Miller 2015

Comparative Legal History
ISSN: 2049-677X (Print) 2049-6788 (Online) Journal homepage: http://www.tandfonline.com/loi/rclh20
Finding, sharing and risk of loss: of whales, bees

and other valuable finds in Iceland, Denmark and
Norway
William Ian Miller & Helle Vogt
To cite this article: William Ian Miller & Helle Vogt (2015) Finding, sharing and risk of loss: of
whales, bees and other valuable finds in Iceland, Denmark and Norway, Comparative Legal
History, 3:1, 38-59, DOI: 10.1080/2049677X.2015.1041724
To link to this article: http://dx.doi.org/10.1080/2049677X.2015.1041724
Published online: 09 Jun 2015.
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Download by: [Universite Laval] Date: 10 April 2016, At: 03:56

Comparative Legal History, 2015
Vol. 3, No. 1, 38–59, http://dx.doi.org/10.1080/2049677X.2015.1041724
Finding, sharing and risk of loss: of whales, bees and other

valuable finds in Iceland, Denmark and Norway
William Ian Miller and Helle Vogt*
The focus of the paper is twofold: the first part is about how property rights
were assigned and ranked in finds, both in those items such as bees, rings
and other valuables which were previously owned, and also in those things,
like whales, which were unowned. We focus on Icelandic, Danish and
Downloaded by [Universite Laval] at 03:56 10 April 2016
Norwegian laws from the twelfth and thirteenth centuries, yet most of the
provisions were copied into later laws and were in force up until modern
times, some even current now. The second part treats the question of how
risks of loss were handled, and how simple forms of insurance-like
institutions arose, aggressively, to encourage risk spreading and overall risk
lowering by sharing. The Icelandic laws, especially, show a rather
remarkable sophistication regarding risk sharing. They were very alert to
the kinds of strategies of avoidance people might employ to evade the rules.
Keywords: property rights; sharing; insurance; whales; bees; risk of loss; law;
Iceland; Norway; Denmark; resources
Imagine this scene: the year is 1181, ten men loyal to King Magnus Erlingsson are
marching single file through the woods above Bergen. They have been taking
turns walking the point, switching periodically the risks associated with positions
in the line. They fear an ambush from Sverrir the pretender’s men. As they are
working their way through a narrow defile, the man fifth in line sees a shiny
object a bit to the side of their path. He stoops to pick it up and grasps a beautifully
worked gold arm-ring, a full mark in weight. He thinks to hide it under his sleeve;
he knows he will be pressured to share with his risk-sharing mates on the march.
Are there rules, informal norms that govern and assign rights to this find? How
would you make the division? In tenths? Does the risk borne by the point man
entitle him to a bigger share? Does the finder get to keep it all, or does he get a
larger share than the others?
First, a few words about the purpose of this paper. Even though insurance in
the modern sense is mostly associated with the mercantile expansion of the early-
*Thomas G Long Professor of Law, University of Michigan; Associate Professor in Legal

History, Faculty of Law, University of Copenhagen. Emails: Helle.Vogt@jur.ku.dk;
wimiller@umich.edu
© 2015 Taylor & Francis

