OUTLAWRY.
Irredeemable crimes—Outlaws regarded as enemies of society—Custom of
pleading for an outlaw—Liabilities of a murderess—Substitution of
corporal punishment and fines for outlawry—Purchase of an outlaw’s
peace.
The laws did not aspire to improve the moral condition of the criminal
and try to make him a better man, except through fear of punishment;
their object in early days was to prevent private revenge, and stop
people taking matters into their own hands. Crimes against personal
rights or those of property were punished by fines as indemnity to the
injured. By paying an indemnity the criminal released himself from the
revenge of the injured and of his family, or from the outlawry which his
conduct or crime had brought upon him.
If any man had wronged another he was placed outside the pale of the law
until the weregild was paid; and if he or his family could not pay he
was outlawed, and the outlawry was declared at all the Things in the
country.[575]
There were crimes called _Ubota-mal_ (irredeemable crimes), that is, for
which no weregild could be paid; they were punished by outlawry and loss
of all property, including the odal, which was the greatest punishment
that could be inflicted. Such crimes were the violation of the sanctity
of the temple or of the Thing-place, and secret or unprovoked murder.
From the old laws of Norway we find that a man was called _Ubota-man_
who could not redeem himself.
1. “If a man attacks another in his house and breaks the house and slays
him, that is called _nithing-slaying_. 2. It is a _nithing-slaying_ if a
man slays the one to whom he has given his plighted faith. 3. It is also
a _nithing-slaying_ if a man slays another during a truce. 4. If a man
strikes another against a stone, or a timber, or a stump. 5. To burn a
man in his house. 6. To plunder the slain, or take away a man’s clothes
and weapons. 7. To murder a man. 8. To avenge thieves. These things must
be denied with _séttareid_. Wherever a man commits a _nithing-slaying_,
he is an unholy outlaw and forfeits every penny of his property, both
land and movable property: he shall never come to the country, or the
king, or the jarl, unless he brings true war-news (of a hostile host
coming)”[576] (Gulath., 178).
Men could be slain with impunity, and were irredeemable if they were
found guilty with the following women:—
“These women are seven (kinds). One’s wife, then sister, thirdly
daughter, fourthly mother, fifthly stepmother, sixthly brother’s wife,
seventhly son’s wife. If a man finds a man with one of these, he may
slay him if he likes; but he must tell the man whom he meets first of
it, and why he did it” (Gulathing’s Law, 160).
The following wording seems to imply that to slay a lawman under any
circumstances, or run away with another man’s wife were ubota crimes:—
“It is also a _nithing_-slaying if any one slays a lawman who is
ordained to tell people the law. That man strikes down the rights of all
men, for the lawman has duties to all, poor and rich, where he rules....
Men who are found to be so deceitful as to run away with other men’s
wives are _ubota-menn_.”
Such an outlaw was regarded as an enemy of society, and lost his
personal security with regard to every one of its members; from the
earliest times he was called _varg i véum_ (wolf in the sanctuary), or
_skógar-man_ (forestman), so called probably because he was deprived of
intercourse with mankind and left with the wild beasts of the forest,
and could be killed by any one who saw him.
Grettir while in Norway had accidentally set fire to a house in which
there were some Icelanders who had been drinking, and therefore probably
could not get out, and so were burned.
“That same summer there came a ship to Gasar, before the opening of the
Althing. News was brought of the journeys of Grettir, and the burning of
the house. Thorir of Gard became exceedingly angry at this, and thought
that he ought to avenge his sons. He went to the Althing with many men,
and there presented the case of the burning; but they were unwilling to
do anything, because nobody was there to answer. Thorir said he would
accept nothing but Grettir’s outlawry from Iceland for such an evil
deed. Skapti the lawman answered: ‘It is certainly a wicked deed, if the
news is true; but a tale is always half told if only one man tells it,
for most men are willing to take the worst side of a question if there
are two, therefore as matters stand I will not decide that Grettir shall
be outlawed for this.’ Thorir had great power in his Herad and was a
great chief, and friendly with many great men; he pressed the case hard,
and no one appeared in Grettir’s defence. Thorir then had Grettir
outlawed from the land, and was afterwards the most dangerous of all his
foes, as was often seen. He at once put a price on his head, as was done
with other outlaws, and rode home. Many said that this had been effected
more by power than according to law, but the case stood as it had just
been settled” (Gretti’s Saga, c. 46).[577]
This seems to indicate that it was customary for some one to plead on an
outlaw’s behalf, for it is said in the Saga that “Skapti died, when
Grettir had been outlawed nineteen years, so that then there was no one
to plead his cause.” His friends, however, brought his case before the
Althing, and the judge decided that a man could not be an outlaw for
more than twenty winters, even if during that time he committed some new
crime; but that before that time expired the sentence could not be
revoked.
