Immagini della pagina

the place where he wished to receive process, it was well; but he was not allowed to name the house of an Earl for the latter purpose, unless he really dwelt there, lest his powerful host might scare the bearers of the summons. But perhaps he might refuse to answer the question,-and in that case the plaintiff was authorized to publish the summons at any house within the township which he thought best;—and this citation was to be held as confessed by the defendant. These regulations may moderate our current ideas respecting the rudeness and barbarity of the Northmen. When the absent debtor is charged on the pier and shore of Leith, the officer of justice now performs an unmeaning ceremony; but the publication of the Norwegian citation was suited to the state of society, and perfectly well adapted to its interests.

Equal precision was required in the publication of the legal forms of the Scandinavians.—The count, plaint, or appeal, preferred before the court; the betrothing of the maiden; the legitimation of the child born of an unwedded mother; the grant of frcedom to the thrall; in short, every act by which property was transferred, or civil rights acquired or created, which constituted a stage in the suit, or was connected with its process, required to be enounced in the phraseology, and accompanied by the rites which immemorial tradition had prescribed. * With

* Many of the Saxon oaths and forms have been collected by Turner, who has left but a scanty gleaning for the industry of future historians.' The Saxon appeals may be consulted in the Mirror of Justices. Andrew Horne, sometime citizen, fishmonger, and townclerk of London, seems to have compiled this treatise from the Anglo-Saxon Doom-book, anciently preserved amongst the archives of the city, and to which, in his official capacity, he had ready access. The Liber Horne, a collection of legal matters which he formed for his own use, and which is still extant, bespeaks his industry and research ; and a glossary of Anglo-Saxon law terms, contained in it, proves his acquaintance with that language. Gurth's manumission is familiar to all our readers ; but a friend well conversant with these matters, observes—' I fear there is no better authority for this for.

mula of emancipation, than for the exploits of Ivanhoe at Ashby • de la Zouche. Many records of emancipation are found in Hickes's Dissertatio Epistolaris, and at the end of his Dictionary ; but none • resembling this formula, except in the words free and sacless, which

[ocr errors]


occur in some of them, and in scorne and not of love, which are to be found in others. Indeed, I am afraid that Gurth's emancipation was good for nothing, according to Anglo-Norman law. It was not granted in the presence of the Sheriff, nor in the county

court ; nor were the spear and the sword, the arms of a freeman, \ put into his hands by his master, as symbols of his delivery from ļ servitude.'


the nicety which still characterizes the English law, the variance of a word, the lapse of a syllable, inaprobated the entire proceeding. Practice and experience alone could teach these forms: the important knowledge was not generally diffused amongst the people: and the lore was concealed with jealousy from the profane multitude, by the wise and powerful lawmen.' Such was the efficacy ascribed to these mystic sentences, that words which seemed spoken in sport, and heard with inattention, were afterwards found to be invested with the rigid strength of judicial validity. The charm had struck, and no power could dissolve it. An example may be given, in the adventure of Gunnar, who, acting under the advice of the crafty Nial, proceeded in the disguise of a travelling smith to the house of Ruttr, a powerful chieftain, who had refused to refund the dowry of the repudiated Unna. The simulated Hedin, for this was the name of the smith whose garb Gunnar had assumed, contrived to lead the discourse of his host to the points in dispute, and to induce him to recite the proper form of citation adapted to the suit. Gunnar repeated it, but erroneously. The self-widowed husband laughed, and mocked him; Gunnar then uttered the summons in due form, and called his companions, who had accompanied him as his workmen, to witness it. The mirth of the evening was not interrupted, and no one present suspected that the ceremony was ought, save the gibe of Hedin, who was celebrated for his sarcastic humour. Gunnar departed early the next morning; but when the Chieftain heard from his servants that a scarlet sleeve discovered its bright hue beneath the sooty jerkin of the smith, and that a golden ring had been seen to glitter on his finger, he suspected the truth, and he felt himself compelled to obey the legal mandate.

