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Legal Traditions in Anglo-Norman England and Their Scandinavian Roots a Thesis Presented To

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Legal Traditions in Anglo-Norman England and Their Scandinavian Roots a Thesis Presented To Legal Traditions in Anglo-Norman England and their Scandinavian Roots A Thesis Presented to The Faculty of the Department of History The Colorado College In Partial Fulfillment of the Requirements of the Degree: Bachelor of Arts May, 2016 Carol Neel, Advisor 1 1 Acknowledgements First and foremost I would like to thank my mother, Heather Murchison, and my father, Rhett Alden, for encouraging me to follow my dreams and pursue my passions. The two of you have given me the strength and confidence to do anything, and this thesis is the result of that gift. You both instilled in me a deep love for the past, and the knowledge that is contained therein. You gave me the identity that drew me to write this thesis, and that identity has been greatly enriched by that process. I love you both very much. To Carol Neel, my advisor and friend, who has guided me through the path of higher education with compassion and excitement for the last three years, I do not know what I would have done without you. I, and this thesis, owe you a great debt for the invaluable aid and wisdom you’ve given me. To Bryan Rommel-Ruiz, I began my journey towards this thesis under your tutelage in my Junior year. You encouraged me to engross myself in the topics I felt the strongest about, and with your help I was able to establish the foundations for this very paper. Your assistance did not end with that class, however, as your aid was invaluable in the final stages of editing this paper. Finally, I want to thank my friends for being willing to listen to my constant babbling about ancient Norse traditions and heritage, all the while confusing you all more and more with each passing moment. All of you helped give me the energy I needed to push through the hardest times during the writing process, and with your encouragement I now stand where I am today. 1 This rune, Fehu, is associated with wealth but also the struggles and tragedies associated with greed. 2 Then they had a great thing of the people summoned and at the thing Sigurd the Jarl spoke for Hacon and offered him to the bonders as king. After that Hacon himself stood up and spoke….Hacon began his speech by asking the bonders to give him the name of king and also to grant him support and help to maintain his kingdom; in return he offered to make all the bonders odal-born to their lands….2 In this passage, the thirteenth century Icelandic poet and historian Snorri Sturlason describes an institution that might look familiar to moderns: the thing, or assembly. The tradition of government by assembly and community authority has long been a part of Germanic cultural tradition. It is mentioned by Tacitus in the late first century C.E.3 The institution of the thing existed in recognizable forms in England, under the name mot, in Denmark and in all of the Scandinavian nations. The widespread existence in late antiquity of the Germanic assembly is well known among historians and even in an educated popular imagination of the long history of Europe, but heretofore the weight of historiography in the English legal tradition has not fully accounted for the influence of the Scandinavian tradition on England. Scholars with enormous historiographical influence such as F.W Maitland have claimed that the political revolution in thirteenth century England, which culminated in the Great Charter, owed much of its impetus to French, rather than the Scandinavian influence or, more broadly, Germanic traditions of community rule. In my view, Magna Carta and the revolution in English politics and law which 2 To have odal over one’s lands was to have right of inheritance from them. The king before Hacon, Harald Hairfair, had taken this right from the bonders of his kingdom and instituted a tax upon them in the manner of a European king. The term ‘bonder’ in this context refers to a class of people in Norse society known as the boendr. The boendr are farmers who own their own land are the heads of a relatively wealthy household defined here by Byock: “members of this large group…qualified for full rights as freemen by owning a certain amount of property – a cow, a boat, or a net for each person in their charge” Jesse Byock, Feud in the Icelandic Saga (Los Angeles: University of California Press, 1993), 212. Snorri Sturlason, Edda, ed. and trans. Anthony Faulkes (London: Everyman, 1987), chapter 1 The History of Hacon the Good. 3Cornelius Tacitus, Complete Works of Tacitus, Trans. Alfred John Church, William Jackson Brodribb, Lisa Cerrato, edited for Perseus (New York: Random House, Inc. Random House, Inc. reprinted 1942), chapter 11. 