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The ordeals.
Compurgators.
ransom himself from banishment, and receive his
peace, if the prosecutor were content, and
interceded for him.
Thus slowly did the judicial authority assert its
due sway over the litigants before the tribunals.
In the beginning these had taken the law into their
own hands, wherefore, in times foregone, their
disputes could often be adjusted only by an appeal to
what was called God’s doom, of which the duel
among nations of the same stock with ourselves
furnishes one example8. That this was also
practised in Sweden is clear from the papal prohibition
issued against it, although no further mention of it
is made in the Swedish laws. It is merely
alluded to in that of Upland as a Pagan custom.
Another class of these appeals was the ordeal by
red-hot iron, first abolished by Earl Birger, but
permitted nevertheless by the law of Helsingland
down to 1320. But no method of proof was more
extensively used than the oath ; to submit to the
oath, and to submit to the law, are phrases which
in the books have the same meaning. Oath was
confirmed again by oath, and the usage so long
preserved in Swedish judicial procedure, of
admitting compurgators (edgardsinen, oath-guarders),
who swore to an oath taken on one side as being
true and lawfullikewise shows how long the
influence of family and friends was in a certain
measure allowed by the law ; for originally these
compurgators no doubt consisted of persons who
would else have been ready to grasp their arms in
the cause of the accused, and now instead appeared
as legitimate auxiliaries with their evidence. In
general the legal forms were these ; either the
prosecutor might prove by witnesses (vittna), and the
accused deny (dylia) by his own oath and those of
his compurgators, or a jury (ntemd) usually of
twelve men, in whom both parties placed
confidence, might investigate the circumstances and
deliver their opinion
In earlier times the judge was elected by the
people 2. According to the Land’s Law, the king
nomiEated to the judicial office one of three men
whom the hundred or the province thereto
proposed. A judge was considered necessary for
every sentence, but not a nremd for every proof;
hence at first it was only chosen for the occasion,
in causes where its assistance was deemed needful.
That this body should make its authority more and
more felt, was a result entirely conformable to its
character. Its composition ensured impartiality,
and made it a check on the compurgators when
brought in support of a party. Gradually the
nsemd became permanent3 ; the bounds separating
its functions from those of the judge were
obliterated, and it has finally remained a constituent
Judicial office and
power. Mulcls.
portion of the tribunal. And still the twelve
peasants, who sit in the Swedish courts throughout
the country with the justice of a province
(Lag-man) or a hundred, though their opinion only
holds good against the judge’s when all the
assessors are unanimous, are the representatives of
natural equity in the tribunal. " Because," it is
said in the charge addressed by an ancient judge to
a naemd, after the institution had assumed
permanency, " all cases which may arise cannot be set
down in a law-book, but where no written law is to
be found, men must borrow their decisions from
that natural law which God hath implanted in our
hearts and brains, therefore the law-book saith in
many places touching doubtful questions, let the
jury of the hundred examine this. Wherefore
take heed for the weal of your souls, and so do that
ye may be held for honourable counsellors, and not
for trifling jesters4."
We remark, in reference to the execution of
judicial sentences, the same slowly augmenting
influence of public authority, as in the declaration
of the law itself. That the fines fixed by law might
be realized, the prosecutor was originally
empowered himself to take 5 the required amount from
the moveable goods of the culprit; provided it
were not done " within homestead and doorposts ;"
for every man, except the outlaw, had peace in his
own house. In the time of king Canute Ericson
personal distraint was fox-bidden, but if any one
was mulcted and refused to pay, the matter was to
be referred to the king’s judgment, and the court
publicly appointed persons for the purpose of
appraising the fines,—according to later
determinations, either the same jury approved by the
disputants themselves, which had sentenced the
offender, or twelve other impartial men whom the
judge or the king’s prefect (Lansman) selected
thereto. From the law of East-Gothland e, which
informs us of the alteration we have just
mentioned, it seems that so late as the time of Canute
Ericson, towards the close of the twelfth century,
the king had no share in any fines, other than
those in levying which he had himself assisted,
after complaint made to him of the denial of right.
" Afterwards," it is said, "it so came to pass that
the king takes whether he is by or not."
Complaints of the denial of right gave occasion for
removing contested matters from a lower court to
a higher, and the appeal from the judge of the
hundred to the lawman is expressly particularized
under Magnus Ladulas7. It was afterwards
ordained that the king’s inquest (Ra?fst) should be
held at least once a year in every province by the
sovereign himself, or the person into whose hands
SWEDEN IN THE MIDDLE AGE.
8 Peum adesse bellantibus credunt, says Tacitus of the
Germans.
9 "That those who beforehand swore had sworn both truly
and legally." Law of the East-Goths, Drap. B. f. 13.
1 Judicial causes in which the first method of proof was
followed, were called witnismal (witness causes); those of
the second kind, dulsmal (denial causes); the third,
naem-damal (jury causes). Compare Sehlyter, Observations on
the controversy regarding the former relation between the
Judge and the Naemd. Svea 2. 255.
2 "Tbelagman all the yeomen shall choose, with God’s
help," says the Law of West-Gothland. The hajraris-hofding
as judge of the hundred, and the lagman as judge of the
province. By the provincial laws of Sweden Proper there
were two judges (domare) in each hundred: b^ those of
Gothland, only one, namely the hundred-courtman, as the
Land’s Law also directs. Yet in some places the oldest of
the nsemdemen is still called haeradsdomare (demster of the
hundred).
3 Its progress to this result maybe remarked in the
directions of the Land’s Law touching the naemd, when the king
sits in person. Konunga B. f. 35.
4 This exhortation may be found in the Celsian
manuscript collections, Miscellanea in 4to. No. 46, Library of
Upsala.
5 This was called Nam (nim).
6 Rsefsta B. f. 3.
7 Diplomatar. Suec. i. 591. Compare Law of Upland,
Tingmals B. f. 10.
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