than was its political constitution, illustrates very happily the origin
of Customary Law and the first beginnings of legislation. Law springs
out of usage. The gathering of the neighbours develops into the Þing or
local assembly of Norway and the Folk Mot of early England. It treats of
all matters of common concern; and as it is the body before whom
complaints of wrong are laid, it adopts by degrees regular set forms of
words for the statements of a grievance, and for the replies to those
statements. The usages become recognized customs, prescribing the cases
in which redress may be claimed and the defences by which the claims may
be repelled. The forms of words grow more elaborate and come to be
considered so essential that a variation from them vitiates the claim.
The body of rules thus formed becomes so large that only a few men,
devoting themselves to the subject, are able to carry the whole in their
memory. These men, proud of their knowledge, elaborate the rules, and
particularly the set forms of words, still further, and in their
enjoyment of technicalities attach more and more importance to formal
accuracy. Thus Custom, which was loose and vague while held in solution
in the minds of the mass, becomes crystallized into precision by the
labour of the few whose special knowledge gives them a sort of
pre-eminence, and even a measure of power. Then it is found that there
are diversities of opinion among the experts in the law, or instances
arise which show that some custom generally accepted is inconvenient. By
this time Custom has acquired so much authority that the assembly, which
has been also, and perhaps primarily, a law court, does not venture to
transgress it, the men of legal learning being of course specially
opposed to such a course. It therefore becomes necessary formally to
change the Custom by a resolution of the body which is at once the
Assembly and the Court. As this body consists of those who use, and
whose progenitors have created, the custom, and as it continues to
settle other matters of common concern affecting the district, it is the
proper and only body to make the change. This, then, is legislation in
its early stage. The law produced, which we may call Statute Law, is for
many generations extremely small in proportion to the mass of law which
rests upon Custom only. But the Statute Law is important because it is
explicit, because it is sure to be remembered, because it deals with
points comparatively large, since it would not be worth while to submit
small ones to the assembly. Nevertheless legislation is among all
peoples the smallest part of the work of primitive assemblies, be they
Þings or Folk Mots or Agorai or Comitia. And the growth of the law of
Iceland by custom, preserved and elaborated by a succession of
law-sages, occasionally (though rarely) altered or added to by the vote
of the Alþing, presents a lively picture of what must have been the
similar process of the construction of early Roman law by the jurists
(_prudentes_) and assembly (_comitia_).
Iceland, however, provided a means for the ascertainment and publicity
of her law which Rome lacked. The Lögsögumaðr is an elegant (using the
word in its strict Roman sense) complement to a system of Customary Law.
His function was well designed to meet and cure the two chief defects in
such a system, the uncertainty which existed as to what the rules
accepted as law were and the difficulty which an individual desiring to
take or defend legal proceedings found in discovering what the rule
applicable to his case really was. The solemn recitation of the whole
law fixed it in the recollections of those who busied themselves with
such matters, and gave everybody an opportunity of knowing what it
covered. The right to interrogate the living depositary of the law as to
any special point whereanent the querist desired to be informed was a
great boon to private persons, who, since they might often have to
suffer from the extreme technicality of procedure, needed all the more
to be warned beforehand where the pitfalls lay. In these respects the
Icelandic system contrasts favourably with those of early Rome and early
England. Till the Twelve Tables were enacted the private citizen of Rome
had no means of ascertaining the law except by asking some sage, who
need not answer unless he pleased, and whose view had no authority
beyond that which his personal reputation implied. Even after the Twelve
Tables had reduced much of the ancient Customary Law to shape, and made
it accessible to the citizens at large, many of the forms of procedure,
and the rules as to the days on which legal proceedings could be taken,
were kept concealed by the patrician men of law till divulged (at the
end of the fourth century B.C.) by Cn. Flavius. In England there was
indeed no similar effort to keep legal knowledge within the hands of a
few. But the customs were numerous, and many of them were uncertain.
There was no way of ascertaining them except by the judgement of a
Court, a tedious and expensive process, which after all decided only the
particular point that arose in the case that occasioned the judgement.
