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.
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.