Traces of Danish-Norwegian Law or Legal Norms inNormandy

HelleVOGT

An old and often discussed question is whether or not Nordicinfluence can be traced in Normandy; whether it can be seen inthe long term after the arrival of the Normans, or, if theNorman settlers relatively fast adopted the local customs,whether it did not leave any lasting traces in local culture?This is a question that is very difficult to answer, due to thefact that the written sources from the Nordic countries startto appear first in the late eleventh and early twelfthcenturies; that is, centuries after Rollo and his followerssettled in Normandy.1 This has also been the challenge I facedwhen asked to contribute with a paper discussing the possibleNordic influence on Norman law. In fact, the only thing I cancontribute is to explain why it is so difficult to talk aboutDanish/Scandinavian influence on Norman law. I will do this bygiving a short overview of the legal sources and any traces oflegal norms. Here, I will focus on the legal sources forDenmark and Norway, both because the Swedish laws on the wholedate from around 1300 and are heavily influenced by Danish law,and because it is very unlikely that the Norman settlers camefrom either Sweden or Iceland, the latter of which I have alsoleft out.2 Then, I will look at those instances in Norman lawthat are often taken as signs of Scandinavian influence: Ullac,weresc, hainfara, matrimonium more danico and the peace of the plough.In addition, I would like to emphasise that I am not an experton Norman, Anglo-Saxon or Anglo-Norman legal history, but onNordic legal history. Hence it is in that tradition that Iwrite, and I will treat the Norman laws in a Nordic comparativelight. So, what I present here is an outsider’s view and not acontribution to the Anglo-Norman legal historical research.

1. The oldest Danish charter is from 1085 (known only from a copy), theoldest Norwegian are almost a century younger.2. The sources that mention the homeland of Rollo and his men only talkabout Denmark or Norway.

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1 – The Danish and Norwegian laws

To be able to discuss the eventual influence from Danish-Norwegian law, and why this very easily becomes hypotheticconstruction, a few words should be said about the Danish-Norwegian legal system and the sources. In doing so, I will tryto concentrate on an overall view rather than on specificdetails.3 The Christianization of Scandinavia can be traced as far backas the eighth century, but the proper conversion started firstin the second part of the tenth century when both Danish andNorwegian kings became Christians. We know nothing about whatkind of legal culture existed at the time when the Danish andNorwegian kings and magnates converted or the influence thattheology and canon law had in the transformation period from apagan to a Christian legal culture. However, from the periodwhen the laws were written down, we can clearly see theinfluence from general Christian theology, canon as well asRoman law.4

The ecclesiastical courts’ supremacy in spiritual matters,including marriage, seems to have been fully accepted inDenmark in the second part of the twelfth century, and a littlelater in Norway,5 even though a more mixed system developed in

3. For a general introduction to the Nordic laws in English see Kim Esmarkand Helle Vogt, « Introduction to Part II, Local disputes: Property,justice, and social transactions », in K. Esmark, L. Hermanson, H. J.Orning and H. Vogt (ed.), Disputing strategies in medieval Scandinavia, Leiden/Boston,Brill, 2013, p. 143-160 ; Helle Vogt, The Function of Kinship in Medieval NordicLegislation, Leiden/Boston, Brill, 2010, with regards to transfer of property,inheritance and killings ; for the procedural system see Per Andersen, LegalProcedure and Practice in Medieval Denmark, Leiden/Boston, Brill, 2011, although heonly examines the Danish system.4. For the influence of canon and Roman law in the Danish laws, see thechapters on property, procedure and the household in D. Tamm and H. Vogt(eds.), The Danish medieval laws in English translation, Denmark I: the Laws of Scania, Zealandand Jutland, Routledge, 2015. For the influence of Roman law in the Norwegianlaw see : Tore Iversen, « Property and Land Tenancy in Norwegian MedievalLaws and the European Learned Law », in P. Andersen, D. Tamm and H. Vogt(ed.), How Nordic are the Nordic Medieval Laws? Proceedings from the Carlsberg Conference onMedieval Legal History, 2nd ed., Copenhagen, DJØF, 2011, p. 135-176. 5. In Norway, church jurisdiction in Christian matters was recognized bythe second half of the twelfth century, though it is difficult to establishwhat that meant in practice. Sverre Bagge, « Kirkens jurisdiksjon ikristenrettssaker før 1277 », Historisk Tidsskrift (Norway), 60, 1981, p. 144–145.

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the latter kingdom. Part of the ecclesiastical jurisdiction washandled at the assemblies, possibly because large distancesmade it difficult and costly to get to the episcopal court. In all of the Nordic countries the laws were written in thevernacular, which is quite interesting. All Danish charters,narratives and even royal ordinances were written in Latin,hence it is most likely that a written Danish language withLatin letters was developed in the second half of the twelfthcentury as a tool to for writing down the laws. In Denmark,Latin was only replaced by Danish as the administrativelanguage during a reform around 1425, as one of the last placesin Europe.6 This makes the fact that the laws are written inthe vernacular even more interesting, and underlines that theymust have been written with the purpose of being used by non-learned persons. Unlike Denmark, Norway had a long tradition ofthe kings and secular lords using Old Norse in letters and theChurch also abandoned Latin as their written language ininternal Norwegian affairs quite early.It might be important to stress at this point that when we talkabout Danish and Norwegian law, it is not the same as sayingthat the same rules were in force all over respective kingdom.Both kingdoms comprised of a number of legal provinces thateach had their own law, and the central function of the lawswere – besides providing rules about succession, property andcompensation – to establish which procedure should be used whena claim was raised at the assembly. Each province had a mainassembly thing, in Latin placitum or simply ius.7 The things werepublic assemblies of all free men within a province or acertain jurisdictional district and had a double function,being both court and meeting place for the ‘best men’ of theprovince. At the provincial assemblies new laws were acceptedand new kings elected. The assembly was not a court of law inthe narrow sense: it had no judges, scribes, or legal officialsof its own and it had no executive power. It is best conceivedof as a multifunctional venue for discussion and for any matterof communal concern, including public announcements, donationsand conveyance of land, publication of social status,

Helle Vogt, The Function of Kinship…, op. cit., p. 51-53.6. Anders Leegaard Knudsen, « Testimonia Placiti – Private Charters as PublicInstruments: A Study in Medieval Danish Diplomatics », Archiv für Diplomatik, 57,2011, p. 153-55.7. The charters used placitum, whereas Archbishop Anders Sunesen used ius inLiber legis Scaniae.

