Offprint from:
Directions for Old
Frisian Philology,
ed. R.H. Bremmer
Jr, S. Laker and O.
Vries. ABäG 73.
Amsterdam:
Rodopi, 2014,
1-48.
The Orality of Old Frisian Law Texts
Rolf H. Bremmer Jr
INTRODUCTION
From about the turn of the thirteenth century, judging by the evidence
available to us, the Frisians started to commit the rules and customs that
regulated their social life to writing.1 In this respect, they were no different
from many other groups in Western Europe. Inspired by the renewed and
systematized study of Roman and Canon Law in the twelfth century and
encouraged by the quickly expanding papal administration, legal texts,
especially those of a secular nature, found their way onto parchment.2 It has
generally been assumed in Frisian studies that these law texts already had
an extensive history of oral delivery behind them before they were finally
recorded by scribes. In itself, as shall be seen, this assumption is very plausible, but can the same be said for the reasons that were adduced to lend
credence to it?
Support for the oral origin of Frisian law was grounded in two arguments. The first was the term for one of the most important players in the
game of law: the asega, literally ‘law-sayer’.3 Jacob Grimm, and other nineteenth-century legal historians in his footsteps, recognized the Icelandic
lo3 gso3 gumaðr ‘law-say-man’ in this Frisian legal official. Consequently, the
asega was attributed the same role as his alleged Icelandic counterpart: he
was the man who had memorized the laws and it was his duty to recite the
law at certain communal gatherings, perhaps, just like his Icelandic counterpart, in a triennial cycle.4 There were many such meeting places in the
various Frisian lands, but we know of only one supraregional assembly
location, an elevation in the landscape not far from Aurich (today in Ostfriesland, Niedersachsen), called Upstallesbam [The tree of Upstal].5 For
Thomas Markey, to give an example, the conclusion was obvious: ‘Upstals1
Parts of this paper were read at the 48th International Congress on Medieval Studies,
Kalamazoo, MI, May 2013. I would like to thank the audience for their questions and
comments. For further helpful suggestions I am much obliged to Marcelle Cole, Marco
Mostert, Anne Popkema, Nienke Venderbosch, Oebele Vries and Abraham Wierenga.
All translations are mine, unless noted otherwise.
2
Kuttner, ‘The Revival of Jurisprudence’.
3
From Gmc *aiw-/j- ‘custom, law’ (cf. OE æ
2 we, OHG çwa, OS ço) + an agent noun
derived from Gmc *sagjan- ‘to say’.
4
Bremmer, ‘Dealing Dooms’, 75–9.
5
Kuppers, ‘Upstalsboom – der “Altar der Freiheit”’.
2
Bremmer
bam was the equivalent of the Icelandic Thingvellir’.6 Unfortunately, the
Frisian sources give no indications that such an oral recitation of laws was
ever the case, whether at Upstalsbam or anywhere else. This lack of evidence notwithstanding, the silence of the sources does not exclude, of
course, the possibility that reciting the laws was indeed one of the asega’s
original obligations, but neither does it make such an assumption very
probable.7
The second argument that was adduced to make an oral pre-existence
of the Frisian laws plausible was the frequent use of alliteration and the occurrence of rhythmic passages that reminded Grimm and later scholars of
the Germanic technique of composing poetry. Hence, scholars like Rudolf
Kögel in the 1890s and Georg Baesecke in the 1940s postulated that the
Frisian laws in their pristine form had been cast in verse and were recited
as if they were epic songs.8 Others, such as Conrad Borchling, just after the
turn of the twentieth century, dismissed the hypothesis that the laws once
existed in a versified form, but claimed instead that poetically elevated
speech and poetic animation were still unseparated in a time when literary
prose did not yet exist.9 In a recent publication I have argued that this
romantic view can no longer be upheld.10
So if the two nineteenth-century lines of argument for an oral origin of
the Frisian laws have become questionable, yet the first generations of
scholars were right in their assuming a pre-literate life for the rules contained in the laws as they have come down to us. However, especially
owing to field work conducted by anthropologists among communities that
have remained little or untouched by literacy, as well as by studies of, for
example, Homer, our insights into what constitutes orality has changed
dramatically.11 Inspired by recent studies on the orality of medieval
6
Markey, Frisian, 103. Recently, doubt has been cast upon the traditional view of the
lo3 gso3 gumaðr, cf. Kjartansson, ‘Law Recital According to Old Icelandic Law’; McGlynn, ‘Orality in the Old Icelandic Grágás’.
7
Scholars have frequently debated whether the asega dates back to pre-Frankish times
or whether this official was instituted by the Franks; witness, for example, the discussion between Köbler, ‘Der oberdeutsche esago’, Gerbenzon, ‘Der altfriesische asega’,
and Köbler, ‘Zu Alter und Herkunft des friesischen Asega’. Nor is it clear how many
asegas there were in the Frisian lands at any given point in time. Such uncertainties are
not immediately relevant, however, to the expertise the asega must have had in the legal
tradition.
8
Notably, Kögel, ‘Stabreimende Rechtspoesie’, II, 1, 242–59; Baesecke, ‘Die altfriesischen Gesetzte und die Entwicklung der friesisch-deutschen Stabreimverskunst’.
9
Borchling, Poesie und Humor im friesischen Recht, 54. Borchling rejected the more
sobre opinion of Siebs (‘Geschichte der friesischen Literatur’, 527) that we are dealing
with ‘mnemotechnic and ceremonial formulas’.
10
Bremmer, ‘Dealing Dooms’.
11
See, e.g., Létoublon, ‘Orality and Literacy’.
The Orality of Old Frisian Law Texts
3
Scandinavian and Welsh laws in particular,12 I have taken a fresh look at
the written Frisian laws to see if features of orality can be recognized in
them. To this end, I shall first briefly discuss Walter Ong’s characteristics
of orally-based thought and expression and apply them to Frisian laws.13
Next I shall consider, in relation to the Frisian context, a number of constituents of oral, traditional culture, notably the role of wise men in the process of establishing and passing down legal customs, the power of proverbs, teaching and learning the laws and, finally, the significance of allusions to a distant past when the Frisian laws purportedly found their
origin.14
THE COMING OF LITERACY TO MEDIEVAL FRISIA
Literacy, i.e. the ability to understand and use (in the Frisian context) the
Latin alphabet for a variety of purposes, came to Frisia, especially in its
pragmatic application (charters, letters, laws), in all likelihood only around
1200.15 Before that date the Frisians had at least superficially been introduced to with the phenomenon of the book right from the early days of
their conversion to Christianity, as vividly described in the death-scene of
the missionary Boniface who vainly tried to safe his life against his Frisian
assailants by holding a gospel book over his head.16 This change of religion
and with it the sometimes incisive intervention in certain social customs
and legal traditions (insofar as these can clearly be separated for oral
societies)17 had gone hand in hand with the Franks gradually conquering
and pacifying Frisia, a process that was accelerated when the last Frisian
king, Redbad, died in 719. The Frisians’ final violent uprising, in unison
with the Saxons, against the Franks was crushed by Charlemagne in 793.
Officially, the Frisians had by then become part of the Frankish realm. One
of the most tangible results of this new status was the Lex Frisionum, a law
text in draft that was most probably meant to be presented at the Diet of
12
See, e.g., Brink, ‘Verba volant, scripta manent?’; Pryce, ‘Lawbooks and Literacy
in Medieval Wales’.
13
Ong, Orality and Literacy.
14
The problem of orality was approached from a syntactic angle by Bor, Word-Groups
in the Language of the ‘Skeltana Riucht, (chap. 11 ‘Has SR been influenced by spoken
language’). For reasons of space, I have chosen not to address Bor’s approach, but see
Colin Grant’s contribution to this volume.
15
The coming of literacy to Frisia is the subject of my Hir is eskriven, extensively
summarized by Mostert, ‘The Early History of Written Culture in the Northern Netherlands’, 473–88. For practical reasons, I have here disregarded runic literacy with which
some Frisians were familiar, as appears from about twenty objects with runic inscriptions, datable to the period between ca. 400 and 800, for which see Page, ‘Frisian Runic
Inscriptions’.
16
Vitae Bonifatii, ed. Levison, 51–2.
17
Vollrath, ‘Das Mittelalter in der Typik oraler Gesellschaften’, 583–4.
4
Bremmer
Aachen in 802. It consists mainly of a long enumeration of compensations
for physical and non-physical injuries but also seeks to regularize social life
in other respects. Whether the Lex was ever given the force of law is uncertain, but scholars agree on the assumption that its regulations reflect
legal customs as they prevailed in Frisia around 800.18
However, due to recurrent Viking invasions and even a temporary
Danelaw in parts of Frisia, the Franks never really managed to secure a firm
judicial foothold there. For example, none of the counts who had been enfiefed with Frisian lands actually settled there, no monasteries were
founded in the lands of the Frisians before the second half of the twelfth
century, nor did any of the three bishops to whose respective bishoprics the
Frisian lands had been entrusted establish their sees in Frisia. In other
words, administratively, the Frisian lands remained a fringe area. This eccentric position was consolidated by the lay of the land – extensive marshes
made it almost impossible for armed forces to reach Frisia by land. Consequently, and further aided by the disintegration of the Frankish empire, the
Frisians gradually recovered their independence to the extent that they no
longer tolerated any feudal lord – whether duke or count – above them;
they only recognized the Emperor of the Holy Roman Empire as their liege
lord.
Formaly, then, Frisia remained part of the Empire, in practice, with the
exclusion of North Frisia, it had a loose federacy whose individual components (called ‘lands’, ‘districts’ or ‘universitates’) were administered in a
rotational system by the allodial landowners themselves. This quite exceptional situation was a fact around 1100 east of the Lauwers and from
about 1250 also west of this river. By the close of the thirteenth century,
dozens of legal texts had appeared in writing, some in Latin but many more
in the vernacular: the former mainly charters and letters, the latter law texts
collected in codices.19 Still, this increased recording of the legal traditions
in writing does not immediately imply that those who participated in these
traditions had all become literate. One literatus would suffice to serve as
an interpreter and pass on in speech the contents of the laws to the other
members of the community.20 Thus a situation arose in which orality and
literacy interacted, allowing for a gradual transition from the one phase to
the other. In other words, the production of legal texts did not put an end
to the traditional, oral setting in which the customs were transmitted.
Rather, the challenge for us rests in establishing the nature of the relation18
On this early legal text, see exhaustively Siems, Studien zur Lex Frisionum;
Schmidt-Wiegand, ‘Lex Frisionum’; Algra, ‘The Lex Frisionum: the Beginnings of a
Legalized Life’; Timmer, ‘Restanten van Oud-Germaans recht in de Lex Frisionum’.
19
On the problem of Latin or vernacular, see Anne Popkema’s contribition to this
volume.
20
Stock, Listening for the Text, 23.
The Orality of Old Frisian Law Texts
5
ship between the oral and the literate mode in the texts that have come
down to us.21
Some of the documents produced in Frisia in the thirteenth century are
provided with a date and a place of issue, but the majority of legal texts
come without such indications. The presence of these documents in a fair
number of manuscripts from various regions of Frisia suggests that some
of them enjoyed considerable standing, notably the Seventeen Statutes and
Twenty-Four Landlaws. These two law-texts have the widest dissemination
of all and together they are generally considered to constitute the anchor
pieces of medieval Frisian law. They are not the result of a top-down legislation as elsewhere in Western Europe, but have emerged from the bottom
up.
That we have the Frisian laws in manuscripts is the result of the fact that
at least some of the Frisians had embraced the advantages of writing.
Rather than being a straight record of oral dictation, however, most of these
written laws and related texts must already have passed a filter of literacy.
Some items in the oldest legal miscellany, compiled in the easternmost of
the Frisian lands, Rüstringen, not long before 1300, are demonstrably
copies of texts that have a more western origin.22 Similarly, The Fifteen
Signs of Doomsday in the same manuscript, though ostensibly based on a
Latin source text, nevertheless bears certain marks of orality.23 So if at least
a number of texts can be shown to have had written precursors, how can
they be linked to orality?
IDENTIFYING TRACES OF ORALITY IN WRITTEN TEXTS
Owing especially to the work of the American scholar Walter Ong, we can
still identify traces of the time when the laws (and many more items of useful information) were handed down orally, for example, in their phraseology. In his groundbreaking study Orality and Literacy, published in 1982,
Ong formulated nine characteristics of ‘primary orality’ which have stood
the test of time, more so perhaps than his definition of ‘primary orality’
itself, by which Ong understood: thought and the way thought is put into
words within a culture that is completely alien to the notion of writing.24
Strictly speaking, this definition cannot be applicable to the high-medieval
Frisians: since their conversion to Christianity, the Frisians had been introduced to the significance of the book and quite a few of them must have
known either from first- or second-hand experience how books, documents
and letters were produced and for what purposes. On the other hand, the
21
Pryce, ‘Lawbooks and Literacy’, 32; see also Mostert and Barnwell, Medieval Legal
Process: Physical, Spoken and Written Performance, passim.
22
Bremmer, ‘Language and Contents of the Old Frisian Manuscripts from Rüstringen’.
23
Giliberto, ‘The Fifteen Signs of Doomsday’, 145–9.
24
Ong, Orality and Literacy, 11.