Comparative Legal History 39
modern period onward, the medieval Nordic laws contain some rather sophisti-
cated rules about risk sharing. Some of these rules can fruitfully be seen as an
early form of insurance. This paper will illustrate how in a variety of situations
both large – whales – and small – bees – people figured out ways to pool risk,
quite conscious of the fact that this was what they were doing.
I.
Consider this law from the Norwegian Gulathing1 that governs the matter raised in
the first paragraph.
If men travel together on the highway and the one who walks ahead makes a find,
they shall have it in common, he and the ones who come after; but those who
walk past it shall have no share in it. If men who travel by boat make a find of
some value, they shall divide it according to their number.2
This rule is quite ingenious, almost looking like something lawyers or economists
devised rather than a group of soldiers or other travellers. Those who walked by
already had their chance; they are out of luck. Those who had yet to walk by
had their chance intercepted by the fifth man who made the find. The first in
line, walking the point sharing with the person last in line the most dangerous pos-
ition militarily speaking, is compensated for his risk in part by having first chance.
Positions six to nine are perhaps over-compensated, they not having their share
discounted by the likelihood of their walking by without making the find; they
are the beneficiaries of number five’s luck, who has his share reduced, an econom-
ist would say, because the social utility of his find is only as valuable as the time
between it and the time that would elapse until it was found if he had not, in this
1
The date of the first version of the Gulathing Law is uncertain. During the reign of Magnús
Erlingsson (1161–1184) the law went through a redaction initiated by Archbishop Eystein;
see Erik Gunnes, ‘Erkebiskop Øystein som lovgiver’ in Klaus Crag (ed), Norske historikere
i udvalg IV. Nye middelalderstudier – Kongedømme, kirke og stat (Oslo, 1983) 127–149;
Erik Gunnes, Erkebisp Øystein. Statsmann og kirkebygger (Oslo, 1996). The Gulathing
Law is one of the four Norwegian provincial laws. It is only known from one almost com-
plete manuscript from around 1250, Codex Ranzovianus, and some fragments. In 1274 the
provincial laws were replaced by Magnus Lawmender’s National Law, which does not
retain this provision from the Gulathing Law.
2
Norges gamle Love indtil 1387 (hereafter NGL) vol 1; quotation from R Keyser and PA
Munch (eds), The Earliest Norwegian Laws, trans Laurence M Larson (vol 1, Columbia
University Press, 1935) 58 § 144, 124. Compare the Roman army’s rule for allocating par-
ticular benefits on the march: ‘Of the two legions and wings, each takes it in turn to occupy
the front or the rear position on alternate days; the purpose of this change of formation is to
give all ranks an equal opportunity to find a fresh water-supply and fresh foraging ground’
(Ian Scott-Kilvert [trans], Polybius: The Rise of the Roman Empire [Harmondsworth, 1979]
vi.40). The same rule is found in Jónsbók (Ólafur Halldórsson [ed], Jónsbók: Kong Magnus
Hakonssons Lovbog for Island vedtaget paa Althinget 1281 [Copenhagen, 1904] 9.14).
40 W.I. Miller and H. Vogt
case probably no more than one minute. The last in line we might say gets a fair
return for providing the rear-guard, which means he is perhaps less likely to be
looking to each side than over his shoulder. Something in this way of slicing
the pie strikes us as overly rational, the kind of splits business students are
taught to make against the rough equity they used to live by on the playground.
Shouldn’t the luck be divvied up equally? Surely that would be a fairer rule if
the positions in the line were regularly rotated.
Share and share alike, however, is exactly the rule the same provision adopts if
the find is made while the men are in a boat, then it does not matter where they sit,
at prow or stern, all share and share alike: ‘If men who travel by boat make a find
of some value, they shall divide it according to their number.’ The rationale for the
difference in treatment should be fairly obvious: the boat eliminates individuality,
clumping the 10 together in an undifferentiated mass that must move as the boat
moves and share the risks that the boat undertakes, while any of the men walking
the path has greater freedom to shift for himself, his risks somewhat variable and
tradable. The fact that the rule for sharing and sharing alike if in a boat immedi-
ately follows the rule splitting the find on a march, justifying, in effect, the
hyper-rationalism of that rule by explaining its rationale rather nicely.
But the rule on the march can invite certain kinds of distasteful collusions that
the boat rule does not. We might imagine the man walking the point purposely
letting a find lay undiscovered and then ordering everyone to look left because
he claims to have heard some movement there, thus signalling to number 10 to
keep his eyes right and then they split the find between them. Such connivance,
however, we would think is more the stuff of a basic course in economics or bar-
gaining theory, and not real life. But some laws, Icelandic ones,3 recognized that
just such unseemly deals might be made as we shall see when we note the Icelan-
dic laws’ attempts to prevent collusion between people who have found a whale
floating in common water and might be tempted to provoke landowners into a
bidding competition for how much of the two-thirds share the landowner is
entitled to he is willing to pay the salvagers if they bring the whale to his shore.4
3
For Norwegian laws concerned with what economists call ‘moral hazard’ see NGL 1: 68 §
186; NGL 1: 322–323 § 102; William Ian Miller, Why is Your Axe Bloody (Oxford Univer-
sity Press, 2014) 80 n 11, 160–161 n 4. The concern was that wergeld encouraged the
setting up and selling out of kin, and that compensation for fornication for sisters and
daughters encouraged prostituting them. So you must avenge yourself in blood if you
have made a habit of accepting compensation, three times constituting a habit, and your
sister or daughter is declared a púta, not hór, if you have collected three times for her grant-
ing someone her favours.
4
Grágás II 529 § 456. The two principal legal manuscripts composing Grágás date to
roughly 1260 (Konungsbók) and 1280 (Staðarhólsbók) respectively. The actual applica-
bility and dating of individual provisions in these manuscripts is in many respects difficult
and uncertain. Grágás was replaced when Iceland accepted Norwegian overlordship in
1262–1264, first by a lawbook known as Járnsíða, which was unpopular and soon replaced
by the much more successful Jónsbók (c. 1281). Conventional labelling adopted from
One Danish law that governs the finder’s share of a beached whale begs for
such kind of deal making. Thus this from the Law of Scania (1202–1215),
chapter 164:
He who first finds a whale shall take what he can carry if he is on foot and notify at
the king’s manor. If he who first finds it is riding, he can take what a horse can carry.
If he is in a cart, he can take a cartload. If he is in a ship with six oars, he can
take a shipload. And anyone who is the first to find it must notify at the king’s
manor. If he does not notify, he shall pay three marks or step forward with an oath
of twelve.5
What fool would ever admit to finding a whale on foot or horseback? Such a person
would call to the first child that walks by to run to Bjørn’s farm and tell him to bring
his six-oared ship and he would split 50-50 with him. If Bjørn turns out to be reluc-
tant and wants a 90-10 split, well, says the finder to the boy, tell him I am on my way
to the king’s manor now to report the find, or I know Karl has a six-oar boat too and
would be willing to deal. One can imagine the official at the king’s manor running
his own racket, pocketing the difference between the actual finder’s share he paid
out, and the one he reported to the king.
Icelandic lawmakers tended to be smarter, and tried to anticipate this kind of
gaming, though even they invite some. When a whale beaches on shore where
common rights govern then the man living nearest is to cut cross-tokens and
send them on in all directions, and people to whom those tokens come must in
turn pass them on or be fined three marks.6 So a general call goes out and then
Finsen’s edition has Grágás Ia and Ib indicate Konungsbók, II Staðarhólsbók, III Skálholts-
bók and fragments. See Vilhjálmur Finsen (ed), Grágás: Islændernes Lovbog i Fristatens
Tid (3 vols, Copenhagen, 1852–1883, rept Odense, 1974). For the translation of Konungs-
bók with selections from Staðarhólsbók and other manuscripts see: Andrew Dennis, Peter
Foote and Richard Perkins (trans), Laws of early Iceland: Grágás. The Codex Regius of
Grágás with material from other manuscripts (2 vols, Winnipeg, 1980, 2000). Volume 1
of the translation contains Grágás Ia 1–Ia 217; volume 2 contains Grágás Ia 218–Ib 218
in Finsen’s pagination. Passages are cited to the page in Finsen and to the section number.
5
Johannes Brøndum-Nielsen and Svend Aakjær (eds), Danmarks gamle Landskabslove
med Kirkelovene (8 vols, Det Danske Sprog-og Litteraturselskab, Gyldendal, 1933–
1961) (herafter DgL), vol 1: Law of Scania (1933) 1. The same rule is found in all the
Danish thirteenth-century provincial laws. The Danish laws were written down in the
first half of the thirteenth century. The kingdom was divided into three legal provinces,
each having its own law. The content of the laws differ a bit, but there are no major differ-
ences among them. This might be one of the reasons why the written laws were not replaced
during the Middle Ages, but were in force until 1683 when the kingdom was legally unified.
Unlike Grágás and the Norwegian provincial laws, the Danish provincial laws are known