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settlement of disputes, and so on. The formal legislativeauthority rested – in theory if not in practice – solely withthe provincial assemblies until the mid-thirteenth century,after which it became the privilege of kings and their councilsor parliaments, i.e. the best men of the realm, lay as well asecclesiastical.Norway seems to have been the first of the Nordic kingdoms toget written laws, perhaps as early as the late eleventhcentury, although none of the provisions in the laws knowntoday can be traced back further than the mid-twelfth centurywith certainty.8 The writing down of the Norwegian provinciallaws as we know them today took place between the 1150s and the1260s.9 The Gulathing Law from covering the western part of thekingdom, is known in a redaction probably from the 1160s, andthe Frostathing Law, in force in northern Norge, one from the1220s. Of the provincial laws from the south-eastern part ofNorway, the Borgarthing and Eidsivathing Laws, only theChristian chapters are preserved. As all the laws have beenthrough several revisions, it is difficult to say whenindividual provisions entered them. Many provisions canundoubtedly be dated to King Magnus Erlingsson’s rule in themid-1160s, a period with strong cooperation between the kingand the church, and the influence from learned law also speaksits clear language about it.10 In the 1260s King Magnus, later

8. Per Norseng, « Lovmaterialet som kilde til tidlig nordisk middelalder »,in G. Karlsson (ed.), Kilderne til den tidlige middelalders historie. Rapporter til den XXnordiske historikerkongres Reykjavik 1987, vol. 1, Reykjavik, 1987, p. 51-52.9. The oldest part of the Norwegian provincial laws could be the Christianchapters. According to the legend, the first church law was given by KingOlav (r. 1015-1028), later Saint Olav, at Moster in 1024. The laws of StOlav got a mythic glance in Norwegian historiography and for a long time itwas believed that part of the Christian chapters stemmed from Olav’s ruleand was heavily influenced by the Anglo-Saxon church – via the four Englishbishops Olav brought with him to Norway. However, the Norwegian historianTorgeir Landro has convincingly argued that the main source for the Churchlaws was Burchard of Worm’s Decretum from around 1000 and later collectionsof canon law, and that there is nothing in the laws that shows a directAnglo-Saxon influence. Furthermore Landro has showed how parts of theChristian chapters – as they are known to us – reflect changes in canon lawrunning to the Liber Extra. Most parts of the Christian laws are from the1160s or younger. For recent research on the church laws, see : TorgeirLandro, Kristenrett og kyrkerett. Borgartingskrstenretten i eit komparativt perspektiv,Universitetet i Bergen, Bergen, 2010.10. It has been suggested that written legislation saw the day of light inthe period of inner peace and prosperity that began during the rule of Olav

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known as Lawmender, issued a redaction process of all theprovincial laws, wherein for instance the kinsmen’s collectiveresponsibility of paying compensation for killings wasabolished, and changes in family and property law wereintroduced. Magnus did not stop with that, in 1274, Norwayreceived a national law, which was based upon new versions ofthe provincial laws. As the most important change one canmention the introduction of a Danish inspired inheritancesystem, wherein all children inherited their parents, whichreplaced an older inheritance system in which the existing ofsons and agnatic kinsmen respectively excluded women andmaternal kinsmen for taking inheritance.The oldest written Danish laws, that we know about for certain,are the church laws from Zealand and Scania, dating from around1171. These laws are examples of particular church lawdeveloped for a special area and are not in conflict with canonlaw in general, even though the laws contain many provisionsabout the grey area between secular and ecclesiastical law,such as succession, donations, marriage, procedure and crimes. Between the beginning and the middle of the thirteenth centurythe century the writing down of laws for each of the threelegal provinces took place: Scania, to the east, in the period1202-1215, Zealand, in the middle, got two laws, Valdemar’s andErik’s from the 1220s and 1240s respectable, and Jutland, tothe west, in 1241.11 Unlike the Norwegian laws, almost all

Kyrre (1066–1093) and ended with the death of Sigurd the Crusader in 1130,after which a long period of civil wars over the royal succession broke outonly to be finally solved in the mid-thirteenth century. The consecrationof a Norwegian archbishopric in either 1152 or 1153 during the Nordicitinerary of the English papal legate Nicholas Breakespear, the future PopeHadrian IV, started a wave of legislation in close cooperation with thearchbishop (Per Norseng, art. cité, p. 48-77 ; Erik Gunnes, « ErkebispØystein og Frostatingsloven », Historisk Tidsskrift (Norway), 5, 1975, p. 109-121 ; Sverre Bagge, From Viking Stronghold to Christian Kingdom. State Formation in Norway,c. 900-1350, Copenhagen, Museum Tusculanum Press, 2010, p. 179-228.11. According to a yearbook of 1170 ‘the law of the Danes were promulgated’Leges Danorum edite sunt. (The yearbook of the Cistercian abbey at Ryd. Danmarksmiddelalderlige annaler, published by E. Kroman, Copenhagen, Selskabet forudgivelse af Kilder til dansk Historie, 1980, p. 166). There has been somedebate about which law this entry refers to, but it could be a lawregulating succession and peace legislation. It has been suggested that itreferred to the Book of Inheritance and non-compensable crimes – i.e.crimes that could not be settled with compensation but led to outlawry –but this law is only known in fifteenth-century manuscripts, and hence itis very difficult to say if it is the original law or a later redaction.

