1117 IN ICELAND AND ENGLAND
BY

PETER FOOTE
EMERITUS PROFESSOR OF SCANDINAVIAN STUDIESIN THE UNIVERSITY OF LONDONThe Dorothea Coke Memorial Lecturein Northern Studies
delivered at University College London
14 March 2002

PUBLISHED FOR THE COLLEGE BY THE
VIKING SOCIETY FOR NORTHERN RESEARCHLONDON© UNIVERSITY COLLEGE LONDON 2003

ISBN: 0 903521 59 8

PRINTED BY SHORT RUN PRESS LIMITED EXETER

1117 IN ICELAND AND ENGLAND1AMAN IN HIS DOTAGE HAS FEW UNTRIED ORATORICAL DEVICES

left to him in attempting to capture the benevolence ofan audience. Acknowledging defeat in the struggle fornovelty, I fall back on an old anecdote. It has the advantage first of
unimpeachable authority, for it was recorded by Dean Ramsay of
Edinburgh in his Reminiscences of Scottish Life and Character,published in 1857; and the advantage second of remarkable aptness
to my present circumstances. The Dean tells of a Highland hamlet
cut off by snow for weeks on end. Tobacco supplies were exhausted
and the minister of the parish, an inveterate snuff-taker, was indesperate straits. He at last sent his beadle through the snow tofind what he could; all in vain – he came back empty-handed. The
despondent minister made a final appeal. Struck by a sudden
thought, the beadle left him, only to return a few minutes laterwith a well-filled box. The wordless minister took a long, deep
pinch. Then asked where he had got it. To which came the reply,“I soupit the poupit” – “I swept the pulpit.”
I can say much the same of this paper, a miscellany, I fear, as
dry as old snuff, though perhaps the more desperately tolerant
among you will find some small savour still in a few grains. Despite
this dismal outlook, I shall at least endeavour not to emulate thatelderly peer of the realm who dreamt he was making a speech in
the House of Lords and woke up to find that that was precisely
what he was doing.
I feel it proper however to begin by saying something about theorigins of this memorial lectureship. I am particularly moved to
do so because I am pretty certainly the only surviving member of
1 This lecture is printed almost exactly as it was delivered, with a few footnotes
added where documentation seemed most called for. The knowledgeable reader
will readily see where I tread boldly on thin ice. I am grateful to Michael Barnes forhis help as general editor.

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the College who had any personal acquaintance with Colonel Coke,and heard from him a little – not much for he was a modest, reticent
man – about his pious motive.
Colonel B. E. Coke, born in 1884, came of landed gentry in
Derbyshire.2 His army career was with the Royal Engineers, fromwhom he retired after good service in the first war with the rank of
Lieutenant-Colonel. After a year or so he went up to Clare College,
Cambridge, to read Natural Sciences, graduating in 1922 at theage of thirty-eight. As far as I know, he then settled down to manage
family affairs. They seem to have prospered and latterly he certainly
had both the fortune and the leisure to travel and to fish. He
combined these pastimes in a commendably sensible way by going
northward, to Shetland, Iceland, Norway. His wife, Dorothea (theyhad married in 1907), went with him and one time in Norway,
while he fished up in Namdalen, she took an interest in the antiquities round about and became fascinated by the stories, quite
likely tall stories, told her by a local guide about his Viking
ancestors, whose burial mounds were still there to be seen in thelandscape. So fascinated, indeed, that in her last years she read
and wrote and talked about Vikings and their impact on England,
subjects which, in her circle at least, she felt to be quite unduly
neglected. When she died in 1952 Colonel Coke looked for amemorial which would foster the interests she had pursued withsuch enthusiasm. Not unnaturally, he turned to Cambridge andconsultation there led to the establishment in 1954 of the Dorothea
Coke Fund, whose purpose, as now defined, “shall be to promote
the publication of original work on the early history of the
Scandinavian countries”. For nearly half a century the Fund has
been of great benefit to authors and publishers, and since it is in ahealthy condition – so I am told – will doubtless continue to be. I
say this in spite of the feeling I sometimes have that a fund which
would pay some authors not to publish would also be a good
institution.
It was through the Fund that first the Viking Society and thenour Department of Scandinavian Studies came to know Colonel
Coke. In 1957 the Society undertook to publish an important
2 Burke’s Landed Gentry (18th ed., 1965), 147–49 (Coke of Brookhill).

