menu_book Chapter 71

CHAPTER SEVENTY-ONE OF HISTORY OF THE NORWEGIAN PEOPLE, VOLUME 1 BY KANUT GERSHET. THIS LIBRIVOX RECORDING IS IN THE PUBLIC DOMAIN. MAGNUS HAWKENSEN LAGOBOTER A NEW SYSTEM OF JERISHPRUDENCE Magnus Hawkinson, generally called Magnus Lagoboter, the lawmender, was twenty-five years of age when his father, King Hawken, died in 1263. He had acted as regent during his father's absence,

and as he had been crowned king in 2061 at the time of his wedding, he ascended the throne without proclamation or ceremony. He continued Hawkins' peaceful policy, not only because wise statesmanship dictated such a course, but also because of his own inclination, since his interest was chiefly centered on lawmaking and judicial reforms. He labored earnestly to promote the welfare of his people, and devoted special attention to the reorganization of the judicial

system which constitutes the chief feature of his reign, but he lacked his father's robust energy and self-confident grasp of international affairs. He found his kingdom a field sufficiently large for his ambition, and the maintenance of peace seems to have been his chief concern in his whole foreign policy. The peace with Scotland, resulting in the cession of the Hebrides by the Treaty of Perth in 1266, has already been mentioned. As soon as the war with Scotland was terminated,

King Magnus began his legal reforms by publishing a revision of the Gullethingslov, which according to the Icelandska Anneler, was accepted by the Gullething in 1267. The following year, the revision of the laws of the Idzeva-Thingslog and the Borger-Thingslog was also completed. According to Konrad Maurer, the two codes of church laws, the Younger Gullethings-Kristenret and the Younger Borger-Things-Kristenret,

are also to be ascribed to King Magnus' lawmaking activity during these early years of his reign. In the Frostathings log, the king was permitted to revise the secular laws, but the church laws were left untouched because of the determined resistance of the arrogant prelate Jan Rauda, Archbishop of Trondheim, who maintained that no secular authority had the right to legislate for the church. The papacy, which had finally vanquished the Hohenstaufen emperors,

stood at this time in the very zenith of its power. Archbishop Jon had witnessed the conclusion of this struggle while on a journey to Rome to receive the archbishop's pall, and he returned deeply impressed with the glory of the Roman Church and the power of the Holy Father, eagerly bent on asserting the hierarchic principles in his archdiocese with the utmost vigor. In Norway, the state church principle had been maintained since the introduction of Christianity,

with but a short interruption in the time of Magnus Erlingsson. The king, as the head of the church, had also legislated for it, with the advice and assistance of the bishops. In conformity with the principles everywhere urged by the Roman hierarchy at that time, Archbishop Jan denied the king's right to legislate for the church, and King Magnus, with characteristic weakness, yielded to the resolute prelate. In the negotiations between the two regarding the new

lawmaking, it may have been the archbishop who first suggested that uniform codes of laws for the whole kingdom, both civil and ecclesiastical, ought to be prepared, and it is possible that a compromise was reached whereby the archbishop was suffered to prepare the code of church laws, though he received no formal authority to do so. The first fruit of this new system of legislating for the whole kingdom was a code of laws for Iceland, the Jarnsida, which was sent

to Iceland and accepted by the Althing in 1271. On March 29, 1272, Pope Gregory IX issued a circular letter in which he summoned a church council to meet May 1, 1274, and he also requested all the bishops to report to this council all irregularities within their diocese. Archbishop Jón believed that many abuses existed in his archdiocese, and he undertook to remedy them in the code of church laws which he was preparing. By his advice, Bishop Arne of Skalholt wrote a

similar code for Iceland, which was accepted at the Althing in 1275. Jön negotiated with King Magnus with regard to some points concerning which controversy was sure to arise. As a worthy successor of Archbishops Oystein and Erik, he sought to make the church independent of the state, but Magnus nevertheless was quite manageable and conciliatory. At a council assembled in Bergen, 1273, a concordat was arranged in which the king yielded to the Archbishop on nearly every point,

modifying slightly only his most unreasonable demands. But because of these modifications, the Pope would give only a conditional sanction. This action to the Pope ruffled even the pliant and peace-loving Magnus, and he interpreted it to mean that he had refused to sanction the agreement. Another council was called at Tunsberg in 1277,

where the concordat was subscribed to by both the king and the archbishop, without going to the trouble of asking for the Pope's sanction. The archbishop's code of church laws may also have been accepted, though this is doubtful, but in his joy over the settlement of the difficulty, Magnus showered additional favors on the church. At the Council of Bergen, 1273, King Magnus published a new law regulating the succession to the throne.