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legal historians agree that most of what is found in the Danishlaws is new rules and expression for an active legislation inthe decades around 1200 rather than the writing down of oldercustoms. For instance, with the firm rules on succession anddonation as well as the regulation of the proprietaryrelationship within the household, it could well be that wehere see a new system replacing older customs where thetestator had more freedom to dispose over who should succeedhim and where the property arrangements within the householdwere not regulated in details.12 Within criminal law, royallegislations show that most of the rules regulating thekinsmen’s collective paying of compensation for killings andthe breaking of the peace were new creations around 1200.13

Denmark unlike Norway did not get a national law during theMiddle Ages. It was not until 1683, during the absolutistmonarchy, that the provincial laws were abolished and thecountry achieved legal unity.14

In Norway very few manuscripts of the laws have survived, andindeed most of them are known only from a single manuscript oronly in fragments. This parsimony is probably due to the lossof relevance of the provincial laws following the promulgationof the National Law in 1274. This contrasts with Denmark, wherethe lack of a national law meant that the provincial laws werecontinuously copied throughout the medieval period. Each of theDanish provincial laws is preserved in more than 100manuscripts, and some were even printed as books in thesixteenth century. The Danish and Norwegian law-books are different from oneanother with regard to both style and content, but they alsoshare important common features. They are all written in thevernacular, and they are quite long and detailed. Many

Michael H. Gelting, « Pope Alexander III and the Danish Law of Inheritance», in P. Andersen, D. Tamm and H. Vogt (eds.), How Nordic…, op. cit., p. 85-114. Gelting suggests that the book on non-compensable crimes could be fromthe 1180s.12. For the introduction of new succession law and the introduction offemale right to inheritance, see Gelting, ibidem, and Helle Vogt, TheFunction…, op. cit., p. 157-178. For the household partnership see : Stig Iuul,Fællig og Hovedlod. Studier over Formueforholdet mellem Ægtefæller i Tiden før Christian V’s DanskeLov, Nyt Nordisk Forlag, Arnold Busck, Copenhagen, 1940.13. Poul Johannes Jørgensen, Manddrabsforbrydelsen i den skaanske Ret fra Valdemartiden,Copenhagen, 1940 ; Helle Vogt, op. cit., p. 125-138.14. The Law of Jutland was in force in the duchy of Schleswig until 1900when it was replaced by the BGB.

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provisions concern legal procedure and the main focus is todeterminate what kind of proof should be used. Others, dealwith issues of inheritance, donation, penal law, regulation ofhousehold-partnerships, transfer of property, sale, mortgage,contracts, and – especially in the Norwegian laws – renting ofland; in the latter of which it is interesting to see how theinfluence from Roman law transforms the whole system. TheDanish laws, on the other hand, contain large sections onmatters related to agriculture and village life, subjects thathad little relevance for rocky Norway.

2 – Matrimonium more danico

This long tour of Danish and Norwegian law show that theScandinavian legal sources stem from a period long after Rolloand his followers left the Danish or Norwegian shores. Thelegal regulations, as they are preserved from the Middle Ages,are centuries younger and influenced by Christianity. If theNormans brought something with them that remained part of theNorman legal culture in the following centuries, it cannot betraced by making a comparison between the Norman and the Nordiclaws. Common features cannot just be taken as signs of commonScandinavian roots as there are so many places in the Nordiclaws where the influence from Christianity or learned law isevident and has led to great changes in family patterns,property and handling of conflicts. Hence, common featurescould just as well be interpreted as loan to or from Normandy,via England, Flanders or Frisia, or, more likely, simplybecause the same answers to similar legal challenges were foundin different places.Another approach to the question of Nordic influence on Normanlaw could be the language. If Nordic words are found in Normanlegal language or the sources have specific references toDanish/Nordic practice, could that be a sign of a common legalroot? Here, one has to be careful not to jump to the conclusionthat if something is called Danish or Norwegian it actuallyreflects a direct connection. To find a parallel for this, wehave to go no further than to modern Danish. Here the oldsaying ‘to live in a Polish manner’, has seen a Renaissance dueto the many recent Polish guest workers. To live in a Polish mannermeans that a man and a woman are living together without being

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married, and it seems quite strange why, in Danishunderstanding, this has become related to Polish livingarrangements. There are no traces, neither now or in the past,that they were more sexually liberal than the Danes, and it isuncertain why the saying came into the Danish language in thenineteenth century and gradually became a standard phrase.Several explanations have been presented; it could either bethat it is a Danish transcription of the English ‘poll’, awoman of easy virtue, or because Polish was used as a synonymfor chaotic and irregular. This concept goes back to the timesof the Polish parliament of 1772-1795, which had a reputationfor being so chaotic that nothing ever was decided.15 The onething everyone seems to agree about is that this phrase hasnothing to do with the Polish being well known for promiscuityin the nineteenth century. With this little modern linguistic story in mind, we turn theattention to the Matrimonium more danico – marriage inDanish/Norse manner or custom.16 It is an expression that evenin modern historical writing is used to describe a type oftraditional marriage in northern Europe that differed from theChristian marriage in not necessarily being monogamous orindissoluble but a union that took on more the character of aconcubinage, yet the offspring was still considered legitimateand had the same right to succeed the father as children bornwithin a Christian wedlock.17

When William of Jumièges wrote his Gesta Normannorum Ducumaround 1070, more than a hundred years after Rollo’s death, heinforms us that both Rollo and his son William Longsword werejoined to a woman more danico. By contrast, Dudo of St. Quentin,who wrote around the turn of the first millennium, calledRollo’s union a connubium.18 I will not go into a long

15. Hjalmer Falk and Alf Torp, Etymologisk Ordbog, Kristiania, 1901-03, polsk.16. On the theory that more danico was an informal alternative to marriageamong the Vikings and early Norman settlers see Besnier’s classical article: Robert Besnier, « Le Mariage en Normandie des origines au XIIIe siècle »,Normannia. Revue trimestrielle, bibliographique et critique, d’histoire de Normandie, 7, vol. 2,1934, p. 86-100.17. See for instance : Eleanor Searle, « Women and the legitimization ofsuccession at the Norman conquest », in R. Allen Brown (ed.), Proceedings ofthe Battle Conference on Anglo-Norman Studies III 1980, Woodbridge, Boydell Press, 1981,p. 161 ; Ditlev Tamm, Retshistorie, Danmark – Europa – globale perspektiver, Copenhagen,DJØF, 2005, p. 128-129.18. Dudone de Sancti Quintini, De moribus et actis primorum Normanniae ducum, J.Lair (ed.), Caen, 1865, II,16, p. 157.

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discussion about more danico, but simply state that it is hardlysurprising that we find this expression in the narratives, notin the legal sources. It is hardly a coincidence that Williamof Jumièges was writing during the papal reform, that is at atime when it became increasingly important that rulers andclerics alike followed proper Christian rules.There is nothing in the sources to indicate that the Normansettlers brought with them a legal custom about concubinagethat differed substantially from what could be found in theCarolingian or Anglo-Saxon world. This is not the same assaying that William made up the expression, it could, just likemy Polish manner, be a popular name for concubinage. In any case,what is clear is that it says more about eleventh-centuryNorman conceptions about the Danes, than it does aboutScandinavian legal inheritance with regards to marriage. Similarly, in the literature from the Abbey of Bec it is oftenmentioned that before the education reform initiated from Bec,the Normans ‘lived in the manner of the Danes’.19 Sally Vaughnhas recently suggested that this should be understood as ametaphor for their lack of spirituality and their barbarousmanners, not that they lived in the same way as their Danishancestors.20 This again indicates that in twelfth-centuryNormandy, Danish did not mean ‘Danish’ as in ‘from Denmark’,but as in ‘non-proper Christians’ – barbarians.

