Front Page Titles (by Subject) CHAPTER LXXXVIII.: the counsel of thorhall asgrim's son. - The Story of Burnt Njal
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CHAPTER LXXXVIII.: the counsel of thorhall asgrim's son. - Burnt Njal, The Story of Burnt Njal 
The Story of Burnt Njal. The Great Icelandic Tribune, Jurist, and Counsellor, translated from the Njals Saga by the Late Sir George Webbe Dasent. With Editor’s Prefatory Note and Author’s Introduction. Hon. Rasmus B. Anderson, Editor in Chief (London: Norroena Society, 1907).
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the counsel of thorhall asgrim's son.
Now Asgrim and his friends sent a man to Thorhall, and let him be told in what a strait they had come.
“Too far off was I now,” answers Thorhall, “for this cause might still not have taken this turn if I had been by. I now see their course that they must mean to summon you to the Fifth Court for contempt of the Thing. They must also mean to divide the Eastfirthers' Court in the suit for the Burning, so that no judgment may be given, for now they behave so as to show that they will stay at no ill. Now shalt thou go back to them as quickly as thou canst and say that Mord must summon them both, Flosi and Eyjolf, for having brought money into the Fifth Court, and make it a case of lesser outlawry. Then he shall summon them with a second summons for that they have brought forward that witness which had nothing to do with their cause, and so were guilty of contempt of the Thing; and tell them that I say this, that if two suits for lesser outlawry hang over one and the same man, that he shall be adjudged a thorough outlaw at once. And for this ye must set your suits on foot first, that then ye will first go to trial and judgment.”
Now the messenger went his way back and told Mord and Asgrim.
After that they went to the Hill of Laws, and Mord Valgard's son took witness.
“I take witness to this that I summon Flosi Thord's son, for that he gave money for his help here at the Thing to Eyjolf Bolverk's son. I say that he ought on this charge to be made a guilty outlaw, for this sake alone to be forwarded or to be allowed the right of frithstow (sanctuary), if his fine and bail are brought forward at the execution levied on his house and goods, but else to become a thorough outlaw. I say all his goods are forfeited, half to me and half to the men of the Quarter who have the right by law to take his goods after he has been outlawed. I summon this cause before the Fifth Court, whither the cause ought to come by law; I summon it to be pleaded now and to full outlawry. I summon with a lawful summons. I summon in the hearing of all men at the Hill of Laws.”
With a like summons he summoned Eyjolf Bolverk's son, for that he had taken and received the money, and he summoned him for that sake to the Fifth Court.
Again a second time he summoned Flosi and Eyjolf, for that sake that they had brought forward that witness at the Thing which had nothing lawfully to do with the cause of the parties, and had so been guilty of contempt of the Thing; and he laid the penalty for that at lesser outlawry. Then they went away to the Court of Laws, there the Fifth Court was then set.
Now when Mord and Asgrim had gone away, then the judges in the Eastfirthers' Court could not agree how they should give judgment, for some of them wished to give judgment for Flosi, but some for Mord and Asgrim. Then Flosi and Eyjolf tried to divide the court, and there they stayed, and lost time over that while the summoning at the Hill of Laws was going on. A little while after Flosi and Eyjolf were told that they had been summoned at the Hill of Laws into the Fifth Court, each of them with two summons. Then Eyjolf said—
“In an evil hour have we loitered here while they have been before us in quickness of summoning. Now hath come out Thorhall's cunning, and no man is his match in wit. Now they have the first right to plead their cause before the court, and that was everything for them; but still we will go to the Hill of Laws, and set our suit on foot against them, though that will now stand us in little stead.”
Then they fared to the Hill of Laws, and Eyjolf summoned them for contempt of the Thing.
After that they went to the Fifth Court.
Now we must say that when Mord and Asgrim came to the Fifth Court, Mord took witness and bade them listen to his oath, and the declaration of his suit, and to all those proofs and steps which he meant to bring forward against Flosi and Eyjolf. He bade them by a lawful bidding before the court, so that the judges could hear him across the court.
In the Fifth Court vouchers had to follow the oaths of the parties, and they had to take an oath after them.
Mord took witness.
“I take witness,” he said, “to this, that I take a Fifth Court oath. I pray God so to help me in this light and in the next, as I shall plead this suit as I know to be most truthful, and just, and lawful. I believe with all my heart that Flosi is truly guilty in this suit, if I may bring forward my proofs; and I have not brought money into this court in this suit, and I will not bring it. I have not taken money, and I will not take it, neither for a lawful nor for an unlawful end.”
The men who were Mord's vouchers then went two of them before the court, and took witness to this—
“We take witness that we take an oath on the book, a lawful oath; we pray God so to help us two in this light and in the next, as we lay it on our honour that we believe with all our hearts that Mord will so plead this suit as he knows to be most truthful, and most just, and most lawful, and that he hath not brought money into this court in this suit to help himself, and that he will not offer it, and that he hath not taken money, nor will he take it, either for a lawful or unlawful end.”