from many manuscripts. The Danish laws will be published in English translation later in
2015 (Helle Vogt and Ditlev Tamm [eds] Denmark I: The Laws of Scania, Zealand and
Jutland [Routledge, forthcoming]).
6
The rules for whales, flotsam and other driftage are found in Reka þáttr in Staðarhólsbók,
(Grágás II 510–537, §§ 440–559); Staðarhólsbók’s driftage section is more extensive and
anyone in the area may flense and take away what he flenses. But if others arrive
later and those already there
have flensed more than they can take away then they have the right to have what the
others do not go away with. Whether men come for it with boats or horses then each
is to take away what he can.7
This pretty much solves the easy gaming invited by the Danish provision. While it
still may be better to come in a boat, if you get too greedy, your flensing labours
work to the benefit of those who come later. Since in other contexts the work of
flensing is compensated at a quarter and in some instances at a half of the
amount flensed, the labour of flensing is not cheap.8 Moreover, the requirement
to summon everyone within the area, and the penalizing of not sending the
cross-token on if you are tempted to keep the number of claimants smaller and
hence your share larger, only allows you not to pass the token on if travel con-
ditions make expanding the pool of invitees impossible. Presumably, there must
be some understanding of the rough territorial limits of those entitled to receive
a cross-token.
II.
Consider these Icelandic laws. At the end of the Betrothals section of the Konungs-
bók manuscript of Grágás we find this provision, clearly misplaced, regarding
buried property:
if a man buries property of his in the ground for safekeeping, gold or silver, the
penalty for that is lesser outlawry (ie, loss of all his property and three-year exile).
The case lies with anyone who wishes to prosecute.9
Before we return to that strange provision, notice that it does not assume bad
motives by the burier; he is protecting his easily transportable valuables from
rationally ordered than the provisions dealing with the same matter in Konungsbók (Grágás
I). Reka þáttr’s allocation of property rights and legal duties are, with only minor excep-
tions, retained in Jónsbók, the lawbook that the Icelanders negotiated with the Norwegian
king. See Halldórsson (ed), Jónsbók (n 2) §§ 7.60–71, 194–209. Jónsbók reproduces in its
driftage section Grágás’ allocation of property rights and attendant duties, the only differ-
ence of any substance was that the king got a share of the fines that were paid when these
rights were violated, but he did not get a share of the whale as he did in Norway and
Denmark.
7
Grágás Ib 186–187, § 240; cf. II 537.
8
Eg, Grágás II 521, § 448, 523–524, 450. The standard flenser’s compensation is a quarter,
but goes up to a half in some situations, such as when extra burdens are imposed on, say, the
landowner to preserve the harpooner’s share.
9
Grágás Ib 75, § 171; II 222, § 182 adds ‘and other valuable objects’. The provision in II is
more sensibly located with the laws governing the hiring of personal property.
theft. He is in a sense locking them in a safe. One could assume bad motives, but
this law does not articulate them. In Iceland the tithe was not a 10% tax on income
but a 1% tax on wealth. Burial could simply be tax avoidance. There are also other
good reasons for not sinking wealth into the ground where it serves little social or
economic purpose. It may simply be a way of cheating heirs, as well-known
examples from Egils saga attest, in which the burier intends to die with his
secret well kept. Again, the law provides no such explanation for its prohibition.
It prohibits burying even as a form of insurance.
Let us flesh out some aspects of general finder’s law that may shed light or
further obscure the prohibition on burying treasure. The provision preceding it
holds thus:
if a man finds a piece of property above ground on his land, then he is to announce it
at the Althing for three summers in a row. Then if no owner is found for it by the third
summer, the property becomes his. If a man finds property in his ground, then he is to
announce it at one Althing. If no owner is found for it, then it becomes his thereafter.
An owner is rightfully found for it only if he is the man from whom the property was
stolen or else heirs of his.10
If in the prohibition provision, cited at the beginning of this section, the reasons for
burial were prudential, here the assumption is that the person burying the property
is not burying his own but that of another, which he has stolen. If that is so, then
what does one make of the shorter limitations period for finding property lying on
the surface of your land and finding it beneath the surface? Is there some kind of
cultural fetishism about putting valuables in the ground, so that even a thief who
buries property cuts down the protection the rightful owner is accorded to recover
his stolen property? One reason, and probably the most compelling, is that prop-
erty in the earth would be presumed, perhaps, not to have been buried there but
rather ended up there because it had become overgrown with moss, or covered
by ash and sand, having lain their too long for anyone to remember having lost
it or to still be alive if he had lost it. Not stolen, just lost so long ago that it is
all but forgotten. One year is enough for the claimant to show up, the prescription
period having presumed to have run for decades already. Property found on the
earth would more likely be a recent loss or, as the economist’s joke would have
it, it would already have been found were it of any value. There is also a
certain magical transformation that covering with earth causes: the effect is to
transmute personalty into realty, the moveable becomes immovable and, as with
the law of fixtures in the Anglo-American common law, becomes one with the
land. Thus the rights to whalebone or driftwood will shift from the purchaser of
the drift rights to the landowner that sold them if the baleen or wood is more
than half buried in the earth.11 Add to that the general deterioration in the
10
Grágás Ib 75, § 170.
11
Grágás II 511–512, § 440.
quality of proof of title that either intentional burial or burial by the forces of wind
and flood lead to. So then the one-year limitation rather than the more usual three
years shows these movables two-thirds on their way to becoming immovables, and
the find thus goes to the owner of the land, who since he ‘found’ the buried prop-
erty was not himself the burier. Note too that if the previous owner of the land
shows up to claim it, he would run afoul of the prohibition against burying
treasure.
One of the foundational issues in an introductory course in property in a
common law system is the competing claims of the finder of lost or buried prop-
erty as against the owner of the land where the find takes place. These cases
became classic cases among jurisprudes in the late nineteenth century as they
struggled to determine what possession ‘really’ was: was it nothing more than a
conclusory term that assigned the property in question to the party the court
wanted to entitle for reasons the judges were not capable of pinpointing, or was
possession really reducible to certain facts and states of mind such as grasping
in the hand coupled with the unequivocal intent never to let anyone else grasp
it without your consent?12 The Icelandic rules generally give the owner of the
place where the object is found the right to it rather than to the person who
found it there, assuming that such a rule is most likely to get the object back to
the man who lost it. The Anglo-American common law is not clear on the issue
and the results of the cases are very fact specific, and often not quite explicable
if consistency is considered a virtue.13
But, in light of the aforementioned rule hostile to burying gold and silver on
pain of losing it, consider this provision:
If a man finds something on his own land or in the ground, then he is to announce it to
neighbours and at a Thing. If it was buried by the man who owned the land or the one
householding on it, then it belongs to the man who buried it, given that it was found
before Winter Nights.14
12
Bridges v Hawkesworth 21 LJ (QB) 75 (1851), South Staffordshire Water Co. v Sharman
2 QB 44 (1896). See OW Holmes, The Common Law (Boston, 1881) ch 6, 221–222. Fre-
derick Pollack, An Essay on Possession in the Common Law (Oxford, 1888) 39–40.
13
Grágás Ib 185. The finder is to deliver the find to the man householding there for him to
take care of it. This man is to announce that he holds the object at meetings, the spring Thing
and the Althing. If this man does not announce it then the case against him belongs to the
owner of the lost object, though how he is to know whom to sue is not told, and if the orig-
inal finder does not hand it over to the householder the case belongs to the owner of the land.
14
Grágás Ib 185, § 239. The translators read the reference to the householder as the owner
or householder prior to the one who makes the find: ‘the reference is to the last preceding
owner or tenant. According to the Betrothals section § 171 a man was under penalty if he
buried gold or silver.’ But they only note the discrepancy; they do not try to explain it.
Moreover, the provision is not in Grágás II. It might be that the provision is about other
valuable things, just not gold or silver. Dennis’s idea that the writer of Konungsbók
(Grágás I) has used several legal texts that were not quite identical might explain the con-
tradiction. See Andrew Dennis, ‘Grágás: An Examination of the Content and Technique of
The provision seems altogether strange in light of the earlier ones which should
hold the burier liable for lesser outlawry. It contemplates the owner of the
buried property being no longer in possession of the land in which it was
