plik

]

M A RTIN A STEIN-WILKESHUIS *

A   Viking-age  Treaty Between  Constantinople  and
Northern  Merchants,  With  Its  Provisions  on  Theft
and  Robbery

In the times when western Europe was suffering Viking attacks, large

groups  of Scandinavians  also  undertook journeys in an  eastern  direction.
They  travelled  by  boat  from  the  Baltic  along  the  Russian  rivers  Neva,
Volchov  and  Lovat,  Volga  or  Dnieper,  reached  the  Black  Sea  and  Con

stantinople,  and  sometimes went  even  further.  Opposed  to  journeys in  a
western  direction,  these  journeys  had  a  largely  commercial  character
although  naturally  a Viking-age  merchant,  whether professional or  occa
sional,  never travelled without his weapons.  The northern traders carried
such  wares  as  hides,  skins,  slaves,  amber,  wax  and  honey.  Important

commercial centres en route were Ladoga, Holmgaard or Novgorod, and

K iev.1

The twelfth-century Russian Nestor Chronicle2 reports a Scandinavian

attack on Constantinople in 907. Prince Oleg of Kiev, leading an enor

mous army o f Rus’ (= Scandinavians, especially Swedes3) , Slavs and Finns

*An earlier version of this article was presented at the Third Marco Polo Conference in

Venice, June  1990.
1  O n  the  relations  between  Scandinavia  and  Byzanz,  see:  V.  P.  L.  Thom sen,  The relations
between  ancient Russia  and Scandinavia  and the origin  o f  the  Russian  state,  Oxford,  1877,
repr.  1965:  T.  J.  A m e,  La  Suède  et l’Orient.  Etudes  archéologiques sur les  relations  de  la

Suède et l’Orient pendant l'age des Vikings, Uppsala 1914; H. A rbm an, Svear i ôsterviking,

Stockholm 1955: ch. IV; D . M. Wilson, East and West: a comparison o f Viking settlement.

Scando-Slavica,  Supplement I,  1970;  P.  G.  Foote  and  D .  M.  Wilson,  The  Viking Achieve
ment,  London  1973, 219-31;  G. Jones, A  History o f the Vikings,  London 1973,  ch.  I ll, 4; P.
H.  Sawyer,  Kings and  Vikings,  London  1982,  ch.  8.
2 D.  Čiževskij  ed.  Die Nestor-Chronik,  Wiesbaden  1969,  29;  A   G erm an  translation  by  R.

Trautmann, Die Altrussische Nestorchronik. Pověsí Vremennych let, Leipzig 1931; A n Eng

lish translation by S. H . Cross and O. P. Sherbowitz-Wetzor, The Russian Primary Chronicle,
Cambridge, Mass.  1953, 64; G.  Ostrogorskij, “L’expédition du Prince Oleg contre Constan
tinople  en  907” , Annales  de l ’institut Kondakov XI,  1939.
3 On  the  origin  of  the  name  Rus’  for  Scandinavians,  see  Thomsen,  The  relations  between

ancient Russia and Scandinavia, ch. II.

Scando-Slavica, Tomus 37, 1991

]

in  two  thousand  ships,  undertook  an  expedition  against  this  city.  After
having  crossed  the  Black  Sea  Oleg  and  his  warriors  disembarked  on  the
coast  o f the Bosphorus  and  devastated  some of the suburbs of Constanti
nople. The Greeks then closed the city gates and blocked the entry to the
G olden Horn with a chain, but the Rus’ drew their vessels on to the shore,
put them on wheels, hoisted the sails and had the ships blown towards the
city  by the  wind.  The  Greeks,  frightened  by the  spectacle,  sent  delegates

to negotiate and agreed to pay the Russian prince as much tribute as he
demanded. A preliminary peace was conclude^ and confirmed by the

swearing  o f  an  oath:  the  Byzantine  Emperors  Leo  VI  and  Alexander
kissed  the  cross,  Oleg  and  his  followers  swore upon  their weapons  in  the
name of their pagan gods.  Oleg fixed his shield on the gate and he left the
city  as  a  victor.

T he conditions o f the 907 treaty were, for instance, that the Rus’ were

to be granted as much grain as they required. W hosoever came as mer
chants were to receive supplies for six months, including bread, wine,

meat, fish and fruit, and baths would be prepared for them. For their

journey hom e they would receive food, anchors, cordage and sails. The

Greeks, for their part, declared: “If Rus’ come without merchandise they
shall receive no provisions. Such Rus’ as arrive here shall dwell in St.

