Chapter VI: The Probable Action of the Aggregative and the Disjunctive (2)

For the Alþing was not merely an assembly for the dispatch of business: it was the great annual gathering of the whole nation, a gathering all the more needed in a land where there are no towns, and most men live miles away from their nearest neighbours. To it chieftains rode with their wives and daughters and a band of armed retainers from the furthest corners of the country, taking perhaps, as those must have done who came from the East fjords along the northern edge of the great central desert, a fortnight or more on the way. Shipmasters from Norway or Ireland brought their wares for sale. Artisans plied their trades. We are told that even jugglers’ sheds and drinking-booths were set up, and games of all kinds carried on. It was a great opportunity not only for the renewing of friendships between those who lived in distant parts of the country, but for the arranging of adoptions and marriages; and the Sagas mention numerous instances in which proposals were made or betrothals entered into at a meeting of the Alþing, in most of which instances the will of the maiden seems to have prevailed over that of her parents. It was midsummer, when there is in those latitudes no night, but the glare of day subsides for a few hours into an exquisitely rich and tender twilight, clothing the sky with colours never seen in our duller air. And we can fancy how those who followed their fathers to the Alþing found compensation for all the loneliness and gloom of the long winter in this one fortnight of vivid mirth and excitement.

The meeting of the Alþing was not only the centre of the political life of the Republic. It was, so to speak, the Republic itself, for it was only then that the Republic became visible before men’s eyes or acted as a collective whole. During the rest of the year lawsuits and everything else of public concern were left to the Quarter Þings and local Þings, and to the local Goðis. The few laws or resolutions of general concern which the Alþing passed—they were few, because its legislative activity was chiefly occupied in regulating its own judicial proceedings—were probably meant to be accepted and observed over the whole island, but the Alþing did not attempt to enforce them, and indeed had no machinery by which it could do so. Each Goði was, in a loose way, a sort of executive magistrate over his own Þingmen; but he did not derive his authority from the Central or Federal Alþing, and he was not responsible to the Alþing for its exercise. The Republic, if we may so call it, had no Executive whatever. Its sole official was the Law-Speaker (of whom more anon), but his function was only to declare the law, and was exercised only while the Alþing was sitting. At other times the constituent Þings and Goðis were virtually quite independent, and might and often did carry on war with one another, subject to no penalty or liability for so doing, save in so far as an action for compensation might be brought against any one who had killed another. There was no police, no militia, no fleet, no army, nor any means, like those provided in the feudal kingdoms of contemporary Europe, of raising an army. The isle lay so far away from all other countries except Greenland, on which an Icelandic colony had been planted, that it happily did not need to have a foreign policy. There was neither public revenue nor public expenditure, neither exchequer nor budget. No taxes were levied by the Republic, as indeed no expenses were incurred on its behalf.

The Icelandic Republic was in fact a government developed only upon its judicial and (to a much smaller extent) upon its legislative side, omitting altogether the executive and international sides, which were in the Greek and Roman world, and have again in the modern world, become so important. For a community to exist with such an absence of administrative organization was obviously possible only in a region like Iceland, severed by a wide and stormy sea from the rest of the world, and with a very thin and scattered population; possible too only in a simple state of society where man’s needs are few and every one fends for himself.