6
Bremmer
number of people that were closely familiar with the techniques of reading
and writing – skills that were overall confined to the clergy – must have
remained very small for a very long time, until at least into the twelfth
century and probably well beyond that time. However, being aware of the
reality that the state of ‘primary orality’ in a given group does not immediately discontinue with the introduction of literacy but continues to co-exist
for a considerable time alongside increasing literacy, Ong coined the term
‘residual orality’. It indicates that members of an oral culture have been
exposed to the new technology of chirography but have not yet fully
‘interiorized’ its ins and outs in daily life.25 Such a transitional stage, I
would argue, can be observed in the Frisian laws, and this on a sliding
scale. The older laws undeniably contain more features of primary orality
than the later ones, when the people involved in drafting laws and writing
them down had increasingly been exposed to legal discourse in a more
literate, even scholarly context. Right from their foundation in the early
thirteenth century, the universities of Paris and Orleans, but also Oxford,
started to attract Frisian students of law, who underwent and furthered the
influence of Roman and Canon law.26 In short, orality and literacy should
not be seen as mutually exclusive, as a ‘cultural divide’; these two modes
of communication often interacted dynamically in the composition of
written law texts that still ‘employ the idiom of tradition and assume an
audience fluent in that idiom’.27
It has not escaped researchers that with the passing of time Frisian laws
became increasingly more abstract and less imaginative and dramatic. The
reasons for this development were sought in the growing influence of
‘learned’ Roman and Canon law.28 In sharp contrast to the ‘dry and humourless’ juridical phraseology of these foreign forms of law stands the often
‘poetic’ nature of the native laws. These, according to Gerbenzon, were
composed with great pleasure by their authors, who had keen eyes for concrete, imaginative descriptions. With great approval Gerbenzon refers to
Borchling’s classical essay on ‘poetry and wit in Frisian law’. In it, Borchling paid detailed attention to alliteration and end-rhyme, to epitheta ornantia, colourful similes and metaphors which, he claimed, approached the
power of the Scandinavian kenningar. He considered the Frisian legal
language to be the ‘animated, vivid form of expression of a folk law that is
25
Ibid. 38–9. On the sliding scale from orality to literacy, see also Foley, ‘Orality,
Textuality, and Interpretation’; Foley, ‘Verbal Marketplaces and the Oral-Literate
Continuum’.
26
Bremmer, ‘Hir is eskriven’, 97–8.
27
Foley, Homer’s Traditional Art, xiv; cf. Foley, ‘Orality, Textuality, and Interpretation’, 35–7.
28
Gerbenzon, Friese rechtstaal en vreemd recht, 9–10.
The Orality of Old Frisian Law Texts
7
permeated with poetic imagery and views’.29 The reason why the laws are
characterized by these ornaments received the following explanation: ‘Ultimately, the internal content of these old legal monuments, the lively
sensuousness and graphicness of their description have been so dear to our
ancestors, because it pours forth from the innermost depth of the Germanic
spirit of the people’.30 While few today would endorse such Germanophile
opinions, much of Borchling’s analysis has remained authoritative in Frisian studies until the present day.31 Oebele Vries, for one, is impressed by
the way the early laws are phrased, and on the basis of ‘poetical elements’,
such as alliteration, the use of metaphors and kenningar, he characterizes
the prose in which the laws were cast as ‘proto-literature’.32
The style of the early laws may please our aesthetic values and invite
literary appreciation, yet it would be mistaken to explain the mannered
language of the law codes as an attempt on the part of the (anonymous)
legislators to strive for beauty or as a desire to evoke sentimental emotions.33 Rather, it is my contention that the features that generations of
critics have taken for poetic decorations must be explained instead as marks
of oral discourse. From generation to generation legal customs were handed
down in the process of which a special kind of parlance emerged that was
considered to be appropriate whenever such customs had to be formulated.
Even today, in our literate society there are occasions when speakers consciously or unconsciously adopt a traditional phraseology that they deem
fit for the occasion, such as lawyers drafting contracts or ministers preaching in (orthodox Protestant) churches. Likewise, even when Frisians formulated new legal customs in the thirteenth and fourteenth centuries, they
continued for a considerable length of time to talk the talk of their preliterate forebears.34 I base my argument on Ong’s nine features of orally-
29
Borchling, Poesie und Humor im friesischen Recht, 54: ‘Sie ist die beseelte lebensvolle Ausdrucksform eines mit poetischen Vorstellungen und Anschauungen durchsättigten Volksrechts …’.
30
Ibid. 4: ‘Und schließlich ist der innere poetische Gehalt dieser alten Rechtsdenkmäler, die lebendige Sinnlichkeit und Anschaulichkeit ihrer Darstellung, eben darum
unseren Voreltern so lieb gewesen, weil er aus der innersten Tiefe des germanischen
Volksgeistes hervorquillt’.
31
E.g., Buma, Het Tweede Rüstringer Handschrift, 39; Szadrowsky, ‘Stil und Syntax
der altfriesischen Rechtssprache I’, 131; Markey, Frisian, 57–8.
32
Vries, ‘Literatuur van recht en vrijheid’, 25; Vries, Asega, is het dingtijd?, 25; cf.
the sometimes lyrical discussion of Frisian legal prose in van Oostrom, Stemmen op
schrift, 69–74 (‘Poëzie in Oudfries recht’).
33
Cf. O’Donnell, ‘Literary Embellishment in Old Frisian Legal Texts’, 247, who
argues that the vividness and dramatism of the Frisian laws we find so appealing ‘are
in most cases more likely the result of historical accident than deliberate invention’.
34
Bremmer, ‘Dealing Dooms’, 79–84.
8
Bremmer
based thought and expression,35 which I shall here paraphrase and supply
with suitable examples from the Frisian laws.
(1) Additive rather than subordinative
Typical of oral cultures is a tendency for speakers to avoid complex ‘subordinative’ (hypotactic) constructions and to prefer parataxis (‘co-ordination’)
instead: ‘and (then) … and (then) … and (then)’. To illustrate this characteristic, Ong cites the beginning of Genesis, which he assumed was based
on a Hebrew oral tradition, from the (Roman-Catholic) Douay-Rheims
version of Genesis (1609–10) – but he might just as well have quoted the
Authorized Version (1611), the Dutch Statenvertaling (1639) or even the
Frisian translation of 1943: ‘In the beginning God created heaven and earth.
And the earth was void and empty, and darkness was on the face of the
deep; and the spirit of God moved over the waters. And God said …’ (AV).
In modern translations such features are usually deleted as being ‘redundant’.
The following passage from Frisian law, taken quite randomly, exemplifies this feature:
Tha hagista hemsekinga: hwasa fart mit hode and mith vpriuchta fona
and mith vnriuchta hera to otheris monnis howe and huse and brecht’ter
dura and derne, loke and locksteck, wach and wachsela and thet hus
maketh inweij and vtweij ant thi wind thene orne mete, thria merc.36
[The highest (degree of) house-raiding: whoever sets out with a hat37 and
with a raised banner and with an unlawful armed band to another man’s
yard and house and there breaks doors and windows, lock and doorpost,38 wall and wall-post and makes the house(-walls) leaning inwards
and outwards and one wind meets the other: (the compensation is) three
marks.]
In this stipulation, the conditions for the compensation of three marks are
made up of four coordinated (paratactic) clauses, each of which is conjoined with ‘and’. Also note the abundant use of co-ordinated alliterative wordpairs – howe and huse, dura and derne, loke and locksteck, wach and
wachsela, inweij and vtweij – as well as two instances of enumerative triplets – hat, banner, band; door, lock, wall – that give this short passage a
special aural quality.
35
Ong, Orality and Literacy, 37–57.
Buma and Ebel, Das Emsiger Recht, E2 III.167 (‘Die Emsinger Busstaxen’).
37
The hat visually signals leadership.
38
On the meaning of ‘loke and locksteck’, see Århammar, ‘Was bedeutet dura and
derne, loc and locstef in den altemsfriesischen Buâtaxen?’, 182–6.
36
The Orality of Old Frisian Law Texts
9
(2) Aggregative rather than analytic
Aggregation is closely related to the formula as a mnemonic device. In oral
expression words come together in phrases that are the product of generations of formal discourse: thus it is not the ‘oak tree’ but the ‘sturdy oak
tree’, not the ‘soldier’ but the ‘brave soldier’, not ‘Odysseus’ but ‘clever
Odysseus’. Such epithets should not be taken as poetic features nor are they
utterances of a creative mind intended to give lyrical texture to legal expression; rather the words have been brought together out of habit during
general communication. Such fixed expressions should not be analyzed or
queried by interlocutors, because doing so would complicate communications and question the reliability of received wisdom.39 Ong (39) points
out that in some parts of the United States with heavy oral residue, it is still
considered normal or even obligatory to use the adjective ‘glorious’ when
referring to the ‘fourth of July’ (39). In Frisian law, we find plenty of examples of such aggregative phrases: the sea is typically ‘salty’ (salta se), the
Viking is ‘wild’ (wilde witzing), gold is ‘red’, silver is ‘white’, the Frisian
is ‘free’, land is ‘green’, the Lord is without exception ‘our Lord’,40 and so
on.
(3) Redundant or ‘copious’
In writing it is possible to reread a passage when the thread of connection
has been lost. Such ‘backlooping’ is impossible in speech, for as soon as
words have been uttered they vanish. Therefore, repeating earlier thoughts
or pieces of information helps to keep both the speaker and the listener
focused on the topic, and makes it easier for all to recall the key points
later. ‘Oral cultures encourage fluency, fulsomeness, volubility. Rhetoricians were to call this copia’ (40). The following passage from the Seventeen Statutes may illustrate this feature:
Thet istiu tiande kest, thet Fresa ne thuruen nene herefert firer fara tha
aster to there Wisere and wester tho <tha> Fli, thruch thet hia hira lond
behelde witha wilda heue and withene hethena here. Tha bed thi keneng
Kerl, thet hia firer tha hereferda fore, aster to Hiddisheckere, and wester
to Sincfalum. Tha bihelden hit tha liude withene keneng Kerl, thet hia
firer nene herferd fara ne thorste, sa aster tho there Wisere, and wester
to tha Fli. Thruch thet scelen alle Fresa fon tha northliudem fri wesa.41
[This is the tenth statute, that the Frisians need not go any further on
a military expedition than to the Weser in the east and to the Fli in
39
In this light, the critical questions that O’Donnell (‘Literary Embellishment’, 250)
imagines might have been raised concerning certain rules are not pertinent.
40
Bremmer, ‘Christ in Language and Law of Medieval Frisia’, 540.
41
Buma and Ebel, Das Emsiger Recht, E1 III.10 (‘Die Siebzehn Küren’).
10
Bremmer
the west, so that they may defend their land against the wild sea and the
heathen army. Then King Charles (i.e. Charlemagne) ordered them to go
further on a military expedition, further east to Hiddesacker and further
to the west to the Sincfal. Then the people asserted against King Charles
that they need not go any further on a military expedition than to
the Weser in the east and to the Fli in the west. For this reason all
Frisians shall be free of the Northmen.]
In addition to the repetitions (indicated in bold), attentive readers will also
have noted the repeated use of ‘then’ (Ong, no. 1) and the aggregative
phrases ‘wilde heue’ and ‘hethene here’, the latter with alliteration,42 together densifying the oral style of this statute.
(4) Conservative or traditionalist
Oral societies must do without access to writing technologies, something
which compels them to invest considerable energy in basic information
storage. This can be achieved by repeating knowledge over and over again
whether individually or collectively; however, there is a limit to what can
be recalled. Storage of knowledge outside the mind, in writing, creates
room for innovation but at the same time decreases the importance of wise
old men and women, ‘repeaters of the past’ (41). It is possible, according
to Ong, to measure oral residue by approximation ‘from the amount of
memorization the culture’s educational procedures require’ (41). This need
to charge the memory creates incentives to avoid exploring new ideas and
particularly to avoid the burden of having to store them. It does not prevent
oral societies from demonstrating dynamism and change, but more reward
is to be gained by ensuring that changes adhere to traditional formulas, and
‘are presented as fitting the traditions of the ancestors’ (42). This explains
the frequent appeal to ‘pliga’ [tradition] or ‘side’ [custom] in the Frisian
law texts, so as to suggest a continuity with the past.43 Illustrative of the
transitional stage between orality and literacy in this respect is a remark
that ‘Alle lefde laua skil ma dela, alsa hia andere Asebok escriuin send and
use aldere se deld hebbath’44 [All inheritances must be divided as they have
been written in the Asegabook and (as) our ancestors have divided them].
The appeal to what has been written immediately and significantly followed by an appeal to the ancestral tradition. Not long before this rule with
respect to succession was recorded, a reference to ancestral customs would
have sufficed to settle any argument. Apparently, even though the rules had
42
43
44
Cf. the familiar Old English collocation hæðen here.
See below, p. 22.
Buma and Ebel, Das Rüstringer Recht, B V.8 (‘Das ist auch friesisches Recht’).
The Orality of Old Frisian Law Texts
11
been written down now, such an appeal was still felt to enhance their authority.45
Conservatism is also found in particular sub-genres of the corpus of
laws, as is illustrated by the many registers of compensations for injuries
so characteristic of the Frisian legal system. The possible wounds that can
be inflicted to the body are usually summed up a capite ad calcem, ‘from
top to toe’, and show relatively little innovation over the centuries.46
(5) Close to the human lifeworld
Oral cultures are characterized by their taking a practical approach to information storage. Consequently, information must be stored in descriptions
that are in close reference to the world of human activity and of immediate
practical concern or familiarity to most members of the society. For example, rather than expressing the quality of gold and silver in abstract terms
of carats and sterling, Frisian law prefers concrete descriptions such as the
following, taken from a formulary for offering the compensation for manslaughter intended to prevent a blood-feud. In the passage quoted, the
killers’ spokesman is addressing the dead man’s relatives:
‘Deerefter haet ma mi biada [ti betane] mitta fiouwer geldim: mitta
raeda golde, mitta hwita seluere, mitta grena eerwe ende mitta onscepena wede; mitta rada golde, als hit dio wichte weith; mitta hwita
seluere, als hit itter smitta gheith; mitta grena eerwe, als hit des koningis
orkunden bi hiara siele settath ende hit buta oenbrakanda owere leith; ...
mitta onscepena wede, als hit jn dae tolneda merkede ti riuchte set
werth, alsoe fijr soe dis merkeda habbe riuchte hofscolda golden’.47
[‘Next I have been ordered to compensate with four means of payment:
with red gold, with white silver, with green land and with undressed
cloth; with red gold as the balance weighs it; with white silver as it is
used by the silversmith; with green land as the king’s witnesses
appoint it at (the peril of) their souls and as it lies outside the cultivated
land ...; with undressed cloth as it is valued in a market liable to a
toll, in as far as this market is subject to a legal royal toll.’]
