Crime and punishment Viking style

One of the most famous killings in the sagas is the burning of Njal in his home

One of the most famous killings in the sagas is the burning of Njal in his home

So your brother’s been deliberately murdered by one of his neighbors. And you’re both farmers in Viking Age Iceland, around the year 1000. What do you do?

In the United States today, you’d go to the police, lay out your reasons for assuming that the neighbor did the deed, hope the police can find enough evidence to charge the neighbor, have the neighbor tried, and hope there is enough evidence to convict the neighbor. If convicted of murder, the neighbor will spend decades in prison, unless unlucky enough to live in one of the states that still executes murderers. And that’s that.

But, no, you’re in Viking Age Iceland. There are no police. There are no prisons. So what happens instead?

Gudrun greets her husband's slayers with a smile, but she'll get her revenge!

Gudrun greets her husband’s slayers with a smile, but she’ll get her revenge!

Well, first off, believe it or not, your brother’s neighbor publicly proclaimed he was responsible for the killing. Why? Because then it isn’t murder. Instead, it’s manslaughter. What’s the difference under Icelandic law? The killer can pay compensation, in silver or something valued in silver, to settle a blood-debt incurred by manslaughter. That option isn’t officially open to him if he conceals the killing, a dishonorable course. The killer risks being outlawed, not a trivial penalty.

You think about collecting your farm hands and exacting revenge by killing your brother’s killer. It would be fair, it would be just. But then his brother might summon up a band to come kill you!

So you go to your chieftain, your godi, instead. And you tell him what happened and why you think it happened. You’ve got a clear case: the neighbor announced the killing, and there was a well-known property dispute over some woods, a valuable property. Certainly the godi will see the justice in your case, summon up all his thingmen (supporters) and help you kill your brother’s killer.

Not so fast. Your godi has his own issues. Sure, he wants to retain your loyalty. And he’d like a reputation for justice and wisdom. But that’s one of the reasons he doesn’t immediately offer to help you kill the guilty man. He doesn’t want a blood feud on his hands that could escalate and cost a lot of people their lives, including more of his supporters, maybe even him. And there is credit to be gained if he can settle this matter in your favor but without bloodshed.

That’s not his only concern. Just because you have the facts in your favor doesn’t mean he can successfully prosecute the case. Your brother’s killer has the support of several allied godar (plural of “godi”). Your godi has to consider which other godar he can count on for support. He might eventually decide he can’t support you, in which case you’re out of luck, at least for now.

The Law Rock where the Althing met

The Law Rock where the Althing met

But let’s say he supports you. You don’t get a hearing immediately. It has to wait until when the quarter court meets at the Althing, the annual Icelandic assembly, in the summer. (They are called quarter courts because Iceland is divided into four quarters for legal purposes.) In the meantime, your side and his side meet several times. There is tremendous pressure put on both of you to settle, though always to the advantage of your side, of course. Meanwhile, everyone is also taking precautions against the other side making a violent move.

You are burning with vengeance, and consider your brother’s title to the woods unassailable in law, so you are looking for revenge and refuse compensation, no matter how much money the killer and his godi offer. Especially because they refuse to even discuss the woods. But your godi is regretting his role in this affair. He’s going to have to use a lot of influence on your behalf, and he makes it clear that he won’t support you any further without something of value from you. Ultimately, he proposes to fight for your rights, but only if you sign over the woods to him when you win. It sounds like a bum deal, but your godi points out that your brother wasn’t able to maintain his rights to that property, and you, who live even farther away, won’t be able to do so either without help. So you agree with a witnessed handshake.

Luckily for you, the killer’s alliance of godar breaks up over other issues, conflicts among them, and he comes to the Althing with very limited support. The godar name the farmers and other men who will hear the evidence and pass judgment, and with his allies, your godi is able to stack the quarter court’s panel with quite a few people favorable to your cause.

No one wants a fight at the Althing, but sometimes things get out of hand

No one wants a fight at the Althing, but sometimes things get out of hand

The panel at the quarter court hears the evidence presented and witnesses called by both sides, deliberates, and delivers a judgment, both verdict and terms of settlement. It sounds nice and modern. But the panel could be influenced by the political power mustered by the very visible presence of godar and their thingmen supporting each side. No one wants to deliver a verdict that will tear open the Althing with violence.

But you have the best of both worlds: a solid case, and the weight of political influence. The panel decides in your favor. Better yet, the sentence they pronounce on the killer is the maximum that could be inflicted: the greater outlawry. This means that your brother’s killer loses all of his property, and all of his rights. No one can help him, and anyone is free to kill him.

You’re surprised. You figured the best you could hope for was to have him sentenced to the lesser outlawry, which also involves confiscation of his property, but only a three-year exile out of the country instead of forfeiting his life. Your godi notices your surprise, leans over, and whispers in your ear, “The man’s killed before, and while those cases were settled, he’d developed quite the reputation of a trouble-causer. People pretty much agreed that Iceland’s best rid of him for good.”

Grettir survived almost 20 years as an outlaw, but then he was tough enough to put down an Icelandic zombie

Grettir survived almost 20 years as an outlaw, but then he was tough enough to put down an Icelandic zombie

The killer flees the Althing, but is killed by your widowed sister-in-law’s family who track him down in the desolate interior. Your godi assists you in taking possession of your brother’s farm, while he gladly takes the disputed woods as your own. You arrange a good marriage between your brother’s eldest son and the daughter of your godi, and settle them and the rest of your brother’s family on the farm you previously occupied.

Everyone’s happy . . . until the killer’s son, thirsting for revenge, kills you fifteen years later. But that’s another story.

