In Denmark, Archbishop Eskil displayed an attitude similar to Eystein’s and, like Eystein, also ran into conflicts with the kings, including Valdemar I (1157–82), particularly when the latter—under the influence of Frederick Barbarossa—recognized the anti-popes against Alexander III during the 1159–1177 schism. Eskil’s relationship to Valdemar may, however, also have been influenced by the fact that he belonged to a kindred in Jutland with ties of loyalty in other directions. By contrast, his successors Absalon (1177–1201) and Anders Sunesen (1201–1222) from the Hvide kindred, whose links to Valdemar and his successors were strong, had an excellent relationship to the king, despite the fact that they belonged to the same highly educated and internationally oriented clerical elite as Eskil.
In hindsight, it is easy to see that the medieval Church was a competitor to the state. This is evident from the great increase in the state’s wealth and power that followed on the Reformation, when the king took over most of the lands of the Church and its personnel became directly subordinate to him. In the twelfth century, however, the situation was different. Then the expansion of the Church meant an expansion of public authority that also benefited the monarchy, and although a large part of the lands belonging to the Church were gifts from the king, he would probably have had to give it to secular aristocrats if the Church had not existed. If we consider the conflict in the two countries in a broad perspective, the picture of a head-on clash between the monarchy and the Church is considerably modified. The support Erling and Magnus received from the Church was well worth their concessions, and the conflict in the following period can largely be explained as the result of the change of dynasty. An alliance had been concluded, not primarily between the Church and the monarchy, but between the Church and a particular faction. Eystein as well as his successor Eirik had family and personal links to this faction, which at least to some extent explain their support for Magnus and their sour relations with Sverre.
Thus, the difference between Eskil and Eystein on the one hand and Absalon on the other cannot be explained simply by different attitudes towards ecclesiastical reform and the relationship between monarchy and Church, but must also be understood in the light of their family and political loyalties. This does not mean that the ecclesiastical loyalties of these prelates and their embrace of the Gregorian reform should not be taken seriously, but it must be kept in mind that they had to maneuver between sometimes conflicting loyalties. Contrary to Melchisedech, who having no father or mother was the ideal priest, medieval prelates did not burn the bridges that linked them to their families and social networks. Wealth, interests, a common culture, and common education linked the clerics to one another, but they still had divided loyalties, which means that the individual prelate’s political and ideological choices have to be determined in each separate case, not taken for granted because of his position within the Church.
Despite the fact that the expansion of the Church was no unmixed blessing for the monarchy, it is difficult to imagine a similar bureaucratization of any function other than the religious under contemporary conditions. Thus, the Church contributed greatly to social change and to the formation of a society that was significantly more structured than that of the previous period. The rise of the ecclesiastical organization therefore forms an important part of the explanation for the stability of the three kingdoms. The fact that the borders of three Church provinces corresponded to the national borders (with one exception, namely that a part of Norway, Jämtland, which belonged to the Swedish church province) obviously favored stability. However, this coincidence of state and Church was an exception internationally, and the medieval Church played a similar part in other countries. It is often understood as primarily an international organization under the leadership of the pope, whose ability to interfere in the affairs of the national churches was no doubt impressive. Nevertheless, the Church also held to a doctrine of obedience to secular authorities derived from the New Testament and transferred from the Roman emperor to national kings. The bishops depended on the king for internal peace and quiet and were normally interested in maintaining a good relationship to him. Many of them held len from the king or served as chancellors or members of his council. Other prelates had similar offices in the royal bureaucracy.
The aid the Church could offer a king with whom it had a good relationship can be illustrated by a passage in Archbishop Eystein’s Canones Nidrosienses. The text notes that clerics are forbidden from taking part in war and exempted from the tax collected for this purpose, but then continues:
But we want the bishops, the abbots and the other clerics … to exhort the people … to fight bravely against excommunicates and disturbers of the peace, reminding them that if they die in the faith for the protection of the peace and the salvation of the fatherland, they shall win the kingdom of heaven.