3 – The peace at the plough

More distinctive, and certainly more Scandinavian, is the ducal protection affordedto the plow, wrote Mark Hagger in 2010.21 In Norman history

19. “[U]eterum ritu Danorum uniuersi adhuc uiuebant” Vita Herluini, in A. SapirAbulafia and G. R. Evans (ed.), The Works of Gilbert Crispin, London, The OxfordUniversity Press, 1986, p. 187 ; translated by Sally Vaughn in The Abbey of Becand the Anglo-Norman State, Woodbridge, Boydell Press, 1981, p. 69.20. Sally Vaughn, « “They All Still Lived in the Manner of the Old Danes” »,in Proceedings of Det 32. Tværfaglige Vikingesymposium. Vikinger og Normanner (The Thirty-SecondInterdisciplinary Viking Symposium: Vikings and Normans), Odense University Press, 2014.21. Mark Hagger, « Secular Law and Custom in Ducal Normandy, c. 1000-1400 »,Speculum, 85, 2010, p. 863. Hagger was referring to ullag and hamfare where hepointed out that Scandinavian origins were doubtful. For the peace of theplough, David Bates write that “the essentially Carolingian legacy had beenreinforced in the tenth century by a number of Scandinavian importations.The most notable of these were the protection accorded to agriculturalimplements [no source] and the duke’s power to exile, which could still be

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writing, decisions from church councils and the legal sources,it is possible to find a strong connection between the dukeupholding the peace and the protection of the peasant workingin the field, symbolised with the plough.22 The assumption thatthe connection between peace, the duke, the peasants and theplough has a Scandinavian origin has its roots in Dudo ofSaint-Quentin’s story about Rollo’s prohibition of farmerstaking home the steel blade of the plough, or putting up awatch for cattle or horses, probably because it was the same asimplying that the duke’s ban on theft would not be upheld.23 According to Dudo, the protection of the plough and thelivestock stems from Rollo’s legislation. Dudo did not

described by its Scandinavian name of ullac in a document of c. 1050” (DavidBates, Normandy before 1006, London and New York, Longman, 1982, p. 163).Charles Haskins wrote about the Council of Rouen in 1096 : “the protectionof the farmer at his plow, a bit of old Scandinavian custom, receivedecclesiastical sanction” (Charles Homer Haskins, Norman Institutions,Cambridge, Harvard University Press [Harvard Historical Studies, XXIV], 1918, p.65). 22

. Dudo of St Quentin, History of the Normans, E. Christensen (trans. and ed.),Woodbridge, Boydell Press, 1998, II, 32, p. 52. The Gesta Normannorum ducum ofWilliam of Jumièges, Orderic Vitalis, and Robert of Torigni, E. M. C. Van Houts (trans. anded.), Oxford, Clarendon Press, 1995, vol. 1: William of Jumièges, II, 20,p. 30 ; II, 14 (20), p. 67-68 ; and Orderic Vitalis, V, 20 (at the Councilof Rouen 1096 where the truce of God was enforced), and in the Très anciencoutumier (Coutumiers de Normandie, vol. 1, E.-J. Tardif (ed.), Rouen, 1871,cap. 70, and 15, 16, 35, 53, 58, 59, 66 where the house, the plough and thehighway are specifically mentioned as being under the duke’s protection.See also Frederick Pollock and Frederic William Maitland, The History of EnglishLaw Before the Time of Edward I, vol. 2, Cambridge, Cambridge University Press,1895, p. 454, n. 1. In Denmark there was no general protection of theroads, the only link between being on the road and protection is thatassaults on the way to and from the assembly was considered to be abreaking of the peace. 23. Dudo of St Quentin, op. cit., II, 32, p. 52. The Danish history writerSaxo, who wrote his Deeds of the Danes around the year 1200, has a similar storyabout Frothi the Peacemaker, who ordered golden rings to be hung up allover his kingdom to show that he could uphold the prohibition againsttheft. (Saxo Grammaticus, Gesta Danorum – Danmarkshistorien, vol. 1, Latin text,K. Friis-Jensen (ed.), Det danske Sprog- og Litteraturselskab/Gads Forlag,Copenhagen, 2005, V, 12, 1 and V, 15, 2, p. 348, 356, 358. Also, Bedewrites in his Ecclesiastical History of the English people, that during the reign ofEdwin of Northumbria there was such a perfect peace in the country that awoman could go everywhere unharmed, and he had drinking-vessels hung upevery spring, which were not stolen (Bede, Ecclesiastical History of the English People,B. Colgrave and R.A.B. Mynors (ed.), Oxford, Clarendon Press, 1969, II, 16,p. 192. I thank prof. Stephen Church for this reference.

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specifically say that this protection had Nordic roots, and, asI have showed, it is impossible to determine from either theDanish or the other Nordic sources if such a connection didexist. However, historians like Hagger and others have nottaken Dudo’s story alone as a more distinctive source, and sothey have looked at the Scandinavian sources, or at least atthe work of another scholar who has looked at these sources. Inhis Das Strafrecht der Germanen from 1842, the German legalhistorian Wilhelm E. Wilda pointed out that the Scandinavianconnection to the peace of the plough was found in the Nordiclaws.24 This argument is still accepted by most the legalhistorians, possibly because the linguistic difficulties of theScandinavian laws being written in the vernaculars make itdifficult for Anglophone or Francophone scholars to read thesources. However, if we look at the Scandinavian laws and askwhat they say about the protection of the peasant at theplough, it is clear that the Scandinavian connection is verythin indeed, or, one could be tempted to say, even non-existing.There are only a couple of places in the laws where we find adirect connection between peace, plough, protection andpeasants in the Nordic laws. The first is in the DanishOrdinance on Homicide given by king Knud VI in 1200:§ 6. “If someone will have attacked another with a violent handin his own house, or when he is ploughing, or where he hasestablished himself as a guest after having laid down his spearor his shield. …”25