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monograph, Dating the Icelandic Sagas, by Einar Ólafur Sveinsson,translated by Gabriel Turville-Petre. The Society was of course
short of cash and a subvention was sought from the Cambridge
Fund. The managers were sympathetic but unable to help because
an article of the donation agreement limited their support to workby British authors. It was however suggested that a personal
approach might be made to Colonel Coke. Now Hugh Smith, of
blessed memory, Quain Professor of English at the time, was also
Director of Scandinavian Studies in the College and, with Gabriel
Turville-Petre, Honorary Secretary of the Viking Society, while I
was Reader in the Scandinavian Department and Assistant
Secretary of the Society. Hugh had a happy solution to many
problems: “Let us have a lunch,” he would say. So we had a lunchwith Colonel Coke as our guest, and, as usual, enough wine flowed
to ensure that talk flowed too. Colonel Coke made a private
donation towards publication of Einar’s monograph. It came out
in 1958, and the verso of the half-title page bears an inscription:“The publication of this volume has been made possible by a gift
in memory of Dorothea Coke”, followed by three lines of verse,
frankly sentimental, recalling magical fishing days in West Iceland:
But the whimbrel still are calling
And the silver water’s falling
Just where Langá River joins the sea.
I kept in touch with Colonel Coke thereafter, and one day, needlessto say over lunch, the notion of this memorial lecture was born.
Agreement was easily reached with the College, Colonel Coke
firmly admonishing the College authorities to do all in their power
to maintain the value of the capital he contributed – astonishingly
enough, this appears to have happened. It was intended that stressshould lie on early Anglo-Scandinavian relations, reinforced by
the proviso that lectures should be given alternately by a homebred
scholar and one invited from the Northern world. The first in theseries in 1963, when Norman Garmonsway spoke on Canute, kingof England, Denmark and Norway, was a happy choice; and witha couple of exceptions the English element in the performance has
been dutifully maintained. The lectures were not established as
calendar fixtures – this is now the seventeenth – and you may
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have noticed that I managed to squeeze England into my title. As
happens often enough in this imperfect world, that title had to besubmitted long before I had much idea of the substance of mytalk: I have always had sympathy for the querulous remark
attributed, I think, to W. B.Yeats: “How can I tell what I mean till
I’ve heard what I’ve said?” But I should make it plain at this pointthat 1117 in England and 1117 in Iceland represent a coincidence,
not a connection, a coincidence though which may permit somecomparison and more especially some contrast. The laws of early
Iceland are my main topic. As a species of literature and as a fountof historical information at various cultural levels students andscholars alike tend to find these problematic, intractable, amorphous, even mysterious. Discussion which may help to throw lighton their nature is, or ought to be, welcome. Or so I hope.
So I start with 1117 in Iceland. That summer was Bergflórr Hrafnsson’s first summer as Lawspeaker, and at the General Assembly
the novel resolution was taken to write our laws in a book at Hafli›i Másson’s
during the coming winter, following the account and counsel of Hafli›i andBergflórr and other wise men selected for the task. They were to make all the
new-law proposals that seemed to them better than the old laws. The proposals
were to be announced in the Law Council the following summer and all those
kept to which the majority of the Law Council men did not object. And it cameabout in due course that Vígsló›i and much else in the laws were written andread out next summer by clerics in the Law Council. And all were content withthat and no one made any objection to it.

This well-known passage from Ari fiorgilsson’s Íslendingabók3
was written within ten years or so of the event – we need have no
doubt of its accuracy and we may be glad to have it. Ari doubtless
included this information because he saw written law as a sign ofnational maturity, a statement of national identity, and found it
needless to give the further details we would have welcomed. How
many and who were the other experts consulted? What was written
besides Vígsló›i? What was read out in the Law Council in 1118 –the whole of Vígsló›i and “much else in the laws” or only thenovelties that improved the earlier regulations – and were men
reminded what those earlier rules were? One thing we can be certain
3 Íslendingabók, ch. 10; ed. Jakob Benediktsson, Íslenzk Fornrit I (1968), 23–24.

61117 IN ICELAND AND ENGLAND

of is that there was a discrete section of the laws, Vígsló›i, which
dealt with homicide and related matters; and if that was the case,there were doubtless other discrete sections dealing with otheraffairs. The arrangement of the laws was an organised arrangement.
The codification begun in the winter of 1117 may have been
continued but no source confirms that it was. Nevertheless thework that resulted from the deliberations of those law-learned men
existed in a manuscript which was apparently accorded official
status and was referred to as Hafli›askrá, Hafli›i’s screed; we canof course assume that it existed in other copies as well. We know
about its official status from a provision in the so-called Law
Council Section of the laws, which defines the authority enjoyedby different law records; the provision most probably dates fromthe latter half of the twelfth century, and the framers of it thenregarded Hafli›i’s screed, as far as it went, as authoritative.4 The
provision presupposes however that other law records might
disagree with it – in that case they were either adulterated transcripts
or records obtained from other men, whose memories were quitepossibly stocked with laws different in form or content, or both,from those of the Hafli›i revision. They may even have been
derived from pre-Hafli›i written sources, for it is not out of theway to suppose that laws were recorded in Iceland before 1117,
recorded but not codified. By 1117 Icelanders had been Christianfor over a century. In that time the essential work of education had
been undertaken by foreign bishops and then by the native bishops,Ísleifr Gizurarson and his son, Gizurr, and men closely associatedwith them and their family. Two of the missionary bishops both
spent nineteen or twenty years in Iceland and their subsequent
careers showed they were churchmen of distinction: the one left in
1049 and became abbot of Abingdon in Berkshire, the other left in
1067 and became bishop of Selje in Norway, the precursor of thesee of Bergen.5 They were certainly familiar with written law and4 Grágás I, Første Del, ed. Vilhjálmur Finsen (1852; reprinted with Grágás II and
III, 1974), 213; Laws of Early Iceland I, tr. Andrew Dennis, Peter Foote, Richard
Perkins (1980), 190–91.
5 Oluf Kolsrud, Den norske Kirkes Erkebiskoper og Biskoper indtil Reformationen,
Diplomatarium Norvegicum XVII:B (1913), 197.