This is the international crusading ideology transferred to domestic conflicts. We know, too, that the precept was followed; Eystein as well as other bishops preached against Sverre and his men, and Sverre in a speech after a victory parodied their propaganda, urging the audience to rejoice at all his fallen enemies who have now entered heaven. The Church had introduced an ideological element to struggles over power and resources, where loyalties had so far been based on personal connections. In the long run, the new faction that came to power with Sverre would exploit a similar ideology and eventually get the Church to support the ruling dynasty and admonish the people to obey the king as the Lord’s Anointed. Both in Scandinavia and in other areas, there are many examples of bishops supporting the king in conflicts with the papacy.
An even stronger link between the monarchy and the Church was established in Denmark under Eskil’s successor Absalon (archbishop 1177–1201). Absalon is the great hero in Saxo’s chronicle, fighting together with King Valdemar against the pagans. He acts as a general, bringing his own troops into the battle, making tactical and strategic decisions, and even fighting in person and killing several enemies, despite the ban on clerics shedding blood. When Valdemar falters, Absalon urges him to stand firm. Thus, when Valdemar is reluctant to risk the lives of many brave men by engaging in battle, Absalon asks whether he would prefer to lead cowardly ones. Absalon also acts as a diplomat, as bishops often did, in negotiations with pagan enemies as well as with the German emperor. As a cleric in Absalon’s service, Saxo no doubt exaggerates the virtues and importance of his master, but the relationship between Absalon and the king, first Valdemar and then his son Knud, nevertheless illustrates the value of the Church and its leaders for the development of the monarchy.
From the king’s point of view, bishops and prelates were desirable officers as they had administrative skills and legal learning, as well as the advantage that their offices were not hereditary. If the king could influence their elections, as was often the case, he might thus gain subordinates who owed their office to him and who could be replaced by others equally beholden to him. The prospect of a bishopric would also serve to make royal service more attractive. With such links to the king, the prelates also had the same interest as their counterparts in the secular aristocracy in national independence; for there was no guarantee that they would receive similar favors from the king of the neighboring country. This does not mean that bishops and archbishops never opposed the national king or allied with other kings against him, but such cases were the exception rather than the rule.
Figure 7. Illustration after the tombstone of Niels Jakobsen Ulfeldt, Bishop of Roskilde, d. January 18, 1395. The bishop wears full liturgical clothes and episcopal insignia: a miter, a staff, and the gloves with the ring, while the chalice, symbolizing the Eucharist, appears on his breast. Drawing: Søren Abildgaard, 1764. Lithograph by R. Hartnack, from J. B. Løffler, Gravstenene i Roskilde Kjøbstad (Copenhagen, 1885). Photo: Dept. of Special Collections, University of Bergen Library.
Justice: Royal and Ecclesiastical Legislation and Courts of Law
In the saga of Egil Skallagrimsson, composed in the
first half of the thirteenth century, the protagonist Egil goes to Norway to take possession of the inheritance of his wife Asgjerd, whose father has just died. To achieve his aim, Egil has to challenge his brother-in-law, Berg-Onund, who claims that Asgjerd has no right to inherit, because she descends from slaves and was not born in legitimate marriage. The two parties meet at Gulating, the legal assembly (thing) in Western Norway. They present their case before the judges, thirty-six altogether (=12 × 3), who are seated in the middle of the plain where the thing is assembled, surrounded by sacred ropes. Egil seems to have a good chance, as his friend Arinbjørn controls two thirds of the judges. In accordance with the law, Egil presents twelve men willing to swear to his wife’s legitimate birth. However, Egil is the king’s enemy, while Berg-Onund is his friend, and the king is present at the thing. The king is reluctant to intervene, but his wife, Gunnhild—the classic wicked queen of the sagas—has her men attack the court, cutting the sacred ropes and chasing the judges away. A strong case and lawful witnesses are of no use; the king and the queen are able to prevent a settlement. We may in addition note a reference in the saga to Arinbjørn’s control of the court. Would this have been a more important factor than Asgjerd’s legitimate birth and Egil’s oath-helpers if the king and queen had not been there? Was the problem from Egil’s point of view not that the queen interrupted a legal proceeding, but that she cancelled the advantage Egil had because of his friendship with Arinbjørn?