Note how in this passage gold, silver, and so on, are first given with their
aggregative epithets (‘red’, white’, etc. [Ong’s no. 2]) and are then listed
again (Ong’s no. 3) and described in their practical, everyday situation.
45
Cf. Bremmer, Hir is eskriven, 67.
On these registers, see Nijdam, Lichaam, eer en recht in middeleeuws Friesland;
idem, ‘Compensating Body and Honor: the Old Frisian Compensation Tariffs’.
47
Buma and Ebel, Westerlauwerssches Recht I, XX.9 (‘Formel für das Angebot der
Totschlagsühne’). For a detailed analysis of this formulary and an English translation,
see Bremmer, ‘Christ in Language and Law of Medieval Frisia’, 545–8; 550–2.
46
12
Bremmer
For the same reason of practical concern, inventories are preferably embedded in a narrative context rather than summed up item by item in abstract lists. This is how the highest degree of spinal cord lesion is described:
Thiu hagheste buclemethe: thet hi ne muge a bethe ni a bedde, a uidse
ni a ueine, a uueie ni a uuetere ni a glede ise, a huse ni a godeshuse, bi
fiure ni bi sinre wiuue wesa, sa hi eer machte: en half lif.48
[The highest ‘belly paralysis’: that he (i.e. a man) cannot be either in
bath or in bed, on a horse or on a wain, on a road or on water or on
slippery ice, in house or in God’s house, at the fireside or with his wife
(the same way) as he formerly was able to: half a wergeld.]
It can be observed how in co-ordinated alliterative phrases this list catalogues a man’s most important social functions. The list was not fixed but
could be improvised upon, by adding phrases such as ‘a warve ni a warste’
[neither at an assembly nor at a banquet] and was also employed elsewhere
in the corpus of Frisian laws to define other serious injuries inflicted on the
dorsal spine, suggesting that the list was a stock description that could be
produced whenever and wherever necessary. 49 Sometimes such lists are
explicitly structured with the help of the number seven, a number that can
be clearly connected to oral traditions. In a now classic article, the experimental psychologist George Miller demonstrated that when structured in
groups of seven, chunks of information could be better retained in the short
memory.50 Miller’s findings may explain why, to cite a striking example,
seven rotations (‘whirls’) are enumerated when the compensation for an
inflicted back injury must be fixed:
Hverther ac hua vndath inna sijne bec iefta inna sine waldewax, thet him
sin necke vrbec and him sin heijle vptia and hi a sine beke hine na
vmbekera ne muge, thet him tha sine sogin huarlar alle wart se: thi
forma, thet hi sa wel vpkume ne muge; thi other, thet hi sa wel to dele;
thi tredda, thet hi sa wel anda farra; thi fiarde, thet hi sa [wel anda]
winstera; thi fifte, thet hi nawit sa wel forth; thi sexta, thet hi nawit sa
wel vrbec; thi soginde, thet hi sa wel trind vmbe kume ne muge: thisse
sogin hwarlar send alle en thriman lif.
[If furthermore someone is wounded in his back or in his spine, so that
his neck is drawn backwards or his heel upwards and he is unable to turn
over on his back, so that his seven rotations are obstructed: the first, that
he cannot come up so well; the second, that he cannot come down so
well; the third, that he cannot move to the right so well, the fourth, that
48
Buma and Ebel, Das Emsiger Recht, VII.108 (‘Das Emsiger Bussregister’).
Cf. Nijdam, Lichaam, eer en recht, 267–72, for a detailed discussion of such lists
from a different angle.
50
Miller, ‘The Magical Number Seven Plus or Minus Two’.
49
The Orality of Old Frisian Law Texts
13
he cannot move to the left so well; the fifth, that he cannot move
forward so well, the sixth, that he cannot move backwards so well; the
seventh, that he cannot turn fully around so well (as he used to do): these
seven rotations all amount to a third wergild.]
In addition to the structuring role of the number ‘seven’ in this passage, it
should be noted how mention of the ‘sogin hwarlar’ at the beginning and
end of this passage envelop the enumeration and thus show another feature
of orality (cf. Ong, no. 3).
(6) Agonistically toned
‘Agonistic’ means ‘combative, striving to overcome in argument’ and it
speaks for itself that the assembly in which plaintiffs and defendants fight
out their legal cases in a face-to-face situation invites polarized speech.51
The following is a formulary, cast as a model speech to be delivered by an
advocate who speaks on behalf of a victim of burglary. The defendant is
challenged to a judicial duel if he denies this evil, illegal and furtive deed:
‘Ik spreke iu to fon tha liudum end fon tha frana end fon thisse selua
monne, ther J hir ursien end urhered hebbat on thisse liudwrpena warue,
thet hi mi sine spreka befel and wel and min word ieth, thet J ewele
deden end riuchte, thet J him toforen an thiaues lestum be slepandere
thiade end be vnwissa wakandum end breken sin hus uta in end therto
sin inreste helde end urstelen him sines godes alsa god sa fif end fiftech
merka, thera merka ec bi achta enzum, thera enzena ec bi tuintega
penningum.
Ther breki on thene leida liudfrethe, ther biracht end bigripen was
mith wedde end mith worde end thes frana allerhageste bon end iuue
haudlesne. End biwene mi thes, thet J hiude te dei scelen tha thiwede
witherweddia end there thiwede bote, alsa ik se iu tosocht hebbe, pent
end pennegad mith alsadena penningum, sa ther end tha londe send ieue
end genzie, ther ma cu end corn mith eield. Tha sceli on thera liuda wera
brenzia end on thes frana end on thes clageres.
Jef J ach biseka wellat, sa skeli hiudega te dei an stride withstonda,
enne strideth suera end enne otherne hera. To tha mara stride hebbe ik
ju begret end thes minnera ne bikenne ik nowet. Enes eftes onderdes
biddic there gretene.’52
[‘I accuse you on behalf of the people (i.e. the local community gathered
in the assembly) and the frana (legal official) and this very man here,
51
There are parallels between verbal duals (flyting) and litigations, cf. Parks, Verbal
Dueling in Heroicx Narrative
52
Buma and Ebel, Das Hunsingoer Recht, XV (‘Formel für Diebstahlsklagen’);
Bremmer, Introduction, text IX.
14
Bremmer
who you have seen and heard in this people’s assembly,53 that he (i.e.
the plaintiff) fully entrusted me with his (right of) address and well
confirms my words, that you (the defendant) have done evil against
what is right, (namely) that you went on the trail of thieves to him when
people were sleeping and when it was uncertain if anyone was keeping
watch and that you broke from outside into his house and in addition
into the innermost trunk and stole from his property as much as fifty-five
marks, each mark at (the value of) eight ounces, each ounce at twenty
pennies.
With this (act), you have broken the imposed people’s peace, which
had been decided and fixed with pledge and promise and the frana’s
highest ban and (the right of) your head-ransom. And I expect that today
you shall promise to return the stolen property and the compensation for
the theft, as I have demanded from you (in court), pledged and paid with
such pennies as are acceptable and current in the land, with which cow
and corn is paid. These you must bring into the authority of the people
and of the frana and of the plaintiff.
If, however, you want to deny this, then you must suffer a duel
today, swear the duel oath and hear another one. I have challenged you
to the major duel and a lesser one (i.e. hot water ordeal) I do not acknowledge. I ask for a lawful response to this accusation.’]
It should be observed how in this address the plaintiff’s spokesman is building up a sense of agony. First of all, he seeks to isolate the defendant from
the other men present at the assembly – the arena for communal communication.54 Then he proceeds to accuse him of having been an evil lawbreaker and finally spells out his cowardly crime: he committed burglary
by night followed by theft, with a remarkably detailed specification of the
value of the stolen goods. Next the spokesman relates the seriousness of the
offence finally to demand an ultimatum, backed up by the threat of a duel
to be suffered in case of non-compliance.
Ong also subsumes under this feature of agonistically toned narratives
such stark oppositions as good and evil, virtue and vice, hero and villain,
because members of an oral culture often engage in direct, interpersonal
struggle. The use of hyperboles is one such way of expressing agony. The
‘wisa Solomon’, for example, was ‘allera ertheskera monna wisest’ [‘the
wisest of all earthly men’], ‘thi blata is lethast alra nata’ [‘the poor man is
the most despicable of all kinsmen’], while the widow ‘alra wiwa ermst is’
[is the poorest of all women].55 For this reason, too, praise is abundant and
53
‘Seen and heard’, two sensory actions that make the defendant a lawful witness, cf.
Vries, ‘Toe aer heer ende aegh syoen’.
54
Brink, ‘Verba volant, scripta manent?’, 61.
55
Buma and Ebel, Das Hunsingoer Recht, IV.1 (‘Die fünf Schlüssel der Weisheid’);
Buma and Ebel, Das Rüstringer Recht, X.6 (‘Das ist auch friesisches Recht’); Buma and
Ebel, Das Fivelgoer Recht, XI.14 (‘Strafrechtliche Bestimmungen’), respectively.
The Orality of Old Frisian Law Texts
15
insult never far away.56
(7) Empathetic and participatory rather than objective
The best way of knowing in oral cultures, according to Ong, is to share a
‘close, empathetic, communal association’ with others who know. What is
written down, however, disjoints the knower from the known and enables
the known to start a life of its own, thus paving the road for objectivity.57
Characteristically for oral cultures, problems will be discussed in the group
and testimonies and opinions will be given until unanimity has been
reached, because it is held that truth can best be found in common consult,
a notion that also underlies the institution of the jury.58 Such a participatory
approach to solving problems is also found in Frisian law, for example, in
the discussion of a case in which, after the death of their parents, two
brothers quarrel over the inheritance with their sister who had married
without their consent. One of the solutions suggested is ‘en soene, deer
wise lioede redath’ [a reconciliation which wise people advise]. However,
‘Iefta wyse lioede konnen naet wreen wirda’ [if the wise people cannot
reach an agreement], then the sister’s right to the inheritance must prevail.59
First and foremost, an attempt should be made to come to a compromise
that, even if only after long deliberations, is acceptable to all. The aim of
such a reconciliatory approach is to maintain harmony within the group.60
Should such attempts fail, only then is recourse taken to the legal rule that
a woman is free to choose whomever she wants to marry. This rule then
should be the starting point for any further negotiations.
(8) Homeostatic
Oral societies tend to treat the past and the present on the same level, by
importing the past into the present and making it conform to current practices and requirements, an attitude which from a modern point of view
leads to chronological inconsistencies. In oral cultures, narratives will
change and adjust the past according to present cultural values and needs:
‘The integrity of the past [is] subordinate to the integrity of the present’
(48). There is little to no distinction between myth and history (as
objectively separated from the present), for all events referring to the more
56
On insult in Frisian society, see Bremmer, ‘Insults Hurt’; the role of praise has not
yet been investigated, but note how Charlemagne on several occasions showers praise
and rewards on the Frisians for their heroic behaviour, e.g., in the poem Fon Allera
Fresena Fridome; see Buma and Ebel, Das Hunsingoer Recht, XVIII; Bremmer, Introduction, text XVI.
57
Cf. Hildebrandt, ‘A Vision of Ambient Law’, 179–80 and 184.
58
Cf. Clanchy, From Memory to Written Record, 295–6.
59
Buma and Ebel, Westerlauwerssches Recht I, XVIII.7 (‘Das Rudolfsbuch’).
60
Cf. Hibbits, ‘Coming to Our Senses’, 4.11.
16
Bremmer
distant past are told by contemporaries and there was no way for an
audience to verify what they were being told. Moreover, it was not the
remembrancer’s duty to pass down history objectively; rather, he had to
adapt the past to present needs and circumstances.61 For example, when,
according to legend, the Frisians, led by their standard-bearer Magnus,
reconquer Rome for Charlemagne (around 800), the emperor gratefully
grants them a number of rights. Magnus, however, is only willing to accept
these rights, if they are written down and confirmed with a seal. A bishop
then writes down the rights ‘with his hands’ but not before Magnus has
proved that he is literate by reading from the Ten Commandments. In a
versified account of this legendary event Charlemagne appends a seal of
burnished red gold to the charter. Such details betray that the narrators
imposed twelve- or thirteenth-century practices onto an event that must
have taken place around 800. Magnus acts as if recording agreements in a
charter and demonstrating one’s ability to read were common usage around
800; moreover, sealing charters with gold only became current for German
emperors by about 1100.62 In other words, from our modern point of view,
we are dealing with anachronisms here, but in a culture that is still predominantly oral, such temporal inconguities are unproblematic.
(9) Situational rather than abstract
In oral cultures, concepts are used with as little abstraction as possible. Instead, the focus is particularly directed on objects and situations directly
known to the speaker. Put differently, writing-based cultures favour syllogistic thinking, whereas in oral cultures thinking is non-linear and non-syllogistic. To illustrate this point, Ong (49–57) summarizes an investigation
carried out by the Russian scholar A. R. Luria in Uzbekistan and Kirghizia
in the early 1930s. It appeared that people living in an oral culture used real
objects with which they were familiar to refer to geometric shapes; for
example, a plate or the moon might be used to refer to a circle. When asked
to select three similar words from the following four ‘hammer, saw, log,
hatchet’, oral subjects would reject the solution of literates – removing the
log to produce a list of three tools – and explained that the tools were of
little use without the log.
