Grimm Centenary: Sigfred-Arminivs and Other Papers
Various kinds of suits there were, but the mode of procedure was probably the same in all. This part of the subject is necessarily obscure to us, and it is not likely that, when with all the help of the whole Corpus Iuris the actual procedure of Justinian's day is by no means clear to us, these Lays should give much information. Plaintiff and defendant are said, 'deila sacar,' a phrase which shows that the best description of the primitive Teutonic law-suit would be a feud in court.
Of phrases denoting legis actiones: first is 'cueðja,' to summons, or better, to call on the defendant to perform some act in law (whence the term 'cuöð,' a duty or demand or summons, is in later law derived). The word 'cuiðr' which stands for verdict, legal declaration, is of high importance, for it implies a 'quest' or 'recognitio' by sworn witnesses in our later authorities; and there is nothing to forbid the theory that even as early as these poems some jury of inquest was established in the North. The age of the poem, the Old Play of the Wolsungs, and the truly archaic form of the term 'heimis-quiðr' occurring in it, is a strong though isolated piece of evidence to this effect.
Of any jury of presentment or the like, if such there were, nought remains to tell.
A court must be full to give judgment. W. Pl. 241.
To deny is 'synja'; to acknowledge an act 'lýsa'; to set up a false plea 'dylja'; to upset a decision or an adversary's claim 'quiðja,' Lat. 'ueto.'
The strict observance of time in archaic law is noted here also, the man who missed his day was treated as a wilful defaulter, 'þing-logi.'
The plea or declaration or doom of the judge is 'orð,' which stands for any 'legis uerbum,' cf. 'ban-orð,' etc.
To decide a point of law is 'leggia lög,' to lay down the law, as we have it still in familiar speech.
Of a suit for weregild the old summons is given ---
cuöddo sídan Sigmundar bur
auðs oc hringa Hundings synir,
þui at þeir átto iöfri at gialda
fiár-nám micit oc föðor dauða.
Létad buðlungr bótir uppi
né niðja in heldr nef-giöld fá. Helg. I. 41-46.
Other passages dealing with procedure in court are ---
Uágom or scógi þannz wildom sycnan:
comta-þu af þuí þingi ......
at þú söc sœttir ne slœcðir aðra,
uildir aualt uægja enn uætci halda.
cyrt um þuí láta. Atlam. 365-9.
enn slícs scylde synja aldri
maðr fyr annan þar es munoð deilir. Oddr. 88-9.
cann-ec slícs synja. Atlam. 247, see also Ord. 28.
feginn ertu, Atli, ferr þu uíg lýsa. Atlam. 243.
dylja mun þic eigi dóttir G ...... Atlam. 328.
ne þeir dyljendr ugdo. Akv. 5. cor.
duleð ertu Hyndla. Hyndl. 24 and Rimeg. 32.
queðcat-ec dul. Yng. 35.
síðla ec com snemma ec callaði
til dómualdz dura
þing-logi ......... ec heitinn warc. Ch. W. 118-9. cor.
Urðar-orði cuiðjar engi maðr. Swip. 237.
era þat hœft at heyrom scyli
cuiðja Fáfnir fiár. W. Pl. 39-40. n. cor.
cf. þær lög lögðo. Vsp. 51-2.
The person upon whom the burden of proof fell, must prove his innocence according to the prescribed method, and as in other Teutonic law systems, the oath seems to have played a great part here. With its forms we deal later on.
But the ordeal and the judgment of battle was enjoined in some cases, though we do not know the details. The old poet advises the suitor or defendant to appeal to the sword rather than run the risk of having foul charges brought against one, and expresses a doubtless well-founded distrust of the verdict of a jury of inquest ---
Ef þu sacar deilir
uið heimsca hali
berjasc es betra en bregðasc sé
illom orð-stöfom. W. Pl. 291-4.
The ordeal described is one in which a woman is accused of adultery and offers to purge herself, the ordeal proving her innocent, her accuser (also a woman) is put to the same proof and fails. The oath as in later times is taken before the ordeal. The lady has the right of denying the charge by champion, but has no champion to bring forward. The ordeal is public.
Þer munec allz þess eiða uinna,
at inom huíta helga steini
at ec uið Þióðmars son þattci áttac
es uörð ne uerr uinna cnátti. Ord. 9-12.
suerði mundi Högni slícs harms reca,
nú uerðec sialf fyr mic synja lýta. Ord. 27-8.
sentu at Saxa Sunn-manna gram
hann cann helga huer uellanda. Ord. 21-2.
siau hundrod seggja í sal gengo
áðr cuán conungs i cetil tœci. Ord. 23-4.
brá hón til botz biörtom lófa
oc hón upp um tóc iarcna-steina
'Se nú, seggir, sycn em ec ordin
heilagliga, hue siá huerr uelli.' Ord. 29-32.
Sá-at maðr armlict huerr es þat sáat
hue þar á H ...... (the accuser) hendr suiðnoðo. Ord. 37-38.
Of another early legis actio, wager of battle, or 'duellum,' a late example only occurs, resembling cases given in Landnáma-bóc,
á holm þeir gengo fyr ið horsca uíf
oc fengo báðir bana. Ch. W. 59-60.
the place of fight, a holm or eyre, where the combatants are in view, but cut off from interference; this passage also gives the usual term between summons and trial ---
mer hefir stillir ...... stefnt til eyrar
þriggia nátta scylac til þings coma. Helg. II. 56.
