The Danelag.—Holmgang, or Duel.—Jury.—The Feeling of
Freedom.
The Anglo-Saxons were the teachers of the Danes in several ways; above
all they made them Christians, and thus communicated to them a new and
higher civilization. The Danes in England reaped advantage from the
civilization of the Anglo-Saxons, just as the Anglo-Saxons themselves
had once begun their own, by building on that refinement which their
predecessors, the Romans, had disseminated in England.
But as the Anglo-Saxons did not become Romans, because they adopted and
remodelled the Roman civilization; nor the Normans in Normandy
Frenchmen, because after their settlement in France they soon assumed
many of the French manners and customs; so neither did the Danes in
England become Anglo-Saxons, however much they might have been indebted
to them for their civilization. The Normans in France retained, in spite
of their Christianity and French refinement, the characteristic stamp of
their Scandinavian origin, which afterwards caused them to play quite a
peculiar part in history. In like manner the Danes in England, amidst
the refinements of the Anglo-Saxons, undoubtedly preserved many of their
Scandinavian characteristics, which did not disappear without leaving
visible and very remarkable traces. But the Scandinavian spirit stamped
itself, though perhaps only apparently, in a somewhat different manner
on the Norman race in Normandy, and on the Danes in England.
Among the Normans in France the Scandinavian spirit worked, so to speak,
only outwardly, in magnificent conquests, of which the chief theatres
were England, Italy, and Sicily. Chivalry and feudalism, with their
crusades, communicated a new impulse to it; but, internally, it effected
comparatively little for France. It did not manifest itself in Normandy
by forming political institutions capable of supplanting the oldest and
most essential French laws and constitutions; nor, indeed, are we able
to point out with exactness what really Scandinavian customs the Normans
established in that country. Yet it can scarcely be doubted that they
introduced there trial by jury, as well as trial by battle, and other
Scandinavian legal institutions.
In England, on the other hand, the northern character showed itself so
far outwardly active as to exercise a vast and unmistakable influence on
her commerce and navigation, and on the bold and adventurous spirit of
enterprise among her people; which, though at a much later period than
the conquests of the Normans, has nevertheless extended her dominion
over every sea. But in England it has also been internally a living and
guiding spirit, in the formation of her judicial and political
institutions. It is an incontrovertible and notorious fact, which has,
however, hardly been sufficiently insisted upon, that about half of
England—the so-called “Danelag,” or community of the Danes—was for
centuries subject to Danish laws; that these laws existed even after the
Norman conquest; and that they did not pass into the general or common
law of England, till the successors of William the Conqueror at last
united into a whole the various discordant parts into which England had
been previously divided. When we remember that the Normans long retained
a predilection for old Scandinavian institutions and forms of
judicature, it seems highly probable that the Danish laws, which had for
so long a period prevailed in England, did not disappear under their
sway without the new laws, which they established, deriving from the old
a particular colour, and certain Scandinavian stamp. A further
examination of this point will scarcely be superfluous, as it will
enable us to judge how far those are right who, in company with one of
England’s most celebrated statesmen (Sir R. Peel, in a speech in
Parliament), are proud that “the Danes tried in vain to overthrow the
institutions of England, instead of securing them;” and then reproach
the Danes that, on the whole, they did not, after all their devastating
expeditions, establish anything new, great, and durable.
The population of the heathen North, as was the case everywhere else at
that period, was divided into serfs and freemen. Even after the
introduction of Christianity, many centuries elapsed in all countries
before thraldom was abolished, and the worth of man, as man, generally
recognised. The serf was always regarded more as an animal than as a
human being. The freeman, on the contrary, enjoyed a high degree of
civil liberty. He was not only uncontrolled master in his own house, and
among his nearest dependents, but likewise exercised an important
influence on the management of the public concerns of his own district
and of his country. He took part in the decision of law cases in the
“Thing,” and gave his vote at the great “Thing,” where the election of a
monarch, war, treaties of peace, and other important matters, came under
consideration. Scandinavia was, besides, in ancient times, divided into
a number of small kingdoms; and the smaller these were, so much the
greater was the individual freeman’s power and importance.
