often happened that the influence of his kindred, or the favour of the
Goði of the place, or some technical error in bringing the suit for
compensation, prevented justice from being done. Accordingly the need
for some remedy, for some further political, or rather judicial,
organization of the island began to be generally felt, for however fond
men may be of killing one another, the Norsemen were always also fond of
money, and would often prefer a blood-fine to the satisfaction of
killing their enemy, could the blood-fine be secured. Thus it came to
pass that, about fifty years after the first colonization, a chief named
Úlfljót, venerable from his age and abilities, came forward to propose a
scheme. He urged the creation of one general Þing for the whole country,
where all matters of common interest might be discussed, and all suits
which could not be dispatched, or had not been fairly dealt with in the
local Þings, might be decided. Travelling round the island, he brought
over to his views the most influential Goðis and other leading men; and
at their request, sailed to Norway to inquire into the laws prevailing
there, and to draw up regulations for this new general Þing; somewhat as
envoys were, according to the Roman story, sent from Rome to the Greek
cities to bring back materials and suggestions for the legislation of
the Decemvirs. At the same time Úlfljót’s foster-brother, Grím Geitskór
(‘Goat’s Shoe’), the fleetest man and nimblest rock-climber in Iceland,
was commissioned to traverse the island in search of a place suitable
for the meeting of the proposed assembly. After long wanderings, Goat’s
Shoe hit upon a spot to which the name of Þing Vellir[125], ‘the plains
of the Þing,’ has ever since belonged, in the south-west of the island,
about eight hours’ riding from where Reykjavík the present capital now
stands, and within the district of the first temple that had been
founded by Ingolf, the earliest Norwegian settler. This circumstance
gave the place a sort of sacredness. There was plenty of water and
pasture, and the lake which washed the plain of meeting abounded (as it
does to this day) with trout and wild fowl. (It abounds also with most
pernicious small black flies, whereon the trout grow fat, but which make
fishing not always a pleasure.) Here, accordingly, Úlfljót having in the
meantime returned from Norway with his materials for legislation, the
first Alþing, or General Assembly of all Iceland, met in A.D. 930, and
here it continued to meet, year after year, for a fortnight in the
latter half of June, till the year 1800[126], one of the oldest national
assemblies in the civilized world, and one of the very few which did
not, like the English Parliament and the Diet of the Romano-Germanic
Empire, grow up imperceptibly and, so to speak, naturally, from small
beginnings, but was formally and of set purpose established, by what
would have been called, had paper existed, a paper constitution, that is
to say by the deliberate agreement of independent groups of men, seeking
to attain the common ends of order and justice.
-----
Footnote 125:
Thing Vellir is the nominative plural, Thing Valla—the form in which
the word has become more familiar to Englishmen, and which remains in
Thingwall (near Liverpool), Tynwald (in the Isle of Man), and Dingwall
(in Rosshire)—is the genitive plural.
Footnote 126:
Since this lecture was delivered the Alþing which since 1843 had led a
feeble life at Reykjavík as a sort of advisory council, has been
re-established as a representative governing assembly under a new
constitution granted to Iceland in 1874. It now meets every second
year at Reykjavík.
-----
There was thus created, before the middle of the tenth century, when
Athelstan the Victorious[127] was reigning in England and defeating
Scots and Northumbrians at Brunanburh by the help of the Icelandic
warriors Thorolf and Egil, sons of Skallagrim[128], when the Saxon king
Henry the Fowler was repelling the Magyar hosts and laying the
foundations of the German Kingdom, and when the power of the last
Carolingians was beginning to pale in Gaul before the rising star of the
Capetian line, a sort of republic embracing the whole isle of Iceland, a
republic remarkable not only from its peculiar political structure, but
also, as will presently appear, from the extremely limited range of its
governmental activity. About thirty years later its constitution was
amended in some important points, and forty years after that time, about
the year 1004, further alterations were made, the details of which are
too much disputed as well as too intricate to be explained here. Its
general outline, in its completed shape, was the following. The total
number of regular Þings, and priest-chieftaincies or Goðorðs, was fixed
at thirty-nine, nine for each of the four Quarters into which the island
was divided, except the North Quarter, which, in order to allay certain
local susceptibilities, was allowed twelve. Each of these thirty-nine
local Þings was presided over by its Goði. Then, for certain purposes,
three of these Þings were united to form a larger Þing-district
(Þingsokn), of which there were therefore thirteen in all, viz. four for
the North Quarter, and three for each of the other Quarters. There was
also one still larger Þing for each Quarter, called the Fjórðungsþing.