Mord took witness and bade those nine neighbours on the inquest to take their seats west on the river-bank.
Mord took witness again, and bade Flosi and Eyjolf to challenge the inquest.
They went up to challenge the inquest, and looked narrowly at them, but could get none of them set aside; then they went away as things stood, and were very ill pleased with their case.
Then Mord took witness, and bade those nine neighbours whom he had before called on the inquest, to utter their finding, and to bring it in either for or against Flosi.
Then the neighbours on Mord's inquest came before the court, and one uttered the finding, but all the rest confirmed it by their consent. They had all taken the Fifth Court oath, and they brought in Flosi as truly guilty in the suit, and brought in their finding against him. They brought it in in such a shape before the Fifth Court over the head of the same man over whose head Mord had already declared his suit. After that they brought in all those findings which they were bound to bring in in all the other suits, and all was done in lawful form.
Eyjolf Bolverk's son and Flosi watched to find a flaw in the proceedings, but could get nothing done.
Then Mord Valgard's son took witness. “I take witness,” said he, “to this, that these nine neighbours whom I called on these suits which I have had hanging over the heads of Flosi Thord's son, and Eyjolf Bolverk's son, have now uttered their finding, and have brought them in truly guilty in these suits.”
He took this witness for his own part.
Again Mord took witness.
“I take witness,” he said, “to this, that I bid Flosi Thord's son, or that other man who has taken his lawful defence in hand, now to begin their defence; for now all the steps and proofs have been brought forward in the suit, summons to listen to oaths, oaths taken, suit declared, witness taken to the summons, neighbours called on to take their seats on the inquest, defendant called on to challenge the inquest, finding uttered, witness taken to the finding.”
He took this witness to all the steps that had been taken in the suit.
Then that man stood up over whose head the suit had been declared and pleaded, and summed up the case. He summed up first how Mord had bade them listen to his oath, and to his declaration of the suit, and to all the steps and proofs in it; then he summed up next how Mord took his oath and his vouchers theirs; then he summed up how Mord pleaded his suit, and used the very words in his summing up that Mord had before used in declaring and pleading his suit, and which he had used in his summons, and he said that the suit came before the Fifth Court in the same shape as it was when he uttered it at the summoning. Then he summed up that men had borne witness to the summoning, and repeated all those words that Mord had used in his summons, and which they had used in bearing their witness, “and which I now,” he said, “have used in my summing up, and they bore their witness in the same shape before the Fifth Court as he uttered them at the summoning.” After that he summed up that Mord bade the neighbours on the inquest to take their seats, then he told next of all how he bade Flosi to challenge the inquest, or that man who had undertaken this lawful defence for him; then he told how the neighbours went to the court, and uttered their finding, and brought in Flosi truly guilty in the suit, and how they brought in the finding of an inquest of nine men in that shape before the Fifth Court. Then he summed up how Mord took witness to all the steps in the suit, and how he had bidden the defendant to begin his defence.
After that Mord Valgard's son took witness. “I take witness,” he said, “to this, that I forbid Flosi Thord's son, or that other man who has undertaken the lawful defence for him, to set up his defence; for now are all the steps taken which belong to the suit, when the case has been summed up and the proofs repeated.”
After that the foreman added these words of Mord to his summing up.
Then Mord took witness, and prayed the judges to give judgment in this suit.
Then Gizur the white said, “Thou wilt have to do more yet, Mord, for four twelves can have no right to pass judgment.”
Now Flosi said to Eyjolf, “What counsel is to be taken now?”
Then Eyjolf said, “Now we must make the best of a bad business; but still, we will bide our time, for now I guess that they will make a false step in their suit, for Mord prayed for judgment at once in the suit, but they ought to call and set aside six men out of the court, and after that they ought to offer us to call and set aside six other men, but we will not do that, for then they ought to call and set aside those six men, and they will perhaps overlook that; then all their case has come to naught if they do not do that, for three twelves have to judge in every cause.”
“Thou art a wise man, Eyjolf,” said Flosi, “so that few can come nigh thee.”
Mord Valgard's son took witness.
“I take witness,” he said, “to this, that I call and set aside these six men out of the court”—and named them all by name—“I do not allow you to sit in the court; I call you out and set you aside by the rightful custom of the Althing, and the law of the land.”
After that he offered Eyjolf and Flosi, before witnesses, to call out by name and set aside other six men, but Flosi and Eyjolf would not call them out.
Then Mord made them pass judgment in the cause; but when the judgment was given, Eyjolf took witness, and said that all their judgment had come to naught, and also everything else that had been done, and his ground was that three twelves and one half had judged, when three only ought to have given judgment.
“And now we will follow up our suits before the Fifth Court,” said Eyjolf, “and make them outlaws.”
Then Gizur the white said to Mord Valgard's son—
“Thou hast made a very great mistake in taking such a false step, and this is great ill-luck; but what counsel shall we now take, kinsman Asgrim?” says Gizur.
Then Asgrim said—“Now we will send a man to my son Thorhall, and know what counsel he will give us.”