Cohen, Zeke 2019 History Thesis

Title: The Earliest English Law Code?: Reexamining the Origins of the Law Code of King Æthelberht of Kent Advisor: Eric Knibbs Advisor is Co-author: None of the above Second Advisor: Released: release now Authenticated User Access: Yes Contains Copyrighted Material: No

THE EARLIEST ENGLISH LAW CODE? Reexamining the Origins of the Law Code of King Æthelberht of Kent

by

ZEKE COHEN

Professor Eric Knibbs, Advisor

A thesis submitted in partial fulfillment of the requirements for the Degree of Bachelor of Arts with Honors In History

WILLIAMS COLLEGE

Williamstown, Massachusetts

April 15, 2019

2

Table of Contents

Acknowledgments…………………………………………………....3

Map of Anglo-Saxon England, c. 600……………………………….4

Timeline………………………………………………………………5

Introduction………………………………………………………….6 The First English Law Code

Chapter One…………………………………………………………17 Examining and Decentering Bede’s Ecclesiastical History

Chapter Two…………………………………………………………49 Comparisons and Textual Analysis

Chapter Three……………………………………………………….78 Answering the Who, When, and Why of ÆC

Conclusion…………………………………………………………...98 Our View of Early Anglo-Saxon England

Bibliography…………………………………………………………102

3

Acknowledgments

Writing this thesis has been the highlight of my academic career. Far from tiring of the topic as the months went by, I found myself getting more excited, invested, and certain that I had inadvertently waded into one of the most interesting areas of history. I would neither have considered writing a thesis in this area, nor found researching and writing it so rewarding, were it not for the guidance of Professor Eric Knibbs. He always steered me in the right direction, kept me grounded whenever I was worried I had met a dead end, and offered invaluable advice, even from a continent away.

I appreciate the assistance of Professor Eiko Maruko Siniawer, who led our Thesis seminar and was a helpful resource throughout the year. I would also like to thank the other members of the thesis seminar, particularly Lindsay Klickstein, Ross Hoch, and Pat Smith. I greatly appreciate the support that I felt from them throughout the year.

Thank you to the many members of the Williams community, especially my teammates on the Cross Country and Track teams, who encouraged my excitement, assuaged my fears, gave impromptu pep talks, and showed more interest in the affairs of seventh century Kent than they perhaps felt. I am especially grateful for my friends on and off campus, including David Azzara,

Austin Anderson, Lucas Estrada, Jesse Facey, Gabriel Lerner, Chris Avila, Kenneth Marshall,

Ian Concannon, and Victoria Kingham.

I am tremendously grateful for the love, support, advice, and last-minute edits I received from Julia Gunther throughout the year. She made doing this thesis as easy as it could have been.

Finally, although a couple of sentences will never suffice, I would like to thank my extended family, my parents, and my brother, Sam. Their love, guidance, and example, this year and always, has been formative and sustaining. 4

Map of Anglo-Saxon England, c. 6001

1 Mike Christie, English Kingdoms 600, online image, Wikimedia, https://commons.wikimedia.org/wiki/File:English_kingdoms_600_-_2.png

5

Timeline of Key Events

410: The Romans, facing internal strife, leave Britain; evidence of economic, political, cultural collapse. c. 440s: The Angles, Saxons, and Jutes invade Britain from northern Germany.

476: The Western Roman Empire officially collapses.

481-643: Barbarian successor states control formerly imperial territory, begin issuing law codes. c. 589: Æthelberht becomes king of Kent.

597: Augustinian mission reaches Kent; Æthelberht converted to Christianity.

597-616/8: Æthelberht ostensibly issues eponymous law code.

616/8: Æthelberht dies; Eadbald becomes king of Kent.

640: Eadbald dies; Eorcenberht becomes king of Kent.

664: Eorcenberht dies; Egbert becomes king of Kent. Archbishop of Canterbury, Deusdedit, dies, leaving archdiocese without oversight.

669: Theodore of Tarsus arrives in Canterbury by way of Rome to assume Archbishopship.

673: Egbert dies; Hlothere becomes king of Kent.

679-685: Hlothere and Eadric issue eponymous law code.

685: Hlothere dies; Eadric becomes sole king of Kent.

686: Eadric dies; further political disruption in Kent with multiple foreign rulers. c. 690: Wihtred begins reign; Archbishop Theodore dies.

695: Wihtred issues eponymous law code.

731: Bede writes Ecclesiastical History of the English People, mentioning Æthelberht’s code. c. 899: Alfred the Great of Wessex issues eponymous law code, mentioning Æthelberht’s code.

1122-4: Æthelberht’s code, along with Hlothere and Eadric’s and Wihtred’s, compiled in still- surviving manuscript, the Textus Roffensis.

6

Introduction: The Earliest English Law Code

In 597 CE, forty men landed on the island of Thanet, just off of the east coast of the

Anglo-Saxon kingdom of Kent in southeastern England.2 Led by a monk named Augustine, these men had been sent by Pope Gregory in Rome, for the purpose of converting the pagan Anglo-

Saxons to Roman Christianity. The powerful Kentish monarch, Æthelberht, met them there.

Æthelberht, a pagan, was one of the descendants of the northern Germanic tribal invaders—the

Angles, the Saxons, and the Jutes—who, 150 years prior, had been invited to Britain to repel a

Pictish3 invasion, but had instead decided to stay and conquer.

The missionaries made Æthelberht nervous. Although he had some familiarity with

Christianity, being married to a Frankish Christian, we read that “he took care that they should not meet in any building, for he held the traditional superstition that, if they practiced any magic art, they might deceive him and get the better of him as soon as he entered.”4 Through chanting and prayers, the missionaries succeeded in convincing Æthelberht to grant them a dwelling in

Canterbury—which eventually became the powerful archdiocese of Canterbury—although he insisted that “I cannot consent to accept [the words and promises you bring] and forsake those beliefs which I and the whole English race have held so long.”5 Undeterred, the missionaries in

Canterbury emulated the apostles, praying, preaching, engaging in asceticism, and “[confirming the truth of] their most precious promises…by performing many miracles.”6 These miracles evidently won over Æthelberht, who “at last…believed and was baptized.”7

2 Other kingdoms in Anglo-Saxon England include Wessex, Essex, Northumbria, Mercia, and East Anglia. 3 Scottish. 4 Bede, Ecclesiastical History of the English People, edited and translated by Judith McClure and Roger Collins. Oxford: Oxford University Press, 1969, i.25, 39. 5 Ibid., 40. 6 Ibid., 41. 7 Ibid. 7

With Æthelberht converted, the missionaries set their sights on the rest of England. They encountered large pockets of British Christians8 as well as Irish Christian missionaries, the latter of whom also were attempting to convert the Anglo-Saxons to their version of Christianity. The rivalry between the Irish and Roman Christians for the soul of Anglo-Saxon Christianity remained a live issue for several decades, with each claiming responsibility for the conversion of various Anglo-Saxon kingdoms. Not until the Synod of Whitby in 664, when the Northumbrian monarch Oswiu decreed that his kingdom would follow the customs of the Romans rather than the Irish, was it clear which form of Christianity would dominate England.

Æthelberht himself remained to the end a pious, Roman Christian king. We read that he

died on 24 February [either 616 or 618, denoted 616/8], twenty-one years after he had accepted the faith, and was buried in the chapel of St Martin, within the church of the Apostles St Peter and St Paul, where his queen, Bertha, also lies. Among other benefits which he conferred upon the race under his care, he established with the advice of his counsellors a code of laws after the Roman manner. These are written in English and are still kept and observed by the people. Among these he set down first of all what restitution must be made by anyone who steals anything belonging to the church or the bishop or any other clergy; these laws were designed to give protection to those whose coming and whose teaching he had welcomed.9

The “code of laws” that Æthelberht established before his death (henceforth denoted as ÆC) is known as the earliest English law code. Proving its ascription and determining why it may have been drafted are the primary focuses of this thesis.

