Part 16

England, as is well known, is the only country that, in spite of all commotions, has preserved trial by jury down to modern times. But it is a matter of much dispute to what people may be more particularly ascribed the honour of introducing an institution which has not only for many centuries been of much service to freedom in England, but which has also been transplanted in later times into many other countries, and is now on the point of being disseminated over all that part of Europe which may be called free. Many learned men assert that trial by jury was unknown to the Anglo-Saxons, and maintain that its proper home was the Scandinavian North, whence it was carried by the Northmen into Normandy, and from that country into England by means of the conquest. Others again assert almost the direct contrary; maintaining, that the tradition which ascribes the introduction of juries to the Anglo-Saxon king, Alfred the Great, though it does not speak the literal truth in deriving the institution merely from that monarch, is still thus far deserving of credence, that trial by jury was known and used by the Anglo-Saxons long before the Norman conquest. These persons are of opinion, that the Danes and Normans even set aside the jury for the barbarous _Holmgang_, or duel, until in the course of time that venerable relic of ancient Saxon freedom again obtained the ascendancy. In order to prove this, they point especially to a passage in one of Ethelred’s laws (Ethelred, iii. § 3), which ordains “that every Wapentake shall have its _Thing_;” and “that a 'Gemot’ be held in every Wapentake, and the XII senior Thanes go out, and the reeve with them, and swear on the relic that is given to them in hand, that they will accuse no innocent man, nor conceal any guilty one.” Further (§ 13): “And let doom stand where Thanes are of one voice; if they disagree let that stand which VIII of them say; and let those who are outvoted pay, each of them, VI half-marks.” To these passages may be added another, also of Ethelred’s time (Ordinance respecting the Dun-Setas, § 3), wherein it is ordered that: “XII lahmen shall explain the law to the Wealas and English, VI English, and VI Wealas. Let them forfeit all they possess if they explain it wrongly; or clear themselves that they knew no better.”

That a jury is here spoken of is beyond all doubt. But a highly remarkable circumstance has been too much overlooked, namely, that Ethelred’s above-mentioned regulation as to the composition of the jury is contained only in the law just cited; which, according to the opinion of its latest English editor, was intended only for the Five Burghs and the surrounding Danish districts. (“_The document of Ethelred, above referred to, seems, in a great measure, to have been published for the sake of the Five Burgs._”—Thorpe.) That it cannot have been intended for the Anglo-Saxon part of England may be immediately seen from the circumstance that all the fines mentioned in it are, without exception, fixed, according to Danish custom, in _marks_ and _ores_, or _öre_, and not, after the Anglo-Saxon custom, in pounds and shillings. In this concise law, moreover, we find several Danish legal terms which were not in use in the south of England; for instance, “lahcop” (Old Norsk, “lögkaup”); “wit-word” (Old N., “vitorð”); and “thrinna XII,” or “trende Tylvter Eed” (i. e. three twelves oath). With respect also to the “XII lahmen,” or, as they are called in Latin, “lagemanni” (Old Norsk, lögmaðr), mentioned in Ethelred’s time, it has long been agreed in England that they must have been originally instituted by the Danes. (Thorpe says: “_The institution was most probably of Danish origin, as we generally meet with them in the Danish portion of the country._”) They were constantly twelve in number, and it can scarcely admit of a doubt that their functions were the same as those of “the twelve eldest Thanes” before mentioned, and that consequently they were regular jurymen. We see, moreover, from Domesday-Book, which mentions “Lagemanni” only in the Danish portion of North England, viz., in Cambridge, Stamford, Lincoln, and Chester, that they were Thanes, or at least equal to Thanes in rank and privileges. Among other things, jurisdiction (sacam and socam) was conceded to them over their inferiors, or subjects. In the old Danish city of Lincoln the names are recited of those who were previously Lahmen, and of those who remained so when Domesday-Book was compiled. These names, which are partly pure Danish—as, for instance, Hardecnut, Ulf, son of Suertebrand, Walrauen, Siuuard, Aldene (Haldan), and others—prove that sons frequently succeeded their fathers in the office of Lah-man (for instance, “Suardinc loco Hardecnut patris sui. Sortebrand loco Ulf patris sui. Agemund loco Walrauen patris sui. Godvinus fil. Brictric”).

