Part 15

The Anglo-Saxons were the teachers of the Danes in several ways; above all they made them Christians, and thus communicated to them a new and higher civilization. The Danes in England reaped advantage from the civilization of the Anglo-Saxons, just as the Anglo-Saxons themselves had once begun their own, by building on that refinement which their predecessors, the Romans, had disseminated in England.

But as the Anglo-Saxons did not become Romans, because they adopted and remodelled the Roman civilization; nor the Normans in Normandy Frenchmen, because after their settlement in France they soon assumed many of the French manners and customs; so neither did the Danes in England become Anglo-Saxons, however much they might have been indebted to them for their civilization. The Normans in France retained, in spite of their Christianity and French refinement, the characteristic stamp of their Scandinavian origin, which afterwards caused them to play quite a peculiar part in history. In like manner the Danes in England, amidst the refinements of the Anglo-Saxons, undoubtedly preserved many of their Scandinavian characteristics, which did not disappear without leaving visible and very remarkable traces. But the Scandinavian spirit stamped itself, though perhaps only apparently, in a somewhat different manner on the Norman race in Normandy, and on the Danes in England.

Among the Normans in France the Scandinavian spirit worked, so to speak, only outwardly, in magnificent conquests, of which the chief theatres were England, Italy, and Sicily. Chivalry and feudalism, with their crusades, communicated a new impulse to it; but, internally, it effected comparatively little for France. It did not manifest itself in Normandy by forming political institutions capable of supplanting the oldest and most essential French laws and constitutions; nor, indeed, are we able to point out with exactness what really Scandinavian customs the Normans established in that country. Yet it can scarcely be doubted that they introduced there trial by jury, as well as trial by battle, and other Scandinavian legal institutions.

In England, on the other hand, the northern character showed itself so far outwardly active as to exercise a vast and unmistakable influence on her commerce and navigation, and on the bold and adventurous spirit of enterprise among her people; which, though at a much later period than the conquests of the Normans, has nevertheless extended her dominion over every sea. But in England it has also been internally a living and guiding spirit, in the formation of her judicial and political institutions. It is an incontrovertible and notorious fact, which has, however, hardly been sufficiently insisted upon, that about half of England—the so-called “Danelag,” or community of the Danes—was for centuries subject to Danish laws; that these laws existed even after the Norman conquest; and that they did not pass into the general or common law of England, till the successors of William the Conqueror at last united into a whole the various discordant parts into which England had been previously divided. When we remember that the Normans long retained a predilection for old Scandinavian institutions and forms of judicature, it seems highly probable that the Danish laws, which had for so long a period prevailed in England, did not disappear under their sway without the new laws, which they established, deriving from the old a particular colour, and certain Scandinavian stamp. A further examination of this point will scarcely be superfluous, as it will enable us to judge how far those are right who, in company with one of England’s most celebrated statesmen (Sir R. Peel, in a speech in Parliament), are proud that “the Danes tried in vain to overthrow the institutions of England, instead of securing them;” and then reproach the Danes that, on the whole, they did not, after all their devastating expeditions, establish anything new, great, and durable.

The population of the heathen North, as was the case everywhere else at that period, was divided into serfs and freemen. Even after the introduction of Christianity, many centuries elapsed in all countries before thraldom was abolished, and the worth of man, as man, generally recognised. The serf was always regarded more as an animal than as a human being. The freeman, on the contrary, enjoyed a high degree of civil liberty. He was not only uncontrolled master in his own house, and among his nearest dependents, but likewise exercised an important influence on the management of the public concerns of his own district and of his country. He took part in the decision of law cases in the “Thing,” and gave his vote at the great “Thing,” where the election of a monarch, war, treaties of peace, and other important matters, came under consideration. Scandinavia was, besides, in ancient times, divided into a number of small kingdoms; and the smaller these were, so much the greater was the individual freeman’s power and importance.

The old inhabitants of the North entertained, therefore, a sincere affection for those institutions which gratified their proud feeling of freedom. Personal participation in the administration of justice, at a time when written laws did not exist, must have made every freeman a lawyer and a zealous defender of existing institutions, especially so far as regarded the main point, namely, the freedom they ensured. A general knowledge of the laws was still further promoted by the innate love of the Northmen for disputes and law-suits. Respect for the law was speedily carried to such an extent, and in the administration of justice at the _Things_ old established customs and usages were so strictly observed, that the slightest formal flaw was sufficient to ensure the rejection even of the most important cause. How deeply rooted the old national law was, is best shown by the fact that the Roman law, which had been adopted in the greater part of Europe, could never gain the supremacy in the countries of Scandinavia. The present Scandinavian law is by no means the offspring of any foreign code, but is founded on, and independently developed from, the law which already existed in the North in the days of heathenism.