It seems to have grown up before the institution of the Alþing, and to
have represented the first stage in the organization of a larger
community out of the small local Þings. But it tended in course of time
to lose its importance.
-----
Footnote 127:
The Saga of Egil calls him Aðalsteinn hinn Sigrsæli (_lit._ ‘blessed
with victory’). It is curious that this title should have been
preserved in Iceland and apparently have been forgotten in England.
Footnote 128:
See _Egils Saga Skallagrimssonar_, chap. 54.
-----
Ordinary lawsuits and questions of local interest were determined in
these minor Þings, while graver suits, or those in which the parties
belonged to different Þings, or where it was sought to reverse the
decision of a local Þing, as well as all proposals for alterations of
the general law, were brought before the Alþing, at its annual meeting
in June. It seems to have been therefore partly a court of first
instance and partly a court of appeal. Now the Alþing was open, like
other primary Teutonic and Hellenic assemblies, to all freemen who chose
to attend; but its powers were practically exercised by a limited number
of persons, viz. the Goðis and certain members nominated by them.
For judicial purposes, the Alþing acted through four Courts, one for
each Quarter. Each Quarter Court (fjorðungsdómr) consisted, according to
one view, of thirty-six members, viz. the Goðis of the Quarter with
twenty-four nominees, and, according to another view, of nine persons
nominated by the Goðis of the Quarter. There was also a fifth Court
(called the fimtardómr), instituted later than the others (A.D. 1004),
on the suggestion of the famous jurist Njál, son of Thorgeir. This
Court, which exercised jurisdiction in cases where one of the other
Courts had failed, was composed in a somewhat different way, acted under
a more stringent oath, and gave its decisions by a majority, whereas in
other Courts unanimity was required. It seems to have been intended not
only to avert armed strife by providing a better method for settling
disputes, but also to organize the country as a whole and give it
something approaching to a central authority. This result, however, was
not attained, the social and physical obstacles proving insuperable.
In these judicial committees of the Alþing lawsuits were brought and
argued with an elaborate formality and a minute adherence to technical
rules far more strict than is now practised anywhere in Europe, a fact
which will appear the more extraordinary when we remember that in those
days both the law and all the appropriate forms of words which the
parties were obliged to employ were not written, but preserved solely by
the memory of individual men.
For legislative purposes the Alþing acted through another committee of
144 persons, only one-third (forty-eight) of whom, being the thirty-nine
Goðis and nine nominees, had the right of voting. The nine nominees were
persons chosen by the Goðis of the East, South, and West Quarters, three
by each Quarter, in order to give each of these Quarters the same
strength in the Committee as the North Quarter had with its twelve
Goðis. Each of the forty-eight appointed two assessors who advised him,
sitting one behind him and the other in front of him, so that he could
readily seek their counsel, and thus the 144 were made up, the
forty-eight being described as the Middle Bench. This Committee was
called the Lögrétta (_lit._ ‘Law Amending’), and by it all changes in
the law were made, and all matters of common interest discussed. It was
essentially an aristocratic body, as indeed the whole Constitution bore
an aristocratic colour, though there was no such thing as a formal
distinction of rank[129], much less any titled nobility. After the
introduction of Christianity in A.D. 1000, the two bishops were added to
the Lögrétta, while at the head of all, making up the number of members
to 147, stood an elected officer, called the Speaker of the Law.