The old inhabitants of the North entertained, therefore, a sincere
affection for those institutions which gratified their proud feeling of
freedom. Personal participation in the administration of justice, at a
time when written laws did not exist, must have made every freeman a
lawyer and a zealous defender of existing institutions, especially so
far as regarded the main point, namely, the freedom they ensured. A
general knowledge of the laws was still further promoted by the innate
love of the Northmen for disputes and law-suits. Respect for the law was
speedily carried to such an extent, and in the administration of justice
at the _Things_ old established customs and usages were so strictly
observed, that the slightest formal flaw was sufficient to ensure the
rejection even of the most important cause. How deeply rooted the old
national law was, is best shown by the fact that the Roman law, which
had been adopted in the greater part of Europe, could never gain the
supremacy in the countries of Scandinavia. The present Scandinavian law
is by no means the offspring of any foreign code, but is founded on, and
independently developed from, the law which already existed in the North
in the days of heathenism.
The powerful warriors, who in those remote times emigrated from the
North, were, for the most part, men no less high-spirited and fond of
freedom than their fathers before them. The old chronicles state, that
among the warriors who came over to England with the conquerors Svend
and Canute, there was not a single serf. The history of Iceland shows,
even at an earlier period, that most of the colonists who went thither
were descendants of kings, jarls, and other of the most powerful freemen
of the North. These emigrants did not leave their paternal home because
they were dissatisfied with their ancient hereditary rights and
liberties, but because those rights and liberties were gradually
threatened with restriction, and even annihilation, by ambitious and
absolute monarchs. It was this that led them to undertake the conquest
of foreign lands, and thus to acquire a freedom which might indemnify
them for what they had been compelled to relinquish.
It is therefore no wonder that the Scandinavian colonists introduced
their national laws, which had always proved the surest defence of their
liberties, at once and completely both into countries previously
uninhabited, and into those from which the ancient inhabitants were
expelled by their invasions. This was the case, for instance, in
Greenland, the Faroe Isles, the Shetland Isles, and the Orkneys. But
with regard to freedom they even went still further than in Scandinavia,
and sometimes abolished the regal power, whose caprices and dangers they
had learned to appreciate and fear, and founded republics in its place.
Even in countries like France and England, where a large and civilized
population, possessing a complete system of national law, previously
existed—and where the Scandinavian colonists, till they became strong
enough to assume the authority of masters, were for a long time inferior
both in numbers and power—they adhered immovably to their ancient legal
customs, and caused them to be observed, in spite of Christianity, and
of that foreign civilization which they themselves soon adopted. But it
was at the same time a natural result of this state of things, that they
were neither able to introduce into such countries _all_ the ancient
legal usages of Scandinavia, nor, generally speaking, _any_ law of a
comprehensive character, without adapting it to the peculiar situation
which they, as conquerors and strangers, now occupied in regard to the
natives and their existing institutions.
A strong proof, not only of the affection of the Danes for their
Scandinavian institutions, but of the complete settlement of that people
in England at a very early period, is, that in the beginning of the
tenth century, and consequently more than a hundred years before the
time of Canute the Great, they had already established their own laws on
the east coast of England, notwithstanding that Christianity, as before
stated, had gained a footing amongst them. It appears, from the
remarkable treaty concluded at that time between Kings Edward and
Gudrum, that the Danes settled in East Anglia, and on the eastern coast
of England, were not only placed on an equal footing with the English
with regard to legal rights, but that it was also determined how
disputes between the English and Danes should be decided, and what fine
each people should pay for certain crimes. Thus the English were to pay
“_wite_,” or fines, according to the English law, in pounds and
shillings; whilst the Danes were to make compensation for “_lah-slit_”
(i. e., _infraction of the law_, from the old Norsk, _lög_, law, and
_slita_, to rend in two, break), according to the Danish law, in “marks”
and “ores.”
About the same time the chronicles testify that the “five burghs”
occupied by the Danes in the heart of England, together with large
districts both in the east and north, were subject to Danish laws. The
Anglo-Saxon king Edgar (959-975) says, in a passage of his laws (cap.
12), which shows his partiality for the Danes, “Then will I that with
the Danes such good laws stand as they may best choose, and as I have
ever permitted to them, and will permit so long as life shall last me,
for their fidelity, which they have ever shown me.” He likewise says in
the next chapter, where mention is made of a fixed punishment: “Let the
Danes chuse, according to their laws, what punishment they will adopt.”
From this state of things, it happened that four different sorts of law
were in force in four different parts of the kingdom. Farthest towards
the west, where the remnant of the ancient Britons dwelt, the Welsh law
was in force; among the West Saxons, the West-Saxon law; in Mercia, the
Mercian law; and in the so-called Danelag, or country to the north-east
of Watlinga-Stræt, the Danish law. Of these four systems of law, the
Danish, beyond comparison, most prevailed. Its decrees were in later
times constantly recognised, not only by Ethelred (not to speak of the
Danish kings), but by Edward the Confessor and William the Conqueror,
whose laws usually treat of the “Danes-law” (Dene-lahe), with its fines,
or “_lah-slit_,” in marks and ores. Even in the laws promulgated by
Henry the First (1100-1135), it is stated (vi. § 1), that England is
divided into three parts, Wessex, Mercia, and the province of the Danes.
