cleanse itself from within. Thus we see a renewed interest in upholding celibacy, for not only the higher clergy but also parish priests and members of the lower clergy. This cleansing of the “Corpus Christi” was soon extended to lay people. Like the clergy‘s violation of the celibacy, incestuous relations within the secular sphere were seen as an abomination that had to be fought, since the a true peace of God could not emerge as long as Christians profaned the earth through their acts.60 There have been many explanations of why the Church developed such a far-reaching concept of kinship. The motivation seems to have developed over centuries, making it unlikely to settle on one explanation for the phenomenon. Therefore, I have chosen to focus on the period of the Gregorian reform until the Fourth Lateran Council, which moved the limit of kinship from the seventh to the fourth generation removed. Jack Goody’s theory from 1983 about the background for the prohibition of incest has inspired a number of historians. His main conclusion is that the ecclesiastical marriage policy (i.e., decrees about incest and the demand that both parties should consent) aimed primarily at undermining the ability of powerful aristocratic families to use marriage as part of a power policy or as an economic tool. This made it more difficult to find a suitable mate, causing several aristocrats to die unmarried and childless and thus making it easier for the Church to

59   The Lombard Laws, Rothair’s Edict, ch. 185, p. 86, King Liutprand’s Laws, 723, ch. 33, pp. 160–161. Both paragraphs deal with marriage between people related by marriage. We may therefore assume that the prohibition of incest between relatives in the closest generations removed was generally recognized. Pactus legis Salicae (Law of the Salians), chs. 11, and 13, p. 56; Capitularium VI, Decretum Childeberti, 594, chs. 1, and 2, p. 145; Lex Ribuaria, ch. 72, p. 204. The oldest decrees from Pactus legis Salicae date to the beginning of the sixth century and describe the prohibition of incest within the first two generations removed, a.o. sister, cousin, and niece. This may indicate that the Christian doctrine on incest was new. 60  Amy Remensnyder, “Pollution, Purity, and Peace. An Aspect of Social Reform Between the Late Tenth Century and 1076,” in Thomas Head and Richard Landes, eds., The Peace of God. Social Violence and Religious Response in France around the Year 1000 (Ithaca and London 1992), pp. 285–307.



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get a share in their inheritance.61 The book was received with enthusiasm by many, because apparently it answered some of the great dilemmas in canon law. Not everyone was convinced of Goody’s explanation. David d’Avray uses Peter Damian’s writings to refute Goody’s theory that stipulations on incest entered the laws only to destroy aristocratic families and ensure easier access to donations for the Church. In fact, d’Avray suggests the opposite. Like many other medieval theologians, Peter Damian was inspired by Augustine, and by comparing the doctrines of Augustine with the relation between kinship and love, d’Avray concludes: This negative conclusion is more certain than the positive suggestion— that the prohibition was designed to promote friendship between clans— which I have not devised, so much as revived from the thought of Peter [Damian] and other medieval writers, and which modern scholars have readily dismissed.62

The Swedish anthropologist David Gaunt has demonstrated a connection between incest and solidarity within the family, as well as love and peace within the kinship group.63 Still, he agrees with Goody that the main purpose of the incest prohibition was to prevent the magnats from marrying. This would mean that more family members would enter a monastery or die childless, which meant that the Church might be able to dispose of a largest part of their estate.64 Their totally materialistic view of the Church is the most important point of criticism of Goody and his followers. It is probably easy to find religious institutions that abused their position to enrich themselves. The clergy were no different from other humans and just as inclined to abuse their position. However, to assume that theologians through the centuries silently accepted the complicated incest rules with the sole purpose of enriching the Church seems absurd. In fact, there was a multitude of idealistic theologians between the eleventh and thirteenth centuries who aimed to cleanse the Church of all impurities, such as simony and nepotism. In his study of the incest problem, Michael H. Gelting tries to create a synthesis in order to explain the seemingly

  Goody, The development of the family, pp. 34–157.   D’Avray, “Peter Damian,” pp. 71–80. The quotation is from p. 80. 63   Gaunt, Familjeliv i Norden, pp. 221–24. 64  Ibid., pp. 219, and 228–229. 61 62

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absurd incestuous system.65 Briefly stated, he concludes that already the Merovingian aristocracy feared that marriages with peasants or other unworthy would contaminate their blood. Thus they were very amenable to Church teachings about the damaging effects of incestuous relations and embraced the prohibitions of incest. Gelting argues that the foundation of the incest policy of the High Middle Ages was laid under the Carolingians. He assumes that the seventh generation removed was established in Carolingian times. He states: It is noteworthy that the strict and extreme Carolingian reinterpretation of the prohibition of consanguineous marriages—including marriages between spiritual kin—were roughly contemporaneous with Charlemagne’s severe legislation against private feuds . . . By the Carolingian age, the Church had been inculcating the fear of impurity through incest into the lay aristocracy for a couple of centuries. Let us assume for a moment that the Church would indeed have been able to use this fear as a lever for extending the sense of mutual obligation between aristocrats, at the same time making them interpret their own ideology in a new and stricter sense, by accepting that kinship did indeed entail an absolute obligation to mutual charity. This would have meant that within a few decades, warlike secular society would be spun into such a tight net of reciprocal charity that internecine fighting would become impossible.66

