10. Saga-Period Iceland

Iceland is known to men as a land of volcanoes, geysers and glaciers. But it ought to be no less interesting to the student of history as the birthplace of a brilliant literature in poetry and prose, and as the home of a people who have maintained for many centuries a high level of intellectual cultivation. It is an almost unique instance of a community whose culture and creative power flourished independently of any favouring material conditions, and indeed under conditions in the highest degree unfavourable. Nor ought it to be less interesting to the student of politics and laws as having produced a Constitution unlike any other whereof records remain and a body of law so elaborate and complex, that it is hard to believe that it existed among men whose chief occupation was to kill one another.

Bryce 1901, 263

About forty years ago George Stigler and Gary Becker, two prominent economists at the University of Chicago, published an article that pointed out a problem with the conventional system for enforcing criminal law.301 I like to summarize their argument with a brief story.

I am a cop, you are a criminal. I have the goods on you, the evidence that will send you to jail. The cost of being convicted and jailed is, to you, the equivalent of a hundred thousand dollar fine. The benefit to me of getting you convicted is a gold star on my report card, a boost to my career that will raise my lifetime income by ten thousand dollars. Seen from the perspective of Dragnet, the rest of the story is obvious: I turn over the evidence to the D.A., you go to jail. Seen from the perspective of economics, it is also obvious. I have something worth ten thousand dollars to me and a hundred thousand to you. Markets exist to move assets to their highest valued use. You pay me fifty thousand dollars and I burn the evidence.

To keep this from happening, to make the system work as designed, we need a second layer of cops watching the first layer—and perhaps a third layer watching them. That raises the cost and complication of the system. Becker and Stigler suggested a simple alternative: Replace the salary of the policeman with a reward. When you pay a hundred thousand dollar fine or receive the equivalent prison sentence, I get a hundred thousand dollars. Now the only bribe I would be willing to accept is for at least a hundred thousand dollars, which would impose the proper punishment on you while saving the cost of a trial.

Two prominent legal scholars, Richard Posner and William Landes, also at the University of Chicago, responded, pointing out issues that the first set of authors had failed to deal with, including the question of who had the right to catch a criminal and collect the reward. One possible solution was to make it a property right of the victim, a claim against the criminal. At which point, as Landes and Posner pointed out, Becker and Stigler had reinvented the tort system. Under tort law, as under the hypothetical version of criminal law, the victim has a claim against the offender, collected by an in-court conviction or out-of-court settlement.

I got interested and added two articles to the exchange. One offered a solution to a technical problem with a system of privately prosecuted criminal law that Landes and Posner had pointed out.304 The other described an actual legal system similar to the imaginary one they were discussing. In saga-period Iceland a thousand years ago, if you killed someone his relatives sued you. Studying that system was what first got me interested in the broader subject of this book. This chapter is a greatly revised version of that article.

The Problem of Sources

Our knowledge of the Icelandic legal system is based on sources of two sorts: the sagas, histories and historical novels written down in the thirteenth and fourteenth centuries, many of which are set and may have been composed in the tenth and early eleventh centuries, and Gragas, a collection of legal texts written down in the second half of the thirteenth century. When I first tried to make sense of the system, Gragas had not yet been translated into English; since I did not read Old Norse, I based my article on the sagas and the secondary literature. Returning to the subject more than thirty years later, one of the first things I did was to read Gragas, now available in English. I concluded that parts of it were inconsistent both with my old account of the system and with the sagas that account was based on.

To check the latter conclusion, I read though all of the sagas set in Iceland. I concluded that while my article had been mistaken about some significant legal details, I had for the most part correctly described the system as shown in the sagas. Gragas was inconsistent not only with the family sagas, written down two or three centuries after the events they described, but also with the Sturlung sagas, whose authors were describing events many of which had occurred during their lifetime, some of which they were participants in.