Another of Luria’s questions was the following: ‘In the Far North,
where there is always snow, bears are white. Novaya Zembla is in the Far
North. What colours do bears have there?’ Upon this question, respondents
61
Green, Medieval Listening and Reading, 240; Vollrath, ‘Das Mittelalter in der Typik
oraler Gesellschaften’, 580: ‘Vergangenheit als Geschichte setzt Schriftlichkeit voraus’
[the past as history presupposes literacy]; cf. Clanchy, ‘Remembering the Past’, esp.
165–70.
62
Buma and Ebel, Westerlauwerssches Recht I, V (‘Die Magnusküren’); Spiegel,
‘Siegel’; Bremmer, Hir is eskriven, 61, 84, 94.
The Orality of Old Frisian Law Texts
17
gave answers such as: ‘I don’t know. I’ve seen a black bear. I’ve never seen
any others … each locality has its own animals’. Preliterate people, it can
be concluded, reason in terms of experience but not in terms of an entirely
closed verbal construct. They much prefer riddles, which are the opposite
of syllogisms. ‘To solve a riddle, canniness is needed: one draws on knowledge, sometimes deeply subconscious, beyond the words themselves in the
riddle’ (53). With riddles, the Frisians were familiar, as we shall see below.
PERFORMANCE CULTURES
As can be concluded from the above survey of the nine features that are
characteristic of orally-based thought and expression, Ong is particularly
concerned with psychological factors and verbal utterance. However, it
would be better, according to some scholars, not to talk narrowly about oral
cultures, but, instead, much more inclusively about performance cultures.
Words, it is true, are carriers of information, but information in pre-literate
societies, to a much greater extent than in literate cultures, is just as much
communicated by other means, including non-verbal sounds, visible
gestures and objects, touch, taste and smell – in short, all senses are involved in making messages memorable.63 Addressing the multi-sensory
character of Frisian law in my contribution would exceed the space allotted
to me, so let me suffice with one instance which abundantly exemplifies
what aspects are involved when talking about performance culture. It
concerns the question of when a marriage has been legally concluded:
Fan dis aeftis prowingha. Hweer so ma clageth om en aefte, dat hit
ebritsen sie, ende dat met riochte greta scel, soe scel ma’t aldus greta:
dat dio frie Fresinne kome oen dis fria Fresa wald mey hoernes hlude
ende mey bura onhleste, mei baeckana brande ende mey winna sange
ende dat ma dat buurmeel ete ende hioe bredelike sine bedselma wrstoep
ende oen dae bedde nede hirs liuis mey dae manne, oen moerne opstoed,
ti tzerka ghingh, tzerkstal stoed ende alter erade ende dae prester offerade ende dat aefte bigheengh, als een frie Fresinne mey ene fria Fresa
sculde. Soe schel ma dat aefte bihirda mey sauwen buren ende mei dae
prestere, deer hir jn dae tzercka latte, ende mey dae custere, deer dae
clocka hlette, ende mey dae prestere, deer dat offer ontfeng. Soe is ma
niaer mey disse nioghen tioegen dat aefte toe sterkiane dan hit enighe
Fresa aegh ti slitane.64
[About proving (the legality of) a marriage. If a complaint is raised (by
a woman) about a marriage, viz. that it has been broken (by her husband), and that she wants to bring this legally to an assembly, it must be
brought as follows: that the free Frisian woman came into the free
Frisian’s authority with the sound of horns and the noise of neighbours,
63
64
Hibbits, ‘Coming to Our Senses’; see also Mostert, ‘Introduction’.
Buma and Ebel, Westerlauwerssches Recht I, IX.51 (‘Das Sendrecht’).
Bremmer
18
with burning beacons and with the song of friends and that the banquet
with the neighbours was consumed and (that) she as a bride stepped into
his bedstead and in the bed used her body with the man, got up in the
morning, went to church, attended the service and honoured the altar and
brought her offering to the priest and began her marriage as a free
Frisian woman should with a free Frisian man. Then the (legality of the)
marriage must be confirmed with (an oath of) seven neighbours and with
(an oath of) the priest, who led her into the church, and with (an oath of)
the verger who rang the bell and with (an oath of) the priest who
received the offering. Then she has more right to confirm with nine witnesses the legality of her marriage than any Frisian has to deny it.]
All the five senses are involved in proving that the woman was legally
married: the neighbours have seen it all, they heard the horns being blown,
they heard and touched and smelled their neighbours in the procession, they
saw and heard and smelled the beacons, they listened to the songs and
probably sang along; seated around the table they touched and smelled and
tasted the food served at the wedding dinner and, who knows, some may
have played footsie under the table – after all, one wedding leads to
another; they saw the newly weds enter the bedroom and cheered them to
bed; they saw the couple rise in the morning and go to church; they saw
them attend the service, smelled the incense, heard the priest’s blessings
and saw him reach out his hands and touch their heads; they saw the bride
handing over her offerings and the priest receiving them; they heard the
bells ringing and saw the verger wiping the sweat from his brow. With so
many senses involved over more than a day and a night, who in the village
would not remember the event? Who would dare to deny the wedding had
taken place and the couple joined in matrimony? The unfaithful husband
would certainly have had a hard case to argue if he wished to refute the
legality of his marriage.
H ANDING DOWN TRADITIONS
Before writing made it possible for people to fix decisions, transactions and
legal rules, human memory was the place to archive such matters together
with other culturally vital elements that made up the identity of a tribe or
community. The first and most important culture marker was the language
itself, the carrier of traditional thought, which included myths of origin,
songs about heroes and leaders, important events from the past, catalogues,
proverbs, maxims and idioms. All of these were stored in the communal recollection, allowing members of the community to take part in them and to
pass them on to the next generation, thus keeping the traditions alive. A
focal place of transmission will have been the (extended) family in which
children were almost unconsciously introduced to the cultural heritage of
The Orality of Old Frisian Law Texts
19
the community as seen and experienced by parents and next-of-kin. It was
especially through language that a child was integrated into the often
delicate social organisms and eventually allowed to participate fully in the
communal culture. Making use of the appropriate terminology and idioms,
fathers instructed and counselled their sons and mothers taught and advised
their daughters. In the circle of the family, children learnt the principles of
kinship, who to treat with deference and who to hold in contempt, who to
love and who to hate, who to marry, what to wear, what to eat, or how to
cope with the seasons.65
Only once in the Frisian legal text corpus do we get a glimpse of what
such parental instruction may have been like. It is found in a famous
passage which imaginatively describes the last of three emergency situations in which a widowed mother was allowed to sell or pawn her fatherless
underage child’s property:
Thio thredde ned is: sa thet kind is stocnakend iefta huslas and thenna
thi thiuster niwel and nedcalda winter and thio longe thiustre nacht on
tha tunan hliet, sa faret allera monna hwelic on sin hof an on sin hus an
on sine warme winclen, and thet wilde diar secht thera birga hli and then
hola bam, alther hit sin lif one bihalde. Sa waynat an skriet thet vnierich
kind and wepet thenne sine nakene lithe and sin huslase an[d] sinne
feder, ther him reda scholde with then hunger and then niwelkalda winter, thet hi sa diape and alsa dimme mith fior neilum is vnder eke and
vnder ther molda bisleten and bithacht. Sa mot thio moder hire kindis
erue setta and sella, thervmbe thet hiu ach ple and plicht alsa longe sa
hit vngerich is, thet hit noder frost ne hunger ne in fangenschip vrfare.66
[The third emergency is: if the child is stark-naked or houseless, and
when the mirky mist and the disastrously dark cold winter and the long
dark night spread over the fences, then each man goes to his yard and to
his house and to his warm corners (i.e. heated rooms), and the wild beast
seeks the leeside of the mountains and the hollow tree where it may save
its life. Then the underage child cries and moans and beweeps its naked
limbs and its homelessness and its father, who should have protected it
with counsel against the hunger and the misty-cold winter, (and) that he
is so deeply and so darkly with four nails closed in and covered under
oak and under earth. Then the mother is allowed to pawn and sell her
child’s inheritance, because she has the care and duty as long as it is a
minor, so that it perishes neither from frost nor from hunger nor in
captivity.]
This short but dramatically narrated case features some striking characteris65
Cf. Havelock, ‘Instruction of Preliterate Cultures’, 224–5; Ong, Orality and Literacy, 9.
66
Buma and Ebel, Das Fivelgoer Recht, IV.2 (‘Vierundzwanzig Landrechte’).
20
Bremmer
tics of primary orality as defined by Ong: a wealth of additive and aggregative phrases, an abundance of expression, including a fondness for alliterative word-pairs and enumerative triplets (‘mirky mist ... cold winter ... dark
night’; ‘frost ... hunger ... captivity’).67 Central to the narrative is the technical word which describes the paternal role: rçda, ‘to advise, counsel’ and
hence ‘protect’.68 Unfortunately for the son, though, the father is no longer
there to instruct his child on what action to take now that hunger is knocking on the door.
When children became older and started actively to take part in the life
of the neighbourhood, the district and, perhaps, even beyond the district,
they will have discovered similarities and differences between their family
traditions and those of others. Conspicuous discrepancies between such traditions will have been removed so as to achieve a certain normalization and
uniformization of cultural knowledge, which then became mainstream
thinking or ‘common sense’. After all, a typical feature of a communal
society is that tradition is respected as the main model for social action.69
Traditional culture is therefore collectivistically oriented; put differently,
top priority is given to the group rather than to the individual ‘who will
hesitate to abandon the tradition of his fathers, which will tell him how to
behave in certain situations’.70 Gradually, by learning from other men, too,
the adolescent boys were further initiated into the customs and traditions
of the community. These will have included all kinds of collective agricultural activities such as reclaiming land, building and maintaining dikes,
plowing the fields and tending the cattle, making the hay and harvesting the
corn, cleaning the ditches and repairing the water outlets, together with the
sanctions imposed if such tasks were not carried out properly; inter-kin
group activities, perhaps, such as attending weddings and burials according
to the proper rituals; religious activities such as celebrating festive occasions in the annual cycle; and, of course, legal activities such as being
present at the thing, the legal assembly, to see, hear and experience how
cases were brought forward and denied, how oaths were taken, how defences were deliberated upon and judged, or how, as a last example, new
regulations were discussed, formulated and chosen by common consent of
the adult men present.71 All such information had to be learnt and inter67
For triplets, cf. p. 7 above. Notwithstanding the abundance of oral features, this
narrative also shows influences of literacy, cf. Bremmer, ‘Dealing Dooms’, 82.
68
Cf. Hofmann and Popkema, Altfriesisches Handwörterbuch, s.v. 1rçda.
69
Mees, ‘Weaving Words: Law and Performance in Early Nordic Tradion’, 145.
70
Sumner, ‘The Proverb and Oral Society’, 12.
71
An instance of boys being taken to assembly meetings by their father is the following from the reign of King Stephen of England (1135–1154), when Hervey de Glanvill
gave this testimony: ‘I truly declare, attest, and demonstrate that fifty years have passed
since I first took to frequenting hundreds and shires with my father, before I was a
householder ...’; see Clanchy, ‘Remembering the Past’, 174
The Orality of Old Frisian Law Texts
21
nalized. Memorization was facilitated by attending occasions where one or
more experts performed before a live audience and enhanced their oral texts
with stock phrases and epithets, gestures and intonation, while adapting
their performances by adding or omitting specific details at each particular
recital. The sum of this broad education, enjoyed both at home and in a
wider, communal setting, will have prepared the youngsters to take up their
active role in adult society.72
W ISE MEN
When it comes to more specialized knowledge, there were also experts,
‘wise men’, whose duty it was to know the customs of the community and
to store them in their memory so that they could pass on their expertise
whenever they were called upon. They were vessels of wisdom and highly
respected for it by the members of their community. Legal experts in medieval Sweden, for example, were known as minnuga mæn, ‘men of memory’; their help was invoked, amongst other duties, when the boundaries of
a plot of land had to be established. In traditional societies, wisdom and
memory go hand in hand, as Snorri Sturluson tells in his Skáldskaparmál
in an enumeration of what wisdom is: vit heitir … minni ‘wisdom is called
… memory’.73 Wisdom comprises the sum of knowledge and experience
of a community – tantamount to cultural truths – as reflected in their language (particularly in specialized vocabulary and idiom), in proverbs,
maxims, formulas, oaths, riddles, myths, tales and laws, all of which give
meaning, order and direction to life. ‘Law’, according to Morton Bloomfield and Charles Dunn, ‘is the embodiment of general rules for conduct,
and ideally lawyers are wise men’.74
Similarly, in Frisian legislation and jurisdiction reference to the role of
wise men occurs on more than one occasion. They are encountered even in
the earliest written source of Frisian law, the late-eighth-century Lex Frisionum. This collection of legal customs consists of two parts, of which the
second is called Additiones sapientum ‘The wise men’s additions’. The
sages are also referred to by name: Wlemar and Saxmund, but this is as
much as we get to know from the text.75 Many centuries later, wise men
still appear to play a significant role. They are especially mentioned as the
makers of decrees, as appears from this opening statement of the Oldambt
Law:
72
My inspiration for this paragraph owes much to a discussion of the sociological
background of biblical wisdom in Wilkins, Discipleship in the Ancient World, 73–8.
73
Brink, ‘Verba volunt, scripta manent?’, 88 and 91, respectively; cf. Clanchy,
‘Remembering the Past’.
74
Bloomfield and Dunn, The Role of the Poet in Early Societies, 111.
75
Siems, Sudien zur Lex Frisionum, 144–51.
22
Bremmer
Thit sent tha keran and tha doman wisera liuda Fyulghelondis ende
Aldeomptis ief Mentrawaldmonnas; thisse in to nimane and vt to
rekane.76
[These are the (chosen) statutes and dooms of the wise men of the lands
of Fivelgo and of Oldambt – (the latter) also known as the men of
Menterwold; these must be taken in and handed out.]
