him wherein the error lay, whereat, says the Saga, Odd was astonished, and greatly vexed, and left the

court.

Odd's father, Ofeig, was a lawyer of a less formal school; and he spoke as follows: How does it happen that Ospak is not outlawed? Are there not sufficient grounds to condemn him? Has he not, in the first place, committed theft, and then slain Vali? To this the court answered: All this is not denied; nor is it pretended that this issue of the cause is grounded in justice or equity; but there was an informality in the preliminaries of the process.' Ofeig replied, 'What informality could there be of greater moment than the crimes which this man has committed? Have you not made an oath that you will in your judgments adhere to justice and truth and the laws? But what can be more just and equitable than outlawing and depriving of all means of supporting life a most heinous culprit, who has deserved such a condemnation? As to that part of your oath by which you are enjoined to judge according to law, you ought, indeed, on the one side to be mindful of the laws of process; but, on the other, not forgetful of equity and justice: this ought to be your firm purpose when you take the oath, to condemn such as have deserved it, to punishment, and not to incur the heavy responsibility of suffering them to escape with impunity.'

Such then were the ancient courts of justice in Scandinavia, and it has, I think, in the course of the inquiry, been proved that they were essentially differ

ent from our own jury. But independently of the reasons which have been already urged against the theory, that it was derived from them, the following consideration seems to be entitled to great weight. If the old tribunals of the North were the archetype of the jury, how could we have failed to discover the existence of their leading and peculiar features in the juridical system of the Anglo-Saxons? The Jutes and Angles and Saxons and Danes, who at various times overran and occupied England, came from the countries where the institutions of which we have been speaking prevailed, and if they had transplanted them to the land of their adoption, we must have found them noticed amongst the numerous laws and customs of the Anglo-Saxon period, of which records are still preserved. The existence of a nämbd would have been as distinctly marked in them as it is in the Scandinavian codes.

It is, in my opinion, the most improbable of theories to suppose that courts constituted like those of Norway and Sweden, with their twelve jurors and presiding Lawman, should have been introduced into Britain by the invading Northmen some centuries before the Norman Conquest, and have become the common tribunals of the country, without leaving any record or trace of their existence until the reign of Henry II. And yet this must have been the case if the hypothesis is true, that the jury was copied from the courts of Scandinavia. For I hope to shew that the form of our jury trial was then first established; and it is not pretended that the Norman king sent

commissioners like the Decemviri to collect the laws and customs of the North, before he instituted the Grand Assize. If that mode of trial was taken from those countries, it must have gained footing here at the time when the migrating hosts who landed on our shores retained the liveliest recollection of the usages of the nations of which they had so recently formed a part. If an identity between the institutions is supposed to be proved by their resemblance, let those who maintain that theory explain why, the more we examine the periods following the Saxon and Danish immigrations into Great Britain, the more certainly we can prove that this mode of trial had then no existence1.

1 The most remarkable approximation to our own institution seems to have existed at an early period in Russia for the trial of criminal cases. In the French translation of M. Karamsin's Histoire de Russie, we find the following: Le plus ancien code des lois russes porte que douze citoyens assermentés discutent suivant leur conscience les charges qui pèsent sur un accusé, et laissent aux juges le droit de determiner la peine.

CHAPTER III.

LEGAL TRIBUNALS OF ANCIENT GERMANY.

SECTION I. Constitution of the old German Courts of Justice.

THE earliest courts of the various German tribes

were very much alike'. The basis of the Teutonic polity, and what may be called the unit of the system, was the division of the country into districts, called marken, several of which made up a gau. At the head of each gau was a territorial lord who led forth the military array in war, and sat as president of the courts of justice within his jurisdiction. Thus so late as the year 1299 the Archbishop of Mayence presided over the landgericht of his province. But as the increasing frequency and number of the tribunals rendered it impossible for the suzerain to attend all in person, presidents were appointed, who were at first chosen by the community at large, but afterwards nominated by the king, until in many instances the office became a kind of hereditary right. The name we find usually applied to these persons is grafio or graf3, for which the Latin equivalent comes, frequently

1 For the account here given of the old German tribunals, my authorities are chiefly Savigny's Geschichte des Romischen Rechts, Rogge's Gerichtswesen der Germanen, and Grimm's Deutsche Rechts Alterthümer. The latter work is a mine of antiquarian legal lore.

2 Eliguntur in iisdem conciliis et principes, qui jura per pagos vicosque reddunt. Tac. Germ. c. 12.

3 This word has been usually derived from grau, canus, as though the idea of age or seniority were implied. But Grimm suggests the

occurs: other appellations, such as rogt, tunginus, missus regis, missus comitis, are also used; but at a later period these were superseded by the more general word richter.

The meetings at which judicial as well as other proceedings took place were of two kinds, called 'unbidden' (ungebotene), and 'bidden' (gebotene); or as we should say, ordinary and extraordinary. The ordinary were held at stated times, once, twice, or thrice every year, according as the usage varied in different places. This was the mallum legitimum' of the Franks and the gemôt of the Anglo-Saxons. No notice was required in order that the freemen of the district might attend, for the day or days of meeting were known to all; and if they did not appear they were liable to a fine. The extraordinary, however, were only summoned when there was some special business to be transacted; and previous notice was given of the time and place of meeting. Here, too, it seems that the absentees were fined1.

The presiding comes' or 'missus' had, however, no voice in the decision; and his duties, like those of the archon at Athens and prætor at Rome, were merely ministerial. The members of the court derivation rávo tignum (rafter,) domus. Hence girávo, contubernalis, comes. Gerefa, from which we have scir-gerefa, or sheriff, has the same root as graf.

1 Grimm, Deuts. Rechts Alterthümer. These meetings or courts had various names, derived (1) from the district, or (2) from the presiding officer, or (3) from the persons who attended them. Thus we find them called (1) landgericht, gaugericht, markgericht, stadtgericht, (2) grafengericht, vogtsgericht, probstgericht, (3) rittergericht, lehengericht, manngericht.