The Culture of the Teutons
where a man can swear himself free of all participation in his servant's act, he also escapes vengeance; but he must pay the fine all the same.
The Lombard legislators are greatly occupied with the question of vengeance, and much concerned about the problem of how to force it back within somewhat narrower bounds. The decrees accordingly provide an interesting picture of the position of vengeance, both in law proper, and where the injured parties take the law into their own hands. In cases of accidental homicide, mishaps in the course of work where several are together, etc.; as also in cases of damage caused by cattle, etc. not under control, vengeance is barred. According to the edict of Rothari, personal vengeance must not be taken for an insult or a blow; a fine must here suffice; in return, the king puts up the price: For which reason we have for every kind of wound and blow set payment higher than our forefathers knew, to the end that the fine may thrust aside vengeance, and all suits be made amenable to complete reconciliation.
There is a passage in King Liutprand's edict which gives us an accidental glimpse into the life of the Lombards, and shows how vengeance once let loose is flung backward and forward between the parties. The King has recently learned of a distressing episode; a man had taken the clothes of a woman bathing, and hidden them. Liutprand hastens to decree a very heavy fine for such misdemeanour; the culprit in such a case should be rightly mulcted in a sum equal to that paid for a killing; for, says Liutprand in explanation, supposing that the woman's father, or brother, or husband, or other kinsman were come by, then there would have been a fight. Is it not better, then, that the sinner should pay the price of a man's life, and live, than that vengeance should arise over his body between the families and greater fines thence arise?
The Lombard lawgivers appeal, for the rest, to the good sense of their subjects; it is a question of smuggling a higher standard of morality into the old-fashioned minds, and gradually expelling vengeance from the sphere of what is legal and fitting. The Lombard maids appear to have grown beyond the good
old custom of remaining virtuously content with the husband chosen for them by their family. There are constant instances of a betrothed maiden running off with her own chosen swain, and the elopement naturally gives rise to regular vengeance and feud. Liutprand now tries whether the prospect of losing all her dowry might not induce a maiden to respect her betrothal. She is to lose her lot, and go naked and empty-handed from her home. He sternly forbids father or brother to give way to leniency here, . . . that strife may cease, and vengeance be done away with.
Among the peoples to the northward, the Danes and the Anglo-Saxons stand more or less worthily beside the Bargundians. Nominally, all vengeance is disowned. But the lawgivers cannot make their own language conform to the new ideas. When they endeavour to give reasons for the inability of women and churchmen to take or pay fines, the matter falls of itself into the old words: for they take vengeance upon no man, and no man upon them. Or an expression such as this slips in: If the person wounded choose not to declare the deed, but to take vengeance. . . In the edict of Valdemar II regarding homicide, there is also the most remarkable contrast between subject and language. The purpose of the edict is to free kinsmen from liability to pay a share of the fine: While the slayer is in the country, no vengeance shall be taken upon any other man. If he takes to flight when the injured parties, of course, stand empty-handed then his kinsmen shall offer payment, and if they do not, and one of them should be killed by the avenger, then they have only themselves to thank, for not offering to pay. Naturally, however, the avenger is not exempt from paying for his kill; he has, so to speak, to pay for his right, just as the Burgundian who commits his act of homicide when driven by pain and anger to retaliate on the spot. The old régime is thus nominally broken off at the root.
The Swedes were hardly as far advanced as their southern neighbours. The Swedish laws lay particular stress on the point that vengeance is only to be taken on the actual offender, not on his kin. A breach of this principle comes under the heading
of unrightful vengeance, an idea also known in Denmark, as for instance where Valdemar II's ordinance abolishing the ordeal by fire distinguishes between the killing of an innocent man and killing in rightful vengeance.