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The Norse gods: all too human

Ragnarok: the world is being destroyed by fire (By Emil Doepler (1855-1922), c. 1905)

Ragnarok: the world is being destroyed by fire
(By Emil Doepler (1855-1922), c. 1905)

I grew up with Edith Hamilton’s account in Mythology (1940/42) as my source on the Norse gods and their world. To judge from Hamilton’s account, the mythology portrayed a dreadful world in which the Norse gods struggled to survive, knowing they were doomed at Ragnarök. It seemed to me to be a humorless world developed by grim people.

So when I turned to the Eddas, I was pleasantly surprised to find out just how much humor they contained. The Vikings could laugh at their gods! And in doing so, they could laugh at themselves.

Thor doing what he does best (By Marten Eskil Winge (1825-1896), 1872)

Thor doing what he does best
(By Marten Eskil Winge (1825-1896), 1872)

Take Thor, the best known Norse god, the wielder of the mighty hammer Mjöllnir. Ever hear the expression, “if all you’ve got is a hammer, everything looks like a nail?” Well, Thor has a hammer, so to him, everything looks like a nail. He instinctively reaches for his hammer to bash in someone’s skull any time he’s faced with a problem. Far from being the long-winded hero of Marvel comics, the mythological Thor is an amusing combination of masculine pride and limited intellect. It shows.

One Viking practice was to engage in flyting: a contest of exchanging insults in ritual fashion. One of the masters of flyting is Loki, the trickster figure of Norse mythology, born of a giant, but blood brother to Odin, chief of the gods. At one memorable feast, Loki takes on most of the Norse gods, insulting their courage, fighting ability, and sexuality. He’s fairly crude, but quite inventive. For example, he accuses Odin of letting the weaker side win in battle so his Valkyries can claim the braver men after they are slain. He accuses Frigg, Odin’s wife, of incestuous relations with Odin’s two brothers. Those are just a few of his accusations.

Thor isn’t present at the beginning, but comes in just about the time Loki brags about seducing the goddess Sif, Thor’s wife! Well, Thor isn’t going to take that lying down, so he calls Loki a homosexual (in terms that were specifically insulting in Viking culture) and threatens to kill him with Mjöllnir. Loki waxes creative, telling one embarrassing story about Thor after another. But all Thor can do is just repeat his initial insult and threat. He sounds like a broken record.

Doesn't Thor look pretty as a bride? (By E. Boyd Smith (1860-1943), 1902)

Doesn’t Thor look pretty as a bride?
(By E. Boyd Smith (1860-1943), 1902)

Oh, those embarrassing stories? For some reason, Loki skips what I think is the funniest one. One day, Thor wakes up to find his hammer gone. (It’s hard to ignore the Freudian implications.) It turns out a giant has stolen and hidden it. The giant won’t give it back unless Freyja, the goddess of love, marries him. So to recover his hammer, Thor has to impersonate Freyja by dressing up as a bride and pretending to marry the giant. As a bride, Thor is not a smashing success. He eats and drinks so much at the wedding feast that Loki has to apologize for him. Thor wears a veil to disguise his looks, but when the giant peeps beneath it, Thor is so enraged that his eyes glare in a distinctly unfeminine way. Thinking quickly, Loki again offers an apologetic explanation, saying “Freyja” hasn’t been able to sleep for eight nights thinking about her future husband.

The story ends as you might expect. Thor gets his hammer back, and proceeds to treat the giants like nails. His would-be husband dies. So do a lot of other giants.

Odin's not going to get his way this time! (By Lorenz Frolich (1820-1908), 1895

Odin’s not going to get his way this time!
(By Lorenz Frolich (1820-1908), 1895)

Odin, as befits the chief god, is usually depicted as wiser. He sacrifices himself on Yggdrasil, the World Tree, to obtain the magical knowledge of runes. He gives an eye to drink from Mimir’s well to acquire wisdom. And he uses lies, trickery, and magic to seduce women all the time. Some wise leader! He brags about it, even. When he and Thor get into a flyting, Thor invariably talks about what he’s done fighting, while Odin prefers to relate his sexual conquests.

Now you might think, “Men!” And you’d be right. Male gods brag about their sex lives, while accusing females of being unfaithful or promiscuous. Just like real men have done.* And that’s the point. The Norse gods were all too human in character. And in laughing at them, the Vikings laughed at themselves. They could even admit, sometimes, that if women were fickle toward men, men were just as fickle and deceitful to women. After making these observations, the speaker in the Hávámál (one of the poems in the Elder Edda) sums it up by saying love makes fools of us all. Even Norse gods.

* No, that’s not an observation on contemporary politics. Leave it alone.

The Last Viking

A glorified portrait of Harald Hardrada (credit: Wikipedia/Colin Smith)

A glorified portrait of Harald Hardrada
(credit: Wikipedia/Colin Smith)

His name was Harald, Harald Sigurdsson if you want to know his father, but he’s gone down in history as Harald Hardrada, “Harold the Hard-Ruler” we would say in English. He was King of Norway for twenty years, from 1046 until 1066, until he died in battle on foreign soil. And he is often considered “the last of the Vikings.” To what does he owe this dubious honor? He spent most of his life in battle, whether as a mercenary captain, a raiding Viking, or a warrior-king.

In the 11th century, the Viking Era was drawing to a close. Long gone were the adventuresome raids of individual chieftains. The enemies of the Vikings had organized into powerful states to oppose them, and the Vikings themselves were gradually consolidating into the kingdoms of Denmark, Norway, Sweden, and the Icelandic republic. But the bounds of these kingdoms fluctuated, and it was not beyond the power of any one king to dream of conquering another realm. Though their own grasp on power was tenuous, for while it was felt that royal ancestry was necessary to take the throne, it did not follow that male primogeniture (succession by the eldest son) was the rule. Kingship was held by those who could take it and hold it.

Canute was so great that some sycophants thought he could stop the tides!

Canute was so great that some sycophants thought he could stop the tides!

