THE LAWS OF THE EARLIER ENGLISH TRIBES.
Comprehensiveness of the codes of the Northmen—The earlier laws—The
Icelandic laws—The Grágás law-book—Judgment rings—Power of the
lawmen—Their office hereditary in early times—Their office
elective in Iceland—Manner of election—Duty of the lawman—Ceremony
at the close of his term of office—Length of the term of
office—Norway divided into four law-districts—Law originally
vested in the people—Members of the law-court—Mode of their
election—Judicial decisions.
For clearness of language, comprehensiveness, and minuteness of detail,
we find nothing in Europe during the first ten centuries of the
Christian era that can compare with the earlier laws of the Norsemen; we
must go back to Rome to find such comprehensive and exhaustive codes.
They give us a very clear insight into the life and civilisation of the
North, which from these records seem to have been far above those of
neighbouring countries at that period. Some of the laws given in the
course of this work demonstrate the mode of life of the time. We can see
from these that, above all, the Norsemen abhorred perjury, murder,
seduction, adultery, and the violation of the sanctity of
blood-relationship.
The earlier laws, as all laws in every country, were but a codification
of the customs of the people, handed down in many cases from very
ancient times.
The Icelandic laws were based upon those of the mother-country, just as
those of the English colonies are to-day based on the old English laws,
and those of other colonies on those of the countries that founded them.
“When Iceland was widely settled, an eastern (Norwegian) man called
Úlfljót was the first who brought laws there; this Teit told us; they
were called Úlfljót’s laws; Úlfljót was the father of Gunnar, from whom
the Djupdælir in Eyjafjord are descended. The laws were mostly taken
from the Gulathing-laws as they were then, or made according to the
advice of Thorleif the Wise, son of Hördakári, with regard to what
should be added or taken away, or altered” (Islendingabók, c. 2).
One of the great authorities for our knowledge of the administration of
justice among the Norwegians is the law-book, the Grágás.[536]
Sigvat Scald made a song wherein he says the king (Magnus) was too hard
towards the bœndr.
“After this the king became milder; also many spoke to him about this.
At last he had a talk with the wisest men, and they made laws. Then he
had a law-book written which is still in Thrándheim, and is called
Grágás (the grey goose). He became popular and was liked by all the
people of the land, and therefore was called Magnus the Good” (Magnus
the Good’s Saga, Heimskringla, c. 17).
All over the Northern lands are yet seen numerous judgment rings, made
of large stones, where justice was administered; some were used for
religious ceremonies, some for duellings.
“The defender in a case can name six judges whom he does not want to
judge in his case. They are to rise from the court (dóm), and sit inside
the dómhring (sacred precincts) while the case is judged” (Grágás, i. p.
78).
The lawmen, or _lögmenn_, were the most influential and powerful men in
the land; they were respected and loved by the people, and great faith
was placed in their advice. Extensive knowledge of the earlier customs
and ancient laws was absolutely necessary for this important office, in
order to put before the Thing in a proper light the subjects under
discussion. From the Sagas we see that their office in the earlier time
was probably hereditary; but in Iceland, as the emigration broke the
hereditary succession, the lawmen were chosen by election.
“Hákon was one of the most merry, eloquent, and modest of all men; he
was very wise and especially fond of law-making. He enacted the
Gulathing’s law, with the advice of Thorleif the Wise; also the
Frostathing’s law, with the advice of Sigurd jarl and other Thrands who
were very learned; but the _Heid-sævi’s_ law (Eidsivia law) had been
enacted by Halfdan the Black (father of Harald Fairhair)” (Fornmanna
Sögur, i., p. 31).
“At this feast were Gunnar and many others of the best men. After the
feast Njal asked if he might take home Thorkall, Asgrim’s son, for
fostering, and he was with Njal long after. He loved Njal more than his
father. Njal taught him the laws, so that he became the greatest lawman
in Iceland” (Njala, 27).
The lawman was the representative of law, though he had neither judicial
nor legislative power; he was selected by the law-court, or Lögretta, on
the first Friday of the Althing, before the cases which were to be tried
at the Thing were made public on the law-hill. Then if the election was
not unanimous, it was decided by throwing of lots which quarter should
elect him; the law-court men of the quarter could elect him from their
own quarter or from another, but the majority decided the question. The
lawman, followed by the members of the law-court, walked up to the
law-hill and took the seat intended for him. An election was good for
three years, and the same man could be elected again; but he could
forfeit his office through injustice or carelessness.