The account in the saga is of course no unimpeachable record of what went on at the mid-tenth century Gulating. However, the thirteenth-century Icelandic family sagas and the contemporary Sturlunga Saga give ample evidence of legal practice in similar situations, before the submission to the king of Norway and the reception of Norwegian law. Although we cannot apply conclusions drawn from pre-state Iceland to the rest of Scandinavia in the early Middle Ages, the early laws from these countries indicate that legal practices there were in many respects similar in the early period, until around the mid-twelfth century.
First, the system was based on formal rules and procedures and relied on the testimony of formally appointed witnesses or oath-helpers. Thus, when sued, a defendant had to prove his case by compurgation, aided by between one and eleven co-jurors, the more jurors the more serious the accusation. In some particularly serious cases, he or she might also have to undergo an ordeal, by carrying or walking on hot iron or by fishing an object out of a boiling kettle (the latter ordeal was mostly used for women). Witnesses were widely used, though their function differed from that of witnesses as we know them in later courts. All contracts and agreements were entered in the presence of formally summoned witnesses who had the same function in an oral society as written documents in literate ones. Such witnesses would then be required to testify in court.
Secondly, justice was not administered by public authorities acting independently but always as a resolution of conflicts between private parties. There was no distinction between civil and public law. Thus, a murder case would be dealt with in the same way as a dispute over property and would be settled by the killer or his kinsmen paying compensation to an injured party. There was no police and no office of a public prosecutor; it was up to the individual to claim his or her rights.
Thirdly, there was a thin line between legal and extralegal disputes. Examples like the one in Egils Saga of the stronger party breaking off the proceedings by the use of violence abound. Sufficient manpower was therefore needed to win a court case. Moreover, at least in the Icelandic sagas, a court decision rarely constitutes the final solution to a conflict, but is rather a means to achieve an advantage over an adversary, which may eventually lead to a favorable settlement.
All this changed over the course of the twelfth and thirteenth centuries. The Church introduced the idea of crimes against God and society, and took steps to punish them, as is evident from passages in the oldest Norwegian laws about punishment for failing to respect the ecclesiastical holidays. For a long time, such prosecutions had to be conducted within the framework of the old judicial system, where the bishop or his representative acted like any other individual who felt himself wronged, but it led gradually to the development of ecclesiastical prosecution and courts of law. Public justice was based on the idea that certain acts were offenses against God, society, and the social order and had to be punished. It was not only damage done to an individual or a kindred that had to be repaired or compensated. Thus, a concept of crime evolved and, beyond that, the idea of subjective guilt, which meant that not only the act itself but its background and the criminal’s intentions had to be taken into account. Crimes committed as the result of weakness, without knowledge of the seriousness of the act or under duress, should be punished mildly, whereas those done out of haughtiness or malice should be punished severely. This is not to suggest that the distinction between intentional and unintentional acts was unknown in the previous period, but such a distinction was more difficult to apply when there was no judge above the parties.
Ideas introduced by the Church were eventually adopted by the king. An early example is the peace legislation from Norway in the 1160s and Denmark around 1170, which identified acts that could not be atoned for by fines but instead rendered the criminal an outlaw. Outlawry in itself is probably older as a punishment for actions that affected the whole community, but these particular laws are so similar to decrees from the first three Lateran Councils and to German peace legislation that there can be no doubt about the influence. The crimes mentioned are killing under particularly aggravating circumstances, sorcery, highway robbery, rape, and the seduction of women. In practice, a criminal could atone for even such a crime by fines; but he would have to “buy his peace” from the king at a heavy price. (The expression indicates that he had lost his “peace” or right to remain in the country because of his crime, and would have to buy it back.) The king followed up by punishing killings, theft, violence, and other offenses against the public order. Although in the beginning, the king only demanded fines for offenses against himself, he eventually did so for most acts defined as crimes, although on the condition that the offended party had sued.
