The White Queen: Witchcraft

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BBC, Elizabeth Woodville, Jacquetta of Luxembourg, James Frain, Janet McTeer, Kings and Queens, Legal Stuff, Medieval England, Medieval Europe, Philippa Gregory, Rebecca Ferguson, Richard Neville, The White Queen, Witchcraft

My first post about the BBC series The White Queen took a ‘So Close and Yet So Far’ approach. But a few people thought that it was more close than far. That’s mostly because I decided to save a couple of big things for separate posts. Here’s where we really get into the Far parts.

 

Throughout the series the Rivers women, including Jacquetta (Janet McTeer), Queen Elizabeth (Rebecca Ferguson) and Elizabeth of York (Freya Mavor) all practice witchcraft. In the first couple episodes it’s entirely about predicting the future, and so I thought that the show was taking the approach that Jacquette was just engaging in a little folk magic that happened to give the right answer about whether her daughter was going to get married.

But no, the women are in fact witches. As the series goes on, not only do they occasionally use magic to predict or shape the future, such as ensuring that Elizabeth gives birth to a boy, but they also go for larger-scale things. Over the series they conjure a small hurricane that nearly sinks Warwick (James Frain) and George of Clarence (David Oakes), create a fog that covers Edward IV (Max Irons) as his army approaches Warwick’s at the Battle of Barnet in 1471, and produce a storm that prevents Henry Tudor from sailing from Brittany to join Buckingham’s Rebellion in 1483. (In all three cases, this weather did actually happen historically.) They also curse Warwick and George to die for killing Queen Elizabeth’s father and brother; that one takes a long time to play out, but the show suggests that the curse really did work. Elizabeth briefly curses Richard with a pain in his hand that he feels. The Elizabeths also curse whoever killed the princes in the Tower; the show suggests that Anne Neville’s death in 1485 was due to that curse. All three women ‘have the sight’ and periodically get visions that correctly predict the future.

And everyone around them knows they are witches. Lord Rivers jokingly asks “what spells are you two weaving this time?” Queen Elizabeth jokes that if they burn a portrait of Margaret of Anjou, she and her mother will both get hanged as witches. Clarence and Anne both repeatedly accuse them of witchcraft, blaming them for everything that goes wrong in their personal lives. Clarence hirers an astrology to protect himself from Woodville magic, but it get misunderstood as an attempt to kill Edward. The only person who doesn’t think the Woodville women are witches is Edward.

Elizabeth and Jacquetta working a spell

 

So, to be clear about what the show does, it purports to be a historical narrative about the Wars of the Roses and it shows the Woodville women successfully using magic to manipulate the events. Their magic justifies many of the odd twists and turns the Wars took over the years. It never bothers to address why these magically powerful women didn’t just use their magic to directly kill their enemies like Clarence and Richard, so the narrative is just sort of ham-fisted about it.

There is an increasing trend in the past decade or so of ancient and medieval historical films and show throwing in magical elements. I have no problem with movies and shows depicting ancient and medieval magical practices; nearly all societies have magical practices of some sort, so it’s not unreasonable to show medieval women occasionally resorting to magic in hopes of achieving their ends. But I have a big problem with stories that claim to be historical showing those magical practices as producing real effects. At that point, a film or show crosses the line from history into fantasy.

 

The Basis for the Claims

Philippa Gregory’s idea that the Woodvilles were actual witches does have a small nugget of fact in it. In 1469, during the period when Warwick had taken control of Edward and was trying to run the government through him, Jacquetta was accused of witchcraft. A man named Thomas Wake gave Warwick “an image of lead made like a man of arms of the length of a man’s finger broken in the middle and mage fast with a wire, saying that it was made by [Jacquetta] to use with witchcraft and sorcery.” Wake got a parish priest to support this by claiming that Jacquetta had also made two figures of the king and the queen, presumably some form of love magic to ensure that Edward would marry her daughter.

A drawing of Richard Neville, the earl of Warwick

 

The charges were obviously political. Wake’s son had died fighting for Warwick against Edward and he may have been involved in the death of Lord Rivers. Warwick had just arranged the execution of Lord Rivers and one of his sons, and was clearly now maneuvering against Jacquetta as part of a sustained attack on the Woodvilles.

Jacquetta pushed back by writing a letter to the mayor and aldermen of London, reminding them that back n 1461, she had save the city when Margaret of Anjou wanted to destroy it. Jacquetta had been a close friend and lady-in-waiting to Margaret, so her personal influence apparently helped sway the wrathful queen. The citizens of London repaid the favor by sending a letter supporting her to Warwick via George of Clarence.

That didn’t stop the trial, though. Edward was forced to order an examination of the witnesses, but by the time came for the trial before the Great Council (in this case, essentially a session of the House of Lords), Edward was back in charge and the case against Jacquetta collapsed. The witnesses recanted their testimony, and Jacquetta asserted what was, at least in canon law, an entirely valid defense that Wake was a long-time enemy of hers; whether this particular canon law principle was carried over into English Common Law on witchcraft I’m unsure of, but if something similar applied, this would have disqualified Wake as an accuser by establishing that he had an obvious motive to lie.  The Council, clearly understanding where the king’s sympathies lay, acquitted Lady Rivers and agreed to her request to include the proceedings in the official records of the Council. Jacquetta was clearly a smart woman, and knew that having an official note of her acquittal might come in useful if the charges were revived later on.

And in fact the charges were revived in 1484 when Richard III asked Parliament to declare that Edward and Elizabeth had never been legally married because Elizabeth and Jacquetta had used magic to procure the marriage. By this point Lady Rivers was already dead, and Richard needed Parliament to make this declaration because it justified his seizure of the throne. Parliament did as it was told and declared the marriage invalid.

These two incidents, which were clearly motivated by politics, comprise the sum total of all the actual evidence that the Woodville women ever practiced witchcraft. It is out of these false charges that Gregory spun this entire subplot for her books. She worked within the framework of the known facts, which is commendable, but by blowing these details up into a major part of the story and inventing a host of facts that are literally impossible, such as controlling the weather, she took her story off into fantasyland. And Gregory has falsely claimed in an interview that Jacquetta was convicted and spared only by Margaret of Anjou’s intervention.

Philippa Gregory

 

In the show, Warwick tries Jacquetta for witchcraft while he has control of Edward. He brings in a witness (not Thomas Wake) to make the same accusations; Jacquetta protests that she has never seen the man before, rather than trying to disqualify him as an enemy. Since Jacquetta is actually a witch, the whole scene represents very serious danger; although the accuser is making things up, what he’s inventing is somehow correct. She is saved by calling a witness of her own, Margaret of Anjou, who she was close friends with years ago. Her strategy is that Warwick is dependant on Margaret politically and militarily, so he won’t be able to oppose her in this trial. It works and Jacquetta is acquitted. But this all rests on the false assumption that medieval English courts worked like modern ones, a mistake that other tv shows have made as well.

Jacquetta on trial

 

What is really frustrating to me about this is that the series had a perfect opportunity to explore the way that witchcraft accusations were generally motivated not by actual evidence of witchcraft but by political or personal motives. It was a charge that women were vulnerable to because this culture associated witchcraft with women rather than men. (Men were much more likely to be accused of learned magic, such as the malicious astrology charge brought against George of Clarence’s personal astrologer.)