That means of determining a custom to be valid and binding which the
Icelanders had already secured through their official in the last half
of the tenth century did not begin to be created by the action of the
English Courts till the end of the twelfth, and centuries were needed to
complete the process.
One of the things that most awakens our surprise in the Icelandic
Constitution is its extreme complexity. In one sense simple and even
rude, since it omits so much we should have expected to find in a
constitution, it is in another sense intricate, and puzzles us by the
artificial character of the arrangements made for the composition of the
various courts and of the legislative body, while the multiplicity of
Þings, and the distribution of powers among them, has given rise to many
controversies among historians, some still unsettled. This phenomenon,
however, finds a parallel in some of the constitutions of the Greek
republics, not to speak of the elaborate systems of such cities as
Florence and Venice in the fourteenth century. In Iceland the strong
sense of independence which distinguished the Norsemen, and the jealousy
the chiefs had of one another, made it necessary to devise means for
securing equality and for preventing the influence of any group or
district from attaining predominance. Herein the spirit of the Icelandic
Constitution is singularly unlike that of the Roman. There, the intense
realization of the unity of the city and the need for giving its
government the maximum of concentration against neighbouring enemies
caused vast powers to be entrusted first to the King and then to the
Consuls or to a dictator. In Iceland, where no such need of defence
existed, where there was no foreign enemy, and men lived scattered in
tiny groups round the edges of a vast interior desert, no executive
powers were given to anybody, and elaborate precautions were taken to
secure the rights of the smaller communities which composed the Republic
and of the priest-chieftains who represented them.
A like intricate character recurs in the system of legal procedure, but
the cause is different and not peculiar to Iceland. The excessive
technicality of Icelandic process, and the stress laid upon exact
compliance with its rules, belong to that stage of the human mind in
which form and matter have not yet been separated, and in which the
respect for usage and tradition outweighs the sense of substantial
justice. Simplicity in legal matters, instead of characterizing the
state of nature, is the latest legal achievement of a civilized age. In
accounting for the strictness of adherence to the letter, we must allow
something for the dread, natural enough in such an age, that if
deviations from the letter of the law were overlooked, if what we should
call a power of amendment on matters of form were entrusted to the
Court, such discretion would be abused and confidence in the Courts
destroyed. But the reason is chiefly to be found, as in the parallel
case of those older forms of Roman procedure which continued terribly
technical till the time of Cicero, and as in the case of our own older
law, to the conservative spirit of the lawyers, attached to the forms
they had received and studied, and taking a professional pride in
working out their methods, a pride all the greater the more technical
those methods were, because the more intricate the technicalities the
higher the importance of the few who had mastered them. Substantial
justice is all the layman cares for. With the lawyer it is otherwise. An
eminent English judge used to remark that of the questions argued before
him, counsel showed most interest in points of practice, costs came
next, while the merits of the case were last. The late Baron Parke (Lord
Wensleydale) was a type of the kind of mind which flourished in Iceland
in the eleventh century; and it was a type useful in its way, a type
which ought always to be represented in the legal profession, for
reverence for tradition and an acute interest in the exactitude of form
are hardly less necessary than a philosophic spirit and a zeal for
progress.
How keen was the taste for legal subtleties and intricacies is shown,
not only by the existence of schools of law in Iceland—young men
gathering round sages like Njál or Skapti Thoroddsson, just as the
well-born youth of Rome frequented the house of Tib. Coruncanius or Q.
Mucius Scaevola—but also by the evident enjoyment which the authors of
the Sagas show, and which their public must evidently have taken, in the
steps in a lawsuit, or in the telling of some incident which raises a
nice point of procedure. In no other literature is fiction or history,
by whichever name we describe the Sagas, so permeated by legal lore.
Our knowledge of the substance of early Icelandic law is derived partly
from references or allusions in the Sagas, partly from some ancient
law-books, the oldest of which belongs to the period of the Republic,
and was compiled, probably about the middle of the twelfth century, out
of materials some of them much older, and reaching back into the
eleventh and even the tenth. Statutes had been passed during the course
of the tenth century, and the Úlfljótslög of A.D. 930 is spoken of as a
body of law prepared by Úlfljót after his journey to Norway and accepted
by the Alþing, though it was probably a redaction of existing Norse
customs, and does not seem to have been reduced to writing, as indeed it
is improbable that any laws were written before the beginning of the
twelfth century. The next effort at what has been called a codification
of the law was made nearly two centuries after Úlfljót (about A.D.
