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 Alping, 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 ('GreyGoose')'. 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 Alping, 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 LawSpeaker as originating a rule make us think of the

1 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.

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 Alping 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.

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 sister1. 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 of the deceased, whom failing, the skipper who has the largest share in the ship, is a proper plaintiff.

2

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.

1 This rule is ascribed to Guðmund Thorgeirsson, who was Law-Speaker from 1123 to 1135 A.D.

2

* 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).