In Gothland, where the progress of development was in no wise behind the times, but in many respects followed a peculiar course, they had their own fashion of avoiding vengeance. The precepts of the Law of Gothland as to what is to be done in cases where the devil hath wrought that a man should take a man's life are doubly interesting, emphasising on the one hand the difficulties in the way of abolishing vengeance, and on the other, offering a solution by making use of old-fashioned means. It is laid down that the slayer shall flee with his father and son and brother, or, if these do not exist, then with his nearest kinsmen, and remain forty nights in one of the three church sanctuaries of the island. Thence they proceed to find themselves a dwelling place, away from their home; they are free to choose an area of three villages and the forest surrounding, as far as half way to the nearest inhabited district always provided, however, that there lie no law-thing nor market town, nor more than one church, in the district. There they remain. And for three successive years, they are to offer payment; and even though the offended party accept the fine on its first offering, no blame shall attach to him. If he refuse the fine on its third offering, then the people are to dispose of the money, and the offender shall go free.
Vengeance is in process of restriction everywhere. First of all, it was made conditional upon the intent to harm, then it was limited to the case of more serious injuries only, such as homicide and adultery; and finally, it is reduced to a sort of retaliation upon the culprit himself, his family being free from all liability to share the blame.
Restriction, limitation everywhere. And these very subtractions open up perspectives to a time when the necessity of restitution threw all consideration of malice prepense completely into the shade; when for instance every wound had to be traced back to someone responsible, even in cases where the
weapon itself had acted against the will of its owner. But the palliatives chosen suggest a time when the sufferer stood more in need of spiritual than of bodily healing, and a time when vengeance was the universal medicine.
But there is more than this in these remains of kingly and clerical efforts to suppress individual vengeance; it is openly recognised that revenge was a necessity, for which the reformers must provide some substitute. Restrictions are made solely on the condition that restitution be secured by other means, and under the supposition that in case the new and lawful way should lead to nothing, then the kinsmen are to have the right of seeking their honour rather than risk its loss. This, as we have seen, was the final note in Valdemar's edict against kinsmen's help; they have only themselves to thank for having brought down vengeance upon themselves by neglecting to offer indemnity. Even the Anglo-Saxons are forced, no less than the Lombards and the Norsemen, to leave the right to vengeance open as a last resource, when the offender will not or cannot make restitution in any other way.
entirely isolated instance, we may find the conception of law as existing for
the purpose of punishment as a warning to evildoers and a protection for the good;
thus in the preface to the Law of Jutland, in the Burgundian Law, and here and
there in some royal rescript. It stands there as a lesson learned and repeated,
altogether isolated, without any effect upon the laws themselves; set there, as
it were, to show how incommensurable is the principle with all Germanic thought.
As long as the reformers cannot demolish the fact that injury poisons a man, they
are forced now and again to contradict themselves. They were too much men of their
world to fancy that a suffering could be abolished by abolishing the principal
means of curing it.
In Denmark, the fine for homicide was divided into three parts; one falling to the dead man's heir, one to his kinsmen on the father's side, and one to those on the mother's. But even where there are no kin on the mother's side, says Eric's Law,
and even though his descendant be slave-born, and thus not capable of inheriting, or out of the kingdom, so that it is not known where are his kin, then the kinsmen on the father's side, even though they have already taken both first and second parts, shall also take the third; for their kinsman shall not be slain without his death being paid for, if a free man; but full payment shall be made. So firmly is the ancient principle still rooted in these comparatively progressive men of law. Honour is the central thing in a man's being. Restitution is a share of honour which the offended party shall and must have for his life's sake. And it is this healing of the soul which courts of justice are to procure for the complainant.
In the Law of Gothland, we find, in reference to a man in holy orders, who has an injury to avenge, but is refused payment for the same; he is to appear at the law-thing before all the people, and make his complaint, saying: I am a learned man, and ordained into the service of God; I must not fight or strike a blow; I would accept payment if it were offered, but shame I am loth to bear.