Mamas quarter, imperial officers will write down their names, they shall
receive a monthly allowance, not enter the city save through one gate,

unarmed,  fifty  at  a  time  and  escorted  by  an  imperial  agent.  They  may
conduct  business  without  paying  taxes.”  A   few  years  afterwards,  on  the
2nd  o f September 911,  peace was reconfirmed  and the treaty was written

down in  a more  definitive version.  It  says:  “This is the  copy o f the  treaty
concluded  under the Emperors  Leo  and Alexander”.4 It  supplements the
preliminary  treaty  in  giving  rules  for  the  legal  process,  and  juridical

prescriptions  for  problems  that  seafaring  merchants  regularly  encoun
tered:  what  was  to  be  done  in  case  of theft,  violence,  shipwreck,  taking
service  in  the  Imperial  guard,  and  dealing  with  som ebody’s  estate?  The
text o f both treaties has been preserved in the Old Russian language only.

Although several aspects of the treaty have been examined over the
course of tim e, its legal provisions have attracted little attention. In the

36 Martina Stein-Wilkeshuis

4 tiZevskij, D ie Nestor-Chronik, 32; Trautmann, D ie altrussische Nestorchronik, 19; Cross,

The Russian Primary Chronicle, 65.

Scando-Slavica, Tomus 37, 1991

]

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A Viking-age Treaty 37

previous century Ewers5 and Sergeevic,6 and Mejcik7 at the beginning of
this century, examined the treaty’s prescriptions and demonstrated simi

larities  between  these  and  the  Old  Russian  law preserved  in  the  twelfth-
century  ‘Pravda  o f Jaroslav’.  Unfortunately  the  authors  did  not  include
Scandinavian  law  in  their  investigations;  their  works  are  outdated,  and
sometimes  suffer  from  bias.  In  an  elaborate  article  on  the  tenth-century

treaties between Constantinople and Russia, Sorlin8 also pays attention to

the articles of law but, without thoroughly examining the details, she
rejects the idea that other than Byzantine law might be involved in the 911

treaty.  She  argues:  “Comment  les  Byzantins  auraient-ils  admis,  pour
régler  des  conflicts  entre  eux  et  les  Russes,  l’application  d’un  règlement
moins évolué que celui qu’ils suivaient d’ordinaire?  Comment auraient-ils
exposé  leurs  con-citoyens  a  subire  le  droit  de  vengeance  des  Russes?”.9

This article will discuss the legal prescriptions o f the treaty concerning

theft and robbery, and try to answer the question: when dealing with

foreigners  from  the  North,  welcome  as  merchants  and  feared  as  aggres
sors,  and  quartered at the city walls,  did  the emperors  impose  Byzantine
law where  theft  and robbery were concerned,  or did they permit them to
keep  their  own  Scandinavian  law?  First  I  shall  describe  in  outline  the
prevailing  legal  system  of  early  Scandinavia,  the  homeland  of  most  for

eigners, and the position of theft and robbery within this system. After
discussion o f the provisions in the treaty, some final attention will be paid

to contemporary Byzantine criminal law.

The Latin alphabet reached northern Europe only in the wake of Chris

tianity.  Although  this  situation  results  in  a  severe  lack o f  information  on
Viking-age  Scandinavia,  there  are  other  sources  such  as:  contemporary
runic  inscriptions;  communications  by  Roman  authors  and  western  Eu

5 1. Ewers Das älteste Recht der Russen in seiner geschichtlichen Entwickelung dargestellt,

1826.

6 V. I. Sergeevič, “Grečeskoe i russkoe právo v dogovorach s G rekami X-go veka” , Žurnál
Ministerstva Narodnago Prosveščenija, I, 1882.

7 D .  M.  Mejčik,  “Russko-Vizantijskie  dogovory” ,  Ž um al  Ministerstva  Narodnago  Pro
sveščenija,  II  1916.
8 1.  Sorlin,  “Les traités de Byzance avec la Russie au Xé siècle” .  Cahiers du M onde Russe et
Soviétique,  II,  1961.
9 1.  Sorlin,  “Les  traités  de  Byzance  avec la  Russie” ,  354.