1117), when a small commission was appointed which examined the customs,
rejected some, approved or amended others, and created what is described
as a sort of systematic collection. This is usually known as the
Hafliðaskrá, from a prominent Goði and lawyer Hafliði Mársson, who was a
member of the commission. This law is stated to have been accepted by
the Alþing, and was no doubt preserved in writing, as the name Skrá
(scroll) conveys.
The later book which used to be described as a Code survives in two
MSS., differing a good deal from one another, and is commonly known as
Grágás (‘Grey-Goose’)[132]. It is, however, really not a Code at all,
and not even a single law-book, but a mass of matter of different dates
and origins never reduced to any sort of unity. There are ordinances of
the Alþing, decisions and declarations delivered by Law-Speakers,
ecclesiastical regulations, formulas of legal procedure or legal
transactions, memoranda of customs which seemed to those who recorded
them to have obtained recognition and validity. It is full of
instruction as a picture of primitive Teutonic institutions and life;
and it throws a good deal of light both on the law of early
England—English and Anglo-Norman—and upon some of the most curious
features of early Roman law. Sometimes the references to the
deliverances of a Law-Speaker as originating a rule make us think of the
Roman Praetor, sometimes the concisely phrased records of what was
settled by the Lögrétta remind us of our English reports of the
judgements of the King’s Courts in their early forms; while in one point
the collection as a whole has a character which belongs to the earlier
law-books as well of Rome as of England. Though the statutes of the
Alþing are the most distinctly authoritative rules it contains, much
whose authority would seem doubtful to a modern is set down in a way
which clearly implies that it did possess authority. The line between
absolutely binding law and all other law is not sharply drawn; indeed no
such line exists. That which is recorded may be only a single instance
of the observance of an alleged custom. It may be only the expression of
the individual opinion of some learned lögmaðr (Lawman = jurist).
Nevertheless it is a record which has come down from the past, and by
which therefore the men of the present may seek to be guided.
-----
Footnote 132:
The name Grágás (probably drawn from the binding in which a copy of it
was preserved) seems to have originally belonged to a MS. of the
Frostaþingslög, the law which prevailed round Throndhjem in Norway,
and to have been applied by mistake in the seventeenth century to this
Icelandic collection of customs, first published by the Arnamagnaean
foundation in 1829.
-----
In the law of Iceland, as it is presented in this ancient collection, we
have, as in the Constitution of the island and the system of the Courts,
a striking contrast between the rudeness of an extremely archaic
society, in which private war is constantly going on, piracy is an
honourable occupation, slavery exists, and there is no State
administration and very little use of writing, and the refined intricacy
of a system of law which makes elaborate provision for the definition of
legal rights and their investigation and determination by legal process.
The time of day is fixed by guessing at the height of the sun above the
horizon. The wife is purchased. A father may deliver his child into
slavery, no doubt (as in early Rome), a qualified slavery, for the
payment of his debts, and the insolvent debtor may be made a slave. But,
on the other hand, there are rules, not unlike those of our modern
Courts of Equity, regulating the guardianship of the property of a
minor, and permitting a portion of it to be applied to the support of
his indigent father, brother or sister[133]. There are careful
distinctions as to who may sue for the penalty for homicide. If the
slain man is an Icelander, the action goes first to the son, then to the
nearest blood relation, then to the local Goði, then to any member of
the same Quarter, then to any citizen (a sort of _actio popularis_). If
the slain man was not an Icelander, but one who used the ‘Danish (or
northern) tongue,’ _i.e._ if he was either a Norseman or a Dane or a
Swede, then any relative may sue; if a stranger of any other
nationality, only a father, son or brother may sue. But for the
protection of persons coming in a ship, the comrade or partner[134] of
the deceased, whom failing, the skipper who has the largest share in the
ship, is a proper plaintiff.
-----
Footnote 133:
This rule is ascribed to Guðmund Thorgeirsson, who was Law-Speaker
from 1123 to 1135 A.D.