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the same can be said of Ísleifr and Gizurr. These, father and son,had both been to school in Germany, Ísleifr from childhood tillafter ordination as priest, Gizurr we don’t know how long. They
may not have known Frankish law-texts but they were obviously
acquainted with church law in various forms, Pseudo-Isidore
perhaps or even Burchard’s great Decretum, completed in just those
years that Ísleifr spent at Herford in Westfalen and apparently put
into rapid circulation; or at least some of Burchard’s many sources,
capitulary and canon collections and penitentials, not forgettingthat ultimate source, Scripture itself. And in any case law wasundoubtedly being written in Norway in their time, though opinions
differ on whether that recording began before or after about 1050.6
Preserved among the Grágás laws is an attestation to the terms ofa pact believed to have been made between the Icelanders and St
Óláfr of Norway. King Óláf’s effective rule was from 1015 to 1028,
but the attestation almost certainly dates from 1083, when Bishop
Gizurr was on his way home from consecration at the pope’s behest
in Magdeburg.7 It would be absurd to think that in that circle andthose circumstances the articles of the pact then affirmed were notdocumented.
The provision which referred to Hafli›i’s screed gives prime
authority to the lawbooks kept at the cathedral establishments ofSkálholt and Hólar, with ultimate precedence given to the one at
Skálholt, the centre of the senior and larger diocese. This enactment
has been compared to the so-called Citation Laws of late antiquity,
the most important of them issued by the emperors Theodosius
and Valentinianus in 426, which laid down a similar ordering oflegal authority.8 The need for such regulation is reckoned to be
the confusion that arose from conflicting law records and jurists’

6 Cf. Magnus Rindal in Den eldre Gulatingslova, ed. Bjørn Eithun, Magnus Rindal,

Tor Ulset; Riksarkivet, Norrøne tekster nr. 6 (1994), 9–12.
7 Grágás I, Anden Del, ed. Vilhjálmur Finsen (1852), 195–97; Laws of Early
Iceland II, tr. Andrew Dennis, Peter Foote, Richard Perkins (2000), 210–13. Gizur’s
consecration in Magdeburg was a papal move in the strife between Gregory VII andemperor Henry IV; cf. D. Claude, Geschichte des Erzbistums Magdeburg I (1972),
349–79.
8 See “Some lines in Lögréttufláttr” in Peter Foote, Aurvandilstá (1984), 155–64.

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opinions. From this it is natural to infer the existence of much
written law in twelfth-century Iceland, and not all of it coherently
univocal. Whole lawbooks may have been rare, though there weremen wealthy enough to commission them, but separate sectionsof particular everyday concern, procedural rules, formula collections, may have been commonplace. We remember that about 1150
or not long afterwards the First Grammarian urged the utility of
his orthographic system as a help towards reading and writing andput laws first in his list of what was now written and read.9 Although
this was an age of script, there is of course no need to think thatlearning law by heart was a thing of the past. Stories make a themeof boys learning law from mentors, Gunnlaugr ormstunga fromfiorsteinn Egilsson, Sigmundr Leifsson from firándr í Götu; and in
1221 Gizurr fiorvaldsson precociously prosecuted a case at theGeneral Assembly at the age of twelve – it is unlikely that he neededa book.10
It will come as no surprise to you to learn that almost everything
I have said so far cannot be backed by first-hand contemporary
evidence. Our knowledge of early Icelandic law depends pretty
well entirely on two large collections preserved in two handsome
codexes, known respectively as Konungsbók and Sta›arhólsbók,
written in the last third of the thirteenth century, 150 years after
the composition of Hafli›i’s screed. I should of course acknowledge
in passing that there is a good deal of legal action in numerous
sagas with settings in the tenth and early eleventh century, but
their accounts can hardly be counted individually reliable as caselaw. If their descriptions agree with laws in the codexes justmentioned – the laws collectively referred to by the old misnomer,
Grágás – we are none the wiser; and if they disagree, we lackcriteria to distinguish what might be from an old, deviant source
and what depends on an author’s artistry or ignorance. But the
9 First Grammatical Treatise, ed. Einar Haugen (2nd ed., 1972), 12, 32; The First