According to this law, which was later incorporated in the general code, the throne might pass to twelve different heirs in due order of succession. The first five were the following. First, the king's oldest legitimate son. 2. The king's oldest legitimate grandson.

3. The king's oldest legitimate brother. 4. The king's oldest legitimate uncle, father's brother. 5. The king's oldest legitimate nephew, son of the king's brother. If none of these twelve heirs was found, then the one which was the nearest heir according to the general law of inheritance was to succeed, but always a man, not a woman. Magnus Lagerbatter's code of laws for the Kingdom of Norway was based on the older codes,

especially those of the Gullethingslog and the Frostethingslog, but it is not as well written as the old laws. It was accepted as the laws of the Kingdom in 1274, in the 11th year of King Magnus' reign. This code marks a new epoch in the development of Norwegian jurisprudence. Although many of the laws are borrowed almost verbatim from the old codes, new principles of judicial procedure were introduced which were wholly unknown to early lawmakers. These new

features represented change in the views regarding the punishment of crime, brought about by the rapid social development after the close of the civil wars. The heathen conceptions had given place to Christian ideas. The old warlike aristocracy was disappearing, and in its place the Yemen class was increasing in numbers and social importance. This class was less able to maintain their rights by force. They trusted in the security which the laws could give, and welcomed every change in the

codes which would render justice more easily accessible to the common man. It was no doubt the purpose of King Magnus to adjust the legal system of the kingdom to the changed social conditions, and the people seemed to have been conscious from the start of the need and importance of his legal reforms. This is revealed also in the prologue to the new code, where the king says, You know how the most discreet men of the Gula things log have said to us repeatedly that they

have heard that we are engaged in revising the law books of the land with the advice of the best men, and they have asked us that their law book may be revised in the same way. In the old jurisprudence, crime was not regarded as a wrong against the state, but as an injury to the individual and the family to which he belonged. The peace was regarded as broken between the family of the offender and the family of the party injured, and a state of feud or private war

existed until a settlement was agreed upon. But it was a private affair which concerned only the the families and parties involved. The injury done could be compensated for by a fine which was agreed upon either by the parties themselves or by men selected by them for the purpose of giving an estimate. Only when the crime was of a more serious character, so that the offender would be outlawed or sentenced to pay a fine to the king, did the case have to be brought before the

thing. Here, both parties had to produce their own witnesses. The thing secured the observance of the necessary legal formalities, and rendered the decision, but there was no prosecuting authority, and whether the injured party sought redress through vengeance, which was considered lawful, or through private settlement, or at the thing, it had to be done through his own initiative and at his own expense, which made justice costly and difficult to obtain. The Code of Magnus

Lagerbatter introduced great changes in the principles of Norwegian jurisprudence, by altering fundamentally the conception of crime, as well as the method of punishing the criminal. it greatly reduced the opportunity of the aggrieved party to seek redress through personal vengeance in case of murder the criminal should be turned over to royal officials who would cause him to be tried and sentenced by the thing if guilty he was declared an outlaw and any one might kill him but the relatives of the person slain could not harm the slayer before he was tried and sentenced the king had the power to pardon the offender and the plaintiffs in the case would then have to be satisfied with a money payment In case of other personal injuries, personal revenge was also forbidden.

The injured party should complain to the royal officials, whose duty it should be to appoint judges to decide the case, and fix a date for the payment of the fine. If the fine was not paid, the plaintiffs might resort to revenge, but the punishment inflicted should be in proportion to the injury. Crime was no longer regarded as a private affair, but as a violation of the laws and an offense against the state, which should be punished by a fine paid to the king in addition to the fine paid to the party injured. These fines should be assessed by persons chosen by the royal officials, and not by the parties in

the case. The public officers were given greatly increased powers of apprehending, detaining, and punishing criminals. The code also created a system of public prosecution, according to which the things might take the initiative in bringing the criminal to trial. It established the following principle. Every freeborn man who is of age shall bring his own suit, but if he lacks the necessary knowledge or ability, the royal officials shall bring the suit in his behalf. The judges were not

only to hear the witnesses and pronounce the decision as heretofore, but they were instructed to examine carefully the motives of the person accused and the circumstances in the case, whether the crime was committed without provocation, whether it was done in self-defense, or whether other extenuating circumstances existed. The code says, For this purpose courts of law are instituted that there the wrong and misdeeds are to be measured,

and the decision should be rendered according to the circumstances of the case, as the thing mained and the leader of the court find the truth to be before God and according to their own conscience, and not as many a fool has hitherto answered that they judge only according to the law. This new system of jurisprudence, which placed the administration of justice almost exclusively in the hands of the state, increased greatly also the power and dignity of the king. J. E. Sars says,

in the provincial laws, i.e. the Gula-Things-Lav, the Frosta-Things-Lav, etc., he was still regarded as a semi-private person. His authority had the character of certain well-defined rights which once for all had been given to the royal family, a sort of private domain whose well-defined borders he could not overstep without coming into collision with the rest of society. The Code of Magnus Lagerbatter, on the other hand, placed him as an exalted majesty above the people.

