« AnteriorContinuar »
- Feudality never expanded beyond the germ. The native institutions common to all the Gothic tribes, bore but a slight affinity to the military tenures and relations created by the antient duties of fidelity, protection and defence in the territories of the Empire, France and England, where the retainers of the chieftain gave way to the vassals of the baron. The Northmen were originally strangers to the Feudal jurisdictions, and to the rules and principles emanating from the feudal tribunals, which incorporated themselves with the entire system of civil and criminal legislation of those countries where they prevailed. - Neither did the Imperial law or the Canon law acquire any preponderating authority. Whilst the judges of Upsala pronounced the doom which had been taught by Odin and the Asi, they disregarded the Decretals and the Pandects. Compared with the jurisprudence prevailing in the rest of Gor thic Europe, the total rejection of the written reason derived from Rome or Constantinople, constitutes a peculiar characteristick of the Scandinavian laws. Elsewhere, the codes of the Pontiff and the Cæsar had been introduced or sustained by the efforts of the Roman clergy; but the Scandinavians were the last of the Gothic nations who received the tidings of Christianity; and though they embraced its doctrines with sincerity, and held the orthodox creed with purity, yet the hierarchy neder became so deeply engrafted in the Northern commonwealth, as in the other countries of Christendom. Church and state were imperfectly wedded ; and the mystic union which, in a li-. mited monarchy, is one of the most efficient and salutary of the elements of public welfare, failed to acquire its needful harmony. Adam of Bremen, an author justly termed the Herodotus of the North, wrote at a period when Christianity was winning its way into Scandinavia; and he has described the ecclesiastical government of these Neophyte realms. The bishops of Norway, Denmark, and Sweden, had no distinct sees or individual endowments: all the shepherds tended all the flocks : their lives were employed in journeying through the regions as signed to their care, in strengthening the belief of the faltering Christian, and in reclaiming the erring Pagan from the adoration of the Gods of slaughter. · In process of time this primitive vigilance decayed, and the apostolical poverty of the hierarchy was succeeded by a more regular and attractive organization. The Prelate was enthroned in the Quire, and the canons were installed around him ; but the clergy did not obtain any possessions of unseemly magnitude, nor did their power overshadow the laity, as in climates which were less remote from Saint Peter's chair. So paramount
VOL. XXXIV, NO. 67.
thor jacquire and saluin a lie
was the influence of the national character, that even the ecclesiastical courts conformed in many respects to the course of the common law, not only in their principles of jurisprudence, but also in their legal forms, which, in the opinion of the lawyer, are oftener of greater consequence than either principles or doctrine. The churchmen who were obedient to the common law, in the Court Christian could not gain the mastery'in the secular tribunals, where the judicial power was derived from the nation, not from the sovereign. The law was the tradition of the old time. The unlettered husbandmen assembled on the jury, which declared the truth, or uttered the sentence. Neither roll nor record authenticated their judgment or their verdict; and the unwritten pleadings received no assistance from the cunning of the clerk, who was seldom required to assist, and never empowered to preside.
Administered by the people themselves, the law did not belis come the occupation of a distinct profession, and was never exalted into the dignity of a science, which, assisting or perplexing the humble suitor, advances the student and the sage to rank, and opulence, and honour. They had no ermined judges, no sergeants of the quoif, no advocates, no senators. There were men who were soundly versed in their old patrimonial customs and asages; but they practised the laws as public characters who availed themselves of every talent which could bestow preeminence in a popular assembly, yet were not severed from the body of the nation by their pursuits. It was in Norsk that the law spake, not in Latin. "Unadorned .by. forensic cultivation, the Gothic law received no ameliorak tion from cultivated talent. Whilst time passed on, it sojourned in its old rude cunning and capricious equity. But, like all on ther human institutions, it was destined to decay. The reformation of religion, the partial introduction of the most odious of the servitudes imposed by the feudal system, the changes which were sustained by the Scandinavian constitutions under the increasing power of the crown and of the aristocracy, shook and undermined the venerable fabric. Political storms -usually induce some alteration even in the tenure.of property. Indifferent actions are considered as crimes, and crimes are repressed with increasing severity. When the Dane acquired the powers of the autocrat, and the Swede was declared to be an hereditary monarch, the whole system of law and justice was remodelled. The institutions which had sprung from a popular form of government, declined with waning freedom, until at length their value and excellence expired in the fearful struggle between oligarchy and despotism.:
The earliest point from which we can trace the progress of Scandinavian law with any degree of precision, is much later than the corresponding era in the history of the other · Barbaric' codes. England seems to have given an impulse to the jurisprudence of Norway. Athelstane, the Lord of Earls, the giver of golden bracelets, the most brilliant of the Saxon warriors, is seen, in soine measure, both as a romantic monarch, and as a mythic legislator: our ancient poetical char: ters are ascribed to him ; and he also is quoted as the grantor in other documents, which we would receive as genuine, if we dared, but which, we fear, must be vouched only as constitus tional fictions. Popular gratitude magnified the meed of the conqueror, by seeking to ascribe the franchise of the burghs to the sovereign whose sword had protected his subjects from the invader. Haco, the foster-son of Athelstane, was educated in the Hall of the English King, and perhaps profited by the example of the successors of Ina; for he is the first authentic legislator in the annals of Norway.