Scando-Slavica, Tomus 37, 1991

]

38 Martina Stein-Wilkeshuis

ropean chroniclers; archaeological evidence, and later developments of
written law. These com e to the investigators’ aid, so that they can form for

themselves a reliable picture o f Scandinavia’s early culture.10

Viking-age Scandinavia, comprising the present-day Norway, Sweden,

Denmark, and from the ninth century Iceland as well, was a thinly
populated area where Old Germanic characteristics were still dominant,
in spite of a gradual penetration of new ideas on religion and monarchy. In

every geographically bounded area the freeholders, sometimes under the
leadership of a prominent man, or petty king, were responsible for admin

istration and maintenance of law and order. They regularly convened for

the local Thing,  the assembly that formed the cornerstone of political and
juridical organization,  where laws were issued democratically,  and  courts
were  in  session.  There  was  no  central  authority  invested  with  executive
power,  so  that  dealing with  criminals  depended  on  private  initiative.

A n important elem ent of society was the kin, with its unwritten obliga

tion to defend the family’s reputation and share responsibilities for right

and wrong. The right o f revenge was closely connected with these kin

structures, for in principle any offence was considered to be an injury

done to the kin as a whole requiring the injured man or one o f his kinsmen
to take  revenge on the offender himself,  or on one o f his relatives,  at any
time  and  anywhere,  in  order  to  restore  the  social  equilibrium.  Redress
could  be  had  not  only  by  immediate  physical  retaliation  but  also  by

com pensation, or by a legal case. A s Tacitus puts it as early as the first

century A . D .: “Feuds do not last forever, for even a killing can be
compensated by a certain number of oxen and the whole kin receives

reparation”.11 The point o f departure was that a free man enjoyed immu
nity as of right, and that by committing unlawful deeds he automatically
lost this legal protection, partially or totally. This meant that, in the event
revenge was taken on him, nothing could be claimed for him by his family.

A fter the introduction o f Christianity to the Scandinavian area in the
eleventh century the laws, transmitted orally up to that time, were written

10 For a general survey see: L. M usset, Les peuples Scandinaves au M oyen Age, Paris, 1951;

see also the works mentioned in note 1; Kulturhistorisk L ek sik o n fo r Nordisk Middelalder,

K 0benhavn, 1980, articles on hamnd, straff, ran, tyveri, and boter; K. von A m ira und K. A.

E ckhardt,  Germanisches  Recht  II,  Berlin,  1967,  ch.  IV.  A   non-traditional  view  on  the
transmission  of early laws  is  presented  in  the work  of E.  Sjoholm,  for  instance  “Sweden’s
medieval Laws.  E uropean Legal Tradition” ,  Scandinavian Journal o f  History  15,  1990.
11  P.  C.  Tacitus,  Germania,  ed.  H.  Fum eaux,  Oxford  1962,  ch.  21.

Scando-Slavica, Tomus 37, 1991

]

2013

down, and many manuscripts have come down to us dating mostly from

the twelfth and thirteenth century: from Denmark the three codes for

Jylland, Sjælland and Skâne; from Sweden the numerous provincial law

texts, representing the main regions Gôtaland, Svealand, Smâland, Upp-
land and the island of Gotland; from Norway the provincial codes of

Gulathing and Frostathing; and from Iceland the national code Grâgâs.12

New  developments  in  religion  and  politics  are  of  course  reflected  in  the
articles o f law,  the  first chapter of the code being as a rule devoted to the
observance  of  the  Christian  religion,  and  monarchy  was  beginning  to
extend  its  rights  and  duties  in  many fields.  Yet  they  em body  many  tradi
tional regulations and customs, for instance with regard to the kin’s role in

poor  relief,  inheritance,  wergilds  and  revenge.  In  several  respects  the
Grâgâs  is  even  more  conservative  than  the  continental  codes  as  a  conse
quence  of Iceland’s  isolated  position.13

A ll codes show that the right o f revenge was still valid in the twelfth and

thirteenth centuries, albeit in a restricted form. The legal prescriptions

acknowledge a free man’s right of revenge under certain conditions: they

permit  revenge  for  grave  offences  only:  assault,  injury,  theft,  verbal  or
other  insult,  or  sexual  offences  committed  against  close  kinswomen.  In
addition,  revenge was individualised:  only the victim him self was  entitled

to take revenge on the offender himself. The duration of this right was

limited  according to the nature of the offence and sometimes restricted to
the  place  of  action.  With  all  this  the  role  o f the  courts  in  the  settling  of
disputes increased.  Courts formed an important part of the activities at the
Thing,  so that each participant could bring a charge against his opponents

and defend his case. Sentences were passed by lay judges, and the usual

punishments were outlawry or fines.14 Corporal punishments were applied
to slaves only, and imprisonment was unknown. The presence o f witnesses
and the swearing o f oaths were indispensable elements o f the procedure.
The law required all offences to be made public knowledge at the Thing by
offender and victim.