(“Regnum Anglie trifariam dividitur in regno Britannie, in Westsexiam,
et Mircenos, et Danorum provinciam.”) And it is further said (§ 2), that
the law of England falls into three parts, according to the above
division, viz., the West Saxon, the Mercian, and the Danish law, or
Denelaga. (“Legis eciam Anglice trina est particio, ad superiorem modum;
alia enim Westsexie, alia Mircena, alia Denelaga est.”)
A cursory view of these different laws will soon show, both that
Scandinavian words and juridical terms were employed in the _Danelag_,
and that by degrees, but mostly in the time of Canute the Great and
William the Conqueror, they were introduced into the common laws of
England: as, for instance, “hor-qwene” (Hoerquinde; _Eng._, adultress),
“nam,” “halsfang,” “heimillborch,” (Hjemmelborg), “husting,” and others.
For the rest, it is natural that most traces of the old Scandinavian
institutions should be found in the districts to the north-east of
Watlinga-Stræt.
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.
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 306
homines
Suffolk Sochmanni 1,014
liberi 8,012
homines
Norfolk Sochmanni 5,521
liberi 4,981
homines
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, " 54
drenches
——————
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.
But on Siward’s death (1055), his son, Valthjof (Waltheof), was too
young to govern that important district, which was therefore made over
to Toste Godvinsön, who afterwards fell at Stamford Bridge. Toste ruled
with despotic power, set aside the laws of Canute the Great, and levied
taxes which were contrary to the people’s ancient rights. The
Northumbrians therefore deposed him at a _Thing_, and expelled him in
1064. When Toste’s brother, Harald, afterwards endeavoured to effect a
reconciliation, on the condition that Toste should be reinstated in the
earldom, the Northumbrians unanimously rejected the proposal. “We were
born and bred up in freedom,” they exclaimed; “a proud and ambitious
chief we will not endure, for we have learnt from our fathers either to
live like freemen or to die.”
When, two years afterwards, William began to conquer England, and to
parcel it out among his warriors, it was chiefly the inhabitants of the
old Danish districts who opposed him with all the energy of despair. The
successors of the Danes and Norwegians, under ordinary circumstances,
would have joined their kinsmen the Normans; especially as they gave out
that one of their objects in coming to England was to avenge their
Danish and Norwegian relatives, secretly massacred by Ethelred. But the
Normans aimed at nothing less than the abolition of the free tenure of
estates, and the complete establishment of a feudal constitution; a mode
of proceeding which, by depriving the previously independent man of his
right to house and land, and transferring it to powerful nobles, shook
the very foundation of freedom. The descendants of the Danes turned from
them, therefore, with disgust, and now no longer hesitated to enter into
an alliance with the equally oppressed Anglo-Saxons; for the common
danger made both races forget their ancient animosities. Many of the
Anglo-Saxon chiefs and warriors who had been defeated by William in the
west and south-west of England, fled towards the north, and prepared, in
conjunction with the inhabitants of that district, to venture everything
in self-defence.
It was not till the year 1068 that the Normans succeeded, after a severe
contest, in taking Oxford, Warwick, and the old Danish burghs Leicester,
Derby, Nottingham, Lincoln, and York. In these places, but especially in
Lincoln and York, the Normans were obliged to build strong
fortifications, for fear of the people of Scandinavian descent, who
abounded both in the towns and in the adjacent rural districts. But what
the Normans chiefly apprehended was, attacks from the Danes who, there
was good reason to suppose, might come over with their fleets to the
assistance of their countrymen in the north of England.
Meantime, whilst the remains of the united Anglo-Saxon and
Danish-Norwegian armies had withdrawn to the mountains of
Northumberland, where they often surprised and killed whole detachments
of Norman troops, numerous fugitives and messengers repaired to King
Svend in Denmark, to implore him, in the name of his English friends,
and in that of freedom, to assist them against William the Conqueror.