In the later part of the Middle Ages, English society gradually began using accusations of magic for political reasons. In 1419, Henry V believed that he had been a target of a magical plot. In 1431, witchcraft was one of the charges against Joan of Arc. In 1441, Duchess Eleanor of Gloucester was accused of treasonous astrology when she had an astrologer forecast the death of Henry VI. She was convicted, forced to do public penance, divorce her husband and suffer life imprisonment. In 1450, Henry VI’s government accused the rebel Jack Cade of using sorcery. As already mentioned, in the 1470s, George of Clarence was implicated in treasonous astrology. Looking forward a generation of so, Anne Boleyn was accused of witchcraft by Catholic propagandists, although contrary to Internet claims, witchcraft was not one of the charges brought against her at her trial (although Henry VIII may have once made an off-hand claim that she had ensnared him through witchcraft).

So Gregory could easily have written a subplot in which the charges of witchcraft were entirely false and used that to explore the way that women were culturally vulnerable to ideas about witchcraft. Instead, she chose to actually reinforce the cultural bias around women as witchcraft by making them genuinely guilty. That really pisses me off, because in a way, it re-victimizes these two women.

If you like this post, please think about making a donation to my Paypal account to help me afford to pay for Starz and the other pay services I uses for this blog. Any donation is appreciated! Or follow the links below to purchase one of the books below. I get a small portion of the proceeds.

Want to Know More?

The White Queen is available on Starz, and on Amazon. The three novels it is based on are The White Queen, The Red Queen, and The Kingmaker’s Daughter. They are also available as a set with two other novels.

If you’re interested in this issue, you can read this blog post, which digs a bit further into the evidence for the Woodville women as witches (and explodes it). The author of the post, Susan Higgenbotham, is a novelist and author of The Woodvilles: The Wars of the Roses and England’s Most Infamous Family. She’s not a professional historian, but she’s clearly dug into the sources on this.

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Salem: Torturing the Facts

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Colonial America, Cotton Mather, Increase Mather, Legal Stuff, McMartin Preschool Trial, Salem, Salem Witch Trials, The Enlightenment, Torture, Witchcraft

One of the things that the average person knows about witch trials is that they involved a lot of torture. Innocent women and men were tortured to force them to confess to crimes they didn’t and couldn’t possibly have committed, and so we look at the witch trials as a massive exercise in human irrationality, because things like that couldn’t happen today.

Salem fully embraces this idea. Cotton Mather (Seth Gabel) harasses Mercy Lewis (Elise Eberle), hacks her hair off, locks her in bondage gear, and later literally hangs her up in a church. He tortures Giles Quarry to force him to plead in court. Later, he catches an actual witch and hangs her from a tree. Then Increase Mather (Steven Lang) shows up and kicks the torture into high gear. He ducks the witch Mab in an effort to force her to confess. He captures Mercy’s pack of female wannabe witches and tortures them to throwing boiling hot water on them and strapping them down to various bondage chairs and tables. Then when Mercy accuses Tituba (Ashley Madekwe), he straps her down and goes full inquisition on her. He has a steamer trunk filled with all sorts of torture instruments that he lovingly shows her—various knives and other edged tools, the Pear of Anguish, a vicious ‘breast-puller’ (at least, that’s what I think he calls it), and so on. He clearly uses them on her, because she gets bloodier as the episode goes on.

The Reality

The series, and the general audience, is very confused on these issues, because the reality was much more complex. The first issue of confusion is who tortured and who didn’t. Across most of Continental Europe, torture was generally a legally-accepted practice in at least some situations. The use of torture on witches was permissible, but generally quite regulated. If a suspected witch refused to confess, she (or perhaps he) would be warned that they could be tortured, and then they would be returned to their cell to contemplate this. A day or two later, they would be shown torture implements and urged to confess, and then returned to the cells. A day or two later, they were tied down for torture, but usually not actually tortured, before again being urged to confess and then returned to their cell. It was generally only on the third or fourth session that they might actually be tortured. So the authorities generally employed torture only as a last resort, whereas in popular imagination it’s the first resort. And in most jurisdictions there were legal rules about when and how torture could be used, just the way that today there are rules about when and how police can question a suspect. So torture was never the legal-free-for-all that it’s nearly always presented as (as in Salem, for example).

More importantly for the show, Salem was under English common law, and English common law forbade torture, except in the case of treason against the monarch. As English jurists understood torture, it was never legally applied against any witch either in England or in the American colonies. (Scotland, while ruled by the English monarchs, followed Scottish law, which did allow torture, so accused Scottish witches were tortured.)

The tricky thing here is that some things that most modern Americans would regard as torture were not considered torture at American facilities at Iraq and Guantanamo under English common law. Sleep deprivation, for example, was entirely legal, so accused witches were sometimes kept awake for several days as a way to extract a confession. Accused witches could be strip searched for the ‘Witch’s Tit’, any unusual mole or skin tag or wart that could be interpreted as a supernatural nipple that witches used to suckle their demonic familiar, especially if it was near their breasts, genitals, or anus. Ducking (not ‘dunking’), which involved tying an accused witch into a chair and lowering her into the water, was not an attempt to torture a witch into confession but rather a test to see if the witch floated, because it was widely believed that witches were supernaturally light or that water would reject them. So the above scene in which Increase ducks Mab, is entirely wrong; he’s breaking the law by ducking a confessed witch because, since she’s confessed, he doesn’t need to get more evidence that she’s a witch.

If we disregard the mistakes in the way Mab is ducked, her ducking itself is plausible (it was actually something that was done in the American colonies); however no one was ducked at Salem during the Witch Trials. But the other things he does to Tituba and Mercy’s posse would have been blatantly illegal and would have forced the Salem authorities to arrest him as a criminal. But, as I’ve already pointed out, the show has literally no legal framework for the trials and interrogations; the rules vary from episode to episode and Increase Mather just makes up the law as he goes, even when he contradicts himself.

But the Search for Witches was Irrational, So Who Cares?

While witch-hunting looks irrational to us, it was less unmoored from reality than it’s generally presented. For most of the Middle Ages, scholars and clergy maintained that while miracles were real, magic wasn’t. In the 10^th century, a document known today as the Canon Episcopi declared that belief in magic was false, because Satan had no power to influence the physical world. The best that Satan and his demons could do was trick people into thinking magic had happened. So if someone thought they had flown through the air magically, this was impossible and what had actually happened was they had experienced an illusion or a dream. Although the Canon Episcopi was probably authored in the 10th century, it was later mistakenly ascribed to an important 4th century ecclesiastical council, and as a result it was taken to be binding on the entire Western church. So from the 10th to the 14th century, the official position of Western bishops and theologians was that magic and witchcraft did not actually exist; as a result, very few witchcraft trials occurred during the period, because church law refused to consider it a possible crime.