The powerful warriors, who in those remote times emigrated from the North, were, for the most part, men no less high-spirited and fond of freedom than their fathers before them. The old chronicles state, that among the warriors who came over to England with the conquerors Svend and Canute, there was not a single serf. The history of Iceland shows, even at an earlier period, that most of the colonists who went thither were descendants of kings, jarls, and other of the most powerful freemen of the North. These emigrants did not leave their paternal home because they were dissatisfied with their ancient hereditary rights and liberties, but because those rights and liberties were gradually threatened with restriction, and even annihilation, by ambitious and absolute monarchs. It was this that led them to undertake the conquest of foreign lands, and thus to acquire a freedom which might indemnify them for what they had been compelled to relinquish.

It is therefore no wonder that the Scandinavian colonists introduced their national laws, which had always proved the surest defence of their liberties, at once and completely both into countries previously uninhabited, and into those from which the ancient inhabitants were expelled by their invasions. This was the case, for instance, in Greenland, the Faroe Isles, the Shetland Isles, and the Orkneys. But with regard to freedom they even went still further than in Scandinavia, and sometimes abolished the regal power, whose caprices and dangers they had learned to appreciate and fear, and founded republics in its place. Even in countries like France and England, where a large and civilized population, possessing a complete system of national law, previously existed—and where the Scandinavian colonists, till they became strong enough to assume the authority of masters, were for a long time inferior both in numbers and power—they adhered immovably to their ancient legal customs, and caused them to be observed, in spite of Christianity, and of that foreign civilization which they themselves soon adopted. But it was at the same time a natural result of this state of things, that they were neither able to introduce into such countries _all_ the ancient legal usages of Scandinavia, nor, generally speaking, _any_ law of a comprehensive character, without adapting it to the peculiar situation which they, as conquerors and strangers, now occupied in regard to the natives and their existing institutions.

A strong proof, not only of the affection of the Danes for their Scandinavian institutions, but of the complete settlement of that people in England at a very early period, is, that in the beginning of the tenth century, and consequently more than a hundred years before the time of Canute the Great, they had already established their own laws on the east coast of England, notwithstanding that Christianity, as before stated, had gained a footing amongst them. It appears, from the remarkable treaty concluded at that time between Kings Edward and Gudrum, that the Danes settled in East Anglia, and on the eastern coast of England, were not only placed on an equal footing with the English with regard to legal rights, but that it was also determined how disputes between the English and Danes should be decided, and what fine each people should pay for certain crimes. Thus the English were to pay “_wite_,” or fines, according to the English law, in pounds and shillings; whilst the Danes were to make compensation for “_lah-slit_” (i. e., _infraction of the law_, from the old Norsk, _lög_, law, and _slita_, to rend in two, break), according to the Danish law, in “marks” and “ores.”

About the same time the chronicles testify that the “five burghs” occupied by the Danes in the heart of England, together with large districts both in the east and north, were subject to Danish laws. The Anglo-Saxon king Edgar (959-975) says, in a passage of his laws (cap. 12), which shows his partiality for the Danes, “Then will I that with the Danes such good laws stand as they may best choose, and as I have ever permitted to them, and will permit so long as life shall last me, for their fidelity, which they have ever shown me.” He likewise says in the next chapter, where mention is made of a fixed punishment: “Let the Danes chuse, according to their laws, what punishment they will adopt.”

From this state of things, it happened that four different sorts of law were in force in four different parts of the kingdom. Farthest towards the west, where the remnant of the ancient Britons dwelt, the Welsh law was in force; among the West Saxons, the West-Saxon law; in Mercia, the Mercian law; and in the so-called Danelag, or country to the north-east of Watlinga-Stræt, the Danish law. Of these four systems of law, the Danish, beyond comparison, most prevailed. Its decrees were in later times constantly recognised, not only by Ethelred (not to speak of the Danish kings), but by Edward the Confessor and William the Conqueror, whose laws usually treat of the “Danes-law” (Dene-lahe), with its fines, or “_lah-slit_,” in marks and ores. Even in the laws promulgated by Henry the First (1100-1135), it is stated (vi. § 1), that England is divided into three parts, Wessex, Mercia, and the province of the Danes. (“Regnum Anglie trifariam dividitur in regno Britannie, in Westsexiam, et Mircenos, et Danorum provinciam.”) And it is further said (§ 2), that the law of England falls into three parts, according to the above division, viz., the West Saxon, the Mercian, and the Danish law, or Denelaga. (“Legis eciam Anglice trina est particio, ad superiorem modum; alia enim Westsexie, alia Mircena, alia Denelaga est.”)