Svend sent his brother Asbjörn, and his sons Harald and Canute, over
with a fleet, who, after a vain attempt to land at Sandwich, entered the
Humber, in the year 1069. The Northumbrians, and the rest of the
aggrieved inhabitants, both Northmen and Anglo-Saxons, flocked gladly
together under the Danish banner. Edgar, who had been chosen king by the
Anglo-Saxons, Valthjof (Waltheof), a son of the old Northumbrian jarl
Siward, and many other fugitives, joined the Danish host. York was
taken, the Normans put to flight, and their fortifications levelled with
the ground. In these encounters Waltheof gained great honour for courage
and bravery.
But the joy of victory was only of short duration. William, who had
sworn in his anger to lay all Northumberland waste, knew how to avert by
persuasion, cunning, and bribery, the danger that threatened him from
Denmark. The Danish fleet went home in the spring; and William retook
York, and extended his dominion in Northumberland; where his progress
was marked by slaughter, incendiarism, and rapine. The unfortunate
inhabitants fled to the forests and morasses; their last place of refuge
was the marshes near the Wash. Moved by the cries of complaint which
continually reached him from England, the Danish king Svend again sent a
number of vessels, which appeared in the Humber in the year 1074. But
these were not able to render any effectual assistance. Waltheof, whom
William, in order to conciliate the Northumbrians, had appointed Jarl in
his father’s earldom, fell under the axe of the executioner on suspicion
of being concerned in this naval expedition; and fresh devastations
promoted William’s dominion over Northumberland, which was so terribly
harassed that large districts were left without houses or human
inhabitants.
The forests of the north of England now became the last refuge of
numberless outlaws, who would not submit to the ferocious conqueror,
preferring a free and merry life in the green woods; where they united
together, and defied William’s powerful armies and severe laws. They had
secret connections among the people, who saw in them the last defenders
of their ancient freedom. Among the leaders of these outlaws, who, long
after William’s time, continued to wander about in the English forests,
but who were most numerous in the north of England, we meet with
Scandinavian names, such as Sweyn, and Sihtrik; and in the legends and
songs which have preserved the remembrance of them, are found
Scandinavian traits of character, such as the story of William of
Cloudesley, who shot the apple from his son’s head. It is the identical
legend related in our old Sagas of the Scandinavian hero, Palnatoke.
The last gleam of any well-founded hope of deliverance shone upon the
successors of the Anglo-Saxons and Danish-Norwegians in the north of
England, when, in the year 1085, the Danish king Canute, afterwards
called the Saint, assembled a powerful fleet in the Liimfjord, in order
to release England from the Conqueror’s yoke, and if possible to seat
himself on the throne. Sixty Norwegian vessels had joined Canute’s
fleet. William, on his side, made great preparations in order to resist
the expected attack. Danegelt was again collected for the defence of the
kingdom against the Danes. The inhabitants of Scandinavian descent in
the north of England were compelled to alter their dress, and to cut off
their long beards, that the Danes might not thereby recognise their
kinsmen. The coasts were occupied by soldiers, who erected strong
defences; whilst William at the same time endeavoured, by means of
secret envoys and bribery, to sow disunion in the Danish fleet. Canute’s
progress was impeded by unfortunate circumstances; the fleet separated,
and a mutiny broke out, which ended in the murder of Canute at Odensee,
in the year 1086. No further attempt was made by Denmark to conquer
England; for the expedition said to have been prepared by King Erik Lam
in the year 1138 was, at all events, a very poor and unsuccessful one.
Thus the Northmen in England, being no longer able to obtain support
from Denmark or Norway, were forced to submit to the Norman dominion.
Nevertheless, in spite of the terrible devastations by which William
coerced the north of England, “the half-Saxon half-Danish population of
these districts” (says the French historian, Thierry) “long continued to
preserve their old feeling of independence and their ancient indomitable
pride. The Norman kings who succeeded the Conqueror dwelt with perfect
safety in the southern districts, but did not venture north of the
Humber without some fear; and a chronicler, who lived at the close of
the twelfth century, assures us that they never visited that part of the
kingdom without being accompanied by a strong army.”
Although no very great number of Northmen, or men of Scandinavian
extraction, could have remained in Normandy after William’s conquest of
England, and after the Norman expeditions into Italy, yet even these
few, as we have before stated, were subsequently able to impart to the
popular spirit in Normandy a peculiar Scandinavian colouring. The Norman
knights distinguished themselves from the effeminate, dreaming, and
excitable knights of the south of France, not only by a greater
inclination for adventures and a bolder martial spirit, but also by a
genuine Scandinavian sedateness and an all-subduing perseverance. The
old Scandinavian feeling of freedom revealed itself, even in the middle
ages, in the cities of Normandy, which were long the seats of a
democratic spirit and of republican movements. According to William the
Conqueror’s own statement, the ancient Normans, and, above all, their
Scandinavian forefathers, were, in a high degree, quarrelsome and
litigious; and, even to this day, Normandy is remarkable, above all
other provinces of France, for the great number of law-suits which
annually take place in it. Frenchmen themselves have remarked that their
most skilful and persevering seamen are to be found among the
inhabitants of Dieppe, and that the most celebrated admirals of France
have been natives of Normandy.