12 Erik Kroman & Stig Iuul, Danmarks gamle Love paa Nutidsdansk, K0benhavn 1945-48;

Â.  Holmbâck & E.  Wessén,  Svenska Landskapslagar,  Stockholm  1979; L.  M.  Larson,  The
earliest Norwegian Laws.  Being the Gulathing Law and the Frostathing Law , New York 1935;
Vilhjâlmur Finsen, Grâgâs Konungsbôk, K0benhavn 1852, Stadarhôlsbôk,  Kobenhavn 1879,
and  Skâlholtsbôk,  K0benhavn  1883.
13 M artina  Stein-Wilkeshuis,  “Laws  in  medieval  Iceland” ,  Journal  o f  Medieval  History,

Amsterdam 1986.

14 M artina Stein-Wilkeshuis, “Punishment in Iceland. A Survey” , Recueils de la Société Jean
Bodin. LVI, Brussels 1990.

A Viking-age Treaty 39

Scando-Slavica, Tomus 37, 1991

]

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40 Martina Stein-Wilkeshuis

III

Within  this  legal  system,  theft  was,  like  murder,  considered  one  o f  the
most  detestable  crimes:  it  was  a  sly  and  dishonest  crime  because  it  was
committed  secretly;  the  stolen goods  were  hidden  and  the tracks covered
up,  and  the  victim  had  no  chance  to  defend  himself.  It  is  evident  that  a
thief  disregarded  the  law’s  stipulation  that  he  should  publish  his  injury
before  witnesses  at  the  Thing.  Because  of all  this,  thieves  lost  their  legal
protection com pletely,  and revenge could be taken on them without legal

redress.15 Theft, as mentioned, was one o f the crimes for which the right of
revenge was legally ackowledged in the medieval codes. All laws permit

revenge to the injured person or his helper exclusively, at the place of the
offence, and at the very moment the thief was taken red-handed. The

Icelandic  Gragas,  for instance,  stipulates:  “If a man  takes  another  man’s
property  and  commits  theft  thereby,  or it  is  found  in  his  hands,  then  the
one who took the property falls at that place o f action with forfeit immuni
ty if killed by the man who owned that property that was stolen, and also if
killed  by  anyone  who  gives  the  latter  help  in  this” .16  A n  article  of  the
Norwegian  Eyrathing  (1260)  says:  “AH  the  law  books  and the  law  o f the
land  agree  that whoever takes with  thieving hands a cow or anything else

that belongs to another man may be struck down and killed wherever one

com es  upon  him” .17  This  seems  to  suggest  that  here  revenge  was  not
restricted  to  the  place  o f  action.  Swedish  laws,  with  a  characteristic  re
striction,  acknowledge  the  right  of  revenge  for  theft  only,  if  the  victim
could  not otherwise retrieve his stolen properties.  Several law books  also

acknowledge the right of revenge on som eone who was preparing a theft,

for  instance  the  law  book  o f  the  Norwegian  Gulathing:  “When  a  man
com es  upon  another  in  his  storehouse  and  finds  him  laden  with  stolen
goods and packages;  he may slay that man,  if he will”,  and  “When a man
com es upon  another in  his cow bam or in  his  cattle  pen putting  ropes  on
the cattle intending to lead them away; he may slay that man if he will” .18

If the victim o f theft did not make use o f his right o f revenge he had to

catch the thief, bind him - originally the stolen goods were tied on his back

- and take him to the court. A n example from Swedish laws: “If someone

15 M artina Stein-Wilkeshuis, “Thieves in medieval Icelandic Laws” , Criminal Justice History,

A n International A nnual V, W estport 1984.

16 Finsen,  Stadarhdlsbdk,  ch.  367.
17 Larson,  The earliest Norwegian  Laws,  Introduction,  ch.  9.
18 Larson,  The earliest Norwegian Laws,  Gulathing,  ch.  160.