Grammatical Treatise, ed. Hreinn Benediktsson (1972), 208, 246.
10 Gunnlaugs saga ormstungu, ch. 4; ed. Sigur›ur Nordal og Gu›ni Jónsson,Íslenzk Fornrit III (1938), 60; Færeyinga saga, ch. 57; ed. Ólafur Halldórsson (1987),
134; Íslendinga saga, ch. 39; ed. Jón Jóhannesson, Magnús Finnbogason og Kristján
Eldjárn, Sturlunga saga I (1946), 283.

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stories do introduce us to medieval Icelanders’ notions of equity,
something not to be expected in the laws, and sometimes ameliorate
the laws’ strict view of matters such as intention and liability. They
also reveal that law could be manipulated: but that is a lesson we
have all learnt nearer home.
Put together, and supplemented by various manuscript scraps,
the collections make a formidable body of law. It has long beenthought likely that their assembled texts were the result of politicalinterest, associated in some way with the discussions that preceded
and followed the Icelanders’ decision to accept the overlordshipof the Norwegian king, by the pact finally agreed in 1264, discussions doubtless kept alive into the 1270s because of the abortive
attempt to introduce a new king-given lawbook in that decade.
Normal resort to law had doubtless been curtailed in the turbulent
times of the mid-thirteenth century, when violent and ambitious
chieftains had the upper hand over law-abiding men. Facing aradical constitutional move about 1260, influential men wanted togather together the laws of the nation in order to borrow theirauthority in negotiations with the Norwegian leaders. These may
be plausible circumstances but they remain entirely conjectural.
We do not know where the editorial work to produce the Grágás
collections was undertaken, but evidently in scriptoria where earlier
copies of law-texts existed or could easily be gathered up. Thosecopies doubtless varied in quality and extent and most were
probably copies of copies of copies, although sometimes thelanguage of an extant text suggests a twelfth-century exemplar.
Dateable references are few. Observance of the feast-day of St
fiorlákr of Skálholt, for instance, was made law in 1199, that of St
Jón of Hólar in 1200; observance of fiorlák’s translation in 1237.
Amendments to the kinship degrees within which marriage waslawful were introduced as law in 1217, the outcome of decisionsof the 1215 Lateran Council. Absence of these provisions in a text
would be taken to indicate an origin before those dates, but they
were of course items easily inserted in a law record that wasotherwise archaic. It will be an absorbing task for a philologist todelve down through the scribal layers and lay bare some foundations. I sometimes regret that I have not spent my fifty years inthis game doing just that – half a century would be just about long10

1117 IN ICELAND AND ENGLAND

enough – rather than indulging in other more frivolous pursuits.
And there is ample scope for work by the comparative legal
historian, who could and should be asked to assess where possible
the degree of native independence manifested in different parts of
the Icelandic system.11
Vígsló›i, the section on homicide singled out for mention by
Ari, is extant in both Konungsbók and Sta›arhólsbók. The Konungsbók text is one of the longest sections in that codex, some
12,000 words, and if we take in additional matter from Sta›arhólsbók we have a text-mass of something like 16,000 words – thelot would take four or more hours to read aloud. Somewhere inthese texts we must have the contents of the homicide section of
Hafli›i’s screed, but we cannot delineate them; and where a law ismarked as a n‡mæli, a new provision, we are in no position to put
a date on it. We can however safely assume that procedures
remained unaltered, for it is a standard feature of Icelandic lawstatement that for a given offence the penalty is laid down and themeans of proof prescribed; where appropriate, permissible defence
proofs are also listed. Cases, necessarily preceded by publishing
and/or summoning, were heard before groups of nominated judges.
Means of proof were eye- and ear-witnesses and, as a universal
feature, verdicts delivered by a panel of neighbours, five or nine,
depending on the nature of the suit. Oaths were sworn by every
participant. Strict attention was paid to proper preparation andwitnesses to every step in procedure were obligatory. The standard
penalties in the developed system were the three-mark fine, lesser
outlawry – that is confiscation of property and three-year banishment from Iceland – and full outlawry, which made the culprit an
outcast and was virtually a death-sentence. In private law cases
various penalty payments were also stipulated, for default or
recalcitrance, for example. The court system on these lines, withadversarial confrontation, proved a supple invention which was
further prescribed for the resolution of various kinds of local
dispute.
11 An interesting step in this direction has recently been taken by Wolfgang Gerholdin his Armut und Armenfürsorge im mittelalterlichen Island, Skandinavische Arbeiten
18 (2002).

