On Judicial Proceedings on the Holmgang, and Appeal
When I first read the account of Hallvards trial in Chapter xviii, in my ignorance of Icelandic law, I conceived it to be a case of acquittal by "compurgators," as in our old "Wager of Law." I soon found, however, that this view was entirely erroneous. Trial by compurgators, curiously enough, was unknown to the law of Iceland. Schlegel, in his preface to the Grágás (Copenhagen, 1829), says, Consacramentalium autem nullus usus apud Islando obtinuit; quod eo magis mirum quum iis cæteræ gentes Semptemtrionales olim æquè ac aliæ medio ævo sæpe uterentur" (p. lxxxiv.).
In his prface to the Nials Saga, Mr. Dasent has described, with great detail, the manner in which the four great inquests of thirty-six householders each were constituted for the four quarter courts at the Althing, but the mode of trial described in the text is one entirely different from the Buakvidr, and was called the "Tolftarkvidr." In it the judgment was given by a verdict of the Godi, or priest, with eleven other members of his district. If we are at liberty to apply the rules laid down in the Grágás to the earlier period of this story, the following particulars may be stated--
The Godi himself named the eleven other men, nor does it seem to have been necessary that they should be householders. This inquest might be challenged, and if they did not agree the majority decided. If they were equally divided that side prevailed on which the Godi voted (Grágás. Thingskapathátr, ch. vii-xvii.). It will thus be seen that practically the case was in the hands of the Godi, and Hallvards fate depended on Glum acting in that capacity; by the Buakvidr his well-known character would probably have secured a verdict against him.
In the Eyrbyggia Saga a complicated case occurs. Geirrid, the sister of Arnkel, himself a Godi, is charged by Thorbiörn with having bewitched his son Gunnlaug. Snorri, another Godi, was the brother-in-law of Thorbiörn, and supported the charge made by the latter. Neither Arnkel nor Snorri therefore, being respectively thus connected with the accuser and accused, were considered competent to decide the case by the Tolftarkvidr. Accordingly a third Godi, Helgi, was called in, but Arnkel was allowed to swear on the altar-ring (Stalla-hring) that Geirrid was innocent, and Thorarin swore with ten men, I presume, the other way. Then Helgi acquitted Geirrid (Eyrbyggia Saga, c. xxi.). In this case Arnkel and Thorarin seem to be something between compurgators and witnesses, but the verdict is given by another. The Tolftarkvidr, therefore, in Halvards case was neither like our "wager of law" nor like the verdict of a jury.
I have already observed that Glums oath of purgation, in chapter xxv., seems to be a case of an exceptional character, dependent on a special compact between the parties. The accusers agreed to a compromise only on the express condition that he should take such an oath, and it must be remembered that another person had already been declared guilty of the death with which he was charged. We are told, at the end of chapter xxiv. that it was on this condition alone the suit was to drop; the oath itself was no part of the proceedings in such suit.
With regard to the Holmgang or duel as a recognized method for terminating a suit, Maurer tells us that it was supposed to be abolished in Iceland in 1011, very few years after the introduction by Nial of the Fifth Court at the Althing, but I confess hat I doubt whether its abolition was so closely connected as he supposes with the institution of this tribunal. In the first place the cases provided for by the Fifth Court in which legal proceedings would previously have been brought to a dead lock, were only a portion, and a small portion, of those in which the Holmgang might naturally be resorted to. In the second place, moreover, we learn that it was in like manner abolished in Norway, in 1012, by Eric, the son of Hakon, without any such supplementary court being instituted to supply its place. 1 I am more inclined to think that the influence of Christianity, and a gradual change in the manners of the people led to an alteration in both countries, and that the same feeling showed the necessity of additional judicial facilities in Iceland. Of course I admit that the institution of the Fifth Court would have a tendency to diminish the number of cases in which men would have recourse to the Holmgang.
In the face of these facts and dates, it is a curious question for an Englishman--"When was the duel as a recognised part of a judicial process abolished in England?" The answer is, in the year 1818! So that in this reform we were 800 years behind our kinsmen in Iceland and Scandinavia.