***

Almost everything we know about Æthelberht and his conversion to Christianity we owe to the Northumbrian monk named Bede.10 Bede entered the monastery of St. Peter in Wearmouth at age 7, in about 680, where he spent the rest of his life. Bede wrote several dozen works,

8 The British were a different ethnicity from the English, as well as from the Picts and the Irish. 9 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ii.5, 78. 10 Bede was beatified as a saint after death. He is commonly referred to as the Venerable Bede. 8 mostly biblical commentaries. Toward the end of his life, in 731, he wrote his magnum opus, The

Ecclesiastical History of the English People, or the HE. This is a long, comprehensive, and exquisitely detailed narrative in which Bede traces the history of England from the Roman occupation of Britain through his own times. His history recounts the Anglo-Saxon invasion, the

Augustinian mission and conversion of Æthelberht, later Irish missions, disputes over the correct date of Easter, and the then-present state of the English and Britain itself. It has been seen as the earliest attempt to write down a national history.11

The HE is notable for providing a clear view of an otherwise murky period. It is our best narrative source for early Anglo-Saxon history.12 Scholars rely heavily on Bede to determine what events occurred and how society was structured during the early Anglo-Saxon period. The

HE also bears important implications for students of the reign of Æthelberht and his eponymous law code, ÆC. Bede is the only source to discuss Æthelberht and his conversion at length, and the first source to even mention his law code.13 After Bede, Æthelberht’s legislation is not mentioned again until King Alfred the Great of Wessex, who cited Æthelberht and ÆC as inspiration for his own law code at the end of the ninth century.14

11 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ix. 12 Other sources include various letters from Gregory to English figures, such as Æthelberht and his wife, Bertha, letters from Gregory to Augustine, letters from other English missionaries to each other, as well as early English law codes, such as ÆC, Hlothere and Eadric’s code, Wihtred’s Code, and the Laws of Ine. See Bede, Ecclesiastical History, ed. and trans. by Judith McClure and Roger Collins; Barmby, James, Gregory the Great, “Registrum Epistolarum: Book XI, Letter 29.” From Nicene and Post-Nicene Fathers, Second Series, Vol. 13. Edited by Philip Schaff and Henry Wace, translated by James Barmby. Buffalo, NY.: Christian Literature Publishing Co., 1898. Revised and edited for New Advent by Kevin Knight; Emerton, Ephraim, Boniface, The Letters of Saint Boniface. Translated by Ephraim Emerton. New York: Columbia University Press, 2000; Oliver, Beginnings of English Law. 13 Other primary sources that mention Æthelberht beyond Bede include letters from Gregory, most of which are quoted by Bede, the Anglo-Saxon Chronicle, a ninth century West-Saxon manuscript that lists Æthelberht among Kentish kings, and ÆC itself. See Bede, Ecclesiastical History, ed. and trans. by Judith McClure and Roger Collins; Oliver, Beginnings of English Law; Whitelock, Dorothy. English Historical Documents. Vol. Volume 1, C.500-1042. London: Eyre & Spottiswoode, 1955. 14 Dammery, Richard. John. Edward. Law-code of King Alfred the Great. Dissertation, University of Cambridge, 1991. 237. 9

Bede writes that Æthelberht “set down first of all what restitution must be made by anyone who steals anything belong to the church or the bishop or any other clergy…”15 If one examines the law code believed to be the work of Æthelberht, ÆC, one finds that, indeed, the code does begin by describing the restitution appropriate for thefts against the church, the bishop, and the clergy.16 Absent this consonance, there is no near-contemporaneous evidence for ÆC’s authenticity.

ÆC survives in a single manuscript, the Textus Roffensis, copied from 1122-1124. This manuscript contains ÆC as well as other, later law codes: Hlothere and Eadric’s code, which was written between 679-685; and Wihtred’s code, which was written in 695. All of these texts are written in the Kentish dialect of Old English.17

ÆC, Hlothere and Eadric’s code, Wihtred’s code, and Kent in turn, are all part of a broader Germanic tradition. The Anglo-Saxons in England shared a language family and legal culture with the so-called barbarian successor states on the Continent. Just as the Anglo-Saxons had invaded Britain after the Romans withdrew, so too had various barbarian peoples appropriated portions of the continental Western Roman Empire after its fall in 476. Eventually,

Germanic successors established kingdoms throughout former imperial territory in Italy, Spain, and Gaul.18 As these states were Germanic in culture, certain aspects of their societies were similar.

One major area of similarity was their use of law codes. Each of the successor states had had some some interaction with Romans, who were unique in the European West for their

15 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ii.5, 78. 16 Lisi Oliver, The Beginnings of English Law, Toronto: University of Toronto Press, 2002, 61. 17 Ibid., 25. 18 These states include the Salian Franks, Burgundians, Lombards, Visigoths, Ostrogoths, Vandals, among others. 10 elaborate written legal tradition. This exposure to Roman culture drove the kings that ruled the successor states to issue their own law codes. They did so only partly in order to govern their states. Many of the laws and customs enshrined in these codes surely date to earlier than the time the codes were written, and, in any event, it is dubious how much these law codes were referred to or were suitable as a society’s legal framework. They do not contain the totality of law, and may predominantly enshrine laws of lesser importance that could not be easily memorized.19 One main reason that kings issued law codes was to legitimize their states in the eyes of their contemporaries.20 By having a law code, a state—and its king—could be seen as the rightful successor to the Romans.

Of course, these law codes are similar beyond the fact that they were all issued by kings in their respective states. All surviving codes share a basic format and the same set of cultural assumptions. All are in a composition-based form, with monetary penalties for various offenses.

These monetary penalties were (at least originally) not fines paid to the king, but were rather sums paid to the victims of offenses to avert blood feuds with said victims or their families. The maximum fine in each code was generally some variation of the wergild [literally, “man-price”], the fine owed for murder, with some societies allowing for various permutations of murder resulting in a larger composition owed than the wergild alone.21 Since royal power was rather weak in this period, conflict resolution therefore took the form of feuds between families. These

19 Oliver, Beginnings of English Law, 19. 20 Fischer Drew, The Laws of the Salian Franks. Trans. by Katherine Fischer Drew Philadelphia: University of Pennsylvania Press,1991, 8. 21 Ibid., “Salic Law,” §XLI, 104-106. 11 law codes, or the oral traditions preceding them, likely provided a mutually acceptable alternative to feuding.22 ÆC is one of many Germanic law codes.

ÆC is a rough, simply written code, rather short when compared to other foundational

Germanic legal texts. It consists of little more than a list of offenses and the composition for each. ÆC contains 83 separate laws, some with their own sub-clauses. It is notable for its organization, detailing the composition for various offenses ranging from, in order, the church to king to nobleman to freeman to slave, with a personal injury section ordered from head to foot.

The beginning of the code details the composition for stealing from the church, a bishop, and the like.23 It then turns to various offenses involving the king, such as violating his protection, or killing someone in his dwelling.24 Its provisions next deal with offenses against noblemen, then focuses on various offenses done by or against freemen, such as violating a freeman’s protection, or killing another freeman.25 Following is the personal injury section of the code, detailing the composition for offenses ranging from the seizing of one’s hair to striking off a man’s toenail.26

Free women make a brief appearance in the code, as both victims and perpetrators.27 ÆC concludes by explaining the composition for offenses done by or to servants, followed by two laws detailing offenses done by or to slaves.28 The composition for each offense is to be paid in some amount of shillings—a certain weight in gold—or, for some offenses, sceattas—possibly either a silver coin or a smaller weight in gold.

22 See Max Gluckman, “Peace in the Feud,” in Gluckman, Custom and Conflict in Africa. Oxford: Basil Blackwell, 1955, 1-14; Tom Lambert, Law and Order in Anglo-Saxon England. Oxford: Oxford University Press, 2017, 1-52. 23 “ÆC,” §§1-7, in Oliver, Beginnings of English Law, 61. 24 Ibid., “ÆC,” §§8-17, 63-65. 25 Ibid., “ÆC,” §§18-31, 66-69. 26 Ibid., “ÆC,” §§32-71, 70-77. 27 Ibid., “ÆC,” §§72-78, 77-79. 28 Ibid., “ÆC,” §§79-83, 79-81. 12

Although ÆC is comprehensive as far as personal injuries are concerned, the code does not engage with other aspects of life that would certainly have been a part of Anglo-Saxon society. Nature is absent from the code. So too are any mention of animals or livestock.

Although §§1-7 are Christian, §§8-83 are not, but there is no obviously pagan element to any of the later laws. Regardless of the purpose for writing this code, it certainly was not meant to be comprehensive.

It is remarkable that ÆC has survived at all. The code itself that is found in the Textus

Roffensis does not mention Æthelberht. Rather, a rubric (title), written in red ink as opposed to the main text’s black, explains that the foregoing code is Æthelberht’s. There is no way to be sure that the rubric is contemporary with the law code that it heads, and indeed, while scholars are certain it predates the year 747, they only postulate that the rubric may contain traces of an original prologue.29 Moreover, Bede is the only source to seem aware of ÆC between

Æthelberht’s reign and Alfred’s. Neither Hlothere and Eadric’s code nor Wihtred’s code mentions Æthelberht or his laws. This general silence about ÆC is deafening, and it has spread a uniform unease among modern scholars of Anglo-Saxon law, who go out of their way to defend the authenticity of ÆC.30 Despite this uncertainty, ÆC has been accepted as authentic by almost every scholar since Bede in 731. Anyone who has argued against its ascription to Æthelberht has argued that his code actually enshrines an earlier oral tradition.31

29 Ibid., 83-84. Scholars are certain that the rubric predates 747 because Augustine was beatified as a saint in that year, and the rubric should therefore have referred to him as Saint Augustine, which it does not. 30 See Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century. Volume 1: Legislation and its Limits. Oxford, UK: Blackwell Publishing, 2001, 93-103; Oliver, The Beginnings of English Law, 20-52; HG Richardson and GO Sayles, Law and Legislation from Æthelberht to Magna Carta, 1- 9. 31 Although Richardson and Sayles argue such most vociferously, Wormald and Oliver each believe that various archaisms in the text indicate that this is a strong possibility. See Wormald, The Making of English Law, 96; Oliver, The Beginnings of English Law, 33; Richardson, Law and Legislation from Æthelberht to Magna Carta, Edinburgh: Edinburgh University Press, 1966, 1-12, 157-69. 13