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Opinions have naturally differed about the nature of all thislegislation but over the past century the view that has carried mostweight has been that of the great Grágás editor, Vilhjálmur Finsen.
He concluded that the Grágás texts were not any straightforward
record of customary law; they were not a series of tracts privately
composed by law-learned men; nor of course could they dependon judge-made law in any way – the bulk of them fundamentally
represented positive law-giving with the authority of the Law
Council behind it.12 It is however hard to believe that every clausehad been considered and ratified by the Law Council; and more
attention should doubtless be paid to the contributions of lawlearned men, men of the stamp of those engaged with Hafli›i andBergflórr in the deliberations of 1117 or those five or more called
on to assist a Lawspeaker who found his grasp of any section of
the law inadequate for a proper rehearsal of it.13 They might becompared in their remote way to the jurists of Rome, whose role
as “subordinate law-makers” is acknowledged;14 and we may thinkthat the formulation and elaboration of the laws that ultimately
found their way onto vellum were the deposit of their ingenious
minds as well of their capacious memories. The typical introduction, flat er mælt í lƒgum várum, “It is prescribed in our laws
. . .”, was an easily adopted formula, and when the framing islargely casuistic, “if so-and-so, then so-and-so”, an enquiring or
sportive intelligence could be readily prompted to consider anothercontingency and add another “if” clause to the series; or a thinking
man might be led to insert comment or to deduce a general rulefrom articles just enumerated, though there are not many utterancesof this kind in Grágás laws. We are also told that where law-texts
differed, the one to follow was the one “which says it at greater
length in words that affect the case at issue”.15 Development byaccretion and expansion is a possibility to be reckoned with.
12 His conclusions are summarily expressed in the Efterskrift printed in Grágás,Fjerde Del (1870), 218–21 (in the 1974 reprint included at the end of Grágás I).
13 Grágás I, Første Del, 209; Laws of Early Iceland I, 188.
14 Alan Watson, Roman Law and Comparative Law (1991), 114–15.
15 Grágás I, Første Del, 213: er lengra segir fleim or›um er máli skipta me›mƒnnum; Laws of Early Iceland I, 190.

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There is a fragmentary manuscript, AM 315 D fol., which isamong the oldest surviving Icelandic vellums, commonly dated tothe second half and most probably to the third quarter of the twelfth
century.16 We might reckon its exemplar was written no more thantwenty years or so after Hafli›i’s screed. The fragments preserve
bits of the section of the laws dealing with land-claims, land-use
and ownership rights. In Konungsbók the whole section is about
one-third as long again as the homicide section, in Sta›arhólsbók
it is more than twice as long; both include passages closely
corresponding to the text preserved in 315 D fol.17 The translation
I now read from this earliest source keeps close to the clausestructures of the Icelandic. The situation envisaged is that of aman who has come to maturity and wants to repossess inheritedlanded property which has been disposed of while he was still award and his affairs looked after by a guardian. We have no idea
how often such a situation arose, but since the associated rules arerational and the procedures practical, we may believe that they
were called forth by real contingency and were not an imaginative
exercise. A claimant was required to publish his claim at the endof one summer’s General Assembly as a case he proposed to prosecute for judgment at the Assembly a year later. In this second year:
He is to call nine neighbours at the assembly, those who live nearest the estate,
to give a verdict on whether or not his father owned that estate on his dying day,or the man from whom he inherited did so, and name him and the estate. And if
the panel gives a verdict that the man from whom he inherited owned the estateat that time, then the estate must be adjudged to him unless the man who hadcare of the ward’s property can bring a legal defence. This man is to call for aclearing verdict from five neighbours drawn from the prosecution panel, those
who live nearest the estate, to give a verdict on whether debts cumbered that
estate or not, or whether dependents were a charge on the means or not, so thatthe capital would diminish. If that verdict is given in his favour, then the man
16 Printed Grágás I, Anden Del, 219–26; cf. Grágás III (1883), xxxvi–xxxvii. On

the dating see Harald Spehr, Der Ursprung der isländischen Schrift und ihre
Weiterbildung bis zur Mitte des 13. Jahrhunderts (1929), 170, n. 1; his conclusion,“Am besten setzt man sie in das 3. viertel des 12. jh.”, is accepted in Ordbog overdet norrøne prosasprog. Registre (1989), 441.
17 For the text of the following translated passage see Grágás I, Anden Del, 221–
22; cf. Grágás I, Anden Del, 76–78; Grágás II (1879), 414–15; Laws of Early IcelandII, 97–99.