The lines in Havamal, 'ef ec skal til orrosto leiða lang-uini,' may possibly refer to the wager or ordeal by battle. The words for fixing and calling a moot and a battle are the same, 'heyja' or 'leggia' or 'stefna til'; both meetings are to decide moot questions. Even the ordinary pitched battle between hosts is regarded as a legal mode of decision, as the phrases 'ual-stefna,' 'hior-stefna,' 'hior-thing,' 'brímis dómar,' cf. Helg. I. 76, 49, 216, 147, 207, and the 'bryn-thing' of the W. W. L. 85, would show. Cf. C. P. B. ii. 483, and the fine article on the Wager of Battle in the Chansons de Geste in Z. f. Rom. Phil. 1885, by M. Pfeffer.
The classification of wounds is necessary in early systems of law where compensation must be adjusted according to it. The deadly wound or mortal wound is 'ben,' used chiefly in the plural 'benjar.' The verb 'benja' is once used.
scal engi maðr angr-lióð kueða
þótt mer á briósti benjar líti. Helg. II. 341-2.
kendi brátt benja, bandz quað hann þörf œnga. Atlam. 325.
bróðor mínn hefir þu benjaðan. W. Pl. 158.
'Und' is a wound that can be healed, and 'sár,' sore, usually a cut wound.
sæir brœðr þínom blódokt sár,
undir dreyrgar knættir yfir binda. L. B. L. 129-30.
With this branch of the subject that of punishment is closely connected. Tacitus, who notices the division of crimes among the early Teutons, speaks of flagrant crimes being exposed by hanging the culprit, disgusting ones hidden away by drowning the offender.
But here the reasons he gives are his own, and they are far too late in sentiment to be true: the real reason surely is that such criminals, if men, were sent to Wodan, if women were given to Ran or Hell, the men were sent to the gallows, the women to the pit or fen. The pit and gallows stood on the west of the moot-places or the prince's hall ready for use. The execution of such offenders by sacratio originally was regarded, we suppose, as purging the nation of any guilt or sin that might be imputed to it for thier offences.
The gallows were horse-shaped, not of the modern conventional signpost-shape, hence the metaphors of 'riding the gallows,' 'riding to Woden,' and the like.
uargr hangir fyr uestan dyrr. Grimn. 35.
uarg-tre uind-cöld uestan bœjar
oc systor-son sáran á meiði. Hamd. 81-2.
ef ec sé á tré uppi
uáfa uirgil-ná. Havam. 96-7.
ec hécc Vinga-meiði á
geiri undaðr oc gefinn Óðni. Havam. 9-11.
ella heðan bíðit meðan ec hœgg yðr galga. Atlam. 134.
The custom of first wounding the criminal with the spear, marking him to Woden, was evidently observed at this time, as it occurs in the story of Starkad, C. P. B. i. 467.
The woman's execution, which Tacitus tells us was also meted out to cowards or unnatural criminals, who were counted as women, is thus described.
Leiddo þá mey í mýri fúla:
sua uarð G ....... sycn sinna harma. Ord. 39-40.
There occurs also notice of what looks like an archaic form of execution, adopted where the criminal or foe was slain in revenge, possibly a devotion to the dead man who was to be revenged --- the bloody eagle marked on the back by the sword, a process described by later sagas, but clearly without any knowledge of its original meaning.
nu es blóðogr örn bitrom hiörui
bana Sigmundar á baci ristinn. W. W. L. 39-40.
The witch or wizard (as in later days the heretic) was to be burnt or stoned, nor earth nor water could receive even the body of such a criminal. To kindle such a fire is 'slá eldi um': cf. Hyndla Lay, where the witch is threatened with fire, the appropriate punishment for her peculiar crime.
brend muntu á báli oc barið grióti ádr. Atlam. 312.
This burning would also prevent haunting, as the decollation and placing of the severed head at the thigh of the body prevents it. Cf. Grettis Saga in the Story of Glam. (6)
The convicted criminal might be, as in nearly all nations at an early stage, banished or put out of law, and the same word is used for him as for the convicted and executed criminal, 'uargr,' the wolf (the wolf's-head of our early law), the nobler exile 'wræcca' seems to be legally one driven abroad, but not convicted, as 'flyma' was the mere fugitive. The outlaw lives in the wood, gaining his living as a bandito, hated and feared and pitied.
ef þu uærir uargr á uiðom úti. Helg. I. 268.
nacðir þeir urdo or næmdir huíuetna
oc runno sem uargar til uiðar. Chr. W. 39-40.
at uidi wrecasc. G. W. 34.
huí es þer, stillir, stæcct ór landi? Helg. II. 48.
mic hefir micil glœpr meiri sóttan. Helg. II. 50.
uágom or scógi þannz uildom sycnan. Atlam. 360.
6. The latter practice has survived till our own day in Corsica, though, as far as I could ascertain in the case I know, without any knowledge of its early meaning. Note the famous case in Glendower's day of the mutilation of slain Englishmen by the Welsh women. Cf. the article in American Journ. Philol. 1885, on 'Armpitting.' [Back]