Footnote 134:
Partner is félagi (English ‘fellow’). Many further rules on this point
are contained in the passage, Grágás, chap. xxxvii (vol. ii. pp. 71-73
of the Arnamagnaean edition).
-----
It is curious to note that, although homicide and murder were common,
the punishment of death is never prescribed, even as in two or three of
the Southern States of America the death penalty is seldom inflicted,
while ‘shootings at sight’ and lynchings abound. And an interesting
resemblance to early Roman law may be found in the extreme severity of
the law of slander and libel. The truth of a defamatory statement is no
defence. To affix a nickname to a man is punishable by banishment. No
verses are to be made on a man, even in his praise, without his leave
first obtained; and one who teaches or repeats the verses made by
another incurs an equal penalty, the remedy extending even to verses
made against the memory of the dead. A love poem addressed to a woman is
actionable, the action being brought by her guardian if she is under
twenty years of age[135].
-----
Footnote 135:
See Grágás, chaps. civ-cviii, pp. 143-156 of vol. ii. in the
Arnamagnaean edition.
-----
Of the ramifications of the system of procedure into all sorts of
Courts, besides the regular Þings, I have no space to speak; but one
singular illustration of the faith which the Icelanders had in the
efficacy of legal remedies deserves to be given, because in it these
remedies reach beyond the present life. It comes from the Eyrbyggja
Saga, one of the most striking of the old tales.
A chief named Thorodd, living at Fróðá in Breiðifjörð, on the west side
of Iceland, had just before Yule-tide been wrecked and drowned with his
boat-companions in the fjord. The boat was washed ashore, but the bodies
were not recovered. Thereupon his wife Thurið and his eldest son Kjartan
bade the neighbours to the funeral feast; but on the first night of the
feast, as soon as the fire was lighted in the hall, Thorodd and his
companions entered, dripping wet, and took their seats round it. The
guests welcomed them: it was held that those would fare well with Rán
(the goddess of the deep sea) who attended their own funeral banquet.
The ghosts, however, refused to acknowledge any greetings, and remained
seated in silence till the fire had burnt out, when they rose and left.
Next night they returned at the same time and behaved in the same way,
and did so, not only every night while the feast lasted, but even
afterwards. The servants at last refused to enter the fire-hall, and no
cooking could be done, for when a fire was lit in another room, Thorodd
and his companions went there instead. At last Kjartan had a second fire
lit in the hall, leaving the big one to the ghosts, so the cooking could
now be done. But men died in the house, and Thurið herself fell ill, so
Kjartan sought counsel of his uncle Snorri, an eminent lawyer and the
leading Goði of Western Iceland. By Snorri’s advice Kjartan and seven
others with him went to the hall door and formally summoned Thorodd and
his companions for trespassing within the house and causing men’s
deaths. Then they named a Door-Court (Dyradómr) and set forth the suits,
following all the regular procedure as at a Þing-Court. Verdicts were
delivered, the cases summed up and judgement given; and when the
judgement word was given on each ghost, each rose and quitted the hall,
and was never seen thereafter.
Ghosts have given much trouble in many countries, but it is only the
Icelanders who have dealt with them by an action of ejectment.
Although it is a remarkable evidence of the political genius of the
Norsemen that they should have been able to work at all a legal system
such as has been described, it need hardly be said that it did not work
smoothly. The Icelanders were a people of warriors, little accustomed to
restrain their passions, and holding revenge for a sacred duty. The
maintenance of order at the Alþing was entrusted to the Goði of the
spot, and it was strictly forbidden to wear arms while the meeting
lasted. The closing of the Alþing was called Vápnatak (weapon-taking,
wapentake), because the arms that had been laid aside were taken when
men started to ride home from the Þing. But the arms were after all only
left in the booth, and more than once it happened that the party which
found itself unsuccessful in a lawsuit seized sword and spear and fought
out the issue in a bloody battle, from which sprang again new
blood-feuds and new lawsuits. It is not very often that the Sagas give
us a glimpse of the conduct of business at the Alþing; but one such
lawsuit, followed by a combat, which arose when the suit broke down on a
technical point, is described with wonderful force and spirit in the
famous Saga of Njál Thorgeirsson, a masterpiece of literature in the
freshness and brilliance of its narrative.