***

Our sources for the early history of Anglo-Saxon England are few. Beyond the HE and the sources Bede quotes, the evidence is primarily epistolary. The letters of Saint Boniface,

Bede’s contemporary and an important Anglo-Saxon missionary on the Continent; and the letters of Gregory, some of which were known to Bede, shed independent if sporadic light on this period. Katherine Fischer Drew’s translations of the Salic Law, Burgundian Code, and Lombard

Law (particularly Rothair’s Edict) are invaluable, and provide the means for comparison with

ÆC. As for the translation of ÆC itself, I have used Lisi Oliver’s translation, contained in her

The Beginnings of English Law. This text also includes her translations of Hlothere and Eadric’s code, as well as Withred’s code. Oliver’s translations are considered exceptional.32

I do not use Anglo-Saxon codes other than ÆC’s supposed immediate successors,

Hlothere and Eadric’s code and Wihtred’s code. Regardless of ÆC’s authenticity, it is written in the Kentish dialect. Since these three law codes comprise the entirety of extant Kentish legal tradition, there are no other law codes with which to reasonably compare ÆC. I also do not compare ÆC to Roman vulgar law, the law codes promulgated by the provinces of the waning

Western Roman Empire. The relationship between Anglo-Saxon England and Rome is very slight, with essentially no continuity between Roman Britain and Anglo-Saxon England.33 There is no reason to expect any meaningful relationship between ÆC and vulgar law. While every

Continental successor state’s law code is written in Latin, ÆC and the later Kentish law codes are written in vernacular.

***

This thesis breaks with 1,300 years of tradition. ÆC may not be the most well-known of

32 Wormald, The Making of English Law, 95. 33 Lambert, Law and Order in Anglo-Saxon England, 27. 14 early English law codes, but it is viewed by legal historians as symbolically foundational.

Historians write books with titles such as Law and Legislation from Æthelberht to Magna

Carta.34 Alfred the Great, one of the most famous kings in English history, claimed to have used

Æthelberht and ÆC as inspiration for his own law code. And since Anglo-Saxon law, in some fashion, became enshrined in England’s Common Law, which itself has direct continuity to modern Western legal tradition, ÆC is, in some sense, the symbolic foundation to all Western legal thought. If ÆC is inauthentic, or was issued a century later than it was supposed to have been issued, as I argue, there will be no great cataclysm. Certainly, other bedrocks of Western legal tradition ultimately derive from forgery, such as the notion that one is innocent until proven guilty.35 And no element from ÆC has survived to the present. ÆC is a symbolic foundation, not an actual one. But if ÆC is inauthentic, our understanding of early Anglo-Saxon England would be altered. Scholars must recognize that our knowledge of seventh century Kent and the conversion of England may be obscured by propaganda promulgated in the late seventh or early eighth century. Evidence suggests that the archdiocese of Canterbury, as soon as it was solidly established, asserted its power in a multitude of ways, including by drafting forgeries. If ÆC is inauthentic, then there is yet more evidence that the foundations of Western legal tradition are more recent than often understood.

Indeed, there is more to the story of ÆC than historians have previously acknowledged.

Our evidence for the code’s origins rests on the word of a monk writing a century after

Æthelberht’s death, and its existence in a single manuscript compiled 400 years after that.36 In

34 Richardson and Sayles, Law and Legislation from Æthelberht to Magna Carta. 35 See Eric Knibbs, “Pseudo-Isidore at the Field of Lies: Divinis praeceptis (JE †2579) as an Authentic Decretal,” Bulletin of Medieval Canon Law n.s. 29 (2011/2012), 1–34. 36 Since the manuscript contains materials up to the 12th century, it could not have been created much before 1122, with some evidence that it was even created a decade or two later. 15 the first chapter of this thesis, I engage with the work of Bede to determine whether modern scholars can trust what he argues about the Augustinian mission to convert Anglo-Saxon

England, Æthelberht’s conversion, and ÆC itself. I ultimately conclude that scholars cannot trust

Bede, and that he must be removed from any attempt to determine ÆC’s origins.

Next, in the second chapter of this thesis, I compare the text of ÆC to that of other law codes. Specifically, I analyze ÆC along with its succeeding Kentish codes—Hlothere and

Eadric’s code and Wihtred’s code—and contemporaneous Germanic codes—the law of the

Salian Franks (Salic Law), the Burgundian Code, and the Law of the Lombards (specifically

Rothair’s Edict). Since these law codes are all issued by Germanic successor states that are broadly similar, a comparative project is helpful for establishing verisimilitude, as well as areas where each code may differ.37 This comparison shows that ÆC, although clearly a part of

Germanic tradition, is anything but typical or ordinary. Almost every aspect of it is confusing if scholars are to believe that it is an authentic law code issued in the early seventh century.

In the third chapter of this thesis, I both engage with the best scholarly argument for

ÆC’s authenticity, that of Patrick Wormald’s in his The Making of English Law, and also make my own positive case for ÆC’s attribution. I argue that textual and contextual aspects of ÆC align far better with an issuance date from the end of the seventh century or beginning of the eighth century, rather than the beginning of the seventh century. I also examine who is likeliest

37 I do not compare ÆC to every existing Continental successor states’ law codes, since such a comparison would be confusing and impractical. Instead, these three codes provide an efficient means to compare ÆC to wider Germanic legal tradition. There is reason to expect that ÆC should be most similar to the Salic Law, since Kent had close and continuing relations with the Salian Franks in the time of Æthelberht. The Burgundians issued their law code about a century before ÆC is supposed to have been written, and their state likely had no connection whatsoever to Anglo-Saxon England, meaning meaning that any similarities between their law code and ÆC would merely be representative of broader Germanic culture. Rothair’s Edict dates to around 700, about a century after ÆC’s supposed issuance. If his Edict is similar to ÆC and the other law codes are not, this relation could represent a maturing Germanic tradition, of which ÆC would be a part. 16 to have issued this code, for what purpose, and whether it enshrines authentic Kentish legal tradition, even if it may not be an authentic Kentish law code.

17

Chapter 1: Examining and Decentering Bede’s Ecclesiastical History

The Venerable Bede’s Ecclesiastical History of the English People (the HE), written in

731, has been an indispensable source for determining the origins of ÆC. Bede is the only source to discuss Æthelberht and his conversion at length, and the only source to mention his law code for several centuries. Bede writes that Æthelberht

established with the advice of his counsellors a code of laws after the Roman manner. These are written in English and are still kept and observed by the people. Among these he set down first of all what restitution must be made by anyone who steals anything belonging to the church or the bishop or any other clergy; these laws were designed to give protection to those whose coming and whose teaching he had welcomed.38

The first law code contained in the Textus Roffensis, ÆC, begins by describing the restitution appropriate for thefts against the church, the bishop and the clergy.39 This passage, therefore, “is the only explicit evidence that Æthelberht did issue the code ascribed to him.”40

The case for ÆC’s attribution as Æthelberht’s therefore rests almost entirely on a credulous interpretation of the HE. Since the HE has been vital to any study of Anglo-Saxon

England—indeed, scholars have used the phrase “Bede says” as the last word on many topics— that has not been a problem for scholars examining ÆC.41 They therefore view ÆC as authentic and correctly attributed.42

This approach is neither correct nor necessary. Scholars need not accept Bede’s arguments about Æthelberht unquestioningly, and already do not when examining other aspects

38 Bede, Ecclesiastical History of the English People, edited and translated by Judith McClure and Roger Collins. Oxford: Oxford University Press, 1969, ii.5, 78. 39 Oliver, Beginnings of English Law, 61. 40 Wormald, The Making of English Law, 93. Wormald goes on to attempt to prove ÆC’s legitimacy through other means. I discuss the shortcomings of his arguments in a later chapter. 41 Richard Shaw, How an Early Medieval Historian Worked: Methodology and Sources in Bede's Narrative of the Gregorian Mission to Kent. Dissertation, University of Toronto, 2014, 14. 42 See Frank Stenton’s Anglo-Saxon England, 3rd Edition. Oxford, UK: Oxford University Press, 1971,60; Lisi Oliver’s The Beginnings of English Law, 14-20; Patrick Wormald’s The Making of English Law, 93-103, among many others. 18 of the HE. Bede has specific motivations and agendas, including above all a desire to prove that the basis of Anglo-Saxon Christianity is Roman, not Irish or British. That agenda rests on his account of the Augustinian mission, Æthelberht’s conversion, and ÆC itself. Bede’s description of these events are not incidental details, but his grandest historical argument. Further, Bede’s motivations notwithstanding, the evidence that he uses for the Augustinian mission is weak, indicating that Bede does not know as much about seventh century Kent as he represents himself as knowing, and may be parroting specific arguments and stating them as fact. Bede’s account, particularly of Æthelberht’s conversion, is questionable. It is ultimately insufficient on its own basis to ascribe ÆC to the seventh century. Bede’s narrative therefore should be decentered.