3 followed it owe a great deal to the tradition of the thing and the conceptions of justice, authority, and power that came with it. The assertion of their rights to assembly and self- governance by the Norman barons represents an evolution of the ancient Anglo-Saxon mot and the Norse thing.4 Why, though, does it matter if Scandinavian culture lies at the root of English tradition? Scandinavia and Germanic traditions in general have long been an object of distaste for historians of ‘western tradition’, who focus on the Greco-Roman core of western thought. To marginalize the culture and influence of the Scandinavian peoples on western history is one of the methods used to further the triumphalist narrative of western history; Rome, glorious and everlasting, and its legacy have been the central thread of western history. It is true, Rome and its influence in the west today are enormously important, but the Romans were not the only font of liberty and justice in the West. It is my view that there is another source of freedom in Europe; it is a colder, harder liberty, but it was instrumental in creating the English state. This view, of Scandinavian influence being vital to English identity, is a reinterpretation the Anglo- Saxon vs. Norman dichotomy, instead I propose a view focused on the blending and fusion of these cultures. The perspective of Maitland, who was writing in the late nineteenth-century, is founded on conceptions of Carolingian feudalism and vassalage as outlined much later in 1964 by Francis Louis Ganshof in his Feudalism. Ganshof thoroughly describes feudalism as having several major features: a system of benefice, a highly ritualized system of land tenure paired with a military system founded on social hierarchy.5 Maitland forms his opinion on the nature of the Normans 4 The mot is the equivalent system to the thing in Anglo-Saxon tradition, with the witenagemot (King’s moot) being equivalent to the althing (great assembly). 5 Francis Louis Ganshof, Feudalism (London: Longmans, Green and CO Ltd., 1964), 24. 4 in relation to a very specific norm of feudal organization, but because he does not use the Icelandic sources his argument does not fully take into account the Scandinavian social order. The sources written by Icelanders offer a window, albeit tinted by time, on what ninth and tenth century Scandinavian culture was like. The ninth and tenth centuries are of supreme importance to the question of Norman heritage because it was during this period that Hrolf, the first Duke of Normandy, was exiled from Norway. The relevant scholarship In order to assemble the evidence for the importance of the thing in English history I will begin with a discussion of two Scandinavian sources: the Heimskringla, and Saxo Grammaticus’ The Nine Books of Danish History. In particular Snorri’s accounts of Harald Hardrade, King Olav Trygvason, and the flight of Hrolf shed light onto the purpose and practice of the althing and the ideals of power it exemplifies.6 Theodore M. Andersson’s in The Problem of Icelandic Saga Origins, and the words of the German scholar Walter Baetke both present the sagas, including Snorri’s Heimskringla, as semi-historical documents. Baetke’s analysis of saga literature shows that, although the specific deeds of heroes are impossible to confirm, everything else in the sagas is equally impossible to disprove. Scholarship on both Icelandic and generally Scandinavian political institutions, including Jesse Byock’s Feud in the Icelandic Saga, Einar Ól Sveinsson’s The Age of the Sturlungs, and Robert Bartlett’s From Paganism to Christianity in Medieval Europe, is relevant to this discussion. These Scandinavian conceptions of law, justice, and government made their way into England in an organized way (as opposed 6 Snorri Sturlason, Heimskringla, ed. Erling Monsen, trans. A. H. Smith (Cambridge: W. Heffer & Sons Ltd., 1932), 60-61. 5 to raids and limited settlement of England by the Danes), Alexander E. Rumble’s The Reign of Cnut argues Cnut represents a blending of the Anglo-Saxon with the Scandinavian in a way that had never occurred before and his reign establishing formal continuity between the Anglo- Saxon and the Scandinavian worlds. Cnut brought relative stability to the new Anglo-Danish kingdom of England, but it would not be for another one hundred and fifty years that the Anglo-Scandinavian tradition merged into the Great Charter. Among and behind all this more recent scholarship tower the works of the great English legal historian Frederic William Maitland. Maitland’s analysis of Anglo-Saxon, and Anglo- Norman law is immensely detailed and covers every aspect of the tradition. So fundamental is Maitland’s work that familiarity with his research is a prerequisite to any serious discussion of English law. Maitland’s works have been affirmed by many scholars including Sir Frederick Pollock, James C.
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