This connection between kinship and peace may appear to be utopian, but Gelting still argues that the prohibition of incest must be interpreted in this light. I can fully support his views, since the basis of canonical kinship was Augustine’s doctrine of peace. Furthermore, the prohibition of incest was founded on the doctrine of canonical kinship, so the two spheres are closely connected. There can be no doubt that there was a close connection among marriage, incest, and peace. By far, the largest number of dispensations to marriage within the prohibited degrees of generations removed, given before the Fourth Lateran Council, had a peacekeeping aim. If the doctrine of canonical kinship was to have a practical meaning, marriage between the great aristocratic families was necessary, and moving the limit back to the seventh generation would hinder this. This was one explanation for the change from the seventh to the fourth generation removed, if we trust the Sienese preacher Ambrogio Sansedoni.67   The article is evidently influenced by d’Avray, Gaunt, and Remensnyder.   Gelting, “Marriage, Peace,” pp. 98–99. 67   Sansedoni lived from 1220–87. He originated from one of the big trading and banking families, but he himself entered the Dominican order. Toward the end of the 65 66



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He was a leader in the Peace of God movement that flourished in the thirteenth century. One themes in his sermons was that kinship even among people related by marriage would lead to peace. Incest in the provincial laws The prohibition of incest appears in very different ways in the each of the provincial laws. The oldest laws, the Norwegian, have very detailed provisions regarding incest in the Christian law sections. The Gulathing, Borgarthing, and Eidsivathing laws have almost identical provisions. Marriage within the sixth generation removed among relatives and among people related by marriage was prohibited. If such a relationship was uncovered, punishment was the dissolution of the marriage and the payment of a small fine to the bishop. The sanction, however, much more severe if the marriage was between the first two generations removed. Incest within the first two generations removed, whether within marriage or just sexual intercourse, was a heinous crime, punishable by outlawry and confiscation of all property.68 The huge different in punishment between incest among the closest relatives and the more distant may at first appear tremendous. The laws probably acknowledged that people might not know who their more distant relatives were, and this lack of knowledge may have led to an incestuous marriage. But he lack of knowledge would be difficult to claim within the first two generations removed. The limits of the Frostathing Law to the sixth and the fourth generation removed as the limit of incestuous relations reveal that even though the surviving version of the law dates to 1260, it upholds a Christian law that Archbishop Øystein had compiled. The provisions concerning incest appear to have entered the law at a time when the stipulations were not generally known, since the law explains in detail how to calculate whom you were allowed to marry. “From siblings you shall count six generations each way, and marry the seventh. But if a man will marry 1230s, he studied theology and philosophy in Paris. Then he taught in Cologne and Rome before returning to Siena. One of his sermons has survived until today. David Waley, Siena and the Sienese in the Thirteenth Century (Cambridge 1991), p. 143. 68   Norges gamle Love, vol. 1, GL. ch. 24, pp. 15–16, BKr. chs. 6, and 8, pp. 365–366. Ældre Eidsivatings Lov, ch. 13, p. 22, ch. 30, pp. 18–19, and Ch. 55, pp. 34–35. The last paragraph deals with godparents. Only the Eidsivathing Law prohibits intercourse between godparents and godchildren.

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a widow after a kinsman, then you count four men each way from two brothers and marry the fifth.”69 The generations of women with whom intercourse would lead to outlawry was also diminished compared to the other laws. The Frostathing Law stipulated relations within the first generation removed; only intercourse with godparents and nuns would result in this punishment.70 Only the secular Norwegian provincial laws punished incest. They were older than the Danish and Swedish laws, and when they were instituted, the Church’s jurisdiction was not advanced enough that it could carry out the verdict alone. The secular rulers also probably wanted to fight incest, since incest as a sin was closely connected with the acceptance of canonical kinship. Within the Danish territory, ecclesiastical jurisdiction was more developed by the time the provincial laws were instituted, so incest is only mentioned indirectly in the Danish provincial laws. Paragraphs in these laws specify the process which should be used when dealing with a marriage based on incestuous relations;71 they also specify how the estate should be divided between two persons whose marriage had been nullified according to “Gods law,”72 which may refer to incestuous relationships.73 The Swedish laws too have very sporadic stipulations concerning incest. Some have provisions concerning processes to use when there was a suspicion that a marriage was incestuous or when one of the parties wanted to dissolve the marriage with that argument.74 Like the Norwegian laws, the Västgöta Law had specific stipulations about fining persons who committed incest within the closest generations. The fine was the same as for sodomy and other abominations. The older version stipulated a fine to the bishop and that the perpetrator should undertake a penitential pilgrimage to Rome. The later version expanded the circle of women and at the same time specified a fine that was both secular and canonical, since incest within the closest generations   Norges gamle Love, vol. 1, FL. III, ch. 1, pp. 147–148.  Ibid., ch. 3, pp. 148–149. 71   Danmarks gamle Landskabslove, vol. I,2, SkKl. text 1, chs. 6, and 11, pp. 835–838, and 851–860; and Vol. VIII, SjKl. text 1, chs. 9, and 15, pp. 449–450, and 453. 72   Marriages nullified according to “God’s law” meant marriages that were dissolved because they violated the provisions of the canon law, due to either incest or bigamy. 73  Ibid., vol. VII, A&O. text 1, 1. book, ch. 44, pp. 40–41, Vol. VIII, VsL1. text 1, ch. 40, p. 21; and Vol. I,1, SkL. text 1, ch. 9, p. 7. 74   Schlyter, Corpus iuris, vol. 5, VmL. Kristno Balken, ch. XIX, p. 101; and Vol. 1, VgL1. Giptar Balken, ch. 7, p. 34. SlL. Kristnu Balken, ch. 13, § 8, p. 109. 69 70