The most important inconsistency had to do with out-of-court settlements. According to Gragas, an offence for which the legal penalty was full outlawry could be settled on less harsh terms only with the approval of the Lögrétta, the law council. Most such cases in the sagas were resolved by settlement, but I found no examples either of settlements described as approved by the Lögrétta or of ones blocked by its failure to approve. Further, many settlements occurred when the Althing was not in session and so the Lögrétta, which met only at the Althing, did not exist to approve or disapprove them.

According to Gragas, once someone had been charged with a serious offense it was illegal for anyone to harbor him—give him food or shelter. Equally strange, at least to modern sensibilities, it was illegal for him to attend any assembly, including the one at which he was to be tried. His defense had to be conducted by someone else in his absence. I have found only one passage in the sagas where someone was penalized for harboring a killer before he had been tried and convicted and that was part of a settlement, not a court verdict. Defendants often but not always appear at the assembly at which they are to be tried.

Gragas specifies acts by which someone forfeited his immunity, could be killed without legal consequences. That included any attack, even a blow that failed to land, and applied not only to the perpetrator but to companions who knew of or assisted the intended attack.

It is prescribed that a man on whom injury is inflicted has the right to avenge himself if he wants to up to the time of the General Assembly at which he is required to bring a case for the injuries; and the same applies to everyone who has the right to avenge a killing. Those who have the right to avenge a killing are the principals in a killing case. The man who inflicted the injury falls with forfeit immunity at the hands of a principal and at the hands of any of his company, though it is also lawful for vengeance to be taken by other men within twenty-four hours.

The legal pattern in the sagas is more complicated. There are passages where an attacker is held to have fallen with forfeit immunity. There is one that seems to imply that immunity is forfeit only if someone on the other side was killed or wounded. There are others where the attack is treated as a separate tort, with damages to be set off against those owed for killing the attackers. But in most cases where there is an unambiguous attack by one person or group against another the rule of forfeit immunity is ignored, with deaths on each side set off against deaths on the other side and either wergeld (the damage payment for a killing) or outlawry owed for any excess deaths.

According to Gragas, almost anything of a sexual nature between people not married to each other was a serious offense.

“If a man kisses a woman in private, with no one else present and with her consent, then he incurs a penalty of three marks, and the case lies with the same man as an intercourse case would. But if she takes offence at it, then the case lies with her and the penalty is lesser outlawry. If a man gives another man’s wife a secret kiss, the penalty for that is lesser outlawry whether she allows it or whether she forbids it, … If a man asks a woman to sleep with him, the penalty for that is lesser outlawry.”

Gragas II K§155, 69

But Gragas also gives rules for inheritance which take for granted the existence of illegitimate children. In some cases the mothers might have been vagrants, to whom the same rules did not apply, or thralls, or the father might have been outlawed. But one of the bishops of Iceland was illegitimate and his mother was a sister of the previous bishop, clearly not a thrall or a vagrant. In the Sturlung sagas practically every important man has a mistress; one chieftain is in bed between his two mistresses when attackers show up. The mistresses are described as the daughters of respectable farmers. Being the mistress of an important man was viewed by some as better than being the wife of someone less important. There are cases where someone is charged with an intercourse offense, but with only a few exceptions they are cases where intercourse led to pregnancy.

What explains conflicts between Gragas and the sagas? I can see at least four alternatives:

  1. The sagas are wrong. They do not accurately describe how the legal system functioned in the period they cover.
  2. Gragas is wrong.
  3. Gragas describes the system as it existed at the end of the period, the sagas as it existed in the first century and a half.
  4. Gragas describes the legal system as it existed on paper but not as it existed in practice.

The first alternative gets us into an old scholarly controversy. The family sagas describe events in the late ninth through early eleventh centuries but their written texts date from the thirteenth and fourteenth. One possibility is that they were composed shortly after the events they describe, passed down in oral form for several centuries, then committed to writing. An alternative is that they were composed by the people who wrote them down, based on bits and pieces of tradition. If the latter is correct, their picture of the legal institutions of the earlier period might be no more reliable than the picture of the Wild West in modern westerns or of medieval Europe in bad historical novels.