A cursory view of these different laws will soon show, both that Scandinavian words and juridical terms were employed in the _Danelag_, and that by degrees, but mostly in the time of Canute the Great and William the Conqueror, they were introduced into the common laws of England: as, for instance, “hor-qwene” (Hoerquinde; _Eng._, adultress), “nam,” “halsfang,” “heimillborch,” (Hjemmelborg), “husting,” and others. For the rest, it is natural that most traces of the old Scandinavian institutions should be found in the districts to the north-east of Watlinga-Stræt.

The Danes settled there had from the beginning several chiefs with the title of king, who were for the most part independent of the Anglo-Saxon kings, and reigned by means of their jarls and the chiefs to whom they had portioned out the conquered land. These numerous small kingdoms were afterwards subdued by the Anglo-Saxons, and converted into Earldoms. A peculiar sort of Danish chiefs or Udallers (“_holdas_,” from the old Norsk _hölldr_), is mentioned in East Anglia, who, like the Norwegian “Höldar,” or “Odelsmænd,” held their properties by a perfectly free tenure. It is probable that the original Udallers were the chief leaders, or generals, of the Danish conquerors settled in East Anglia. From the fines fixed for the murder of such “holdas,” it is plain that they held a very high rank. The old Scandinavian name for a peasant, “_Bonda_,” was also disseminated in the north of England. There, as in Scandinavia, the peasants undoubtedly constituted the pith of the landed proprietary. The names of places in the north of England beginning or ending with _garth_ (or _Gaard_), such as Watgarth (_Vadegaard_, on the river Tees), Grassgarth, Hall Garth, Garthorpe, Garthwaite, and others, show that the peasants, as in Scandinavia, were settled in _Gaarde_, or farms, which belonged indeed to the before-mentioned “_holdas_” (“_Odelsmænd_”), or other feudal lords; but which nevertheless seem, in some degree, to have been the property of the peasants, on condition of their paying certain rents to their feudal lords, and binding themselves to contribute to the defence of the country. Other landed proprietors, or agriculturists, with pure Scandinavian names, appear in Cheshire under the appellation of “_drenghs_” or _Drenge_.

The Danes and Norwegians in North England settled their disputes and arranged their public affairs at the _Things_, according to Scandinavian custom. The present village of Thingwall (or the _Thing-fields_), in Cheshire, was a place of meeting for the _Thing_; and not only bore the same name as the old chief _Thing_ place in Iceland, but also as the old Scandinavian _Thing_ places, “Dingwall,” in the north of Scotland; “Tingwall,” in the Shetland Isles; and “Tynewald,” or “Tingwall,” in the Isle of Man. There were incontestably in the Danish parts of England certain larger or common Thing-meetings for the several districts, which were superior to the _Things_ of separate ones; and it may even be a question whether traces of them are not to be found in the division into _Ridings_, at present used only in Yorkshire, but which formerly prevailed also in Lincolnshire. Originally these divisions had not the name of _reding_ or _riding_, which they did not obtain till later, and undoubtedly through a misconception. Yorkshire is at the present time divided into the North, East, and West Ridings; and, according to Domesday-Book, Lincolnshire also was (about the year 1080) divided into Nort-treding, Westreding, and Sudtreding; consequently, like Yorkshire, into three parts. These divisions were called by the Anglo-Saxons “Þriding,” or “Thriting.” Now, as they were foreign to the Anglo-Saxons, whose historians did not even know how to explain their origin, and as they also appear exclusively in the two most Danish districts in England, it is surely not unreasonable to seek their origin in Scandinavian institutions, in which a simple and natural explanation of them may certainly be found. In Scandinavia, and particularly in the south of Norway, provinces or Fylker (petty kingdoms), were not only divided into halves (hálfur) and fourths (fjórðjungar), but also into thirds, or _Tredinger_ (Þriðjungar), which completely answer to the North-English “thrithing.” It was, moreover, precisely to the _Tredings-things_ that all disputed causes were referred from the smaller district _Things_.

It is more doubtful whether we may ascribe to the Danes alone the introduction of the word “Wapentake” (_Vaabentag_), as the peculiar designation for a district. In the northern counties of England, viz., Northamptonshire, Nottinghamshire, Lincolnshire, and Yorkshire, this term is still used instead of the customary one of “Hundred.” Yet there is some probability that it may have been derived from the circumstance that the Danes, like the ancient inhabitants of the North in general, elected their chiefs, and signified their assent to any proposition at the _Things_, by Vaabentag, or Vaabenlarm (sound, or clang of arms). Vaabentag (Wapentake) might thus have become the name of a small district, having its own chief and its own _Thing_. A law of King Ethelred’s (see Thorpe, _Leges et Instit. Anglo-Sax._, Glossary, _Lahman_), which seems to have been promulgated only for the five Danish burghs, and the rest of the Danish part of England, orders that there shall be in every Wapentake a _Gemot_ or _Thing_. It is at all events very remarkable, that the division into Wapentakes should exist only in old Danish North England.