For the rest, since we might search the old Saxon laws in vain for any other certain traces of jurymen besides these, and as special care must be taken not to confound jurymen with cojurors, it becomes quite clear, first, that those authors who conclude, from the above often-quoted passages of Ethelred’s law, that the English jury is of Anglo-Saxon origin, are in error; and secondly, that their opponents have not taken a quite impartial view of the matter when they ascribe the introduction of the jury into England to the conquest by William of Normandy. For it must now be regarded as a point quite decided that THE EARLIEST POSITIVE TRACES OF A JURY IN ENGLAND APPEAR IN THE DANELAG, AMONG THE DANES ESTABLISHED THERE, and that, long before William the Conqueror’s time, they had brought over from their old home the Scandinavian _Nævn_, or jury, into the districts north-east of Watlinga-Stræt, colonized by them, just as their kinsmen and brothers introduced that powerful safeguard of popular freedom into Iceland and Normandy. It would, indeed, have been quite inexplicable that the Danes should have given up their peculiar Scandinavian _Nævn_ in a country like England, where the Danish law obtained by degrees so extensive a footing that, during the reign of the first Norman kings, it was still in force in one-half of the kingdom.

The provisions in Ethelred’s law, so frequently cited, respecting the force of the majority of votes in the verdict of the jury, also betray a likeness, which can scarcely have been accidental, to the regulations of the _Nævn_, or jury, at that time observed in Denmark. According to the most ancient Danish laws, the outvoted jurymen were also to pay fines. For the rest, there is this peculiarity in the jury of the Danish part of England, that from the time of Ethelred it was no longer chosen by the complainant, as was originally the case in Denmark, but by the court, or by the sheriff of the district (“gerefa”); which was a considerable step gained towards security against partiality. The choice of jurymen was, besides, still more limited in England than in Denmark. Instead of landed proprietors in general, the twelve eldest Thanes alone were eligible; whence it followed that the jurymen were not only fixed, but also obtained, as a reward for their labour, a certain rank, with the rights and income attached to it. This more aristocratical form of the jury undoubtedly sprang from the circumstance that the Danes had entered the northern and eastern districts of England as lords and conquerors. They could not, consequently, appoint as jurors native Anglo-Saxons, unacquainted with the customs of the Danish law courts; nor would they, assuredly, have permitted a conquered people to take a part in verdicts affecting themselves and their Scandinavian brethern. The consequence was, that they chose from among themselves men of consideration, and acquainted with the law, to conduct the administration of justice. It is very remarkable that a later development of the law in Denmark produced a similar change in the jury, the jurors not being chosen for a single cause, but for a period. In Jutland even “_Sandemænd_,” or jurors appointed by the crown, were instituted, who seem to have answered to the before-mentioned _Lag-men_, or _Lahmen_, in the north of England. Eight landed proprietors were selected in every district by the king, and discharged the office of jurymen for life, unless they forfeited it by some misdemeanour.

Not the least trace is to be found in the old English laws and chronicles that the Danish laws in force in the Danelag were more barbarous than the contemporary Anglo-Saxon ones in the south of England. On the contrary, the fact lately mentioned, that the beneficial change in the composition and working powers of the jury, which had long been in force in Danish North England, was in far later times adopted in Norman England, seems rather to attest, in no slight degree, the superiority of the laws of the Danelag. On the whole, the Danish kings in England, and particularly Canute the Great, seem to have been excellent lawgivers. Canute’s laws respecting the limitation of capital punishment, the right of every man to hunt on his own land, and others, evince a mildness and humanity scarcely to be expected in those rude times.

From what has been said, it appears that the Danish part of England must, in William the Conqueror’s time, have had just as many old Danish popular institutions as Normandy, nay, doubtless still more. It is, therefore, no wonder that William and his Normans were highly partial to the Danish laws then in force in England. Immediately after he assumed the reins of government, he commanded that these laws should be in force throughout the kingdom, and consequently even in the purely Anglo-Saxon districts, as both his own forefathers, and those of almost all his barons, had been Northmen, who had formerly emigrated from Norway. But in an assembly held at London in the fourth year of his reign, he suffered himself to be persuaded, by the urgent entreaties of the leading men among the Anglo-Saxons, to restore the laws of Edward the Confessor in the districts in which they had before prevailed. Nevertheless, the Anglo-Saxon laws gradually gave place to the Scandinavian institutions in force in the north of England. Thus duel, under the name of “trial by battle,” came to be considered throughout England as lawful proof in judicial suits; an evident result of the bold and chivalrous spirit of the new Norman lords. This kind of proof caused, however, much disturbance in England, and at length, though tardily, grew out of use. It was not formally abolished by law till the year 1818, after a prosecutor had challenged his adversary to trial by battle; a proceeding which even the legal tribunals were obliged to acknowledge that the law, taken in its strictest sense, fully authorised him in adopting. It is, however, remarkable enough that the proof by duel, which in Scandinavia itself was abolished on the introduction of Christianity, should have maintained its ground for several centuries in England, which had long been Christianized. We might even say that down to the present times it has everywhere left perceptible traces in Europe. For what are duels but trials by battle, or sort of judgment of God? They were, however, much disseminated by chivalry, in the development of which the warlike Normans took so considerable a part. The ancient _holmgang_ was, as we have seen, called, both in Normandy and England, “duel.”