His duty was to expound the laws to the people, and therefore it was
necessary for him to know them well; before the law was written he was
looked upon as a living law-book for the people; any who were in
difficulties on points of law went to him, not only to the Althing, but
to his home.
The part of the law relating to the regulations of the Thing was recited
every summer on the first Friday of the assembly, and this was the
lawman’s first duty; all the remaining parts of the law had to be
recited by him during the course of his three years of office.
At the dissolution of the Thing he made public from the law-hill the
_timereckoning_, a kind of almanack for the coming year. Supposing that
he was doubtful on any point he was allowed to take counsel with five or
more men, wise in law, and their advice was considered sacred.
If the lawman had not arrived on the first Friday before the people went
to the law-hill he had to pay a fine of three marks, and they could
elect another man in his place. The yearly pay for this office was 248
ells[537] of vadmal from the property of the law-court, besides the half
of all the fines.
The closing ceremony at the term of office was for the lawman to recite
the regulations of the Thing. This ceremony took place on the first day
of the fourth summons, after which he was free. When the lawman died, a
man was taken from his quarter to recite the regulations, and his
successor was at once elected.
A lawman, when at home, could be a godi as well as a lawman, but at the
Thing he was obliged to have a representative of his godiship.
“It is a law that there shall always be a man in our country whose duty
it is to tell people the law, and he is called lawman (lögsögu-man =
law-telling man). If the lawman dies, a man shall be taken the next
summer from the quarter of the country in which he dwelt last, to recite
the regulations of the Thing. Then the lawman is to be elected on the
Friday before the cases are proclaimed. It is also good if all agree
about one man. If one of the law-court men is against that which most
want, it shall be decided with lots from which quarter the lawman is to
be elected. The men of the quarter who win the lot shall choose the
lawman, if he is willing to undertake the office, whether he is from
their own quarter or from some other. If they do not agree, the majority
shall rule; but if those who disagree about the lawman and sit in the
law-court are equal in numbers, the bishop of the quarter shall
decide.... From the law-court where the electing takes place the men
shall go to the law-hill. The lawman shall go thither and sit in his
seat, and seat those whom he wishes on the law-hill, and then the cases
are to be brought forward. It is also law that it is the lawman’s duty
to recite all parts of the law in three summers, and the
Thing-regulations every summer. The lawman has to recite all
declarations of innocence (_e.g._ of outlawry), if possible, when the
greater part of the people are present; also he shall recite the
reckoning of seasons; and if people shall come to the Althing before ten
weeks of the summer have passed and inquire about keeping the ember-days
and the beginning of fasts, he shall make known all this at the
dissolution of the Thing.... If he is not wise enough, he shall take
counsel with five or more law-skilled men. Every intruder is fined three
marks, and the lawman has to prosecute him. The lawman shall receive
every summer 400 feet of vadmal from the law-court property for his
work; also half of all the fines. When the lawman has had the
law-telling for three summers, he shall recite the Thing-regulations for
the first Friday of the fourth summer; then he can give up office if he
likes. If he wishes to keep office, the greater part of the law-court
men can again decide. The lawman is to be fined three marks if he does
not come to the Althing on the Friday before people go to the law-hill,
no necessity hindering, and another lawman is to be elected if the
people wish” (Grágás, i.)
The following table shows how long the elected lawmen usually remained
in office, and how great was the order and stability of government in
those days, the lawman having to stand for election once a year:—
Rafn (Lawman) 930–950 (20 years)
Thórarin (Lawman) 950–970 (20 years)
Thorkel (Lawman) 970–985 (15 years)
Thorgeir (Lawman) 985–1002 (17 years)
The whole of Norway was divided into four law districts, but not before
the time of Hakon the Good, who codified the laws: (1) _Frostathing’s
Law_ district, (2) _Gulathing’s Law_ district, (3) _Eidsifjathing’s_,
(4) _Borgarthing’s_; but we find that the Gulathing existed, and had
probably existed long, before Harald Fairhair.[538]
In the course of time changes and additions were made. In regard to how
these new laws were to be made, the laws themselves contain no
provision; but that they were made by the co-operation of king and
people is evident, and their adoption depended, no doubt, on the
standing, wisdom, and influence of him who proposed them.
When Harald Fairhair became king of all Norway his idea seems to have
been that the royal power established by him should be exalted far above
existing laws, and from it every change in these laws ought to emanate
for the future.
King Hákon yielded up to the country the proprietary right which his
father had usurped. New legal relations were then entered into between
king and people; these seem to have been called _landsrétt_ (law of the
land), which could not be changed without the consent of both king and
people.