Four supreme tribunals had been established in the country, it being divided into as many jurisdictions; and the four codes which' were promulgated by Haco, * the ÆdsIVIATHINGSLAUG --the GULATHINGSLAUG—the FROSTATHINGSLAUG,—and the BORGARTHINGSLAUG, obtained their names from the dioceses in which they were respectively enforced į but as they merés ly differ from each other in arrangement, and in some few regulations adapted to the constitution of the courts of each district, they may be considered as forming only one collection of customs and statutes. The code of the pagan Haco was modified by OLAVE, the sainted King of Norway, who directed the abrogation of such laws as were hostile to the milder spirit of Christianity. These statute books and laws were enacted in a meeting of the nation; and the legis. lators speak in the name of the Peoples and admonish them that such is the beginning of our law.- We must turn our • faces towards the east, and pray unto Christ to grant us
good tide and peace, that we may keep our land without travail; and our King, the Lord of our land, with health and grace, may he be our friend; and may we be his friend for ever. more. Magnus the Good, OLAVE the Peaceable, and MagNUS ERLINGSEN, incorporated various laws which had received their assent in the codes of Haco and Saint Olave; and the older text probably experienced a silent revision. In the reign of MAGNUS the son of Haco, the Norwegians required
* About 940..
that their codes should be again modified. The new digest was accomplished under the auspices of the King, who thence acquired the epithet of Lagaboetir, or the amender or reformer of the law. The code concludes with the following recital of its enactment, which is well worthy of attention King Magnus « collected together out of all the books in the land the laws 6 which he thought to be the best, with the advice of the best 6 men, and he caused this book to be written. Then did he • appear himself in the folk-moot of Guloe, and caused it to be ¢ read aloud. -..-..-..... Should it appear to any o one of his lawful successors that this book needs amendment,
then let him alter it so as to promote the honour of God, the • salvation of his own soul, and the welfare of his people... (... This book was taken as law in the Shire Courts of Gu
loe on the eve of Saint John, when one thousand two hundred and seventy-four winters had gone by since the birth of our • Lord Jesus Christ, and in the eleventh year of the reign of • King Magnus.' · In the corrected Gulathingslaug, the laws are classed with greater order, and expressed with greater clearness. The harshness and severity of the jurisprudence of Haco Athelstane, yielded in many instances to the good sense of Magnus and his counsellors; and, at the same time, due care was taken that the rights and privileges of the crown should be defined with a degree of care and accuracy, which had been considered as annecessary in the days of the earlier monarchs. * No further alteration took place in the Norwegian law, until the final subjection of the country.
Iceland, while independent, was first governed by the laws and usages which had prevailed amongst the Norwegian colonists at the period of their emigration. These, when the island became fülly settled, were collected in writing by Ulfliott, some time in the tenth century; but the name alone of · Ulfliott's law'
* This code is published, for the first time, in the original language, (together with Danish and Latin versions), in the volume noticed at the head of this article. An' index vocum rariorum' contains many terms of law not to be found in Hulderson's Icelandic Lexicon, and adds much to the value of the work. The text of the code is given with critical fidelity; but the learned editors, the trustees of the foundation of Arnas Magneus, have not added any explanatory notes. It is understood that the Swedes also intend to give new editions of their laws, under the patronage of the King. At present they are only to be found in the rare editions which ap. peared in the seventeenth century; and as they there are given with out any version, they cannot be consulted with facility.
has been preserved. Gudmund, the judge, compiled the code called Gragas, or gray goose,' between the years 1125-35. The volume received its popular denomination from the colour of its binding, like the black book and the red book of our Exchequer, and the black and red Becerros, or muniment books in the cathedral of Oviedo. This code, in which the forms of process are treated at great length, has never been printed; but a copy of it is amongst the manuscripts of Sir Hans Sloane in the British Museum.
After the island was annexed to the kingdom of Norway, Haco the son of Haco introduced the Gulathingslaug, which the Icelanders considered to be so rigorous, that they termed it Iarnsida, or Ironside; and it continued in force until Magnus Laga-bætir became desirous of transmitting his amended code to this distant part of his dominions, but with such alterations as might adapt it to the state of society and property in the island. John Einarson, a celebrated Icelandic judge, was, entrusted with this important task, which was accomplished towards the latter part of the thirteenth century, but not till after the death of the Norwegian monarch. * FETHOD
Another class in the laws of Scandinavia, is formed by the bodes of the provinces which were ruled by the Kings of Upsala, or of the Swedes: UPLANDZLAGH, or the law of Upland, had the greatest reputation and authority. It was edited A. D. 1295, in the reign of King BYRGHER, and under the presidency of Byrgher the Wise, the justiciar or laghman of the province, and who is known in hagiology as the father of Saint Bridget. • GOTHLANDS LAW'exists in a text of an uncertain, but remote, date. The dialect in which this code is written, is very singular and archaic: Appended to the laws, are some historical fables and fragments, which vouch the antiquity of the collection. The laws of WEST GOTHLAND do not preserve the name of the king by whom they were sanctioned; but the book of laws of EAST GOTHLAND was revised and reformed in the years 1168 and 1260. SUTHERMANIA, HELSINGIA, DALECARLIA, and SCANIA, possessed their law books' in their present shape, in the 13th and 14th centuries,-a period in which most of the prin
* The last edition of the Code bears the following title. Log* bok Islendinga hvoria saman hefur sett Magnus Norregs Kongur
(Loflegrar Miningar) Prentud ad Niju a foolum--Anno 1709.' Hoolum, within the Polar Circle, is the very ultima Thule of typography. The types employed in this volume appear to be those which were first brought to the island by Bishop Thorlakson in 1584. Dr Henderson has detailed the history of Icelandic printing in an Appendix to his Journal.