This Ordinance was shortly afterwards incorporated into the Lawof Scania, but in this law text the plough is gone.Chapter 87: “If a man comes in anger and takes hold of anotherman in his house or where he is in his strips or any otherplace in the fields, if he has put down his spear or his shieldor laid down his saddle and thus is resting, as these cases allare treated equally by the law. …”26

24. Wilhelm Eduard Wilda, Das Strafrecht der Germanen, Halle, C. A. Schwetschkeund Sohn, 1842, p. 245.25. “Si quis alium in domo sua/ manu impecierit uiolenta. uel arantem. uelubi fixa lancea uel posito clipeo. se in hospicium constituerit. quia hectria ad paria iudicantur” (Danmarks gamle Landskabslove [hereafter DgL] vol. I,2, S. Aakjær and E. Kroman (ed.), Det danske Sprog- og Litteraturselskab,Copenhagen, Gyldendals Boghandel, 1933-1961, Tillæg XI, p. 776. Thetranslations from the Danish laws are taken from: Tamm and Vogt op.cit.26. DgL, vol. I, 1, J. Brøndum-Nielsen and S. Aakjær (ed.), p. 66-67.

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The second example is from the Law of Jutland:Book III, chapter 22: “If a man kills another during militaryduty, or at a gathering, or at the assembly, or on the road tothe assembly, or in his own house, or in that district wherethe king dwells, or in a church, or in the churchyard, or in atown, or with a knife, or [kills] a householder who holds hisown plough, …”27 He shall in addition to the killingcompensation to the kinsmen, pay the king 40 marks for breakingthe peace or flee as an outlaw.At first glimpse one could argue that the two examples areindications of the claimed connection, but against that I wouldlike to point to three important features. Firstly, theparagraph in the Law of Jutland reads: a householder, who holds hisown plough. A householder – Danish bonde – in the thirteenthcentury referred to the head of a household, not a peasant ingeneral as the word turns into in the later Middle Ages. Ahouseholder was the head of a household, which meant that hepossessed full legal rights, and in the province of Jutland hewas usually a person who owned the land he cultivated. Thismeant that he was most unlikely to be a tenant-farmer or ahousehold member, because these not only included servants butalso adult sons, sons-in-law and unmarried uncles. This meansthat the provision in the law is not a general protection ofthose who cultivated the land, but rather of those who ownedit.Secondly, the killing of a householder at the plough or aperson working in the fields is only one of several killingsthat led to a forty-mark fine or outlawry; penalties closelyconnected to breaking of the peace. In the twelfth century, thetruce of God and later the peace of God led to the idea thatspecial periods, places and groups of people – those who couldnot defend themselves – were subject to special protection. Forinstance canon 12 of the Second Lateran Council of 1139 reads:…and those engaged in agriculture, as well as their animals with which they till thesoil [the draft animals that pull the plough] … shall at all times besecure.28 It could be suggested that if the inspiration to the27. DgL, vol. II, P. Skautrup (ed.), p. 396-398.28. “[R]ustici euntes et redeuntes, et in agricultura persistentes, etanimalia cum quibus arrant ... omni tempore sint securi.” This canon isalmost identical with canon 8 from the Council of Clermont 1130 and canon10 and 11 from the Council of Reims 1131 (Conciliorum oecumenicorum generaliumquedecreta, G. Alberigo, Kl. Ganzer, A. García y Carcía, F. Lauritzen, A.Melloni, Bologna Instituto per le scienze religiose, 2006-2013). I would

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chapter could be found in canon law and not in old Danishcustoms, that would fit very well with the Scanian examplewhere the plough is mentioned in a piece of royal peaceregulation. However, there is an obstacle to this. The personsincluded in the canonical peace regulation were those who couldnot protect themselves, and while this goes very well with theprovisions in the Law of Scania, the householder, as we meethim in the Law of Jutland, was supposed to defend himself andhis household. Of course one could argue that this explains theplough, because when the householder walked behind the ploughhe was not armed and hence he could not defend himself – anexplanation also given by the Law of Scania, where theprotection is given to all who cultivated the land.Thirdly, as earlier mentioned, the Ordinance of homicide, where wesee the closest connection between peace and the plough, was apiece of new royal legislation, not a collection of oldcustoms, and the influence from canon law and the peace of Godis substantial. The plough is only mentioned twice in a Danishlegal context, and it is not found at all in the Norwegianlaws.29 In all of the Danish laws we also find peaceregulations, and breaking of the peace was a non-compensablecrime that led to the culprit losing his peace and having toleave the province or being killed. A culprit could regaintheir peace not only by paying compensation to the kinsmen ofthe killed man, but also by paying the 40-mark fine to theking. Breaching the peace was defined as killing a man in achurch, in a churchyard, in a house, at the assembly, or afterhaving paid compensation for a killing.30 To sum up, there is very little in the Danish, and nothing inthe Norwegian, laws that strengthen the argument that theprotection of the peasants at the plough had Danish orNorwegian roots. It is more likely that the inspiration forthis came from canon law. In the Trés ancient coutumier, the ploughtogether with the house and the highway are specificallymentioned as falling under the duke’s protection. In Denmark

like to thank prof. em. Martin Brett for sharing his large work of thecouncils and the differences in the manuscript copies with me. 29. Corn peace should be strongly upheld; stealing as much as one ear ofcorn made you a thief who should be brought to the assembly and dealt withaccording to the law. DgL, vol. 1, I, Law of Scania, 184, pp. 148-149.30. DgL, vol. 1, I, Law of Scania, 90, p. 69, vol. V, Erik’s Law of Zealand,1937, II, 9, p. 83-84, vol. VIII, Valdemar’s Law for Zealand, 1941, 53, p.307-308.

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highroads were not specifically protected, only the journey toand from the assembly. The house was under a special peace, butonly as one of several places where killing was regarded as abreach of the peace. If we look for a connection between theDanish and the Norman rules on peace, it seems more likely thatthe protection of the plough, as it is found in the royalordinance, is inspired by Norman law and not the other wayaround. In both cases, however, we would be on firmer ground bylooking to canon law, rather than to secular law, and to thechurch’s peace regulation for inspiration.