Harald was born around the year 1015. Later accounts would say he was descended from the legendary King Harald Finehair, but his real claim to the throne was through his half-brother, St. Olaf, King of Norway from 1015 to 1028. Olaf had opposed Danish designs to conquer Norway and rule through native earls. Although initially successful, he was driven out of the country by Danish King Canute the Great and killed in 1030. Most of the dynastic claimants to the Norwegian throne took refuge in the court of Yaroslav the Great, the dominant ruler of Russia, and himself of Viking descent. Harald was among them.

He didn’t stay in Russia long. Instead, he went south to the great city of Constantinople, capital of the Byzantine Empire, still one of the richest and most powerful states in the Mediterranean world. There he became the commander of the Varangian Guard, the Scandinavians who served the Byzantine Emperor as an elite military unit. He became famous for his courage, success in battle, opportunistic dishonesty, and the wealth he accumulated from fighting, much of which probably belonged to the Emperor.

Sometime around the year 1042, he came into conflict with the Byzantine Emperor and court. Maybe, as legend would have it, he fell in love with a Byzantine princess, and the Emperor refused his suit for her hand. Maybe the Emperor found out about how much treasure Harald had amassed for himself. In either case, Harald was imprisoned, escaped, and fled to Russia, where he had thoughtfully sent most of his wealth to Yaroslav for safe-keeping.

Harald's Russian wife. There are varying accounts about whether he left her behind when he went to Norway or became a bigamist once he became king.

Harald’s Russian wife. There are varying accounts about whether he left her behind when he went to Norway or became a bigamist once he became king.

Once he arrived in Russia, Harald found out his uncle Magnus, “the Good,” had returned to Norway and retaken the throne there in 1035. Indeed, Magnus had just managed to make himself King of Denmark in 1042, after the last of Canute’s sons had died. Harald probably kicked himself for not thinking of this first. So he married one of Yaroslav’s daughters  and headed west, to see what he could grab for himself in Scandinavia.

When he arrived, the situation wasn’t looking too good. Magnus controlled both Norway and Denmark, and the only trouble he was getting was from Swein Estridsson, who had once been Magnus’s right-hand man in Denmark but now claimed the throne there for himself. Ever the opportunist, Harald joined forces with Swein and the King of Sweden to try to topple Magnus.

Facing both Swein and Harald, Magnus decided to make peace with Harald, who was his nephew after all. In 1046, Magnus offered to give Harald half of Norway if Harald gave Magnus half the treasure he had accumulated.  Harald agreed. It was a good deal, because Magnus died the next year, making Harald sole King of Norway, and getting back Magnus’s share of the treasure, to boot.

Harald helped convert Norway to a money economy by minting his own coins

Harald helped convert Norway to a money economy by minting his own coins

Harald became a strong king of Norway, which is to say that most people became terrified of him. He lived up to his reputation for savagery and duplicity that he had earned as commander of the Varangian Guard. For example, to make temporary peace with his domestic enemies on one occasion, he pardoned an exiled man . . . and then arranged for the man to get killed in battle against the Danes.

Harald also made incessant warfare on Swein, who had become King of Denmark upon Magnus’s death. Harald felt he was owed all the lands claimed by Magnus, including Denmark. Give Harald credit: he typically won his battles and staged successful raids on Denmark. But for all the trouble he made, Harald couldn’t conquer Denmark. The nobles and the people backed Swein, and Harald’s savagery didn’t persuade them otherwise. So around 1064 or 1065, he made peace with Swein, leaving Swein in possession of Denmark.

That might have been the end of Harald’s fighting career. He was about fifty, and while strong and tall, that was an old age to reach in the 11th century. But fighting had been Harald’s life. He was probably itching for an opportunity.

He got one. Tostig, the deposed Earl of Northumberland in England, came to him with a plan to invade and conquer England. Harald liked the idea. He recalled that Magnus had claimed all of Canute the Great’s realm, and that had included England. Tostig also promised he could get many nobles to rise up against the newly crowned English king, Harold Godwinson (who, incidentally, was Tostig’s brother, but they didn’t get along).

So Harald went to war, and sailed to England. He easily defeated Tostig’s successor and the Earl of Mercia at Fulford on September 20, 1066. York surrendered on September 24. The north of England was his!

And then the next day, to the utter astonishment of Harald and Tostig, King Harold Godwinson appeared with the main English army, long before anyone expected him in the north. Godwinson had marched 200 miles in four days! The Norwegians thought themselves outnumbered, and Tostig urged that they fall back a few miles to rejoin the troops stationed by their ships, but Harald would not retreat, and instead ordered riders to fetch the reinforcements.

Harald (center) charging into battle for the last time

Harald (center) charging into battle for the last time

Battle was joined at Stamford Bridge. The story has it that a single Viking held the bridge and slaughtered forty English soldiers before he was killed, but that was the last good news for the Norwegians. The English charged across the bridge, engaged their enemy, and broke the Norwegians’ shield wall. In a do-or-die effort, Harald, big man that he was, charged into battle himself where the line had been pierced. But it was not enough. He died there.

The Norwegians were defeated. The co-Earls of Orkney gathered up the sad remains of the army the next day and sailed away in peace. Harold Godwinson let them go, provided they agreed never to return. He had other concerns, another invasion to repel, in fact. Although he didn’t know it, he would soon lose his crown, his kingdom, and his life.

Harald Hardrada’s body was buried on the battlefield at Stamford Bridge. The next year, 1067, it was exhumed and moved back to Norway for internment in Trondheim.

Harald was succeeded on the throne by his son Magnus, who died within three years, and his son Olaf. Olaf reigned for about 26 years. They were good years for Norway, peaceful years. For Olaf wasn’t the Viking king his father had been. No, those times were over. The Viking Age was done.

