The
Trial of Kari Solmundarson et al vs Flosi et al
(“The Burnt Njal Trial”)(Iceland, c. 1012)
For farmer Njal Thorgeirssson of
Bergthorknoll it could hardly have ended worse: burned
alive with his family in his own home by a small army
of his enemies. What
preceded the tragedy is a long story; what came after
is no less so. The
tale of Njal, and an account of the trial of his
murderers that follows, as well as the ramifications
that come after that, make up the greatest of all
Icelandic sagas, Njal’s Saga. Written by
an unknown author around 1280, Njal’s Saga is an
intense, violent, and epic narrative about men and
women who made Iceland home. With almost
three centuries separating the writing of the saga
from the actual events, it is best to think of Njal’s
saga as a cross between history and an historical
novel. Background
Njal’s saga recounts an
escalating feud between Icelandic settlers—settlers
who are neither especially good nor bad, but have
differences that grow from small resentments to,
eventually, violent and deadly encounters. The saga
opens in about 960.
Troubles really begin when a Hrut, his pride
wounded by the decision of his wife, Unn, to divorce
him, refuses to return her dowry, as was customary in
Iceland at the time. When Unn falls upon hard times,
she enlists the help of her cousin, Gunnar, who
eventually succeeds in getting Hrut to return the
dowry. Gunnar becomes something of a
big man in Iceland, returning rich and triumphant from
adventures abroad.
In 974 at Iceland’s annual national assembly,
the Althing, Gunnar falls for and marries a woman
named Hallgerd, much to the dismay of his friend Njal,
who thinks Hallgerd is a big bag of trouble. Soon
Hallgerd and Njal’s short-tempered wife, Bergthora,
are at each other’s throats. The feud
eventually leads to a killing match that leaves seven
men dead. True to Njal’s prediction,
Hallgerd continues to scheme to make his friend
Gunnar’s life as miserable as possible. For example,
Hallgerd steals food from a farmer, leaving Gunnar to
plead unsuccessfully with the difficult farmer to
accept his generous offers of compensation for the
stolen food. Before
long, poor Gunnar seems to have a target on his back. Sentenced,
unjustly one could well argue, to outlawry (a sort of
banishment from society), Gunnar defies the order and
his attacked at killed in his own home in 990. The focus of the feud after 990
shifts to Njal and his family. Njal’s
eldest son, Skarp-Hedin, avenges Gunnar’s death. Meanwhile,
his two younger sons get embroiled in a peck of
troubles in Norway.
The sons of Njal, accompanied by a relative and
a Norseman, kill one of their arch-enemies, Thrain, in
995. Njal tries to head off vengeance
of Thrain’s supporters and kinsment by adopting the
son of Thrain, Hoskuld.
Njal works tirelessly to promote Hoskuld’s
advancement to chieftaincy. (The saga
pauses about this point to describe the conversion of
Iceland in the year 1000 form paganism to
Christianity, by parliamentary decree.) Njal’s sons, however, have a
hard time accepting the growing power and popularity
of Hoskuld. They
attack and kill Hoskuld in a cornfield one spring day
in about 1011. Njal tries to work things out with
Flosi, the chieftain most angered by the killing of
Hoskuld. But
arbitration falls apart at the Althing when a
well-intentioned gesture by Njal is misinterpreted. Things quickly spin out of
control. Flosi
and a hundred men descend on Njal’s home. With Njal
and his son inside, trying as best they can to mount a
defense, the house in set on fire. All inside
die except for Njal’s nephew, Kari, who climbs to the
rafters and leaps from the roof with his hair and
clothes ablaze. Kari
plunges into a nearby stream, but is left disfigured
and in pain from severe burns. Kari’s
mission becomes seeking revenge for the deaths of Njal
and his other relatives.
The Trial Law Rock in southwestern Iceland
Feuds can be destructive of
society. At
the turn of the millennium, religious and secular
authorities in Iceland hoped that a legal system might
break, or at least slow, the tide of violence. When Kari
spreads the news of the awful fire, he gets surprising
advice from a foster son of Njal, Thorhall Asgrimsson. He tells
Kari they should take the murderers to court. When Flosi receives notice of
the suit, he considers settlement, but is persuaded by
another member of the gang of arsonists that they
should instead hire their own lawyer. Flosi
visits Eyjolf Bolverksson, the most highly-regarded
lawyer in all of Iceland, and asks him if he will take
their case. Eyjolf,
described in the saga as bedecked in a scarlet cloak
and gold headband, initially turns down Flosi’s
request. But
Flosi’s offer of a splendid gold chain for his
services causes him to reconsider. He tells
Flosi that he will take the case. At the time,
however, accepting compensation for legal services was
considered improper—so one could guess where the saga
might be going. Eyjolf
will come to regret his decision to defend Flosi and
his gang. Trials in Iceland took place at
Law Rock, a beautiful spot between a lava cliff and a
wide valley sliced by a shining river. On the
actual rock, once each summer, the Law Speaker recites
to everyone present one-third of Iceland’s legal code. (The next
summer, he will recite a different third of the code,
and in the third year, he will complete his recital
before starting over again the next year.) When a case
was to be heard, lawyers would gather in their
respective booths, while around them circulated jurors
and interested spectators. In Kari’s trial, Kari’s nine
jurors seated themselves on the ground. They are
present not to weigh facts, but rather to swear that
Kari followed proper legal procedures in bringing his
suit. All
become silent when Kari’s lawyer, Mord Valgardsson,
stepped up to Law Rock.
