Urban legal culture and the practice of law
Turning to the legal practice in Norwegian medieval market towns, a brief comment on the Scandinavian legal system as it had developed up to the late thirteenth century will be helpful.
The traditional medieval lawscape in the Old Norse world was the þing, a representative assembly, which was held outdoors in a designated and preferably neutral place.59 Provincial assemblies, called the lǫgþing, were the highest organ of justice in the kingdom, presided over by the lǫgmaðr/lagman (lawman) who sat together with a jury, but assemblies were regularly held for smaller regional entities such as a county (fylki) or farthing (fjórðungr) as well as in each local community. The Nordic institution of the þing was also part of town life, although the town assembly was usually termed a mót (�meeting’).60 In the late thirteenth century, however, a number of the provincial assemblies were moved from their original rural sites to the leading town in the province.61 For example, the county assembly (fylkisþing) was held in the market town of Veøy in 1439.62 Town assemblies were originally held outdoors but came to be held within a town house beginning in the fourteenth century.63The written law codes in Norway set out a very detailed regulation of the legal system. However, there were several alternatives to judicial solutions, including out of court settlement or vengeance and, in any case, it was not a given that parties would want to or would be able to involve the courts in a conflict. Although authorities encouraged an official administration of justice in towns and countryside, it was not necessarily the favoured option of any of the parties involved. However, as written records became the norm, some actions, such as transactions of property, must have made the services of the law court desirable, including for those living in or around the market towns.
The Code of the Realm and the Town Law also came with a provision that demanded the parties �to make a letter’ (gera bref) after a sale.64 Accordingly, a substantial proportion of the charters concern transactions of property and privileges.65 When a man called Josepper in 1356 sold a large property in Sunvin (western province) to one Þronde for the value of 36 cows, he had the transaction witnessed in writing in the town of Kaupanger.66 Although the parties might not have lived in the town themselves, they may have sought the services of the town officials to record their agreement. It would seem that the two men’s legal expectation for their transaction was for it to be recorded in writing. The same charter (or diploma) includes a highly specific description of the timing and contents of the two instalments already paid by the buyer and those agreed upon for the future. The procedures between Josepper and Þronde are in accordance with the instructions for disposing of property in Code of the Realm, which makes sense as the property sold was situated in the rural area.67 This is one of the few cases that can be followed until its resolution: three years later, the lawman of the provincial assembly wrote a charter to state that he had witnessed the pair transacting again, now in Oslo, on the other side of the country from Kaupanger.68 And in 1360, it was recorded that Josepper had received the full payment from Þronde. The dominance of provincial property in the diplomas suggests that the small towns were largely meeting places for rural activities.The issue of location leads to the question of what constituted the spaces of law in a market town. Where did the parties meet the representatives of the law to have their cases heard and transactions witnessed? It appears that during the fourteenth century, a court of justice with an official representative gradually replaced the mót as the active judicial institution.
Little evidence exists of attempts to systemise legal proceedings, as opposed to the law itself, leaving few clues regarding any common understanding of what constituted the typical court site in a town. Legal charters from the Norwegian market towns rarely disclose where a case was heard. The sparse and diverse evidence from the sources may provide an accurate representation of the inconsistent realities of urban justice. The physical space of law may well have taken diverse forms in the market towns, and practical considerations rather than standardised concepts may have dictated where the town’s court of justice was held. It is not certain that the market towns had a specific town hall in this period, or any public buildings at all. Most of the charters from market towns were witnessed in town houses, possibly the homes of the officials. For example, one mention of the physical judicial space is found in a diploma from Kaupanger, where a settlement of an inheritance in 1337 was conducted �in the common room of the Brasi house’ (i stofuni i Brasa garðe).69 Although the location of the Brasi house is unknown, it was likely one of the town houses in Kaupanger. From Sarpsborg, we learn that the legal recording of one transaction of 1367 took place �in the common room of the priest’s house’ (j stofuonne a præs gardenom).70 Priests were literate and belonged to the social elite, a further indication of legal affairs conducted in spaces controlled by governing officials. The lawman of Skien (Skiðu/Skidu) stated that he heard cases in the gestgardenom, the guesthouse, in March and May 1341.71 This building was possibly a public house in which he lodged and exercised his office while in town. At some point, the assembly in Skien was moved to a permanent building, and the settlement of a fishing rights dispute from 1400 mentions the hearing taking place in its common room (gaardszstufunne).72 The number of witnesses, as recorded in the charters from market towns, further suggests that these cases were smaller, more confined events, which were not held in front of the town population like a mót. Some larger towns may have had designated buildings for judicial activity, but the market towns most likely combined judicial activity with other meetings involving the king’s ombudsman. As a result, they used a room or building suitable for this purpose.In addition to the question of where the space of law was or was expected to be in the towns, one may ask who performed justice in the market towns and to which level of society those seeking and executing justice belonged. The witnesses and validators appearing in the charters usually belonged to the regional elite. In cases from the larger towns, we can typically find prominent figures imposing determinations. In the above-mentioned case from Oslo, in which the peasants were fined for summoning individuals to a town assembly themselves, the fine was witnessed by the lawman, the bishop, the archpriest, the mayor and seven members of the Oslo city council.73 This was a very high-ranking group of men in what we must assume was a momentous and high-profile case. We find high-ranking judges in the market towns as well: from Konghelle, we have nothing but documents of royal origin or concerning conflicts and agreements within the royal administration.74
The regular cases involving property transactions in market towns often involved the elite as well. A charter concerning land rent from 1321 written in the northernmost town in Norway, the market town of Vágar, was witnessed by the lawman of the province of Hálogaland together with the priest of the powerful Þrondarnes church.75 While the land in question, Sandtorg, was under the Þrondarnes canonry, it was not part of the church’s land but owned by the equally prominent Erling Viðkunnsson, a prominent estate holder in the region and, two years later, the high steward of Norway.76 This diploma of land rent written in Vágar thus involved three of the highest-ranking men in the region. In these cases, it was apparently not the idea of a liberating stadtluft or the impact of the new Town Law that caused the transaction to be recorded in the market town instead of elsewhere.