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became a heinous crime, and the Church’s fine was excommunication, which could only be lifted after a penitential pilgrimage to Rome.75 Nordic or canonical marriage law? Was the kind of marriage described in the provincial laws (particularly in the Swedish laws) an expression of a unique Nordic/Swedish model, not developed on the basis of the prescriptions of the Church? This matter has most recently been discussed by Mia Korpiola in her treatise about the establishment of marriage in Sweden in medieval and early modern times. She assesses the provincial laws, canon law, and surviving legal practices. Her approach is “that there are features of the norms that regulated marriage formation in the earliest Swedish legal sources that do not entirely correspond with the canonical twelfth- or thirteenth-century matrimonial dogma.”76 Her basic concept is the “Swedish form of marriage,” as found in the provincial laws. Here the parents and the relatives had a significant role at a marriage. The public aspect around a marriage was important to ensure that the legitimacy of the marriage would never be in doubt. This model was so well established and recognized by the population that it continued to be the correct way to enter marriage throughout the eighteenth century.77 Korpiola’s astonishing study maps all aspects of the Swedish and the canonical marriages, respectively. That said, one may object that her differentiation between Swedish marriage on one side and canonical marriage on the other is not very useful. The wedding as a legal act became extremely important only with the introduction of marriage as the only acceptable form of cohabitation and of a sharp distinction between a married woman and a concubine. The social status and legal inheritance depended on the status of the relation. If we turn Korpiola’s argument around, we could argue that the Swedish marriage, with all its rituals and great publicity, could just as well be a product of the more informal canonical marriage law, which may have created a demand for other legal actions that might be used to prove the

 Ibid., vol.1, VgL 1. Giptar Balken, ch. 8, § 1, p. 35, VgL2. Kirkyu Balken, ch. 52, pp. 98–100, Orbotæ mal, ch. 3, p. 120. 76   Korpiola, Between Betrothal and Bedding, p. iii. 77  Ibid., pp. 301–306. 75

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legality of the marriage. The documents seems to imply that in pagan Scandinavia, and long after Christianization, people did not much worry whether children were born to a concubine or a wedded wife; the borderline between the two categories was fluid.78 Therefore, marriage as a legal institution became important only when the position of the children to inherit depended on the marital status of the parents. Finally, Korpiola herself has pointed out that some kinds of marriage reminiscent of the Swedish model are found in different variations all over Christian Europe, rendering the concept of a unique Swedish model somewhat problematic In general, most of medieval marriage law was regulated by canon law. In theory, both parties had to consent before they could enter an indissoluble marriage. In reality, canon law tried to regulate the marriage through a number of provisions. These prescribed how marriage should take place if you needed to prove the marriage to the court of law. There may have been sacramental importance to such provisions, but they were also very important in determining the inheritance rights of children. Canon law also led to sanctions, for example, loss of inheritance rights if the stipulated provisions were not followed. It can actually be debated whether or not the provincial laws actually regulated marriage. The Danish laws include only few scattered statements about marriage; the Norwegian laws contain a few more. There seem to be no common rules for what is being regulated by Norwegian laws, however, except for stipulations regarding incest, force, and consent. The most uniform and detailed provisions are found in the Swedish laws. Many have a particular marriage balk, which describes the marriage ceremonies in detail, from the betrothal until the morning after the wedding. Even though the Swedish provisions undoubtedly rest on local traditions, they do not conflict with the prescriptions of canon law. That is not surprising, considering that Swedish provincial laws date from a time when Christian doctrines were recognized in Sweden. The extent of the control of the family over its members can also be seen in the provisions that deal with who had the right to marry off a girl. This shows how serious marriage was taken. The Church’s doctrine that marriage was indissoluble meant that it was important to find the right match. One way to do so was to ask the family for advice,   That was also the case in other areas of Europe not subject to Roman law.

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or at leased for their consent to the match. If we trust the word of the law, it was not usual to include the complete canonical kin. A limited number from both sides participated as witnesses at the betrothal. This must have given them a certain influence: they could oppose the alliance by not appearing as witnesses and could thereby weaken the legal importance of the betrothal. It is not strange that the family wanted to influence who the members of the family married, because the economic and social status of the other party and his family was important—not only for the spouse but also for potential children, whose actions may result in fines for relatives. Political alliances were just as important, as were the position and power of another family, and not only with regard to the estate of the other party or the inheritance that one may expect. Furthermore, a stipulation in the Uppland and Västmanna laws mentions how to help a girl into, or out of, a marriage against the will of the guardian. Apparently a larger group of relatives than the laws themselves might indicate could influence a marriage. It is interesting that the requirement of consent to a marriage was not used to let the control go but was instead used to avoid conflicts that might come up if a woman violated the wishes of the marriage guardian and the closest family by marrying without their consent. Because marriage was not a mere private matter, several laws prescribed sanctions against marrying off a woman against her will and also against a woman who married without the consent of her marriage guardian. Just as in canon law, the sanction might be total or partial loss of the inheritance right. He who violated the will of the parents or other close relatives could not expect to inherit a share in their property. The laws make scant mention of marriage by force, perhaps because this topic came under ecclesiastical jurisdiction. Decrees in the Eidsivathing Law and Thord’s Articles show that it was a known phenomenon. Furthermore, Mia Korpiola has uncovered several examples from the late Middle Ages. But the statements concerning marriage by force in the provincial laws and the papal bull from Honorius III do not state whether the duress came from parents or other relatives, or whether it was a matter of abduction. The doctrine of incest, and thereby the doctrine of the canonical marriage, was the cornerstone of the marriage legislation. It undoubtedly was an actual problem in a number of marriages. We should therefore expect that the oldest provincial laws, the Norwegian, had more detailed provisions, because the ideology behind the prohibition