The institution of the jury (“Nævninger,” or “Nævn”), before mentioned as originally Scandinavian, was established throughout England by the Normans in such a manner that it has maintained its place to our times. Under the first Norman kings we find traces of a more general employment of the jury, which was previously confined to the Danish part of England, where it continued to exist after the conquest by William. When, in the following century, _holmgang_ or trial by battle, began, in spite of the limitations it had undergone, to become too grievous in England, a law was published in 1164, that a jury of twelve knights, chosen by four knights of the district, should be substituted in its place. Thus at its first general establishment in England the jury had much the same form as it possessed in earlier times in the Danish part of the kingdom. The provision that the jury should be composed of knights soon fell to the ground. Subsequently, after the ordeal by red-hot iron, or the judgment of God, had been abolished (in the year 1219), it was appointed, in the reign of Henry the Third, that the accused, who might previously have liberated himself by that ordeal, should submit his case to the decision of twelve _Nævninger_, or jurymen. In this manner an influence was secured to the jury in England, which has since been continually increasing; trial by jury having become, as it were, the central point of the judicial system in that country. The English themselves, with just reason, regard the jury as a wise and happy institution, which has much contributed to develope the excellence of the national character, and to maintain the free constitution of their country. What is more, foreigners pass the same judgment on it; and it especially deserves to be remembered, that at the present moment, after the introduction of popular freedom into the Scandinavian North, its people are seeking to re-establish the native _Nævn_, or jury, which formerly crossed the seas with the conquerors of England and Normandy, and which has victoriously stood the trial of centuries in those countries.

We have already seen it proved, from contemporary laws, that the germ of at least one of England’s freest and most important institutions was to be found, as early as the ninth century, among the numerous Danes and Norwegians settled in that country, to whose successors and kinsmen may be justly ascribed the honour of further developing the institution of trial by jury. In like manner contemporary chronicles bear witness that these Danish and Norwegian settlements in many ways essentially contributed to promote political liberty and the spirit of freedom. According to that remarkable document, Domesday-Book, there was, about twenty years after the Norman conquest, a greater number of independent landed proprietors, if not, in the strictest sense of the word, freeholders, in the districts occupied by the Danes, and under the Danelag, than in the other, or Anglo-Saxon, part of England. The smaller Anglo-Saxon agriculturists were frequently serfs, though, for the most part, perhaps, leaseholders, or holding other subordinate situations; whilst the Danish settlers, being conquerors, were mostly freemen, and, in general, proprietors of the soil. Domesday-Book mentions, under the name of “Sochmanni,” a numerous class of landowners, or peasants, in the Danish districts north-east of Watlinga-Stræt, who, to the south of that line, and even then only just upon the borders of it, are rarely to be found, (viz., in Buckinghamshire, 19, and in Surrey, 9). It also mentions a great number of freemen in those districts, or, as they are called in Latin, “liberi homines.” Neither _Sochmanni_ nor _liberi homines_ seem, however, to have been freeholders, in the present sense of that term. They certainly stood in a sort of feudal relation to a superior lord; but in such a manner that the “Sochmanni” may be best compared with our present hereditary lessees. Their farms passed by inheritance to their sons, they paying certain rents, and performing certain feudal duties; but the feudal lord had no power to dispose of the property as he pleased.

The counties occupied by the Danes and Norwegians, viz., Northumberland, Durham, Westmoreland, Cumberland, and Lancashire, are not mentioned in Domesday-Book. In the other fifteen counties to the north and east of Watlinga-Stræt, the “Sochmanni” and “liberi homines” are summed up as follows (see Turner’s “History of the Anglo-Saxons”):—

Essex Sochmanni 343

liberi 306 homines

Suffolk Sochmanni 1,014

liberi 8,012 homines

Norfolk Sochmanni 5,521

liberi 4,981 homines

Cambridge Sochmanni 245

Hertford " 57

Bedford " 88

Northampton " 915

Huntingdon " 23

Rutland " 2

Leicester " 1,716

Derby " 127

Nottingham " 1,565

Lincoln " 11,322

Yorkshire " 438

Cheshire, " 54 drenches

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Total 36,729

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The so-called “freemen” (liberi homines), who, it may be assumed, most resembled our freeholders, seem from this to have been principally confined to Essex (306) and the ancient East Anglia, or Norfolk and Suffolk (together, 12,993). “Sochmanni” were also very numerous in these three counties (together, 6878); yet they appear in the greatest numbers in the old Danish Lincolnshire, which alone had 11,322. In the other districts round the Danish five burghs, they were also pretty numerous: in Leicestershire, 1716; and in Nottinghamshire, 1565. The number of these independent landowners was consequently greatest in the districts earliest occupied by the Danes, where they naturally sprung up from the Danish chiefs’ parcelling out the soil to their victorious warriors. That the large county of York had not more than about 440 _Sochmanni_ can hardly be used by way of counter-proof; partly because Yorkshire had been terribly exhausted in the wars of William the Conqueror, which took place before Domesday-Book was compiled; and partly because it is clear that Yorkshire is not so fully described in that document as the more southern counties. Lastly, it is remarkable that extremely few serfs are mentioned in the districts north-east of Watlinga-Stræt, in comparison of the many that are recorded in the south and south-west of England.