If such was the influence of the Normans in France, were not the Danes
and Norwegians, who had been settled for centuries in England, in a
still better position to fix a lasting stamp upon the life and character
of the people; more particularly as the Danish-Norwegian elements
continued, long after the Norman conquest, to exercise a very
considerable influence in England? We may truly assert that the
Scandinavian spirit is still clearly to be discerned, not merely in
separate districts, but throughout England. The love of the English for
bold adventures, especially at sea, their unshaken calmness in the
greatest dangers, their apparent coolness during the most violent
emotions, and their proud feeling of freedom, are surely not to be
ascribed exclusively to the Normans. These qualities must, in a great
degree, be attributed to the English, as the descendants of those Danish
and Norwegian warriors who sought dangers on unknown seas; who looked
death steadily in the face, come in whatever shape it might; who gloried
in the feeling that their countenances should not betray the passions
which fermented in their breasts; and who prized liberty far more than
life.
It deserves at least to be mentioned, as affording a remarkable analogy
to Normandy, that England’s most celebrated and successful admiral,
Nelson, bore a genuine Scandinavian name (Nielsen, with the
characteristic Scandinavian termination of _son_, or _sön_). He was,
besides, a native of one of the districts early colonized by the Danes,
having been born in the town of Burnham-thorpe, in Norfolk, or East
Anglia. In fact, the perceptible difference of character still actually
found between the people in old Saxon South England and in the more
northern old Danish districts, is very remarkable. The southern
Englishman is softer and more compliant. The northern Englishman is of a
firmness of character, bordering on the hard and severe, and possesses
an unusually strong feeling of freedom. The Yorkshireman is well known
in England as a hasty and touchy, but determined and independent,
character. Great political movements have therefore not only found
reception and encouragement among the population of the north of
England; but this population, from the interest it takes in the progress
of public affairs, and from its love of freedom, has played a leading
part in the great internal revolutions which mark the recent political
history of England. Public men regard it as a great honour to represent
the northern districts of England in Parliament (for instance, the West
Riding of Yorkshire), merely from the intelligent political character of
the voters; and it is certainly through the adherence of the lovers of
freedom in the north, that Cobden has been able to struggle so
successfully for the promotion of free trade, for financial reform, and
for similar liberal measures. That this spirit of liberty in the north
of England is chiefly derived from the old Scandinavian colonists is by
no means merely the partial assertion of a Dane. The celebrated English
writer, Sir E. Bulwer Lytton, who, in his “Harold,” has successfully
begun to awaken the attention of his countrymen to a juster view of the
Danish conquest, says in a note appended to that work: “It might be easy
to show, were this the place, that though the Anglo-Saxons never lost
their love of liberty, yet that the victories which gradually regained
liberty from the gripe of the Anglo-Norman kings were achieved by the
Anglo-Norman aristocracy. And even to this day, the few rare descendants
of that race (whatever their political faction) will generally exhibit
that impatience of despotic influence, and that disdain of corruption,
which characterize the homely bonders of Norway, in whom we may still
recognise the sturdy likeness of our fathers; while it is also
remarkable that the modern inhabitants of those portions of the kingdom
originally peopled by the Danes, are, irrespectively of mere party
divisions, noted for their intolerance of all oppression, and their
resolute independence of character; to wit, Yorkshire, Norfolk,
Cumberland, and large districts in the Scottish lowlands.”
It would be impossible to deny that the Danes and Norwegians settled in
England before the arrival of the Normans not only essentially
contributed to the preservation of popular liberty—which, through the
weakness and effeminacy of the Anglo-Saxons, was threatened with
destruction—but that they also laid the foundation of its further
development, and powerfully contributed to its complete establishment.
We need, therefore, be no longer surprised that memorials of the Danes
are mixed up with England’s freest and most liberal institutions; and
that to the present day, for instance, the place whence the candidates
for a seat in Parliament address the electors, bears, throughout
England, the pure Danish name “_husting_.”
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