Instead, scholars should consider other means of attributing ÆC, including a textual and contextual analysis of ÆC itself.43

Bedan Scholarship

Although for centuries, Bede was revered as a historian and his work viewed as near faultless, such has not been the view of scholars for decades. James Campbell speaks for many scholars in his article, “Questioning Bede,” when he writes that “it is not so much that [Bede] is disingenuous (though he could be) as that the focus of his interests and the power of his mind and prose have tended to dominate and in important ways to simplify attitudes towards his environment. He as was least as much an advocate as a recorder.”44 Modern scholarship at this

43 One can find those analyses, as well as my refutations of the claims made by secondary scholarship, in the second and third chapters of this thesis. There, I make the case that ÆC is misattributed and likely belongs to the late seventh or early eighth century, not the early seventh. 44 James Campbell, "Questioning Bede," in Intersections: the archaeology and history of Christianity in England, edited by Martin Henig. Oxford: Oxford University Press, 2010, 127. 19 time is unanimous that the HE is not entirely accurate.45 As indicated by Campbell, modern scholarship is also unanimous that Bede has specific goals and motivations in writing the HE.46

Most scholars believe that Bede “thought of the entirety of English Christianity in the present as a single whole; he portrayed his countrymen as obedient to Rome via an archdiocese centered at

Canterbury.”47 Moreover, Bede perceived English Christianity as the direct descendant of

Roman Christianity.

Much recent scholarship has been an attempt to determine various biases in Bede’s work, both personally and via what sources he used, that might affect the HE, in order to better understand the world that Bede describes. This scholarship has taken three different avenues.

First, some scholars have focused on Bede’s personal views affecting various portrayals in the

HE.48 Second, others have examined Bede’s construction of history as an ideology that affects

45 Just what the HE is not entirely accurate about remains a topic of significant dispute. Some scholars, such as Patrick Wormald, James Campbell, David Kirby, and Walter Goffart, argue that the HE depicts a more rose- tinted image of the recent past than that past likely deserved. Others argue that the HE is inaccurate about specific depictions of events and peoples—the British, argue Rowan Williams and Dominic Mattos, William Trent Foley, and Nicholas J. Higham; pagans, argues S.D. Church. See Wormald, “Bede and Benedict Biscop,” 155; Campbell, The Anglo-Saxons, 84; Kirby, “Northumbria in Time of Wilfrid,” 2-4; Goffart, The Narrators of Barbarian History, 237-8; Williams and Mattos, “Theology and the Paschal Controversy: Bede's Case Against the British Church." In: Prayer and Thought in the Monastic Tradition, ed. Santha Bhattacharji, (London, 2014) p. 31-44; Foley and Higham, Foley, "Bede on the Britons," Early medieval Europe 17 (2009), pp. 154-185; Church, "Paganism in Conversion-Age Anglo-Saxon England: The Evidence of Bede's Ecclesiastical History Reconsidered," 162-180. 46 Again, precisely what those goals and motivations are is still disputed. Kirby argued that Bede is attempting to bring a measure of the peace and quiet of his own life to the past. Goffart argues that Bede writes the HE as an implicit critique of the contemporaneous Northumbrian church. Campbell is not sure that Bede’s England is knowable. Many others, including Richard Shaw, Carolyn Twomey, Foley and Higham, and Claire Stancliffe, argue that Bede writes much of the HE as an attempt to show that Anglo-Saxon Christianity had Irish and Roman roots rather than British. See Kirby, “Northumbria in Time of Wilfrid,” 2-4; Goffart, Narrators of Barbarian History, 325-30; Campbell, Anglo-Saxons, 84; Shaw, Bede’s Motives, Twomey, "Kings as Catechumens: Royal Conversion Narratives and Easter in Bede's Historia ecclesiastica," The Haskins Society Journal 25 (2013): 1-18; Foley and Higham, “Bede on the Britons,” 154-185; Stancliffe, “British and Irish contexts,” in The Cambridge Companion to Bede, edited by Scott DeGregorio. Cambridge, UK: Cambridge University Press, 2010, 70. 47 Nicholas J. Higham, "Bede and the Early English Church," in Leaders of the Anglo-Saxon Church. From Bede to Stigand, edited by Alexander R. Rumble, 25-40. Woodbridge: The Boydell Press, 2012, 28. 48 See Goffart, Narrators of Barbarian History, 325-9; Hilliard, “Bede and the Changing Image of Rome and the Romans,” 33-48; Williams, “Bede’s Case Against The British Church;” and O’Brien, O'Brien, Conor. "Kings and Kingship in the Writings of Bede," The English Historical Review 132 (2017): 1473-1498. They 20 how he presents events.49 Third, they have examined how Bede’s sources affected his perspective.50

The paths trodden by prior scholarship provide important insights for a further examination of Bede and the HE. They suggest that a credulous acceptance of Bede’s narrative is both counterproductive and unnecessary. Bede had personal biases and motivations in writing the HE—as do all historians in their works. Bede’s historiographical sensibilities are unlike modern mores. And Bede’s source material is another confounding factor that affects how Bede might describe events.

It is necessary to evaluate Bede’s motivations, approach to history, and source material in order to determine how Bede’s discussion of Æthelberht and ÆC has been shaped. Prior scholars have done some of the work, and I do more below. It is also necessary to examine not only how various factors might impact the depiction of Æthelberht and ÆC, but how those elements

argue, respectively, that Bede did not like the direction of the contemporaneous Northumbrian church; that Bede had evolving personal views about Rome and its meaning for Anglo-Saxons; that Bede hated the British; and that Bede viewed kings as more secular than they were. 49 See Foley and Higham, 25-40; Alan Thacker, “Bede and history,” in The Cambridge Companion to Bede, edited by Scott DeGregorio. Cambridge, UK: Cambridge University Press, 2010, 170; Eoghan Ahern, “Bede's miracles reconsidered.” Early medieval Europe 26 (2018): 282-303, and Shaw, Bede’s Motives. They argue, respectively, that Bede too often relies on biblical analogs when describing figures and events, limiting the credulity of a modern reader; that Bede “linked history with hagiography;” that Bede did not differentiate between obviously religious “miracles” and possibly banal “miracles;” that Bede uses caveats when he doubted sources, a distinction that modern readers have not understood; or that Bede, like many in his time, believed that sources that ought to have said a certain thing did say a certain thing, a lack of distinction that would color his work. 50 See Richard Shaw, How an Early Medieval Historian Worked: Methodology and Sources in Bede's Narrative of the Gregorian Mission to Kent, Dissertation, University of Toronto, 2014; Michael Herren,“The Papal Letters to the Irish Cited by Bede: How Did He Get Them?” in Clerics, Kings and Vikings: Essays on Medieval Ireland in Honour of Donnchadh Ó Corráin, edited by Emer Purcell, Paul MacCotter et a., 3-10. Dublin: Four Courts Press, 2015; Michael Lapidge, "Bede and Roman Britain," in Intersections: the archaeology and history of Christianity in England, edited by Martin Henig, Oxford: Oxford University Press, 2010, 107-117. These arguments posit that Bede’s view of history is necessarily shaped by the sources that he had access to, regardless of Bede’s own biases or historiographical ideology. Moreover, these scholars seek to determine precisely what sources Bede used. Some of these arguments include suggestions that Bede has some Romano-British sources that he does not acknowledge, that some of his letter fragments came from Irish sources, and, more pertinently to this thesis, that some of Bede’s sources from Kent come from epitaphs that themselves were written long after the events they discuss, and as such are suspect. 21 function within the HE’s narrative. What work is the conversion story doing for Bede? How is it vital to the ecclesiastical history of the English people? By understanding that, it is easier to pinpoint possible inaccuracies or areas where there is little evidence.

The HE in Context

The HE is characterized by certain oddities that are foreign to modern histories. At times,

Bede punctuates his seemingly accurate narrative with an obvious hagiography, stretching reality beyond its breaking point. One representative example is during a discussion of King Edwin of

Northumbria’s decision to accept the faith. Bede describes Edwin’s inner turmoil in detail, as well as the arguments Paulinus, an Augustinian missionary, makes in his attempt to convert

Edwin. In the middle of this narrative, Bede relays a tale in which

suddenly, at dead of night, [Edwin] saw a man silently approach him whose face and attire were strange to him… [the stranger] laid his right hand on Edwin’s head and said, ‘when this sign shall come to you, remember this occasion and our conversation, and do not hesitate to fulfil what you are now promising.’ On those words it is related that he suddenly disappeared so that Edwin might realize that it was not a man but a spirit who had appeared to him.51

In due course in Bede’s narrative, Paulinus uses the same gesture, at which point the king converts. While elements of this story may be accurate, the whole includes significant elements of hagiography.