The text of the Canon Episcopi

But in the later 14^th century, this idea began to be challenged by scholars who maintained that the Devil actually could affect the physical world. Modern scholars are still unsure exactly why beliefs changed, so I won’t go into that complicated question, but by the later 15^th century, both religious and secular authorities were much more willing to consider the possibility that magic had actually happened when something inexplicable occurred. (When physicians were unable to explain what was happening to Betty Parris, her father Samuel began to consider the possibility of witchcraft.) So witchcraft was used as an explanation when other explanations seemed unconvincing or unavailable. That in itself is not irrational based on the level of scientific understanding at the time.

More importantly, most legal systems in Europe and the New World recognized that simple accusations of witchcraft were insufficient to prove a charge. It was not enough for someone to say that they had been bewitched or had seen a neighbor do something suspicious. Everyone recognized the possibility of false accusation driven by ulterior motives like spite or personal quarrels.Following Biblical precepts, moral crimes like witchcraft required the eyewitness testimony of at least two witnesses. But the nature of witchcraft as it was understood was such that it was unlikely to be corroborated by witnesses, because the witnesses to witchcraft were generally thought to be restricted to other witches. So law courts across Western society had the same problem that modern law courts do; how do you prove an accusation of a serious crime without witnesses to the crime?

Modern law courts have recourse to a wide variety of forensic tools such as taking fingerprints, blood spatter analysis, DNA evidence, and ballistics. But early modern courts did not have such tools. Instead, they turned to the expert testimony of the day, scholars and manuals that explained how to identify witches. So they searched the accused’s body for a Witch’s Tit (or, on the Continent, for the Devil’s Mark) and ducked her in hopes they could find evidence of the crime. They searched her house for poppets or other tools of witchcraft. They questioned neighbors and heard accusations of different examples of witchcraft. In other words, they sought hard evidence. Again, this is perfectly rational based on their understanding of how the universe worked.

A man holding two early 20th century poppets, made from clay, nails, and thorns

But in many cases, the evidence they found was insufficient. Was that wart actually a Witch’s Tit, or just an ordinary wart? Was the witch starting to sink just as she was pulled out during the ducking? Was that actually a poppet, or just a child’s toy? The judges weren’t always convinced that the scraps of evidence they had located was enough to justify convicting someone of a very serious crime.

In a situation like that, the best evidence would be a confession by the accused that she had actually committed the crimes, because a confession was considered solid proof of guilt. And that’s where torture came in. The idea of torture was that if it could extract a confession, the need for further evidence was moot, because the witch would have implicated herself and told who her accomplices were. In other words, torturers were interrogating accused witches for exactly the same reason that cops on CSI and Law & Order do, because getting a confession makes proving guilt in a court of law much easier. These shows rarely show the cops coercing false confessions out of innocent people for the same reason that judges were comfortable with torture in the 17^th century, because they were sure that innocence was a powerful protection and that only the guilty had anything to fear. The notion of false confession as a common matter was not seriously contemplated because it would undermine the sense that the legal system generally worked to achieve real justice. (Although there are no hard studies of the rate of false confession in the modern American legal system, the Innocent Project has found that fully 25% of people convicted and then exonerated by later DNA evidence had made a false confession. That suggests that false confession may be a far larger problem in the American system than people generally recognize.)

So the desire for confession stemmed for an entirely rational concern that in the absence of compelling evidence, it was hard to prove the truth of an accusation without a confession. Many 17^th century judges had a lower threshold of proof than modern courts do, but they still recognized the same problems.

The rationality of the Salem judges is shown by the debate over the admissibility of spectral evidence. Betty Parris, Abigail Williams, Mercy Lewis, and other girls claimed that they could see invisible witches torturing them, but no one else could see these spirits. The judges who presided over the trials recognized that the testimony of teenage girls was not entirely reliable, especially given the rather outlandish nature of the testimony), so they asked Cotton and Increase Mather for their opinion on the issue. Both men responded by cautioning them to not put too much weight on the evidence, because the Devil could be causing the girls to see the images of innocent people in order to destroy the innocent. But Cotton’s letter admitted that God would certainly protect the innocent, and that equivocation seems to have persuaded most of the judges that spectral evidence was acceptable. Perhaps the judges were just looking for a reason to accept evidence they already wanted to accept. But at least one judge, Nathaniel Saltonstall, was sufficiently uncomfortable that he resigned from his appointment. Again, the standards these judges were using are rather lower than those of modern judges, but the issues are not entirely dissimilar.

A 19th century depiction of the Salem trials

In fact, one historian, Walter Stephens, has argued that among some early modern theologians, the interest in witchcraft arose not from an overabundance of credulity, but the growth of skepticism about the supernatural and the existence of God. Stephens’ argument, briefly put, is that the desire to find and interrogate witches and prove that they were employing magic stems from anxiety about the inability of theologians to prove the existence of God. If women could be found who would admit to having sex with the Devil (an activity that some witch-hunting manuals dwelt on at considerable length), then that would prove the existence of Satan and by extension the existence of God. In other words, Stephens suggests that many witch-hunters were trying to prove to themselves that God existed precisely because they were scared to acknowledge their own doubt, the way that many vocal homophobes are closeted homosexuals trying to persuade themselves that they’re straight. (George Rekers, I’m looking at you. You too, Pat Robertson.)

So if witch-hunting was more rational than it looks on the surface, why do we so strongly associate it with irrationality? For that, we can thank the major intellectual movement of the 18^th century, the Enlightenment. Enlightenment intellectuals, like Voltaire, Montesquieu, Jean-Jacques Rousseau, Benjamin Franklin, and Thomas Jefferson, saw themselves as helping lead European society out of the darkness of irrationality and superstition into the light of science and rationality. These men emphasized that the Christianity of their day was irrational, superstitious, and anti-intellectual. Emphasizing the irrationality of the witch hunting of the previous two centuries was a perfect way of highlighting how backward the previous centuries had been in comparison to their contemporary drive for science and rationality, the way that American films often flatter the democratic impulses of modern Americans by showing that medieval and early modern society was autocratic.

Well, It Still Couldn’t Happen Today because We’re Too Rational Now

I’ve got three words for you: McMartin Preschool Trial. In 1983, a mother in Manhattan Beach, California reported to police that her daycare-aged son had been anally raped by a staffer at the McMartin Preschool, basing her claim on the fact that her son had been suffering from painful bowel movements. Initially, the police refused to investigate, but she sent out a letter to the 200 other families at the preschool warning them that their children might have been abused as well, and mounting public pressure led to the police questioning several hundred children from the McMartin Preschool.

The McMartin Preschool, where the alleged atrocities supposedly took place

They hired an organization named Children’s Institute International to do the questioning, since the police had not been trained to question such young witnesses. CII employed a range of novel and untested methods,  inviting children to speculate about “what might have happened”, to play pretend, and to use anatomically correct dolls to show what might have been done to them. Children were sometimes told what other children had already said. Children who supported the accusations were praised for “telling the truth”, while those who denied anything had happened were sometimes badgered into changing their testimony.

The resulting testimony was often bizarre. The staffers didn’t just have anal sex with the children, they also had sex with animals, used power drills on the children, flew through the air (sometimes in hot air balloons), maintained a network of secret tunnels, flushed children down the toilet into secret rooms, sacrificed animals in secret rituals at an Episcopal church, forced the children to dig up coffins in cemeteries, and engaged in orgies in car-washes, circuses, and airports. One child reported that movie star Chuck Norris had participated in the abuse. A group of concerned parents began digging at a lot next door to the preschool in an effort to find the tunnels; an archaeological organization eventually got involved in the effort.