buried. But this burier is apparently given a window of opportunity to recover
his property and escape liability, if by luck, or by a whisper in the ear, the
present householder digs it up. But whether the provision prohibiting burial is
good law or not this one makes poor sense, for it invites the present householder
to do no finding whatsoever until after Winter Nights, unless he is given a big cut
of the action for digging it up before then. It invites the kind of gaming that Grágás
in general makes efforts to prevent.15
Here is one example of how Grágás does so. When a whale is found floating in
common waters, the man who has gotten his hooks into the whale can ‘convey it to
where he likes’.16 Well not quite. It turns out that wherever he lands it the landowner
or the driftage owner, if the driftage rights had been severed from the land, gets a big
cut of the action: ‘One-third of a salvaged whale belongs to the men who salvage it
and two-thirds to the landowner’ unless there is a harpoon in it in which case the
salvager, the harpooner and the landowner each get a third. Even a fairly innocent
salvager might have another smaller boat aboard, or have brought two on his salva-
ging mission, in which to send a couple of his men, to announce to three or more
landowners nearby what they would be willing to give up of their share to have it
beached on his shore rather than on his neighbour’s. One could imagine the salvager
setting off a small bidding competition at the landowner’s expense to increase his
share to a half or two-thirds, depending on whether or not there is a harpoon
found in the whale. The question is: is that division apportioned to the salvagers,
the one-third, legally mandated or merely a default rule that can be bargained out
of? The short answer is that the law goes on to make sure that this is a hard assign-
ment of entitlements, not a mere default rule.
The law quickly sets about to deny the salvager the power to auction off what
the law first claimed was his power to bear any whale borne in from common
waters to ‘where he likes’. First, if a landowner is one of the salvagers, ‘then he
can choose to convey it to his own land’. But suppose his land is not the
the Old Icelandic Law Books, Focused on þingskapaþáttr (the ‘Assembly Section’)’ (DPhil
dissertation, Cambridge University, 1973).
15
In the Danish laws, buried valuables – treasure trove – belonged to the king, who claimed
all ownerless property by right. The difference between Danish and Icelandic law is that the
gold and silver found in the Danish soil was alleged to come primarily from pagan burials.
Hence the Danish name for treasure trove, Danæt fæ, literally ‘money of the dead’. But
besides a naked assertion of royal power, Danish law might share with Icelandic law a
concern with forgotten and stale evidence of title. The true owner was more than likely
long dead and his heirs unknown. It would be a pleasant fortuity for whoever got it. In
such a case let the luck be the king’s and leave all the other claimants to their grumbling,
rather than have one person dancing for joy and his fellows consumed with envy. See
DgL (n 5), vol 5: Erik’s Law of Zealand (1937) 3:69, 365–366.
16
Grágás II 528, § 455.
nearest and thus that imposes risk on the other salvagers, as they may lose the
whale for having to traverse the extra distance. Then that landowner bears the liab-
ility, a considerable sum, a full one-third the value of the whale, and must compen-
sate his fellows if five neighbours decide that they would not have lost the whale
had they borne it to a closer shore. These same neighbours are to set the value of
the whale lost. We return to similar risk calculations imposed on this landowner
qua salvager when we treat other provisions below. For now let it stand that the
landowner has a decision to make that involves something approximating the pur-
chase of insurance. The price of the insurance is the landowner’s share of the
whale discounted by the probability of not getting the whale to his land; what
he purchases is freedom from having to compensate the other salvagers out of
his own assets should they fail to reach his land, but could have reached land
closer. If there are more landowners on the ship than just one then the there is
no choice: the whale is to be floated to the land of the landowner who lives
nearest.17
But there is nothing yet to prevent this landowner and his fellow salvagers
from setting up a bidding war among nearby landowners. The law however pro-
hibits the opportunity:
if anyone offers or gives men money so that they will convey a whale to land at a
place different from where they would otherwise have taken it, or if the men salva-
ging it make payment a condition or take payment to do that, then the penalty in
every case is lesser outlawry … and similarly if a whale is conveyed to some place
other than where it ought to be taken.18
Landowners it seems represent a more powerful class than those who get in
boats seeking dead whales. The landowner’s two-thirds share and the salvagers’
one-third share are not divisions made in absence of an agreement to the contrary;
they are fixed rules of law. It is not as if other more complex attempts to get around
the law could not be envisaged, but any cheap or obvious possibility is taken away.
But there are other interesting features in these laws. Notice the kind of coun-
terfactual the neighbours must determine: whether the whale could have been
floated to a closer shore. Here evidence would presumably be taken on how
long after they fastened on to the whale it broke free, and whether that space of
time was long enough to have gotten it in to a closer shore. Such counterfactual
determinations are a frequent feature in determinations of liability in Grágás.
The neighbours are asked to predict an outcome that never happened. Sometimes
the law sets forth exactly what constitutes what would otherwise require a difficult
‘what-might-have-happened’ kind of determination. Suppose a whale drifts
ashore. When do the shore owner’s or landowner’s rights (if he has not severed
the driftage rights) to the whale attach? What if when the tide comes in the
17
Grágás II 530, § 456.
18
Ibid.
whale floats away and lands onto his neighbour’s beach? What must the first land-
or driftage owner do to make it his? This involves rather more than trusting to the
whale’s weight to make it immovable. He must secure it and ‘securing’ is defined
and expounded upon. The securing lines can be old, or they can be new, specifi-
cally, the securer is allowed to cut fastenings from the hide of the whale. Old or
new, these securings must be attached both to the whale and to logs or rocks.
Now let us suppose the wind and tide sweeps the whale away nonetheless, and
the whale drifts in to another man’s shore. If the lines did not hold:
then the man to whom it belonged on the shore where securings were first attached it
is still the owner of it as long as some remnant of the securings remains on the shore
and some in the whale, AND a panel gives a verdict that the man who secured it
thought they would hold, and that they would hold in such weather as prevailed
when they secured it … 19
The requirement that there be festar (securings) in both the whale and also tied to
stocks and stones on the first man’s shore is an issue of proof.20 He really had
secured it to his shore and it was that particular whale. But what of the verdict
that the first shore owner ‘thought they would hold’? Proper fastening turns out
to be a purely objective determination, despite the diction regarding mental
state. It gives an idea of the style of Grágás, to observe the specificity with
which this is set forth. The securing could be no weaker than ‘ten ropes’. And
each of these ropes had to meet a standard of strength: ‘each must be able to
resist the strength of two men.’ So the winner between the two claimants is the
first to fasten him properly according to that test, a legal fastening, then should
the whale break free, his rights are fastened to the whale, as long as there
remain some of those fastenings attached to the whale, with some fastenings
still sitting attached to stock and stone on his shore. Should these conditions not
be met, he gets nothing. The first to secure it properly takes it as if no prior
attempt had been made to tie down the corpse.
19
Grágás II 516, § 443.
20
Compare Moby Dick’s fast fish-loose fish rule where, unlike the Icelandic law, a whale is
considered ‘fast’ if tethered by harpoon and thick rope all the way down to a notional
cobweb (ch 89). ‘First: What is a Fast-Fish? Alive or dead a fish is technically fast,
when it is connected with an occupied ship or boat, by any medium at all controllable by
the occupant or occupants,—a mast, an oar, a nine-inch cable, a telegraph wire, or a
strand of cobweb, it is all the same. Likewise a fish is technically fast when it bears a
waif, or any other recognized symbol of possession; so long as the party waifing it
plainly evince their ability at any time to take it alongside, as well as their intention so to
do.’ Melville’s Ishmael is playing at being a legal scholar, the layers of irony stack like
turtles all the way down; those who strive to explicate rules, whether customs or laws,
end up in a comic cosmos, of hardline rules generating soft contours, of words acquiring
glosses that alternately expand or narrow or specialize it meaning, thus the cobweb
holding the whale. See below n 29.
One would think that would settle the matter, but the second (losing) shore
owner hardly wants what turns out now not to be his whale on his shore, so the
winner must fetch the whale and that too is further specified: ‘with a boat or
horses’ and, in a concession to the rights of the owner of the land on which the
whale came to rest after breaking free, the whale owner must ‘make use of
nothing on the land except water’.
Some cuts of the whale