On the contrary, the town was merely the location where high-ranking officials stayed and executed their office; it did not serve as a particular sphere of jurisdiction. Regarding the medieval Scottish burghs, Hector MacQueen and William Windram have asserted that modern historians have stressed the distinction between the law of the burghs and the law of the realm more than medieval subjects would have done.77 It is evident that the distinction was similarly blurred in the Norwegian market towns as the rural cases dominate the surviving charters originating in them. The relatively weak urbanisation of Norway seemingly upheld the value of landed, rural property over urban property. Although the market towns could be remote in a Norwegian or European sense, the wealth of the political and economic elite that lived in them could be significant, as demonstrated by a dowry list from a wedding in Vágar in 1335.78 The bride, Jngibiarghar, was the daughter of Jwar the lawman. The groom, Þorlæifr, was the son of Sigurðr, who had the byname bonde, indicating that they were estate holders with oðal (allodial land).79 The dowry consisted, in addition to property and fish products, of 74 items, valued at 10 marks gold, representing the full extent of the northern networks, with an English wool carpet, four high-quality items of German cloth, a coffer with German ironwork and fine pelt work. In return, the bride received a counter-gift. The rich dowry identified Jngibiarghar and Þorlæifr as being among those who would be considered elite in any part of Europe, and the regional town of Vágar was a suitable location in which to record this marital transaction.80 The above-mentioned inheritance distribution heard in the Brasi house in Kaupanger included three prominent local men: Sira (priest) Hauk, Thorstein Skolle and Erp Björnssön were witnesses in November 1337 in an agreement regarding an inheritance involving three farmsteads.81 The precise status of the latter two men is unknown, but they both testified with seals which is an indication of their aristocratic status.82 The parties that were involved, Ordrek with his nephews and Endride Botolfssön with his paternal grandmother, are also thought to have belonged to the aristocracy.83 The case was therefore a transfer of property within the land-based elite of Kaupanger’s hinterland, witnessed by their peers.Private legal contracts without prominent figures among witnesses can also be found.
One example is a letter from Borgund dated 1338 proving a sale from a certain Karl to a certain Simun of a property with the value of two months’ rent in kind (manaða mata læigu), making it a very modest property.84 The property belonged to Karl’s wife Gyrid and, we learn, it had previously been parcelled out from a larger property belonging to Gyrid’s aunt. The contents of the Town Law relied on the Code of the Realm for sorting out inheritance and agricultural questions.85 In market towns, these two topics frequently arose in matters of law. An equally humble sale was registered in Sarpsborg in 1367, when three parts of a farmstead further south were sold by a married couple to one Hallæ Dyra, who had already acquired one and a half parts from the wife’s former husband, and had transferred the first down payment.86 These registered transactions bear witness to an existing legal culture among the parties which consisted of a shared knowledge of law and common expectations and traditions with regards to legal practices. Furthermore, the parties seemed to have possessed a perception of justice that was in accordance with written procedures, but that more likely reflects an understanding of common legal standards that had been recorded in the Code of the Realm. The latter two cases also demonstrate that people outside the elite in society had insight into the legal procedures that were relevant to be able to function within their own economic boundaries, although this insight was not necessarily based on first-hand knowledge of the written law, but rather on an understanding of existing laws. In the cases from both 1338 and 1367, the parties had made arrangements following common legal standards before setting out to register their agreements. The documents do not oppose the instructions from the Code of the Realm, although they do not quote them.87 Those involved knew the ideas behind the law, if not the law itself. We also see in these examples an expectation by the parties involved that both the transaction and the agreed-upon proceedings would be recorded and witnessed by official legal specialists, such as the lawman and town magistrates. Although the cases were embedded within a legal culture, they do not provide evidence of a particular urban legal culture having emerged in Norwegian society. The only �urban’ element in these cases is the fact that they were recorded within towns. There are similar examples of legal transactions in this period taking place outside the few urban settlements. The town was probably used as the site of the transaction because of its convenience; it was where the legal officials held office.Several studies have illustrated that the body of legal officials was sometimes mobile, visiting some of the important local assembly sites or commercial emporia of their region.88 Nevertheless, in the early fourteenth century, the administration seems to have established itself in the urban settlements, with the rural population present or represented in the town. One example is when Þorer, baron and district governor in the town of Skien, registered a statement that he had heard testimony in a disputed property sale case while traveling in the province.89 The Code of the Realm describes a procedure of producing witnesses and presenting them before the court in disputed sales.90 Therefore, the legal activity in the towns touched upon the rural assemblies, which means that it is impossible to consider the legal spaces of town and province as having been strictly separate. It is similarly impossible to identify two distinct legal cultures, one with urban and one with rural qualities.