We hear occasionally of the passing of particular laws at an Alþing. In
A.D. 994, for instance, it was enacted that the suit for compensation
for homicide which was brought, according to the general practice of the
northern nations, by and for the benefit of the nearest relatives of the
slain, a right which has survived in the law of Scotland under the name
of Assythment, and has been partially introduced into the law of England
by the Act 9 & 10 Vict. c. 93 (commonly called Lord Campbell’s Act),
should in future not be brought by a woman or by a child under sixteen
years of age, but by the nearest male relative. This provision was
suggested by a case that had occurred just before, when inadequate
compensation had been recovered for the slaughter of a chieftain named
Arnkel, owing to the mismanagement of the suit by his widow. Again, in
A.D. 1006 we are told of the abolition of the judicial combat on the
occasion of an indecisive duel between the poet and Viking Gunnlaug
Ormstunga (Snake’s tongue[136]) and another poet named Hrafn, the
details of which are recorded in one of the most beautiful and touching
of the early Sagas. Gunnlaug had been betrothed to Helga the Fair, one
of the most famous heroines of Icelandic story, but having been detained
in England by King Ethelred II, whose guest he had previously been in
London[137] and whose praises he had been celebrating in verse, had
failed to return at the appointed time, and found Helga, who had yielded
to the importunities of her relatives, already married to Hrafn.
According to the custom of the North, which then allowed any man to
require another either to give up his wife and all his property or
defend her and it by arms, Gunnlaug came to the Alþing and formally
challenged Hrafn, and they fought, each with his second, a solemn duel
on the island in the Öxará which was set apart for that purpose. A
dispute arose after the first encounter, and the combatants were
separated. Gunnlaug wished to resume the combat, but the law already
referred to, prohibiting formal duels in future, was passed next day by
the Lögrétta; and he unwillingly obeyed, for a breach of it would have
exposed him to the penalties of outlawry. Helga, however, refused to
live any longer with her husband Hrafn, and next year the two rivals
sailed by agreement to Norway, just as, fifty years ago, persons fearing
to fight a duel in England used to cross to Calais for the purpose.
Years passed before they met in the wild country east of Throndhjem.
There they fought out their quarrel. Gunnlaug smote off his enemy’s
foot, and then proposed to stop the combat. Hrafn however, supporting
himself against a tree, wished to fight on, but as he was tortured by
thirst, he besought his opponent to fetch him a draught of water from a
brook hard by, promising not to deceive him. The chivalric Gunnlaug
brought the water in his helmet, whereupon Hrafn, taking the water with
his left hand, suddenly raised his sword and, with all his remaining
strength, smote Gunnlaug on his bared head. ‘Thou hast done ill and
deceived me,’ said Gunnlaug, ‘seeing that I trusted you.’ ‘So is that,’
answered Hrafn, ‘but I grudged thee the love of Helga the Fair.’ Then
they fought on. Hrafn was slain, and in a few hours Gunnlaug died of his
wounds[138]. The news was brought to Iceland, and after a time Helga,
thinking ever of Gunnlaug, and often spreading out upon her knees a
garment which Gunnlaug had given to her, pined away and died likewise.
-----
Footnote 136:
So called from his satirical powers.
Footnote 137:
The Saga says (_Gunnlaugs Saga Ormstungu_, chap. vii) that in the days
of Ethelred son of Edgar (Aðalráðr Játgeirsson) the same tongue was
spoken in England and Denmark as in Norway, and that this continued in
England till William the Bastard won England, after whom Welsh (Valsk
= French) was spoken.
Footnote 138:
The Saga adds that very shortly after the combat, and long before the
news of it could have reached Iceland, the ghosts both of Gunnlaug and
of Hrafn appeared in dreams to their respective fathers in Iceland,
and recited poems describing their deaths. Illugi the Black,
Gunnlaug’s father, remembered the poem he heard and repeated it aloud
next day. The Saga gives both poems. This is one of the earliest
Teutonic instances of a death-apparition.
-----