What’s on the Case-List? Legal Texts and FeloniesRediscovered

Anne Irene RiisøyIn this article light will be thrown upon so-called case-lists, a medieval sourcematerial based upon abstracts of the Norwegian Christian Laws.

I have chosen tofocus on one aspect in particular: the case-lists also present medieval legislationotherwise lost for posterity, and we therefore catch a glimpse of unknown feloniescentred on taboos concerning food, sex and heathen practice; for instance, in a“kinky”combination so far unheard of: men having sex with women who atehorsemeat were liable to a fine of 40 marks. Following an outline of the case-lists,and remarks on methodological problems posed by these sources, the felonies willbe presented and placed in a historical context. Finally, I will address the questionof provenance of the case-lists.

Sources and method

Information has been obtained on the existence of 49 case-lists, the majority of which are still unpublished and scattered around in various Scandinavian libraries.

Two case-lists are printed with variants in

Norges gamle Love

, (a total of fivemanuscripts) and one has been printed with variants in

Diplomatarium Islandicum

(three manuscripts), which the editors, correctly I believe, have connected to theNorwegian material.

One case-list was printed as an addition to

Archbishop Jon’s Christian law

of 1273, as chapter 65, but Gustav Storm, one of the editors of

Norges gamle Love

, made it explicitly clear that the case-list did not properly belong there. According to Storm, it was rather to be considered an extract of the

old Christian law

Anne Irene Riisøy,

born 1965, Cand.Philol, is Research Assistant in the Department of History, Oslo University, Norway. She is currently engaged in research on the early church organization in Norway and sexual crimes in Norway,circa 1250–1600

. Address: Department of History, Oslo University, Post Box 1008 Blindern, NO-0315 Oslo, Norway.E-mail: a.i.riisoy@hi.uio.no

In medieval Norway the first section in the regional law codes is the Christian Law, which deals withreligious norms observed by laymen and the ecclesiastical organization, while the later sections dealwith secular affairs.

Norges gamle Love

, vol. 4, pp. 389–790, has listed all manuscripts containing legal material from theMiddle Ages, including a short description of the contents of each manuscript, and where it is to befound.

Diplomatarium Islandicum

, vol. 2, no. 97.

2002 Taylor & Francis

Scand. J. History

27, pp. 77–90. ISSN 0346-8755

Desse ere de sager/som ere Kongen oc Bispen emellem [These are the cases that belong tothe King and the Bishop].1. If a man or a woman eats meat three Fridays in a row, except to save their lives, theKing and Bishop are entitled to all their possessions.2. If a p[erson] eats horsemeat, dog or cat, the King and Bishop are entitled to allpossessions.3. If a m[an] sleeps with a woman who has been eating horsemeat, he must pay K[ing]and B[ishop] 40 marks.4. If someone keeps a heathen at home for more than one year, then K[ing] and B[ishop]shall have all his possessions.5. If a p[erson] for three successive years does not go to confession and take penance, thenK[ing] and B[ishop] shall take all his P[ossessions].6. If a person fails for three successive years to pay his tithes, then K[ing] and B[ishop]shall take all his P[ossessions].7. If a p[erson] leaves a Christian corpse at home to decay and does not take it to thechurchyard, he must pay K[ing] and B[ishop] 40 marks.8. If a m[an] sleeps with his mother, sister or those women [the] m[an] is related toaccording to the law, they both shall be outlawed and K[ing] and B[ishop] shall have alltheir P[ossessions].9. If a m[an] sleeps with a married woman and is previously reminded and judged anddoes not give up that woman, they shall both be outlawed, and K[ing] and B[ishop]shall take all their possessions.10. Men and women who are occupied with soothsaying, runes, heathen chants, whitemagic who are convicted of infidelity, they are outlaws and K[ing] and B[ishop] shalltake their P[ossessions].11. If a p[erson] is an infidel, and that is known in three farms, then the person who isknown to be a Troll and those who ride people are to be taken to the sea and sunk, andK[ing] and B[ishop] shall take their P[ossessions].12. If a m[an] has carnal dealings with cattle, and is convicted of it, he shall be punishedaccording to the law, and K[ing] and B[ishop] shall take their P[ossessions].13. If m[en] come to blows in church or churchyard, they are outlawed.14. In all usury, the King takes half, and the Bishop half, and 6 ore fined.15. If m[en] or women mistreat their children, and hurt them to death, deliberately, theyare outlawed, and K[ing] and B[ishop] shall take their Possessions.16. Men and women who run off with each other are outlawed, and K[ing] and B[ishop]shall take all their P[ossessions].17. If chairmen of the Church excommunicate someone, they are granted three months toimprove. Those who are excommunicated for three months and one year, they areoutlaws, and K[ing] and B[ishop] shall take their P[ossessions].18. In the first and second degree, K[ing] and B[ishop] take their P[ossessions].19. If the ombudsmen of the Church or the King’s ombudsmen collect money for thesecases, then this is replaced equally.20. If the case belongs to the King, pay the King and not the Bishop.21. If a m[an] sleeps with any of these women, it is outlawry. 1. A m[an]’s mother, 2. Hissister, 3. Daughter, 4. Stepmother, 5. Daughter-in-law, 6. Brother’s wife, 7. Son’sdaughter. And these women who are of the same near kinship: 1. Stepdaughters, 2. Abrother’s daughters, 3. A sister’s daughter’s, 4. The mother’s mother, 5. The father’smother, 6. The mother’s sister, 7. Father’s sister and a m[an]’s wife’s mother.

