CHAPTER II.

THE ANCIENT TRIBUNALS OF SCANDINAVIA.

A

DANISH jurist, Professor Repp of Copenhagen,

published some years ago a very learned treatise on the forensic institutions of Scandinavia1, which deserves to be better known in this country than it is. It supplied a chasm in juridical literature, for previously to its appearance the most crude and imperfect views were held respecting the old Norse tribunals, and Blackstone and other writers were content to take their scanty information from Saxo Grammaticus, Stjernhook, and the Leges Saxonum, a Latin copy of the latter having been discovered in the library of Fulda in the middle of the sixteenth century. Repp, however, has investigated the subject with diligence and accuracy. He examined about forty ancient codes of law in the original languages, and has thrown much light upon what has hitherto been one of the darkest regions of forensic history. Even now it may be said to be still a terra incognita to the English lawyer; and yet the resemblances that occur between the primæval courts of justice of the Northmen and our own at the present day, are such as might well provoke curiosity, even if they did not

'Historical Treatise on Trial by Jury, Wager of Law, and other co-ordinate forensic institutions formerly in use in Scandinavia and Iceland. 1832. This work is now very scarce, and it was with great difficulty that I was able to procure a copy.

secure a careful and discriminating inquiry. Repp, indeed, is so impressed with this that he does not hesitate throughout his work to speak of the usual mode of trial amongst them as trial by jury; and with reference to the Norwegian tribunals, says, that the analogy is so strong as to exclude every doubt in regard to the common origin of the laws respecting 'juries' in both countries. I venture, however, to think that he is mistaken in this point, and that his error has arisen from a twofold cause-first, from not sufficiently distinguishing the functions of a judge from those of a juryman in the modern sense of the word; and, secondly, from not knowing or not remembering that the jurymen of England were originally nothing but witnesses. In the course of the present chapter I shall have occasion to point this out more fully, when the different courts of Scandinavia come separately under our consideration.

But it may be here stated generally, that throughout the whole of that region the characteristic of the legal tribunals was, that they were composed of twelve persons, taken from time to time from amongst the people, who determined questions in dispute upon oath, and whose judgment or verdict was decided by the majority.

With reference to this mode of trial, Repp says that its antiquity cannot now be determined. We discover it with the earliest dawn of Northern history, and even at that early period, as an ancient institution. We can trace the undoubted existence of juries (in this sense) as far back as one thousand

years; before that period the history of Northern Europe is wrapped in Cimmerian darkness, and we cannot expect to find authentic records respecting juries, where all other records fail. The use of this tribunal, however, in Scandinavia was not so frequent before the beginning of the tenth century as afterwards. In earlier times it was frequently superseded by trial by battle, which was deemed the most honourable mode of settling disputes; and as that began to decline on the introduction of Christianity, it was succeeded by compurgation and the ordeal, which last is said to have been first established in consequence of bishop Poppo, in the year 950, thrusting his hand into a red-hot iron glove, and drawing it out unscathed, to prove to the Jutlanders that the religion which he preached was divine. The people seeing this, rushed in crowds to the baptismal font, and in future adopted the ordeal as a means of appealing to heaven to determine disputed rights.

The most ancient codes, however, do not sanction any other mode of trial than that by sworn judges. In none, not even in those of the tenth century, is the trial by battle mentioned, and very few allude to the ordeal. But they abound with notices of the various forms of trial by jurors; they contain minute and elaborate regulations respecting its form, its application, and its contingencies, and prescribe its use in almost every page1.

The jurors, however, of the old Saxons were nothing but compurgators. This was the only mode 1 Repp, Histor. Treatise.

T. J.

с

of trial in use amongst them. If a man were accused of a crime, he either paid the legal fine, or proved his innocence by his own oath and that of a certain number of friends, proportioned to the nature of the offence1. But no mention is made of any tribunal of sworn juries or others, acting in a judicial capacity. And this is an important fact when we consider that from them came the invaders and occupants of Britain, to whom, under the name of Anglo-Saxons, we trace up so many of our most cherished rights and customs as freemen.

SECTION I. The Norwegian LAUGRETTOMEN.

IN Norway it was different. There causes were determined and offences tried by a body of sworn jurymen in the most ancient times. We have a full account of the constitution of this tribunal in the code or law of Gulathing, published by king Magnus, in the year 1274. But this did not establish the court;— it merely introduced some changes in an institution which had existed long before. In Norway there were two solemn meetings or THINGS held periodically -the one in the North, called FROSTA-THING, and the other in the South, called GULA-THING. The latter assembled in the island of Guley, where there was a sacred place in which the court was held in the open air. Three persons holding different offices

1 The Saxon laws are full of such enactments as the following, De ictu nobilis XXX. Solid. vel, si negat, tertia manu juret. De Vulneribus.

under the crown were authorized by law to nominate a certain number of deputies, (called Nefndarmen, or "named-men”) from each district, who attended the Things. In the Gula-thing there were one hundred and thirty-nine of these deputies; and at the opening of the assembly each of the officers who returned them had to take an oath in the following form:'I certify, laying my hand on the holy book, and I appeal to God, that I nominated such men for Gulathing as I considered most able and discreet according to my conscience, nor did I therefor receive any gift or favour.' From amongst the deputies were chosen (but in what manner is left in uncertainty) thirty-six men to act as jurors, who took their seats. within the sacred enclosure, in a space marked off by staves and ropes, called Laugretta, and the jurors themselves were called LAUGRETTOMEN', which literally means, 'Law-amendment-men.' This name seems at first sight to imply that they had legislative rather than judicial functions to perform, but this was not so. In those simple times, the written laws generally specified particular cases, and the consequence was, that others were constantly occurring which the code had left unprovided for. To adjudicate upon such causes was therefore like making new laws, and hence the jurors derived their name. The Thing was presided over by a Lögmann or Law-man, one of whose qualifications for the office in old times was, that he could recite by heart the laws of the land; but he had anciently no voice in the decision of the causes that

1 From Laug lex and retta emendatio.