-----
Footnote 129:
Although the penalty for killing a man of high lineage was heavier
than that for an ordinary freeman; and one perceives from the Sagas
how carefully genealogies were preserved and what great respect was
paid to long descent.
-----
This last-named personage, the solitary official of the republic, is one
of the most curious parts of the system. He was called the Lögsögumaðr,
literally ‘Law-say-man,’ or, as we may render it, Speaker, or Declarer,
of the Law, and was the depositary and organ of the unwritten common law
of the country. It was his duty to recite aloud, in the hearing of the
greater number of those present at the Þing, the whole law of Iceland,
going through it in the three years during which he held office; and to
recite once in every year the formulas of actions, this being the part
of the law which was of most practical importance. Besides this, he
presided in the Lögrétta, giving a casting vote where the votes were
equal; and he was bound to answer every one who asked him what the
provisions of the law actually were, although not required to advise
applicants as to the course they ought to follow in a given case. When
in any suit a question of what was the legal rule arose, reference was
made to him, and his decision was accepted as final. For these labours
he received a yearly salary of two hundred ells of Vaðmál (the blue
woollen cloth which then served as currency, and which continued to do
so, for some purposes, down to our own time), besides one-half of the
fines imposed at the Alþing. He was of course selected from the most
accomplished lawyers of the time. His declarations of the law were
conclusive, at least during his three years’ term of office, in all
causes and over all persons. Thus he exercised a kind of quasi-judicial
or quasi-legislative power, and has been fancifully compared to the
Roman Praetor, also an officer elected for a term, also by his edicts
the declarer of the law he had to administer[130]. But the Law-Speaker
was in reality neither judge nor magistrate, nor, indeed, a legislator,
except in so far as the right to enounce and interpret borders on
legislation. He delivered no judgements, he had no power of enforcing a
decision or of punishing an offender. He did not even open the Alþing
and take the responsibility for keeping order at it, for these functions
belonged to the Goði of the district, called, because the Alþing met
within his jurisdiction, the Allsherjargoði (priest of the whole host).
The Lögsögumaðr was in fact nothing but the living voice of the law,
enunciating those customary rules which had come down from the foretime,
rules which all accepted, though they were not preserved in any written
form, and though they must have been practically unknown to the great
majority of the citizens.
-----
Footnote 130:
_Viva vox iuris civilis_ was the description which the Romans used to
give of their Praetor, as to whom see Essay XIV, vol. ii. p. 274.
-----
The office, although more important in Iceland from the absence of a
king or local prince, was one of which we find traces among other
Scandinavian peoples, or at least among the Norsemen. It appears in
Norway, in the Orkneys, and in the Hebrides (though there the name is
Lögman, which in Iceland means merely one learned in the law).
Thingvellir, where the Alþing met from the year 930 down to a time
within the memory of living men, is a spot not less remarkable
physically than memorable for the stirring events of which it was the
witness. It is a slightly undulating plain, some five miles long by
three wide, washed on the south by a broad island-studded lake, and
girdled in at its northern end by lofty mountains, their black volcanic
rocks streaked here and there with snow-beds. The surface is all of
lava, sometimes bare and rugged, sometimes covered with thin brushwood,
dwarf birches and willows, sometimes smoothing itself out into sweeps of
emerald pasture, but everywhere intersected by profound chasms, formed
when the whole was a molten mass. East and west it is hemmed in by two
lines of precipices, whose rugged sides seem to show that the plain
between them has, at some remote period, perhaps when the lava-flood was
cooling, sunk suddenly down, leaving these walls to be the edges of the
plateau which stretches away backwards to the east and west. Under the
western of these two walls, on the margin of the lake, just where it
receives the stream which has flung itself in a sparkling cascade over
the precipice, the place of meeting was fixed. The chieftains, who came
from every corner of the island with a following of armed companions and
dependents, because broils were frequent, and armed strife might
interrupt the progress of a lawsuit, built their booths—erections of
stone and turf roofed for the time with cloth or canvas—along the banks
of the Öxará river, and turned out their horses to pasture by the lake.