This subject is interesting in itself, and I am the more tempted to dwell on it because the analogy between the old laws of England and Iceland is very strong and in some points illustrates forcibly that confusion between prosecutions and private suits which makes it sometimes difficult to use what would now be appropriate legal language with reference to transactions narrated in the text.
In an appeal for murder, as it existed in England at Common Law, the relative had the right to proceed; a right designated in Iceland by the word "Eptirmál," and which there could be handed over before witnesses from one man to another.
In England, by an ordinance of Henry I., this right was confined to the four first degrees of blood. In 1297, by the Great Charter of Edward I., it was further limited in the case of women. "Nullus capiatur aut imprisonetur propter appellum femine de morte alterius quam viri sui" (Recort Statutes, vol. i. p 118) In the Eyrbyggia Saga we learn that in consequence of the unsatisfactory manner in which the women, to whom the Eptirmál for a certain Arnkel belonged, had prosecuted the suit, a law was made by the "Landstiórnamenn" (that is, I suppose, the Lögretta or Legislative Committee of the Althing) to the effect that women and minors below sixteen should no longer have the Eptirmál (Eyrbyggia, Leipzig, 1864, p. 69). By our statute of Glouchester (6, Edward I., c. 9, 1278) it was provided that appeals should not abate as easily as had previously been the case, but that if the appellor set forth the deed, the day, the hour, the time of the king, the town where the deed was done, and the weapon, the appeal should not abate for want of fresh suit, provided it was made within the year and day after the deed.
It does not follow that this limitation of a year and a day was then established for the first time (See Blackstones, Comm., iv. p. 315). I ought to observe that the clause referred to above from the statute of Glouchester is printed in the Record Edition of the Statutes from M. 3, Cott. Vesp. B. vii. fol. 24, 6, and is not in the copy in the Tower Rolls or in many other copies of the Act.
By the 3rd of Henry Vii., c. 2 (1487), a great change was made in the proceeding on appeals for murder.
Lord Bacon, in his history of that king, tells us: "There was also made another law for peace in general, and repressing of murders and manslaughters, and was in amendment of the Common Laws of the realm; being this; That whereas by the Common Law the Kings suit, in case of homicide, did expect the year and the day, allowed to the partys suit by way of appeal; and that it was found by experience that the party was many times compounded with, and many times wearied with the suit, so that in the end such suit was let fall, and by that time the matter was in a manner forgotten, and thereby prosecution at the Kings suit by indictment (which is ever the best) flagrante crimine neglected; it was ordained, at any time within the year and the day as after; not prejudicing nevertheless the partys suit." Southey (Common Place Book, iii. p 8) justly remarks that this was the first step towards giving public justice preference over private. By the words "not prejudicing the partys suit," Lord Bacon means that the accused, if acquitted, ought still to be detained in prison or bailed until the year and day had expired, so that the appeal might yet be made by the relatives in spite of the acquittal. Accordingly Sir Thomas Smith, in his (Commonwealth of England," describes both processes by indictment and appeal as still existing; and in 1818, after a prisoner had been acquitted by a jury for the murder of Mary Ashford, the brother of the deceased appealed the defendant in open court. In consequence of this case the whole proceeding by appeal and wager of battle was abolished by the Statute 59, George III., c. 46.
The history of this single point of our criminal law is eminently characteristic of the way in which our institutions work. The practical evils and inconveniences connected with appeals were remedied, as they arose, in the reigns of Edward I. and Henry Vii., but no one ventured to touch the general principle. In fact, in the latter reign, it is clear that the whole proceeding was really out of date, but instead of suppressing it, the legislature contented itself with giving priority to the kings suit, and allowed it to slumber on. All of a sudden, three hundred years afterwards, it is discovered to be alive, and men are startled by its reappearance as much as they would be if one of the mailed barons of those days were now to rise from his tomb in the Abbey, and stalk across to take his seat in the House of Lords. That at last it is really abolished.
1 See Grettirs Saga, chap. xix.