law | Sillyhistory

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!

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

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

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

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.

Today, if you look at a map of the world, its land mass is likely to be divided up into about 200 nations, each marked in a distinctive color, which collectively take up the entire land surface of the earth.[i] The idea that the world should be divided up into nations, each of which occupies its exclusive territory, seems so natural that it’s hard to realize that in its fullest form this idea is only about a century and a half old.

For European rulers at the dawn of the modern era, sovereignty wasn’t primarily about uniform control of territory under one set of laws, nor about a nation of people. It was about rights held by the rulers over people, communities, institutions, and lands, rights which were not necessarily territorial in nature. For example, the rulers of a city might have the right to use the water from a spring that was several miles away on land ruled by someone else. Or a king might be able to regulate market days in his kingdom, except for certain cities which had purchased the right to regulate their own market days from the king’s predecessors. Or some individual might be ruler of several lands, and yet he might have different rights in each land, each land might have different laws, and their union under that individual might not survive his death. England and Scotland were ruled by the same people from 1603 onward, but they didn’t have a common government until 1707, and still have some different laws. That combination has endured for a long time, while the union of Sweden and Poland under the same king didn’t even last seven years (1592-99).

The Austro-Hungarian Empire was another example of two states under one monarch. Note how it consisted of many peoples, several of which have their own nations today.

“But what does this have to do with piracy?” you ask. Well, the rise of piracy in the Caribbean between 1630 and 1730 has to do with how European rulers tried to extend their sovereignty over the New World.

It helped the Spanish that Pope Alexander VI (r. 1492-1503) was himself Spanish

Christopher Columbus’s “discovery” of the New World in 1492 led the Pope in 1493 to give the Spanish monarchs the right to conquer the heathen lands of the New World and bring Christianity to the natives there.[ii] This set up two important principles for staking a claim to lands in the New World: discover it, and get the Pope to ratify your claim.

Alas for the Spanish, the Protestant Reformation turned England and the Netherlands into Protestant countries, which didn’t care one bit what the Pope said. So along with the first two principles came a third: a European ruler could lay claim to territory in the New World simply by occupying it in force with settlers and soldiers.

Hence from 1600 onward, the Caribbean became the scene of a conflict between the Spanish, who thought they had an exclusive right to the region[iii], while the English, Dutch, and French, along with some minor powers, simply tried to seize and hold islands and coastal settlements in the region, sometimes successfully, sometimes not. And, as we’ll discuss in class, they found the buccaneers useful auxiliaries in supporting their wars against the Spanish as late as the 1690s.

Supposedly cannons in the early modern era could throw their shot three miles, hence the three-mile territorial waters limit.
(Credit: Wikipedia/GrahamColm)

Meanwhile, powerful rulers were beginning to transforms their domains into states more closely resembling the ones we have today, with uniform laws and exclusive territorial control. Curiously, that development raised a problem in prosecuting pirates. For states only controlled their territorial waters. No state controlled the high seas, the waters more than 3 miles offshore. So if pirates operated on the high seas, who had the right to prosecute them?

Legal theorists had developed the idea of international law, law that applied to relations between states (not necessarily what we would call nations these days, but close enough). The idea was that there should be laws that apply universally to all humans, laws that could even constrain the actions of states. Who would enforce these laws was a good question, but the concept was there.

Since piracy on the high seas could not be prosecuted under the laws of any state, it seemed a good candidate for treatment by the international law. And so European legal theorists borrowed the idea from ancient Rome that that piracy was a crime against all humanity, because the pirates robbed and harmed people without regard to law or decency. While that resolved the status of piracy as a crime, it still left unclear who had the authority to prosecute piracy on the high seas. But the legal theorists had an answer for that as well. While no country could, on its own authority, prosecute piracy on the high seas, they could, as stewards for humanity and international law, take it upon themselves to prosecute piracy on the high seas for the offense against all humanity it was.

And so the laws of European states were extended over the oceans to which they had no proper claim, even in their own eyes, for the sake of ridding the world of piracy.

Barbary (Muslim North African) pirates attacking a Frech ship in the Mediterranean

NOTES

[i] There are a few exceptions, including colonial possessions, disputed territories, and officially unclaimed territories.

[ii] Brazil was the exception, granted to the Portuguese because of their prior voyages of exploration, and due to the geographical accident of being east of the line drawn in the Treaty of Tordesillas (1494) between Spain and Portugal modifying the Pope’s ruling.

[iii] Officially conditional on converting the natives to Christianity, which, it must be said, the Spanish often did, never mind how or that they then proceeded to exploit the natives. The English policy of effectively driving the Native Americans off their lands wasn’t any better.

Sillyhistory

Tag Archives: law

Crime and punishment Viking style

Pirates, states, and international law