English authors admit that the Danish settlers in England bestowed a great benefit on the country, in a political point of view, by the introduction of a numerous class of independent peasantry, who formed a striking contrast to the oppressed Anglo-Saxon commonalty. (“The Danes seem to have planted in the colonies they occupied a numerous race of freemen, and their counties seem to have been well peopled.”—Turner.) But unfortunately the number of Danish-Norwegian freeholders and freemen at that time in England cannot now be given more closely than by the above sum of 36,729, which is evidently too low, and in every respect highly inaccurate.

It is, however, large enough to strengthen and throw light upon the statements of the chronicles, that the descendants of the Danes and Norwegians in the country to the north-east of Watlinga-Stræt, especially distinguished themselves by a lively feeling of freedom and independence. From the time of their very first settlement, they desperately resisted every chief who attempted to deprive them of their rights as free and independent men. It was, indeed, but reasonable that they should, with persevering boldness, defend in a foreign land that freedom for the sake of which they had abandoned their Scandinavian homes. Their severest and most perilous struggle for liberty naturally took place after the destruction of the Danish power under Hardicanute (1042): although the extensive Danish tract north of the Humber still retained its Danish jarl, Siward.

But on Siward’s death (1055), his son, Valthjof (Waltheof), was too young to govern that important district, which was therefore made over to Toste Godvinsön, who afterwards fell at Stamford Bridge. Toste ruled with despotic power, set aside the laws of Canute the Great, and levied taxes which were contrary to the people’s ancient rights. The Northumbrians therefore deposed him at a _Thing_, and expelled him in 1064. When Toste’s brother, Harald, afterwards endeavoured to effect a reconciliation, on the condition that Toste should be reinstated in the earldom, the Northumbrians unanimously rejected the proposal. “We were born and bred up in freedom,” they exclaimed; “a proud and ambitious chief we will not endure, for we have learnt from our fathers either to live like freemen or to die.”

When, two years afterwards, William began to conquer England, and to parcel it out among his warriors, it was chiefly the inhabitants of the old Danish districts who opposed him with all the energy of despair. The successors of the Danes and Norwegians, under ordinary circumstances, would have joined their kinsmen the Normans; especially as they gave out that one of their objects in coming to England was to avenge their Danish and Norwegian relatives, secretly massacred by Ethelred. But the Normans aimed at nothing less than the abolition of the free tenure of estates, and the complete establishment of a feudal constitution; a mode of proceeding which, by depriving the previously independent man of his right to house and land, and transferring it to powerful nobles, shook the very foundation of freedom. The descendants of the Danes turned from them, therefore, with disgust, and now no longer hesitated to enter into an alliance with the equally oppressed Anglo-Saxons; for the common danger made both races forget their ancient animosities. Many of the Anglo-Saxon chiefs and warriors who had been defeated by William in the west and south-west of England, fled towards the north, and prepared, in conjunction with the inhabitants of that district, to venture everything in self-defence.

It was not till the year 1068 that the Normans succeeded, after a severe contest, in taking Oxford, Warwick, and the old Danish burghs Leicester, Derby, Nottingham, Lincoln, and York. In these places, but especially in Lincoln and York, the Normans were obliged to build strong fortifications, for fear of the people of Scandinavian descent, who abounded both in the towns and in the adjacent rural districts. But what the Normans chiefly apprehended was, attacks from the Danes who, there was good reason to suppose, might come over with their fleets to the assistance of their countrymen in the north of England.

Meantime, whilst the remains of the united Anglo-Saxon and Danish-Norwegian armies had withdrawn to the mountains of Northumberland, where they often surprised and killed whole detachments of Norman troops, numerous fugitives and messengers repaired to King Svend in Denmark, to implore him, in the name of his English friends, and in that of freedom, to assist them against William the Conqueror. Svend sent his brother Asbjörn, and his sons Harald and Canute, over with a fleet, who, after a vain attempt to land at Sandwich, entered the Humber, in the year 1069. The Northumbrians, and the rest of the aggrieved inhabitants, both Northmen and Anglo-Saxons, flocked gladly together under the Danish banner. Edgar, who had been chosen king by the Anglo-Saxons, Valthjof (Waltheof), a son of the old Northumbrian jarl Siward, and many other fugitives, joined the Danish host. York was taken, the Normans put to flight, and their fortifications levelled with the ground. In these encounters Waltheof gained great honour for courage and bravery.