This preamble clearly brings out the importance of the sages’ legislative
decisions for the inhabitants of the districts mentioned, since not only are
the latter admonished to accept the rules that will follow, they are also
given the duty to pass them on and apply them. Wise men figure prominently in the preamble to The Statutes of Hunsingo of 1252, which commence with a performative utterance like that discussed above, but on this
occasion the wise men are described in superlative terms (cf. Ong, no. 6):
‘Thit send tha keran thera ebbetena and thera wisesta fon Hunesgena
londe’77 [These are the statutes of the abbots and of the wisest men of the
land of Hunsingo]. The collective of wise men in these statutes is even
designated with the abstract noun wished, as appears in a passage about a
poor man who has committed homicide but cannot pay the wergild: ‘And
gef thi blata tha redgeuum brocht werthe, thet makia hia as hit thio wished
wilkerad hebbe’ [And if the poor man is brought before the judges, they
must carry out as wisdom (i.e. the assembly of the wisest) has decided].78
The thirty-nine stipulations of the Hunsingo statutes conclude with a kind
of disclaimer which refers the audience back from the written rules to the
oral tradition:
Sa hoc sa vnder thisse kerum thera ebbeta and thera wisesta fon Hunesgena londe nowet bigripen se, sa halde ma thet, ase thes londes syde and
thes londes riucht hebbe wesen.79
[Whatever is not included among the statutes of the abbots and of the
wisest men of the land of Hunsingo, that must be observed just as the
custom of the land and the law of the land have (always) been.]
This final statement with its repetition of phrases from the preamble wraps
up the whole set of stipulations in an envelope pattern – also called ring
76
Buma and Ebel, Das Fivelgoer Recht, XXI.1 (‘Oldomptis Riucht’).
Buma and Ebel, Das Hunsingoer Recht, XIX.1 (‘The Statutes of Hunsingo’).
78
Ibid. XIX; cf. Sjölin, Die ‘Fivelgoer’ Handschrift, 383 and n. 254.
79
Ibid. XIX.39. Cf. the preamble to the Synodical Law of Usquert which also mentions
the advice of ‘wise lude’ in the composition of its regulations; ibid, B.1 (‘Das Sendrecht
von Usquert’). Likewise, the Synodical Law of Bolsward of 1404; see Buma and Ebel,
Westerlauwerssches Recht I, XXIII.1 (‘Das Bolswarder Sendrecht von 1404’).
77
The Orality of Old Frisian Law Texts
23
composition – which is so typical of oral composition.80 The conclusion
furthermore indicates that if a legal issue arises in Hunsingo which is not
addressed in the written statutes, a solution must be found in the customs
and rules as they are stored in common memory. Such an escape clause
makes clear that two sources of legal knowledge prevailed in the land: one
was the group of wise men, the active law-formulating experts, while the
other was the community that was expected to be knowledgeable when it
came to legal matters. If everyday reality brought lacunas in the statutes, as
they were written down in 1252, to light, then they could be amended when
needed, for example, during an assembly meeting. Similar appeals to custom appear from phrases such as ‘bi tha pliga’ [according to the tradition]
and ‘bi tha sida’ [according to the custom] that are found scattered throughout the law texts, especially in the Old West Frisian registers of compensation.81
On more than one occasion wise men are mentioned together with the
clergy, who themselves represent a different, learned, but at the same time,
divine kind of wisdom. A pertinent example is offered by the abbots who
participated in formulating the above Hunsingo Statutes of 1252. Sometimes clergymen and laymen cooperated in judging a woman who had been
accused of complex fornication:
Jef thi deken en wif aschat and hire thes bitigat wert thet hiu se with
anne mon vrhorit hebbe vnder hire afta mon, jef hiu thes biseke wele, sa
wele hire thio papheit and wise thingmon en hondordel dela.82
[If the deacon summons a woman (scil. to the ecclesiastical court) and
she is accused of having committed adultery with another man while she
was under the authority of her legal husband – if she wants to deny this,
then the clergy and wise lawyers will require her to perform a hand
ordeal (i.e. she will either have to carry barehanded a piece of hot iron
or put her hand into boiling water to prove her innocence).]
Instead of ‘wise thingmon’, another version of this rule from the Sendriocht
[Synodical Law] has the variant phrase ‘wise leeckmaen’ [wise lay men].
This explicit reference to lay participants in ecclesiastical jurisdiction
80
On this pattern, see, e.g. Lord, ‘Ring Composition in Maldon’. See also Ong’s no.
3 above. Another example of the envelope pattern is provided by the Preface to the
Seventeen Statutes and Twenty-Four Landlaws. God has given to Moses the two stone
tablets on which he had written the Ten Commandments, which he had to teach to the
Israelites: ‘tha skolde hi lera tha Israheliska folke’. The Ten Commandments that follow
are concluded with a repetition: ‘Thet send tha tian bodo ther God urief Moysese and
hi forth lerde tha Israheliska folke’ [These are the Ten Commandments which God had
given to Moses and he thereupon taught them to the Israelite people]; Buma and Ebel,
Das Rüstringer Recht, I.1–11.
81
Nijdam, ‘Old West Frisian bi tha sida “according to the custom”’.
82
Buma and Ebel, Das Fivelgoer Recht, VIII.18 (‘Das Sendrecht II’).
24
Bremmer
points in all likelihood to a canon law regulation, for clergymen were not
supposed to become involved in corporal punishments that might lead to
bloodshed.83 To avoid such a compromising situation, lay legal experts
must have been involved in this particular ecclesiastical court procedure.
Law was very often a matter of jurisprudence built on precedence: it
was not drafted abstractly, in a generalizing way, but made on account of
actual cases or, in Ong’s terminology, expressed in terms ‘close to the
human lifeworld’. Basically, the judicial process revolved around arbitration and was aimed at reconciling the two contesting parties. The outcome
of each legal dispute added to the body of legal customs, or, as formulated
in one of the Frisian laws: ‘Hot so wise liode habbat makad and brocht in
een wonicheyd, thet aeg thio mente tho halden’.84 [Whatever wise people
have made and turned into a custom, that must be held by the community].
To some Frisians wisdom was equivalent, therefore, to having knowledge
of the customs. A legal catechism makes this point clear: ‘Hoe manich
riucht is’ter? Twa, en godlic ende een menslijc; dat arste is dy onbern, dat
ora seltu lerna. Een hath natuerlick, dat ore is wisdom’.85 [How many kinds
of law are there? Two: a divine law and a human law. The former is innate
to you, the latter you must learn. The one is called natural law, the other
one is wisdom].86 The passage shows perfectly well the extent to which
customary law was associated with sapiential knowledge.
My last example concerns a legal expert who is presented as a wise man
in the concluding lines of the Fivelgo Register of Compensations. This
register is probably the longest of its kind in the Germanic tradition,
summing up in no fewer than 408 items the variety of wounds men and
women may incur in violent encounters and the compensations that had to
be paid for them. In the concluding paragraph an anonymous speaker steps
in and addresses an unspecified audience. In all likelihood we are dealing
here with an imaginative master who enjoins his apprentices to follow the
procedure of calculating compensations as is explained in the preceding
408 items. This assumption is supported by two passages in the Fivelgo
Register that interrupt the description of injuries and their compensations.87
After item 316, a rubric ‘Masterschip’ [The master’s instruction] announces
a new part in the text which begins with: ‘Understonda thisse dicht. Aldus
scemma alle tha vnda biriuchta. Thet scel j vnderstonda, thet ma efter tha
serilsa beth nene vnda’ [Understand this composition: in this way all (injured) wounds must be judged. That you must understand, that (immediately) after the injury wounds must not be compensated.] The Fivelgo Register
83
Brundage, Medieval Canon Law, chap. 4.
Brouwer, Thet Autentica Riocht, 42–3.
85
Buma, Gerbenzon and Tragter-Schubert, Codex Aysma (‘Processus iudicii’, 430).
86
Instead of ‘wisdom’, another Frisian version of this particular text reads: taulik, i.e.
‘traditional, customary’ (cf. OE þçawlic).
87
Cf. Nijdam, ‘Het middeleeuwse boeteregister van Kampa Jeldric’, 42–6.
84
The Orality of Old Frisian Law Texts
25
is finally brought to closure by the rubric ‘merc.’ [observe], followed by:
Nv vnderstondat thisse dicht and thine ethela scrifta. Aldus scemma
scriwa on alle tha lickama tha vnda. And thit heth edicht en wis mon in
sina sinne and heth let thet scriua vt sina munde, Kampa Jeldric thi
thingmon, al hiron. Wa sa thit bok nout vnderstonda ne kan, nammer
scrift hi nen vnda riucht, wif iefta mon.88
[Now understand this composition and this noble register. In this way
the wounds (and their compensations) must be written down on the entire body. And a wise man has composed this in his mind and he had it
written from his mouth, Kampa Jeldric the lawyer, completely herein.
Whoever cannot understand this book will never register wounds correctly, whether for a man or a woman.]
Significantly, the passage begins with the discourse marker ‘Nv’ [now],
thus indicating a new phase in the text. This word is immediately followed
by an imperative, calling for insight into the intricate matter of injuries and
their recompenses. Next, instruction is given that whenever ‘writing
wounds’ (i.e. describing the nature of injuries incurred), it must be done as
the master has shown in the register. At this point we also seem to witness
the moment when oral knowledge of the complicated matter of calculating
compensations is given chirographic shape as we are afforded a glimpse of
how the wise thingmon Kempa Jeldric dictated the rules of old and somebody else took the words ‘from his mouth’ (concrete rather than abstract,
cf. Ong’s no. 9) and entrusted them to parchment. The word hiron [herein]
almost sounds like an invitation to inspect the results of the dictation; also
note the use of deixis in thit bok, as if the author is directing his audience’s
attention by tapping his finger against the book. It should furthermore be
observed how the verb understonda is repeated (cf. Ong’s no. 3), if qualified with a negation this time. The instructions found interspersed throughout the Fivelgo Register and in its closing lines also show how thin the line
can be between instruction in the law and its transmission.
TEACHING THE LAW
There is little concrete evidence in our sources of how young men became
experts in law. Like so many skills in a traditional society, ‘wise’, experienced men will have taught the ins and outs of law to a new generation.
Learning was very much a matter of listening, watching, asking and
imitating, but unlike apprentice carpenters or apprentice blacksmiths,
aspiring lawyers had to learn, digest and store a vast amount of sometimes
highly complex verbal information.
A well-tried method of instruction was that of question and answer,
88
Buma and Ebel, Das Fivelgoer Recht, X (‘Die Fivelgoer Busstaxen’).
26
Bremmer
either the master interrogating the pupil or the other way around. In fact,
frequens interrogatio (frequent inquiring) is listed as the third of Quinque
claves sapientiae [The Five Keys to Wisdom], a short didactic tract included in the First and Second Hunsingo Manuscripts, where it immediately follows upon the Seventeen Statutes and Twenty-Four Landlaws:
Thet ma gerne fregie allera godera wenda, ther betha tha live and there
sele dege. End alsa thet en selich mon al befregad hebbe and efter
gelernad, thetti gerne a riuchtlike thingum fulwunige’89
[That all good things which are profitable to both body and soul should
be eagerly asked. And whatever a righteous man will have completely
inquired and afterwards learnt, that he may eagerly persist in legal
matters].
The tract purports to be based on the words of the ‘wise’ Solomon, ‘who
was the wisest of all earthly men’ and offers five keys with which all wisdom must be unlocked – the other four being assiduitas legendi ‘constant
reading’, memoria retinendi ‘memorization’, contemptus divitiarum ‘contempt of riches’ and honor magistri ‘reference for one’s master’. With the
rubric and the keys given in Latin and the mention of reading as one of the
keys, this text is obviously a product of Latin literacy and indeed the motif
of the keys of wisdom dates back as far as the ninth century when it surfaces in the Collectanea by Sedulius Scotus, an Irish scholar.90 Originating
in the monastic school and focused on the lectio divina (the reading of holy
texts), the notion of keys of wisdom/knowledge gradually found its way to
cathedral schools and other institutions of instruction, eventually to become
a widely familiar text both in Latin and in several vernaculars.91 The Frisian
version is tailored to serve trainees for legal offices. We have already seen
that the third key incites a man to persist in legal matters. The second key,
memoria retinendi, encourages a man to memorize everything he has read,
and ‘to give justice and to accept justice’; the fourth key, contemptus
mundi, urges a man to avoid unjustly gathered riches, including bribery and
usury, but to lead instead an honest life with what he receives from God,
and meanwhile ‘to accept justice and share out justice’. The Quinque claves
were also used for the education of judges in medieval Wales:
There are five keys to the office of a judge. One is the fear of thy teacher
and the love of him. The second is frequent asking for thy instruction.
The third is retaining the instruction which thou dost receive. The fourth
is despising riches. The fifth is hating falsehood and loving truth for the
89
Buma and Ebel, Das Hunsingoer Recht, IV (‘Die fünf Schlüssel der Weisheit’);
Bremmer, Introduction, text II.
90
Law, Wisdom, Authority and Grammar in the Seventh Century, 42 and n. 3.
91
Cf. Buma, ‘Geestelijke literatuur in Oud-Friesland’, 29–34.
The Orality of Old Frisian Law Texts
27
fear of God.92
The order may differ somewhat – revering the master, for instance, comes
first in Wales – and the Welsh version lacks the exegesis of its Frisian
counterpart, but the tenor is similar: knowing the keys to wisdom opens the
door to properly administering law and equity.
Interrogating master and pupils was often facilitated by scripted dialogues. One such text is Haet is riocht? [What is Law?], a popular legal
catechism that has come down to us in a longer and shorter version. The
latter was partly translated from a twelfth-century summary of canon law,
as collected in Gratian’s Decretals in Bologna around 1140, but not all of
the sources of the Frisian translation/adaptation have been identified, nor
is it clear what sources underlie the longer version.93
Whereas Haet is riocht? is rooted in the tradition of canon law and
Roman law, things are different with a text that is rubricated ‘Asegariucht’
in the manuscript in which it has uniquely come down. The text is rooted
in traditional Frisian law and, in view of the asega’s role in it, dates back
to at least the thirteenth century, for by the end of that century the office of
asega had become obsolete. The first half of this text, cast as an exchange
of questions and answers between the asega (A) and a group of legal
executives (B), will suffice to make my point:
(B) ‘Asega, is’t thingtid?’
