MUNDANE FISHES in NORTH ATLANTIC LAWS the Icelandic
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CHAPTER EIGHT HIDDEN HARPOONS AND POACHED WHALES: MUNDANE FISHES IN NORTH ATLANTIC LAWS The Icelandic sagas and laws are inexorably bound in their depictions of whale strandings. The sagas’ scavengers cite the laws religiously until, of course, might trumps right. The laws sought to prevent what the sagas so lovingly languished in, the violence that inevitably ensued over contested whales. Medieval whaling laws were nowhere more detailed than in Iceland and Norway. Most medieval royal laws found across Europe never dealt with struggles over whale ownership since most whales were simply claimed and parceled out by monarchs. Iceland, of course, was not burdened by royal overlordship until the thirteenth century, and even then kings often deferred from claiming whales in recognition of their necessity to local populations. The laws to be surveyed here, including the earliest Norwegian laws of Gulathing and Frostathing, the fragmentary Faroese laws known as the Seyðabrævið, or ‘Sheep Letter,’ and the Icelandic laws called the Grágás, or ‘Grey Goose,’ include legislation on drift whales, stranded whales and hunted whales. There was no neat delineation of categories within whaling law, since drift whales became stranded whales, hunted whales became drift whales and drift whales could strand, then drift again. The complex- ity of whaling laws was based both on complicated terminologies and uncertain situations, as so vividly illustrated in the sagas. The laws of the North Atlantic world originated in the Norwegian regional laws which survive in several codes, including the Western SZABO_f10_243-276.indd 243 1/18/2008 11:24:23 AM 244 chapter eight Norwegian Gulathing and the Trøndelag district Frostathing code. These two codes were combined with royal and church law by the eleventh and twelfth centuries, when several Norwegian monarchs left their mark upon the laws, most notably St. Ólafr (r.1015–1028) and Mag- nús Erlingsson (r.1161–1184). Historians note the existence of two texts within the laws, one from each of these reforming kings. It was King Magnus Hakonarson, known as Lagabœtir or ‘law-mender’ who revised the national law in its most comprehensive redaction in 1275. His code was imposed not only in all of Norway’s districts, with some local modifi cations, but also in those North Atlantic territories which were subject to the Norwegian crown. The fi rst lawcodes of the North Atlantic, though, were singularly infl uenced by the original Gulathing tradition, which traveled with Norse settlers to Orkney, Shetland, the Faroes, Iceland, and likely the Greenland settlement. Gulathing was modifi ed to fi t local conditions, so the end result for historians is a host of similar law-codes with regional variation and amendments based on local needs and nascent local traditions. Some of these regional lawcodes have survived the Middle Ages, while others were lost or replaced by the laws of new overlords. Orkney and Shetland, for example, were important medieval centers of power within the Norse North Atlantic. The Gulathing law and its later revi- sions served as the law of Orkney and Shetland through the Middle Ages.1 The Norse character of Orkney and Shetland, and the Norse laws which were followed on those islands, persisted well after they were transferred from the control of Denmark to the Scottish crown in 1468–1469. These island groups “. continued to adhere to a system of law which was fi rmly rooted in the Norwegian and enabled the inhab- itants on occasion to appeal to Bergen for confi rmation of decrees.”2 Finally, the Stewart Earls, in an effort to subjugate Orkney, destroyed indigenous law codes in the sixteenth century and subsequently Scots law was implemented by the crown.3 1 W. Thomson, History of Orkney (Edinburgh: Mercat Press, 1987), 89, 108; J. Ryder, “Udal law: an introduction,” Northern Studies 25 (1988) 1–3; M. R. H. Jones, “Percep- tions of Udal Law in Orkney and Shetland,” in Shetland’s Northern Links: Language and History, ed. Doreen J. Waugh, 186–204 (Edinburgh: Scottish Society for Northern Studies, 1996). 2 Ryder, 4. 3 Thomson, 156–157; The laws of pre-Stewart Orkney have never been recovered. SZABO_f10_243-276.indd 244 1/18/2008 11:24:25 AM.