Digging for the secret tunnels next to the preschool building

Despite the absurd and logically impossible nature of much of the testimony, and despite the fact that even the prosecutor admitted that the children had “embellished and exaggerated” their stories, six women and one man were charged with 321 counts of child abuse; Virginia McMartin was in her mid-70s at the time. The trial began in 1984 and lasted two years, involving testimony from “experts” who claimed that there was a nation-wide organization of Satanists who conspired to sexually molest children and sacrifice them to Satan; a key piece of their evidence was the supposedly scientific notion of ‘repressed memories’, which has subsequently been largely debunked. Eventually in 1996, a new prosecutor dropped all charges against five of the defendants, admitting that the evidence was “incredibly weak”. Peggy McMartin Buckey and her son Ray Buckey were subject to a new trial that ended in acquittal for Peggy in 1990; Ray was found not guilty on 52 out of 65 charges but two jurors refused to believe he was innocent of 13 charges of child abuse. He was tried again on six of the 13 charges and the result was a hung jury. He spent 5 years in jail during the process. The McMartin trials were the longest and most expensive case in US legal history.

Peggy McMartin Buckey during the trial

Although the McMartin case was the most famous example of fears of daycare child abuse rings, it was not unique. In the later 1980s, there were at least 21 similar trials. Despite a near-total lack of actual evidence, at least 22 daycare employees were convicted, and 3 are still in prison today, although most have had their convictions overturned.

The parallels between the McMartin case and the Salem Witch Trials are fairly clear. The accused were mostly women while the accusers and victims were children. The charges depended on what even at the time was seen as dubious evidence, and involved shocking stories of highly sexualized activities and devil-worship. Charges of flying through the air and engaging in secret meetings to do abominable things were common to both. In both cases, some of the charges seem to be literally impossible without magic.

The fact is that both the Salem Witch Trials and the McMartin Preschool Trials are examples of what scholars call a “moral panic”, a widespread fear among society that something is threatening the moral order, in which shocking charges create intense pressure for authorities to act. In the McMartin case, those who have studied it have sometimes argued that it reflects a deep but unspoken fear that leaving children at a daycare is somehow morally wrong, because rather than working, their mothers ought to be taking care of the children. The charges of intense sexual abuse acted to dramatize the fear without directly expressing it, and created a situation in which the authorities are reluctant to simply ignore the problem. But once authorities began treating the charges seriously, that legitimized the fears and intensified the panic. So the McMartin case may reflect anxieties about working mothers and proper forms of child-rearing. But what about Salem? What was driving the charges there? I’ll start looking at that next time.

Want to Know More?

SALEM SEASON 1is available through Amazon.

I don’t know of any studies that focus specifically on the use of torture in the Salem trials, but many general studies of the Witch Hunts discuss the subject. Robert Thurston’s The Witch Hunts: A History of the Witch Persecutions in Europe and North Americahas section on both the Salem Trials and torture as it was generally used in witch trials. Joseph Klaits’ Servants of Satan: The Age of the Witch Hunts (Midland Book, Mb 422)has a very good chapter on the legal and psychological issues involved with the torture of accused witches.

Finally, Walter Stephens’ Demon Lovers: Witchcraft, Sex, and the Crisis of Beliefmakes a very interesting argument that one of the core texts of witch hunting, the infamous Malleus Maleficarum, has been badly misunderstood and is a reflection of its author’s doubts about the existence of God rather than an irrational credulity in the existence of witches. It’s a bold thesis and I’m not sure that he’s convinced all the scholars, but it certainly influenced my understanding of witch hunting. If you’re interested in witch hunting, or specifically in the Malleus, it’s well worth the read.

Amistad: All the Legal Bits

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19th Century America, American Presidents, Amistad, Anthony Hopkins, Colonial Africa, David Franzoni, Debbie Allen, Djimon Hounsou, John Quincy Adams, Joseph Cinqué, Legal Stuff, Lewis Tappan, Martin Van Buren, Matthew McConaughey, Morgan Freeman, Racial Issues, Roger Sherman Baldwin, Sierra Leone, slavery, Steven Spielberg

In 1839, a Spanish slave ship, La Amistad (“Friendship” in English), was travelling between Havana and Puerto Principe, Cuba, when the slaves in the hold found a file and were able to liberate themselves from their chains. They armed themselves and staged a rebellion. They killed one of the owners of the ship and took the other two, Jose Ruiz and Pedro Montez, prisoner and tried to force them to sail back to Sierra Leone, where the Africans had been taken captive, but instead Ruiz and Montez sailed north, until the ship was intercepted by an American naval vessel off Long Island. That triggered an important legal battle and was ultimately the inspiration for Amistad, (1997, dir. Steven Spielberg).

 

The Legal Issues of the Amistad Case

The arrival of the liberated slaves caused an extremely complex legal problem. Lt. Gedney, who was captaining the ship that found the Amistad, took it to Connecticut rather than New York, because slavery was still technically legal in Connecticut, and that allowed him to present a claim for salvage that included the slaves as part of the cargo. Two other men  also claimed salvage rights over the ship because they had apprehended some of the slaves who came ashore in search of food and water. Ruiz and Montez filed a claim that the ship and the slaves were their rightful property. The Spanish government, acting through the Connecticut district attorney, claimed the ship and its slaves as Spanish property. Finally, the liberated slaves claimed that they were not property at all and that therefore none of these suits had authority over them.

The slaves were supported in their position by the British government, which had by this point taken the lead in opposing slavery, signing treaties with various countries to ban the international slave trade, which the United States did in 1808. As a result, the issues at play in the Amistad case were intimately connected to international law. Since Spain had not outlawed slavery, and since the US had a treaty with Spain (Pinckney’s Treaty) that required the return of Spanish property to its rightful owners, the question was whether the liberated slaves counted as property or people.

Just as important were questions of Admiralty Law (or Maritime Law), which deals with matters relating to maritime commerce, crimes at sea, and the like. The chief issue here was Gedney’s decision to take the Amistad to Connecticut instead of the closest harbor, which was in New York. Gedney’s claims for salvage rights over the liberated slaves would not have been admissible in New York, which was a free state rather than a slave state. So a key question was whether the Amistad had been found in New York waters or international waters.

Fortunately for the slaves, their case was taken up by Lewis Tappan, a Christian abolitionist from New York. He put together the legal team, led by Roger Sherman Baldwin, that represented the slaves, worked to improve their living conditions while they were in captivity, attended the trial on a daily basis and wrote newspaper reports on it for an abolitionist newspaper, and arranged to have the slaves tutored in English. After their release, he worked to raise money to return them to Africa.

Roger Baldwin

The case made its way through three courts. It was initially heard in the Connecticut Circuit Court under Judge Smith Thompson where the charge was mutiny and murder. Thompson ruled that the court lacked jurisdiction because the acts in question had happened outside American waters on a Spanish ship. The case was simultaneously heard in District Court under Judge Andrew Judson (not Juttson, as the film spells it) to address the issues of Admiralty Law. The chief issue here was initially the question of salvage, which Judson was skeptical of, doubting that the liberated slaves could be regarded as property.