(A) ‘Alsa hit is. Alsa forth deis, sa i bi londriuchte iuwe thing heia and
halda ur alle iuwe berieldan, alsa fir sa’t him iuwe bonnere keth heth, sa
ach i him to urbonnane thingslitene, dernsone, sunderacht and unhlest,
thetter en mon dwe bihalva iuwe orleve, sa hwether sa hi hir nu a warve
se sa hi forth to ware kume.
Thes greva bon bonne ic ur alle mine berieldan, alsaden to lastene,
sa thi asega heth to riuchte deled. And hebbe allera monna ek mene with
sine sele, thet hi riuchte tichtan to ware brenge and thet unthelande se,
ther on tha liude falle and on thene frana.’
(B) ‘Asega, hot age wi to dwane on thisse nie iera?’
(A) ‘I agen frethe to bonnane tham erst, ther is allerharist: alle godishusum and alle godismonnum and thes godeshuses erve thene alrahagista frethe, thet hit nen mon ne binere tha biteszie iefta bitiune, bi-ere
iefta biskere. Thet agen tha liude to loviane and i agen iuwe bon theron
to ledzane. Wellath i thet lovia mitha hondum?’
(B) ‘Ge, God, wi.’94
92
Emanuel, ‘The Seven Keys of Wisdom’, 36. Emanuel thought that the Welsh adaptation of the five keys for legal education was unique to Wales – quod non.
93
Gerbenzon, ‘Bijdrage tot het bronnenonderzoek van Haet is riocht?’; Gerbenzon,
‘Haet is Riocht? (What is Law?)’.
94
Buma and Ebel, Das Fivelgoer Recht, XVIII.1–7; Bremmer, Introduction, text XIV.
28
Bremmer
[‘Asega, is it time for the thing?’ ‘Indeed it is. Immediately on the day
that you according to the law of the land open and hold your thing over
all your subjects, in as far as your messenger has announced it to them,
then you have to forbid them court disturbance, secret reconciliations,
extra-legal consultations and breach of the peaces that a man may do
without your permission, whether he is here now in the place of the
assembly or may still come to the place of the assembly.
I pronounce the count’s ban over all my subjects to carry out in such
a way as the asega has rightly judged. And may each man have the
intention in his soul to bring just accusations to the assembly and may
that which concerns the people and the frana not be concealed.’
‘Asega, what do we have to do in this new year?’
‘You must pronounce peace first to those for whom it is most
important: the highest peace of all to all God’s houses (i.e. churches)
and all God’s men (i.e. clergymen) and to the premises of the church, so
that no man may harass it, lay claim to it or fence it in, plough it or mow
it. The people must vow to this and you must proclaim your ban on it.
Will you vow to this with your hands?’
‘Yes, by God, we (will)’.]
This lively dialogue has been much praised but little studied. Legal historians have commonly classified it as a formula for opening the thing (G
Ding- or Gerichtshegungsformular) in which the skeltas (legal officials
appointed by the count to carry out administrative duties, law enforcement
and prosecutorial tasks; quite similar to a bailiff) humbly ask the asega for
instructions, which he then extensively gives.95 Characteristically, the relation between a teacher and his pupils is asymmetric, a situation that we
see reflected in the Asegariucht, in which the asega is staged as the knowledgeable master who extensively responds to his interrogators’ short but
pertinent questions. With respect to form, then, this instructional exchange
of questions and answers fits in with a genre that was widely disseminated
in medieval Europe: the didactic dialogue.96 Accordingly, it may have been
for didactic purposes that the compilator of the fiftheenth-century Fivelgo
Manuscript included it in his anthology, if we keep in mind that as far as
the officials in it are concerned, the Asegariucht had lost its immediate
relevance.
Another way of testing knowledge and wisdom is the enigma or riddle,
a genre that is numerically poorly attested in the corpus of Frisian law texts
but which, judging by the number of legal miscellanies in which they were
included, must have been quite popular. A cluster of three riddles involving
95
Most recently, Sjölin, Das ‘Fivelgoer’ Handschrift, 63; Buma and Ebel, Das Fivelgoer Recht, 17; Algra, Oudfries recht 800–1256, 243–7, who assumes that the conclusion to this text is missing; Vries, Asega, is het dingtijd?, 67.
96
Kilian, Historische Dialogforschung; Lexikon des Mittelalters, III, s.v. ‘Dialog’.
The Orality of Old Frisian Law Texts
29
three brothers appears in the two Hunsingo Manuscripts, in the First and
Third Emsingo Manuscripts as well as in Codex Unia and Codex Roorda
– in other words, in multiple manuscripts from either side of the River
Lauwers. Only Codex Roorda also offers the solutions. To the best of my
knowledge, no one has written on these riddles apart from making some
appreciative remarks. Buma and Ebel, for example, contend that these
riddles can hardly be counted among ‘our sources of legal knowledge, but
rather belong to folk literature’,97 without making explicit in what respect
the two genres are different. The scribe of the First Emsingo redaction
clearly held a different opinion, for he begins the first riddle with the words
‘Theth is londriucht, thet’ter thre brothere weren …’ [This is landlaw, that
there were three brothers ...],98 thereby explicitly positioning the riddle
within the domain of law. The riddles are phrased as statements rather than
questions, as in the following example:
Ther weren ac thre brothere and weren alle fulbrothere. Tha slog thi
iungesta hira alra feder and nom ac thet ield bi tuira tele and bi asega
dome.99
[There were also three brothers and they were all germane brothers.
Then the youngest killed the father of all (three) of them and also
received the wergeld according to declaration and counter-declaration
(in the assembly) and according to the asega’s judgement.]
The solution to the sheer impossible case of a patricide receiving his
father’s wergeld instead of having to pay it to his brothers is found in
Codex Roorda:
Dat was aldus: deer scholden fyowerasum fara wr een wetter. Da wox
dy wynd ende dat wetter sloegh in dat scip. Da worpen da tween hyare
fader wt and quethen dat hit bettera wijr dat hy allinna drinckte, so se
alle sterue. Dit was da tredda broder leed ende scholde hyne to da lyue
reda and sloegh wt myt ena gerfonge and taegh’ne weer in oer boerd
ende dede hym een dulligh. Da clagen da twen op dyn tredda broder and
spreken dat hy’ne slayn hede, hy schold’en ielda. Hy spreeck, hia hed’en
slayn and hya’ne drinsa wolden and hya’ne ielda scholden. Ende alzo
golden da twen broren da tredda deer’na slayn heed.100
[This was as follows: four men were to sail across a (stretch of) water.
Then the wind swelled and the water smashed into the ship. Then two
97
Buma and Ebel, Das Hunsingoer Recht, 16: ‘… kaum zu unseren Rechtserkenntnisquellen zu rechnen sind, vielmehr zur volkstümliche Literatur gehören’.
98
Ibid. III.1. Similarly, the versions of the Third Emsingo Manuscript and of Codex
Unia ascribe the procedure to land-law. On the various meanings of the term ‘londriucht’, see the contribution of Oebele Vries to the present volume.
99
Buma and Ebel, Das Hunsingoer Recht, V.2 (‘Straf- und Erbrechtliche Rätsel’).
100
Hettema, Jurisprudentia Frisica, II, 128–30.
30
Bremmer
(of the brothers) threw their father over board and said that it would be
better if he alone drowned than that they would all die. This greatly displeased the third brother and he wanted to save his (father’s) life and
struck out with a boathook and pulled him on board again and (appeared
to have) inflicted (him) a (mortal) wound. Then the two accused the
third brother and declared (in the assembly) that he had killed him (and
that) he had to compensate for him. He declared that they had killed him
and they had wanted to drown him and they should compensate for him.
And thus the two brothers compensated the third who had slain him.]
First of all, what is striking stylistically in this solution is the frequent use
of parataxis, a hallmark of oral discourse (cf. Ong’s no. 1). Next, it should
be noted that the solution is presented in the form of an extreme, yet concrete situation taken from everyday life (cf. Ong’s no. 3). Finally, improbable as the account may be, the solution is clearly devoid of syllogistic
reasoning (cf. Ong’s no. 9). In other words, the riddle and its solution are
heavily marked by oral residue.
THE WISE ASEGA AND PROVERBIAL WISDOM
The intimate link between law and wisdom for Frisians was especially embodied in the person of the asega, the legal official who has already been
briefly touched upon elsewhere in this essay. The asega’s duty was to be
present at assembly sessions and listen carefully to the complaint that was
raised and the defence that was given. Based on his knowledge of customs
and precedence, he then had to make a decision, dom dela ‘to deal (i.e. to
impart) a doom’, for example, on how many oaths had to be sworn 101 or
whether an ordeal was necessary to establish who was guilty102 or if the
house of the man found guilty had to be burnt down and demolished.103 The
stock phrase relevant for my argument is bi asega wisdome ‘according to
the asega’s wisdom’. The sixteenth of the Seventeen Statutes, for example,
stipulates that a man who has committed nightly arson or any other heinous
deed:
… bi asega wisdome and bi liuda riuchte ach hi’t te ieldane mit sines
selues halse, ief hi thet fia nebbe. Thenna ielde hi alle liudem te thonke,
thi ther hongat: morth mot ma thruch liuda kere mit morthe kela, hu thet
ma tha urherga stiure.104
[… according to the asega’s wisdom and according to the law of the
101
On oaths, see Popkema, ‘Die altfriesische Eidebezeichnungen’.
On ordeals, see Buma, Het godsoordeel in de Oud-Friese literatuur, a survey and
interpretation which is much in need of revision.
103
Cf. Vries, ‘Seka mit brande end mit breke’.
104
Buma and Ebel, Das Emsiger Recht, A III.16 (‘Die gemeinfriesischen Siebzehn
Küren’).
102
The Orality of Old Frisian Law Texts
31
people, he must compensate it [i.e. the deed] with his own neck, if he
does not have the money (for paying the compensation). Then let him
who hangs there pay compensation to the gratification of all the people:
by statute of the people, murder must be cooled with murder in order to
correct the disobedient.]
The asega, drawing from his memory, knows what applies in this case; the
people, that is, the adult men of the community, confirm the asega’s wisdom as law. It should be noted here that in relation to jurisdiction only the
pronouncements of the asega are qualified as ‘wisdom’ in the Frisian
laws.105 To cap it all, and characteristic of the traditional mindset, a proverb, presented as law, is invoked as the ultimate guarantee that the asega’s
verdict is entirely valid reasoning: ‘morth mot ma mith morthe kela’.106
Proverbs are very much a component of traditional culture; often used
and patterned for ‘retention and ready recall’ by balance, rhythm, alliteration, assonance or rhyme, they have become a constituent part of common
memory.107 They are ‘storehouses of wisdom’ and in themselves often
resemble legal rules;108 note the use of the compelling verb ‘mot’ (must) in
‘morth mot ma mith morthe kela’. Proverbs also transmit communal norms
and values to posterity, they give advice or warn, articulate desired behaviour or unwanted conduct.109 Their presence in Frisian laws has long
been recognized and they were gratefully collected and included in the first
collection of German/Germanic legal proverbs.110 Borchling praised the
‘beautiful, old, alliterative formulas’ in which proverbs had frequently been
cast.111 Sympathetic yet romantic is Szadrowsky’s brief discussion, branding the Frisian proverbs as ‘urgermanisch’ in nature.112 Buma also devoted
considerable attention to their occurrence in the First Rüstring Manuscript,113 but his treatment is little more than an enumeration and as such
lacks any contextualization.
105
The phrase bi asega wisdome might be a later extension of bi asega dome [by the
asega’s judgement] which appears in all parallel redactions, except here and in the Hunsingo redaction; the Latin translation of statute sixteen also has ‘secundum asega iudicium’ (Hoekstra, De Eerste en Tweede Hunsinger Codex, I.100) and not *‘secundum
asega sapientiam’. Perhaps the phrase was influenced by the collocation dôm wîsa ‘to
pronounce a judgement’. Ultimately, it is hard to decide what associations the audience/
readership will have had when hearing/reading the phrase ‘bi asega wisdome’: whether
it was ‘wisdom’ or ‘judgement’.
106
A new study of Frisian legal proverbs and their context would be welcome.
107
Ong, Orality and Literacy, 34.
108
Brink, ‘Verba volant, scripta manent?’, 96–7.
109
Ibid. 91; Sumner, ‘The Proverb and Oral Society’, 22.
110
Graf and Dietherr, Deutsche Rechtssprichwörter. E.g., ‘morth mot ma mith morth
kela’ (no. 311) is discussed in the section on ‘Talion’ (‘Retaliation’), 336–40.
111
Borchling, Poesie und Humor, 32.
112
Szadrowsky, ‘Stil und Syntax der altfriesischen Rechtssprache I’, 155–6.
113
Buma, De Eerste Riustringer Codex, 74–83.
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Bremmer
Just how tenacious the appeal to proverbs was in matters legal appears
from a treaty concluded in 1449 and intended to establish peace in all of the
land of Westergo. All kinds of stipulations follow in due order to be concluded with a balanced and rhyming proverbial saying: ‘Item, hwa disse
fors[criouwn] punten naet bitallie mitta guede, dy schil bitallie mitta
bloede’ [Next, whoever does not pay the above-w(ritten) points with goods,
he must pay with blood].114 It should be noted how an appeal to oral wisdom is uttered simultaneously with the technique of backlooping that
became possible with literacy (cf. Ong’s no. 1). Even the compiler of Jurisprudentia Frisica, a Romano-canonical treatise compiled in the last quarter
of the fifteenth century – hence, typically a product of learned literacy –
was still susceptible to the power of proverbs. For example, in the chapter
‘De confessis’ [About confessions] amongst a variety of arguments and
circumstances that are supposed to reveal someone’s guilt or innocence, all
of a sudden there is one item that consists only of the following: ‘Item. Dij
flechtiga foet is dijo jechtiga hand’ [Also: The fleeing foot is the confessing
hand].115 The line combines several stylistic features that are typical of
proverbs: it is balanced, features internal rhyme, employs the rhetorical
figure of synecdoche (pars pro toto) and, finally, it is clearly meant not to
be taken literally. What the proverb says so poignantly is ‘he who flees
(away from the crime scene) confesses guilt (when he testifies to it with his
hand on the relics in the assembly)’. Popular experience has turned here
into binding law.