A more romantic instance of the binding strength of the lawforms is found in the life of. Gunnlaug with the serpent tongue. The youthful Peet sought instruction in the law from Thorstein the Wise. A year was passed in listening to Thorstein's lessons; but the severer studies of Gunnlaug were relieved by the contemplation of the charms of the fair-haired Helga, the daughter of the sage; and he loved, and knew that he was loved again. It chanced that they were sitting at the board when Gunna laug spake to Thorstein-One law form yet remaineth, which * thou hast not taught me; nor do I yet know how a maiden is « to be wedded.' Thorstein answered, that few words were needed; and' he repeated the form of espousal. Gunnlaug then craved leave to repeat his lesson to Helga, a request to which the father assented, after slightly hinting that the sport was idle. The lover, however, pronounced the wedding words with

[ocr errors]

precision and solemnity, and named his witnesses. All who were present laughed at the playful children; but, in the after time, Gunnlaug vindicated his right to the hand of Helga in bloodshed and in death. Notwithstanding the labours of Augustine, we saspect that the ancient wedding form of the Pagan Saxons is yet retained in the ritual of the Established Church, when the wife is taken to have and to hold, from this • day forward, for better for worse, for richer for poorer, in

sickness in health, to love and to cherish, till death us do part.

These words, as a learned Catholic divine, Bishop Chaloner, observes, are inserted in the service according to the ancient custom of England; and even when the Latin mass was sung by the priest, the promises which accompany the delivery of the symbolical pledge of union were repeated to and by the blushing bride, in a more intelligible tongue. I

We have already alluded to the poetical spirit of the Scandinavian law forms. Being the foundation of the law, they could scarcely fail to retain the language, or at least the echo of the language, in which they were first framed. This is curiously exemplified in the · Trygdamal.' In times when the deadly feud might be compensated by the blood fine, no legal proceeding could be of greater importance than the ceremonies which taught the avenger that his hand was staid; and hence, the assurance of truce which was given to the murderer, was invested with impressive solemnity, and marked by deep poetical feeling.

- Strife was between Harold and Thorwald-spake the judge - but now I and the country have set peace between them.• The fine hath been told which the Deemsters doomed ;-and 6 let them be friends in the guild and the guesting house, at the • folkmoot and at the bidding, in the church and in the hall.

May he who breaks his plighted troth be banished and • driven from land and home, as far away as man may flee.-Let • him be a forflemed man, whilst Christian men shall seek the

$ In the older forms, the alliteration as well as the rythm are more strongly marked. According to the usage of Salisbury, the bride answered—I take thee John to my wedded house bonder, to . have and to hold, fro this day forward, for better for worse, for • richer for poverer, in syknesse in hele, to be bonere and buxom • (i. e. obedient), in bedde and at borde, till dethe us do parte, (if holy churche it woll ordain); and therto I plighte thee my troth.' With the exception of the penultimate clause, every phrase in this energetic poetical declaration bespeaks its nationality and antiquity. The form received some slight variations in the different English dio. teses ; but the substance always continued the same.

[ocr errors]

church, whilst the herds shall bleed before the altar of the • heathen god, whilst the fire shall flame, whilst the grass shall be green, whilst the babe shall greet after the mother, whilst the mother shall give suck to the babe, whilst the ship shall sail, whilst the shield shall glitter, whilst the sun shall shine, ( whilst the hawk shall soar, whilst the heavens shall roll, whilst • the wind shall blow:'-Let him be forbidden from the • church and from christendom, from the house of God and the

fellowship of all good men, and let him never find a resting place except in Hell.'

