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 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 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 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 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’.

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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 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 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.

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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 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. In other words, administratively, the Frisian lands remained a fringe area. This ec- centric position was consolidated by the lay of the land – extensive marshes made it almost impossible for armed forces to reach Frisia by land. Conse- quently, 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 compo- nents (called ‘lands’, ‘districts’ or ‘universitates’) were administered in a rotational system by the allodial landowners themselves. This quite ex- ceptional 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 relation-

18 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 use- ful 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 hum- ourless’ 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, Borch- ling paid detailed attention to alliteration and end-rhyme, to epitheta ornan- tia, 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 Inter- pretation’, 35–7. 28 Gerbenzon, Friese rechtstaal en vreemd recht, 9–10.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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: ‘Ulti- mately, 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 Fris- ian 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 emo- tions.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 preach- ing 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 lebens- volle Ausdrucksform eines mit poetischen Vorstellungen und Anschauungen durch- sättigten Volksrechts …’. 30 Ibid. 4: ‘Und schließlich ist der innere poetische Gehalt dieser alten Rechtsdenk- mäler, 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 door- post,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 conjoin- ed with ‘and’. Also note the abundant use of co-ordinated alliterative word- pairs – 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. 36 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.

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(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 communi- cations 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. Rhetori- cians were to call this copia’ (40). The following passage from the Seven- teen 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 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’).

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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 Cf. the familiar Old English collocation hæðen here. 43 See below, p. 22. 44 Buma and Ebel, Das Rüstringer Recht, B V.8 (‘Das ist auch friesisches Recht’).

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 man- slaughter 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. 46 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.

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For the same reason of practical concern, inventories are preferably em- bedded 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 experi- mental 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’). 49 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’.

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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.

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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 ac- knowledge. 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 law- breaker 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.

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(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, Intro- duction, 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 pre- dominantly oral, such temporal inconguities are unproblematic.

(9) Situational rather than abstract In oral cultures, concepts are used with as little abstraction as possible. In- stead, 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 offera- de 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 Hibbits, ‘Coming to Our Senses’; see also Mostert, ‘Introduction’. 64 Buma and Ebel, Westerlauwerssches Recht I, IX.51 (‘Das Sendrecht’).

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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.

HANDING 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 re- collection, 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

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 characteris-

65 Cf. Havelock, ‘Instruction of Preliterate Cultures’, 224–5; Ong, Orality and Liter- acy, 9. 66 Buma and Ebel, Das Fivelgoer Recht, IV.2 (‘Vierundzwanzig Landrechte’).

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 knock- ing 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 agricul- tural 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 defen- ces 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 inter-

67 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

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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

WISE 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 Bloom- field 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 Frisio- num. 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.

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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 prom- inently in the preamble to The Statutes of Hunsingo of 1252, which com- mence 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 Hunes- gena 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’). 77 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’).

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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. Some- times 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’).

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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. 84 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 en- tire 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 cor- rectly, 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 some- body 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’).

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 sur- faces 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.

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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 dia- logues. 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 godis- husum and alle godismonnum and thes godeshuses erve thene alra- hagista 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.

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[‘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 Fivel- goer 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’.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 Rechtserkennt- nisquellen 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.

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(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 dis- pleased 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, improb- able 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 em- bodied 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 sworn101 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’. 102 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’).

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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, brand- ing the Frisian proverbs as ‘urgermanisch’ in nature.112 Buma also devoted considerable attention to their occurrence in the First Rüstring Manu- script,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 Hun- singo redaction; the Latin translation of statute sixteen also has ‘secundum asega iudi- cium’ (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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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 Juris- prudentia 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.

APPEALING 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 con- sequences)]. 115 Hettema, Jurisprudentia Frisica, Tit. XII.23. On this treatise, see Gerbenzon, ‘Aan- tekeningen 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 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 vn- riucht 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’).

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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 pitch- barrel – 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 re- inforce 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’).

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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 (accessed October 2013).

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 godis- monnon. 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 Kaw- ing, 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 compen-

126 Buma and Ebel, Das Rüstringer Recht, A III.2 (‘Die Siebzehn Küre’). 127 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access The Orality of Old Frisian Law Texts 37 sation is required in addition to a superimposed penance of seventy Co- logne 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 re- deemed 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 open- ended.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’). 129 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 Frys- lân’. 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 Fris- ian 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 exem- plary 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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 reminis- cent 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).

CONCLUSION 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 per- petuated 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 con- veyed 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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APPENDIX

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

Downloaded from Brill.com09/27/2021 10:14:39AM via free access The Orality of Old Frisian Law Texts 47 fulke, hot thi threttundista were ther to him komen was, also lik was he aller- ekum. 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 de- capitated or become serfs or be given a ship so firm and strong that it can en- dure 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 dis- turbed. 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.

Downloaded from Brill.com09/27/2021 10:14:39AM via free access 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.]

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