One argument against the oral tradition theory is that the sagas are prose not verse, hence more easily mutated in transmission. On the other hand, the authors of many of them had lived under the legal system in which they were set, even if a later version—the major changes occurred after 1263, when the Icelanders turned over authority to the king of Norway.

Many years ago Jesse Byock, a leading American scholar of the sagas, published an ingenious piece of evidence in, of all places, Scientific American. He demonstrated that a collection of apparently unrelated details about Egil Skallagrimsson, the central figure in Egil Saga, and his father and grandfather all fit the theory that they suffered from Padget’s disease, a hereditary disease first identified in the 19th century. That makes sense if the saga was composed at a time when the relevant details were still in living memory, less sense if it was created two or three hundred years later.

Byock’s view is that while details of the saga plot might be recreated each time they were told, the stories were based on a historical and institutional background known to both teller and audience. Eventually someone did it one more time in writing. That suggests that they should be reliable as a source of information on institutions if not always on historical details. Sigurdsson takes a similar position.

Whether or not the family sagas can be taken as reliable historical documents, it is generally agreed that the Sturlung sagas, dealing with events much closer to their composition, can be. Hence where a rule in Gragas contradicts the Sturlung sagas, I think we can be reasonably confident that it does not describe the actual law code, at least in practice.

The second alternative gets us to the nature of Gragas. It was assembled from two long accounts of the law and several fragmentary ones, all presumably compiled by private individuals for their own use. The earlier account was written down about 1260, just before the end of the period of Icelandic independence, the later about 1280, after Iceland had come under Norwegian rule. One rule included is that, in case of conflict among written accounts of the law, the texts belonging to the bishops have priority, which implies that written accounts of the law differed. So the Gragas texts may represent some mix of what the law was, what the person writing it thought it was and what the person for whom it was written wanted it to be.

The third alternative, that the law changed over time, is true in at least one respect. Iceland went Christian in the year 1000. Gragas contains a long section dealing with churches, what things you are forbidden to do on a holy day and the penalties for doing them, and related issues. But the comparison of the Sturlung sagas to the family sagas suggests that although law in practice changed as the system broke down, law in theory, aside from the Christian additions, remained very much the same.

The fourth alternative strikes me as a plausible explanation in the case of intercourse offenses. Even if seduction was an offense that the woman’s father could prosecute, it might have been more prudent not to, especially if no pregnancy had occurred. In one case we are told that the seducer responded to the father’s complaint by offering to marry his mistress—and did so. That alternative is also a possible but somewhat less plausible explanation of the conflict between the penalties imposed, according to Gragas, on a defendant prior to his trial and the behavior of defendants in the sagas. This is more of a problem for the family sagas than for the Sturlung sagas, since by the Sturlung period defiance of the law by powerful individuals had become common.

There is one additional inconsistency between Gragas and the sagas, in particular the Sturlung sagas, that supports the idea that Gragas is in part a wish list. In the Sturlung sagas, parties to legal disputes quite often arrive at the Althing with hundreds of supporters—the larger the force, the better the odds of a favorable outcome. A common pattern is for neutral parties, sometimes led by one of the bishops, to intervene to find some acceptable compromise in order to prevent a battle.

According to Gragas, no litigant can bring more than ten men to court.
I conclude that the claim in Gragas that settlement required the consent of the Lögrétta is inconsistent with massive evidence in both the family and the Sturlung sagas, hence almost certainly false. I take the rules on forfeit immunity and intercourse offenses as existing in some form but not consistently enforced. Where Gragas is not contradicted by events in the sagas, I take its legal rules as a reasonable guess at the rules in force.

History and Institutions

In the latter half of the ninth century, King Harald Fairhair unified Norway under his rule. A substantial number of the inhabitants, unhappy with the change, left; many went either directly to Iceland, which had been discovered by the Norse a few years earlier, or indirectly via Norse colonies in England, Ireland, Orkney, the Hebrides, and the Shetland Islands. The political system they developed there was based on Norwegian traditions with one important innovation—there was no king.