The system whose outlines I have sought to draw is full of interest and suggestion, as well to the student of legal theory as to the constitutional historian. Some modern theorists derive law from the State, and cannot think of law as existing without a State. A few among them have in England gone so far as to deny that Customary Law is law at all, and to define all Law as a Command issued by the State power. But here in Iceland we find Law, and indeed (as will appear presently) a complex and highly developed legal system, existing without the institutions which make a State; for a community such as has been described, though for convenience it may perhaps be called a Republic, is clearly not a State in the usual sense of the word. Of Iceland, indeed, one may say that so far from the State creating the Law, the Law created the State—that is to say, such State organization as existed came into being for the sake of deciding lawsuits. There it ended. When the decision had been given, the action of the Republic stopped. To carry it out was left to a successful plaintiff; and the only effect a decision had, so far as the Courts were concerned, was to expose the person resisting it to the penalties of outlawry—that is to say, any one might slay him, like Cain, without incurring in respect of his death any liability on the footing of which his relatives could sue the slayer. Law in fact existed without any public responsibility for enforcing it, the sanction, on which modern jurists so often dwell as being vital to the conception of law, being found partly in public opinion, partly in the greater insecurity which attached to the life of the person who disregarded a judgement. Yet law was by no means ineffective. Doubtless it was often defied, and sometimes successfully defied. That happened everywhere in the earlier Middle Ages, and happens to-day in semi-civilized peoples. But the facts that the Alþing maintained so active a judicial life, that the field of law was cultivated so assiduously, and the details of procedure worked out with so much pains and art, that lawsuits were contested so keenly and skilfully—all these facts seem to prove that law must have in the main had its course and prevailed, for it is hard to suppose that all this time and pains would have been during two centuries or more devoted to a pursuit which had no practical result. The contemporary kingdoms and principalities of the earlier Middle Ages lived by the vigour of the executive. There was in them very little of a State administration, and the law was in most or all of them older than the State—that is to say, it had existed in the form of customs recognized and obeyed before efficient means were provided for enforcing it. So far they resembled Iceland; and the same may be said of the city republics of Italy and Germany. But Iceland is unique as the example of a community which had a great deal of law and no central Executive, a great many Courts and no authority to carry out their judgements.

The process by which the law of Iceland grew, though less exceptional 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.

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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.

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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.

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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).

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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].

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Footnote 135:

See Grágás, chaps. civ-cviii, pp. 143-156 of vol. ii. in the
Arnamagnaean edition.

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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.

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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.

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Another striking scene at the Alþing has been preserved to us in the Saga which relates the introduction of Christianity. King Olaf Tryggvason, the most brilliant of all the Norwegian sovereigns, who, having been himself converted some ten years before, was hard at work converting the stubborn Norwegians by burning their houses and torturing themselves, had sent two missionaries to Iceland, one of whom, the priest Thangbrand, had been obliged to leave Norway on account of his violent life, and who signalized himself in Iceland by committing two murders in the course of his five months’ stay, which was then summarily shortened. The unworthiness of the minister, however, does not seem to have injured the cause he championed. Several men of note embraced the new faith, which was of course well known to the Icelanders from their intercourse with Ireland and Britain, and had the promise of the future to recommend it. These men, and also some heathen chieftains who thought that acceptance was the best way of avoiding civil war, supported the envoys of Olaf, when, at the Alþing of the year 1000, they urged upon the assembly to decree the abolition of paganism. A story goes that, while the debate was at its height, a messenger arrived to tell that a volcano had broken out thirty miles to the south, and was pouring a flood of lava over the pastures. The heathen party accepted the news as an omen, and exclaimed, ‘This is the wrath of the gods at these new rites; see what you have to expect from their anger!’ ‘With whom, then,’ said Snorri, a leading Goði who had not yet declared himself, ‘with whom were the gods angry when this rock was molten on which we stand?’ (pointing to the deep lava rifts that lay around the Lögberg). By the interposition of the Law-Speaker Thorgeir, that which he described as a compromise, but which was in reality a surrender by the heathen party, was at the same Alþing accepted. The people were to be baptized and declare themselves Christians, and the temples and images of the old gods were to be destroyed; but those who liked to sacrifice at home might continue to do so; and two heathen customs, the exposure of new-born infants and the eating of horse-flesh, were to be permitted. Some difficulty arose over the reluctance of those who came from the North and East Quarters of the island to submit to immersion in cold water; but this difficulty was happily overcome by the use of the hot springs at Reykir for the rite.