The _lög_, or law proper, dealing with the relations existing between
man and man, was regarded as having originated from the people alone,
and therefore was their private property. But royalty being acknowledged
as a necessary part of the state, and as such amenable to the _lög_, was
on that account given a voice in its changes or revisions.
In the first place, the legislative power of the country was transferred
from the _Fylkisthings_ to the _Lawthings_, and was placed in the hands
of representative men (_nefndarmenn_)[539] instead of in the hands of
all the _bœndr_ of the _fylki_. Thus the Lawthings became the only
legislative power in the country, each one legislating for its separate
district. Then the various earlier laws were consolidated into one law
for every district.
By this important change royalty appears in a highly influential aspect;
however, as is clearly shown, only in consequence of a special power
given it for the time being, and not as a right established for all
time.
The highest power was not in the Althing, but in the _Lögretta_
(law-court), composed of two kinds of members—those who were self-named,
or godis by right (they were thirty-nine), and those who were elected
(twelve for the northern quarter, and nine for each of the others); but
these godis took three men from each quarter which had only nine godis,
and so the number was increased to forty-eight, to which number was
added the lögmadr (lawman). The number of judges or godis of the
Lögrétta at the Gulathing seems to have been thirty-six.
The elected members were appointed thus. Every one of the forty-eight
chose two of his Thingmen and a third man as advisers; thus the
law-court men consisted of 144 members (besides the lawman, who made the
number 145).
The _Lögthing_ (law-thing) did not appear before the time of Hákon the
Good, when the country was divided into four districts.
The law-court had a certain place on the Thing-plain, and was part of
the Thing. There were three benches, one behind the other; on the middle
bench sat the forty-eight self-elected law-court men and the lawman; on
the front and the last bench were seated the elected members. The
judicial power rested with those on the middle bench, for the law-court
men on the two other benches could only give advice.
When a decision had a majority for it from the middle bench, all the
law-court men assented, and it was made public from the law-hill by the
lawman.
The court was to come together on both Sundays and on the closing day,
and the lawman could call the members together when he wanted, but only
if the majority of the Thingmen wished.
Less important matters could be decided though the full number were not
present, provided there were not less than forty-eight; and the lawman
could take men from the two other benches to fill the empty seats on the
middle bench. No man but a member was allowed a seat on the law-court
benches. The Thingmen sat round, and only the one who had something to
say to the law-court was allowed to rise.[540]
“We shall also have a law-court every summer at the Althing, and it
shall always sit on the place where it has long been. There shall be
three benches round the law-court, so long that forty-eight men may sit
on each of them easily, namely twelve men from each quarter who have the
right to sit in the law-court, and the lawman besides; these rule laws
and licenses, and they, and also our bishops, shall sit on the middle
bench. From the northern quarter those twelve men shall sit in the
law-court who have the twelve godiships which were there when they had
four districts with three godis in each. From all the other quarters
those nine shall sit in the law-court who have the full and old
godiships, which were three in every Spring-thing, when three
Thing-districts were in each of the three quarters, and they shall each
of them take one man from each of the old Thing-districts, so that
twelve men sit in the law-court from each quarter....
“Each man who sits in the law-court has to have two men to give him
advice, one in front of himself, and the other behind him and his
Thingmen; then the benches are fully occupied, with forty-eight men on
each bench. No man shall sit inside the benches on the space of the
law-court except those who have cases; but at other times they can sit
there, and the lawman has to dispose of the seats. The people shall sit
outside the benches. Only those who have cases ... have the right to
rise in the law-court when laws or licenses are considered. He who rises
(without the right to do so) is to be fined three marks, and whoever
likes can prosecute him. People who crowd so much to the _Lögrétta_
purposely, or make so much noise or tumult that cases are disturbed, are
liable to lesser outlawry, as in the case of every disturbance at the
Thing. If men come to the law-court who have to sit there and others
have sat in their seats, they shall ask for their seats, and the men are
not punished if they go away; but if they tarry when the seat is asked
for, they are fined three marks. Then the man shall ask for his seat
with witnesses, and if the other does not rise he is liable to lesser
outlawry....
