The Orality of Old Frisian Law Texts

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 argu- ments. 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 lo3gso3gumaðr ‘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 Ost- friesland, Niedersachsen), called Upstallesbam [The tree of Upstal].5 For Thomas Markey, to give an example, the conclusion was obvious: ‘Upstals- 1 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 æ2we, 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”’. Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 oc- currence 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 con- tained 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 lo3gso3gumaðr, cf. Kjartansson, ‘Law Recital According to Old Icelandic Law’; Mc- Glynn, ‘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 discus- sion 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 altfrie- sischen 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’. Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 consti- tuents of oral, traditional culture, notably the role of wise men in the process of establishing and passing down legal customs, the power of pro- verbs, teaching and learning the laws and, finally, the significance of allu- sions 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 intro- duced 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 Nether- lands’, 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. Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 un- certain, 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 en- fiefed 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.

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