Scand. J. History 27 (2002)78

Anne Irene Riisøy

of the Gulathing

, the so-called Magnus text of 1164.

Other scholars have obviouslynot been aware of Storm’s statement, which has led to some misunderstandings,concerning both

Archbishop Jon’s Christian law

, and the case-lists.

I hope thisinvestigation will end these misunderstandings once and for all, and make othersaware of the potential of these sources. To support my arguments, one hithertounpublished case-list, which with slight variants appears in other manuscripts aswell, will be presented.

The first paragraph in the case-list is an extract of a well-known provision,paragraph 20 in the

Old Christian law of the Gulathing

, but this is not always the rule.

Jens Arup Seip drew attention to the fact that the case-lists might also reflectprimary legal sources now lost, because he found one felony listed in a case-list,which he was unable to find enacted in any Christian law.

However, thisinteresting line of thought requires a few methodological comments before I pursueit further. In order to explain why the case-lists contain information about felonies,which are otherwise lost from a legal context, it would be easy to classify them as jokes made, and inserted by bored scribes. At least one alternative remains, until Ihave undertaken a more detailed study on how the case-lists were worked out, andtheir standing as legal texts; I am inclined to think Seip has come up with aplausible explanation. On the basis of the case-lists printed in

Norges gamle Love

,Gustav Storm, Knut Robberstad and Jens Arup Seip have convincingly, I think,demonstrated how certain known Christian laws have formed the basis of most of the paragraphs in the case-lists.

Furthermore, some paragraphs in the case-listsalso refer to “the law”, a reference in which the Christian law, according to myinterpretation, is intended as a consultative primary source.

In these ways alinkage between two categories of legal texts, the Christian laws as primary, and thecase-lists as secondary sources, has been established. The connection is notcomplete, however, precisely because some paragraphs in the case-lists are not to be

Norges gamle Love

, vol. 2, pp. 385–386, cf.

Norges gamle Love

, vol. 4, pp. X–XI, 17–19. One case-list hasbeen translated into Norwegian in K. Robberstad,

Gulatingslovi

(Oslo, 1937), pp. 271–272.

This problem will be elaborated in A. I. Riisøy, “The Administration of Justice in Cases underChristian Law in Medieval Norway”, manuscript.

The basic text chosen for print is AM 32,800 written in the second half of the 16th century, andlisted on p. 610 in

Norges gamle Love

, vol. IV. This text has an orthography suited to the abilities of scholars who have not specialized in the interpretation of difficult Gothic handwriting; cf. commenton p. 609 “[...] written in an elegant hand successfully imitating print”. I take sole responsibility forthe transcription and translation into English of this text. With slight variants in §§14, 18 and 20, thiscase-list appears in other manuscripts as well; cf.

Norges gamle Love

, vol. IV p. 500 (AM 320 fol., lastpart of the 16th century); p. 574 (AM 80, 4 Oct., year 1554); p. 499 (AM 319 fol., last part of the16th century).

Translated into English by L. M. Larson,

The Earliest Norwegian Laws Being the Gulathing Law and the Frostathing Law

(New York, 1935), p. 48. This provision is ascribed to “Both Olaf and Magnus”.

J. A. Seip, “Ennu en kristenrett fra gammelnorsk tid”,

Historisk tidsskrift

(Norwegian), vol. 31 (1937–1940), pp. 598–601; 624 n. 2; J. A. Seip,

Sættargjerden i Tunsberg og kirkens jurisdiksjon

(Oslo, 1942), pp.185–186. The case-lists were given a short report in my master’s thesis, A. I. Riisøy,

Stat og kirke: Rettsutøvelsen i kristenrettssaker mellom Sættargjerden og reformasjonen

(Oslo, 2000), pp. 101–105.