My favorite Viking saga tragedy

The Icelandic sagas were set down mostly in the 13th century. They frequently refer to events many centuries in the past. While they seem to be straightforward historical accounts, and often involve actual people identified in other sources, it is clear that the accounts have often been fictionalized in order to improve the storytelling. Yet, oddly to the modern eye, they tend to be very weak in explaining the motivations of their characters. So let me offer you my interpretation of the motivations of the characters in my favorite Viking saga story.

A 1654 map of the Orkneys

A 1654 map of the Orkneys

The story comes from the Orkneyinga saga, sometimes called the History of the Earls of Orkney. The Orkneys are an island archipelago north of Scotland that was settled by Viking during the 9th century (or earlier). Although they owed obedience to the Kings of Norway, in practice the Earls were often autonomous rulers, whose realm could extend as far north as the Shetland Islands, as far south as the Isle of Man in the Irish Sea, and onto Caithness and Sutherland on the Scottish mainland.

This story begins with two legendary figures, Erik Bloodaxe and Thorfinn Skullsplitter. Erik was the favorite son of King Harold Finehair of Norway, and became king after his father’s retirement in the early 930s. According to legend, he was so fierce a ruler that his subjects deposed him in favor of a brother and drove him out of the realm after only a few years. Fleeing abroad, Erik began a career of raiding that would make his name infamous.

No, Thorfinn didn't really look like this.

No, Thorfinn didn’t really look like this.

But Erik understood that he needed a home base where he could take his plunder and keep his family safe. He thought of the Orkney Islands, Officially, they were ruled by the three sons of Earl Torf-Einar: Arnkel, Erlend, and Thorfinn. But these three young men proved no match for the bloodthirsty Erik. He took over the islands in 937 as his new kingdom. And he took the three sons of Torf-Einar with him on raids. Originally, they were probably hostages, but over time, they became Erik’s collaborators. Indeed, this is probably when Thorfinn acquired the nickname “Skullsplitter.”

Still Erik was not satisfied, and a few years later took over the Viking kingdom of Jorvik in the north of England. There he proved to be such a nuisance that the English mobilized against him, defeated him in 954, and slew him as he tried to flee. Arnkel and Erlend were with him, and they died, too.

Gunnhild is informed of Erik's death, as imagined in 1899

Gunnhild is informed of Erik’s death, as imagined in 1899

Erik’s widow, the formidable Queen Gunnhild, returned to Orkney with her two sons. Like Erik, they found the island earldom too limited for their ambitions. They cast about for some way to regain power in Norway. The King of Denmark offered them help in 955 and they departed from Orkney, leaving behind the remaining son of Torf-Einar, Thorfinn Skullsplitter, as the sole ruler of Orkney. But to solidify the bonds between the two families, Gunnhild married off her daughter Ragnhild to Thorfinn’s son Arnfinn. This union was to have dire consequences.

Thorfinn Skullsplitter now ruled alone as Earl of Orkney for many years. They were good years, good for the realm and good for Thorfinn, whose wife had borne him five sons and two daughters. And then Thorfinn died peacefully in his bed. As expected, his eldest son Arnfinn succeeded him as earl, with Ragnhild at his side. The future looked bright for the sons of Thorfinn.

In good years, the sheep in the Orkneys multiply

In good years, the sheep in the Orkneys multiply (Credit: Wikipedia/Liz Burke)

Ah, but there was a serpent in this paradise, and her name was Ragnhild. She was too much her parents’ daughter, strong and lusty. Perhaps she wanted real political power, more than Arnfinn would give her. Perhaps she was hard to please in bed, and that was more than Arnfinn could give her. So she decided Arnfinn had to die. Perhaps she suggested to Arnfinn’s brother Havard that he could have the throne if he murdered his brother. Perhaps she seduced Havard, too. Whatever the case, Arnfinn was killed. Havard took the throne and took his brother’s widow to wife, too. No doubt people suspected he had killed his brother, but they weren’t sure. In the good years of harvest that followed, people chose to forget just how Havard came to power.

But Ragnhild wasn’t satisfied. Considering what happened next, one suspects Havard had failed her as a husband and lover, much as his brother might have. For while Havard still had at least three more younger brothers living, it was not to them that she turned. No, instead she robbed the cradle by making eyes at one of Havard’s nephews! This was Einar “Buttered-Bread,” so called to distinguish him from his cousin Einar “Hard-Mouth.”

Ragnhild’s technique played on Einar’s vanity. She praised him as a good man who would make an excellent ruler. She made it clear that a woman would consider herself lucky to marry Einar. In case he was a little slow on the uptake, she added that she didn’t expect her marriage to Havard to last much longer. Einar got the point. Lust for power and for the body of his aunt made him Ragnhild’s patsy. He quickly gathered some of his followers and ambushed Earl Havard, killing him in the skirmish.

Einar had been too obvious. There was an outcry, as many people felt Einar had acted shamefully in killing his uncle. They were not willing to let Einar be the next earl.

Maybe Ragnhild had never really wanted Einar as a husband, or maybe she didn’t want to go against popular opinion. So she betrayed him. She went to his cousin, Einar Hard-Mouth, and suggested that Einar revenge Havard’s killing by killing Einar “Buttered-Bread.”

So far, none of the descendants of Thorfinn Skullsplitter had shown much in the way of brains. But Einar Hard-Mouth wasn’t completely stupid. He had some idea that Ragnhild’s talk of family honor might be a cloak for some scheme of hers. And yet he still fell for it! Thinking he was being tough and realistic, he made it clear that he expected both the earldom and Ragnhild’s hand guaranteed as his rewards. No doubt Ragnhild must have laughed up her sleeve at this. Here Einar thought he was driving a hard bargain when he was just asking for the same thing she had promised Einar “Buttered-Bread” only a short time before! Naturally she agreed. And naturally she had no more intention of keeping to her side of the bargain this time, either. But Einar Hard-Mouth had fallen for her. He summoned his men and tracked down Einar “Buttered-Bread,” killing him just as he had killed Havard.