Despite the fact that the central issue was whether the case should be heard in New York or Connecticut, Baldwin made the origins of the liberated slaves an important element of the proceedings, even though it was readily conceded by almost everyone that the slaves were Africans and not Cubans. The centerpiece of this was the testimony of Joseph Cinqué, a leader of the liberated slaves, who told the story of his capture in Africa, his journey across the Atlantic, his purchase in the Cuban slave market, and his role in the mutiny. After that, Gedney’s lawyer dropped his claim for salvage rights over the slaves, saying that his client had only ever wanted salvage rights over the ship and its non-living cargo.

Judson ruled that Gedney and his crew had taken possession of the Amistad on the high seas, not in New York waters, and so Admiralty Law was relevant. Gedney was therefore entitled to 1/3 of the appraised value of the ship and its non-human cargo. The slaves, he ruled, were born free and therefore had been unlawfully enslaved in violation of a treaty that prohibited the Spanish from importing slaves, and ordered the Executive Branch to take possession of the liberated slaves until their return to Africa could be arranged.

The Van Buren administration decided to appeal the case to the Circuit Court, because the matter had begun to rile up the southern states and Van Buren was hoping to be re-elected. Rather than hearing lengthy arguments that he realized would result in an appeal regardless of which way he ruled, Judge Thompson affirmed Judson’s ruling and sent the case to the Supreme Court because it involved two major international powers and significant issues of American law.

Martin Van Buren, 8th President of the United States

When the case got to the Supreme Court, the US Attorney General, Henry Gilpin, argued that the Amistad’s records showed the slaves were Spanish property and that therefore the courts had no right to reject the documents’ validity. Therefore, the slaves must be turned over to the Spanish. It was a weak argument, but Gilpin spent two hours making it. Baldwin spent the next four hours repeating the same arguments he had already made; he added that the Spanish had failed to appeal Judson’s liberation of the slaves, and so were arguing the wrong issue.

Former President John Quincy Adams then delivered an 8-hour speech that took up the following two days. The centerpiece of his argument was an attack on the powers of the Executive. He argued that if the President had the power to return the liberated slaves to Havana, the President would also have the power to order American citizens sent to other countries to stand trial. He also argued that Pinckney’s Treaty did not cover the return of people, only property. He also invoked the Declaration of Independence and its statement that all men have an inalienable right to life and liberty.

John Quincy Adams, 6th President of the United States

Justice Joseph Story issued the Court’s ruling, which was that the Africans were unlawfully kidnapped and therefore entitled to their freedom. It rejected Gilpin’s argument that the Court had no right to rule over the legitimacy of the documents in the case, since the documents were elements of a fraud. Gedney was entitled to salvage rights. When the Amistad came into American waters, it was under the possession of the liberated slaves, and was therefore not Spanish property, so no treaty required its return to Spain.

As you can see from this very long summary (assuming you haven’t given up and gone somewhere else by now), the Amistad case was an extremely complex one that ranged across a variety of issues (and let me admit here, I’m certainly no expert on legal history; I relied heavily on a couple of good summaries of the case, and may well have made a few mistakes on the legal details). But the issues being debated in the case were not primarily the legitimacy of slavery as a legal institution in the United States; rather the chief issues were various international treaties, Admiralty Law, and ultimately the power of the Executive branch.

Spielberg’s Version of the Amistad Story

The Amistad case has long been acknowledged by historians as an important case in the history of American slavery. It has not, however, always been well-known to the American public, having been overshadowed in the public consciousness by the later Dred Scott case since the latter case was far more important for domestic law. Debbie Allen, the well-known black actress, director, and producer, learned about the Amistad case from a historical novel by William A. Owens, Slave Mutiny: The Revolt on the Schooner Amistad (1953, republished in 1968 under the title Black Mutiny), which she optioned for a film. She persuaded Steven Spielberg to make what he eventually called his “most important movie”. The subject is certainly worthy of a film, but it unfortunately didn’t get the film treatment it deserved.

Slave Mutiny, the book that inspired the film

The chief problem with adapting the Amistad case to film is obviously that American audiences were unlikely to go to a movie about the legal complexities of international treaties and Admiralty Law. So, in typical Hollywood fashion, a decision was taken to focus instead on an uplifting story of American freedom that would affirm viewers’ notions that America was a country of liberty and equality where the court system was ultimately opposed to slavery. Getting the Amistad case to speak to those ideas would require considerable torture of the facts.

Since law was so critically important to the case, Spielberg and screenwriter David Franzoni (one of the screenwriters on Gladiator) decided to fall back on cinematic conventions of trial movies, so they made the film into a story about the lawyer, Roger Baldwin (Matthew McConaughey) , and his client, Joseph Cinqué (whose African name was Sangbe Pieh, played by Djimon Hounsou). These characters were given strong story arcs that focus in Baldwin’s case on his journey from thinking about the slaves as property to thinking about the slaves as human beings and in Cinqué’s case on his journey from anger and despair to discovering the beauty and promise of American justice.

McConaughey as Baldwin and Hounsou as Cinqué

John Quincy Adams (Anthony Hopkins) undergoes a less central but still important arc in which he moves from not caring about abolitionism to being a passionate proponent of it, thanks to his meetings with Cinqué. In fact, it wasn’t necessary for him to be persuaded to take the case; Adams volunteered to represent the Africans.

This is an uplifting story that has little basis in fact. Far from being a poor struggling lawyer who has to chase after the case as the film seems to present him, Roger Sherman Baldwin was the grandson of one of the Founding Fathers and a highly respected lawyer who was also a member of the Connecticut legislature and a committed abolitionist. He was elected Governor of Connecticut just three years after the Amistad case. Nor did Baldwin approach Lewis Tappan about hiring him as a lawyer; Tappan recruited Baldwin because of his solid credentials as an abolitionist and the fact that prominent politician of Connecticut.

I’ll talk about the film’s treatment of Cinqué in a later post, because there’s a lot to say about it, but here I’ll just say that there’s no evidence that Cinqué went through a period of angry refusal to co-operate with Baldwin. That element of the story is entirely Hollywood’s trope of the hero who goes through a period of self-doubt before finding his confidence. That part of his story line meshes rather poorly with the film’s treatment of him as a ‘Magical Negro’ who helps white people become better human beings by being inspiring.

To give Baldwin his fictitious character arc, the film had to largely sideline Lewis Tappan, who in reality was central to the entire effort on behalf of the slaves. After having a couple meetings with Baldwin and the fictitious black abolitionist Theodore Joadson (Morgan Freeman), Tappan essentially vanishes from the film, apart from watching some of the courtroom proceedings. Replacing Tappan, who was in many ways the driving force for the case, with the fictitious Joadson is a serious disservice to Tappan.

The Joadson character is a particular problem. Joadson has neither back story (other than a few hints that he was a former slave) and no motive for being an abolitionist apart from the presumed motive that a black man would obviously care about the legal rights of blacks. Freeman is given no real character development and, apart from one scene where he helps Baldwin search the Amistad for evidence, has very little to actually do except occasionally talk to Adams. The character seems to have been added to increase black audience interest, since in 1997, Freeman was already a solidly established actor while Hounsou, playing the other major black character, was a relative unknown at the time. It’s unfortunate that a film that purports to be about the humanity of blacks resorted to this sort of tokenism in casting Freeman as a made-up person.