At the base of the system stood the goði (pl. goðar) and the goðorð (pl. goðorð). The original goðar seem to have been local leaders who built pagan temples and served as their priests. A goði received temple dues and provided in exchange both religious and political services. The goðorð was his congregation. The relationship between the goði and his thingmen (thingmenn) was contractual not territorial. The goði had no claim to the thingman’s land and the thingman was free to transfer his allegiance.

Under the system of laws established in A.D. 930, these local leaders were combined into a national system. In 960, Iceland was divided into four quarters, each containing nine goðorð clustered in groups of three called things. In 965 three more goðar were added in the North Quarter and in 1005 an additional three “new goðar” each in the southern, eastern and western quarters. The new goðar had seats in the Lögrétta and played a role in appointing judges to the fifth court but not to the quarter courts.

The one permanent official of this system was the lögsögumaður or lawspeaker; he was elected every three years by the inhabitants of one quarter, which quarter it was being chosen by lot. His job was to memorize the laws, recite them once during his term in office, provide advice on difficult legal points and preside over the Lögrétta, the legislature.

The members of the Lögrétta were the goðar, new and old, for each of these two advisors, plus, after Iceland went Christian in 1000, the two bishops. Decisions were made by majority vote subject to attempts to first achieve unanimity.

The laws passed by the Lögrétta were applied by a system of courts, also resting on the goðar. The thing court or Vorþing was held at the spring Assembly of each quarter. The judges were chosen twelve each by the three goðar of the thing, making thirty-six in all. Next came the quarter-thing for disputes between members of different things within the same quarter; these seem to have been little used and not much is known about them. Above them were the four quarter courts of the Althing (alþingi) or national assembly, an annual meeting of all the goðar, each bringing with him at least one-ninth of his thingmen. There were procedures by which a party to a suit could veto its settlement in the Vorþing, forcing it up to the appropriate quarter court. Above the quarter courts, after the reforms credited to Njal, was the fifth court. Cases undecided at any level of the system went to the next level. At every level the judges were appointed by the goðar, each quarter court and the fifth court having judges appointed by the goðar from all over Iceland. The fifth court reached its decision by majority vote; the other courts seem to have required that there be no more than six (out of thirty-six) dissenting votes in order for a verdict to be given.

A court system requires some way of determining the facts of the case, made more difficult in a society where most people were illiterate. The Icelanders made use of a system of panels of varying size. In some contexts the panel consisted of the nine nearest neighbors to the site of an event, such as a killing. In others, it consisted of witnesses to a required legal act. There were requirements for who could be on a panel and procedures for dismissing unqualified members, such as anyone too closely related to plaintiff or defendant.

The goðorð itself was two different things. It was a group of men—the particular men who had agreed to follow that goði, to be members of that goðorð. Any man could be challenged to name his goðorð and was required to do so, but he was free to choose any goði within his quarter who would have him and to change to a different goðorð at will (but only at a particular time in the year). The goðorð was also a bundle of rights, including the right to sit in the Lögrétta and appoint judges for certain courts. Perhaps most important, it was the right to be the person through whom ordinary farmers plugged into the legal system. The farmer who was the thingman of a goði owed him an annual thingtax, used to pay the expenses of those thingmen who accompanied the goði to the Althing. The amount of the thingtax was negotiated between goði and thingman. The goðorð in this second sense was marketable property. It could be given away, sold, held by a partnership, inherited. Seats in the law-making body were quite literally for sale.

I have described the legislative and judicial branches of the Icelandic system but have omitted the executive. So did the Icelanders. The function of the courts was to deliver verdicts on cases brought to them. That done, the court was finished. For serious offenses, conviction meant full outlawry. The outlaw’s property was confiscated, part going as a damage payment to the victim or his heirs, part to support the outlaw’s dependents. If more was available, the goði in charge of the confiscation court got a cow or a four year old ox. The remainder was divided between the prosecutor and the men of the quarter if he was outlawed at the Althing, the men of the assembly for the district where the confiscation court was held if he was outlawed at the Vorþing, to be spent on care of the outlaw’s dependents and, if anything was left, on other itinerants. It was legal to kill an outlaw, illegal to feed him, shelter him, or help him to leave Iceland. For somewhat less serious offenses, conviction meant lesser outlawry. A lesser outlaw had the right to leave Iceland and could return in three years. For still less serious offenses the punishment was a fine. If it went unpaid, the penalty was lesser outlawry if the fine was paid at the confiscation court, greater outlawry if it was not.