Ragnhild was pleased. But she wasn’t going to let some boy Einar’s age push her around. Instead, she went to the fourth son of Thorfinn’s, Ljot, pointed out that he had a better claim to the Earldom of Orkney than Einar did, argued that he should take the throne, and the best way to cement his claim was to marry Ragnhild!

You’d think by this time, someone would have figured out what sort of schemer Ragnhild was. And maybe Ljot did. But whether he did or not, Ljot was a chip off the old Skullsplitter, a man not to be trifled with, not by Ragnhild nor anyone else. Oh, he listened to Ragnhild. He became Earl of Orkney and married Ragnhild. When Einar Hard-Mouth tried to take the earldom and Ragnhild away from him, Ljot had Einar killed. When the King of Scotland tried to take over the Earldom’s possessions on the Scottish mainland by using Ljot’s brother Skuli as their pawn, Ljot made war on the Scots and killed Skuli.

Maybe Ljot was just the sort of man Ragnhild needed. Maybe he was tough enough and virile enough to keep her satisfied. Or maybe she was finally getting too old and tired. She’d been a wife to three men and probably a mistress to at least two more over more than thirty years, and was now in her fifties. In any case, she didn’t engage in any plots to kill Ljot (that we know of). Instead, Ljot would die as the result of his wounds in one of his campaigns on the Scottish mainland.

It had been only about a decade since Thorfinn Skullsplitter had died, but thanks to Ragnhild’s machinations, only one of his sons, Hlodvir, remained alive. With Ljot’s death, Hlodvir became the next Earl of Orkney.

With Hlodvir’s ascent, we hear no more of Ragnhild. Maybe Ragnhild was dead by that time. Maybe she looked at her chances, saw that Hlodvir already had a wife, and not just a wife but a son, Sigurd, who was almost an adult, and decided she should finally retire into widowhood. But judging from her career, I wouldn’t be surprised if she went to her grave thinking that if she had just been a few years younger, she could have made a play for Sigurd. If she had, she would have altered history. Sigurd “the Stout” became one of the most powerful Earls of Orkney ever, and would die in the famous Battle of Clontarf in 1014, fighting with Sitric Silkenbeard, Viking King of Dublin, against the Irish High King Brian Bóru.

The Battle of Clontarf, painted in 1826 by Hugh Frazer (1795 - 1865)

The Battle of Clontarf, painted in 1826 by Hugh Frazer (1795 – 1865)

A primer on the Electoral College

The Electoral College is frequently a mystery even to Americans who have followed many Presidential elections. This is a historical explanation of what the Electoral College is, why it came about, how it works, and some possible problems with it.

In the early years after the Revolution, the United States of America was governed by the Articles of Confederation.[i] It was an unhappy experiment. The Confederation Congress needed to get 9 of the 13 states to agree to pass any measure, and had no power to enforce its laws on the states. States failed to pay their contributions, even ones to which they had agreed, leaving the Confederation Congress broke much of the time. The situation in the states was not much better. In 1786, Massachusetts’ government seemed on the verge of toppling to a rebellion of farmers.[ii]

"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy (1873-1952)

“Scene at the Signing of the Constitution of the United States” by Howard Chandler Christy (1873-1952)

So when the delegates from 12 of the states gathered for the Constitutional Convention in Philadelphia in 1787, they decided to build a stronger central government. They wrestled with many controversies, and typically adopted compromises to obtain the broadest possible support. They made the new Federal Government more powerful, but split it into three branches, and made each a check on the other two.[iii] In the conflict over whether the Federal Government should represent the states or the people, they compromised and created a legislative branch, Congress, divided into two chambers: the House of Representatives, to represent the people, and another, the Senate, to represent the states.[iv] And in the conflict between being responsive to the popular will and preventing the government from being subject to momentary mob enthusiasms, they gave members of the House of Representatives only a two-year term, while giving Senators a six-year term, and having the judiciary appointed by the President subject to review by the Congress.[v]

And who did the first electors vote for? Guess!

And who did the first electors vote for? Guess!

Ah, but how was the President, the head of the executive branch, to be selected? The Constitutional Convention enacted a complex system along the lines of their previous compromises. The President would be elected, thus representing the popular will, but not directly. Instead, he would be elected by a special group of people chosen for that purpose called electors, which group we now call the Electoral College.[vi] These would be chosen by the states, giving them a role. Each state would get two electors just for being a state, just like how they get two Senators in Congress. But they would also get the same number of electors as they have Representatives in Congress, hence in proportion to their population, which gives the popular will a role once again. The electors would be the ones who would actually cast votes for the President, and also vote separately for the Vice President. Whichever candidate got a majority of the Electoral College votes would become the President and Vice President.[vii]

Over time, certain customs developed in the election of the President. Under the Constitution, legislatures determined how the electors were chosen from their state. In the early days, many legislatures did choose the electors, but over time the legislatures turned the choosing of the electors over to a popular vote. And the “winner take all” principle became the norm: whichever candidate won a plurality in each state would get all the electoral votes from that state.[viii]

The first President to need 270 electoral votes: LBJ. (He got 486.)

The first President to need 270 electoral votes: LBJ. (He got 486.)

So how does this actually work today? Each state gets as many electors as it gets Senators and Representatives in Congress. Each state gets two Senators, so each state gets two electoral votes for that. The 435 Representatives in the House are apportioned roughly by population, so each state gets electors roughly proportionate to the population.[ix] For example, California, the largest state by population, gets 53 electors because it has 53 Representatives, plus the two electors it gets for having two Senators. Wyoming, the smallest state by population, gets only one electoral vote for its one Representative, but two more for its Senators, so three in total. And there is one anomaly: the District of Columbia is represented in the Electoral College as if it were a state, so it gets three electors.[x] Hence there are 538 electors (435 + (50 x 2) + 3). For a candidate to win the Presidential election, that candidate must win over half the Electoral College votes, which means 270 are needed to win.