131117 IN ICELAND AND ENGLAND

asserting the claim is to call the same five neighbours [to give a verdict onwhether] full value was met by full payment or not. If the panel gives a verdictthat [full value had not been met by full payment, then the defender has the rightto ask] the same neighbours to give a verdict on whether the estate was sold at
the best price that could be got or not. If the panel gives a verdict that he sold at
the best price he could get, then he keeps the estate unless the claimant argues
the case further. Then the man asserting the claim is to call for a verdict onwhether he was better off with the estate sold as it was or unsold. If the panel
gives a verdict that he was better off with it sold, then he is to call for anotherverdict on whether there were tenant farms to sell, or rights in other men’s land,so that nevertheless cash or capital could have been kept in the main estatethough it remained unsold. If the panel gives a verdict that there were tenant
farms or rights in other men’s land so that means enough would have been to
hand if they were sold first, then the estate reverts to the man asserting the claim
but otherwise not . . .

And we learn later that the man who irresponsibly first sold theestate was liable to a penalty of lesser outlawry at the suit of theclaimant to whom the land reverts and at the suit of the man who
first bought it from him; and there were more rules to follow if
there had been a chain of subsequent owners.
Now the passage I quoted may sound quite a mouthful, but it isin reality precise, deliberate, technical prose, with enough defining
clauses to make it clear which party is involved at any stage and atonce flexible enough and emphatically repetitive enough to takethe legal moves forward step by step.
This style is the manner of the Grágás laws in general but also
the manner of the two other Grágás sections whose written
existence may be taken for granted from their first acceptance.
They are the Tithe Law and the general laws relating to Christianobservance, the first composed 20 years before Hafli›i’s screed,
the second codified ten years or so after it. We might note too that,
although both these sets of regulations were of clerical origin, they
were the law of the land and the procedures and penalties prescribedin them were those of the ordinary courts, for dereliction of clericalduties as well as for secular offences. The same style must obviously
have been that of Hafli›i’s screed itself. These texts from eitherside of 1100 help to bridge the gap between the twelfth century
when literate law predominated and the pre-literate age when laws
were preserved in the minds of men and transmitted by word of
mouth. Can we avoid the conclusion that the laws of that early
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oral age were also in a similar “dense and business-like” style? It
would take us too far afield to explore that possibility, but it isclear enough that the progressive formality and repetition would
be aids to memory, and the court procedures, means of proof andpenalties were in their way automatic responses. That the existenceof such legal prose and widespread knowledge of it might be ofmaterial assistance in the development of a lucid, orderly narrative
prose, capable of introducing many names of people and placesand describing action concisely and graphically – the prose, thatis, of the thirteenth-century kings’ sagas and sagas of Icelanders –seems to me highly probable. There is no single answer to thequestion, “What were the origins of Icelandic literature?”, but I
would count the contribution of the law-framers, law-learners andlaw-recorders from early times a significant element.
And so we come at last to 1117 in England. According to theChronicle, not much happened that twelvemonth. King Henry spent
the year fighting in France while his English subjects suffered, intime-honoured fashion, from heavy taxes and atrocious weather. I
have to confess however that 1117 here is a surmise, though not awild one. There is a Latin text known as Leges Henrici primi,
Laws of Henry the First, which has long been of interest to legal
historians. Needless to say, they are not laws issued by King Henry,
but they are from his time, and he and his queen, Matilda, figure in
the proem. Matilda died in 1118, so the Leges were composed
before then. After suitable deliberation, Professor Downer, theirmost recent editor, decided that the likeliest period for theircompletion was 1116 to 1118.18 Even I could see that between
1116 and 1118 there were not many years to choose and I gratefully
settled on the obvious one. So 1117 may not be quite exact but it iscertainly near enough for my modest purpose.
The author of the Leges is identified as the man who made, or
started to make, the work known as Quadripartitus, the first partof which consists of translations of Anglo-Saxon laws. When hegot into the second book of the four he originally planned he gave
up and embarked on the Leges instead, drawing on his translations
and other sources to present a selection of laws which he regarded
18 Leges Henrici Primi, ed. L. J. Downer (1972), 36.

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as applicable, or desirably so, in his own day.19 The Leges are
considered a substantial work for their time, but the whole book is
only about as long as the homicide section in Grágás. The author
mixes his law statements with sententious remarks and maxims
and he progresses more by association of ideas than by systematic
principle. On the other hand, he is willing to apply scholastic
distinctions and to introduce more abstract classifications. The kindof legal thinking evident in the Leges is quite unlike that of the
Icelandic legislation where enumeration and definition almost
always serve only practical ends.
The author of the Leges made eclectic use of sources, mostly
Anglo-Saxon laws, particularly Cnut’s, which he had translated in
the Quadripartitus, but it is reckoned that ten percent of his material
is not of English origin at all. He quotes Augustine and Isidore,
decretals and Frankish codes. His scope is also restricted, withvery little reference to inheritance or land-law. I was momentarily
cheered to find the following passage in the Leges which appeared
to be consideration of a claim for inherited land now in someone
else’s possession,20 a situation comparable to that found in thepassage I read just now from AM 315 D:
A person who is proceeded against with respect to his inherited property shall,
after he has reached the age of fifteen years, have an advocate to represent him
or himself appear in defence; and he shall bring a charge in respect of his
possessions in order that no one may remain in occupation of them for a year
and a day without being challenged, while he is of sound health and there ispeace in the country . . .