Scando-Slavica, Tomus 37, 1991

]

A Viking-age Treaty 41

steals something from a locked house and is caught red-handed, then one
shall tie the stolen goods on his back and take him to the Thing”.19 If the
accused did not succeed in declaring himself innocent by means of an oath

he could, according to Swedish and Danish law, be sentenced to death - to

be executed by the victim20 - or to outlawry in Norway and Iceland.21 The

victim then received his compensation from the th ie fs estate, or his
confiscated goods: “If a man is outlawed for thieving, the one from whom

the  goods  were  stolen  shall  claim  his  property  with  the  aid  of witnesses,
and  after  that  he  shall  take  atonement  according  to  his  rank  out  of  the
th iefs  belongings  if  any  such  remain”.22  For  lesser  cases,  the  thief  was
sentenced  to  the  payment  o f a  fine.  The  amounts  to  be  paid  were  often

based on the ancient duodecimal system. Swedish laws for instance im
pose penalties of 3, 6, or 12 marks.

Very often, however, the thief with his loot had already vanished by the

time the theft was discovered. The victim was then entitled to undertake a

house search at the home o f the person he suspected o f the crime, in order
to recover his properties. The ancient word used for this search operation
is “rann-saka” which is composed of two elements, a Germanic word

“rann” which in the Icelandic language still has the meaning o f “house”,

and the second part “saka”, which is etymologically cognate with the

English “to seek”, and the Dutch “zoeken”. The old-fashioned word
formation shows the institution’s old age. A ll Scandinavian law books23

devote a special chapter to house search, providing strict rules for its
undertaking, and although there are slight differences between the respec
tive codes with regard to their prescriptions, they agree on the main

points: house search was undertaken on the initiative, and under the
leadership of the person who had fallen victim to theft. H e first had to call

19 Holmback & Wesson, Svenska Landskapslagar, Ostgotalagen, 88.

20 Holmback  &  Wesson,  Svenska  Landskapslagar,  Upplandslagen,  107;  Sodermannalagen,
203; Vastmannalagen, 80; Halsingelagen, 334; A ldre Vastgotalagen,  158; Yngre Vastgotala-
gen, 309; Ostgotalagen, 88; Kroman & Iuul, Danmarks gamle Love,  Skaanske Lov, ch.  151.
21  Larson,  The earliest Norwegian Laws,  Gulathing Law, ch. 253; Frostathing Law, ch. XIV,

12; Finsen, Grdgds Konungsbdk II, ch. 227-8.

22 Larson, The earliest Norwegian Laws, Frostathing Law, Introduction, ch. 22.

23 Holmback & W essin, Svenska Landskapslagar, A ldre Vastgotalagen 159, Yngre Vast
gotalagen 310, Ostgotalagen 89, Upplandslagen 111, Dalalagen 92, Vastmannalagen 84,
Sk&nelagen 89 and 94, Gutalagen 233, Sodermannalagen 206, Halsingelagen 335; K rom an &

Iuul Danmarks gamle Love,  Eriks Sjaellandske Lov III, ch.  19, Jyske Lov II ch. 96, Skaanske
Lov ch.  134; Larson,  The earliest Norwegian Laws, Gulathing Law ch.  255, Frostathing Law
ch.  XV,  7;  Finsen,  Grdgds,  Konungsbdk ch.  229.

Scando-Slavica, Tomus 37, 1991

]

his neighbours or other reliable persons to act as witnesses and to accom
pany him while searching. After arrival at the house o f the accused man -

who also had to call witnesses - an official appeal had to be made for

house search, sometimes with a detailed description of the stolen object or
animal, or by giving a pledge. Even the searchers’ clothes had to fulfil

certain conditions:  “They shall wear no coat, have their girdle undone, be
barefoot  and  have  their  trousers  tied  up  to  the  knees”.24  These  rules,  as
much  as  those  checks  prescribed  by  the  Gragas:  “they  must  have  them
selves  searched  before  they  set  foot  in  the  farm  in  order  that  no  stolen
goods  are  carried  in  as  a  charge  for  the  inmates”,25  are  meant  to  prevent

the searchers from secretly carrying in the very object they were looking
for. Danish laws show that a stolen slave could be sought in the same way:

“N o one shall refuse to allow som eone else to undertake a house search

for his stolen  slave”.26 If a house search was not permitted  and keys were
not  made  available  “the  locks  forfeit  their  immunity  when  being  prised
o f f ’,27 or “his  door is not inviolable”.28 In other words:  the  occupant then
lost his  right of domestic peace,  and a house search was to be undertaken
with  violence.  According  to  Norwegian  laws,  refusing  house  search  was
equal  to  a  confession:  “If he  refuses  the  search  he  is  the  th ie f’.29  If  the
stolen goods were  found  in  a  house  search  the  occupant was treated  as  a
thief,  depending  on  the  circumstances.