4 – Haimfara and ullacTo kill someone in their own house was an unemendable crime, asmentioned above, and it is linked to the crime of hamsocn,which is found in both the Norwegian and English laws and whichin turn is also linked to the Norman haimfara.Haimfara together with ullac appear for the first time in Normansources in a charter from around 1050, as part of a cataloguelisting some of the duke’s powers. Ullac and haimfara arementioned side by side with the Latin terms deriving from theCarolingians.31 The appearance of Scandinavian or Old Englishsounding words in a Norman charter dating from before 1066,makes it a natural assumption that they were brought intoNorman legal language via Rollo and the Scandinavian settlersinstead of as a loan from the English as has been suggested byLucien Musset.32 However, when we look at the Scandinavianwords for house breaking and outlawry, Musset’s explanationstarts to look more convincing. Numerous pages has been writtenabout the Norman hainfara, the Old English hamsocn deriving fromham (home) and socn (searching), and its connection with thesimilar Norwegian, or as most prefer to call it Nordic,hemsokn. Hainfara and hamsocn are considered to be synonyms.Hainfara is a Norman expression that only is found a few timesamong the English material and exclusively in Domesday Book,which was written on behalf of the new Norman rulers. Thiscould indicate that hainfara was linked to the Normans instead ofthe English. 31. David Bates, op. cit., p. 180.32. Lucien Musset, « Autour des modalities juridiques de l’expansionnormande au XIe siècle : le droit d’exil », in Autour du pouvoir ducal normand,Xe-XIIe siècles, L. Musset, J.-M. Bouvris, and J.-M. Maillefer (ed.), Caen[Cahiers des Annales de Normandie, 17], 1985, p. 55-59; Mark Hagger, « SecularLaw… », art. cité, p. 862.

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In the Norwegian laws, hamsokn, the breaking into another’shouse and killing a member of the household, was an infamousdeed (nithingverk), for which the culprit was outlawed and all ofhis possessions, movables as well as land, were confiscated.33

In the Old English laws, hamsocn is first mentioned in KingEdmund’s law concerning blood feud, dated to between 939 and946,34 and here hamsocn was also an unemendable crime. In laterlaws, however, hamsocn was no longer an unemendable crime, buta five pounds crime, while husbryce – housebreaking – wasintroduced as an unemendable crime together with arson, theft,and treason became the name for the violation of the peace.35

In the Danish laws, the term hemæsocn is found only once,namely in Valdemar’s Law for Zealand, dating to the 1220s, in aparagraph about breaking into a ship’s cargo.36 In addition, in1335, the word appears once in a municipal law for the town ofÅbenrå in Schleswig.37 In neither of these places is the termhemæsocn defined. But, in both cases, it was a crime that couldbe compensated for with a minor fine of 3 marks, not the 40-mark fine for breaching the peace.38 The third place hemæsocn isfound in is a fifteenth-century version of an ordinance of ErikV to Northern Jutland in 1284. However, in the older Danishtranslations of this ordinance, those from the fourteenthcentury, the word hemæsocn is not used.39 Since hemæsocn is onlyfound on three occasions in the Danish medieval laws, and onlyonce in the laws from the high Middle Ages, it can by no meansbe seen as a standard legal term for breaking of the peace inthe house. Furthermore, it seems likely that hemæsocn first inthe high Middle Ages came into the Danish language. Actually, Iwould like to argue that no standard legal term existed in the

33. Norges gamle Love indtil 1387, vol. 1, R. Keyser and P. A. Munch (ed.),Christiania, Chr. Gröndahl, 1846, Gulathings-Lov, § 178, p. 66,Frostathings-Lov, IV, 5, p. 158-159.34. Rebecca V. Colman, « Hamsocn: Its Meaning and Significance in EarlyEnglish Law », The American Journal of Legal History, XXV, 1981, p. 100 ; JohannesSteenstrup, Normannerne, Copenhagen, R. Klein, 1882, vol. 4, p. 351.35. Ibid., p. 96-100.36. If any man goes and attack [a man] in his home onboard a ship and breaks into the ship’scargo (DgL, vol. VIII, Valdemar’s Law, ch. LXIIII, p. 318).37. Danmarks gamle købstadslovgivning, vol. 1, Sønderjylland, E. Kroman (ed.),Copenhagen, Rosenkilde og Bagger, 1951, ch. 18, p. 247.38. The 40-mark fine was given to the king for breaching the peace.39. Den danske rigslovgivning indtil 1400, E. Kroman (ed.), Det danske Sprog- oglitteraturselskab, Munksgaard, 1971, here hemæsocn is spelled as hæmmæsøkæn § 3, p. 124

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Danish laws regarding housebreaking. Besides Wilda’s Strafrecht,the Danish hærværki has by most non-Nordic scholars beeninterpreted as the ‘dänische Heimsuchung’40, even though thatinterpretation must be questioned. Hærværki stems from hær thatcan mean ‘army’, ‘gang’ or simply ‘people’ and værk – ‘deed’ or‘crime’. In the older laws, hærværki was a crime committed by noless than five armed men.41 When hærværki, or gang crime, occursin the laws, it is linked to breaking the peace but it does notseem to be of central concern. The focus was rather on findingout who was armed in the company of the person who committed aviolent deed and broke the peace. Such accomplices were stillfined, even though they did not participate in the violence. Itis not until in the Law of Jutland that hærværki can becommitted by only one person. This was clearly a novelty andone that needed a lot of explanation.42 It is possible that the Norman hainfara has Scandinavian roots.Our problem is that the sources cannot really help us becauseof the long timespan between the appearance of the word in aNorman context and its appearance in the Scandinavian laws.Regardless of this, is it not more likely that the term is aNorman invention? It is linked to the attempts by the dukes tobe seen as protectors of the peace and ducal legislation. Bygiving house-breaking a Scandinavian-sounding name, it gave anair of antiquity, and therefore legitimacy, to the dukes’ rightto uphold it and to punish to the peace breakers. The Normanswould certainly not have been the first legislators to claimsomething new to be ‘ab antico’.43 This is of course only aconjecture, and it does not answer the question of whether ornot the inspiration for the term came from the Norwegians, theAnglo-Saxons or maybe even from the Frisian hemseke.As noted above, Hainfara and ullac appear as a pair in the Normancharter that first mentions these words, and consequently it isappropriate to also look at the second term, that is outlawry,in Scandinavia. Here again, a linguistic distinction existedbetween Norway and Denmark. In Norway the word used for thosewho were outside the peace was útlagr, derived from út (out) -and leggja (to lay). An útlagr was hence a person who laid40. Wilhelm Eduard Wilda, Das Strafrecht der Germanen, Halle, 1842, p. 956.41. DgL, Valdemar’s Law, 56, p. 301-311 ; Erik’s Law, II, 16, p. 91-92, Lawof Scania, 87, 218, p. 66-67, 174-175.42. DgL, Law of Jutland, vol. II, II; 28-33, p. 194-202.43. Fritz Kern, « Recth und Verfassung im Mittelalter », Historische Zeitschrift,120, 1919, p. 1-79.

