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SUPPLEMENTARY NOTE
On Judicial Proceedings on the Holmgang, and Appeal
for Murder.
When I first read the account of Hallvard’s 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
cćterć gentes Semptemtrionales olim ćquč ac alić medio ćvo sćpe uterentur"
(p. lxxxiv.).
In his prface to the Nial’s
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 Hallvard’s 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 Halvard’s case was neither like our "wager of law" nor like
the verdict of a jury.
I have already observed
that Glum’s 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 King’s suit, in case of homicide, did expect the year and the
day, allowed to the party’s 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 King’s 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 party’s 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 party’s 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 king’s 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.
THE END.
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Supplementary Note
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