An important step in this direction was taken in Denmark with King Knud VI’s 1200 ordinance against homicide. In his 1260 ordinance, King Håkon Håkonsson of Norway forbade revenge on any other than the killer himself, whereas earlier, his relatives had also been legitimate targets. Håkon also decreed that an offer of compensation had to be accepted, whereas earlier it had been up to the injured party to choose between revenge and compensation. Håkon’s successor Magnus, nicknamed the Lawmender, went one step further and almost completely banned revenge.
A change in the field of evidence paralleled the new distinction between private and public law. The Church had long distrusted the compurgation oath, which was rarely used in canon law. A papal letter of 1218 to the archbishop of Lund denounces it as a pestilence and contrary to all justice. Nevertheless, compurgation continued to be widely used in Scandinavia throughout the Middle Ages, although it was to some extent supplemented by other forms of evidence. By contrast, ordeals were eventually abolished by a decision at the Fourth Lateran Council in 1215, which forbade the clergy to participate in them. In practice, they disappeared: in Denmark soon after 1215, in Norway in 1247, and in Sweden in the 1250s or 60s, though in Sweden the ban had to be repeated as late as the 1320s. Now, instead of a defendant proving his innocence by formal means, both parties had to present their evidence before the judge or judges who would decide on this basis which party was in the right. The new principles are expressed in Denmark in the Law of Jutland in 1241 and in Norway in the Code of the Realm of 1274, with some anticipation in previous legislation. Thus, in the latter, a defendant accused of murder has the opportunity to prove his innocence if he can produce twelve men who are willing to swear that they were present with him at a place so far away from the site of the crime that he could not have committed it. Here the compurgators are not only men of good r
eputation, but provide the necessary information to give the accused person an alibi, thus resembling witnesses rather than oath-helpers.
These changes in the understanding of crime and legal evidence necessitated changes in the administration of justice. Skill and education were needed both to evaluate the evidence presented in court when it was no longer formal, and to mete out punishment in accordance with motives and circumstances in criminal cases. A court of law also needed authority to intervene against powerful men in local society. Consequently, the administration of justice was professionalized. This applied above all to the ecclesiastical courts of law, where the bishop was the highest judge. He often had a university education in law and in addition often delegated his judicial powers to officers with a similar education, to his deputy (Lat. officialis) or to provosts or archdeacons. However, ecclesiastical courts continued to use local people, mostly as witnesses but to some extent also as judges.
Secular courts made greater use of ordinary non-professional people. Both in Denmark and Norway, the judges were normally committees of local men, similar to English juries, in Denmark either permanent committees or committees appointed by the plaintiff. Norwegian juries were selected from the local assemblies, probably by the lawman (lagmann, Old Norse lọgmaðr), a royal judge appointed by the king. From the second half of the thirteenth century on, the country was divided into ten districts with one such judge in each. The lawman was originally a member of the local assembly who was well versed in the law, and who was supposed to quote the relevant passage from it for the assembly to use in its decisions. Later, he was appointed by the king. He might in some cases judge alone, but in cases of serious crimes normally acted together with a local jury; if the two disagreed, the case had to be appealed to the king. According to the Code of the Realm, only the king might set aside the lawman’s decision, “for he is above the law.” In this way, jurisdiction was governed by the king in a much more direct sense in Norway than in either Denmark or Sweden. Although local society played a prominent part in all three countries and most cases were probably decided either by local juries or local arbitration, there was a direct link from the king to the local courts in Norway, which was absent in the other Scandinavian countries.
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