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of incest may have been less known in an earlier period than in the later, when the Christian ideology had become more deeply rooted in the laws. Norwegian laws may have prescribed secular penalties for incestuous relations because the ecclesiastical courts were not well developed when the regulation emerged. The Crown may also have wanted to uphold prohibitions against incest. Other than the Norwegian laws, other provincial laws contain only very sporadic prohibitions against incest. Their decrees deal primarily with the legal effects of the dissolution of a marriage due to a too close kinship.

CONCLUSION In this book, I have argued that the legislation in the Scandinavian kingdoms was not only used to clarify which established legal rules were in place in the individual provinces but also to introduce the ecclesiastical definition of kinship. The canonical kinship system was rooted partly in the peace ideology of the Church, which was based on Augustine’s emphasis that relatives should love one other, partly on the elaborate prohibition of incest that the Church developed. Canonical kinship was introduced as an alternative to a more loosely defined concept of kinship based on ties of blood, friendship, and alliance. This kind of kinship included an elective element, since ties of blood would be strengthened by ties of friendship, before an obligation between the parties came into existence. It is, of course, a matter of ideal types when the two kinds of kinship are juxtaposed. In reality, the borders between the two systems were fluid. Even though the ideology behind canonical kinship prescribed that you should love and support all members of the kin group equally, there has never existed any kind of kinship that did not contain an element of preference even though such preference was rhetorically condemned. Paradoxical as it may seem, one advantage of the elective- and alliance-based kinship system was its inherent instability. It meant that social dynamics in the Viking Age and the early Middle Ages were based on the fight for power and resources. The lack of a strong central power meant that each individual, given some advantage and a little portion of luck, could rise high in society. If the luck vanished, it could go the opposite way. This kinship and social structure was frail, however, since it rested on personal ties between individuals. Death could cause the system to collapse. The lack of a firm definition of kinship could give rise to strife over inheritance. The Crown as well as the Church tried to counter these conflicts by introducing canonical kinship in the provincial laws. The provincial laws, and thereby canonical kinship, came at a time when Scandinavian kings tried to strengthen the position of the Crown. They were keen to end the endless internal conflicts in the kingdoms, of which there are many examples in the sources from the twelfth century, in particular. The elective- and alliance-based concept of kinship was suitable for a

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society with a weak or nonexistent central power. The unstable conditions became problematic when power became centralized around the king. At the same time, the Church introduced new ideals about law, peace, and justice, which gradually gained a foothold. The doctrine of canonical kinship was probably disseminated from the pulpit, but too few sources have survived to provide an impression of how it was introduced into the provincial laws in the Scandinavian kingdoms. In addition to introducing canonical kinship as a foundation for the provincial laws, the ideological background of the system, in line with the philosophical and theological ideals of the time, strove to present the king as lawmaker and peacemaker. From its earliest years, the Church stressed the importance of the peace ideology. In the Middle Ages, however, the ideology was based primarily on Augustine’s ideology about God’s peace, which was the foundation of the Southern French Peace of God movement that emerged around year 1000. It spread throughout Christian Western Europe and slowly gained a foothold in most areas of the secular legislation, either as an integrated part of the legislation or in a specific king’s peace. The peace ideology became the official policy of the Church, as decrees about peace were established at the three first Lateran Councils and were subsequently incorporated into the Liber Extra. The more the idea about peace became an ideal that spread, the more it became a part of the people’s consciousness. The Peace of God became synonymous with the peace that the prince guaranteed. In other words, breaking the peace became a double crime, a violation of both canon law and secular law. Creating peace was certainly one practical goal of the provincial laws, as was strengthening of the position of the king, which had an ideological as well as a practical purpose. Furthermore, the legislators desired to regulate the legal state, clarify the definition of ownership of land, and delineate the rights of disposal of each person with regard to his estate. The distinction between ideology and practice is always difficult to establish, and the situation is even worse when studying the medieval documents. Documents are scarce, and religious language and arguments dominate in many documents discussing secular matters. In this book, I started discussing the overriding ideology that formed the basis of the provincial laws, instead of studying how the ideology about canonical kinship was developed and modified to fit the local law. I did so because the shortage of documents does not allow us to map this process. The documents do not tell much about the extent



