courts of appeal in norway of 1687 contained a provision that stated that an execution could not be enforced before a higher court had confirmed the death sentence (art. 122-53). A decree adopted in 1735 made this rule applicable for all crimes redressed through corporal punishments.64 This form for compulsory appeal was intended to counteract the still insufficient degree of professionalization of judges on the local level. One of the main functions of the courts of appeal thus became the review of criminal cases from a more distant, more objective and more juridical perspective. In this way the courts of appeal served to strengthen legal certainty and predictability in the Norwegian legal order.On the other hand, the appellate courts became more detached from the people. This effect was further intensified by the fact that the lawman had become sole judge in the regional courts of appeal.65 While the lagting in the early and High Middle Ages had been an assembly of more or less equal representatives from the different local communities, the lawman had already withMagnus Lagabøtes Landslov (Code of the Realm) acquired a special position among the other judges.66 His position in the appellate courts became even stronger when he gradually became sole judge in the district courts.67 When exactly this happened is not entirely clear. Only in severe criminal cases did 64 Royal decree of 4 March 1735. 65 However, in capital criminal cases the appellate judge was joined by eight lay judges, cf. NL1-5-20; in all other cases the lay judges that were required to take part in the proceedings had no other function as legal witnesses. Bloch Kristian 1981 p. 52. This means that the loss of influence by the lagrette (jury of lay judges) in the appellate courts was a result of the reforms that took place in the early 17th century. In the 18th century commentaries of the Danish and Norwegian Law made it clear that the laymen had lost their right to judge alongside the appellate judge and had no other function as general witnesses, cf. e.g. Nørregaard, Lauritz 1790 37 §1530 p. 171: “Ved Laugtinget er Laugmanden eene Dommer; thi lad være, at sammesteds haves Laugrettesmænd, saa ere disse dog der tilstæde aleene somVidner, og i ingen Henseende somMeddomsmænd.” [In the district-court the lawman is the sole judge. Despite of having to discuss the case with the lay judges, these lay judges have no other function as legal witnesses and hence are no co-judges]. The first legal historical study on this issue was presented by Lorentz Ewensen in 1760 (Forsøg til en juridisk Afhandling angaaende Meddoms-Mænd i Odels- og Asværks Sager i Norge, hvortil er føyet Nogle Juridiske og Historiske Anmerkninger [Attempt of a judicial treatise concerning co-judges in cases regarding fast property in Norway], Thronheim.) 66 See above note 18. 67 Nørregaard, Lauritz 1790 36 § 1530 p. 171. “Ved Laugting er Laugmanden eene Dommer”; translation: ”At the district court is the lawman the sole judge.” 296
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