“The law-court shall sit both Sundays (Drottnisdag) of the Thing and the
last day of the Thing, and always between those days when the lawman or
the greater part of the people wish.... There their laws shall be
changed and new laws be made if people want them; there all innocence
(e.g. of outlawry) shall be asked for. As soon as the godis get into
their seats each of them shall place a man on the bench before him and
another on the bench at his back for advice. Then the men who have cases
shall tell what they disagree upon: then they shall think on the case
until they are decided in their mind on it and ask all law-court men who
sit on the middle bench to tell what each of them wants in this case
according to law. Thereupon each godi shall tell what the laws say and
with whom he will go in this case, and the majority shall rule. If an
equal number of law-court men on both sides say that two different
decisions are lawful then the decision of those with whom the lawman
sides shall rule. If the others are more they shall rule, and both shall
take _véfangseid_ (oath of division) to this that they think what they
decide in this case is lawful and follow it up because it is law.... It
is the lawman’s duty to tell all those who ask him what is law, both at
the Thing and at home, but not to give advice in a suit.... If the
lawman commits something which the greater part of the Thingmen would
call Thing-breach then he is liable to lesser outlawry” (Grágás, i. 4).
“We shall go to the law-hill in the morning, and lead the courts forward
for challenging not later than when the sun is to be seen on the western
rock of the chasm seen from the seat of the lawman on the law-hill. The
lawman shall go out first if he is in good health, then the godis with
their judges if they are not hindered; otherwise every one of them shall
get a man in his place” (Grágás, i. 26).
“If one or more judges retire, then the prosecutor has the right to
invite to lot-drawing at the court all those who have cases before it,
and decide the place where they shall draw lots about proffering the
case. Every man who has a case before the court shall put one lot in a
cloak skirt, though he has more than one case. Every man shall mark out
his lot, and they shall all be put into a skirt, and four shall be taken
out in one” (Grágás, 37).
“The first summer that Bergthór (Hrafnsson) recited laws a new law was
made that our laws should be written in a book the next winter in the
house of Haflidi Másson, after the dictation and ruling of Bergthór and
other wise men chosen for it. They were to make new laws wherever they
thought them better than the old ones. These were to be recited the
following summer in the _Lögrétta_ (law-court), and all those were to be
kept against which the greater part of the people did not vote.
_Vigslódi_ (part of the laws treating about man-slayings) and many other
laws were written and recited in the Lögrétta by priests the following
summer. All liked them well, and none were against them” (Islendingabók,
c. 10).
From the following account we can see what great power the lawman had
over the people, and how well the latter understood that the price of
freedom was constant watchfulness.
King Olaf of Sweden and St. Olaf of Norway constantly quarrelled about
the frontiers of their countries. The bœndr in the Vikin got St. Olaf to
send men to the King of Sweden to make peace. Rögnvald jarl of Vestr
Gautland, who was friendly to Norway, helped the men sent, whose leader
was Björn Stallari (marshal). The following account tells how they
succeeded, with the help of Thorgnýr, lawman:
“At this time there was in Tíundaland a lawman named Thorgnýr, the son
of Thorgnýr Thorgnýsson, whose family had for many reigns been lawmen in
Tíundaland. Thorgnýr was old, and kept a numerous bodyguard around him.
He was said to be the wisest man in Sviaveldi, and was the kinsman and
foster-father of Rögnvald jarl of Vestr Gautland.
“Rögnvald jarl came one night to the bœr of Thorgnýr the lawman....
There were many outside, who received him well, and took charge of his
horses and harness. The jarl went into the hall, which was full of men.
In the high-seat there sat an old man. Björn (King Olaf’s marshal) and
the others had never seen a man so tall or so stout before; his beard
was so long that it lay on his knees and covered his whole breast; he
was handsome, and looked like a high-born man. The jarl walked up and
saluted him. Thorgnýr welcomed him, and told him to go to the seat where
he was used to sit, and the jarl sat down opposite Thorgnýr. It was some
nights before the jarl told his errand; he asked Thorgnýr to go with him
into the speech-room, and Björn and his men followed him there. The jarl
began by relating how Olaf Norway’s king had sent men in order to make
peace; he spoke long of what troubles the war with Norway caused to the
Vest-gautar, and how he had promised to follow these envoys to the King
of Sweden, who disliked the matter so strongly that no one dare broach
it. ‘Now, foster-father,’ said the jarl, ‘I do not trust myself alone in
this matter; therefore I come to thee, and expect thy good advice and
help.’ When the jarl had ended his speech Thorgnýr was silent for a
while, and then answered: ‘You behave strangely; you like to have the
high name of jarl, and yet you know no expedient when you get into some
difficulty. Why didst thou not remember, before promising this journey,
that thou hast not power to speak against King Olaf. It seems to me more
worthy to be reckoned among bœndr and be free in one’s speech, though
the king be present. I will go to the Upsala Thing, and give thee such
help that thou shalt say without fear before the king what thou likest.’