But it is unlikely that any buried gold and silver in Iceland would be as valuable or
as useful, or as readily findable, as a whale, the surrounding seas being rich in a
multitude of species, large baleen such as blue whales and also toothed
whales.21 The carving up of rights in such enormities, among so many people
asserting claims, could involve the law in convolutions, a few of which we

have already lightly touched upon. Disputes over rights to carve up a whale
could lead to lethal fighting at the site of the whale, or even on top of it. The
sagas can be believed when they recount these battles.22
A drift whale, we saw, belongs to the first landowner, or owner of driftage rights
on that shore if these have been sold by the landowner, rather than to a second such
driftage- or landowner, if the first man properly secured the whale. But that does not
dispose of the rights in that whale. If a harpoon is in it the harpooner gets his share, in
this case half because it was borne in by the sea rather than by salvagers.23 Suppose
instead the landowner had leased the land: then the tenant had the duty to secure him
just as the land- or driftage owner had to secure it with a legal securing to make it his.
But the tenant does not count as a possible owner of the whale. And, if he fails to
secure it by the same standards we discussed above, he owes the landowner for
the whole value of the whale as it is valued by the five nearest neighbours and is
also fined three marks.24 (The salvagers whom we discussed are also bound to
secure any whale they float in to the shore they ‘ought’ to, for their share is
further contingent on securing the whale in the proper fashion or the whale
counts as ‘a drifted whale and the whole thing belongs to the owner of the shore
as long as there is no harpoon in it’.)25 We can be assured that the tenant will not
21
See Ludvig Holm-Olsen (ed), Konungs skuggsiá (Oslo [s.n.], 1983); Laurence M Larson
(trans), The King’s Mirror: (Speculum regale – Konungs skuggsjá) (American-Scandina-
vian Foundation, 1917), ch 12.
22
See, eg, Grettis saga, chs 9, 12 (battle over who had driftage rights when these had not
been specified in settlement period); Fóstbræðra saga, chs 6–7; Reykdæla saga, ch 8;
Víga-Glúms saga, ch 27; also Sturlunga saga, 1.220–1, 257 (Hrafns saga, chs 16–17, Íslen-
dinga saga, ch 28); and Árna saga biskups, ch 114.
23
Grágás II 520–521, § 447.
24
A landowner who has severed the shore rights has the same obligation to the man he sold
the shore rights to as a tenant would to him; Grágás II 518, § 445.
25
Grágás II 531, § 457.
have the wealth to indemnify the landowner for the value of the whale, or in many
cases even be able to pay the three-mark fine. But the tenant has more positive indu-
cements to do his duty. One of these depends on the size of the whale: he gets a cart-
load of a whale 20 ells long or more.26 A cartload is defined as what a single draft
animal can pull on thawed ground over flat land. Later this rather manipulable
measure was made more precise by stipulating that a cartload was equal to 480
pounds.27
If the whale is shorter than 20 ells, the tenant gets nothing, but his duty and
liabilities to secure the whale remain the same. Even here he stands to gain.
Remember the flenser’s share, regularly a quarter of what he flenses? Here the
temptation is to start flensing right away and take one’s good time about informing
the owner of the driftage rights, whether that be the landowner or the purchaser of
them. This temptation must have been too much to resist, for we have a provision
labelled a ‘new law’ that stipulates that the tenant cannot start to flense until he
sends a man to the landowner or driftage owner to inform him. Once he has
done this he can start to flense on a quarter-share basis until the owner comes.
And yes, the law is worried that the messenger might be lame and too slow of
foot to make the trip to the owner in a timely fashion: the messenger must be
an able man, capable of travelling a full day’s journey.28
Given their size, finding a whale on the shore is easy. Even spotting one at sea
within sight of shore is not difficult – the difficulty involves getting the leviathan to
shore. Once beached, there immediately arises a different problem related to
finding.29 We have had occasion already to mention the harpooner’s share: a
third or a half depending on the circumstances. A harpooner might not know
that he has a claim at all, unless informed that his harpoon’s head was found in
26
An Icelandic ell was about 47cm long.
27
The new law, Grágás II 516–517, § 444, set a cartload at six eight-quarter loads. A load
was 80 pounds, made up of eight quarters of ten pounds each.
28
See Dennis et al (trans), Grágás (n 4), 2, 42 n 87, which later came be fixed at roughly 23
miles; see also Grágás Ia 61, § 34, a man has a defence for not showing up at a Thing he was
called to as a witness or panel member if he is ‘unable to travel a full days’ journey’.
29
The norms whalers and courts developed in various fisheries in the eighteenth and nine-
teenth centuries have generated literature in the law reviews. These commentaries are often
less about whaling than about various theories of property rights. The article that started it
all takes a standard early law-and-economics position, arguing that private ordering inde-
pendent of state regulation is more conducive to efficient wealth maximization than
formal legal orderings; Robert C Ellickson, ‘A Hypothesis of Wealth-Maximizing
Norms: Evidence from the Whaling Industry’ (1989) 5 Journal of Law, Economics, and
Organization 83. Historians have then answered complicating the issue; see Robert Deal,
‘Fast-fish, Loose-fish: How Whalemen, Lawyers and Judges Created the British Property
Law of Whaling’ (December, 2009) available at http://ssrn.com/abstract=1527091 and
http://dx.doi.org/10.2139/ssrn.1527091 (both accessed 9 March 2015); Robert Deal, ‘The
Judicial Invention of Property Norms: Ellickson’s Whalemen Revisited’ (2013) 6 Univer-
sity of Toronto Law Journal 73; Bruce Ziff, ‘The Law of Capture: Newfoundland Style’
(2013) 63 University of Toronto Law Journal 53.
the whale’s heart or lungs,30 and he may live many miles away. It is in no-one
else’s immediate interest to find the harpoon blade, not those who salvage it,
not the landowner, nor the owner of the drift. Besides, given the amount of
offal, guts, blood, blubber, the sheer mess that accumulates, the blade can be
hard to find or easily get lost. Not trusting of people whose interests all lead
them to wish the whale to have beached itself and died of natural causes, the
law protects the harpooner’s interest. There is good reason to make sure his inter-
ests are looked to, a concession to how productive his courage was, and how hard
it might be for him to get the benefit of it. Nine of the dense 27 pages of Reka
þáttr, the drift law section of Staðarhólsbók (Grágás II), are devoted to the har-
pooner and protecting his share, from registering his harpoon’s distinctive mark
to, and rare for Grágás, streamlining its often hyper-technical procedures on his
behalf for collecting what he is owed.31 Thus it is prescribed that those who
stand to gain if the whale died of natural causes must ‘search for a harpoon in
the same way as he would if he had hopes of finding his own harpoon in a
whale on someone else’s shore’. And, as a further incentive to comb carefully
through the flesh and blood, ‘the man who first finds the harpoon is to have a
load of blubber from the harpooner’s share’. Lesser outlawry is the penalty for
searching less assiduously than prescribed. And even worse penalties are in
store for those who might be tempted to conceal a harpoon that has been found
and pretend there was none there: it is treated as theft with full outlawry being
the penalty, though the harpooner is given the option to sue for lesser offenses
that would reward him double damages, or for lesser outlawry. Presumably his
choice of what action to bring would invite some negotiations between the har-
pooner and the concealer, with the bargaining power quite securely in the har-
pooner’s hand.
It should be noted that it is a frequent Grágás trope to require the imagined
substitution of yourself for the person whose interests that are being protected.
You are asked to put yourself in his shoes and structure your behaviour accord-
ingly. This seems to impose a more rigorous and more workable standard than
the so-called ‘reasonable man’ standard of the common law. It provides another
indication of how subtle the Icelandic sources can be on psychological matters.
You are more than capable of understanding how self-interest would affect your
behaviour, and it requires no great imagination to engage in the sympathetic
30
If more than one harpoon is found in the whale, the one that caused death gets the har-
pooner’s share. One that merely penetrates blubber ‘ecki sakar hval’ causes the whale no
damage and it is treated as if it had never been thrown (Grágás II 522, § 448).
31
Registering harpoon signature at Althing (Grágás II 526–527, § 453, re þingborit skot, a
Thing-registered harpoon). On streamlining the procedure see Grágás II 526; Dennis et al,
Grágás (n 4) 333, n. 93. See Miller (n 3) 129 n 17, for the law recognizing a ruse in the
harpooner’s favour of letting him get around the limitations on successive assignments of
a cause of action.
understanding of another person’s interest were you to be situated as he is. This is
much more workable than asking the actor to act ‘reasonably’ or ‘rationally’.32
The finder of the harpoon gets a load from the harpooner’s share, but the first
man to find the whale itself, even if he is not the one who gets his hooks into him,
gets finnanda spik, the finder’s blubber. This comprises 30 loads, a load being 80
pounds, so 2400 pounds of fat in total. The finder’s share is paid out of the salva-