It says that he has his authority from God, and from this theory it deduces a duty of obedience to him to which no fixed limits can be given. The Code expresses this principle as follows. The king has received from God authority in secular matters, but the bishop has received spiritual authority in spiritual matters. Because they are God's officials. Secondly, because all recognize that they can in no way dispense with them.

Thirdly, that God himself deigns to call himself by their name. He is, indeed, in great danger before God, who does not with perfect love and reverence uphold them in the authority to which God has appointed them. Together with the conception that the king was divinely appointed followed also, as a natural corollary, the idea that he was the fountain of justice.

The log-mained, who were royal appointees, presided over the log-things. Civil cases could either be brought before the Herod's thing, local thing, or it could be submitted to the Logmand. From his decision, an appeal could be taken to the Log thing, which could only lay the matter before the king. The Herod's things were assembled and presided over by the Sisselmaine, who appointed the judges and executed the decrees of the court.

In criminal cases, in which the extreme penalty was inflicted, an appeal could be made to the king, who possessed the power of pardon. The change which was thus quietly brought about in the character both of the government and jurisprudence was probably greater than the people themselves realized. In pagan times, the laws were regarded as springing from the gods themselves, hence they were considered as being permanent, almost unchangeable. In reality, the old laws were

the embodiment of old customs and usages expressing the nation's sense of legal justice at an earlier stage of development. These customs had indeed been modified by earlier lawgivers, but their fundamental common law character still remained. The new code, though sanctioned and adopted by the people, regarded laws and justices emanating from the king, whom the people owed loyalty and obedience, not only because he was the head of the state and occupied the throne by inherited right

and with the people's sanction and consent, but because he was God's anointed and ruled by divine right. This view is most clearly expressed in the king's mirror, written as already stated about 1250. The father says to his son, Now the king, as thou saidst, ought to be wise, well-informed, and also upright, so that he fully understands that he is only God's servant, though he is so highly honored and elevated to such great dignity in God's service, that all bow before him as before

God himself. Because all serve God and the holy name which he, the king, bears, but not his own person. It is therefore the very essence of royalty that all have great fear and awe before the king, so that no one is irreverent when they hear him mentioned. The king is appointed to watch over this holy house, i.e. the course of law, and he is placed in the holy seat to guard God's holy decrees. He shall so judge between men in matters pertaining to the body that he may receive eternal

salvation, and likewise all others who watch over the decrees which are justly rendered. In his hands God has placed the sword of punishment, with which he is to strike when it is necessary, as we said that King Solomon did when he subjected Job to the punishing sword, and many others with just punishment. This development of kingship was not due to a at an innovation by Magnus Lagobother. The idea was latent in the nationalism introduced into

Norwegian political life by Harald Harfagra and his successors, Olaf Tryggvason and Olaf the Saint. Harald Hardrada and Olaf Kira had nursed it, but King Sverre's triumph over clergy and aristocracy and his position as head of both church and state brought it to full unfolding. In Hagen-Hakonsen's reign, it was so fully established that he could proclaim it officially in his code without a word of protest being uttered. After publishing the general code,

King Magnus also undertook to revise the Bjarkiarether, or city laws, a work which was no less urgently demanded. In earlier days the towns and trading places, yet in their infancy, did not constitute independent communities, but belonged to the districts in which they were situated. Nideros stood under the jurisdiction of the Frostithing, Bergen under the Gulaithing, Oslo and Turnsburg under the Borgerthing.