– only to share Dr Wormald’s disappointment on discovering that
“What ought to be precious evidence of early English inheritance
law . . . was lifted almost word for word from Lex Ribuaria” – thatis, from the laws of the Franks east of the Rhine codified in theseventh century.21 There is no need to elaborate on the difference

19 See Leges Henrici Primi, 5, 17–20; Patrick Wormald, Legal Culture in the

Early Medieval West (1999), 81–114; idem, The Making of English Law I (1999;
pb. 2001), 236–66, 407–14, 465–71.
20 Leges Henrici Primi, 184–85 (§ 59, 9a).
21 The Making of English Law I, 414.

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between this vague statement of principle, hedged with opaqueconditionals, and the brisk squad-drill of the Icelandic regulations.
Before making brief comparison of other salient features, I may
say that there are some articles in the Leges which remind us of
Scandinavian laws and may help to confirm their relative antiquity
in the North: the levelling oath, for instance, known from mainland
Scandinavian laws, by which a man accepting compensation is
face-savingly assured by his opponent that he too would accept
compensation in the same circumstances; or the idea that it was
ignominious to go on accepting atonement for injury without
forceful retaliation, a practice which the Norwegian Gulathing law
specifically limited.22
The complexity of the English legal situation and of English
society comes out clearly in the Leges. The author recognises thelaws of Mercia and the Danelaw alongside those of Wessex, though
he considers the last to be the ultimate arbiter, but he also refers todifferent practices in Kent and London and leaves some points tobe settled by unspecified local custom. All this, of course, is not
surprising, given centuries of Anglo-Saxon settlement, more recent
Scandinavian invasion, and now new conquest by Normans. He
knows three main classes above the unfree, 1200 shilling men,
600 shilling men, and 200 shilling men, with six of the last kind
killed in fit revenge for one of the first kind. Local units, tithings,
were made responsible for every member of that division of thehundred. Most men were expected to have a lord and lords had
overlords; they took their dues when their men were involved before
the law. Ownership of land could confer jurisdictional rights inthe same way as comital office, and manorial courts could exist
alongside the monthly hundred moots and the twice-yearly shireand borough moots. Procedures were largely based on status,
compurgation and ordeal, including trial by battle. Cases were heard
by few judges, lords, bishops, officers of the crown, other men of
22 Leges Henrici Primi, 142–43 (§ 36, 1d); 144–45 (§ 39,1). Cf. references s.v.

jafna›arei›r in Johan Fritzner, Ordbog over Det gamle norske Sprog II (1891),
220–21; Den eldre Gulatingslova, ed. Bjørn Eithun, Magnus Rindal, Tor Ulset (1994),
120 (§ 186): Nv a engi ma›r rett a sér oftarr en flrysvar . . . ef hann hemnisc eigi amilli.

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standing, and the author of the Leges can sometimes urge them toweigh circumstances, use discretion and show compassion. Above
all was what the author calls “the formidable authority of royalmajesty”, and a long list of pleas reserved to the crown shows how
much to do with law and order, and the profits their maintenancemight bring, lay in the king’s grasp.
All this may serve to set the simplicity of the Icelandic legal andsocial situation in stark relief. Within a century of settlement the
Icelanders agreed on a constitution with organised local assemblies
and a national assembly under the leadership of chieftains; andthey agreed on a national law – there is no reference or deference
to local custom anywhere in the Grágás corpus, though the local
communes called hreppar could make their own rules as long as
they did not clash with anything laid down by the General
Assembly. The chieftains were surprisingly many in number, thirtynine by the end of the tenth century, an oligarchy, if you like, but
one which maintained a consensual equilibrium and out of whichin the early period arose no single leader or princely family. Everyhouseholder with means above a certain level was required by law
to join the following of one of these chieftains. They were theflingfararkaupsbœndr, required to attend assemblies or contributeto the expenses of those who did. A man would generally find it
expedient to attach himself to the chieftain who lived closest, but
in theory it was a free contract and circumstances or interest mightlead a householder to lend his allegiance to a chieftain in anotherpart of the country. In this client relationship every member of ahousehold followed the householder’s lead. A census probably
made in the 1090s gave the total number of flingfararkaupsbœndr
as 38 hundred, 3800 if the hundred was decimal, 4560 if the hundred
was duodecimal.23 If the average following of a chieftain was thus
either a little under or something over one hundred householders,
it is clear that any political predominance was impossible without
alliances and cooperation; and it was in this relatively static andwell-balanced political situation that Iceland’s early laws foundtheir development. Thus, while the chieftains formed the nucleus

23 Íslendingabók, ch. 10; ed. Jakob Benediktsson (1968), 23 and n. 5 there.