In what we might call his “opening statement,”
Mord announced that he will plead truly, fairly, and
in accordance with the law. He then
asked witnesses to swear he had been lawfully
appointed and that the defendants had been given
notice of the suit.
He then asked if anyone had any objections. Eyjolf Bolverksson was ready. He argued
that two of the jurors should be disqualified on the
ground they are related to him. Mord had no
answer to the objection and the suit seemed on the
verge of dissolving.
But one man might have the answer: Thorhall
Asgrimsson. Thorhall,
to his great consternation, could not attend the court
proceedings because of an ugly leg inflammation that
had left him bedridden.
Messengers rushed to Thorhall’s
home, got his legal advice, and then passed it on to
Mord. Mord
stood to refute Eyjolf’s argument for
disqualification.
He said that only kinship with the accuser, not
with a defense attorney, required a juror to step
down. Sadskat Kadri, in his lively
account of the trial, notes that all around considered
Mord’s response “brilliant,” but that Eyjolf “pulled
another arrow from his quiver.” Eyjolf argues that
home ownership is a requirement for jurors, but that
two of Kari’s jurors are not homeowners. Once again,
messengers ride off to Thorhall and come back with his
rejoinder: ownership of a cow is sufficient to
establish eligibility to serve as a juror. This claim
turned out to be a matter of dispute, and so the
question is put to the Law Speaker, Skapti
Thoroddsson. He
emerged from his booth to announce his decision. A cow,
indeed, will do.
Eyjolf has one last trick up his
sleeve. Jurors,
in Iceland, are the men living closest to the scene of
the crime. (Note
that in Medieval Iceland, the legal system expected
jurors to be the people most knowledgeable
about a crime, not—as seems the preference in our
system—people with almost zero knowledge of the
crime.) Eyjolf
argued for disqualification of four jurors who, he
said, lived more distant to the scene of the crime
that others not asked to serve as jurors. Yet again Mord had an answer. He said
cases could be decided by a majority of the nine
jurors, and five still remain. The Law
Speaker seemed stunned.
He believed he was the only person in all of
Iceland who knew this fine legal point, but—yes—five
jurors would suffice.
With issues of juror eligibility
finally behind him, Eyjolf proceeded to his next
argument, a jurisdictional claim. He argued
that the case had been brought before the wrong
division of the Law Rock. This turned
out to be true, but resulted in only a short delay as
Kari’s team refiled the case. The prosecution (that is, Kari’s
side) now took to offense, contending that Eyjolf was
guilty of bribery for accepting the gold bracelet as
payment for his services. But what
could have been a knockout blow became irrelevant in
light of a serious legal error by Mord. Mord
demanded that six of the 36 judges in the case stand
down and that the remaining judges award Kari’s side
the verdict. But
for reasons that only the best scholar of Medieval
Icelandic jurisprudence might fathom, this was a
mistake. Mord
should have asked to remove twelve judges, not six. The legal
blunder meant that Kari and the other of Njal’s
kinsmen, far from winning their case, faced exile!
Kari Solmundarson
Even Thorhall had no remedy for
this problem. Instead,
he roused himself from his bed and, blood pouring down
his leg, made way for Law Rock. Thorhall,
despite being an admired jurist, evidently had had it
with legal maneuverings.
When he encountered Grim the Red, a member of
Flosi’s legal team, he plants a spear into the man,
splitting his shoulder blades in two. Then all
hell broke loose.
The fact that such a gravely injured man as
Thorhall was moved to action inspired other members of
Kari’s side to fight.
Soon, as Kadri describes it, “Across the Law
Rock, weapons fly, bones crack, body parts are
pierced, and at least one bystander is hurled headlong
into a boiling cauldron.” When the Law
Speaker proposed a cease-fire negotiation, his answer
was a spear through both his calves. The action
reached its climax when Eyjolf Bolverksson was spotted
by one of Kari’s supporters. “Reward him
for that bracelet,” the friend suggested to Kari. Kari
launches a spear that cuts clean through the pleader’s
waist. The next morning, after the dead
were buried and wounds bound, some of the trial
participants returned to Law Rock. It was for
one of Flosi’s team to state the obvious: “There have
been harsh happenings here, in loss of life and
lawsuits.”
A truce of sorts followed the
bloodshed. Eventually
a settlement was reached, accepted by nearly all of
the trial participants.
Kari and one other nephew of Njal were the
holdouts. The
burners of Njal’s home are sent into exile. The Icelandic Commonwealth, with
the Law Rock at the center of the annual gathering of
Icelanders, remained in place until 1262. In 1262,
Icelanders took allegiance to the king of Norway. No longer
could it be said of Icelanders, as Adam of Bremen said
in the eleventh century, “they have no king except the
law.” No one could contend Kari v
Flosi trial of about 1012 was typical. But the
trial does suggest a time and placed every bit as
obsessed with legal formalities as our own legal
system today. Kadri
observes in his excellent book, The Trial,
that “so much as word out of place could cost the
speaker a fine, the case, or his life.” Cases were
as likely to be decided by the correctness (or
incorrectness) of legal procedure as they were by
actual testimony.
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