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141. NOW MEN GO TO THE COURTS

Now the time passes away till the courts were to go out to try suits. Both sides then made them ready to go thither, and armed them. Each side put war-tokens on their helmets.

Then Thorhall Asgrim's son said, "Walk hastily in nothing father mine, and do everything as lawfully and rightly as ye can, but if ye fall into any strait let me know as quickly as ye can, and then I will give you counsel."

Asgrim and the others looked at him, and his face was as though it were all blood, but great teardrops gushed out of his eyes. He bade them bring him his spear, that had been a gift to him from Skarphedinn, and it was the greatest treasure.

Asgrim said as they went away, "Our kinsman Thorhall was not easy in his mind as we left him behind in the booth, and I know not what he will be at."

Then Asgrim said again, "Now we will go to Mord Valgard's son, and think of nought else but the suit, for there is more sport in Flosi than in very many other men."

Then Asgrim sent a man to Gizur the White, and Hjallti Skeggi's son, and Gudmund the Powerful. Now they all came together, and went straight to the court of Eastfirthers. They went to the court from the south, but Flosi and all the Eastfirthers with him went to it from the north. There were also the men of Reykdale and the Axefirthers with Flosi. There, too, was Eyjolf Bolverk's son. Flosi looked at Eyjolf, and said, "All now goes fairly, and may be that it will not be far off from thy guess."

"Keep thy peace about it," says Eyjolf, "and then we shall be sure to gain our point."

Now Mord took witness, and bade all those men who had suits of outlawry before the court to cast lots who should first plead or declare his suit, and who next, and who last; he bade them by a lawful bidding before the court, so that the judges heard it. Then lots were cast as to the declarations, and he, Mord, drew the lot to declare his suit first.

Now Mord Valgard's son took witness the second time, and said, "I take witness to this, that I except all mistakes in words in my pleading, whether they be too many or wrongly spoken, and I claim the right to amend all my words until I have put them into proper lawful shape. I take witness to myself of this."

Again Mord said, "I take witness to this, that I bid Flosi Thord's son, or any other man who has undertaken the defence made over to him by Flosi, to listen for him to my oath, and to my declaration of my suit, and to all the proofs and proceedings which I am about to bring forward against him; I bid him by a lawful bidding before the court, so that the judges may hear it across the court."

Again Mord Valgard's son said, "I take witness to this, that I take an oath on the book, a lawful oath, and I say it before God, that I will so plead this suit in the most truthful, and most just and most lawful way, so far as I know; and that I will bring forward all my proofs in due form, and utter them faithfully so long as I am in this suit."

After that he spoke in these words, "I have called Thorodd as my first witness, and Thorbjorn as my second; I have called them to bear witness that I gave notice of an assault laid down by law against Flosi Thord's son, on that spot where he, Flosi Thord's son, rushed with an assault laid down by law on Helgi Njal's son, when Flosi Thord's son wounded Helgi Njal's son with a brain, or a body, or a marrow wound, which proved a death-wound, and from which Helgi got his death. I said that he ought to be made in this suit a guilty man, an outlaw, not to be fed, not to be forwarded, not to be helped or harboured in any need; I said that all his goods were forfeited half to me and half to the men of the Quarter who have the right by law to take the goods which he has forfeited; I gave notice of the suit in the quarter Court into which the suit ought by law to come; I gave notice of that lawful notice; I gave notice in the hearing of all men at the Hill of Laws; I gave notice of this suit to be pleaded now this summer, and of full outlawry against Flosi Thord's son. I gave notice of a suit which Thorgeir Thorir's son had handed over to me; and I had all these words in my notice which I have now used in this declaration of my suit. I now declare this suit of outlawry in this shape before the court of the Eastfirthers over the head of John (1), as I uttered it when I gave notice of it."

Then Mord spoke again, "I have called Thorodd as my first witness, and Thorbjorn as my second. I have called them to bear witness that I gave notice of a suit against Flosi Thord's son for that he wounded Helgi Njal's son with a brain or a body, or a marrow wound, which proved a death-wound, and from which Helgi got his death. I said that he ought to be made in this suit a guilty man, an outlaw, not to be fed, not to be forwarded, not to be helped or harboured in any need; I said that all his goods were forfeited, half to me and half to the men of the Quarter who have the right by law to take the goods which he has forfeited; I gave notice of the suit in the Quarter Court into which the suit ought by law to come; I gave notice of that lawful notice; I gave notice in the hearing of all men at the Hill of Laws; I gave notice of this suit to be pleaded now this summer, and of full outlawry against Flosi Thord's son. I gave notice of a suit which Thorgeir Thorir's son had handed over to me; and I had all these words in my notice which I have now used in this declaration of my suit. I now declare this suit of outlawry in this shape before the court of the Eastfirthers over the head of John, as I uttered it when I gave notice of it."