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1117 IN ICELAND AND ENGLANDof the Law Council and nominated judges to sit in the courts
established at assemblies, their function in judicial process wasotherwise limited and they were as liable at law as any otherindividual. According to the law a general equality was moreoveracknowledged. In numerous cases of wrong-doing so-called“personal compensation” was due from the offender to theoffended, irrespective of legal penalties, and that sum was the samefor every free person, no more for a chieftain than for an ordinary
household man. That of course does not mean that individuals were
not differently valued when cases came to arbitration and private
settlement – many cases were doubtless compounded in that way
and they make the stuff of stories. Compurgation as a means of
proof hardly existed in Icelandic procedures and, as noted earlier,the main mechanism was the verdict of a panel of neighbours.
Ordeal was restricted to paternity suits, and single combat as ameans of establishing right had been abolished soon after theacceptance of Christianity in the year 1000. The judges in Icelandic
courts were numerous, probably thirty-six in the courts held at theGeneral Assembly, usually twelve in other courts; they could bechallenged on various grounds and replaced if necessary. Judgments
required a large majority but not total unanimity. On the other hand,
there was no room for discretion: if the procedures laid down were
properly observed, then judgment in accordance with the law must
follow as the night the day; and as we recall, penalties are part andparcel of Grágás law-statements.
Penalties – how and by whom were they exacted? There thecopious Grágás laws leave almost a blank sheet. They lay down
rules for payment of fines and for the conduct of confiscation courts
when men were outlawed and they offer reward in various contexts.
But there was no executive to take action in case of default or
defiance: self-help, determined avengers, public opinion, thebacking of chieftains with an armed following, all or any of thesemight be necessary to give effect to a court judgment, but the laws
make no overt provision for them. This absence of any organised
law-enforcement may at least in part explain the deterrent severityof the punishments envisaged. Fines were not necessarily very
damaging but the obligatory sentence for many faults was
confiscation of property and three-year exile – no light matter.
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Equally the diffuse nature of legal authority in the country and thelack of a permanent magistracy may help to explain why the
Icelanders at an early stage elaborated their laws in such detailand often with such pedantic precision. Jónsbók, the law-bookwhich superseded Grágás laws in 1281, has generally much briefer
rules, but their application was backed by a hierarchy of royal
officials, up to the king himself.
We may be sure that the constitutional and procedural rules
embodied in the laws were hammered out in the first century of
the settlement by leaders who preferred peace to strife and whenmuch was doubtless owed to the legal genius of a few men. But it
is a more than plausible conclusion that, in the form we know
them, the Grágás laws were generally elaborated after the conversion and in the course of the eleventh century. That this happened
with the influential encouragement of the bishops, primarily Ísleifr
and Gizurr, must also follow. The laws are the laws of a Christiancountry: the church calendar is carefully observed in citing days
allowed for legal action, canon law rules on kindred and affinity
in marriage are fully applied, the bishop has the final decision invarious family matters, spiritual kinship gives grounds for challengeof judges, oaths of course are sworn on a holy book or a cross.
About 1070 Adam of Bremen wrote about Ísleifr Gizurarson’s staywith Archbishop Adalbert of Hamburg some fifteen years earlier
and remarked that the Icelanders regarded their bishop as a king.
Then he modified this in a scholion, Apud illos non est rex, nisitantum lex – “Among them there is no king except the law alone.”24
I think Adam was wiser than he knew.
Well, I have swept the pulpit, rehearsed well-known facts andoffered comment which largely repeats what I have written earlier
and – of course without acknowledgment – what other men of
greater learning have written too. That is perhaps not so remarkablein this day and age when a good deal of scholarship in the NorseIcelandic field appears to be devoted to the rediscovery of things
which our nineteenth-century predecessors knew already. And

24 Gesta Hammaburgensis ecclesiae pontificum, ed. B. Schmeidler (3rd ed., 1917),
273 (IV, xxxvi; Schol. 156).

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finally I comfort myself, and leave you with thanks for yourpatience, by recalling St Jerome’s anecdote about his teacher,
Donatus, a famous grammarian but not a man noted for originality.
Commenting in class on Terence’s The Eunuch, he came to thePrologue’s well-known line, Nihil est dictum, quod non sit dictum
prius – “There’s naught been said that’s not been said before” –and at that burst out with Pereant qui ante nos nostra dixerunt, orin Canon Kelly’s idiomatic version, “So to hell with those who’ve
said what I say before me.” 25 I can only hope that a hundred years
hence some bright scholar, in circumstances similar to mine, willfind it appropriate to consign me to the same purgatory.

25 J. N. D. Kelly, Jerome (1975), 11; Jerome, Commentarium in Ecclesiastes, inPatrologia Latina XXIII, 1074; Corpus Christianorum, Series Latina LXXII, 390.

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