In fact, rather than the HE being a history interwoven with hagiography, one could almost describe the HE as hagiographical anecdotes with a chronological or historical structure. Much more of the HE is devoted to tales of the miraculous than is often acknowledged. Bede’s conception of a miracle is not necessarily what secular observers would consider impossible occurrences. Often, the miracles Bede cites are rather banal occurrences, such as a physician and

51 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ii.12, 92-3. 22 bishop working in tandem to help treat a boy’s scabby head, or the appearance of a rainbow.52

The result is that the HE is more religious a document than one might believe at first glance, and is correspondingly less likely to adhere to secular historiographical norms. Indeed, that the HE is at all devoted to describing the history of the English people is anomalous given the rest of

Bede’s body of work, which almost exclusively comprises allegorical commentaries on various biblical chapters.

In Bede’s time, conceptions of history crucially differed from modern conceptions in one respect—whereas modern historians often work against common knowledge to construct a narrative truer to actual events, medieval historians believed the opposite. The preface to Bede’s

HE, for example, includes a troubling passage in which Bede writes that:

I humbly beg the reader, if he finds anything other than the truth set down in what I have written, not to impute it to me. For, in accordance with the principles of true history [alternate translation: the true law of history], I have simply sought to commit to writing what I have collected from common report, for the instruction of posterity.53

As one scholar explains, this reference to “the true law of history”

was neither the true law of history (merely a true law) nor was it to be seen as the unimpeachable truth. Rather the principle underlying this particular ‘law of history’ ‘authorized the use of oral traditions whose factual worth’ might be suspect but which recorded a truth which, if not actually true, ought to have been true.54

Bede and his sources therefore would have been concerned with what they believe should have occurred rather than what actually occurred. For Bede, what should have occurred are events that

52 Eoghan Ahern, “Bede's miracles reconsidered.” 291. Also in Bede, Ecclesiastical History, ed. and trans. by Judith McClure and Roger Collins, v.2, 258. 53 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, preface, 15. 54 Church, Stephen D. "Paganism in Conversion-Age Anglo-Saxon England: The Evidence of Bede's Ecclesiastical History Reconsidered," History. The Journal of the Historical Association 93 (2008), 167. 23 correspond to a scripturally-focused worldview—hagiographies, miracles, and conversion stories adhering to contemporaneous tropes.

This scriptural worldview and different conception of history had a practical purpose for

Bede. Writes Thacker, “Bede had an agenda. He was above all a Christian scholar and exegete, and for him, history, although unquestionably interesting for its own sake, had a moral purpose.”55 There is, therefore, a political element to the HE. Bede wrote not as a disinterested observer detailing the history of Christianity on the island, but as an active participant in a political battle, using every means necessary to argue for his specific worldview. When Bede describes the conversion of certain figures to Christianity, including Æthelberht, it is an important aspect of a broad argument. Bede uses the HE to argue that the Northumbrian church that he belonged to, and Anglo-Saxon Christianity in general, is Roman in root, not British, or

Irish.56 Augustine, a Roman missionary, being the one to convert Æthelberht, the first Christian

Anglo-Saxon king, is therefore central to that argument. Indeed, it is the basis of Bede’s claim.

The more impact Augustine and Gregory had on Æthelberht, Augustine’s missionaries on

Northumbria, and Æthelberht’s conversion on the growth of Anglo-Saxon Christianity, the stronger Bede’s case. Downplaying the impact British, Irish, and Frankish Christians had in converting Anglo-Saxon fits an equal, but opposite purpose. If those three groups were not the cause of Anglo-Saxon conversion, then it must have been Romans.57

55 Thacker, “Bede and history,” 170. 56 The view that Bede wrote the HE in large part to tie Anglo-Saxon Christianity to Roman Christianity is the view of many Bedan scholars, including, but not limited to, Richard Shaw, Carolyn Twomey, Foley and Higham, and Claire Stancliffe. See Shaw, How an Early Medieval Historian Worked: Methodology and Sources in Bede's Narrative of the Gregorian Mission to Kent, 145; Twomey’s “Kings as Catechumens: Royal Conversion Narratives and Easter in Bede’s Historia ecclesiastica,” 1-18; Foley and Higham’s Bede on the Britons, 154-185; Stancliffe, “British and Irish contexts,” 69-84. 57 These various forms of Christianity differ in two important respects. First, Irish and British Christian tradition celebrated different dates for Easter, Christianity’s most important holiday, than did Frankish and Roman. Second, Roman Christianity also differed from British, Irish, and Frankish Christianity by taking direction from the Bishop of Rome—the Pope. 24

Æthelberht’s conversion is also vital for Bede’s own kingdom of Northumbria. Paulinus, was, according to Northumbrian tradition, the man responsible for the conversion of the

Northumbrian King Edwin, and the entire kingdom of Northumbria by proxy. Bede’s motivation to highlight the impact of the Augustinian mission is therefore twofold—as the basis for the kind of Christianity he and other contemporaneous Englishmen practice; and as the basis for his own kingdom’s conversion.58

British Christianity

In order to downplay the impact British Christians had on Anglo-Saxon conversion, Bede shows open hostility to the British. He describes the British as a “nation of heretics,” a “sluggish people,” and waxes at length at their

foul crime[s]; in particular, cruelty and hatred of the truth and love of lying…so that if anyone appeared to be milder than the rest and somewhat more inclined to the truth, the rest, without consideration, rained execrations and missiles upon him as if he had been an enemy of Britain.59

Throughout the HE, Bede barely acknowledges the presence of an already existent British

Church; where he does mention it, he associates it with little more than the “Pelagian heresy” that “corrupted the faith of Britain with its foul taint.”60

58 Walter Goffart has noted that throughout the HE, Bede seems to be writing not so much an Ecclesiastical History of the English People as he is one of the Northumbrians in particular. Roughly 52% of the HE is concerned with just Northumbria. Bede records missionary activity in Europe, but the missionaries he mentions are not merely English, but Northumbrian. Bede almost never mentions the kingdom of Mercia, even though it was likely dominant at the time. Since Northumbria’s conversion directly resulted from Kent’s conversion, these two kingdoms receive by far the majority of Bede’s attention. Kingdoms that converted thanks to Irish missionaries accordingly receive far less so. See Goffart, Narrators of Barbarian History, 251- 3. 59 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ii.2, i.13, i.14; 73, 25-26. 60 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.17, 29. See Rowan Williams’ “Bede’s Case against the British Church,” 31-44. Pelagianism derives from the teachings of a fifth-century figure, Pelagius, who taught that people can choose to sin or not to sin, arguing against the concept of original sin, which was the official church doctrine. Bede took a dim view of this approach, writing in the cited chapter that 25

A closer examination of the HE reveals that the British Church was alive and well in

Anglo-Saxon England, having survived from the Roman period, and that Irish missionaries did have a significant impact in converting the pagan Anglo-Saxon invaders. But rather than tell this story, Bede chooses to emphasize the Augustinian mission, even though that mission seems to have been ineffectual. This emphasis has implications for Bede’s description of the conversion of

Æthelberht. Bede casts the conversion in the light that most suits his motivations, rather than what may have actually occurred.

It is difficult to determine anything of substance about British Christianity from the HE.

Bede seems determined to write as little about British Christians as he could. He implies that

British Christianity, although a feature of Roman Britain, mostly ended with the Roman withdrawal in 410. He comes as close as possible to writing that the British ceased being

Christian, without actually saying so, when he writes that the British “cast off Christ’s easy yoke and thrust their necks under the burden of drunkenness, hatred, quarrelling, strife, and envy and other similar crimes…these corrupt people.”61 Although some British Christians remain in

Bede’s narrative, they garner little mention. Bede minimizes their possible impact on Anglo-

Saxons by claiming that the British committed the “crime” of “never preach[ing] the faith to the

Saxons or Angles who inhabited Britain with them.”62 Bede’s distaste for the British appears to be for this reason. He then stops mentioning the British unless absolutely necessary. Instead, he associates pagans, like the early Anglo-Saxons, with what he had implicitly defined as British

“on the one side was divine faith, on the other side, human presumption: on the one side piety, on the other pride: on the one side Pelagius and the founder of their faith, on the other Christ.” 61 Ibid., i.14, 26. 62 Ibid., i.22, 36. 26 qualities, describing the English as “a barbarous, fierce, and unbelieving nation whose language

[the missionaries] did not even understand.”63

Despite Bede’s silence on British Christianity after the early fifth century, ancillary details within the HE itself implicitly reveal that British Christianity was still an institution as late as the Augustinian mission itself.64 Half a century after Britons ostensibly lapsed, Bede describes “priests…everywhere slain at their altars” when the Anglo-Saxons invaded Britain.65

When Augustine reaches England and meets King Æthelberht, his missionaries met in a still- standing—and still used!—church.66 In one of Augustine’s letters to the Pope, he asks the telling question, “how ought we to deal with the bishops of Gaul and Britain?”67 And after Augustine has converted Æthelberht—theoretically the first Englishmen to convert to Christianity—he

“summoned the bishops and teachers of the neighboring British kingdom to a conference,” whereupon he managed to convince them through some miracles that they should celebrate

Easter on a different day than they traditionally did.68 Christianity did not lapse to a serious extent after the Romans withdrew from Britain. Instead, it persisted, if not flourished, to the point that there was an island-specific church hierarchy with its own traditions.