Prosecution was up to the victim or his kin. If they and the offender agreed on a settlement, the matter was settled. Most cases in the sagas were settled out of court, usually for money damages, sometimes for lesser outlawry or greater outlawry with permission to leave Iceland. Many were settled by arbitration, including the two most serious conflicts that arose prior to the final period of breakdown in the thirteenth century. Calculations by two different scholars suggest that only about a tenth of cases went to a final judgment by the court.

Where a clash resulted in deaths on both sides they were usually set off against each other, sometimes weighted by how important the man killed was, with the excess paid in wergeld or outlawries. In some cases part of the payment for killing one man was the cancellation of the outlawry imposed on another in a previous conflict. Some passages suggest that the prosecutor who got a man outlawed had the power to later lift the sentence from his outlaw.

Icelandic law distinguished between killing and murder—secret killing. After killing a man, one was obliged to announce the fact immediately:

It is prescribed that where men go only one way from a killing, then the killer is to publish the killing as his work within the next twelve hours; but if he is on mountain or fjord then he must do it within twelve hours of returning. He is to go to the first house where he thinks his life is in no danger on that account and tell one or more men legally resident there and state it in this way: “There was an encounter between us,” he is to state, and name the other man and say where it was. “I publish those wounds as my work and all the injury done to him; I publish wounds if wounds are the outcome and killing if killing is the outcome.”

G1 K87, 153-4

“It is prescribed that if he publishes it in some other way than now told, then it is deemed murder, with the result that it cannot be claimed that the other man, no matter what offense he may have given, died with forfeit immunity, and no grounds of defense are to be accepted.”

Murder cost the killer the ability to raise legal defenses, such as the fact that his victim was an outlaw or had forfeited his immunity by attacking. Concealed taking in some circumstances had a more severe penalty than open taking. In addition, secret killing (murder) or secret taking (theft) was seen as shameful.

Hreppur

In addition to the legal system based on goði and goðorð, there was a system consisting of groups of households called Hreppur. Unlike the legal system, it was geographically based, consisting of groups of neighbors, at least twenty households in each. Its functions included coordinating summer grazing, providing a system of mutual insurance for the members, allocating responsibility for local orphans and indigents and providing a forum for local disputes. The Hreppur were self governing. Not much is known about their internal structure.

Analysis

One possible objection to a system of privately enforced law is that the poor or weak would be unable to enforce their rights. The Icelandic system dealt with this problem by making the victim’s right to compensation transferable. The victim could turn over his case to someone else, either gratis or in return for a consideration. A man who did not have sufficient resources, in wealth or allies, to prosecute a case or enforce a verdict could sell it to another who expected to make a profit in both money and reputation by winning the case and collecting the fine. This meant that an attack on even the poorest victim could lead to eventual punishment. A man might volunteer to take on a case not for money but in order to gain status or because the offender was an enemy he wished to harm.

A second possible objection is that the powerful could commit crimes with impunity, since nobody would be able to enforce a judgment against them. Where power is sufficiently concentrated this might be true; that was one of the problems that led to the eventual breakdown of the Icelandic legal system in the thirteenth century. But so long as power was reasonably dispersed, as it seems to have been for the first two centuries after the system was established, this was a less serious problem. A man who refused to pay his fines or offer a reasonable settlement and as a result was outlawed would probably not be supported by as many of his friends as the plaintiff seeking to enforce judgment, since in case of violent conflict his defenders would find themselves legally in the wrong. If the lawbreaker defended himself by force, every injury inflicted on the partisans of the other side would result in another suit and every refusal to settle and pay would pull more people into the coalition against him.