ger’s third. And someone is entitled to it whenever a whale is salvaged. Nor need
the finder be in the boat that first attached securings to the whale. He may be
without hooks and rope, and have to row off for help, but he retains the right to
his finder’s blubber nonetheless. In fact the law seems to imagine the finding is
taking place by men in boats because it uses the plural – ‘those who first found
the whale’ – probably fishermen, though we can imagine that people might be del-
egated to watch for floating whales from the shore. There is a hitch though: the
whale must be fully 20 ells in size for there to be a finder’s share.33
III.
We will not further burden you with the myriad remaining details governing the
harpooner’s share, or with the complexity of how the law sets the default contract
between a landowner and the purchaser of drift rights from him. The latter does not
get much unless he bargains out of the law’s default contract. He gets drift whales,
but no part of any driven to shore by hunters, though he gets ones that are alive that
strand themselves, perhaps34 a share of those salvaged from common waters, and
32
This kind of imaginative shoe-stepping as a necessary psychological move to behave
properly forms the basis of Adam Smith’s The Theory of Moral Sentiments (1759, edited
by DD Raphael and AL Macfie, OUP, 1976) part one.
33
Consider that some people are counted as finding a whale vicariously and the law makes
interesting distinctions as to who counts fully as an agent for his householder. Thus if a
household man (griðmaðr) finds a whale floating he finds for his householder (bóndi).
But these griðmenn are only capable of making the whale their householder’s if the house-
holder has a right to all their labour. If he has only employed them as fishermen then he is
only entitled to compensation for the value of the time they lost dealing with the whale
rather than fishing on his behalf: Grágás II 530–531, § 457. A nice question, not clearly
indicated by the laws, is whether the fully employed griðmenn get the finder’s blubber
for their own account, the whale going to the their master, or does the finder’s share go
to the master too? Presumably the fishermen would qualify for finder’s blubber, that
being a good part of the reason they suspended their fishing to deal with the whale. The
provisions on finder’s blubber immediately follow on the damages due the fishermen’s
employer for the fishermen losing time fishing.
34
The ‘perhaps’ here may well depend on the purchaser of the shore drift specifying that he
is buying the drift rights ‘inclusive of every benefit’ (Grágás II 530, § 456), which is at odds
with the terms of the default contract set forth in §442 that he owns all whales that drift
ashore ‘and also any whale which men bear in from common waters’ (ok svá þann er
men flytia or almenning) without having to specify further that he is buying inclusive of
every benefit; see also I § 216, which affirms the necessity of the further stipulation.
all driftwood over an ell long. The landowner still gets one-third of those whales
driven to shore, as well as walruses, porpoises, seals, sharks, birds and any group
of fish that washes up that is fewer than five in number, as well as seaweed and
more.
Let us instead deal with contending salvagers out in common waters and what
is the most interesting aspect of these driftage laws. Recall the landowner who, as a
member of a group of salvagers of a floating dead whale, gets to insist it be rowed
to his shore even if that is not the nearest one, yet he bears the full risk of loss for
the shares of the other salvagers if they should fail to get the whale to his shore but
could have gotten it to a closer shore. To that, add provisions these which raise a
broader issue:
If other men come [to the spot in common waters where a whale is found floating]
when he has attached securing to it, then he is not required to accept their help if he is
able to salvage the whale without them. But if notwithstanding they attach securings
to it, they still gain no share in the whale, if neighbours give a verdict that the first
man could have salvaged it with the people he already had, and for that the five
neighbours who live nearest the place where the whale came ashore are to be
called at the Thing to give a verdict on whether those who refused the other’s assist-
ance would have been able to get the whale ashore by themselves. If the men who
refused [the other] men’s assistance do not get the whale ashore then they are to
pay the others such a share of the whale-price as they were due in proportion to
their number, if a panel gives a verdict that, had they all engaged in it, they would
have got the whale ashore.35
And then a later provision provides the same for refusing help with a whale caught
in the ice. The first comer has the right to send others away, but should he fail to
bring in the whale he is liable to them for the share they would have gotten, had he
not refused their assistance.36
These provisions assign an absolute property right to the first party to fasten on
to the whale. The right is not yet properly one that gives him the whale, but it gives
him the sole opportunity to make it fully his, as to the extent of the salvager’s
share, if he can get it to shore. The right is one to exclude others from attaching
their hooks to the whale. This is not a contingent property right but a full power
to exclude others. Should those who were refused permission add their hooks
and oars nonetheless in the face of the first man’s refusal, they get nothing, if,
that is, it turns out the first can get his verdict that he did not need their help. It
is the first man’s power to decide. Presumably at the moment he gets his hooks
in he could sell permission to later arrivers at something less than an equal division
of the whale, but if for whatever reason he does not let others in on the action, the
law imposes an enormous risk on him. His right to refusal comes with a strong
admonishment that failure to capitalize fully on the opportunity it grants will be
35
Grágás II 528–529, § 455.
36
Grágás II 533, § 458.
more costly than simply losing the whale. For should that whale break free and
float away, those refused have a claim to what they would have got had their
help been accepted. This liability would have to be paid out of assets that first
man already has, say, his farm, his boat, his sheep and cows, his own freedom
if he should end up in debt slavery as a result. So the first man gets to play a
game of risk assessment. He can let others in now, say costing him 50% of any
share he would gain in the whale (remember he will still have to pay the owner
of the shore where he lands it, and the harpooner’s share, if it died by harpoon,
and the finder’s share if his boat did not qualify as the finder), but he is paying
that 50% out of the whale. The rest of his property is immune. Well not quite.
For we can imagine that even having let one party help him, those two parties
could have refused a subsequent request to help from a third party, and then
failed to bring the whale in to the shore. But in any event he will have reduced
the risks to his own property by any help he agrees to, by at least a half.37
This law rather ingeniously rewards the luck, the enterprise, the victory in the
race to the whale to the first boat to fasten on to the whale. But it then puts some-
thing of an offer to the winner, not quite an offer he cannot refuse, but one that will
surely get the attention of all but the greediest or stupidest, whatever decision they
end up making based on their rational assessment of their own abilities and the
weather, or their less rational disposition toward risk: aversion or attraction. The
insurance premium is steep, half the value of the whale if brought in, unless, as
we suggested above, he could sell permission to subsequent parties at something
less than an equal share. The proviso that puts all his assets at risk should he not
admit other salvagers is designed to insure that the wider community, which would
benefit by the additional calories made available to the region, gets those calories.
The first salvager only has to share with the second or third salvager, but the
broader community gets food for purchase at lower prices per calorie than had
the whale got away.38 The wealth will stand a better chance of not being lost to
37
Of some interest is the fact that the finder is also given incentives to run or, more likely, to
row and get help: his share is reserved to him no matter who gets his hooks in first; Grágás
II 532, § 457. There are examples of other forms of forced sharing. You can eat berries and
dulse on another man’s land (Ib 94). Notice too the kind of standard rules in the driftage
section and elsewhere that allow a man to use another’s driftwood to repair his boat or
cart, but must compensate him, etc. Then also the common-carrier type rules governing
use of ferry boats. Similar provisions are found in the Danish Law of Scania, the only
one of the Danish laws that regulates woods. The law allowed a man who broke his axle
in a private wood to cut wood to repair it, but he was not allowed to bring any of the
wood he did not use with him. (Law of Scania, ch 193). The same rule applied to nuts gath-
ered in another’s wood. He was allowed to gather as many as one could eat there, but only to
take away as many as he could put in a hat or gloves; if more was taken then compensation
was due (DgL [n 5], vol 1: Law of Scania ch 207, 1).
38
For a mention of the importance of drift whales appearing during famine see Ljósvetninga
saga, C ch 18. On whaling generally in saga Iceland, see Ian Whitaker, ‘Whaling in Clas-
sical Iceland’ (1984) 22 Polar Record 249. Probably no greater homage to the appearance of
the sea, to the orcas and sharks biting at the carcass. One of us takes this as an
