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THE
LAWS OF THE EARLIER ENGLISH TRIBES
from
"The Viking Age," by Paul B. Du Chaillu,
vol. 1, p. 532-543
.
.
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
minutenuess 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 Ulfljót was the first who
brought laws there; this Teit told us; they were called
Ulfljót's laws; Ulfljót was the father of Gunnar, from
whom the Djupdćlir in Eyjafjord are descended. The laws
were mostly taken from the Gulathinglaws 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. (1)
Sigvat Scald made a song wherein be says the king
(Magnus) was too hard towards the bśndr.
“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 Heidsćvi´s law (Eidsivia
law) had been enacted by Halfdan the Black (father of
Harald Fairhair)” (Fornmanna Sögur, i., p. 31).
**1. The old laws of Sweden were published during the
years 1827-77 (the life-work of Schlyter), in Lund, in
thirteen volumes; the thirteenth volume is a dictionary
to the twelve volumes preceding it.
“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 Ice land" (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
or 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 (1)
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 be shall recite the reckoning of seasons;
and if people shall come to the Aithing 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.)
**1.
The Danish ell is a trifle more than two English feet.
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
........................950—970 (20 ,, )
Thorkel...........................970—985
(15 ,, )
Thorgeir.........................985—1002
(17 ,, )
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. (1)
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.
**1. Gulathing, so called from Gula or Guley (an
island), where the Thing took place. Frostathinq, from
some local name. Our knowledge of the earlier laws of
the Northmen is derived from the earlier Gulathing's
Law, almost completely preserved in writing from the
latter half of the 12th century. The earlier
Frostathing's Law is almost completely preserved in a
writing from the earlier part of the 13th century. Of
the earlier Eidsifjathing's Law, the earlier
Borgarthing's Law, and the earlier Bjarkeyjar Law, or
town-law, there are only fragments left. Most of the
Icelandic laws are comprised in the Grágás, which is
completely preserved in writing not later than the year
1200.
The
hisotrical Sagas often show the effect of the
laws in real life and how the latter were interpreted by
the people.
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)
(1) instead of in the hands of all the bśndr
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 con-sequence 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 ofthe
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).
**1. Nefnd also = a body of men or arbitrators to
give judgment in a case. In the old Swedish law it was
composed of twelve members (see Schlyter). It is not
found in the Icelandic laws, but the Görd is its
equivalent.
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.'
“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.
**1. Grágás, 211-217.
“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 law-man on the law-hill. The
law-man 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 be 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 Lögretta
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
tlěe 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 bśndr
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 bow 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 bśr 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
Vestgautar, 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 bśndr 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 earls); behind the chair stood a crowd of bśndr
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 laud 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 bśndr,
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 bśndr, 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 befňre 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 bśndr wished, for thus had all Kings of Sweden
acted. At this the grumblings of the bśndr 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" (1) (St. Olaf's Saga, c.
79—81).
**1. In the same Saga, c. 96, there is another
account of the powers of the lawman. In ch. 81, the king
(of Sweden), the jarl of Vestr Gautland, and the lawman
Thorgnýr are all three called höfdingjar. = chiefs.
"The Viking Age," by Paul B. Du Chaillu,
vol. 1, p. 532-543
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