There is a scene in Njal Saga that provides striking evidence of the stability of the system. Conflict between two groups has become so intense that open fighting threatens to break out during the Althing. A leader of one faction asks a benevolent neutral what he will do for them in case of a fight. He replies that he will draw up his people, armed, on one side. If the leader’s men are losing they can retreat behind his, ending the fight. If they are winning, he will first block the other side from the best defensive position available and then break up the fight before the winners kill more men than they can afford. Even when the system seems so near to breaking down, it is still assumed that every enemy killed must eventually be paid for. Each man killed will have friends and relations who are still neutral and will remain so if and only if the killing is made up for by an appropriate wergeld.

A similar pattern holds even in the final period of breakdown, when coalitions are engaged in a virtual civil war. After it is clear which side has won a battle most of the losers are let go unharmed, with the exception of anyone against whom the winners have a particularly serious grudge. When one side manages a successful surprise attack on the home of the opposing leader they kill him, assuming he is present and does not manage to get away, but they let anyone not killed in the process go, again with the same exception. If he turns out to be absent, they may damage the home but are unlikely to massacre the inhabitants.

There are two explanations for restraint in what was in other ways a pretty unrestrained conflict. One is that you may want to ally next year with the faction you are currently fighting. Acquiring them as allies may require first paying your debts, including debts for people killed. The other is that the people you have just defeated have relatives, not all of whom are in the enemy coalition. To keep them neutral or, better yet, friendly, it may prove necessary to pay for those you killed.

After one attack in which a home was burned, the attackers eventually agreed to pay damages for most of those killed inside it but insisted that they owed nothing for one man since they not only offered him the opportunity to come out, they offered to pay him to. It is one of many scenes in the Sturlung sagas in which people eventually agree to pay damages for those they have killed.

In order for a potential offender to be deterred, he has to believe that someone is committed in advance to act against those who wrong his potential victim. In Iceland this was done by a system of existing coalitions, some of them goðorð, some groups of friends and relatives. If a member of such a coalition was killed it was in the interest of the other members to collect wergeld for him even if the cost was more than the amount that would be collected; their own safety depended partly on their reputation for doing so. If the killer was unwilling to pay, it was in their interest to push the case through to outlawry and then do their best to kill the outlaw, even at some risk to themselves.

One difficulty with fines or damage payments is that criminals might be judgment proof, unable to pay enough to provide adequate deterrence. The Icelandic system dealt with this in three ways. First, most offenses were ones for which detection was almost certain, hence the cost imposed on offenders did not have to be increased to compensate for a low probability of having to pay it. Second, the society provided effective credit arrangements. The same coalitions mentioned above provided their members with money to pay large fines. Third, a person unable to discharge his financial obligation could be reduced to a state of temporary slavery, debt thralldom, until he had worked off his debt. Convicted offenders had a strong incentive to find some way of paying for their offenses, since the alternative was thralldom or outlawry.

Causes of the Breakdown of the System

One cause of the breakdown of the Icelandic system seems to have been increased concentration of wealth and hence power. By the Sturlung period there were many areas where all or most of the goðorð were held by one family, reducing or eliminating the ability of the individual thingman to choose his goði and creating a de facto, if imperfect, form of territorial sovereignty.

Why did power become more concentrated? Possibly because a coalition controlling multiple goðorð could raise a larger force in support of legal claims. In addition, since a coalition controlling multiple goðorð in the same area would be subject to less competition for thingmen, it would be able to get them on more favorable terms. Those advantages would be balanced, as in the Somali case to be discussed in the next chapter, by the increased problems of internal conflict within a larger coalition. The Sturlung period is so called after the Sturlung family, which played a large role in its conflicts—frequently with one leading member fighting against another.

Another possible source of concentration of wealth and power was the introduction of Christianity. A church was under the control of the local landowner who had donated its land and paid for its construction. Individual farmers owed tithes to the church, some fraction of which might end up in the hands of its owner.352 That provided the equivalent of taxation, a source of revenue to support the power of ambitious men.