Contrary to theft, robbery was regarded a fair crime and less despised,

because it was committed openly and the victim had a chance to defend

himself.  A  well-known saying from Old Icelandic literature illustrates this
attitude:  “Vikings  have  the  habit  of gathering  booty  by  robbery,  thieves
on  the  contrary  are  used  to  concealing  it  afterwards”.30  Robbery  was,  at
any rate in its unqualified form, punished relatively mildly by the payment

o f a three-marks fine to the victim as compensation, revenge not being

applicable. The difference in judgement on theft and robbery is explained
by pointing out that a robber, unlike a thief, enjoyed som e social respect,

which would have required a different treatment. In the course of the

middle ages measures against robbers were tightened up.

24 Holmback & Wess6n, Svenska Landskapslagar, A ldre Va^tgo tala gen, 159.
23 Finsen, Grdgds Konungsbdk, ch.230.

· '·

26  K roman  &  Iuul,  D anmarks gamle Love,  Skaanske  Lov,  ch.  134.
27 Finsen,  Grdgds  Konungsbdk,  ch.230.
28 Holmback & Wesson,  Svenska  Landskapslagar,  Gutalagen,  233.
29 Larson, The earliest Norwegian Laws, Frostathing Law ch. X IV , 7; Gulathing Law ch. 255.
30 G.  Vigfusson and  C.  R .  U nger ed .,  Flateyarbdk  (Kristiania  1860-68),  I,  412.

42 Martina Stein-Wilkeshuis

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A Viking-age Treaty 43

We will now focus on the treaty between the Byzantines and the Rus’, and

see what it says about theft and robbery. The first of three stipulations is:

“If any Rus’ commits a theft against a Christian, or a Christian against a

Rus’,  and should the  transgressor be caught in the act by the victim o f the
loss, or when preparing his theft, no compensation shall be exacted for his
death  by  either  Greeks  or  Rus’.  The  victim  of the  loss  shall  recover  the
stolen property. If the thief surrenders, he shall be taken and bound by the
one  against  whom  the  theft  was  committed,  and  the  culprit  shall  return
whatever  he  wanted  to  take  away,  making  at  the  same  time  threefold

restitution for it”.31

This article stipulates that a thief, Rus’ or Christian, when caught in the

very act or when preparing his crime, falls with forfeited immunity when

killed by the victim of the theft. There is a question here o f the right of
revenge under certain conditions: only the victim himself is entitled to kill

the thief if the latter is caught red-handed, or when preparing his crime,
that is at the place and the time of the action. The thief by his act loses his

legal protection, is a rightless man who may be slain with impunity, and
for whom no compensation can be claimed by his relatives. The victim has

a right to recover the stolen goods. If he decides not to make use o f his
right of revenge he has to bind the thief, and probably take him to the

court (as we will see in the next article o f law), where the criminal will be
sentenced to return the stolen properties and to pay three times their

value to the victim.

The second article on theft says:

“In the event that a Russian slave is stolen or escapes or is sold under

compulsion, and if a Rus’ institutes a claim to this effect which is sub
stantiated, the slave shall be returned to the Rus’. If a merchant loses a

slave and institutes a complaint, he shall search for this slave until he is

found, but if any person does not permit this search operation, the
occupant shall forfeit his right.”32

This article deals with theft, escape or illegal sale of a slave. Slaves were

valuable articles o f commerce,  and to a merchant the loss o f a slave meant
serious damage.  The law stipulates that he had to submit the matter to the
court  and  institute  an  official  claim  confirmed  by  witnesses  (“substan

31 Ciievskij, Die Nestor-Chronik, 34.
32 Cizevskij, Die Nestor-Chronik, 36.

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44 Martina Stein-Wilkeshuis

tiated”), in order to recover his merchandise. Translators of the Nestor
Chronicle found themselves faced with difficulties with regard to the

“search operation”, and consequently they did not succeed in explaining

the underlying legal system. O f the second half o f this article the passage
“aste li kto iskysenia sego ne dasti stvoriti, mestniku da pogubiti pravdu

svoju” was translated by Trautmann thus: “Wofern jemand den Mestnik
diese Untersuchung nicht durchführen läszt, so verliert er seinen Rechts

anspruch”,33  and  by  Cross  thus:  “but  if  anybody  prevents  the  search
operation  the  local  officer  shall  lose  his  right  o f  perquisition”.34  These
translations  encounter  the  following  obstacles:  Sreznevskij  in  his  Old