A PPEALING TO THE PAST
Another aspect that closely links the Frisian laws to orality is the presence
of myths or allusions to such ‘traditional tales relevant to society’, as myth
has been defined.116 We are not concerned here with pagan myths, although
in the past scholars it was generally believed that traces of heathenism were
still to be found in the rather late medieval Frisian sources. Instead, such
myths usually concern origins. Stefan Brink has cogently argued that in an
oral culture, the orator, the man who speaks at assemblies, will seek to
manipulate his audience in order to make them susceptible to the speech he
114
O II 27.33/21–2; the saying was quite popular, cf. O II 41, 45, 46, 67, 73, 91, O III
8. Cf. the Dutch and German proverbs ‘Wie niet horen wil moet voelen’/ ‘Wer nicht
hören will, muss fühlen’ [Who does not want to listen/obey, must feel (the consequences)].
115
Hettema, Jurisprudentia Frisica, Tit. XII.23. On this treatise, see Gerbenzon, ‘Aantekeningen over de Jurisprudentia Frisica’, who also on more than one occasion points
out the author’s use of proverbs (346–8). For a contextualization of the proverb ‘een
gued nama is bettera dan goud ende seluir’ (a good name is better than gold and silver;
Jur.Fris., Tit. LXIII.1), see Bremmer, ‘Insults Hurt’, 96.
116
Bremmer, ‘What is a Greek Myth?’, 7.
The Orality of Old Frisian Law Texts
33
is going to deliver.117 He will try to evoke particular feelings in his
audience, especially by referring to familiar events, cherished memories
and myths. The speaker might give a full account of the tale, but merely an
allusion or reference to a well-known myth, enough for his audience to get
the point he wants to make, might suffice just as well. An example of a full
account is preceding the Statutes of Magnus, which begins with an explicit
call by the narrator for aural attention and an invitation to be instructed
about the past:
‘Wella J harkia and leta jo rathia fan tha arsta kerum ther tha Fresan
kerrin tha hia an Rome thine fristol bicrongen and that strid <up>ehewen
ward tuischa thine Koning Karle and tha Romera heran umbe this Pawis
Leo agene’118
[‘Please listen and have yourselves instructed about the first statutes
which the Frisians chose when in Rome they had won the free seat of
justice and the battle was begun between Charlemagne and the Roman
lords about Pope Leo’s eyes’.]
The narrator continues by paying a good deal of attention to the (alleged)
siege and conquest of Rome whose citizens had deprived Pope Leo from
his eyes, and the Frisians’ part in gaining the victory before he finally starts
to enumerate the individual statutes.
A more allusive reference to the distant past is given in the introduction
to a version of the Superior Statutes, which I here give with the first two
statutes that follow:
Tha alle Fresan schipat weren, tha leuedense thet, hok hira sa erist then
londgung nome, thet hia ene pictunna barnde and tha otherum ther mithe
kuth dede, thet hia then londgung nimen hede.
Ande keren thet tha to riuchte: jefter eng lond vrherat worde fonta
sutherna sereda herum, jefta fonta norda wising, thetta sex tha sogenda
hulp thet hit alsa wel machte sa othera sex.
Ac keren se thet: jefter eng lond fonta sogen selandum welde vnriucht fara, liude rawia iefta morthia, thet thet sexte thet sogende
bithunge thet thet alle riuchte fore.119
[When all the Frisians had boarded their ships, then they promised that
whoever of them would be the first to set foot on land, that they would
burn a pitch-barrel and with it make known to the other ones that they
had set foot on land.
117
Brink, ‘Verba volant, scripta manent?’, 83. For the view that such allusions to the
past are part of a more or less consciously orchestrated ideology, see Johnston, ‘Old
Frisian Law and the Frisian Freedom Ideology’.
118
Sytsema, Diplomatic Edition Codex Unia; cf. Bremmer, Introduction, text XV
(‘The Legend and Statutes of Magnus’).
119
Buma and Ebel, Das Fivelgoer Recht, XVII.1–3 (‘Die allgemeinen Überküren’).
34
Bremmer
And then they chose this as law: if any land were to be ravaged by
the southern lords, equipped with arms, or by the northern pirates, then
the six (lands) should help the seventh so that it would fare as well as the
other six.
They also chose this: if any of the seven lands would want to do
injustice, rob people or kill them, that the sixth (land) should constrain
the seventh so that it would completely do justice. ... (upon which three
more regulations follow).]
Modern readers will not readily know what the ships and the burning pitchbarrel – a visual communication that landing has been successful120 – refer
to. They relate to one of the Frisian myths of origin: long ago the Frisians
lived in India, but were persecuted there because of their Christian faith.
Hence, led by their leader Friso, they decided to board their ships and find
a new place to live. Having arrived in what is now Friesland, Friso divided
the land amongst his seven sons, which explains the seven lands mentioned
in the first two statutes.121 The allusion, then, at the beginning of this text
aims for a triple effect: first, the narrative introduction, with the inclusive
claim of ‘all the Frisians’, is designed to attract the audience’s attention.
Secondly, its anecdotal, but also allusive reference to the past appeals to a
shared knowledge of the origin of the Frisians and is hence intended to reinforce group identity – only those who are initiated into the tribal history
can fill in the details. In the third place, the allusion to the Frisian landnám
projects the origin of the statutes back to the beginnings of Frisian history,
thereby giving them a special authority, while at the same time bringing the
past into the present to ensure its ongoing life in a form that is relevant to
the needs of the present.122
The distant past can also be filled in with reference to history that is not
specifically Frisian. One of the rights that keeps resounding throughout the
Frisian laws is that each social transgression and physical or verbal injury
can be compensated with money. Sometimes this fundamental right is said
to have been instituted by the Lord Christ himself:
Tha use Drochten enda tha warld kom, tha sette hi alle firna a fia and a
festa thet thi mon nede na sa ewele den, hi ne muge tha sende mith festa
and thet ferech mith fia gefelle, behalua thrim wendum.123
[When our Lord came into this world, then he fixed all crimes in money
120
A well-tried method, cf. Strömbäck, ‘Att helga land: studier i Landnáma’. I owe
this reference to Terry Gunnell; cf. Clunies Ross, ‘Land-Taking and Text-Making in
Medieval Iceland’, 178–9.
121
Cf. Bremmer, ‘Willibrord through Anglo-Saxon and Frisian Eyes’, 8–9. On the
number ‘seven’ as potentially indicative of orality, see note 45 above.
122
On the adaptation of the past to the present, cf. Vollrath, ‘Das Mittelalter in der
Typik oraler Gesellschaften’.
123
Buma and Ebel, Das Hunsingoer Recht, VI.1 (‘Zusätze’).
The Orality of Old Frisian Law Texts
35
and in fasting so that a man, no matter how evil he had done, would
(still) be able to pay for his sins with fasting and for his life with money,
apart from three exceptions ... (which are then diligently presented)].
We find a similar narrative strategy in what seems to be a later insertion
into the Hunsingo Register of Compensations. Again, the topic is wergeld:
Tha use Drochten ebern warth, tha warth’er alle brekandem to bote
ebern. Tha sette use Drochten ene nie ewa and sett’er thet forme ield bi
tuelef merkum te ieldane ieftha mith tuelef ethem te vnriuchtane.124
[When our Lord was born, he was born as a compensation for all
trespassers. Then our Lord decreed a new law and fixed the first (i.e. the
proto-) wergeld to be compensated at (the amount of) twelve marks or
to be denied with twelve oaths.]
Both openings begin with a reference to a momentous event in the past and
both are marked by alliterations and repetitions including an instance of
figura etymologica (‘ield te ieldane’) after which follow a number of rules
that relate to issues of wergeld. Such brief narratives in which Christ is said
to be the origin of a particular Frisian legal custom deftly link up the
history of salvation with the history of the Frisians and would have made
many an ear prick up in the assembly.
The examples discussed above share an allusion to a mythical past that
is placed at the beginning of a set of rules, thus marking for the audience
the importance of what is going to follow by linking the past to the present.
Such allusions, however, can also be made in passing. A fine example of
this strategy is found in the first of the Twenty-Four Landlaws, as found in
the Emsingo redaction. This law stipulates that every free Frisian possesses
his properties uncontested, unless he has been found guilty of some trespass
or has failed to attend the assembly on three successive occasions. If such
a man can offer no valid excuse for his absence, he has to pay ‘three gold
pennies that are struck at Rednath’s mint shop. These must be so big that
they can be heard over a distance of nine house panels when being dropped
into a basin’.125 Apparently, the identity of this moneyer called Rednath was
common knowledge to the intended audience, for he is given no futher
introduction. Fortunately, a gloss on the origin of the Frisian monetary
124
Ibid. IX.20 (‘Die Hunsingoer Busstaxen II’); cf. Bremmer, ‘Christ in Language and
Law of Medieval Frisia’, 542–3.
125
Buma and Ebel, Das Emsiger Recht, A IV.1 (‘Die Vierundzwanzig Landrechte’):
‘… thre geldene pennengar ther andere Rednathes menta gheslaghen se. Tha scelen alsa
stor wesa thet ma se hera mughe ouer niogen feke huses inna eine leflene clinna’. The
term fek refers to the ‘bay’ between two upright timbers (‘posts’; OFris sçle) supporting
the ceiling of the hall and the roof with about 2.5 metres (8.2 ft) between each post; see
<http://en.wikipedia.org/wiki/Low_German_house> (accessed October 2013).
36
Bremmer
system in the second of the Seventeen Statutes of the Rüstring redaction
presents a clue for us to gauge what it means for a coin to have been struck
in Rednath’s mint:
Thit is thiv other liodkest, alder thes kyninges bon efter geng, thet ma
under liodon hagene fretho louade alle godishuson and alle godismonnon. Thene fretho kas ma tha bi twam and sivguntiga pundon – thet
pund skil wesa bi sivgun agripiniska panningon. Colna burch hit bi alda
tidon Agrip anda alda noma. Tha firade us Frison thiv fire menote and
us swerade tha thi swera panning. Setton tha selua sundroge menota and
warth therwith thet twa and siuguntich punda leyd and elagad twa and
sivguntich skillinga Rednathes slekes ieftha Kawinges slekes. Rednath
and Kawing, alsa hiton tha forma twene ther to Frislonde thene pannig
slogon.126
[This is the second people’s statute, to which the king’s authority was
added, that a high peace was promised among the people to all God’s
houses and to all God’s men. This peace was fixed then at seventy-two
pounds – the pound to be reckoned at seven Agrippine pennies. Cologne
town in olden times was called Agrip with its old name. Then the far-off
mint was (too) far for us Frisians and the heavy penny was (too) heavy
for us. Then we ourselves introduced a different coinage and with it
these seventy-two pounds were fixed and confirmed at seventy-two
shillings of Rednath’s coinage or Kawing’s coinage. Rednath and Kawing, thus were called the first two (men) who struck the penny in Frisia.]
Scholars have tried to identify the two moneyers Rednath and Kawing in
real history,127 but in doing so they tend to overlook the etiological purpose
of this little narrative with its repetitive emphasis on the distant past (‘bi
alda tidon’ … ‘anda alda noma’) and its equally repetitive highlighting of
the names of the first two moneyers in Frisian history (cf. Ong’s no. 3). So
when a Frisian had to pay three gold pennies minted in Rednath’s shop –
currency that was certainly not in circulation in the thirteenth century –
rather than that it confronted him with the difficulty of procuring three such
legendary coins as the price for his absence from a court session, he would
be reminded of the golden past when the Frisians established a monetary
system that confirmed their political and economic independence.
Given the importance of the asega within the Frisian juridical system,
his office was also ascribed an early origin. In a number of texts mention
is made of ‘Widekin, thi forma asega’ (W., the first asega) as in the
following passage concerning a brawl in a church which has resulted in a
severely injured priest and the complete destruction of the church’s interior,
including the host, the chalice and the baptismal font. The highest compen126
Buma and Ebel, Das Rüstringer Recht, A III.2 (‘Die Siebzehn Küre’).
E.g., Henstra, The Evolution of the Money Standard in Medieval Frisia, 67–8;
followed by Nijdam, ‘Klinkende munten en botsplinters in Oudfriese rechtsteksten’, 58.
127
The Orality of Old Frisian Law Texts
37
sation is required in addition to a superimposed penance of seventy Cologne pennies:
Dech schelleth dae Fresen der nedena niata, deer Widekin, di forma
asega, deelde ende Herderic efter biscreef bi des Pawes hengnese, dat
deer emmer sculde gaen wr hald ende wr haud di pannyng, der etta
monte nia is.128
[However, the Frisians must enjoy the privilege, which Widekin the first
asega imparted and which Herderic afterwards wrote down with the
Pope’s consent, (viz.) that over neck and head (i.e. one’s life) that penny
is valid which has been newly minted (capital punishment can be redeemed with newly coined money).]
In the past scholars have been concerned with establishing the historicity
of both Widekin and Herderik. Especially the former’s name is somewhat
suspect, because it is Saxon rather than Frisian. Notably, Henk Meijering
has researched this problem, although his attempt to equate Widekin with
Widukind, the leader of the Saxons against Charlemagne, remained openended.129 For the purposes of my approach it is not really important whether
or not Widekin was a historical figure. What is relevant here is the apparently insuppressible urge for people living in a communal culture to anchor
their cherished institutions in the past.