The century and a half that followed the introduction of Christianity was the most brilliant period in the history of the island. It was not indeed a time of peace, for the old passions and the old superstitions were but little altered. Slayings and burnings of houses with their inmates went on pretty much as before. But there was now added to the stimulus which their free republican life and their piratical expeditions gave to the national spirit the influence of the learning and ideas which came in the train of the new faith. The use of writing soon spread, and the magnificent Sagas, which are among the noblest monuments of Northern genius, were nearly all of them produced in this age, though some were not committed to parchment before the end of the twelfth century.

For many years the Constitution of the Republic seems to have undergone no great alteration. The establishment of Christianity did indeed throw considerable power into the hands of the two bishops, and eventually produced a strife between the Church and the temporal magnates resembling that which distracted both the Romano-Germanic Empire and England. This scarcely affected the position of the Goði, whose authority had now lost so much as it originally possessed of a religious character. Snorri, whose appeal to geology is said to have decided the Alþing against paganism, was himself the priest of the most famous heathen sanctuary of the island. But in the beginning of the thirteenth century the delicately-framed fabric of the Republican Constitution began to break up. The tendency of a federation usually is to become less of a federation and more of a single united state. But in Iceland the federal bond, if one can use this name, was always weak, and when a powerful member became disobedient, there were no legal means of reducing him to submission. By degrees the number of priest-chieftainships diminished, the Goðorðs, which passed not only by inheritance but also by gift or sale, coming to be accumulated in the hands of a few great families, who thus acquired a predominant influence at the Alþing, were virtually masters of large districts of the country, and marched about like feudal lords attended by petty armies. Thus the old blood-feuds assumed more and more the aspect of civil wars. Piracy was now less practised, because the countries which had formerly been ravaged were better prepared for defence, so the energy that used to spend itself upon the coasts of Scotland and Ireland, of North Germany and Gaul, was now turned inward, and with fatal results.

I am not writing the history of Iceland, though indeed I wish I were doing so, for the theme is a fascinating one. But before closing these scattered observations, intended to stimulate rather than to satisfy curiosity, I will add three remarks suggested by the sketch that has been given.

The first remark is that Iceland presents one of the few instances in history of a breach in the continuity of institutional development. The settlers were all of Norse stock; and Norway had in its petty communities a rudimentary system of institutions not unlike that described by Tacitus in his account of Germany, or that which the conquering Angles and Saxons brought to Britain. Each community was an independent Fylki (folk). In each Fylki there was a number of nobles, one of whom stood foremost as hereditary chieftain, and a body of warlike freemen, as well as a certain number of slaves. In each there was a popular assembly, the Þing, corresponding to our Saxon Folk Mot. Now owing to the way in which the settlers had planted themselves along the coasts of Iceland, and to the fact that they were less closely aggregated there than men had been in Norway, this organization did not reappear in the new land. There was indeed everywhere a Þing, for the habit of meeting to deal with lawsuits and other matters of common interest was cherished as the very foundation of society. But an Icelandic community was not a Fylki. It was not an old natural growth, but rather a group of families whose tie was at first only that of local proximity and thereafter that also of worship at a common temple. The Goði, though he became the centre of this group, was not a chieftain with a hereditary claim to leadership, and was not necessarily of any higher lineage than some of his þingmen. Such eminent and high-born men as Njál for instance and Egil Skallagrimsson were not Goðis. The Goðorð was really a new institution, due to the special circumstances of Iceland, and apparently without precedent among the Teutonic races. Still more plainly was the organization of the Republic with its scheme of Courts and its Lögrétta a new creation, due to the wisdom and public spirit of the leading men of the nation, and not a purely natural growth.