The growth of commerce and the development of town life necessitated special legislation for the regulation of the growing urban communities. The Bjarki-Jarretar gave them a character distinct from the rural districts to which they originally belonged, and may be regarded as their first distinct organization as cities. They received their own molt, corresponding to the thing of the rural districts,

where matters pertaining to trade and to the public peace and order were decided. The mot consisted of all permanent residents, husfastermen, all of whom enjoyed equal political rights. The cities also had their own courts of law, the Sjaumana Domar, a tribunal of arbitration for settling legal disputes,

and courts for trial of civil suits. But in matters of more general character, they were still subject to the log things, the city courts being legal tribunals of secondary rank. The chief executive officer was the Gjaldkere, who acted as major and chief of police. This first development of city government took place,

as it seems, in the 11th century, during the period of commercial progress in the peaceful reign of Olofkir. The new Code of Municipal Laws, which was published in 1277, was based on the old laws of Bergen, and seems to have been intended primarily for that city. Bergen was at that time the largest city in Norway, and one of the most important commercial centres on the shores of the North Sea. Its municipal government was highly developed, and might well serve as a model for

the municipal laws for all the cities of the kingdom. One of the chief features introduced by the new code was the creation of a birad, or city council of twelve members, which together with the logmand and yoldkerry, had charge of the administrative affairs, and acted as judges at the town mot. The cities received also their own logthing and logmand, i.e. their own superior course of law, corresponding to the general logthings, which hitherto had exercised jurisdiction

also over the cities. The logthings should consist of twelve members from each quarter or precinct, appointed by the Gjaldkärr, and the Sisslmend, a new city official who shared with the Gjaldkärr the highest administrative authority. The power of the Sisslmend was gradually increased until he became chairman of the council, and the most important official in the city. The liberties granted the cities by the code of Magnus Lagerbatter, made them wholly independent of the rural districts,

and facilitated the development of city life and government. Even before this time the merchant class, or citizens of the larger towns, had been regarded as a separate fourth estate, distinct from the nobility, the yeomanry, bender, and the clergy. The new municipal code of laws for the herd was also revised by King Magnus. Laws defining the rights and duties of herdmane had existed from very early times. Occasionally revisions had been undertaken to bring them into harmony with more

advanced culture and increased refinement of courtly etiquette. Such revisions had been made especially by Olaf the Saint and Olaf Kyre, and the old laws were finally collected in a single code, the Heerthsgrau, which was again altered and enlarged by Magnus Lagerböter. In this revised edition we find first the law governing the succession to the throne as it had been changed and adopted in the reign of King Magnus. Then followed the laws dealing with the organization

of the herd, and the duties and privileges of the various classes of herdmaine. Next to the duke, or jarl, in dignity, were the lendermaine, who were the king's advisors, and could keep forty armed followers, or huscarlar. Equal in rank with the lendermaine was the king's chancellor, who was keeper of the great seal, and prepared all royal letters and documents. He was usually an ecclesiastic. Next to the chancellor in dignity was the Stalera, who represented the king at the

thing and acted as the leader of the herd. With these is classed also the Merkismather, or royal standard-bearer, and the Skutelsweiner, or officers of the herd, who on special occasions waited at the king's table. To the Skutelsweiner belonged also the Drotseti and Skinkjari, who had charge of the king's household. The different classes of the herd, herdmend, gester, huscarlar, and curtisweiner, have already been spoken of. In 1277, King Magnus gave his lendermend the foreign

title of barons. The skutelsweiner were called knights, and both classes were styled lords. This was not only a change of name, but marks the beginning of a new nobility, which appears later besides the king as the real rulers of the kingdom. Professor Aschehug shows that the new nobility developed from the herd, which afforded the chieftain class the opportunity to win honor and promotion in the personal service of the king.

But the real foundation for their power was their ownership of land. The system of leding, Old Norse Leidranger, was also changed. The people of the seacoast districts had hitherto been required to supply the navy with arms and provisions, while in time of war they had to furnish armed men, and to render military service in proportion to the value of their land. But as the navy was now but seldom called into active service,

the Leding was changed into a general yearly tax of the same name, which corresponded to the Visore tax for the inland districts. An attempt was also made to strengthen the military forces of the kingdom. The Sisselmand were instructed to keep a certain number of armed men in each Ski-Brede, or Naval Military District, and those who held beneficios under the crown were required to furnish one warrior for every three marks income. But the standing army thus created was

not very large. Many features of Magnus Lagerberther's reign are imperfectly known owing to the loss of one of the chief sources for this reign, namely the Magnus-Hakonsson saga, of which only a fragment now remains. King Magnus's oldest son Olaf died in 1267. His remaining sons were Erech, born in 1268, and Håkon, born in 1270. At a thing assembled at Bergen in 1273, the five-year-old Erech received the title of king as heir apparent to the throne, while Håkon was given the rank of

duke. This was, evidently, done to secure an undisturbed succession in conformity with the provisions of the law. End of chapter 71