Freeman as Joadson

The Legal Elements

Despite the character arcs that Franzoni made up, the film is still at its heart a courtroom drama. But the case was far too complex, and turned on legal issues that were unlikely to captivate American audiences, so the legal details required considerable massaging. As I noted, the main legal issues in the actual case were the question of where the Amistad was taken by Gedney and whether various treaties applied. The film shifts the issue considerably, to the question of whether the slaves were African or Cuban in origin.

That choice is not an unreasonable one. It focuses the audience’s attention on the easy-to-understand issue of whether the liberated slaves were legally or illegally enslaved, and allows the central issue of the film to be the well-loved issue of ‘freedom’, in this case understood as literal freedom from slavery. It allowed Spielberg to use chains as a recurring symbol of the issue weighing on Cinqué, so that after the Supreme Court decision, Cinqué’s handcuffs can be removed right there in the courtroom as a symbol of his triumph, despite being entirely invented since Cinqué was not present at the Supreme Court portion of the case. This choice also allows the film to get away from the much thornier issue of where Gedney found the ship.

But this choice does distort the case considerably. There seems to have been relatively little real debate in the courtroom over whether the slaves came from Africa or Cuba, despite Baldwin’s emphasis on this issue in the trial. Ruiz and Montez said they were Cuban slaves, but witnesses were presented that Ruiz had admitted they were African. A Yale linguist testified that the slaves spoke Mende, and two interpreters were found so that the slaves could provide their own testimony. (The film actually gets almost right the way the translators were found. The linguist learned to count to ten in Mende and then walked around the docks counting loudly until someone recognized what he was doing and approached him. But it wasn’t Joadson and Baldwin who did that.) But Cinqué actually did tell his harrowing story of enslavement in court, so the film is not just shoehorning that in for drama.

More problematically, if the main issue is where the slaves came from, it means that by Hollywood convention, there needs to be a stock scene in which the lawyer personally searches for evidence to prove his case. We’ve seen a scene like this in just about every courtroom drama ever filmed, and in this case it takes the form of Baldwin and Joadson searching the Amistad. Joadson finds a lion’s tooth, which allows the film to introduce what is supposed to be an inspirational story about how Cinqué killed a lion in Africa. The film later keeps returning to the metaphor of ‘slaying the lion’ (slavery, in case you needed to be hit over the head with it, which the film thinks you do) as a way to show how inspiring Cinqué is, but it all feels very contrived and it is entirely made-up.

On-board the Amistad, Joadson panics when confronted with the sight of slave chains, drops his lantern, and has to be helped by Baldwin, who then conveniently discovers the log-book of the Tecora, the slave ship that brought the Africans to Cuba. It’s used to prove that the liberated slaves were actually Africans, although it’s never explained why the Tecora’s log-book was on the Amistad in the first place.

The film also significantly changes the details of the courts and the judges involved. As I noted, the case was first brought into the Circuit Court under Judge Thompson, but was heard simultaneously in the District Court by Judge Judson as a bench trial (in which there is no jury, only a judge making a ruling). After Judson’s ruling, it briefly returned to Thompson and then was sent to the Supreme Court after Van Buren ordered an appeal.

In the film the case starts under Judge Judson, apparently in the District Court. But Van Buren (Nigel Hawthorne) somehow contrives to have the jury and the judge dismissed and replaced by a bench trial in front of a young ambitious judge who will do what Van Buren wants, which is to find against the Africans so he can be re-elected. But Cinqué’s cause is so obviously righteous that the judge has a crisis of conscience and does the right thing and frees the Africans. He also rules against Gedney. Then the case gets appealed straight to the Supreme Court.

The removal of the Circuit Court from the storyline makes sense; it smoothes out a complex detail that would only confuse the viewers. But the fabrication of Van Buren manipulating the court system is both unfair to Van Buren and rather nonsensical. It’s not explained how Van Buren does this, and since the film has decided to remove Adams’ attack on the power of the Presidency, it doesn’t really go anywhere in terms of the narrative arc. All it does is introduce some extra tension that could more easily have been introduced by making Judson less sympathetic to the case. It also turns Van Buren into a villain for the film, but he’s a villain who is given very little to do other than fret about the how the South will react to the case. From a script perspective, it just feels clumsy.

As they prepare for the Supreme Court trial, Cinqué suddenly develops a keen legal mind, pestering Adams with legal questions about Admiralty Law and international treaties. This is just silly, because throughout the rest of the film, Cinqué’s understanding of the American system is limited to referring to Adams as a ‘chief’ and not understanding how he can be a former chief.

At the Supreme Court level, Adams delivers a fairly brief speech (compared to the actual 8 hour oration) that acts as the film’s climax. Instead of arguing against the powers of the Executive branch, he makes an impassioned plea for liberty that, apart from a mention of the Declaration of Independence, bears no resemblance to Adams’ actual speech because it mostly turns on what a hero Cinqué is. He declares liberty to be the natural state of mankind. The film also tries to heighten the tension by claiming that 7 out of the 9 Supreme Court justices were southerners; that’s false; while I didn’t look up all the justices in 1841, at least four of them were northerners. (On a side note, the film does have a nifty piece of casting here; Justice Story is played by actual Supreme Court justice Harry Blackmun.)

(Ignore the opening and jump to about 1:45)

As a result of these changes, the audience is led to think that the Amistad case basically put the whole system of American slavery on trial, and it essentially provoked the American Civil War two decades later. In fact the closing scenes of the film show the Civil War and the epilogue text mentions it. In reality, the case was about international law and the international slave trade and while its outcome certainly didn’t please supporters of slavery, it had no direct impact on American slavery. In fact, in 1841, American slaves traveling on the Creole mutinied and escaped to the Bahamas; the American government, despite the Amistad precedent, badgered the British government into paying compensation for the slaves. So rather than being sympathetic to the abolitionist cause, the American courts were generally hostile to it.

Why is the Amistad Case Important?

The film situates the Amistad case as a cause of the Civil War. Several characters mention how the southern states are ready to fight over the issue. That’s a considerable exaggeration. The Civil War wouldn’t come for another twenty years. It played a role in raising tensions over slavery, but the states were a long way from being willing to fight militarily over the issue.

Nor did the case lead to the political defeat of Martin Van Buren in his bid for a second term as president as the film says. The case started in 1839, but it didn’t reach the Supreme Court until 1841, by which time Van Buren had already been defeated by William Henry Harrison. Harrison died less than two months into his term, and was succeeded by his vice president, John Tyler, a pro-slavery southerner who refused to assist in returning the Africans to Sierra Leone.

Nor did it lead to the destruction of the Lomboko Slave Fortress in Sierra Leone. The film shows the British navy liberating the slaves and blowing down the walls of the fortress with a naval bombardment. But the Lomboko fortress was destroyed in 1840, before the Supreme Court had rendered its verdict. It’s hard to see how the case would have influenced the British to do this, since the British were already very active in opposing the slave trade.

