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mode of duelling, or holmgang, had been abolished by Christianity, and superseded by the institution of juries, this last method of trial played an important part, and became popular with the people because it afforded them a participation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 Tiling;" 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 (§ 18): "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 ore, 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, "logkaup "); "wit-word" (Old N., "vitorS"); 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, logma^r), 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 Lah-men, 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 Navn, or jury, into the districts north-east of WatlingaStrset, 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 Navn 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 Navn, 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 AngloSaxons, 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 brethren. 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 "Sandemand" 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 Dane-lag were more barbarous than the contemporary AngloSaxon 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 Dane-lag. 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 emi