Then Mord's witnesses to the notice came before the court, and spake so that one uttered their witness, but both confirmed it by their common consent in this form, "I bear witness that Mord called Thorodd as his first witness, and me as his second, and my name is Thorbjorn" -- then he named his father's name -- "Mord called us two as his witnesses that he gave notice of an assault laid down by law against Flosi Thord's son when he rushed on Helgi Njal's son, in that spot where Flosi Thord's son dealt Helgi Njal's son a brain, or a body, or a marrow wound, that proved a death-wound, and from which Helgi got his death. He said that Flosi ought to be made in this suit a guilty man, an outlaw, not to be fed, not to be forwarded, not to be helped or harboured by any man; he said that all his goods were forfeited, half to himself and half to the men of the Quarter who have the right by law to take the goods which he had forfeited; he gave notice of the suit in the Quarter Court into which the suit ought by law to come; he gave notice of that lawful notice; he gave notice in the hearing of all men at the Hill of Laws; he gave notice of this suit to be pleaded now this summer, and of full outlawry against Flosi Thord's son. He gave notice of a suit which Thorgeir Thorir's son had handed over to him. He used all those words in his notice which he used in the declaration of his suit, and which we have used in bearing witness; we have now borne our witness rightly and lawfully, and we are agreed in bearing it; we bear this witness in this shape before the Eastfirthers' Court over the head of John, as Mord uttered it when he gave his notice."

A second time they bore their witness of the notice before the court, and put the wounds first and the assault last, and used all the same words as before, and bore their witness in this shape before the Eastfirthers' Court just as Mord uttered them when he gave his notice.

Then Mord's witnesses to the handing over of the suit went before the court, and one uttered their witness, and both confirmed it by common consent, and spoke in these words, "That those two, Mord Valgard's son and Thorgeir Thorir's son, took them to witness that Thorgeir Thorir's son handed over a suit for manslaughter to Mord Valgard's son against Flosi Thord's son for the slaying of Helgi Njal's son; he handed over to him then this suit, with all the proofs and proceedings which belonged to the suit, he handed it over to him to plead and to settle, and to make use of all rights as though he were the rightful next of kin: Thorgeir handed it over lawfully, and Mord took it lawfully.

They bore witness of the handing over of the suit in this shape before the Eastfirther's Court over the head of John, just as Mord or Thorgeir had called them as witnesses to prove.

They made all these witnesses swear on oath ere they bore witness, and the judges too.

Again Mord Valgard's son took witness. "I take witness to this," said he, "that I bid those nine neighbours whom I summoned when I laid this suit against Flosi Thord's son, to take their seats west on the river-bank, and I call on the defendant to challenge this request, I call on him by a lawful bidding before the court so that the judges may hear."

Again Mord took witness. "I take witness to this, that I bid Flosi Thord's son, or that other man who has the defence handed over to him, to challenge the inquest which I have caused to, take their seats west on the river-bank. I bid thee by a lawful bidding before the court so that the judges may hear."

Again Mord took witness. "I take witness to this, that now are all the first steps and proofs brought forward which belong to the suit. Summons to bear my oath, oath taken, suit declared, witness borne to the notice, witness home to the handing over of the suit, the neighbours on the inquest bidden to take their seats, and the defendant bidden to challenge the inquest. I take this witness to these steps and proofs which are now brought forward, and also to this that I shall not be thought to have left the suit though I go away from the court to look up proofs, or on other business."

Now Flosi and his men went thither where the neighbours on the inquest sate.

Then Flosi said to his men, "The sons of Sigfus must know best whether these are the rightful neighbours to the spot who are here summoned."

Kettle of the Mark answered, "Here is that neighbour who held Mord at the font when he was baptized, but another is his second cousin by kinship.

Then they reckoned up his kinship, and proved it with an oath.

Then Eyjolf took witness that the inquest should do nothing till it was challenged.

A second time Eyjolf took witness, "I take witness to this," said he, "that I challenge both these men out of the inquest, and set them aside" -- here he named them by name, and their fathers as well -- "for this sake, that one of them is Mord's second cousin by kinship, but the other for gossipry (2), for which sake it is lawful to challenge a neighbour on the inquest; ye two are for a lawful reason incapable of uttering a finding, for now a lawful challenge has overtaken you, therefore I challenge and set you aside by the rightful custom of pleading at the Althing, and by the law of the land; I challenge you in the cause which Flosi Thord's son has handed over to me."