Russian Lexicon explicitly rejects the words “local officer” as a translation
o f  Russian  “mestiniku”.35  H e  prefers  the  word  “occupant”.  Cross’  addi
tion  of  the  word  “perquisition”  as  an  explanation  of  “right”  is  based  on
fantasy and leads to a wrong interpretation. Neither do the translations by
Sorlin:  “Si  quelqu’un  em pêche  l’action  de  la  partie  plaignante,  qu’on  ne
lui fasse pas crédit”,36 and Ewers:  “Wenn aber bei jemand Nachsuchungen

anzustellen der Rächer nicht gestattet, so verliert er sein Recht” ,37 show

evidence of a good understanding o f the situation. Translated literally, the

passage says: “If anybody does not permit this search operation the

occupant shall forfeit his right”.38 The words  “anybody” ,  “occupant”  and
“his”  denote  one  and  the  same  person,  and  this  stipulation  is  to  be
interpreted  as  a  house search:  If the merchant did  not  get back  his slave,

he was entitled to organize a house search at the home o f the one who he

suspected o f the theft, after having performed the necessary formalities.

The words “institutes a complaint” show that searching was something

official, bound by rules. If the occupant did not permit a house search he
lost his right o f domestic peace, and the search operation was to be

undertaken with violence.

The last article says: “If any person whether Greek or Rus’, forcibly

extorts something from somebody and appropriates with open violence

som e articles o f his property, he shall repay three times their value”.39

33  Trautm ann,  Die altrussische Nestorchronik,  22.
34  Cross  and Sherbowitz-Wetzor,  The Russian  Primary  Chronicle,  68.
35 I.  I.  Sreznevskij,  Materialy  dlja slovarja  drevne-russkago jazyka p o  pis'm ennym  pamjat-
nikam,  Sanktpeterburg,  1902,  II 249-50.

36 Sorlin, Les traités de Byzance avec la Russie, 335.

37 Ewers,  Das älteste Recht der Russen,  153-4.
38 The  author would  like to thank  D r.  J.  Schaeken, University of Leiden,  the N etherlands,
for his help with  the  translation  of the  Old  Russian  text.

39 Cizevskij, Die Nestor-Chronik, 34.

Scando-SIavica, Tomus 37, 1991

]

This stipulation deals with the violent taking away of other people’s

properties, “and appropriates with open violence some articles o f his
property”. This is robbery, which in'this article is considered less puni

shable than theft: revenge is not applicable here, and the robber has to
compensate three times the value of the properties robbed.

A Viking-age Treaty 45

What  does  a  comparison  teach  us?  Both  the  Scandinavian  laws  and  the
articles  o f the  treaty  are  based  on  the  legal  system  of a  society in  which,
through  lack  of a  central  authority with  an  administrative  machinery  and

an executive power to maintain law and order, dealing with criminals
depended on private initiative. The victim of a crime is central: he has the

right of revenge, and is allowed to make use o f this right in the event of

theft on certain conditions: he is entitled to kill a thief when taken

red-handed,  or  when  preparing  his  crime.  Otherwise  the  victim  has  to
catch  the  thief,  bind  him,  and  take  him  to  the  court.  H e  has  a  right  to
recover his  stolen properties,  and to  receive  compensation  of three times
the value  of the stolen goods.  After certain formalities he has the right to
undertake  a  house  search.  Refusing  a  house  search  results  in  a  loss  of

rights for the occupant. The thief himself is looked upon as a rightless
individual for whom no compensation can be claimed in the event o f

killing; the provisions do not show any concern for the motives behind his

act. Finally, robbery is considered a less serious crime than theft: revenge

is  not  applicable.  In  addition,  fines  and  compensations  are  given  on  the
basis of the duodecimal system:  three times the stolen goods’ value,  or, in
northern  Europe,  three  marks.  Even  the  style  o f both  the  Scandinavian

laws and the legal provisions of 911  has much in common in being framed
in  a  casuistic  fashion;  for  instance:  “if  a  man  does  so  and  so,  then  the
procedure  and  the  penalty  are  such  and  such.”  The  unclear  use  of  the
grammatical subject in the treaty article on house search is another feature

typical of medieval Scandinavian texts.

Given so many similarities, are there no differences at all? There is one

important difference between the Scandinavian law-code chapters on theft
and robbery and the respective articles o f the Nestor Chronicle, where

their elaborateness is concerned. The Scandinavian codes are very de
tailed, providing many cases with digressions and specifications, which is

Scando-Slavica, Tomus 37, 1991

]

2013

typical of a written text. The articles o f the Nestor Chronicle, on the other
hand, provide only the essentials. They form the direct reproduction of
orally transmitted laws, the basic knowledge a free Scandinavian was

supposed to have at his disposal before the laws were written down.