In the towns occupied by the Danes, as in the five burghs—or, if Chester and York be included, in the “seven cities”—there was certainly a Danish _Thing_, as well as in the rural districts. The English word _by-law_—still used to denote municipal or corporate law, which is neither more nor less than the Danish “_By-Lov_,” and which, consequently, must have retained its name ever since the times of the Danes—shows at once that they must at least have had some share in developing the system of judicature in the English cities. It is, besides, well known that there was in remote times a Scandinavian “husting” in Sheppey, London, and Winchester, as well as York and Lincoln, and consequently in places south of Watlinga-Stræt. Of the seven cities before mentioned, only York and Lincoln are with certainty known to have had “hustings;” but nevertheless, it can scarcely be doubted that there must have been similar _Things_ in the other five cities. I may add, that the tribunals existing in them are called, in the Anglo-Saxon text of Ethelred’s laws for the five burghs just alluded to, “_Gethingd_”—a word which bears an undeniable resemblance to the Scandinavian _Thing_; whilst in Anglo-Saxon such courts were called “_Gemot_.”

According to old English records, the Danish laws in force in the Danish part of England, though in several respects strikingly similar to the Anglo-Saxon laws, differed from them in many points. It is not, indeed, clearly determined in what these differences and resemblances consisted; but it is at all events certain that the dissimilarity cannot have been confined merely to the difference before mentioned in the amount of the fines, nor to the mode of calculating them; which, as previously stated, was in marks and ores in the Danish part of England, and in pounds and shillings in the Anglo-Saxon districts.

In law-suits among the Anglo-Saxons, the usual kinds of proof were by oath, by witnesses, by cojurors, and by the ordeal of hot iron, or the judgment of God. It was at an early period also customary, in the heathen North, to use by way of proof oaths, cojurors, and witnesses; but instead of the ordeal by hot iron, which was first introduced under Christianity, the old Northmen had quite a different way of deciding their legal disputes, and one which agreed better with their martial spirit, namely, by duel. By some this method was also considered a peculiar kind of God’s judgment; but it should rather, perhaps, be regarded as the subjecting of the original feud, or quarrel, to certain settled forms. This sort of combat was called “_holmgang_,” because the duel generally took place on a small island, or _holm_, where it was conducted according to fixed laws. Both plaintiff and defendant had the right of challenging their adversary. Although this mode of deciding legal disputes might easily be, and indeed sometimes was, abused by evildoers—who did not scruple to take advantage of the weakness and want of warlike skill in others, in order to obtain possession of their estates—still it was far more in favour in the North than the proofs by oath and cojurors. The Normans carried it with them into Normandy; and there can scarcely be a doubt that the Danes and Normans, long before the Norman conquest of England—nay, long before Canute the Great’s time—introduced it into the _Danelag_ in the north of England; where, at least, the word “_Holmgang_,” in its pure Scandinavian meaning, was in use for many generations.

But a peculiar, and in its results highly important, judicial institution prevailed in the North, namely “_Næfn_,” “_Næfninger_” (Nævninger); or, as it has been called in later times in English, “Jury.” According to the most ancient Danish laws the accuser had a right, particularly in important criminal causes, to select from among the people a certain number of jurors (Nævninger), who, after taking an oath, were to condemn or acquit the accused; and judgment was not pronounced till they had given their verdict. The accuser’s choice of jurors was limited by law to owners of landed property who were not related to him; neither were they to be inimically disposed towards the accused, who had the right of challenging any of them. The decision of the jury was declared according to the majority of votes. In some districts at least, as for instance in Scania (Skaane), the accused was allowed, if the decision of the jury was against him, to appeal to the ordeal by red-hot iron, which, after the introduction of Christianity, became an important mode of proof in the North. But after the abolition of that ordeal in Denmark (in 1218), and after the heathen mode of duelling, or _holmgang_, had been abolished by Christianity, and superseded by the institution of juries, this last method of trial played an important part, and became popular with the people because it afforded them a participation in the administration of justice, and at the same time secured their civil liberties. Nevertheless trial by jury was at length obliged to yield to newer forms of law in Scandinavia; and just in proportion as the ancient freedom of the people was lost, the political institutions which had originated from it also disappeared.