Now all the people spoke out, and said that Mord's suit had come to naught, and all were agreed in this that the defence was better than the prosecution.

Then Asgrim said to Mord, "The day is not yet their own, though they think now that they have gained a great step; but now some one shall go to see Thorhall my son, and know what advice he gives us."

Then a trusty messenger was sent to Thorhall, and told him as plainly as he could how far the suit had gone, and how Flosi and his men thought they had brought the finding of the inquest to a dead lock.

"I will so make it out," says Thorhall, "that this shall not cause you to lose the suit; and tell them not to believe it, though quirks and quibbles be brought against them, for that wiseacre Eyjolf has now overlooked something. But now thou shalt go back as quickly as thou canst, and say that Mord Valgard's son must go before the court, and take witness that their challenge has come to naught," and then he told him step by step how they must proceed.

The messenger came and told them Thorhall's advice.

Then Mord Valgard's son went to the court and took witness. "I take witness to this," said he, "that I make Eyjolf's challenge void and of none effect; and my ground is, that he challenged them not for their kinship to the true plaintiff, the next of kin, but for their kinship to him who pleaded the suit; I take this witness to myself, and to all those to whom this witness will be of use."

After that he brought that witness before the court.

Now he went whither the neighbours sate on the inquest, and bade those to sit down again who had risen up, and said they were rightly called on to share in the finding of the inquest.

Then all said that Thorhall had done great things, and all thought the prosecution better than the defence.

Then Flosi said to Eyjolf, "Thinkest thou that this is good law?"

"I think so, surely," he says, "and beyond a doubt we overlooked this; but still we will have another trial of strength with them."

Then Eyjolf took witness. "I take witness to this," said he, "that I challenge these two men out of the inquest" -- here he named them both -- "for that sake that they are lodgers, but not householders; I do not allow you two to sit on the inquest, for now a lawful challenge has overtaken you; I challenge you both and set you aside out of the inquest, by the rightful custom of the Althing and by the law of the land."

Now Eyjolf said he was much mistaken if that could be shaken; and then all said that the defence was better than the prosecution.

Now all men praised Eyjolf, and said there was never a man who could cope with him in lawcraft.

Mord Valgard's son and Asgrim Ellidagrim's son now sent a man to Thorhall to tell him how things stood; but when Thorhall heard that, he asked what goods they owned, or if they were paupers?

The messenger said that one gained his livelihood by keeping milch-kine, and "he has both cows and ewes at his abode; but the other has a third of the land which he and the freeholder farm, and finds his own food: and they have one hearth between them, he and the man who lets the land, and one shepherd."

Then Thorhall said, "They will fare now as before, for they must have made a mistake, and I will soon upset their challenge and this though Eyjolf had used such big words that it was law."

Now Thorhall told the messenger plainly, step by step, how they must proceed; and the messenger came back and told Mord and Asgrim all the counsel that Thorhall had given.

Then Mord went to the court and took witness. "I take witness to this, that I bring to naught Eyjolf Bolverk's son's challenges for that he has challenged those men out of the inquest who have a lawful right to be there; every man has a right to sit on an inquest of neighbours, who owns three hundreds in land or more, though he may have no dairystock; and he too has the same right who lives by dairystock worth the same sum, though he leases no land."

Then he brought this witness before the court, and then he went whither the neighbours on the inquest were, and bade them sit down, and said they were rightfully among the inquest.

Then there was a great shout and cry and then all men said that Flosi's and Eyjolf's cause was much shaken, and now men were of one mind as to this, that the prosecution was better than the defence.

Then Flosi said to Eyjolf, "Can this be law?"

Eyjolf said be had not wisdom enough to know that for a surety, and then they sent a man to Skapti, the Speaker of the Law, to ask whether it were good law, and he sent them back word that it was surely good law, though few knew it.

Then this was told to Flosi, and Eyjolf Bolverk's son asked the sons of Sigfus as to the other neighbours who were summoned thither.

They said there were four of them who were wrongly summoned; "for those sit now at home who were nearer neighbours to the spot."

Then Eyjolf took witness that he challenged all those four men out of the inquest, and that he did it with lawful form of challenge. After that he said to the neighbours, "Ye are bound to render lawful justice to both sides, and now ye shall go before the court when ye are called, and take witness that ye find that bar to uttering your finding; that ye are but five summoned to utter your finding, but that ye ought to be nine;. and now Thorhall may prove and carry his point in every suit, if he can cure this flaw in this suit."

And now it was plain in everything that Flosi and Eyjolf were very boastful; and there was a great cry that now the suit for the burning was quashed, and that again the defence was better than the prosecution.