When you go to vote on November 8, the ballot you mark probably lists the names of the candidates, but you are actually voting for the slate of electors in your state that have been nominated by each candidate’s party to pledge their votes for that candidate. The candidate who wins a plurality in each state wins all that state’s electoral votes, which is to say that candidate’s electoral slate is deemed the winner.[xi]

Congress counting the Electoral College ballots in 1877 (which actually was a complicated mess, but for reasons not germane to this article)

Congress counting the Electoral College ballots in 1877 (which actually was a complicated mess, but for reasons not germane to this article)

Once the appropriate state official certifies the vote, and hence the election of the winning electors, those electors gather at the state capital to cast their votes, which are then certified by state officials and carried to Washington, D.C. There in January, the new Congress will count the Electoral College votes and declare the winners of the Presidential and Vice Presidential elections.

Simple. Even though the President isn’t officially elected until the Electoral College votes are counted by Congress in January, we’ll almost certainly know the day after people vote in November who won.

But what if something goes wrong? There are three perfectly legal problems that could cause the Electoral College to fail.

The first and biggest problem with the Electoral College is that a candidate can win the popular vote and still lose in the Electoral College. There are two reasons why this can happen. First, the Electoral College rewards winning in small states disproportionately to winning in large states, because small states have their weight in the Electoral College increased above their population thanks to the two electors they get just for being states (corresponding to the number of Senators they have). Second, the winner-take-all system of awarding all the electoral votes of a state to the winning candidate means a candidate can barely eke out a popular vote majority in just enough states to win the Electoral College, while being thoroughly trounced in the other states.

Between losing the popular vote and winning the Electoral College through a controversial Supreme Court decision, George W. Bush had legitimacy problems early in his Presidency.

Between losing the popular vote and winning the Electoral College through a controversial Supreme Court decision, George W. Bush had legitimacy problems early in his Presidency.

It’s happened three times: in 1876, 1888, and 2000, the candidate who won a plurality of the popular vote lost in the Electoral College to an opponent who had gathered a majority in the Electoral College.[xii]

There’s not much that can be done about this. It’s part of the design of the Electoral College. But in these more democratic times, when we feel the will of the people should be the final word, results like these undermine the legitimacy of the Presidential election process and the Presidency.

The second problem is that, while the electors are typically chosen from loyal party members who cast their ballots as directed, sometimes electors don’t vote the way they’ve been instructed by the voters and their parties. It’s only happened occasionally, as recently as 2004, but has never influenced an election’s outcome yet.[xiii] Still, such votes are legal and irreversible. Oh, some states have passed laws binding electors to vote in accordance with the popular vote, but the Constitution recognizes no such constraints on an elector’s vote. The authors of the Constitution looked at the electors as being local wise men who would vote for a reputable statesman, not party hacks who would blindly follow a popular vote.[xiv] So it’s questionable whether those state laws could actually bind the electors, to say nothing of overturning the votes they actually cast.[xv] Neither the states nor Congress have disputed the votes of rogue electors. Conceivably, if enough electors changed their mind, they could elect someone nobody voted for.

The third problem is if no candidate wins a majority of the Electoral College, which given the current even number of electors includes the possibility of a tie. It happened once under the current system, in 1824.[xvi] In that case, the election for President is thrown into the House of Representatives. But, contrary to what you might expect, the Representatives don’t vote directly for the President, no. Instead, they have to band together and vote by states, each state getting only one vote. So, if this situation arose, California would have to get its 53 Representatives to huddle and decide which candidate they would cast their one vote for. Imagine the misfortune of a state with an evenly split delegation: it wouldn’t be able to cast a vote at all! While the smallest states, with only one representative, would have an easy time of it.

I wuz robbed!

I wuz robbed!

It was a mess when it happened in 1824. Two of the also-rans, John Quincy Adams (who came in second) and Henry Clay (who came in third in the popular vote, fourth in the Electoral College vote) banded their supporters together to give Adams a majority in the House, and hence the Presidency. Andrew Jackson, who had won a plurality of both the popular vote (41%) and the Electoral College vote (99 out of 261) felt the election had been stolen from him. His successful campaign four years later against Adams was heavily colored by charges that Adams and Clay had made a corrupt deal in 1824.

It wouldn’t be much better today. In the current Congress, 33 state delegations have a majority of Republicans, 14 of Democrats, and 3 are evenly split. The Democrats may pick up a delegation or two in this election year, but the Congress that meets in January, 2017, is still likely to have a majority of state delegations with Republican majorities. Say that the Democratic nominee, Hillary Clinton, wins a plurality of votes and Electoral College votes, but not a majority, because the rest are split between Donald Trump, the Republican candidate, and Gary Johnson, the Libertarian candidate. How many Republican delegations would be willing to vote against their own party to put Ms. Clinton in the White House? Or what if Mr. Trump’s behavior continues to erode his support? Might the Republicans decide they should discard all the losing nominees, and elect a stalwart Republican they like?[xvii]

Fortunately, the possibility that neither Mr. Trump nor Ms. Clinton will win a majority in the Electoral College is still remote, so this third difficulty is still unlikely . . . so far.

[i] The Articles were accepted by Congress in 1777, but were not ratified by all the states until 1781.

[ii] This was Shays’s Rebellion. The rebels felt that the economy and laws had been manipulated to benefit speculators. The state government viewed the uprising as treason, pure and simple.

[iii] The three branches are the legislative (Congress), responsible for passing laws, the judiciary (the Supreme Court and other Federal courts), responsible for judging cases under law and the constitutionality of laws, and the executive (the President and the executive branch agencies), responsible for the administration, execution, and enforcement of the laws.