While it is true that Britons are not Anglo-Saxons and spoke a different language, the

Anglo-Saxons had lived in England for 150 years before the Augustinian mission and had likely

63 Ibid., i.23, 37. 64 As Foley and Higham argue, Bede’s sheer “virulence” in describing the British indicates that a rivalry between British and English Christians “remained a live issue in the 730s and suggests that Bede was writing against a British opinion that he knew very well and that made him particularly nervous.” Over time, of course, English Christianity won out, but the outcome may have been uncertain at the time of the HE’s writing. See Foley and Higham, “Bede on the Britons,” 156. 65 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.15, 28. 66 Ibid., i.26, 41. 67 Ibid., i.27, 46. I discuss this text at greater length below. 68 Ibid., ii.2, 71. 27 found significant commonalities with the extant British culture.69 Bede’s claims that the British never preached to Anglo-Saxons do not hold under scrutiny. Bede is describing actions he says did not occur two centuries earlier than his own life. He is no better-positioned than modern scholars to make such a claim; moreover, he is not omniscient. It is impossible that the English were ignorant of Christianity at the time of the Augustinian mission, as Bede posits. And since

Bede’s narrative only includes royalty, it is possible or even likely that many common Anglo-

Saxons were practicing British Christianity. Bede downplays this narrative, of course, explaining that God “had appointed much worthier heralds of the truth [i.e. the Augustinian missionaries] to bring [the Anglo-Saxons] to the faith.”70

Many details in the HE conflict with Bede’s assertions. The reason behind that conflict is simple. Many of Bede’s sources were British.71 In fact, for certain parts of the HE, including for various aspects of the Augustinian mission, Bede has so few sources that he is forced to rely on

British sources that cast events in a very different light than his intentions. In one such example,

Bede details Augustine meeting with British clergymen to try to convince them to follow the

Roman date for Easter, describing the British as “learned” and Augustine in a poor light. On these occasions, Bede uses caveats like “it is related that…” in order to imply that he doubted the sources that he used. Indeed, Bede used caveats in certain instances

to reassure the reader about which side Bede is on. Nonetheless, he has not been able to remove entirely the original perspective of the text he was working from, as it was so integral to the narrative…this is quite revealing about the way Bede worked and what he was and was not capable of as a narrator.72

69 Chris Wickham, Framing the Early Middle Ages: Europe and the Mediterranean, 400-800. Oxford: Oxford University Press, 2005, 47. 70 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.22, 36. 71 See Michael Lapidge, "Bede and Roman Britain," in Intersections: the archaeology and history of Christianity in England, edited by Martin Henig, Oxford: Oxford University Press, 2010, 107-117. 72 Shaw, Bede’s Narrative, 145. 28

This happy defect defines much of Bede’s HE. Either Bede is just gifted enough at using his sources that he can make overarching claims, but just unskilled enough that a careful examination reveals the original viewpoint of the sources used, or Bede retains a fundamental honesty that comes through his writing even though he has specific perspectives and arguments.

Throughout the HE, and particularly in regards to the Augustinian mission, Bede’s general description of events does not match the specifics he provides.

Bede’s description of the British both deemphasizes their impact on Anglo-Saxons and reveals a relative paucity of Bede’s own sources on the matter. These two features have implications for Bede’s discussion of Æthelberht. Bede is willing to cast events in a light that highlights the importance of the Augustinian mission while deemphasizing anything that would undercut its importance. This fact means that a reader should therefore be less credulous of

Bede’s description of all aspects of the Augustinian mission. Bede possessing less evidence than he lets on on certain matters is further reason for why a reader should be less credulous of his claims. If these features exist in his discussion of Æthelberht, the reasonable conclusion is either that Bede is misrepresenting his evidence and should not be believed, or that Bede lacks the evidence to make the claims that he does.

Irish Christianity

Bede’s disapproval of the British Church stems from both their different date for Easter and his perception that they did not attempt to convert any Anglo-Saxons. His view on Irish

Christianity is more nuanced and double-edged. Like the British, the Irish celebrated Easter on a different date than the Romans or contemporaneous English Church, a defect that Bede continually mentions. For Bede, the Roman way of celebrating Easter was the only righteous 29 way, and as such, he is motivated to downplay the role of both British and Irish Christians in converting Anglo-Saxons. Unlike the British, however, the Irish were undoubtedly instrumental in converting most Anglo-Saxons to Christianity, a fact that Bede recognizes. Bede finds this fact laudable, but it does undercut Bede’s broader narrative that the “much worthier heralds of the truth” were Roman, not Irish. Therefore, Bede begrudgingly admits the Irish’s role in converting

Anglo-Saxons, but somewhat downplays their impact. All the while, he often mentions their sin of celebrating Easter on the wrong day, as if to remind the reader not to take too kindly to the

Irish.

Bede’s own narrative reveals that the Augustinian mission was not the beginning of continuous Anglo-Saxon Christianity. After Æthelberht died, Bede discusses a “severe setback to the tender growth of the Church.”73 Æthelberht’s son, Eadbald, remained a pagan, as did, presumably, most of his subjects. Although Eadbald is miraculously converted, he “had less royal power than his father and was unable to restore the bishop to his church against the will and consent of the heathen.”74 Despite the emphasis that Bede places on the Augustinian mission, even he admits that its impact does not persist in Kent beyond Æthelberht’s death. The

“heathen” Kentish populace does not appear willing to accept Christian kings. Another mission would be necessary to continue and complete the conversion of Anglo-Saxon England.

That mission did not come from Rome. It came from Ireland. Bede foregrounds this mission by relaying a paraphrased message from Pope Honorius, writing that “few as [the Irish] were and placed on the extreme boundaries of the world,” they should not “consider themselves wiser than the ancient and modern Churches of Christ [Roman churches, apparently]…nor

73 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ii.5, 79. 74 Ibid., ii.6, 81. 30 should they celebrate a different Easter.”75 After this jab at Irish Christianity, Bede relates that a certain King Oswald of Northumbria, who “held under his sway all the peoples and kingdoms of

Britain…wield[ing] supreme power over the whole land,”

was anxious that the whole race under his rule should be filled with the grace of the Christian faith of which he had had so wonderful an experience in overcoming the barbarians. So he sent to the Irish elders among whom he and his thegns had received the sacrament of baptism when he was an exile.76

The missionary whom the Irish sent was Bishop Aidan, a man whom Bede cannot find great fault—other than, “as we have very often mentioned, he was accustomed to celebrate Easter

Sunday” on the wrong day.77 And while Bishop Aidan himself was successful, he was not the only one to travel to England to preach. Instead, “from that time…many came from the country of the Irish into Britain and to those English kingdoms over which Oswald reigned, preaching the word of the faith with great devotion.”78 Many of the English kingdoms, including the most powerful at the time, Mercia, were converted by Irish missionaries and established Irish bishops.79 Others, such as the West Saxons, were converted by Roman Christians, although not by members of the Augustinian mission.80 The Irish had an enormous impact on England, including on Bede’s Northumbria. Writes Claire Stancliffe, “in this way, a close religious and cultural relationship developed between the English and the Irish, to such an extent that mid- seventh-century Northumbria has been termed ‘a cultural province of Ireland.’”81

Despite Bede highlighting the Augustinian mission as the root for Anglo-Saxon

Christianity, his emphasis does not match the details he himself provides. Bede argues that

75 Ibid., ii.19, 103. 76 Ibid., iii.3, 113. 77 Ibid., iii.3, 113. 78 Ibid., iii.3, 114. 79 Ibid., iii.21, 144-5. 80 Ibid., iii.7, 119-121. 81 Stancliffe, “British and Irish contexts,” 71. 31 agents from that mission were responsible for the conversion of Kent and Northumbria. Yet according to Bede’s own telling, Kent lapsed into paganism shortly after conversion, and the

Northumbrian King Oswald invited Irish missionaries into his kingdom thirty years before the

Synod of Whitby, at which time Anglo-Saxon Christians officially adhered to the Roman tradition.82

As with his depiction of the British, Bede’s specific details are mainly the truth as he knows it. He either does so because he lacks the ability to effectively spin his sources, or because he truly is concerned with relaying history accurately.83 Instead of misleading his readers in that sense, Bede uses differing emphases and overarching narrative voice in order to highlight the aspects of his ecclesiastical history that he wants salient, such as the Roman origins of Anglo-

Saxon Christianity, while speaking as little as possible about that which muddies his story, such as the existence of British Christians or the impact of Irish missionaries.