Secondly, as the Icelandic Republic is a new form of political society, so the Alþing, in which the unity of the Republic found visible expression, is a unique body, which cannot be referred to any one of the familiar types of assembly. It is not a Primary Assembly, for though all freemen are present, only a limited number of persons are entitled to exercise either judicial or legislative functions. Neither is it a Representative Assembly, for no one was elected to sit in it as a delegate from others. The Goðis sat each by his own right, and the other members as nominees of the Goðis. Neither again is it a sort of King’s Council, like the Curia Regis of mediaeval England, consisting of magnates and official advisers summoned by a monarch. If parallels to it are to be sought, they are to be sought rather in bodies such as the Roman Senate may have been in its earlier form, a sort of council of the heads of organized communities; yet the differences between the Roman _gentes_ and the Icelandic Þingmen, and the absence of an executive magistrate like the Roman king, make the parallel anything but close. Still more remote is the resemblance which the Alþing might be deemed to bear to the council of a league, such as was the Swiss Confederation before 1799, or such as the Diet of the Romano-Germanic Empire in its later days.

The comparison of Iceland to a federation suggests a third question. Why did not the Republic develop into a united State, whether republican or monarchical, as did most of the nations of mediaeval Europe?

Out of several reasons that might be assigned I will mention three only, two of them political, the third physical.

In Iceland there was no single great family with any hereditary claim to stand above the others, while all the leading families were animated by a high sense of pride and a pervading sentiment of equality. This love of equality remains among the sons of the old Norsemen both in Iceland and in Norway, and is indeed stronger there than anywhere else in Europe.

Iceland had not, and could not have, any foreign wars. There was therefore no external strife to consolidate her people, no opportunity for any leader to win glory against an enemy, or to create an army on which to base his power. All the wars were civil wars, and tended to disunion.

The third reason is to be found in the nature of the country. The island, larger than Ireland, has practically no land fit for tillage, and very little fit even for pasture. Neither has it any internal trade. The interior is occupied by snow mountains and glaciers and lava-fields and wastes of black volcanic sand or pebbles. Iceland is really one huge desert with some habitable spots scattered along its coasts. It was the Desert that most of all destroyed the chances of political unity under a republic by dividing the people into numerous small groups, far removed from one another, and in many places severed by rugged and barren wastes, or by torrents difficult to cross.

Nevertheless, although the Republic was evidently destined to perish, it is possible that had Iceland been left to herself the rivalry of the two or three great factions which divided it, and were usually in arms against one another, would have ended in the triumph of one of them, and in the establishment of a monarchy, or (less probably) of several independent rival principalities. But a new and more formidable figure now appeared on the scene. The successors of King Harald the Fairhaired had always held that the Icelanders, since their ancestors had come from Norway, ought to own their supremacy[139], and they argued that as monarchical government was divinely appointed, and prevailed everywhere in Continental Europe, no republic had a right to exist. King Hákon Hákonsson (Hákon IV), one of the greatest among the kings of Norway, now found in the distracted state of the island a better opportunity of carrying out the plans which his predecessors Olaf Tryggvason and Olaf the Saint had been obliged, by the watchfulness of the Alþing, to abandon. By bribes and by threats, by drawing the leading Icelanders to his Court, and sending his own emissaries through the island, he succeeded in gaining over the few chiefs who now practically controlled the Alþing, and at the meeting of midsummer, A.D. 1262 (one year before the battle of Largs, which saved Scotland from the invasion of this very Hákon), the Southern, Western and Northern Quarters accepted the King of Norway as their sovereign, while in 1264 (the year of the summoning of the first representative Parliament of England by Earl Simon de Montfort) the remaining districts which had not yet recognized the Norwegian Crown, now held by Magnus son of Hákon, made a like submission. Thenceforward Iceland has followed the fortunes first of Norway and then of Denmark. In 1814, when Norway was severed from the Danish and transferred to the Swedish Crown, Iceland ought to have gone with Norway. But nobody at the Congress of Vienna knew or cared about the matter[140]: and so Iceland remains attached to Denmark, for which she has little love.