So if the Amistad case didn’t accomplish any of the things the film attributes to it, why is the case important? What does it matter in the larger scope of history?

The Amistad case was a turning point in the abolitionist movement. Prior to 1839, abolitionists had sought to overthrow the American slave system primarily through persuasion. They had emphasized the immorality of slavery and sought to win converts to their cause that way. The House of Representatives had imposed a gag rule that automatically tabled all petitions against slavery, so that it was impossible for the issue to be addressed legislatively. What Tappan did in 1839 was open a new front in the struggle; he went to the courts and began to fight slavery legally. In that regard, the Amistad case was a significant victory for the abolitionists, even though it did not set a very strong legal precedent as far as domestic law was concerned. The case also helped rally support for abolitionism because Cinqué’s testimony dramatically illustrated the horrors of the Atlantic slave trade, and Van Buren’s efforts to get the Judson’s ruling overturned seemed to suggest that the Federal government was complicit in the slave system. The case is also important in the history of international law and American diplomacy; it resolved questions about the treaties the US had with Spain.

About the only thing the film gets right about the impact of the case is that it ultimately led to the return of the Africans to Sierra Leone, but that gets to issues of how the film depicts the liberated slaves, and that’s something I’ll save for next time.

Want to Know More?

Amistadis available in different formats on Amazon. As I noted, it’s based on William Owens’ Slave Mutiny, later reprinted as Black Mutiny: Revolt on the Schooner Amistad.

Unless you’re a legal scholar, I suspect that the legal issues are going to make dry reading, but Amistad: The Federal Courts and the Challenge to Slaveryis a short, cheap Kindle book that surveys the whole case and all the people involved.

The Vikings: The Problem with Earl Haraldson

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Earl Haraldson, Gabriel Byrne, History Channel, Legal Stuff, Medieval Europe, Medieval Scandinavia, Norse Law, The Vikings

In my previous post on the History Channel’s The Vikings, I discussed the main characters of Ragnar Lothbrok, Lagertha, and Rollo, who are sort of a mishmash of historical and legendary characters. This post is going to focus on the last remaining major character, Gabriel Byrne’s Earl Haraldson, who is the main villain of the first season. For some reason he doesn’t seem to have a given name, being known only by his patronymic, which is pretty unlikely. Most of the important figures from this period are known by a given name and then a patronym (‘Haraldson’), loconym (based on a place—‘of Møre’, for example) or a nickname (‘Hairypants’, which is what ‘Lothbrok’ means). So this character should probably be something like Jarl Eirik Haraldson, and generally referred to as Jarl Eirik, instead of Earl Haraldson. Last names in the modern sense don’t exist in this period, and actually are a very recent development in Scandinavia. Iceland still employs a system of patronyms to this day.

Earl Haraldson is presented as being a stock oppressive ruler. In the pilot, he oversees the local community, has the power to make boys adults by giving them their arm-ring, presides over the local court system, and controls where all the raids happen. This last point is explicitly connected to his ownership of the boats used, but he also seems to have some sort of exclusive right either to own boats or control how they are used, because Floki has to build his boat in secret. In the second episode, he executes a smith for the crime of making an anchor for Ragnar. In the third episode, he apparently has the right to know where Ragnar is, and when Ragnar isn’t around, has the authority to take a hostage as surety that Ragnar will return. When Ragnar returns with riches plundered from a monastery, the earl simply declares all the plunder his property, over Ragnar’s objections and declares the boat his as well. In other words, the earl is a totalitarian ruler whose authority cannot be openly disputed.

In the context of late 8^th century Scandinavia, this makes little sense. Norse society in this period operated on a much more egalitarian footing than other parts of Europe. Norse society was managed by popular assemblies termed things. Things had multiple functions; they were local markets, places to make business deals and marriage alliances, and simple legislatures. They had no executive officers, however, because Norse society had no clear notion of government as a public institution. Instead, enforcement of any of its decisions fell to those who would benefit from those decisions.

Jarls were local strong-men, men who controlled enough resources to have substantial influence. These resources might take the form of good farmland, wealth, boats, respect for fighting prowess, noble lineage, a priesthood, and so on. But they did not automatically convey the right to rule. Political authority required the general acceptance of the community, and that was achieved through a combination of generosity, wisdom, success in battle, intimidation, and good will. A jarl who governed as abusively as Earl Haraldson does would quickly find himself without any political support.

Byrne as Haraldson

Military support required significant bonds of loyalty between the leader, jarl or otherwise, and his men. The basic deal was that the leader of the warband would lead his men to victory in battle and they would fight to the death for him. After the battle was over, the leader took the plunder and then shared it out among his men, enriching them while also enriching himself. He was also expected to support his men in peacetime, usually by sheltering and feeding them.

But in the series, Haraldson does the exact opposite. He sends men out to raid in the Baltic, but apparently doesn’t go himself, so he was failing to take the military risks his men were taking, something that would probably have undermined his authority in a substantial way. When Ragnar returns from his first successful raid, the earl confiscates not only the majority of the plunder but also Ragnar’s ship. Yes, he does allow each man to take one item, but the whole emphasis in the scene is on the earl’s grasping, tyrannical nature. So rather than enriching his men he is stealing their property.

Haraldson takes the rest of the treasure and buries it in the ground, saying that Odin will allow him to take this treasure into the afterlife. This completely misunderstands the fact that many Norse treasure hoards were buried at some point. The Norse buried bodies with grave goods, sometimes quite lavish ones, which strongly suggests, although not conclusively, that the dead were expected to enjoy those goods in the afterlife. But there’s no indication that the Norse believed in some sort of “afterlife safety deposit system”, in which goods could be buried before death. Rather, burial of treasure was a means of keeping it safe during times of turbulence, with the intention of digging it up when things had settled down. So the earl’s burial of the confiscated plunder is just absurd. In the ground, it’s no use to anyone.

Haraldson also apparently puts his men through a rather perverse loyalty test. In the second episode, he tells one of his men that he can sleep with Siggy, the earl’s wife, if he wants to. The man goes into the earl’s bedroom, and Siggy invites him into the bed, but then attacks him. Haraldson walks in with guards and orders the man taken out and killed. Aparently, the earl is checking to see which men want to get busy with his wife, so he can kill them and prevent her from committing adultery. But the damage this would do to his reputation and the loyalty of his men would be enormous.

Sure, we can justify a lot of this by saying that the earl is a bad ruler; Norse literature has its share of abusive or stupid rulers. But almost no one other than Ragnar ever seems to challenge the earl’s right to do what he does, even when the earl and his men are not present. Everyone seems to assume that the earl has the right to do these things, when in fact he doesn’t. In the fourth episode, the earl asserts that Ragnar owes him loyalty simply because he is the jarl, which is false. Ragnar owes him loyalty only if he has sworn oaths of loyalty which Haraldson has justified with gifts of wealth and political support.

To get around this, the series invents a custom that the jarl performs an adulthood ceremony for 12 year old boys, giving them an arm-ring for which they must swear loyalty. This arm-ring is considered sacred and oaths sworn on it must not be broken. This is all sheer nonsense. Jarls and other leaders did give out arm-rings as a sign of favor or as reward for support, but they weren’t sacred objects or signifiers of adulthood.