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to which people adhered to the laws, but they must have functioned at least as guidelines. Therefore, the legislation that emanated from canonical kinship must be seen more as a part of a “Kulturkampf,” an attempt to influence the population’s concept of right and wrong, rather than actual commands. It should be noted that the kind of canonical kinship mentioned in the laws includes not only blood relatives but also people related by marriage and spiritual relatives—such as godparents and godchildren. The prohibition of incest applied to these groups too, and therefore it would be appropriate if they also had the rights and duties that bound the kinship group together. If canonical kinship was to function, it should not be too difficult to manage. As long as the building blocks of canonical kinship were blood relations, it was be possible to keep track of who one’s relatives were. But if one also had to keep track of the rights and responsibilities of people related by marriage several generations back, the system became too impractical to function. Even the provisions of the Norwegian provincial laws concerning wergeld were too unrealistic to carry out in practice, which probably led to their abolition. Also, since the most important aim of canonical kinship was to function as the foundation of the inheritance law and the related transfer of property, it was appropriate for those related by blood to form the kinship group. It is inconceivable that an inheritance system would include people related by marriage in the first generation removed, before blood-relatives of the second generation removed, etc. Such a system would probably never be accepted by the population. It was probably difficult to know one’s relatives far back in the generations. That may explain why several of the laws limit who would verify or confirm by oath the third or fourth or seventh generation removed, which was the canonical limit of kinship. The laws may have recognized that most people did not know their relatives so far back in the generations removed, and that very distant relatives would not likely know more about a person’s ancestry than other non-related people. The dogmatic presentation of how canonical kinship was used in practice in the provincial laws is found in the second part of this book. In general, the legal function of canonical kinship in the provincial laws is divided in two major parts: First, the kin group as a legal subject toward a third party; and second, the mutual rights and responsibilities within the kinship group. The role of the kinship group toward a third party was subject to the legal system, since it consisted of

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declaring oaths or paying fines. The mutual rights and responsibilities within the kinship group dealt primarily with the regulation and distribution of land and other valuables. The aim was to assure that land remained within the kin group and also to prevent the emergence of strife and violence within the kin group around the distribution of resources. The topic of payment or receipt of wergeld does not fit neatly into this subdivision. I have discussed it in the chapter about the kinship group as a legal subject, even though it deals with the rights and responsibilities mutually within the kinship group. The requirement of collective payment or receipt of wergeld is found in many laws that stipulate the mutual obligations and rights among members of the kinship group. With regard to the payment of wergeld, the laws have two contrasting principles. The Norwegian and Swedish Laws of the Realms abolished the collective payment of wergeld, but Danish laws upheld it until after the Reformation. No unique explanation for this difference can be found. Maybe the countries had different agendas; maybe the wergeld systems functioned differently in practice. The Norwegian provincial laws had very complicated decrees concerning wergeld—based on canonical kinship. The procedure for payment and receipt of wergeld was complicated, however, and difficult to carry out in practice in accordance with the letter of the law. Wergeld provisions were probably based on theoretical knowledge, not on a practical understanding of the legal procedures. This quibbling did not result in a more practical procedure, however, until Magnus Lawmender’s Law of the Realm. It appears as if the provisions of the provincial laws from the outset had an ideological purpose. The Danish decrees were much simpler than the Norwegian provisions and did not create similar problems. A firm procedure for payment of wergeld was probably an innovation in Denmark in the beginning of the thirteenth century, as suggested by both the Ordinance on manslaughter and the lack of provisions of payment of fines in the oldest laws. That the principles for payment were being discussed in the thirteenth century is revealed by the fact that provisions that would be in force throughout the Middle Ages were put in place only in the 1280s. The connection between canonical kinship and duties was very apparent in the Danish laws, as it was in the Norwegian provincial laws. In the Swedish laws, where several contradictory stipulations for receipt and payment can be found between the provinces, the connection between the wergeld and canonical kin-



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ship is not as apparent. In some provinces, the kin group was fined collectively, whereas in other areas only the murderer was fined. The latter became the final principle, and only in special cases were the obligations of the family upheld. The obligation of the kinship group was most encompassing in the kin’s board in Jutland, where the relatives, in a number of cases (primarily about the relationship between relatives), were expected to pass a verdict. This same method is found in several Swedish laws addressing the issue of conflict over how to divide an inheritance, establishing whether a marriage was incestuous, and investigating acts of violence, where the kinship group was obliged to provide evidence. The mutual rights and obligations of the kinship group were closely connected with a desire to safeguard resources within the kinship group. The goal was to ensure that estates did not fall into the hands of a third party. This gave rise to a connection between the inheritance law and stipulations concerning donations and sale of land. The inheritance law stipulated roughly the same limits on kin groups as did canonical kinship, but beyond that, it is not possible to talk about uniform decrees concerning inheritance. Female inheritance rights differed greatly among the different laws, as did the treatment of the maternal and the paternal sides of the kinship group. The principle found in Danish legislation, that daughter inherited half as much as sons, seems to have spread to the other Scandinavian kingdoms. The principle was introduced into the Norwegian Law of the Realm and is found in most Swedish provincial laws. Finally, it was the basis of the Swedish Law of the Realm. The desire to keep the estate in the hands of the family meant that provisions had to be established concerning how much of his estate an individual was allowed to donate. Again, the laws differ on this issue. The Norwegian and Swedish laws permitted a donor to give only a fraction of his estate, usually one-tenth. This may be based on an earlier arrangement of a capital tithe that should be paid once in a lifetime. Another principle was rooted in Augustine’s doctrine on donations, which stipulated a maximum donation based on the number of heirs. A provision of how much one could donate was not enough to ensure that resources did not leave the family in an uncontrolled manner, however. When the provincial laws were instituted, the economy was agrarian, so land played a tremendous role in increasing profits and prestige. If the sale of land did not involve any control of the buyer or price, the donor might be able to hide his gifts as a sale—below