The jarl thanked him for this promise, and remained with Thorgnýr and
rode with him to the Thing. A great crowd was with King Olaf, who was
with his bodyguard. The first day, when the Thing began, King Olaf sat
on a chair, and around him stood his bodyguard. In another place sat
Rögnvald jarl and Thorgnýr, and in front of them the jarl’s guard and
Thorgnýr’s troop of _húskarlar_ (house carls); behind the chair stood a
crowd of bœndr in a circle. Some even went up on the hills and mounds to
listen. When the king had made his customary speech at the Thing, Björn
Stallari rose near the jarl’s seat and said aloud: ‘King Olaf sent me
hither to say that he offers the King of Sweden reconciliation, and the
division of land which of old existed between Norway and Sweden.’ He
spoke so loudly that the King of Sweden heard it distinctly. At first,
when the King of Sweden heard King Olaf of Norway named, he thought he
came on some errand of his own; but when he heard of reconciliation and
division of land between Sweden and Norway he started up and shouted
loudly that this man should be silent; so Björn sat down. When he could
get a hearing, the jarl arose and spoke of King Olaf the Stout’s message
and offer of reconciliation to Olaf, King of Sweden. He said that the
Vestr Gautar asked that reconciliation should be made with Norway’s
king; he enumerated every difficulty which the Vestr Gautar had on hand
because they missed all those things from Norway which they needed in
order to live well, and on the other hand were exposed to attacks and
plundering if the Norway king should gather a host and make war on them.
He added that Olaf, Norway’s king, had sent men thither to ask for the
king’s daughter Ingigerd. After the jarl had finished speaking, Olaf,
King of Sweden rose and answered that he highly disliked the
reconciliation; he reproached the jarl very greatly for his boldness, as
he had made truce and peace with the stout man (King Olaf) and made
friends with him. He added that he had proved traitor to him, and he
would deserve to be driven from the realm, and that all this was caused
by the urging of his wife Ingibjörg, and that it had been most unwise to
marry such a woman for love: he spoke a long time and severely, and
again turned his reproach against Olaf the Stout and sat down, and there
was silence for some time. Then rose Thorgnýr, and when he stood up all
the bœndr, who before had been sitting, rose, and all the rest pressed
forward, wanting to listen to what he said. At first there was great
tumult and clashing of weapons in the crowd, but when a hearing was got,
Thorgnýr said: ‘The temper of the King of Sweden is not what it has
been. Thorgnýr, my grandfather, remembered Eirik Emund’s son,
Uppsala-king, and said of him, that while he was at his most active age
he had a levy every summer and went to various lands, and subjected
Finnland and Kirjálaland, Eistland and Kúrland, and a great part of the
eastern lands, where still may be seen the earth-forts and other great
works that he made; yet he was not so proud that he would not listen to
men if they wished to speak to him. My father, Thorgnýr, was with King
Björn a long time, and knew his habits. During his time his realm stood
with great strength and with no abatement; and he was easy to deal with
by his friends. I can remember King Eirik the Victorious, and was with
him on many war-journeys; he increased the Swedish realm, and defended
it manfully, and it was easy for us to give him advice. But this king
now allows no man to be so bold as to talk to him except only what he
wants, and uses he thereto all his power, and permits his tributaries to
fall away from him from lack of strength and courage. He would hold
Norway’s realm subject to himself, though no King of Sweden has before
desired this, and thereby causes trouble to many a man. Now this is the
will of us bœndr, that thou, King Olaf, should make reconciliation with
Olaf the Stout, and marry thy daughter Ingigerd to him. If thou wilt win
back to thyself those realms in the east which thy kinsmen and
forefathers once owned, we will all follow thee thither. But if thou
wilt not do what we tell thee, we will attack and slay thee, and not
endure from thee trouble and lawlessness: our forefathers have done the
same, they threw five kings down into a well, at the Múla-Thing, who
before had been as full of overbearing as thou hast been with us. Tell
us now quickly which choice thou wilt make.’ Then the multitude clashed
their weapons. The king arose, and said that he wanted everything to be
as the bœndr wished, for thus had all Kings of Sweden acted. At this the
grumblings of the bœndr ceased. The chiefs, the king, the jarl and
Thorgnýr talked together, and then made peace and reconciliation on
behalf of the King of Sweden, according to the proposal of Norway’s
king. It was resolved at that Thing that Olaf’s daughter Ingigerd should
be married to Olaf Haraldsson, and the king delivered into the jarl’s
hands the power to betroth her, and gave to him the charge of the
marriage”[541] (St. Olaf’s Saga, c. 79–81).