“That summer the kinsmen of Grettir spoke much of his outlawry at the
Althing, and some thought that he had served his time, as he had been
outlawed now a part of the twentieth year; but those who had charges to
bring against him did not like this, and said he had committed many
deeds since for which he ought to be outlawed, and therefore his
outlawry ought to last longer. At this time Stein Thorgestson was chosen
lawman. He was a wise man, he was asked to give his decision. He
enquired if the time of the summer thus far passed belonged to the last
twelve months of the twenty years since he had been outlawed. As it was,
Thorir from Gard tried to raise all the objections he could, and found
that Grettir came to Iceland when a part of the summer had passed, and
had not been an outlaw during that time. Nineteen twelvemonths, less the
three months that passed from that Althing until Grettir came to Iceland
in the autumn, had his outlawry lasted. Then the lawman said that no man
should be an outlaw longer than twenty winters, even though during that
time he committed deeds for which he ought to be outlawed; but that
before twenty winters passed he would not declare any one free from his
outlawry” (Gretti’s Saga, c. 79).
The liabilities of a woman who committed murder were different according
to the Gulathing or the Frostathing Law.
“If a woman slays a man, the kinsmen of the dead, if they wish, may slay
her, if she does not go away in five days during summer, and in half a
month during winter” (Frostath., iv. 33).
“If a man slays a woman he is outlawed, just as if he had slain a man.
But if a woman slays a man she is outlawed, and her kinsmen shall send
her out of the country; and also if a pauper[578] slays a man he shall
be sent out of the country within five days, and he may stay with his
kinsmen five nights if no necessity delays him longer. If he stays
longer he shall pay forty marks, or deny it with _lyritareid_” (Gulath.,
159).
Sigmund and Eylif, sons of Önund, wanted to get rid of a man called Örn,
their kinsman. Mörd Gigja advised them to get him outlawed, and in that
way get him from the Herad.
“They raised against Örn a suit about the right of grazing and it was
agreed that Örn should be slain as unholy, and have no weregild
anywhere, except at Valugerdi (his farm) and within an arrow-shot from
his land. They continually tried to get at him, but he kept well on his
guard. One day when he was driving oxen from his land they came upon him
and slew him, and it was thought that his death was unholy. Hamund
Gunnarsson and Thorleif led the prosecution in Örn’s case, while Mörd
supported the brothers; they paid no fine, but were outlawed from the
Herad” (Landnáma, v., c. 4).
Another kind of outlawry (_Utlegdarmal_) was less severe, and did not
imply the confiscation of property, for the outlaw could redeem himself
by paying weregild. To this second class belonged a great many crimes,
the principal of which were: simple slaying,[579] severe wounds, crimes
against honour, bodily ill-treatment, crimes against personal liberty,
robbery, etc.
In some cases corporal punishment, and occasionally fines, were
substituted for outlawry.[580]
If a man killed another and failed to cover the body with earth he was
outlawed.
Helgi Droplaugarson slew Björn, because he visited Thórdis, a kinswoman
of Helgi’s, too often.
“The following night Helgi Sveinung and the two others went to a skerry
(rock) lying off the shore and removed Björn thither and covered his
corpse. The widow of Björn thought there would be a prosecution by Helgi
Ásbjarnarson and sent men to him at Mjófanes (her place). In this spring
after Björn’s death, this chief sent to Borgarfjord to prepare the case,
and did not find the corpse of Björn.
“Then Helgi Ásbjarnarson (a godi) summoned Helgi Droplaugarson because
he had murdered a man, thrown him into the sea, and not covered him with
mould. Helgi summoned him at the Thing for greater outlawry. He had
prepared the case of seduction for the Althing. Both cases came to the
Thing. Helgi Droplaugarson went to the court, with many men; he called
witnesses to prove that Helgi Ásbjarnarson had no case, and said that
three men had seen Björn covered with mould; then Sveinung and two
others took oath at the altar ring that they saw Björn covered with
mould. Now the case of Helgi Ásbjarnarson was made void. Then Helgi
Droplaugarson wanted to make Björn unholy, but Helgi Ásbjarnarson
offered property and then Helgi Droplaugarson arbitrated, and he decided
that 100 aurar should be paid” (Droplaugarsona Saga, p. 15, 16).
If a man was outlawed he had to buy his peace, “_fridkaup_,” from the
king, who determined what the amount should be.
“Now it may happen that the king permits the outlaw to stay in the land
at the entreaties of chiefs, or in some other way. Then he (the outlaw)
must buy peace with the king according to his mercy (the price paid by
the outlaw to stay in peace in the country is determined by the king),
and pay that half of his fine which is unpaid with sale-meetings
(auctions), of the kind that men of good sense see that he is well able
to hold. If he is not willing to pay, the kinsmen of the dead may take
revenge on him, even though he be reconciled (in peace) with the king,
and they will not be outlawed though they slay him. But those who took
care of his property while he was an outlaw must pay him back as much as
they received in lands and movables, and the rent of the land besides”
(Frostathing’s Law, Introd. 5).