These differing emphases lead Bede to simultaneously note that Irish figures like Aidan were crucial in converting much of Anglo-Saxon England while undercutting the righteousness of Irish Christianity as a whole. Bede’s disapproval of the Irish missions stems both from their different religious calendar and their success in converting Anglo-Saxons.84 When ending his discussion of Aidan, Bede admits that

82 The scholarly view, mostly setting Bede’s narrative aside, is indeed that the Irish were instrumental in converting Northumbria itself. Writes Stancliffe on page 78, “whatever role the Britons and Paulinus’s mission may have played, those primarily responsible for the conversion of Northumbria were the Irish.” 83 It is likely, Michael Herren argues in “The Papal Letters to the Irish Cited by Bede: How Did He Get Them?” that many of Bede’s paraphrased letters from Pope Honorius came from the Irish, a source that Bede does not acknowledge. As argued above, the fact that many of Bede’s sources for Irish missionaries came from Ireland may color Bede’s depiction of the Irish, further adding to his nuanced, sometimes two-sided characterizations. 84 A fascinating argument made by John Moorhead in his “Bede on the Papacy” posits that Bede was almost entirely ignorant of the doctrine of the papacy, in contrast to many contemporaneous figures. Bede, because he was an admirer of Rome, therefore seizes on aspects of Roman Christianity that he understands, such as the correct date of Easter, while missing the nuances of other aspects of Roman Christianity, such as the importance of St. Peter. This argument would cast Bede’s consistent criticism of Irish and British Christians 32

I have written these things about the character and work of Aidan, not by any means commending or praising his lack of knowledge in the matter of the observance of Easter; indeed I heartily detest it, as I have clearly shown in the book which I wrote called De Temporibus, but as a truthful historian…I neither praise nor approve of him in so far as he did not observe Easter at the proper time, either because he was ignorant of the canonical time or because, if he knew it, he was compelled by the force of public opinion not to follow it.85

Where the Irish and the British differ from the papacy is where Bede “detest[s]” them. His protestations of being a “truthful historian” aside, his disapproval of the Irish missionaries and

British Christians leads him to downplay their role in the conversion of Anglo-Saxons. First, he ignores the existence and persistence of British Christianity unless absolutely necessary, when ignoring it would interfere with his story about the Augustinian mission. Next, he describes the

Augustinian mission as more successful than it actually was. Finally, even when the Irish clearly are instrumental in converting Anglo-Saxons and are invited by an Anglo-Saxon king, Bede frames their mission with distaste and again devotes only what is absolutely necessary to describing their exploits.

The Conversion of King Æthelberht

Bede’s Roman-focused agenda has colored his depiction of the Augustinian mission, both in Kent and throughout Anglo-Saxon England. Bede appears to work through emphasis rather than outright suppression: He consistently deemphasizes British Christianity and Irish missions while emphasizing the importance of the Augustinian mission, despite its dubious lasting impact.

This framing also affects how Bede uses his evidence. Bede’s sources for the Augustinian

for their wrong date of Easter in a different light—he would use that argument as a proxy for other differences between the sects, rather than actually engage with differences he does not understand. See Moorhead, "Bede on the Papacy," The Journal of Ecclesiastical History 60 (2009): 217-232. 85 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, iii.17, 137. 33 mission are bare and contradictory, and Bede makes claims about the mission that his evidence does not support.

The section of the HE that covers Kent and the history of Æthelberht is weak compared to the rest of the HE. For the pre-Augustinian history of Christianity in England, Bede has mostly second-hand information. He relies heavily on early chroniclers such as Orosius, a fifth century

European historian; and Gildas, a sixth century British monk, among other anonymous hagiographers. Bede paraphrases their works, but does not significantly add to the record himself. For long stretches of Book I, one is reading Bede’s interpretation of earlier chroniclers rather than anything novel. Bede does not appear to know anything aside from the sources that he leans on, and makes no claims, including false ones, that are not backed up by an earlier primary source.

After the Augustinian mission, particularly in Books III to V, when Bede discusses events in his home kingdom of Northumbria or in living memory, Bede appears to rely far less on primary documents, and does not quote them nearly as extensively. As Bede writes in his preface, “I have learned [about Northumbria] not from any one source, but from the faithful testimony of innumerable witnesses, who either knew or remembered these things.”86 Bede therefore details events in exquisite, lifelike detail. A representative example is his discussion of the Synod of Whitby, the fateful meeting at which King Oswiu of Northumbria eventually decreed that his kingdom should follow the Roman customs for Christianity. Bede relays several pages of quoted dialogue between the king and various priests and bishops, seemingly knowing the details of exactly who spoke and when:

The king ordered Agilbert to expound the method he observed, its origin and the authority he had for following it. Agilbert answered, “I request that my disciple, the priest Wilfrid, may speak on my behalf, for we are both in agreement with the

86 Ibid., preface, 5. 34

other followers of our church tradition who are here present; and he can explain our views in the English tongue better and more clearly than I can through an interpreter.” Then Wilfrid, receiving instructions from the king to speak, began thus: “The Easter we keep…” …Thereupon the king concluded, “then, I tell you since he is the doorkeeper I will not contradict him; but I intend to obey his commands in everything to the best of my knowledge and ability, otherwise when I come to the gates of heaven, there may be no one to open them because the one who on your own showing holds the keys has turned his back on me.” When the king had spoken, all who were seated there or standing by, both high and low, signified their assent, gave up their imperfect rules, and readily accepted in their place those which they recognized to be better.87

In this passage, Bede cites no sources, but none are necessary. Bede’s knowledge of the synod is comprehensive. He knows who spoke first, what they said, the scripture they quoted, why certain people spoke and others did not, the metaphors and imagery employed, and even the general layout of the place in which they conferred. This passage is not anomalous for the HE. Whether

Bede describes miracles or more banal ecclesiastical events, he uses similar levels of detail, even without the benefit of named sources.

Compared to Bede’s treatment of events in Books III-V of the HE, Bede’s evidence for and treatment of Kent in Books I and II stands out. Unlike for Northumbria, Bede does not rely on “innumerable witnesses.” Instead, he relies on the documents sent by a certain abbot, Albinus, who passed along whatever

seemed worth remembering through Nothelm, a godly priest of the Church in London, either in writing or by word of mouth. Afterwards Nothelm went to Rome and got permission from the present Pope Gregory to search through the archives of the holy Roman church and there found some letters of St. Gregory and of other popes.88

Bede appears proud about such an arrangement. He credits Albinus as his “principal authority and helper” in the HE, explains that some of his information on the East and West Saxons, as well as East Anglia and Northumbria, comes from Albinus and Nothelm’s help, and says that “in

87 Ibid., iii.25, 155-59. 88 Ibid., preface, 3-4. 35 short, it was chiefly through the encouragement of Albinus that I ventured to undertake this work.”89 Bede portrays his source material for Northumbria almost as an afterthought in the same preface, providing only the single sentence quoted above. Bede does not elaborate on his source material for any other event in the preface, indicating that, in Bede’s eyes, the history of

Kent is given special attention in the HE.

It is surprising that Bede seems proud of his arrangement with Albinus and Nothelm, especially given that the evidence they provide is correspondingly weaker than for the

Northumbrian histories. Bede does not rely on many witnesses to corroborate a story, or carefully adhere to past chroniclers where Kent is concerned. Rather, he uses the “word of mouth” that “seemed worth remembering” or whatever documents an intermediary could find that might be useful. Regardless of what documents Nothelm may have found, it seems likely that Bede’s evidence for early seventh century Kent would be thinner than that of the eighth century Northumbria of his own time.

When comparing Bede’s Kentish narrative with the above passage about the Synod of

Whitby, it appears that Bede has a murkier view of Kent and knows few specifics. Bede uses what little evidence he does have to string together a generic tale of conversion that follows all the themes he relies on throughout the HE: a semi-biblical tale showing that the basis of Anglo-

Saxon Christianity is Roman Christianity, not British, Irish, or any other sort.