A world o f diffence lies between the treaty articles of law and the Byzan

tine legal system o f the tim e.40 In the Christian, centrally governed Byzan

tine empire the power of the Emperor as supreme head of the state,
supreme judge, and sole legislator, was in fact unlimited, if he only

observed the moral law o f which the Church was the guardian. For the
maintenance o f law and order he had an extensive civil service at his

disposal,  policem en,  lawyers,  executioners  and  other  officials.  The  vic
tim’s  role  is  limited.  A   crime  was  generally  considered  to  be  an  offence
against  the  public  authority,  or  a  disturbance  o f  the  divine  order;  all
punishments  were  public,  and  fines  flowed  into  the  treasury  to  a  signif
icant  extent.  The  death  penalty  was  widely  applied,  and  so  were  a  great
vatiety  of corporal punishments.  The  punishments  of mutilation,  such  as
blinding,  cutting  out  the  tongue  and  cutting  off  the  nose,  originally  in
troduced  through  Christian  ideas  in  order  to  replace  the  frequently  ap

plied capital punishments, were soon also inflicted for offences which had
not  previously  been  punishable  with  death.  In  addition  punishments  ac
quired  an  educative function,  providing the offender with  an opportunity
for repentance;  they were differentiated according to the number o f times

the  crime  involved  was  committed,  and  a  criminal’s  circumstances  were
taken  into  consideration.  Although  a  thief in  the  Byzantine  empire  was
often  punished  by  death,  he  was not  a completely rightless individual:  he
was  a  sinner with  a right to  mercy,  he  could  claim  a  differentiated judge
ment,  and  had  a  chance  to  mend  his  ways.  A n  article  of  law  in  the

ninth-century  “Epanagoge”,  a manual  ascribed to Basil I, is given here as
an example:  “We proclaim that all those who steal in any town,  doing this
for the first  time  and being  rich  and free,  have to  return the stolen goods
and twice  their value to the victim.  But if those who did so  are poor,  they
must be exiled after having been flogged.  If it was not the first time,  but if

46 Martina Stein-Wilkeshuis

40 J. M . Hussey, ed. The Cambridge Medieval History, Cambridge 1978, IV The Byzantine

Em pire; N. H . Baynes and H . St. B. Moss, Byzantium. A n introduction to East Roman

Civilization, Oxford 1962, ch. X .; M. Kaser, Das Römische Privatrecht, ch. 271-2.

Scando-Slavica, Tomus 37, 1991

]

they were caught stealing before,  their hands have to be cut o ff.”41 H ouse
search,  fallen  into  abeyance  since  a  long  time,  was  legally  abolished  by
Justinian the Great in the sixth century. The law did not clearly distinguish
between theft and robbery:  In the empire a robber was considered to be a
threat  to  public  security  rather  than  a fair criminal.

A Viking-age Treaty 47

VII

This investigation brings us to the conclusion that the legal articles on theft
and robbery included in the 911 treaty are definitely Scandinavian, and do
not show any relationship to the Byzantine criminal law of the time. They
form an important source for investigations into Scandinavia’s earliest

written laws, their contents, chronology and transmission. The negotia

tions  between  the  Byzantine  and  Russian  delegates  after  the  attack  on
Constantinople  were  a purely  Scandinavian business:  apart from  tribute,
commercial  privileges  and  social  services,  the  northern  delegates  also
succeeded in having their way where law and customs were concerned: the

emperors allowed them to apply their, own legal system within the
awarded residential area of St Mamas, not only when dealing with their

fellow merchants, but also with the Greeks, or “Christians”. In all prob
ability ad hoc courts were set up for legal business. Further research will

have to  prove  whether this  conclusion  also  holds  good  for  the  law on  the
legal  process  and  for  the  other  articles  of  criminal  law,  on  killing  and
violence.  The  expectations  are  positive.

The identification o f the laws presented here, also means that, far from

home Scandinavian articles of law were written down som e two hundred

years before the northern Europeans themselves started to commit their
laws to vellum: A t the beginning o f the tenth century they were dictated

by illiterate northern merchants in Constantinople and have been pre
served in an Old Russian chronicle.

41 J. Zepi and P. Zepi, ed., Jus Graecoromanum, A alen 1962, ch. 40, art. 72.

Scando-Slavica, Tomus 37, 1991