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M A RTIN A STEIN-WILKESHUIS *

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

I

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.

3

*

Scando-Slavica, Tomus 37, 1991

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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.

II

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

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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

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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

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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

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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

Scando-Slavica, Tomus 37, 1991

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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

IV

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

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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

V

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

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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.

VI

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

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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