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Footnote 139:

This claim of a Crown to the allegiance of emigrants who had passed
into new lands reminds one of that made by the British Government,
down to 1852 and 1854, as respects the Dutch farmers who had gone
forth into the wilderness of South Africa in 1836.

Footnote 140:

The preliminaries to the Treaty of Kiel by which Norway was severed
from the Danish Crown to be attached to the Swedish refer to Iceland,
the Faeroe Isles, and Greenland as having ‘never belonged to Norway.’

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With the free republic the literature which had given it lustre withered up and disappeared. Only one work of high merit, the religious poem called _The Lily_, was produced in the centuries that succeeded down to the Reformation, when the spirit of the people was again stirred, and a succession of eminent writers began which has never failed down to our own day. But in the darkest times, in the ignorance and gloom of the fifteenth century, in the pestilences and famine caused by the terrible volcanic eruptions of the eighteenth, which are said to have destroyed one-fifth of the population, the Icelanders never ceased to cherish and enjoy their ancient Sagas. No farmhouse wanted its tiny store of manuscripts, which were and still are read aloud in the long nights of winter, while the women spin and the men make nets and harness. And it is beyond doubt chiefly owing to the profusion and the literary splendour of these works of a remote antiquity—works produced in an age when England and Germany, Italy and France had nothing better than dull monkish annalists or the reciters of such a tedious ballad epic as the _Song of the Nibelungs_—that the Icelandic language has preserved its ancient strength and purity, and that the Icelandic nation, a handful of people scattered round the edge of a vast and dreary wilderness, has maintained itself, in face of the overwhelming forces of nature, at so high a level of culture, virtue and intelligence.

VI

THE
UNITED STATES CONSTITUTION
AS SEEN IN THE PAST

THE PREDICTIONS OF HAMILTON AND TOCQUEVILLE

He who desires to discover what have been the main tendencies ruling and guiding the development of American institutions, will find it profitable to examine what were the views held and predictions delivered, at different epochs in the growth of the Republic, by acute and well-informed observers. There is a sort of dramatic interest in this method of inquiry, and it is calculated to temper our self-confidence in judging the phenomena of to-day. Besides, it helps us to realize, better than we can do merely by following the course of events, what aspect the political landscape wore from time to time. When we read a narrative, we read into the events our knowledge of all that actually flowed from them. When we read what the contemporary observer expected from them as he saw them happening we reach a truer comprehension of the time.

To collect and set forth a representative anthology of political prophecies made at critical epochs in the history of the United States, would be a laborious undertaking, for one would have to search through a large number of writings, some of them fugitive writings, in order to present adequate materials for determining the theories and beliefs prevalent at any given period. I attempt nothing so ambitious. I desire merely to indicate, by a comparatively simple example, how such a method may be profitably followed, disclaiming any pretensions to dig deep into even the obvious and familiar materials which students of American history possess.

For this purpose, then, I will take two famous books—the one written at the very birth of the Union by those who watched its cradle, and recording incidentally, and therefore all the more faithfully, the impressions and anticipations of the friends and enemies of the infant Constitution; the other a careful study of its provisions and practical working by a singularly fair and penetrating European philosopher. I choose these books not only because both are specially representative and of rare literary merit, but because they are easily accessible to European as well as American readers, who may, by referring to their pages, supply the omissions which want of space will compel me to make, and may thereby obtain a more full and graphic transcript of contemporary opinion. One of these books is _The Federalist_[141]—a series of letters recommending the proposed Constitution for adoption to the people of New York, written in 1788 by Alexander Hamilton, afterwards Secretary of the Treasury, James Madison, afterwards President from 1809 to 1817, and John Jay, afterwards Chief Justice from 1789 to 1795. They were all signed _Publius_. The other, which falls not quite halfway between 1788 and our own time, is the _Democracy in America_ of Alexis de Tocqueville.

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Footnote 141:

There are several good editions of _The Federalist_. The latest and
one of the best known to me is that edited by Mr. Paul Leicester Ford
(New York, 1898).

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