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the market price. Therefore, the laws prescribed a system of notification that gave relatives the right of first refusal to land for sale, and the seller was threatened with punishment if he did not follow the procedure. Again, the construction of the decrees in the various the nations varies. In Norway, a very strict odelsret developed, according to which the relatives were able to claim land that was sold out of the family for up to four generations. When people, due to illness or old age, were unable to manage and therefore were forced to sell their land the heirs risked losing the land they would have inherited. In order to avoid this in Denmark, where the duty of pre-emption to land was not as developed as the odelsret, the fledføring institution safeguarded the heirs. Fledføring meant that old people were able to divide their estate among the heirs and be under the authority of a guardian, who would provide food and housing. Even though the marriage law found in the provincial laws is based on canonical inheritance law, it reveals much about the mutual rights and obligations of the family. Free consent was the foundation of what constituted the marriage. But the laws first and foremost seek to establish limits for marriages entered into without the consent of the marriage guardian. This ensured that a wider range of members of the kinship group had an influence on the establishment of marriages, not just the closest relatives. All the laws show signs of having been written on the basis of the canonical kinship concept, even though the conditions, as stated above, were not similar everywhere. The Norwegian development is particularly worth studying. Because the legal condition in Denmark and Sweden was more uniform, there are fewer differences between developments in those kingdoms. The odelsret in Norwegian laws provides a good example. Over time, the odelsret made independent disposal of property nearly impossible to perform for larger parts of the Norwegian estates, rendering supplementary decrees about fledføring and donations superfluous. The reasons for differences between Norway on the one hand and Denmark and parts of Sweden on the other cannot easily be explained. The stylistic peculiarities of the Norwegian laws underline their difference, but we should also keep in mind that the Norwegian laws were the oldest, and thereby the first to present canonical kinship. That may explain why they express an ideological element more strongly than



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the later laws. The older laws attempted to spread the knowledge of canonical kinship and at the same time used it in a peacekeeping context, both between the kinship groups, through the requirement of a collective liability, and internally in the kinship group, by preventing strife over inheritance and resources. The later laws enhanced the internal regulations and limited the external peacekeeping effect, because the central power attempted to increase its role to regulate strife. This meant that, over time, the function of canonical kinship changed. In this context, it is interesting that Magnus Lawmender’s Law of the Realm has the most apparent connection between canonical kinship and the construction of provisions concerning estate transactions and exemption for responsibility for persecution of murderers. For almost 200 years, as the provincial laws were written down in Scandinavia, the theological and legal agenda changed. Therefore, the meaning and the use of canonical kinship also underwent changes. Swedish laws present a weaker form of canonical kinship than do the Danish and Norwegian laws. This is the result of several factors, but one important factor surely was the legal system which was in place when the laws were first recorded. The starting point for the legal implications of canonical kinship must have been the already existing legal concept, to the extent it did not differ from the new ideas. Since it was a new ideology and not firm legal regulations that were introduced, those who controlled the legislation must have desired to avoid any confrontation with earlier legal concepts. The transition from an elective- and alliance-based kinship was both a legal and an ideological process. Even though the ideology behind canonical kinship was to love all one’s relatives, the elective element with regard to whom you frequented and felt a responsibility for was of great importance. In addition, one should not imagine that enmity between blood relatives disappeared with the introduction of canonical kinship. You cannot legislate whom to love. Stipulations about the kin’s board, in which the accused had the right to exclude his enemies, shows that even lawgivers were aware of the great gulf between ideal and reality. Even though it was not possible to force people to love all their relatives, the practical purpose of canonical kinship was probably also to create a moral code according to which violence and murder of blood relatives was unacceptable. Still, it was particularly within the inheritance law and the right of disposal of property that canonical

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kinship had its most far-reaching consequences in the long run. Only in modern times have substantial changes occurred. We must conclude, therefore, that canonical kinship succeeded in influencing the provincial laws, even though we must accept that canonical kinship not always was a firm entity. A principle can be used as a background for creating legal rules, even though all the people who theoretically may be involved in a legal problem will in fact only rarely be involved. The thoughts and ideals on which canonical kinship rested was well suited for the establishment of legal provisions and a legal ideology. The longevity of the principle evidently confirms this idea. This investigation of canonical kinship has opened new ways to interpret legal conditions in the Nordic kingdoms in the High Middle Ages. I would like to argue that more stable conditions emerged, not only because power was centralized but also because the introduction of canonical kinship limited violence and strife among relatives. Peace among relatives was not the only change of mentality that the concept of canonical kinship brought, however. Focus on blood as a social marker may have led to the system of nobility by birth, according to which the status and privileges of each individual would be based on blood, not personal merit. Such a system was, in fact, established in various Nordic kingdoms in the late Middle Ages, and in Denmark and Norway, it came under pressure only with the introduction of absolutism in 1660.