Every legal form and act was done and pronounced in the presence of true and steadfast' witnesses; and it lived only in their memory. Wax and parchment were not trusted; no record or register authenticated the judgment of the court, which was preserved only by the recollection and knowledge of the judges who pronounced the decree, or of the assembled people who ratified the sentence. This usage of oral pleadings; and of proving legal proceedings by oral testimony, might be thought to be inconsistent with the assumption of the antiquity of written laws in Scandinavia, did we not know that the same practice was adopted by other systems of jurisprudence which are more familiar to us, such as the custumal of Normandy, and the assizes of the kingdom of Jerusalem. In Normandy, a judgment pronounced by the King, sitting as Duke of Normandy, was recorded by his testimony, added to that of one witness; or the royal judge might substitute three other witnesses in his stead: seven witnesses were required for the record of the exchequer of the assize. * In these proofs it is clear the compilers of the custumal did not contemplate the production of any

written document as evidence of past decrees or pro

devant le roy.

* Le record de court le roi est record des choses qui sont faites

Toutes les choses qui sont faites devant le roy, pourtant qu'il y en ait ung aultre avec luy, ont record. le record peult il faire soy et aultre. et si il ne le veult faire. il peult estre faict par trois aultres * *

** Record d'eschiquier doit estre faict au moins par sept personnes creables, a qui l'on doibt enjoindre qu'ilz diront verité par le serment qu'ilz ont fait au roi. Et si ilz n'ont faict serment au roi ilz doibvent jurer que ilz recorderont et diront verité **** Le record peut estre eu des choses qui sont faites et dictes ou ottroyes en l'eschiquier **** Record d'assize est fait en la maniere comme celui d'eschiquier **** Tout record doibt estre faict de ce qui a eté dict et ouy.'-Le Grand Coustumier de Normandie, c. 102. 3. 4.7. The Normans had also record of view, of battle, of marriage, and of pasnage; all in conformity to the principles of their ancestors.

in person:

ceedings. The recorders swore as to what they had heard;

and what had been said.' In fact, they constituted an inquest; or jury, of which the court was the visne. It may be supposed that this mode of authentication was often attended with difficulty, especially when any considerable period had elapsed. John of Ibelin, thereforeadvises the suitor to assemble in court as many of his friends as he possibly can; and he was to pray them to be attentive to the words which are • spoken in the pleadings,to hear well, and to recollect well, . in order that they may be able to record the płea when need • shall require.'* From these passages we may discern the reason why the customs of the city of London are never certified in writing to the superior courts, but only by the mouth of the Recorder, who for that purpose attends at the bar of the courts

Litigation was riot discouraged by the Scandinavians. In the enumeration of the laghmen' (lawmen) of the East Goths, a note of censure is attached to the name and memory of Kringa Alli. It is therein recorded, that he brought many crooks 6 and crotchets into our law. The evil, however, was of such wide extent, that it owed very little indeed to the perverted ingenuity of Kring-Alli. Subtlety was inherent in the law, chicanery in the people. Law, as is too well known, is often loved purely for its own sake,ếfor the stimulus which, like other perilous games, it affords to the minds of the conflicting parties, who, much as the lawyer is vituperated for ministering to their appetite find quite as much pleasure in fighting for the shell as he ever does in swallowing the oyster. The Northmen were additionally excited by the nature of their judicial system : all might share in the administration of the law, and all might fancy that they were masters of the art. Reports of actions and suits at law arc constantly narrated in the domestic Sagas of the Icelanders. They hold as distinguished a place in their histories as the achievements of the spear and battle-axe: and the acuteness of the pleader appears to have commanded no less respect than the genius of the Skalld.

The skill of the Jurists would be of little worth, could it not make the worse appear the better cause, and delay the righte* ous judgment. The technicalities of Northern law, afforded a reasonable scope for such a display of ability; and the faculty

* Qui veult tost son plait atteindre, il doit faire estre en la court tant de ses amis com il pora, et prier les que ilz soient ententis as paroles qui seront dites as plais. et bien entendre et retenir, si que il sachent bien le recorder as egars et as conoissances se mestier li Assizes de Jerusalem, c. 45.

« IndietroContinua »