example of Icelandic legal genius. It concedes to the readily understandable prin-
ciple of first-in-time, first-in-right. And though there are all kinds of disputes as to
who might claim to be first, the rule makes it pretty clear. Get fastened to the
whale. The first fastener is rewarded with a property right. But the law’s next
move is to force the grantee of the entitlement to consider very carefully the
social costs of asserting that right fully. It does not force sharing, but it urges it
rather powerfully, and provides hard rational incentives to carry out its social
program of increasing the available calories that chance – or a rarely beneficent
god or saint – let wash ashore.
The margins are tight in this northern volcanic island. For an even grimmer
example, compare the datum from the Faroese Sheep Letter, the earliest text of
any Faroese law. It provides that when chunks of a whale had been ripped off
by a killer whale and were so far decayed that not even salt could save it, it
was still to be eaten, so poor was the average Faroese landowner where it might
wash up.39 It might be hard to find a more poignant example of the desperate
poverty that was a constant feature of many people’s lives, not just in inhospitable
times, but in very inhospitable places. One of us finds this perhaps the most poign-
ant reminder available in any medieval source not dealing with a siege or a famine,
but just day-to-day realities, of how poor people were, and what a duke, in this
case Duke Håkon Magnusson, could claim was a gift from him that fulfilled
some religious obligation to God and his parents. Yet he was uncertain of his
power to do so, for he appended this proviso to his gift: ‘unless our successors
feel that this is against the interests of the Crown.’40 The Duke was making a
gift of a royal right to a portion of all whales that the king jealously asserted, a
right he was not certain as regent he could fully alienate even if the meat was
utterly rotten.
Rotting whales are worth a brief mention. Whales were unlikely to rot for not
having been found. People kept a watch for them, but there was a lot of shore to
watch. Losing one to rot was a genuine concern. A whale that beached itself or that
was driven to shore by whalers would be fresh, but a good portion of drift whales
a drift whale occurs when Sturla Þórðarson interrupts the intense action immediately fol-
lowing the Burning at Flugumýr, arguably the most powerful several chapters of narrative
in the entire Icelandic corpus, merely to note an enormous baleen whale washed up where
Eyjólf ofsi, the leader of the Burners, ‘owned, alone, practically all the rights to the whale’;
Sturlunga saga 1.494 (Íslendinga saga, ch 175).
39
The Faroes were subject to Norwegian law. The Sheep Letter (Seyðabrævið) was given by
Duke Håkon Magnusson on 24 June 1298 as a special privilege to the Faroese: Jóhan
Hendrik Poulsen et al (eds), Seyðabrævið (Tórshavn, 1971) § 11: ‘We have also decided
that those pieces of whale which we call “killer-cuts,” or pieces which have been drifting
for so long that they cannot be salted, are to be given to the person who owns the land
where they drift ashore. This is for the sake of God and of our father and mother, to
bring us peace and prosperity.’
40
Seyðabrævið § 11.
had been floating dead at sea, and might not be exactly fresh when they drifted in.
Many had been harpooned and escaped their pursuers; others died naturally, or had
been slain by killer whales. Flensing could be time consuming. Even though the
Icelandic waters and summer temperatures would buy some time, the Sheep
Letter indicates that rotten whales were a reality in northern waters nonetheless.
IV.
To this, add the following Danish law, not about whales but about much smaller
animals that are no less important to human well-being as whales were to Icelan-
ders. This from the Laws of Jutland (1241) on bees:
If one man’s [A] bees overtake another man’s bees [B], then he who has the bees that
were overtaken [together] with other neighbours, shall announce this to him [A] who
owns the other bees. If he [A], who has those lively [bees], wants to establish a part-
nership with the other, both with regards to the bees that were overtaken and also the
others, then this can be so. But if he [A] will not, and those bees later destroy the bees
that caught them up, he can accuse himself because he did not want to share both gain
and loss with the other.41
This law deems it so sensible for A and B to form a partnership, that if A does not
agree to form one, and decides to take a chance as to whose bees will dominate the
others, the implication is that if his bees lose out so does he and he gets nothing for
them, even though they were initially his colony or swarm.42
Yet for anyone familiar with beekeeping the provision seems a bit strange.
What does it mean for one man’s bees to ‘overtake’ another’s? The bees are
loyal to their queen bee, and cannot be ‘caught up’ by another colony or
swarm; they will fight to the death for their queen. Bees will, if they sense
another colony is weak, attack it, in an attempt to steal honey. And those bees
will defend their hive with their lives. That the ‘overtaking’ is in fact a hostile
attack is made clear in the wording of the corresponding provision in the Law
of Scania: ‘If bees attack another man’s bees and sting them to death.’43 The
41
DgL (n 5) vol 2: Law of Jutland III: 39.
42
The provisions from the Law of Jutland were copied into Christian V’s Law for the
Danish Realm from 1683 (5.9.1; 5.13.1–9), and have never been replaced or repealed.
43
The rules on bees are found also the Law of Scania. The wording is a bit different, but the
contents are almost the same, and the same rules are in force today. The entire provision
corresponding to the one we are struggling to interpret reads: ‘If bees attack another
man’s bees and sting them to death, then the owners of the bees can have them together
if they think that is a solution and they both wish it to be so. If they do not wish to be
together and if he who is summoned denies that the other man’s bees were damaged by
his bees, he shall prove as was the worth of the other’s bees. If he admits to part of the
damages and denies the rest, he shall pay for what he admits to and for that which he
denies he shall prove by oath as he, who receives the damage, estimates the worth’ (DgL
[n 5], vol 1: Law of Scania 1, ch 200).
first part of the Jutland provision is thus easy enough to understand: one colony or
swarm of bees attacks another and kills a large number of the bees they attack.
But then how do we understand the structure of the partnership? It is very hard
to join two swarms and would take quite a bit of work. A beekeeper can establish
new colonies by splitting one into two or more, but joining colonies is a more dif-
ficult process, especially when they are swarming. It might be that the partnership
does not contemplate joining the bees at all but joining the human enterprises;
since it might be hard to count up the casualties on each side, better simply to
share profits and losses of the two colonies instead. If the bees choose to join
into one colony, so much the better. If not, then each colony is now co-owned.
The Jutland law seems to imply swarms, but the Scanian version reads more as
if two colonies are still in their hives but warring on occasion. Joining in a partner-
ship spares the labours of determining to which colony the dead bees belong. It
avoids the problems of calculating actual damages. It admits that bees will be
bees and their owners might as well share the risk of loss in a way that is easy
to calculate, each partner assuming that, over the long run, he is as likely to
have his bees lose as many battles as they win. This provision is a nice way of sim-
plifying a lawsuit already in progress and of making sure to avoid future litigation
between the two beekeepers by imposing an insurance rule (analogous to the Ice-
landic forced sharing rules), the cost of the insurance being the forming of the part-
nership itself and thus giving up on the chance that your bees are better fighters.
We might be pushing it a bit to call this insurance, but surely the broader concept
of risk-spreading is in play.44
As in the Icelandic laws regarding salvaging a whale floating in common
waters, we have an inducement to go halves, to spread risk. But bees raise
some different issues. The whaling laws begin with the whales as pure ferae
naturae; they are owned by no one and the law deals with initial entitlements.
The bees in this provision, however, are already private property, but it is property
with a mind of its own. The bees might not respect human claims as carefully as
one would wish and so the law must get involved.
V.
A common feature of property law is concern with division, or partition, when co-
owners want to disentangle their interests, either in realty or personalty. Some-
times the right to partition can be asserted despite the wishes of others, whereas
sometimes the law discourages or even forbids it. But bees cannot be marked
easily, so how do you recognize one swarm from another, if you lose sight of
44
We owe thanks to the bee-keeper, Anders Lundt-Hansen, who consulted his network of
bee-keepers about how they would interpret the chapter in the Law of Jutland, and even
though the provision is still in force today, none of them could explain the chapter any
better than our attempts here.
the swarm? Still partition remains a possibility, but there are practical difficulties
and it is easier if the bee owners became partners. Sheep do not raise that problem.
Their owners send them off to commingle during the summer in highland pastures
and round them up in the fall with each man claiming his own, the sheep bearing
marks of ownership on their ears. And even then it is still no easy task to round