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index of names and places Abel, 47–48 Abelard, 83 Absalon, 46, 69–70, 81 Alexander III, 45, 47, 50, 188, 198–200, 238 Anders Sunesen, 81–82, 84, 216–217 Paraphrase, 65–66, 81, 129, 236 Andreas And, 83–84 Arnold of Lübeck, 83 Asser, 194 Augustine, 17, 87–88, 92, 100, 187–188, 191, 197–199, 201, 205–206, 251, 260, 263 Baglers, 42 Bengt Magnusson, 75–76 Birger Earl, 51–52, 75–76, 104, 131, 164, 167, 180 Magnusson, king of Sweden, 52–53, 98 Persson, 76 Bjarne Lodinsson, 85 Bjarne Mårdsson, 74, 86, 147–148 Bodil, 190 Bodilsons, 180, 191 Brynolf Algotsson, 84 Burchard of Worm, 28, 73–74 Caesar, 33 Catharina, queen of Sweden, 50 Charlemagne, 88–89, 96–97, 102 Charles the Bold, 96 Christian I, 44 Christopher, I king of Denmark, 48 of Bavaria, 53 Chronicle of Eric, 30, 51–52, 64, 85, 131, 164 Cnut, VI, king of Denmark, 19, 46, 81 Ericsson, king of Sweden, 50 Lavars, dux and saint, 19, 45, 127, 190 the Great, 45, 102, 189 king of Denmark and saint, 45, 101, 102, 106, 129, 189–190

Constantine the Great, 95, 97, 187, 238, 249 Coutumes de Beauvaisis, 24 Dagobert, 97 De Civitate Dei, 17, 87 Edda, 34, 63 Eric, I, the Good, king of Denmark, 19 II, king of Denmark, 19, 152–153 III, king of Denmark, 19 IV Plovpenning, king of Denmark, 47–48, 71, 164 V, king of Denmark, 48, 79 VI, king of Denmark, 71 archbishop of Nidaros, 42, 82 Birgersson, 53 Ericsson, Lisp and Limp, 50–51, 180 Magnusson, 44 Saint, king of Sweden, 50, 75 Erling Skakke, 39 Eskil, archbishop of Lund, 45 provincial governor, 75 Esrom Abbey, 58–59, 70, 196 Estrid, 189 Frederick, Barbarossa, 35, 45, 50, 97 II, German emperor, 30 Grágás, 4 Gratian’s Decretum, 14, 17, 18, 28, 30, 40, 73, 93, 98, 182, 188, 191, 205, 238 Gregory, I the Great, 152 III, 18 VII, 84 X, 203 de Grescentio, 66 Haakon, II, king of Norway Earl, 75 Haakonsson, king of Norway, 43, 74, 103, 143, 204

278

index of names and places

Sigurdsson, king of Norway, 39, 43–44 Hadrian IV, see Nicolaus Breakespear Harald III, 45, 84 Hemming Bodilsson, 190 Honorius III, 83, 245–247, 257

Niels, Danish king, 13, 19, 193

Inge Hunchback, 38–39 Ingeborg, sister to Eric Ericsson, 51 Innocent III, 27, 69–70, 73, 238 Isidore of Seville, 18, 93, 98 Ivo of Chartes, 237

Pactus Legis Salicae, 89, 159, 250 Peace-Frothi, 99 Peder, Bodilsson, 127, 190–191 Sunesen, 81 Vognsen, 191 Peter Cantor, 82–83, Damian, 17, 251 Lombard, 83

Jacob Erlandsen, archbishop of Lund, 31, 48 John of Salisbury, 96, 100 Justinian, 95, 210 Kalmar Union, 33 Karl Sverkersson, 50 King Valdemar’s Laws, 99 Kristin, daugther of Sigurd the Crusader, 39 Lateran Councils, 128, 260 Fourth, 15, 63, 65–66, 115–116, 134, 139, 144, 148, 214, 238, 250–252 Third, 93 Lex Baiuvariorum, 97 Lex Ribuaria, 18, 250 Liber Extra, 28, 40, 52, 76, 93, 173, 182, 217, 238, 245, 247, 260 Liber Legis Scania, see Anders Sunesen’s Paraphase Lucedarius, 16 Magnus, III Barnlock, 51–53, 75 Ericsson, 19, 53, 76, 78 Erlingsson, 37–42, 73–74, 100, 128, 148, 173, 180, 213 Lawmender, 44, 143 Nielsson, 19 Margrethe, Danish queen, married to king Niels, 13 I, queen of Denmark, Norway and Sweden, 53, 79 Moses, 97–98 Nicolas of Stavanger, 42 Nicolaus Breakspear, 38, 50, 173, 204, 206

Olav, Kyrre, King of Norway, 37, 73, 84 Saint, King of Norway, 37, 41, 99, 189 Oluf Björnsson, 76

Ragnarók, 20 Rothair’s Edict, 89, 182, 250 Roskilde Chronicle, 44, 152, 189, 191 Ryd Chronicle, 46 Saxo, 19, 29, 34, 44, 46, 64, 66, 99–102, 127, 178–179 Sigurd, archbishop of Nidaros, 74 the Crusader, King of Norway, 37–38, 43 Mouth, King of Norway, 38–39, 41 Snorri Sturlusson, 64 Sorø Abbey, 70, 190, 193 Sverker, I, king of Sweden, 50 II, king of Sweden, 50 Sverre, 29, 41–43, 212 Swein, II Estridsson, 173, 180 III, king of Denmark, 19 Aggesen, 29, 64, 101, 178–179 Forkbeard, king of Denmark, 45, 179 Sættargjerden, 44 Theodosius, 95, 97 Valdemar, I the Great, king of Denmark, 19, 35, 45–46, 173, 193 II the Victorious, king of Denmark, 47–48, 64–66, 70–71, 81 IV, king of Denmark, 79 Birgersson, 51–52, 164 Magnusson, 53



index of names and places

Victor IV, 50 Victorins, 42, 82 Vilhelm, saint, 82 Völuspá, 19 William of Malmesbury, 96 William of Sabina, 51