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outside society.44 In Denmark, on the other hand, an outlaw wascalled friðlauss, derived from frið (peace) and lauss (without).That is, a ‘peace-less’ person whom anyone could harm or killwithout being punished or fined. In Old Danish we also find theword ulogh, from u (non) and logh (law), which is perhaps bestunderstood as illegal.45 Here, there is no connection to theterm outlaw, unlike in the Old English use of the word.Instead, it has the same meaning as the Old English unlagu,which also means ‘illegal’. In the Anglo-Saxon laws, the wordutlag, ut (out) and lag (law) i.e. ‘outside the law’, is usedfor an outlaw, as the modern English word also indicates. It iscommonly accepted among scholars that it is a Scandinavianloanword, but when útlagr was introduced into the Englishlanguage it became associated with law instead of with beingoutside the law.46 Not being a philologist, I will notquestion this assumption, however I cannot help but finding ita bit strange that the English out of two different Old Norsewords chose to create a new term for outlawry, when they hadtwo Scandinavian terms that they could have borrowed from. Theterm friðlaus, similar to the Danish – and Frisian for thatmatter – for outlawry, is also found in Old English inCynewolf’s poem Elene. Although this poem cannot be dated more44. Sara M. Pons-Sanz, Norse-Derived Vocalulary in Late Old English Texts. Wulfstan’s Worj acase Study, Odense, Uni. Press of Southern Denmark, 2007, p. 80. Whilst theNorwegian historian Anne Irene Riisøy argues that it comes from beingoutside the law (Anne Irene Riisøy, « Outlawry: From Western Norway toEngland », in S. Brink and L. Collinson (ed.), New Approaches to Early Law inScandinavia, Turnhout, Brepols, 2014, p. 111). Note that Riisøy does notdiscuss Pons-Sanz’s thorough philological study of the origin anddevelopment of the word in the Nordic languages. Jenny Benham has recentlymade an interesting comparison of peace and outlawry in Denmark and Englandrespectably (Jenny Benham, « Law, Language and Crime in Denmark andEngland: A Comparative Approach », in P. Andersen, K. Salonen, H. Sigh andH. Vogt (ed.), How Nordic are the Nordic Medieval Laws? – Ten Years Later. Proceedings of theTenth Carlsberg Academy Conference on Medieval Legal History 2013, Copenhagen, DJØF, p.2014145-160).45. DgL, vol. I, 1, Law of Scania, 66, p. 41, hva sum ulohum suarær (svearsilligal). Johannes Steenstrup, op. cit., p. 24.46. Elisabeth van Houts has suggested that it was a loanword from Icelandicthat came into the English language via Scandinavian mercenaries if theycommitted crimes that were banned with a familiar term (Elisabeth vanHouts, « The Vocabulary of Exile and Outlawry in the North Sea Area aroundthe First Millennium », in L. Napran and E. van Houts (ed.), Exile in the MiddleAges. Selected Proceedings from the International Medieval Congress, Turnhout, Brepols,2003, p. 13-28. Anne Irene Riisøy has convincingly argued that it insteadwas a Norwegian loanword (art. cité, p. 101-129).

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precisely than between 750 and the mid-tenth century, it isclear that in the poem it is not used in a legal context.Friðlaus appears only once in a legal connection, in Knud theGreat’s legislation and then it seems to have been takendirectly from Danish and the term was, in any case, only inforce in the Danelaw.47

So, what can we conclude about the origin of the Norman ullac?Not very much I’m afraid. We could, of course, conclude that ifullac was a direct loan from the Scandinavian settlers, then itis very unlikely that the Normans were Danes: why would theyhave chosen a non-Danish term, or for that matter a term thatwas not Old Norse? (That is if we assume that the Nordiclanguages did not change in the meantime, of course!) Instead,the Normans chose one that is much closer to the Old Englishconcept of outlawry. I do not have an answer to this question,but I think it is possible to suggest that instead of searchingfor a direct source for ullac we should see it as a Normaninvention inspired by, but not borrowed from, neighbouringlegal terminology.

5 – Wreck

In Normandy the duke did not have a general foreshore right.Usually, everything that was washed ashore belonged to the lordwho held the land in fief,48 if the original owner did not comeand prove his right within a year and a day.49 Yet the seashoreowner’s right was not complete, as the duke could, by right ofhis ancient ducal dignity,50 take the most precious things that werewashed ashore, such as hunting animals, ivory, precious furs,new robes and silk. Added to that, he also had the rights toall piscem ad varballum sturgeons and in practice all whales over a

47. Knud’s Winchester Code, II,15a, F. Lieberman (ed.), Die Gesetze derAngelsachsen, vol. 1, Halle, 1903, p. 318-319 ; Johannes Steenstrup, op. cit.,p. 252.48. Grand Coutumier de Normandie, The laws and customs by which the duchy of Normandy isruled, J. A. Everard (ed. and trans), St Helier, Jersey and Guernsey LawReview Ltd Royal Court House, 2009, ch. 17, p. 76-81.49. The same rule was found in the Danish laws ; goods or inheritance shouldbe claimed within dagh ok iamlangæ, which actually meant a day and an equallylong period of time [iamlinge]: a time period of one year and six weeks.50. “[A]ntiquissima ducatus dignitate” (Grand Coutumier de Normandie, op. cit. ch.17, p. 78-79).