We have here a picture in brief of the essence of Germanic sense of right. Shame we are loth to bear. And from the seat of justice comes a ringing answer to the cry, for the law is in reality something more than a recognition of the necessity of vengeance to a man's welfare. The court must take up the cause of the injured party and throw in its weight and authority on his side, for by disallowing his claim to restitution it would place him outside the pale of society. Law is based upon the principle that an individual who suffers shame to fasten on him no longer counts among men; he cannot in future claim the protection of the law. If a man be called craven, and fail to clear himself by challenge and victory, then he is craven, and devoid of right thus runs the sentence, both in the south and in the north. It is true enough that the injury is a private matter, inasmuch as it is a private distress for which a man must himself seek healing; the community takes no initiative in respect of pursuing the offender. But no less true is it that public opinion would place the sufferer beyond the pale if he
did not rehabilitate himself. And the sufferer can, in a way, transfer his distress to the community by making complaint; he makes the people participators in the shame and its consequences. The law-thing must procure him restitution, as far as can be done with the means at its disposal, it must declare itself at one with the injured person, and renounce his opponent unless a reconciliation can be effected. If the people cannot do this, then the people will perhaps be infected by his feebleness. The complainant has, so to speak, power over the people and its conscience, but not in virtue of a common justice, not in virtue of a constitutional principle that says: you must not, and demands punishment; not in virtue of anything but this: if nothing be done, I must perish, and I can drag you with me.
A man who fails to avenge an insult is a niding, and is deprived of the protection of the law.
The cry for honour comes so piercingly from the lips of kinsmen because it is forced out by fear. It was no doubt largely a matter of form, when in Friesland, one of the slain man's kin took his sword and struck three blows on the grave, calling out in presence of the whole family his Vengeance, vengeance, vengeance! A matter of form, too, is the ritual whereby the complainants draw their swords and utter the first cry, carry the body up to the law-thing and after two more cries, sheathe their swords again. But the forms are not more violent than feeling justifies. There was tension enough in the men to let the cry ring out far and wide. The law knows no such unrestrained violence. It speaks advisedly, weighing its words, but earnestly, as one who sees a human being in peril of life; and when all is said and done, the law's insistence on the indispensability of honour is just as emphatic as the cries of the kinsmen. The distinct and form-bound utterance of the man of law does not permit the demand to leap out upon us as in the wild cry of the relatives: vengeance, vengeance. And yet perhaps, if our ears are properly opened to what it is the man of law sets forth in his brief, rhymed sentences, we may by that indirect testimony itself gain the most overwhelming impression of honour's energy,
an impression the more powerful from the fact that we here see the energy transmuted into a supporting power of society.
The process of Germanic law rests on the principle that an accusation brought forward in due form, of course is enough to compel a man to defend himself at law. Anyone must be ready to nullify the mere unfounded charge by his own oath and that of his compurgators. If not, he succumbs to the accusation; according to the old mode of thought, the matter is as fully decided as if he had publicly declared himself guilty. The fear of a man's being sentenced though innocent, by this method, was unknown, because silence was really not regarded as a mute confession; rather, the charge itself was considered as a way of introducing guilt into a man. He who fails to fling back the charge lets it, so to speak, sink into him and mark him. The accused does not prove himself clean; he cleanses himself.
This is the dominant principle in the Germanic law process, the bond that holds the people united in a community of law. In everyday life also, it seems as if one man had power over another by virtue of his mere word. One can egg on a man to show his strength, his courage, his foolhardiness in the way one suggests. One can force him, by expressing a doubt of his manhood. The Northmen have a special term for such compelling words: frýjuorð they are called; words whereby one indicates one's belief in another man's lack of manly qualities. For instance, there was a man called Már. This Már certain persons desired to be rid of for good. Accordingly, one day a suspicious-looking person comes up to his homestead, and tells him that one of his oxen is lying out in the bog. Már knows very well where his oxen are, but when the other lets fall a word to the effect that it is strange that a man should be afraid to go and look to his cattle, the yeoman must go out into the bog, and there he meets his death.
You dare not is enough to
make a man stake his life. Gregorius Dagson lost his case and his life because
he could not resist the power of a taunt. When he and Hakon met, there was a stream
between them; the ice was doubtful, Hakon had had holes cut in it, and covered
up with snow. Gregorius did