A second and related cause of the breakdown was the introduction into Iceland of a foreign ideology—monarchy. By the end of the Sturlung period the chieftains were no longer fighting over who owed what damages to whom but over who should eventually rule Iceland. The Norwegian king gave at least one of the Icelandic leaders the title of Jarl, along with instructions to take over Iceland on his behalf and collect tribute. Many of the goðorð were transferred by their owners to the king. Several of the leading figures, when out of Iceland, usually as a result of a settlement that included temporary outlawry, became retainers of the king, in principle obligated to obey his orders. One of them, Snorri Sturluson, was killed in Iceland on the king’s orders as punishment for returning to Iceland without royal permission.

Conclusion

The sagas are perceived by many as portraying a violent and unjust society tormented by constant feuding. It is difficult to tell whether such judgments are correct. The sagas were written down during or after the Sturlung period, the final violent breakdown of the Icelandic system in the thirteenth century, and their authors may have projected elements of what they saw around them on the earlier periods they described. Also, violence has always been good entertainment, and the saga writers may have selected their material accordingly. Even in a relatively peaceful society novelists might be able to find, over the course of three hundred years, enough conflict for a considerable body of literature.

The quality of violence, in contrast to other medieval literature, is small in scale, intensely personal (every casualty is usually named), and relatively straightforward. In the rare cases when an attacker burns the defender’s home, women, children, and servants are first offered an opportunity to leave. Rape and torture are uncommon, the killing of women almost unheard of. According to a calculation by a scholar who went through the Sturlung sagas counting bodies, during more than fifty years of the violent breakdown of the traditional system the number of people killed or executed each year, on a per capita basis, was roughly equal to the rate of murder and non-negligent manslaughter in the United States in 1975.

Appendix: Wages and Wergelds

To compare penalties in the Icelandic system with those in more familiar legal systems, we need some measure of the value of the money the penalties were paid in. Two different monies were in common use in medieval Iceland—silver and vaðmal, woolen cloth. Silver was measured in ounces (aurar) and in marks; the mark contained eight ounces. Waðmal was of a standard width of about a meter and measured in Icelandic ells (alnar) of about 56 centimeters. During the twelfth and thirteenth centuries the value of an ounce (eyrir) of silver varied between 6 and 7 1/2 ells. The “law ounce” was set at 6 ells; this appears to have been a money of account, not an attempt at price fixing.

Gragas contains a passage setting maximum wages, possibly an attempt to enforce a monopsonistic cartel agreement by the landowning thingmen against their employees. Porkell Johannesson estimates from the passage that the farm laborer’s wage, net of room and board, amounted to about one mark of silver a year and cites another writer who estimated it at about three-quarters of a mark. Johannesson also states that wages net of room and board seem to have been low or zero at the time of settlement but to have risen somewhat by the second half of the tenth century.

These figures give us only a very approximate idea of Icelandic wages. The existence of maximum wage legislation suggests that the equilibrium wage was higher than the legislated wage. But wages, as Þorkell Johannesson points out, must have varied considerably with good and bad years; the legislation might be an attempt to hold wages in good years to a level below the good year equilibrium but above the average wage.

For a second estimate of wages I have taken advantage of the fact that one of the two monetary commodities was woolen cloth, a material whose production is highly labor intensive. If we knew how many hours went into spinning and weaving an ell of vaðmal we could estimate an upper bound on the market wage rate; if it takes y hours to produce one ell, then the hourly wage of the women making cloth, including the value of any payment in kind they receive, should be less than l/y ells of vaðmal.

I estimated y in two ways—from figures given by Hoffman for the productivity of Icelandic weavers using the same technology at later periods and from estimates given me by Geraldine Duncan, who has herself worked with a warp-weighted loom and a drop spindle, the tools used by medieval Icelandic weavers. Both methods lead to imprecise results, the first because reports disagree and the sources are vague as to whether the time given is for weaving only or for both weaving and spinning, the second because Mrs. Duncan did not know the precise characteristics of vaðmal or how the skill of medieval Icelandic spinners and weavers compared with her own. My conclusion is that it took about a day to spin and weave an ell of vaðmal; this estimate could easily be off by a factor of two in either direction. If we assume that, in a relatively poor society such as Iceland, a considerable portion of the income of an ordinary worker went for room and board, this figure is consistent with the maximum wage figure in Gragas.