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certain value (crassus piscio).51 Things that had been washedashore were called weresc, a word that is similar to the modernEnglish ‘wreck’. ‘Wreck’ is a word that first came into theEnglish language in the thirteenth century, whilst the termwræck is found in the Danish provincial laws, and the term rekæin the Norwegian provincial laws and in the Icelandic laws.Wræck was used in the Danish laws as a common term for allthings that drifted and thereby belonged to the king, includingwhales, since: "The king owns all foreshores and that which noman owns also belongs to the king."52 By contrast, the wordrekæ in Norwegian and Icelandic laws was only used aboutshipwrecks and wreckage, not for whales and precious fish.53

Could this ancient ducal dignity refer to an ancient right to werescthat went back to a Danish custom that the Normans had broughtwith them? The Danish king’s right to wreck as royal regaliacannot be traced further back than to around 1200. However,most historians agree that the royal regales, including theright to all those things which nobody else owned, wereestablished in the twelfth century.54

There were two different kinds of wræck in the Danish laws:whales, and goods from wrecked ships. With regards to whalesand sturgeons the general rule was that the finder shouldreport it to the king's local official, and that the finder wasallowed to take what he or his means of transportation – horse,wagon or ship – could carry.55 In relation to cargo fromwrecked ships, the law stated that as long as the owner himselfor with the help of others, for either good words or paymentcould save his possessions when a ship was wrecked, then theking’s official was not entitled to take the possessions. But,as soon as the owner gave up saving the cargo, the king's

51. Ibid., ch, 17, p. 81.52. DgL, Law of Jutland, III, 61, p. 484.53. Norges gamle Love indtil 1387, R. Keyser and P. A. Munch (ed.), Christiania,1846, vol. 1, Ældre Gulatingslov, 146, p. 58 ; Grágás. Islændernes Lovbog iFristatens Tid. Udgivet efter det kongelige Bibliotheks Haandskrift, V. Finsen (ed),Copenhagen, 1870, Grágás, 4. del: Jordløsningsafsnittet, § 218, p. 132–133.54. Ole Fenger, « Kongelev og krongods », Historisk Tidsskrift (Danish), 100, ser.2, 2000, p. 275-276. The Swedish archaeologist Anders Andrén has arguedthat the royal regales go back to the eleventh century (Anders Andrén,« Städer och kungamakt – en studie I Danmarks politiska geografi före 1230», Scandia, 49, 1983, p. 31-76 ; ID, Den urbana scenen. Städer och samhälle i detmedeltida Danmark, Malmø, CWK Gleerup, 1985, p. 74-77.55. DgL Law of Scania, 164, p. 131-132 ; Erik’s Law, II, 62, p. 354-356 ;Law of Jutland III, 62, p. 485-488.

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official gained the right to them.56 This privilege had clearlybeen misused over the years, as later legislation states thatif the king's official illegally took wræck he would be finedand lose his office.57

In the Norwegian laws, provisions about stranded whales canalso be found. However, while it is called wreck in Denmark andNormandy, the Norwegian laws simply talk about whales (hval). Awhale up to a certain size belonged to the finder, whilstbigger whales should be shared with the king and the owner andthe seashore – the king did not have a general foreshore rightin Norway. The portion that the finder could take with himdepended on his status; the higher status the greater part.This is unlike the Danish where the amount depended on themeasure of transportation, as stated above. The differencebetween the Danish and the Norwegian rules in this respectcould be explained by the Danish laws having only two types ofpersons, free and unfree, while the Norwegian laws had severalclasses of free men. In the Gulating Law there is a chapter on shipwreck. Goodswashed ashore belonged to the owner, if he could prove hispossession with witnesses, and otherwise to the owner of theseashore. It is not surprising that there is much more focus onshipwrecks in the Danish than the Norwegian laws. The Danishwaters are the gate from the North Sea to the Baltic Sea and upuntil modern times, stranding and the right to wreck has been ahuge source of income for the crown, its local representatives,and various criminal groups that have made fortunes fromstranding.And now to the question about whether or not the Norman duke’sright to weresc goes back to the Nordic settlers, or, morelikely Danish settlers, since the Norwegian rekæ has adifferent meaning than the Norman? The terminology and thelikeness in the provisions could certainly indicate aconnection to Denmark, but what is in a term? Both the Danishand the Norman sources that first mention wreck are from aroundthe same time, centuries after Rollo had landed on the shoresof Normandy, and the king’s right to wræck in Denmark probablyonly dates back to the early twelfth century. Hence, the Normaninvaders could not have brought the idea of the seashore rights

56. DgL Law of Scania, 165, p. 132-133 ; Erik’s Law, III, 58, 60-61, p. 349-353 ; Law of Jutland, III, 63, p. 489-491.57. DgL Law of Jutland, III, 63, p. 489-491.

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with them, and especially the king’s right to whales andprecious fish, the latter of which is not known in eitherEngland or France. I will not reject the possibility that thereis a direct connection, but it is not easy to explain away thelack of sources? All things considered, I would suggest that amore likely explanation is that the prince's right to 'wreck'was a newer twelfth-century invention. Where it came from isimpossible to say. The Nordic-sounding word could indicate thatit was of Danish origin, but then again, as suggested above, aNordic-sounding word could also be a strategy from the dukes todisguise a new privilege by claiming that it had ancient butforgotten roots. The reason for choosing a Nordic-sounding wordcould also be that there was no good Latin alternative rootedin Carolingian or Roman law. In the Latin translation of theLaw of Jutland from around 1300 wræck is not translated, and inAnders Sunesen’s Latin explanation of the Law of Scania he doesnot introduce a Latin legal term, but merely explains theking’s foreshore right.

*

To summarise. The Scandinavian written sources, legal as wellas narrative, stem from a time centuries after the Normans leftthe Danish or Norwegian shores. Therefore, every attempt tofind Nordic roots for Norman legal practices will be veryhypothetic – unless you of course use archaeological material.So even when I take all the maybes, and probabilities, and the wecannot really knows into consideration, it would hardly be correct tothink in terms of an initially strong Scandinavian impact within the legalarea.58 Whether or not one agrees with David Bates about thepresence of a strong Scandinavian influence in Normandy, I hopeto have shown that within the legal area it still have to beproved, and the process of doing that will soon lead into veryhypothetic constructions. I have argued that it really does notmake any sense to try to track the legal concepts, terms andideas back to an ‘Urquelle’ – Nordic, Anglo-Saxon or otherwise.Instead, I suggest that it would be much more fruitful to makecomparative studies of Norman law as part of larger legal58. David Bates, Normandy..., op. cit., p. 22.

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cultures from the same period; on one side the North Sea area,and on the other the Carolingian/French tradition.

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