There is one narrative in which several of the features that I have discussed come together: the rather well-known story of Charlemagne and
Redbad.130 It relates how Charlemagne expelled Redbad from Frisia and
tried to establish a judicial system with the help of twelve representatives
chosen by the Frisians legal experts. However, these legal experts prove
unable to cooperate and are eventually punished by being pushed out to sea
in a rudderless and sailless boat. In this predicament they pray for help and
are mysteriously joined by a thirteenth man who steers the boat back to the
shore. There he instructs the twelve men in the principles of the law.
The story and its significance has been much discussed. Some critics
have called it a legend with etiological aspects, explaining the origin of
place-names; some have seen it as a demonstration of the divine origin of
Frisian law,131 while still others have even considered it an ultimately pagan
myth and recognized a Germanic deity in the mysterious helmsman with
128
Buma and Ebel, Westerlauwerssches Recht I, IV.32 (‘Das Sendrecht’).
Meijering, ‘Widekin, thi forma asega’.
130
For the full text, see the Appendix.
131
Most recently: Noomen, ‘Hachens en Wachens: Feit en fiksje yn midsieusk Fryslân’. Noomen also speculates that the narrative originally served as the prologue to the
Elder Skeltana Riucht; Birkhan, ‘Eine altfriesische Tradition zur Konstituierung von
Recht und Freiheit’; Mol en Smithuis, ‘De Friezen als uitverkoren volk’, 171.
129
38
Bremmer
his golden axe.132 The narrative may have elements of most of these genres,
of which the pagan interpretation seems most unlikely to me. However, in
the light of my discussion there are good reasons to consider the story also
as a didactic text, intended to teach a number of important principles of
Frisian law, if presented as a self-contained narrative. Following the course
of the story, these legal principles include: avoid violent solutions, try reconciliation first. If arbitration is to no avail, let an ordeal reveal who is
right. Next, only allodial landowners are entitled to participate in the Frisian juridical system. Furthermore, anyone summoned to court is entitled to
two terms and three appeals to lawful hindrance. When a judge offers the
guilty party a choice, ordeal is best. Finally, a board of judges must consist
of an odd number and when opinions differ, the majority decides. Such
rules dressed up in a lively narrative facilitates their memorization. Seen in
this way the legend of Redbad and Charlemagne is both technical – dealing
with principles of law – and functional – offering instruction.
If Ong’s features are applied to this text, it turns out to exhibit some
clear traces of primary orality. Probably the most conspicuous feature is the
overwhelming quantity of paratactic constructions: ‘Tha ... tha ... tha’
[Then ... then ... then] (Ong’s no. 1). Otherwise the prose text is rather
matter-of-factish. It contains one example of aggregation (Ong’s no. 2): ‘us
Hera God’ [our Lord God].133 Alliterative word-pairs are few and far between: ‘mith skette and mith skellinge’ and ‘rother and rema’, the former
being rare elsewhere in the Old Frisian corpus, the latter unique; in other
words, in this respect, the text lacks the traditional phraseology that we
have seen elsewhere. If my conclusion that the story is also meant to teach
a number of legal principles is right, then they are presented in a descriptive
narrative that is close to the human lifeworld and facilitates memory
storage (Ong’s no. 5). The story is clearly agonistically toned (Ong’s no. 6),
beginning with the duel between Charlemagne and Redbad, and followed
by the altercations between Charlemagne and the representatives of the
Frisians, which ends in their being virtually sentenced to death. The efforts
of the wise men to arbitrate between Charlemagne and Redbad are exemplary of a participatory approach (Ong’s no. 7). Charlemagne and Redbad
are staged in a time that is coeval with the legal traditions of the High
Middle Ages (Ong’s no. 8). So even if not all of Ong’s features seem to be
represented in this story, six out of nine are sufficient to conclude that its
narrative mode bears the stamp of orality.
In addition to exhibiting the presence of Ong’s features, the story also
invites an analysis based on the other features of orality that I discussed
above. The tale begins by situating the story in the distant past, a given
132
Schwarz, ‘The Coming of Law to the Frisians’, based mainly on fanciful arguments
put forward by Willy Krogmann and, ultimately, by Karl von Richthofen.
133
See above, note 38.
The Orality of Old Frisian Law Texts
39
which in turn is firmly linked to the here and now by concluding it in the
present tense: ‘Aldus is’t landriucht alra Fresena’ [Thus is the landlaw of
all Frisians]. Furthermore, wise men play their part in it and we also see a
special role for a descendant of Widekin ‘di forma asega’, who begins his
speech with the words ‘Ik habbe herd’ [I have heard]. In doing so, he
postures himself as a wise man who can activate his memory and apply his
vast knowledge when it is needed. Widekin’s opening words are reminiscent of similar formulaic openings, such as ‘Ik gihorta dat seggan ...’ [I
have heard say that ...] of the Hildebrandslied or the many times that
Anglo-Saxon poets have their narrator say ‘Ic hyrde’ [I (have) heard].134
Finally, the story ends by having the thirteenth man assume the role of
teacher and the twelve asegas adopting the role of apprentices sitting in a
circle around the well that had miraculously sprung up by a throw of the
thirteenth man’s axe, thus symbolizing the source of law (fons iuris).
C ONCLUSION
Orality as a feature of the written Old Frisian laws appears to be a complex
phenomenon and is not just confined to the alleged law-reciting role of the
asega or the frequent use of alliteration as a remnant of chanted law, as has
hitherto been assumed. Rather, the presence of stylistic characteristics of
primary orality as identified by Walter Ong brings out the oral background
of many a Frisian legal text. What critics since Grimm have seen as esthetic
ornamentation can much better be explained as functional features of
orality. Traces of an oral tradition with respect to jurisdiction are also to be
detected in the role of wise men whose duty it was to store legal customs
and reproduce their knowledge, sometimes compressed in a proverb,
whenever they were required to do so. The asega, despite his name, was
certainly not the only wise man charged with knowing and pronouncing the
legal customs. Hints of communal traditional culture and hence of orality
are also detectable in the function that proverbs have as legal instruments.
Furthermore, traces can be discerned of orators/ remembrancers who
skillfully wove shared tales about the past into legal texts and thus perpetuated and reinforced the cultural identity and communal coherence of
the medieval Frisians. Finally, attention has been drawn to the various
conventional methods by which knowledge of the legal customs was conveyed and tested. In conclusion, then, all these points make clear that the
Old Frisian written laws offer a far richer field for exploring vestiges of the
oral traditions in which they were rooted than critics have realized.
134
Parks, ‘The Traditional Narrator and the “I heard” Formulas in Old English Poetry’.
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Bremmer
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A PPENDIX
Fan tha koningen Karle ande Redbad.
Tha thi koning Karle and thi koning Redbad fan Danemerkum in thet land
komen, tha bisette aider sine wei ina Franekra ga mith ene hereskilde, and quath
aider thet land were sin. Tha wolden hit wise liude sena and tha heren wolden
hit bifiuchta. Thach wisade ma there sona also lange thet ma hit op tha tweer
koningen ief, hoder so otherne an stille stalle urstode, thet hi wonnen hede. Tha
brochte ma tha heren togathere; tha stoden se en etmel al umbe. Tha let thi
koning Karle sine handskoch falla; tha rachte’ne him thi koning Redbad. Tha
quath koning Karle: ‘A ha, a ha! Thet land is min!’, ande hlakkade – alderumbe
hat sin wurth ‘Hachense’. ‘Hwerum?’, quath Redbad. Tha quath Karle: ‘I sind
min man worden’. Tha quath Redbad: ‘A wach!’ – alderumbe hat sin wurth
‘Wachense’.
Tha for thi koning Redbad uta lande ande thi koning Karle wolde thingia.
Tha ne moste’re, hwand ther lethegis landis so fule naut ne was, ther hi uppa
thingia machte. Tha sante’re boda in tha sawen Seland and het thet hia him
wonnen ene fri sto, ther hi uppa thingia machte. Tha kapeden se mith skette and
mith skillinge Deldamanes. Ther thingade’re uppa and lathade tha Fresan tofara
him and het thet se riucht keren, also hia’t halda wolden. Tha beden hia ferstes
ti hara forespreka; tha ief hi him orlof. This ora deis het hi thet se fara thet
riucht komen. Tha komen se and keren foresprekan, tolif fan tha sawen
Selandum. Tha het hi thet se riucht keren. Tha ieraden se ferstis: this thredda
deis het hi se koma. Tha tegen hia nedskin. This fiarda deis also; this fifta also.
Thit send tha twa ferst and tha thria nedskin, ther thi fria Fresa mith riuchte mei
habba.
This sexta deis het hi thet se riucht keren. Tha spreken se hia ne kuden. Tha
sprek thi koning: ‘Nu lidze ik io tofara thre keran: hoder io liavera se thet ma
jo alle haudie than i alle ain wirde, than ma jo en skip jowe also fest and also
sterk, ther anne ebba ande anne flod mei withstan and thet sunder aller handa
rother and rema and towe’. Tha keren hia thet skip, ende folen ut mitha ebbe
also fir thet se nen aland ne muchten sian. Tha was him lethe to mode.
Tha sprek thi ena ther fan Widekines slachte was, thi forma asega: ‘Ik habbe
herd thet us Hera God, tha hi an erthrike was, tolif iungeran hede and hi selva
threttundista were and hi to himmen kome al bi sletena dorum and traste se and
lerde se. Hu ne bidda wi naut thet hi us anne threttundista sende, ther us riocht
lere and ti lande wise?’ Tha folen hia alle an hara kne and beden inlike. Tha se
tha bedinge heden eden, tha segen hia anne threttundista an there stiorne sitta
and ene goldene axe up siner axla, ther hi mithe to lande wether stiurde with
stram and with wind.
Tha se to lande komen, tha warp hi mith there axe up thet land and warp ene
ture up. Tha untsprang ther en burna – alderumbe hat thet ‘ti Axenhove’. And
et Eswei komen hia to land and seten umbe tha burna. And hot so him thi
threttundista lerde, thet nomen hia to riuchte. Thach ne wiste’t nemma under tha
The Orality of Old Frisian Law Texts
47
fulke, hot thi threttundista were ther to him komen was, also lik was he allerekum. Tha hi him thet riucht wisid hede, tha neren ther mer tolif. Alderumbe
skelen in tha lande threttene asegan wesa and hara domen agen hia to delane et
Axenhove and et Eswei. And hwerso hia an twa sprekath, so agen tha sawen tha
sex in ti haliane. Aldus is’t landriucht alra Fresena.135
[About the kings Charles and Redbad.
When King Charles and King Redbad of Denmark came into the land, then
each one occupied his way in Franeker district with an armed band, and each
said the land was his. Then wise men wanted to reconcile them and the lords
wanted to fight about it. Still they deliberated about the reconciliation so long
until they imposed the two kings that he who would beat the other one in standing still would have won. Then they brought the two lords together; then they
stood still for a full 24 hours. Then King Charles dropped his gauntlet; then
King Redbad handed it to him. Then said King Charles: ‘Aha, aha. The land is
mine!’ and laughed – that is why his terp is called ‘Hachense’. Then Redbad
said: ‘Why?’ Then Charles said: ‘You have become my (liege) man’. Then
Redbad said: ‘Woe is me’ – that is why his terp is called ‘Wachense’.
Then King Redbad left the land and King Charles desired to hold court.
Then he was not allowed to, because there was not enough free land for him to
hold court on. Then he sent messengers to the seven Sealands and ordered them
to obtain a free place for him on which he could hold court. Then they bought
with treasure and shillings Deldamanes. There he held court and he summoned
the Frisians before him and ordered them to choose law as they wanted to hold
it. Then they asked for a term for (choosing) a spokesman. Then he gave them
permission.
The next day he ordered them to appear in court. Then they came and chose
spokesmen, twelve from the seven Sealands. Then he ordered them to choose
law. Then they desired a term. The third day he ordered them to come. Then
they appealed to lawful hindrance. The fourth day likewise. The fifth day likewise. These are the two terms and three lawful hindrances which a free Frisian
can lawfully have.
The sixth day he ordered them to choose law. Then they said they could not.
Then the king said: ‘Now I present you with three choices: you can either be decapitated or become serfs or be given a ship so firm and strong that it can endure one ebb-tide and one flood-tide, and that without any kind of rope and oar
and rigging’. Then they opted for the ship and floated out with the ebb-tide so
far that they could see no coastland (any longer). Then they became deeply disturbed.
Then the one who was a descendant of Widekin, the first asega, said: ‘I
have heard that our Lord God, when he was on earth, had twelve pupils and that
he himself was the thirteenth and that he came to them when the doors were
completely closed and that he comforted them and taught them. Why do we not
pray that he send us a thirteenth (man), who may teach us law and show us (the
way) to land?’ Then they all fell on their knees and prayed ardently. When they
135
Sytsema, Diplomatic Edition Codex Unia; Bremmer, Introduction, text XVII.
48
Bremmer
had finished praying, then they saw a thirteenth (man) sitting at the tiller and
(he had) a golden axe upon his shoulder, with which he steered to land against
the current and against the wind.
When they came to land, then he thrust the axe into the land and threw up
a sod. Then a well sprang up there – that is why it is called ‘at the court of
Axes’. And they came to land at ‘Esway’ and sat around the well. And whatever the thirteenth man taught them, they accepted it as law. Yet, no one in the
group knew who the thirteenth man was who had come to them, so similar he
was to all of them. When he had shown the law to them, then only twelve were
left there. That is why there must be thirteen asegas in the land and they must
impart their dooms at the court of Axes and at Esway. And whenever they
speak in two (i.e. disagree), then the seven are to overrule the six. Thus is the
landlaw of all Frisians.]