them up and sort them out.45 Or when wind drives the hay of one farmer onto
the land of another and mixes their hay, the Icelandic laws do not even mention
a partnership in the hay as a possible result. Hay is fungible in a way bees are
not; we do not have to mark its ‘ears’. Evidence is taken of how much hay the
farmer whose hay blew away had and how much the person whose land it blew
on had, and a division is made.46
Suppose though a colony splits and half the bees leave the hive in order to
establish a new colony.47 As long as the owner was able to follow his bees,
they remained his property wherever they settled, even if it was on somebody
else’s land or in another’s woods. However, the moment he lost sight of the
swarm, they were considered wild, res nullius, and became the property of
whoever captured them. This is a quite sensible rule. Although hardly able to
eliminate all conflicts, it avoids more difficult problems of proof and prevents
opportunistic claims against the finder of a swarm that was not pursued. That
bees had a special status different from other domestic animals is not unique
to the Danish laws. Roman law had the same rule: ‘a swarm that has flown
from your hive is still considered yours as long as it is in your sight and may
easily be pursued; otherwise it becomes the property of the first person that
takes it.’48
As in the Icelandic cases this is a case of the law providing some incentive for
neighbouring bee owners to pool risk. One need not impose our ideas on them, or
even append our nomenclature for arrangements they understood in some settings
quite well. The Icelanders’ rules on these issues were particularly sophisticated,
for they legislated a mutual insurance scheme at the level of the hreppar, or com-
munes of at least 20 farms, in which the commune members were assessed to pay
claims for losses due to disease, if more than a quarter of a member’s animals were
lost, and also for certain losses due to fire. Contributions were limited to 0.83% of
one’s net worth per annum, and no-one was allowed to make more than three
45
See Oscar Aldred, ‘Réttir in the Landscape: A Study on the Context of Focal Points’,
available at www.academia.edu/233627/Rettir_in_the_landscape._A_study_on_the_
context_of_focal_points_2006_ (accessed 9 March 2015); réttir are sheepfolds.
46
Grágás Ib 106–107, § 198.
47
The old queen bee took half of the working bees loaded with honey out of the over-
crowded hive in search for a new place to establish a colony. The remaining bees raise
up a new queen by feeding one of the eggs left behind with royal jelly.
48
Justinian’s Institutes II.1.14. The translation is taken from: www.fordham.edu/halsall/
basis/535institutes.asp#I (accessed 9 March 2015). See Bruce W Frier, ‘Bees and
Lawyers’ (1982–1983) 78 The Classical Journal 105.
claims against this fund.49 With whales, the laws not only invite risk-spreading in
the case of finding whales, but they also create a multitude of rights in a whale that
is successfully beached or dragged in. There is the finder’s share, the tenant’s
share, the flensers’ compensation, the landowner and shore drift owners’ shares,
the harpooner’s share, the salvagers’ share and then the rules for summoning
the locals if the whale beaches on a common shore.
We have not even broached the topic of how Icelandic law, with its love of
complexity, divided the shore and sea into as many as five zones in which
rights and duties shifted. The driftage section, Reka þáttr, is notable for the
number of notional lines it draws in the water and sand, some of these quite
strange: (1) a fuzzy zone above the high water mark that we noted briefly
earlier,50 which was still not quite land proper as distinct from shore for it required
a determination as to how deep any whalebone or wood was embedded in the sand
or earth; (2) the wet sand; (3) the water from the low tide line out to the ‘netlaying’
line; (4) then from the ‘netlaying line’ to the ‘boatside cod-line’; and (5) the area
which marked the boundary between common water and the furthest extent of the
landowner’s claim to water abutting his land. The ‘boatside cod-line’ is located
beyond the range at which a fish can be seen on a boat’s side. That is to be a codfish
which when splayed is an ell wide across the brisket, and such a fish is called a
gildingr. That fish has to be visible on a boat’s landward side, seen from the shore
on the line where the tide goes out farthest.51
Ask yourself why the drafter felt it necessary to stipulate that the notional cod,
notionally split, should be hung off the landward side of the boat. The net-
laying line demarks various interests among fisherman, shore and drift owners.
These merit a discussion of their own.
These lines in sea and sand, and the legal lines bounding the rights in whales,
bees, etc., are meant to assign rights in a thing to a person. But we have seen that
here too there is a notional zone, a temporal one, in which a person who is assigned
his property right is ‘encouraged’ to cut other people in on his find, or else assume
an enormous risk should he fail to secure his find. Failure in the case of a whale,
which would be quite difficult to secure, comes at a very steep price.
Elsewhere insurance-like schemes, pooling liability and risk, appear as the
stuff of trickster tales. And no doubt the contribution exacted from each
49
Grágás II 260, § 226. The Danes were not as sophisticated as the Icelanders regarding
‘social insurance’; the Danish laws did not deal with property-less persons without assets
who could not support themselves, and the only place occasion on which the local commu-
nity was obliged to help out in time of need was with regards to fire. If some in the legal
district had their property damaged severely by fire, all the householders in the district
were to pay a fixed sum to cover the damage (DgL [n 5], vol 1: Law of Scania 1, ch 226).
50
See above, n 11.
51
Grágás II 528, § 455, III 402 (Þingeyrabók § 10) and Ib 125, § 211.
member of the hreppr for their unlucky neighbours must have felt like an amerce-
ment, a fine, for having the bad luck to have such unlucky neighbours.52 If,
however, the unlucky neighbour made a habit of being unlucky, the law, as
briefly noted above, limited him to making three claims over his lifetime. The
insurance scheme would ultimately force him to bear all the costs of his careless-
ness and bad luck. Even before he had exhausted his three times, he was only com-
pensated for up to half his losses.53 The steep co-pay and the limit on the number
of claims over a lifetime was meant to make the insurance merely a measure to
keep a household minimally afloat, not to serve as an inducement for the careless
or the self-interested to dump the costs of their own failures on their neighbours.
Compare, for instance, the way in which insurance companies today discourage
the unlucky or irresponsible actor for his forcing others, via higher insurance
rates, to pay for his failure to self-police. One of us was fined by the state the
maximum for exceeding the speed limit beyond any grey zones allowable,
those zones in which the arresting officer is generally inclined to be moved by
equitable principles. The state fine was $500, which did little to discourage this
medievalist, it being looked upon as a license he was willing to pay to drive
fast. But then the bill arrived from the insurance company for the next year’s
premium. It was $1000 more than the year before, alleging the speeding arrest
as increasing the risk associated with insuring the likes of such as him. That
$1000 is now assessed annually. The Icelanders were way ahead of this game.
52
See Færeyinga saga (chs 2–3: The Saga of the Faroese): a theft takes place at a market
ruled by the Danish king Harald Bluetooth. Thrand is the thief, though no one knows it.
Harald puts a ban on anyone leaving until the theft is solved. Thrand then floats this
idea: that each merchant pay into a fund an amount the king shall determine from which
compensation will be paid to the victims of the theft and in exchange for which the
travel ban will be lifted. It is agreed upon and the amount collected is significantly in
excess of the amount of the damage. The king takes three quarters, Thrand gets one
quarter. It seems that Thrand also got paid a fee in addition to this quarter for the idea itself.
For a kind of crime insurance being more understood as a mulct see, eg, the 1285
Statute of Winchester, which made the local hundred responsible for robberies committed
within it and forced them to restore the value of what had been taken to those who had been
robbed, if no one had been arrested for them. Those paying collectively, however, did not
include those who had been robbed; our thanks go to Paul Brand for bringing this to our
attention. The Statute is printed in William Stubbs, Select Charters and Other Illustrations
of English Constitutional History from the Earliest Times to the Reign of Edward the First
(Cambridge University Press, 1913 rept 2012) 464–466.
53
Grágás II 261, § 227.

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Comparative Legal History

ISSN: 2049-677X (Print) 2049-6788 (Online) Journal homepage: http://www.tandfonline.com/loi/rclh20

Finding, sharing and risk of loss: of whales, bees

William Ian Miller & Helle Vogt

To link to this article: http://dx.doi.org/10.1080/2049677X.2015.1041724

Published online: 09 Jun 2015.

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Finding, sharing and risk of loss: of whales, bees and other

*Thomas G Long Professor of Law, University of Michigan; Associate Professor in Legal

© 2015 Taylor & Francis

Some cuts of the whale

asserting claims, could involve the law in convolutions, a few of which we

whale must be fully 20 ells in size for there to be a ﬁnder’s share.33

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