[iv] In the House of Representatives, each state has representation in proportion to its population, while in the Senate each state gets two votes, no matter how many people live in that state. This also resolved the controversy between the large states, which wanted their votes to represent their size, and the small states, which wanted each state to have equal representation. One should also note that who counts as a person and who votes were not simple matters in 1787, let alone the same thing. Native Americans not actually subject to the Federal Government’s authority (“Indians not taxed” in the phrase of the era) were neither counted nor could vote. Slaves were counted as 3/5ths of a person and could not vote. Women and children were counted but could not vote.

[v] As the House represented the people directly it was appropriate that it had the shorter term, the better to respond to popular views. The Senate, on the other hand, was not just apportioned equally to each state, but its members were originally elected, not by the voters, but by the state legislatures. Hence their role as a “cooling vessel” for public passions in legislation. It was only in 1913 that the ratification of the 17th Amendment to the Constitution gave the power of electing Senators to the voters directly, instead of the state legislatures.

[vi] It was assumed that any Presidential candidate would be a man. The people in the Electoral College are called “electors” because their purpose is to elect the President.

[vii] The original system used in 1788-1800 was different in that the votes for President and Vice President were not distinguished. This created controversial problems in the elections of 1796 and 1800. The current system was put into place with the 12th Amendment to the Constitution, ratified in 1804. There have been other minor changes since then.

[viii] A candidate who gets more votes than any other candidate is said to have won by a plurality. If the candidate wins over 50% of the vote, the candidate is said to have won by a majority. Every majority is a plurality, but not every plurality is a majority. For example, in a three-way race, a candidate who wins 40% of the vote while the other two candidates won only 30% of the vote apiece has won by a plurality, because the first candidate’s 40% share is bigger than either of that candidate’s opponents.

[ix] The correspondence between population and size of a state’s delegation in the House of Representatives is not exact for three reasons. First, the number of Representatives has been fixed by law at 435 since 1929, and fractional representation isn’t allowed; there are going to be rounding errors. Second, each state is guaranteed one Representative no matter how small its population, which means some small states are disproportionately overrepresented. Third, there are several possible algorithms to apportion the remaining seats, but none of them gives a perfect result.

[x] This has been true only since the 23rd Amendment to the Constitution was passed in 1961, with the additional provision that the District can never have more electoral votes than the least populous state. Under current circumstances, both rules give the District three electors.

[xi] Maine and Nebraska are currently exceptions. They award Electoral College votes both by statewide election and by the vote in each Congressional district. So, for example, if candidate A wins the statewide vote in Maine and in Maine’s 1st Congressional district, but candidate B wins in Maine’s 2nd Congressional district, candidate B would get 1 electoral vote from Maine, while candidate A would get 3 (1 for the Congressional district, 2 for winning the state as a whole).

[xii] Note this description does not fit the 1824 election, in which no candidate took a majority of the Electoral College. 1824 is a special case discussed later in the text.

[xiii] The most recent cases have been protest votes in which the elector didn’t vote or voted for another member of their party. The last elector to vote for another party’s candidate was in 1972. Technically, the rogue electors of 1836 did change the election, since their actions forced the election into the Senate (see footnote xvii), but the candidate who should have won in the Electoral College did win in the Senate.

[xiv] The development of nationwide political parties was not anticipated by the delegates at the Constitutional Convention. And given the slow communications and the large size of the nation back then, the rise of a number of regional parties probably appeared more likely.

[xv] After an elector cast a protest vote in 2004, Minnesota changed its rules so that electoral votes could be reviewed before being certified. To date, this mechanism has not been tested by a rogue elector trying to cast a vote for the wrong candidate, so its legality at the Federal level is uncertain. The Supreme Court has held that states can require electors to pledge to support a candidate, but has not ruled in favor of any mechanism to enforce that pledge.

[xvi] There was a tie in 1800, but that was under the older system. See footnote vii.

[xvii] What about the Vice Presidency, you ask? If no candidate wins a majority, that election is thrown into the Senate, where each Senator casts an individual vote. This has happened once, though not in 1824, surprisingly. It was in 1836, when the Democratic candidate, Richard Mentor Johnson, fell one vote shy in the Electoral College, but was elected by the Senate. Johnson was a controversial figure because he had lived with a mixed-race slave as if she were his wife, and that caused several electors to drop him from their ballots, although they still voted for his running mate, who became President Martin Van Buren. The most curious possibility that might arise in the 2016 election would be if no candidate won a majority in both the Presidential and Vice Presidential races, while the Democrats managed to recapture the Senate. If both chambers stuck to party loyalty, the result could be a Republican President and a Democratic Vice President. The last time the President and the Vice President came from different parties was in the election of 1796! (One could argue that John Tyler and Andrew Johnson were subsequent examples, but they ran on the same party ticket as the Presidents with whom they were elected.)

Review: Mary Beard, SPQR: A History of Ancient Rome (2015)

mary beard spqrOh, no, ancient Roman history! Dead white males talking about dead white males! The sort of thing you expect from desiccated old prep school teachers and moldy dons from Oxford and Cambridge. Well, sit back in your reading chairs, because you’re actually going to enjoy this book.

First off, as of this writing, Mary Beard is neither dead nor male. She is a Cambridge professor, but after you finish reading SPQR: A History of Ancient Rome (New York: Liveright Publishing Corporation, 2015), you won’t hold it against her. Because this is a readable history, an engaging history, one suitable for a general audience. And yet at the same time it is not shallow. Moreover, readers will even learn something about how historians do their work, and why it can be exciting.

How does Prof. Beard do it? All the chapters are anchored in concrete examples. These serve as Beard’s launching pad for addressing her selected topics in each period of Roman history. For example, take Lucius Cornelius Scipio Barbatus (d. 280 BCE[i]). If you look him up in Wikipedia, you will find a horribly dry account of his military career, which will bore your pants off even if you do understand the historical context of Rome’s Italian wars. In contrast, Beard uses his sarcophagus to discuss the values of Roman men in Barbatus’ era, the development of Roman political and military power in the early centuries of the Republic, and the social conflicts of the same era, before launching into a discussion of Roman law, anchored by a different example. And she does this so smoothly you don’t realize the range of what you’ve just learned in a few pages.