Although most documents concern the friendly transfer of property, we also find disputes being settled in market towns, such as the above-mentioned conflict over fishing rights in Skien in 1400.91 Furthermore, some cases involved �criminal’ matters. Again in Skien, a murder case was reported to the king in 1325 by district governor Hakon, son of the above-mentioned Þorer.92 In 1341, another murder case was presented to the lawman Thord Thorgilssön and ombudsman Björgulf Astasön, again in Skien.93 In this case, the two administrators attested to having heard prov (proof) regarding Tholf who had killed Olaf. On this point, the Town Law followed the Code of the Realm, which stated that no one other than the one guilty of homicide should pay compensation and fines and that the victim’s closest heir should be the recipient.94 In this way, the law released both families from any involvement. The revisions of King Magnús (�the Lawmender’) saw changes to procedure that brought the Code of the Realm into line with European developments in legal thought and procedures, with a clearer divide being made in general terms between homicide in the first and second degree: murder would be punished with exile and/or death while homicide would be amended through the payment of fines and a compensation. The law included procedural innovations in the case of homicide. Rules on investigation were added; in the so-called prov, an oral testimony with a description of the events was to be recorded.95 The �proof-taking’ that we see in these two cases was only one part of the investigation. The investigation was then used to determine what verdict should be given to the guilty party through an exploration of the graveness of the action. The king was himself invested with the right to show mercy to the accused. The fact that the proof-taking was done in Skien may have been coincidental. Ombudsman Björgulf similarly attested to a homicide testimony having been given in 1337, but then in Mærden, just north of the town, possibly at the site of the homicide.96 Notably, a large portion of the charters concerning prov originate from Skien and its province.97
From the town Borgund, a charter from 1421 reveals a serious incident of name-calling.98 Insults, libel and defamation were crimes according to most European written laws including the Scandinavian legal tradition. In this prov, we learn that Haluard Erlendzsson had called Joon Sæmundasson a �damned son of a whore and a queer scoundrel’ (fendans skækeson oc arghan hieransson), and witnesses swore full oaths thereupon.99 Insult is one of the crimes addressed in the Norwegian Town Law, with a fixed compensation to the insulted party of four silver marks.100 The crime, resolution and sum are not exclusive features of the Town Law, though they are borrowed almost verbatim from the Code of the Realm, which itself had copied the punishment of insults from earlier provincial laws.101 The difference between the new Town Law and the Code of the Realm from the 1270s and the earlier provincial laws was that insults were one of the few crimes that continued to be settled through monetary compensation, while the possibility to redress with money for other crimes such as homicide, adultery and theft was restricted or abolished.102 While the new laws described insults and libel in general terms, the older provincial law Gulaþingslog included a short list of examples of verbal offences, including saying that a man had been sexually penetrated or that he was a prostitute or any of several animals of the female sex.103 Attacking an individual’s manliness was a grave crime according to many European laws, and the Gulaþingslog even gave victims the right to kill someone for such an offence. The Code of the Realm had superseded the old provincial law of Gulaþing for some 150 years by the time the case of Haluard and Joon came along. The case was referred to the provincial assembly of Gulaþing, held in the town of Bergen later in the year of 1421.104 There, the lawman awarded Joon compensation of five cows from Haluard, which was the equivalent of approximately four silver marks in the fifteenth century.105 Thus the fine both complied with the current law and reflected the older regional legal culture.
The Norwegian market towns of Borgund, Veøy and Vágar diminished in prominence during the fifteenth century. The protracted process of deterioration is only attested to by a letter from King Olaf in 1384 demanding that trade be conducted in these market towns and not in the fjords and the fishing stations, reflecting a concern that the market towns were falling into disuse.106 Their decline is traditionally explained in the context of the economic devastation in the wake of the plague that struck Norway in the late 1340s.107 The fact that legal letters were issued in these market towns at this time indicates that the fundamental legal and commercial functions of the market towns were nevertheless maintained during this process of decline. The weak urban tradition in Norway possibly intensified the de-urbanisation process in the provinces. During the fifteenth century, the northernmost provincial assemblies were moved from Vágar to the rural estate of Engeley across the fjord, and then permanently situated there.