What’s really going on here is that the series is resorting to the modern assumption that rule by nobility and kings must be abusive, because it’s not democratic. Hollywood has a long tradition of pandering to American political ideals by treating any other political system as inherently bad. What’s particularly frustrating about this is that the Norse were actually much closer to traditional American notions of the independence and the moral rights of the individual than most other medieval cultures.

Haraldsson’s chief skill is sitting menacingly

The Lack of a State

Another major problem with this series’ depiction of Norse government is that it assumes that Norse society, like modern America, has a notion of the state as formal institution with its own recognized coercive authority. The place where this comes through most clearly is in the trial scene in the pilot. In the scene, the earl conducts a court in a manner similar to a judge. There is an accusation that a man has killed another man in a quarrel over land. The man claims that he admitted the killing, so that it was not murder, but Haraldson points out that the man walked past two houses where he did not announce the murder, and thus must have intended to keep it secret, since the law specifies that a killer may pass the first house without announcing a killing if the victim’s relatives live there. Then Haraldson asks the community to vote on the man’s guilt, and says that the verdict must be unanimous. When the community condemns the man, Haraldson orders the man executed.

There’s so much wrong here it almost deserves its own separate post. The series has presented Norse law as operating as a primitive version of American or British law, with the earl acting as both the judge and the prosecutor, the community acting as the jury, and Haraldson’s men acting as the police force and executioners. This presumes that the earl has some sort of formal right to act as a judge and enforce the law.

But Norse society operated on a completely different model. Norse law was understood to be the possession of each individual, and thus was something that the individual enforced for himself. Crime was understood in terms of injury to a specific victim and that person’s kinsmen; if there is no injury, there is no crime (this is another reason that Haraldson’s confiscation of the boat is wrong—Ragnar has not injured the earl in any way). If a man injures someone, either physically or through taking of property, the victim acquires the right to avenge the injury by inflicting reciprocal damage to the perpetrator. If the perpetrator has taken the man’s cow, he is allowed to take goods of equal value from the perpetrator; if the man has caused physical injury, the victim and his relatives are allowed to inflict a reciprocal injury on the perpetrator or his relatives.

In this system, there is no judge, because the victim and his kinsmen have the right to act as the judge of their own injury. This means that the system treats every injury as a new injury, even if it was inflicted as a punishment for a previous injury, because each kin group thinks in terms of its own injury. So if Hrolf injures Svein, Svein and his brothers will attack Hrolf and injure or perhaps kill him. But that gives Svein’s relatives the right to kill Hrolf or his relatives, which gives Hrolf’s relatives the right to retaliate. This could be extremely disruptive to the community, but it was understood as legally and morally right. When Haraldson claims that secret killings lead to revenge feuds, he’s wrong; open killings lead to revenge feuds, and that’s seen as appropriate, because that’s how the law works. Secret killings were a problem precisely because no one knew who to take vengeance on. So when the dead man’s wife realizes he’s been killed, she doesn’t go to earl Haraldson; she goes to her husband’s family and rallies them (and perhaps her own birth family) to go after the killer.

Obviously, feuding could be a serious problem, so Norse law recognized an alternative. Each person in this society had a recognized cash value that was a reflection of their social status and function in the community. When an injury or killing occurred, the perpetrator could offer to buy off the victim’s right of vengeance by paying either a fraction of the victim’s value (for an injury) or the whole value (for a killing) to the victim or his relatives. If the victim accepts the payment, he is agreeing to forego his right of violent vengeance.

So the thing that deters violence in Norse society is the threat of reciprocal violence from the victim and his kinsmen. Once violence has happened, the community would either begin taking sides or start pressuring the two sides to reach a peaceful agreement about how much financial compensation should be paid. The jarl’s role in this, to the extent that he had one, would be to either support one side in the violence or help negotiate peaceful compensation (and then engage in violence against whichever side broke the agreement later on). He doesn’t maintain a police force because there’s no need; the thing that stops crime is fear of retaliation. He doesn’t act as judge because he has no formal right to get involved unless one party or the other seeks his support. There’s no trial, because none is necessary. There’s no jury here, because each man has the right to enforce the law for himself and his kin. In fact, there’s virtually no notion of the state as a formal institution at all.

A key element of this system was family solidarity. Men were unlikely to achieve vengeance if they did not have strong kinsmen and family alliances to support them. There was a powerful cultural pressure on men to stand in solidarity with their kinsmen, and men without relatives were in a very vulnerable position. This is why the tension between Ragnar and Rollo, and Rollo’s desire for Lagertha is such an issue. The two men ought to support each other to the death. When the earl tries to bribe Rollo to betray Ragnar, this is the sort of thing a Norse saga might have explored, so on this point, the series is capturing something of the spirit of Norse literature, although it’s getting the legal details wildly wrong.

Another example of the series getting Norse law wrong comes in the fourth episode, when Ragnar is accused of killing Haraldson’s half-brother Knut. Ragnar acknowledges the killing but insists that it was justified because he caught Knut trying to rape Ragnar’s wife. In other words, Ragnar shouldn’t be considered guilty, because it was justifiable homicide. But Norse law doesn’t have the same sort of notion of guilty or innocence that modern American law does. In Norse law, intention and motive is entirely irrelevant. It does not matter if Ragnar had a good reason for killing Knut, or if it was done in self-defense. All the matters is that Ragnar acknowledges the killing. Having killed Knut, he and his family are now legitimately the targets of Haraldsson’s vengeance. The earl doesn’t need the sanction of the court to kill Ragnar.

Haraldson confronting Ragnar about Knut’s death

What we’re seeing here is the series just making up whatever nonsense it wants to in order to advance its plot. Instead of trying to show the audience how a very different legal system operated, it just imposes modern American notions of justice back on Norse society, picking and choosing whatever historical bits sound interesting and ignoring the rest. That detail from the pilot about a killer being allowed to walk past one house without announcing his killing is an authentic element of Norse law, so the scriptwriters clearly know something about Norse law, which means they’re making conscious choices to misrepresent the Norse legal system.

And the sad thing is that it would have been easy enough to get the law right and still serve the series’ goals. The writers could have worked Ragnar’s killing of Knut into this plot in a very Norse way. Here’s all they had to do: the earl stews on Knut’s death for a while, and then launches the attack on Ragnar’s farmstead in episode 5, not to punish Ragnar because he’s a criminal, but to avenge his dead brother. This would have made Haraldson a more nuanced character and allowed Gabriel Byrne to demonstrate that he can do more than glower. American television has for some time recognized that audiences are interested in more complex villains, bad guys that the viewer can have a little sympathy for while still rooting for the hero to win. But for some reason, the Vikings hasn’t recognized this.

Want to Know More?

Vikings Season 1 is available on Amazon.

To understand what’s so wrong with Earl Haraldsson, you’ll need to do some reading about the political arrangements of Norse society. P.H. Sawyer’s Kings and Vikings: Scandinavia and Europe AD 700-1100 is, as the title suggests, partly concerned with political systems of the period. Another good option is Birgit and Peter Sawyer’s Medieval Scandinavia: From Conversion to Reformation, circa 800-1500 (The Nordic Series), although it runs down to the 15th century, long after the Viking period ended.