Then Asgrim spoke to Mord, "They know not yet of what to boast ere we have seen my son Thorhall. Njal told me that he had so taught Thorhall law, that he would turn out the best lawyer in Iceland whenever it were put to the proof."

Then a man was sent to Thorhall to tell him how things stood, and of Flosi's and Eyjolf's boasting, and the cry of the people that the suit for the burning was quashed in Mord's hands.

"It will be well for them," says Thorhall, "if they get not disgrace from this. Thou shalt go and tell Mord to take witness and swear an oath, that the greater part of the inquest is rightly summoned, and then he shall bring that witness before the court, and then he may set the prosecution on its feet again; but he will have to pay a fine of three marks for every man that he has wrongly summoned; but he may not be prosecuted for that at this Thing; and now thou shalt go back."

He does so, and told Mord and Asgrim all, word for word, that Thorhall had said.

Then Mord went to the court, and took witness, and swore an oath that the greater part of the inquest was rightly summoned, and said then that he had set the prosecution on its feet again, and then he went on, "And so our foes shall have honour from something else than from this, that we have here taken a great false step."

Then there was a great roar that Mord handled the suit well; but it was said that Flosi and his men betook them only to quibbling and wrong.

Flosi asked Eyjolf if this could be good law, but he said he could not surely tell, but said the Lawman must settle this knotty point.

Then Thorkel Geiti's son went on their behalf to tell the Lawman how things stood, and asked whether this were good law that Mord had said.

"More men are great lawyers now," says Skapti, "than I thought. I must tell thee, then, that this is such good law in all points, that there is not a word to say against it; but still I thought that I alone would know this, now that Njal was dead, for he was the only man I ever knew who knew it."

Then Thorkell went back to Flosi and Eyjolf, and said that this was good law.

Then Mord Valgard's son went to the court and took witness. "I take witness to this," he said, "that I bid those neighbours on the inquest in the suit which I set on foot against Flosi Thord's son now to utter their finding, and to find it either against him or for him; I bid them by a lawful bidding before the court, so that the judges may hear it across the court."

Then the neighbours on Mord's inquest went to the court, and one uttered their finding, but all confirmed it by their consent; and they spoke thus, word for word, "Mord Valgard's son summoned nine of us thanes on this inquest, but here we stand five of us, but four have been challenged and set aside, and now witness has been home as to the absence of the four who ought to have uttered this finding along with us, and now we are bound by law to utter our finding. We were summoned to bear this witness, whether Flosi Thord's son rushed with an assault laid down by law on Helgi Njal's son, on that spot where Flosi Thord's son wounded Helgi Njal's son with a brain, or a body, or a marrow wound, which proved a death-wound, and from which Helgi got his death. He summoned us to utter all those words which it was lawful for us to utter, and which he should call on us to answer before the court, and which belong to this suit; he summoned us, so that we heard what he said; he summoned us in a suit which Thorgeir Thorir's son had handed over to him, and now we have all sworn an oath, and found our lawful finding, and are all agreed, and we utter our finding against Flosi, and we say that he is truly guilty in this suit. We nine men on this inquest of neighbours so shapen, utter this our finding before the Eastfirthers' Court over the head of John, as Mord summoned us to do; but this is the finding of all of us."

Again a second time they uttered their finding against Flosi, and uttered it first about the wounds, and last about the assault, but all their other words they uttered just as they had before uttered their finding against Flosi, and brought him in truly guilty in the suit.

Then Mord Valgard's son went before the court, and took witness that those neighbours whom he had summoned in the suit which he had set on foot against Flosi Thord's son had now uttered their finding, and brought him in truly guilty in the suit; he took witness to this for his own part, or for those who might wish to make use of this witness.

Again a second time Mord took witness and said, "I take witness to this that I call on Flosi, or that man who has to undertake the lawful defence which he has handed over to him, to begin his defence to this suit which I have set on foot against him, for now all the steps and proofs have been brought forward which belong by law to this suit; all witness home, the finding of the inquest uttered and brought in, witness taken to the finding, and to all the steps which have gone before; but if any such thing arises in their lawful defence which I need to turn into a suit against them, then I claim the right to set that suit on foot against them. I bid this my lawful bidding before the court, so that the judges may hear."

"It gladdens me now, Eyjolf," said Flosi, "in my heart to think what a wry face they will make, and how their pates will tingle when thou bringest forward our defence."

ENDNOTES:

(1)

for a man, and Gudruna for a woman, were standing names in the Formularies of the Icelandic code, answering to the "M or N" in our Liturgy, or to those famous fictions of English law, "John Doe and Richard Roe." Back

2) "Gossipry," that is, because they were gossips, "God's sib", relations by baptism. Back