Places were appointed for the holding of the several courts, while the
Lögrétta or legislative committee sat on a spot which nature seemed to
have herself designed for the purpose. Two of the extraordinary chasms
by which the plain is seamed, each some eighty feet deep, and filled for
the lower fifty feet by bright green water, enclose a narrow strip of
lava some two hundred yards long, cutting it off, except at one point
where there is a narrow entrance which three men might hold, from the
surrounding land. The surface is nearly level, covered by short grass
now browsed by a few sheep; and there is nothing to tell that in this
space, in the full sight of the assembled multitude, the heroes of
ancient Iceland spoke and voted their laws, and gave their verdicts;
while from an eminence in the midst of the enclosure, still called the
Lögberg, or Hill of Laws, the Law-Speaker recited the law of the nation
in the sight and hearing of the multitude that stood on the further side
of the chasms[131]. Not only so: there is all round nothing whatever to
show that the place has ever been different from what it is now. Between
the Lögberg and the lake stands the little wooden church and its humble
parsonage. No other house is near, nor any sign of human life. Only the
islet is still pointed out in the river where the solemn duels which the
laws of Iceland recognized were fought, and the deep green swirling pool
into which women condemned for witchcraft were hurled from the brink of
the precipice. In most of the spots to which the traveller is drawn, by
memories of constitutional freedom or of political struggles, his
imagination is aided by the remains of the buildings where assemblies
met or monarchs sat enthroned. Here man has left nothing to speak of his
presence, and it is hard to realize, when one looks on this silent and
desolate scene, that it was once filled by so much strenuous life, and
so often resounded to the clash of arms.
-----
Footnote 131:
Since this was written, some eminent antiquaries, including my
lamented friend Dr. Guðbrand Vigfússon, have argued that the true
Lögberg is to be sought not in this spot which tradition indicates,
but on the edge of the great lava rift called the Almannagjá to the
west of the river. See _The Saga Steads of Iceland_, by W. G.
Collingwood and Jón Stefánsson, 1899, pp. 14-17.
-----
For the Alþing was not merely an assembly for the dispatch of business:
it was the great annual gathering of the whole nation, a gathering all
the more needed in a land where there are no towns, and most men live
miles away from their nearest neighbours. To it chieftains rode with
their wives and daughters and a band of armed retainers from the
furthest corners of the country, taking perhaps, as those must have done
who came from the East fjords along the northern edge of the great
central desert, a fortnight or more on the way. Shipmasters from Norway
or Ireland brought their wares for sale. Artisans plied their trades. We
are told that even jugglers’ sheds and drinking-booths were set up, and
games of all kinds carried on. It was a great opportunity not only for
the renewing of friendships between those who lived in distant parts of
the country, but for the arranging of adoptions and marriages; and the
Sagas mention numerous instances in which proposals were made or
betrothals entered into at a meeting of the Alþing, in most of which
instances the will of the maiden seems to have prevailed over that of
her parents. It was midsummer, when there is in those latitudes no
night, but the glare of day subsides for a few hours into an exquisitely
rich and tender twilight, clothing the sky with colours never seen in
our duller air. And we can fancy how those who followed their fathers to
the Alþing found compensation for all the loneliness and gloom of the
long winter in this one fortnight of vivid mirth and excitement.