A rough check on these estimates of wages is provided by the fact that the lögsögumaður received an annual salary of 240 ells of vaðmal plus a part of the fines for certain minor offenses. While his position was not a full-time one, it involved more than just the two weeks of the Althing; he was required to give information on the law to all comers. Since the man chosen for the post was an unusually talented individual, it does not seem unreasonable that the fixed part of his salary (which, unlike the wages discussed before, did not include room and board) amounted to five year’s wages or an amount of vaðmal which would have taken about ten months to produce. Thus this figure is not inconsistent with my previous estimate of wages.

During the Sturlung period, when wealth had become relatively concentrated, the richest men had a net worth equivalent, by my estimate, to three to four hundred years’ production of vaðmal or about a thousand cows. Using wages to convert that to its modern equivalent, the former figure corresponds to about twelve million dollars. Using cattle, the latter corresponds to only a few hundred thousand—wages having risen considerably more, over the last millennium, than the price of cattle.
Table 1 gives values for a number of things in ounces, ells, years of production of vaðmal and years of wages. The ounce is assumed to be worth six ells, the year’s production of vaðmal to be three hundred ells (three hundred days at one ell/day) and the year’s wage to be one mark of forty-eight ells.

Wergeld for a thrall, the price of a thrall and the manumission price of a thrall were all equal, as might be expected. The price of a thrall presumably represents the capitalized value of his production net of room and board. It seems at first surprising that this should amount to only a year and a half of wages (also net of room and board), but we must remember that wages, according to Thorkell Johanneson, were lower in the early period, when thralldom was common. Thralldom disappeared in Iceland by the early twelfth century, most of Gragas dates from the late thirteenth.

The wergeld for a thrall was much lower than for a free man. The value of a thrall to his master would be the capitalized value of his net product. But the value of a free man to himself and his family includes not only his net product but also the value to him of being alive. Food and board are expenses to the owner of a thrall but consumption to a free man. And the costs of the thrall to the owner would include costs of guarding and supervision that would not apply to the free man’s calculation of his own value. In one passage in Njalsaga, a trusted household member, presumably a thrall, asks Njal to promise that if he is killed he will be paid for at a free man’s price and Njal agrees.

OuncesEllsYears Production of WaðmalYears WagesSource
Normal Price of Male thrall1272.241.5Williams 1937, 29
Manumission price of thrall1272.241.5Johnson 1930, 225
Wergeld for thrall1272.241.5Id.
Wergeld for free man100600212.5Magnusson and Palsson 1960, 108
Wergeld for free man4002400850Id
Wergeld for important man2001200425Id. at 255.
Wergeld for important man800480016100Id.
Law-speaker salary240+.8+5+Gragas I K‡l16 209
Wealth of very rich man
(Sturlung Period)
120,0004002500Sveinsson 1953, 45
Wealth of very rich man
(Sturlung Period)
96,0003202000Id.
Price of cow
(c. A.D. 1200)
90-96.3-.321.9-2Id. at 56
Table 1

If we interpret the ounce of Njal’s Saga as a legal ounce the usual wergelds for free men again seem somewhat low, ranging from 12 l/2 year’s wages for an ordinary man to twice that for a man of some importance. Here again. we must remember that there is considerable uncertainty in our wage figures. Twelve and a half years’ wages might be a reasonable estimate of the value of a man to his family, assuming a market interest rate of between 5 and 10 percent, but it hardly seems to include much allowance for his value to himself. If we accept the interpretation in Magnusson and Palsson of the ounce in which the wergelds of Njal’s Saga are paid as an ounce of unrefined silver, worth four legal ounces, the figures seem more reasonable.

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