Æbelholt Abbey, 71, 82 Ælnoth, 45 Øystein, archbishop of Nidaros, 39–42, 82, 128, 213, 253 Haraldsson, 38–39 Møyla, 41

279

General Index Abduction, 247–249, 257 Adultery, 52, 157, 249 Allodium, 58, 60, 155, 174, 194, 204, 207, 209–204 Avlingejord, 202 Bauggilde, 120–121, 146, 230, 242 Bonde, 54, 201 Bördsrätt, 202, 210–211, 218–221, 223–224, 229 Bryde, 55 Burgundian Law, 182 Canon law, 14, 27, 29–31, 38, 40–41, 51–52, 62, 72, 82–86, 99, 104, 116, 122, 128, 172–173, 178, 205, 212, 214, 235–238, 248, 257 Canonical kinship, 5, 14–18, 20–21, 23, 25, 36, 57, 87, 89, 106–107, 111–114, 121–123, 134, 136, 139, 144–145, 148–150, 153, 155, 157, 160, 162–163, 172, 178, 213, 214–215, 223–224, 235, 249, 252, 254, 260–266 Capital portion, 69, 157–159, 161, 163, 168, 183, 188, 191–193, 195, 197–200, 203, 206, 221, 226, 232 Capital tithe, 203, 205 Celibacy, 30, 56, 191, 250 Civil war, 36, 45 Choice- and alliance based kinship, see elective- and alliance based kinship Concubine, 23, 75, 157, 168, 173, 191, 236, 255–256 Conveyance, 29, 69–71, 195 Danefæ, 193–194 Divorce, 238 Donation, 21, 29, 58, 60, 68–69, 77, 155, 157, 174, 186–207, 263 Dowry, 23, 156–157, 168–171, 174, 237 Edsöre, 51–52, 84, 103, 127, 130–132, 148, 247 Elective- and alliance based kinship, 11, 13–16, 21, 127, 136, 144, 176, 259, 265 Excommunication, 128, 212

Feud, 125–126, 133, 150, 156 Fledføring, 47, 58, 68, 112–113, 155, 225–233, 264 Forster kins, 12 Frankalmoins, 38, 68, 107, 186, 195–196 Freedmen, 56, 144–145 Fællig, 158, 161, 169, 233 Godchildren, 20 Godfather, 12 Godparents, 20, 254 Grangia, 59 Haughtiness, 152–153 Hauld, 145 Heinous crimes, 39, 127–131, 134, 136, 140, 148, 213, 248, 253, 255 Hemföljd, 169 Hundred, 117, 132 Illegitimate, 23, 41, 43, 168, 236 Incest, 5, 20–21, 113, 121–122, 128, 249–254, 258 Inheritance, 3, 20, 22–23, 36, 46–47, 60, 75, 79, 113, 116–119, 123, 141, 155–183, 197, 207, 218, 223, 236, 243–244, 257, 265 Initial capital, 156 Inquisitorial procedure, 27, 73 Impotent, 238 Ius commune, 2 Ius proprium, 2 Jurors, 69 King Valdemar’s Laws, 48 Kin’s board, 67, 114–116, 119, 263 Landboer, 55 Lendemen, 43, 54, 56 Lombard Law, 18, 182, 210, 250 Lovbydelse, 211, 215–218 Løsning, see freedman Mandhelg, 135 Marriage, 5, 9, 13, 17, 20–23, 25, 30, 40, 99, 121–123, 128, 146, 157, 164–165, 168, 171, 175, 235–258, 261



general index

gift, 157, 170 guardian, 239, 241, 244–245, 247, 249 levirate, 15 Morning gift, 237, 240 Mortis causa, 156, 186, 197 Mosaic law, 249 Måger, 120 Neugilde, 120–121, 230, 242 Odelsret, 169, 211–215, 222–225, 227, 233, 264 Orbodemål, 39, 128 Ordeal, 31, 65, 72–73, 103, 115–116, 131 Outlaw, 129–132, 245, 253–254 Peace, Church’s, 52 council, 90, 94, 132 King’s, 40, 42, 128 Land, 92–93 legislation, 84, 89, 93 oath, 91 of God, 90–94, 253, 260 Peter’s pence, 38 Pre-emption, 169, 216–219, 223–224, 226–227 Prescriptive rights, 216–217 Purchase, 29, 218, 221

281

Roman law, 2, 3, 18, 57, 59–60, 83, 85–86, 88, 98, 125, 172, 178, 181–182, 210, 214, 237–239, 249 Codex, 182 Digest, 95 Institutes of Gaius, 158 Justinians’ Institutes, 159, 181, 183 Novella, 159, 181, 244 Rune stones, 175–176 Sandemænd, 67 Scotatio, 69 Slave see thrall Sodomy, 254 Spiritually kinship, 20 Step kins, 116 Talumän, 117 Testament, 77, 186 Thrall, 56, 144–145, 231 Tribunal, 68, 116 Tribute, 59 Tylftered, 69, 196–197, 217 Viglysning, 121 Vir constant, 238 Wergeld, 3, 5, 10, 74, 105, 112–113, 119, 121, 125–127,129–130, 133–151, 160, 171, 245, 261–262 Will, see testament Årboren, 145