The meeting of the Alþing was not only the centre of the political life
of the Republic. It was, so to speak, the Republic itself, for it was
only then that the Republic became visible before men’s eyes or acted as
a collective whole. During the rest of the year lawsuits and everything
else of public concern were left to the Quarter Þings and local Þings,
and to the local Goðis. The few laws or resolutions of general concern
which the Alþing passed—they were few, because its legislative activity
was chiefly occupied in regulating its own judicial proceedings—were
probably meant to be accepted and observed over the whole island, but
the Alþing did not attempt to enforce them, and indeed had no machinery
by which it could do so. Each Goði was, in a loose way, a sort of
executive magistrate over his own Þingmen; but he did not derive his
authority from the Central or Federal Alþing, and he was not responsible
to the Alþing for its exercise. The Republic, if we may so call it, had
no Executive whatever. Its sole official was the Law-Speaker (of whom
more anon), but his function was only to declare the law, and was
exercised only while the Alþing was sitting. At other times the
constituent Þings and Goðis were virtually quite independent, and might
and often did carry on war with one another, subject to no penalty or
liability for so doing, save in so far as an action for compensation
might be brought against any one who had killed another. There was no
police, no militia, no fleet, no army, nor any means, like those
provided in the feudal kingdoms of contemporary Europe, of raising an
army. The isle lay so far away from all other countries except
Greenland, on which an Icelandic colony had been planted, that it
happily did not need to have a foreign policy. There was neither public
revenue nor public expenditure, neither exchequer nor budget. No taxes
were levied by the Republic, as indeed no expenses were incurred on its
behalf.
The Icelandic Republic was in fact a government developed only upon its
judicial and (to a much smaller extent) upon its legislative side,
omitting altogether the executive and international sides, which were in
the Greek and Roman world, and have again in the modern world, become so
important. For a community to exist with such an absence of
administrative organization was obviously possible only in a region like
Iceland, severed by a wide and stormy sea from the rest of the world,
and with a very thin and scattered population; possible too only in a
simple state of society where man’s needs are few and every one fends
for himself.
The system whose outlines I have sought to draw is full of interest and
suggestion, as well to the student of legal theory as to the
constitutional historian. Some modern theorists derive law from the
State, and cannot think of law as existing without a State. A few among
them have in England gone so far as to deny that Customary Law is law at
all, and to define all Law as a Command issued by the State power. But
here in Iceland we find Law, and indeed (as will appear presently) a
complex and highly developed legal system, existing without the
institutions which make a State; for a community such as has been
described, though for convenience it may perhaps be called a Republic,
is clearly not a State in the usual sense of the word. Of Iceland,
indeed, one may say that so far from the State creating the Law, the Law
created the State—that is to say, such State organization as existed
came into being for the sake of deciding lawsuits. There it ended. When
the decision had been given, the action of the Republic stopped. To
carry it out was left to a successful plaintiff; and the only effect a
decision had, so far as the Courts were concerned, was to expose the
person resisting it to the penalties of outlawry—that is to say, any one
might slay him, like Cain, without incurring in respect of his death any
liability on the footing of which his relatives could sue the slayer.
Law in fact existed without any public responsibility for enforcing it,
the sanction, on which modern jurists so often dwell as being vital to
the conception of law, being found partly in public opinion, partly in
the greater insecurity which attached to the life of the person who
disregarded a judgement. Yet law was by no means ineffective. Doubtless
it was often defied, and sometimes successfully defied. That happened
everywhere in the earlier Middle Ages, and happens to-day in
semi-civilized peoples. But the facts that the Alþing maintained so
active a judicial life, that the field of law was cultivated so
assiduously, and the details of procedure worked out with so much pains
and art, that lawsuits were contested so keenly and skilfully—all these
facts seem to prove that law must have in the main had its course and
prevailed, for it is hard to suppose that all this time and pains would
have been during two centuries or more devoted to a pursuit which had no
practical result. The contemporary kingdoms and principalities of the
earlier Middle Ages lived by the vigour of the executive. There was in
them very little of a State administration, and the law was in most or
all of them older than the State—that is to say, it had existed in the
form of customs recognized and obeyed before efficient means were
provided for enforcing it. So far they resembled Iceland; and the same
may be said of the city republics of Italy and Germany. But Iceland is
unique as the example of a community which had a great deal of law and
no central Executive, a great many Courts and no authority to carry out
their judgements.