Beard discusses ancient restaurants and bars while comparing the dining habits of the rich and poor. (Credit: Wikipedia/Daniele Florio)

Beard discusses ancient restaurants and bars while comparing the dining habits of the rich and poor.
(Credit: Wikipedia/Daniele Florio)

As you can gather from that description, Beard’s is not just a dry political or military history of Rome, like the one I read in high school.[ii] She’s concentrating on what she thinks are the important developments, whether they be political, social, economic, or cultural. So she has extended discussions about what the legendary stories of Rome’s founding meant to later Romans, the mechanisms by which Roman power spread, and how the common people lived, while skipping over such details as the specifics of every war or the reigns of every emperor, if they don’t contribute to her analysis in any significant way. Readers will come away with an understanding of how Rome was able to conquer and incorporate peoples, first in Italy and then around the Mediterranean, without getting bogged down in the details of the Third Samnite War or the reign of the Emperor Vitellius (who isn’t even mentioned by name).

Along the way, Beard is frank in explaining how historical evidence leads her to certain conclusions, and on the limitations of historical research. She persuasively argues, based on archaeological evidence and comparative historical analysis, that early Rome simply wasn’t large or sophisticated enough to have the elaborate government depicted by later Roman historians such as Livy. And she admits that historians have inadequate means to assess how Christianity spread in any detail, while at the same time arguing that the structure of the Empire did indeed facilitate that spread.

Frankly, reading Beard’s book was a joy. Her writing is smooth, so much that this will be the fastest 500+ page history book you’ll ever read. Beard communicates her enthusiasm both for the subject matter and the nature of historical research quite well. It’s hard to hit a balance between being scholarly and popular in a history book, particularly one on more remote periods, but Beard has done it with SPQR.

[i] For dates, Beard uses the “common era” convention, so dates are given as BCE, Before the Common Era, and CE, during the Common Era. These are identical to dates using the convention of the Christian Era, B.C. and A.D., respectively.

[ii] No, I don’t recall the title or author. It was not an assigned reading, but a book I picked out of the library on my own to read. Yes, I was a history nerd even then.

On this day in history, February 22

1371 – Think of marrying the boss’s daughter? Can’t aim much higher than Walter Stewart, who married the Scottish King Robert the Bruce’s daughter. Their son Robert becomes king of Scotland on this day.

1651 – As many as 15,000 people along the coast of the North Sea are killed by “Saint Peter’s Flood,” because some saints are mean, I guess. (OK, it’s because it was a St. Peter’s feast day; but it’s still a stupid idea to name it that way.)

The War of the Austrian Succession also involved the Hungarian succession. Confused? So were contemporaries.

The War of the Austrian Succession also involved the Hungarian succession. Confused? So were contemporaries.

1722 – It is actually February 11 in Virginia when George Washington is born; the American colonies don’t change over to the Gregorian calendar until 1752, at which point George objected to having a birthday 11 days too early, and switched to the 22nd. We celebrate George Washington’s birthday today as a holiday which NEVER falls on his birthday.

1744- The Battle of Toulon marks a turning point in the War of the Austrian Succession, not to be confused with the wars over the Spanish, Polish, or Bavarian successions, all of which you distinctly remember from your European history course.

1819 – The United States buys Florida from Spain for $5 million, which is about what the state will be worth after global warming gets through with it.

1821 – Alexander Ypsilantis begins the Greek War of Independence by invading what is now Romania. No, he did not have a bad GPS system in his dashboard. He was trying to get all the Christians in the Ottoman Empire to revolt.

1848 – The French Revolution of 1848 leads to the Second French Republic which promptly elects Napoleon’s nephew as President, who overthrows the republic and proclaims the Second Empire in 1851. Even Karl Marx made fun of this episode in history.

1862 – Jefferson Davis is inaugurated as President of the Confederate States of American for a six-year term. Too bad for him the Confederacy didn’t last much more than three.

I also assisted in getting Darwin and Wallace to cooperate in announcing evolution together

I also assisted in getting Darwin and Wallace to cooperate in announcing evolution together

1875 – Charles Lyell dies at age 77. Don’t recognize the name? You should. This is the man who made the case that geological processes proved the Earth was millions of years old. Without him, Charles Darwin probably wouldn’t have been able to come up with the theory of evolution. (Ironically, Lyell himself never fully accepted Darwin’s theory.) Queen Victoria made Lyell a baronet, and probably thought she was honoring him, but no title could give him more honor than his role as a man of science.

1921 – A rogue anti-Boshevik Russian military leader of Baltic German descent restores a Buddhist religious figure to the throne of Outer Mongolia. Truth is stranger than Game of Thrones.

1924 – Calvin Coolidge becomes the first President to make a radio broadcast from the White House. Legends that John Cage was inspired by this event are not true.

1980 – Just as Saint Peter flooded the Dutch coast, God takes a hand this time to give the United States Olympic hockey team a victory over the Soviets, the “Miracle on Ice.”

I was so famous I became a taxidermist's project (Credit: Wikipedia/Mike Pennington)

I was so famous I became a taxidermist’s project
(Credit: Wikipedia/Mike Pennington)

1983 – The play “Moose Murders” opens and closes on Broadway. One would like to think that PETA (People for the Ethical Treatment of Animals) was responsible for the closing, though its non-existent equivalent, PETH (People for the Ethical Treatment of Humans) would have had a stronger case.

1997 – Scottish scientists announce the cloning of a sheep named Dolly. Scotland . . . sheep . . . why am I not surprised?