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 homines | 306 | |
| Suffolk | Sochmanni | 1,014 |
| liberi homines | 8,012 | |
| Norfolk | Sochmanni | 5,521 |
| liberi homines | 4,981 | |
| 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, drenches | " | 54 |
| —————— | ||
| Total | 36,729 | |
| —————— |
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.