At first, Bede does not actually use the documents he proudly received. Instead, he weaves a narrative out of whole cloth. Bede portrays Æthelberht as “a very powerful monarch,” the perfect target for the Augustinian mission.90 Upon hearing about “the best of news, namely

89 Ibid., preface, 4. 90 Bede would have known that Æthelberht was a powerful monarch simply from extrapolation. See Shaw, Bede’s Narrative, 54. 36 the sure and certain promise of eternal joys in heaven and an endless kingdom with the living and true God to those who received it,” Æthelberht requires time to think through the missionaries’ proposals.91 He then meets with the missionaries “[taking] care that they should not meet in any building for he held the traditional superstition that, if they practiced any magic art, they might deceive him and get the better of him.”92 Luckily, the missionaries “came endowed with divine not devilish power.” At first, Æthelberht is interested, but unconvinced, saying “the words and promises you bring are fair enough, but because they are new to us and doubtful, I cannot consent to accept them and forsake those beliefs which I and the whole English race have held for so long.” Thankfully, Æthelberht is convinced enough to give the missionaries a dwelling in Canterbury, where they “[performed] many”—but unspecified—“miracles,” such that eventually Æthelberht cannot hold out and “at last…believed and was baptized.”93

This conversion hit all the notes of a generic conversion, with none of the specificity that would demonstrate that Bede has any real knowledge. The miracles Augustine and his missionaries perform are mentioned, but not described. No conversation between Augustine and

Æthelberht is ever relayed in any detail, in contrast to Bede’s treatment of key conversions elsewhere in the HE, such as the Synod of Whitby. Moreover, every detail that Bede does include fits his motives for writing the HE. Each detail, in some way, strengthens Bede’s argument that Anglo-Saxon Christianity is a Roman phenomenon, and no other form of

Christianity that existed in England at the time was important to the story. Bede portrays

Æthelberht as the archetype of a good pagan man. Æthelberht is not evil; he simply has no

91 Ibid., 75. This sentence is “very likely to be merely Bede’s rhetoric. For much of this section therefore there is no need to presume a source beyond Bede’s ability to fill in the gaps…” 92 Ibid., 81. This sentence is perhaps the only colorful detail in the entire conversion narrative. It is, however, obviously anachronistic, argues Shaw. 93 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.25-26, 39-41. 37 knowledge of Christianity— “the words and promises” of salvation are “new to” himself and his subjects. Eventually, since Æthelberht is a good man, he is won over by their miracles and the obvious truth of their promises. Bede also uses this account to implicitly undercut British

Christianity’s importance. He quotes Æthelberht saying that he had trouble “forsak[ing] those beliefs which [he] and the whole English race have held for so long.” Throughout the early account of Æthelberht’s conversion, Bede shows no indication that he knows anything specific beyond the fact that Æthelberht must have converted to Christianity, and instead uses what little he knows to write a generic conversion story that fits his own narratives. This generic story runs against what other evidence we have about how events proceeded. Shaw notes that letters between Gregory and Augustine indicate that Æthelberht himself requested the mission.94

Moreover, Pope Gregory wrote to Bertha, Æthelberht’s Frankish Christian wife, shortly after

Augustine arrived, imploring her to “infuse into [Æthelberht] increase of love for God, and so kindle his heart even for the fullest conversion of the nation subject to him that both he may offer, out of the zeal of your devotion, a great sacrifice to the Almighty Lord…”95 This letter is absent from Bede’s narrative.

What few evidentiary details Bede does provide also undercut his own narrative.

Æthelberht was surprised to hear about the “sure and certain promises of eternal joys in heaven” that conversion promised, except that according to Bede, Bertha, a Frankish royal, was already

Christian. And not only had Æthelberht apparently promised her family that she could practice

Christianity, but she had brought with her to Kent her own bishop. She even prayed in a still-

94 Shaw, Bede’s Narrative, 81. 95 Barmby, James, Gregory the Great, “Registrum Epistolarum: Book XI, Letter 29.” From Nicene and Post- Nicene Fathers, Second Series, Vol. 13. Edited by Philip Schaff and Henry Wace, translated by James Barmby. Buffalo, NY.: Christian Literature Publishing Co., 1898. Revised and edited for New Advent by Kevin Knight. . Bede does not cite this letter, although it is likely that he had it in his possession. 38 standing church, a church which the Augustinian mission eventually coopted for their own use.

Given that this church’s continued existence provides oblique evidence that British Christians not only continued to exist, but practiced in close proximity to Anglo-Saxons and were on well enough terms to allow an Anglo-Saxon queen to practice there, Bede seems to be vastly minimizing a number of different avenues through which Æthelberht could have become meaningfully aware of Christianity. Æthelberht was therefore anything but unaware of the promises of Christianity at the time of the Augustinian mission. Bede admits that Æthelberht had

“some knowledge” of Christianity, but then portrays him as being entirely ignorant. Given

Æthelberht’s willingness to marry a practicing Christian, it is even possible that the conversion of Æthelberht had begun by the time of the Augustinian mission. In this scenario, the

Augustinian mission could be explained as a competition between Frankish and Roman

Christians for the outpost of England. That state of affairs is certainly more credible than the idea that the king was functionally ignorant of Christianity.96 But although Bede must know these facts about Æthelberht to be true and dutifully includes them, he gives them no weight to his narrative arcs since they run against his overarching motivations. They are, to Bede, almost extraneous.

When Bede does use either the documents his intermediaries received for him or other documents relating to the Augustinian mission, they also do not line up with the narrative he has concocted. Rather than corroborating Bede’s account, they are at best tangential, and at worse contradictory. Bede quotes a letter from Pope Gregory to King Æthelberht after Æthelberht’s conversion, in which Gregory exhorts Æthelberht to convert his subjects and “suppress the worship of idols.”97 He also promises that “when the Christian faith increases in your kingdom,

96 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.25, 39. 97 Ibid., i.32, 58-60. 39 our discourses to you will become more abundant.”98 In fact, according to Bede, Eorcenberht

“was the first English king to order idols to be abandoned and destroyed throughout the whole kingdom.”99 And Bede never mentions any further correspondence of any sort between

Æthelberht and Gregory, despite continuing to depict Æthelberht as a monarch doing all he could to spread Christianity among his subjects. Evidently, the Christian faith did not increase in

Æthelberht’s kingdom even during his life, a thorny fact that Bede refuses to acknowledge.

More famously, Bede quotes a question-and-answer text—probably a compiled and edited version of a series of letters—between Augustine and Pope Gregory after Æthelberht’s conversion.100 Augustine asks Gregory nine questions, variously pondering how bishops ought to act in their communities, what degree of kinship between prospective partners might constitute incest, how to make reparations for theft from churches, how Roman bishops should deal with

Frankish or British bishops, and whether pregnant women should be baptized.101

Despite Bede devoting significant space to relaying these questions and answers, they seem incidental to the rest of his narrative. Only one question— “I beg you to tell me how one who robs a church should be punished?” —receives any further mention by Bede. He seems to harken back to it when he writes that “among these [laws of Æthelberht] he set down first of all what restitution must be made by anyone who steals anything belonging to the church or the

98 Ibid., i.32, 60. 99 Ibid., iii.8, 122. More discussion of Eorcenberht can be found in Chapters 2 and 3 of this thesis. 100 Paul Meyvaert, “Bede’s Text of the Libellus Responsionum of Gregory the Great to Augustine of Canterbury,” in England before the Conquest: Studies in Primary Sources Presented to Dorothy Whitelock, edited by Peter Clemoes and Kathleen Hughes. Cambridge: Cambridge University Press, 1971, 15-33. A school of thought posits that the question-and-answer text is a forgery, and some scholars even posit that Nothelm himself was the forger. See Michael D. Elliot, “Boniface, Incest and the Earliest Extant Version of Pope Gregory I’s Libellus responsionum (JE 1843),” and Meyvaert above. Recent scholarship, however, indicates that the text is authentic, albeit heavily edited and adulterated. We have no way of knowing what has been done to the document, and for what purpose, but we must assume that it has been altered. Meyvaert demonstrates that these texts are not among the documents procured by Nothelm for Bede in 731, since they were circulating widely, and Bede had possession of them at least a decade before writing the HE. 101 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.27, 43. 40 bishop or any other clergy.”102 In fact, Gregory’s response to this question and the laws enshrined in ÆC that deal with these provisions are fundamentally at odds.103 Bede should have noticed this disparity, given that he seemingly had access to both ÆC and the question-and- answer text, but if he did notice, he does not mention it.104 Of the other questions, none are ever mentioned in Bede’s narrative account again. These questions were ostensibly vital to the history of the Augustinian mission, but there is no evidence whatsoever in the HE that these exchanges ended up changing anything about Anglo-Saxon society. On the contrary, the disparity between

Gregory’s answers and the corresponding laws in ÆC is even some evidence that these exchanges may have ultimately mattered little.

It is clear that neither the documents that Nothelm and Albinus retrieved for Bede nor the question-and-answer text have much bearing on his narrative arc. Although Bede quotes documents at length, the documents tend not to affect his overall characterization of how events occurred. After quoting the correspondence between Gregory and Augustine, Bede merely comments, “such were the answers of the blessed Pope Gregory to the questions of the most reverend Bishop Augustine.”105 After quoting the letter between Gregory and Æthelberht, Bede comments nothing at all, and never references any of the substance of the letter. The effect is that

Bede appears to be attempting to write a document-based history of Kent, but does not have

102 Ibid., ii.5, 78. 103 See Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.27, 43; and “ÆC,” §1, in Oliver, Beginnings of English Law, 61. Although Gregory appears to forbid the church making a profit from punishing robbery, ÆC imposes a heavy composition. 104 If Bede’s knowledge of ÆC comes from the “word of mouth” he mentions in his preface, then Bede’s mistake could be excused. In this case, of course, Bede would therefore not be a reliable source to describe ÆC since his knowledge of its existence is entirely via word of mouth and he has not actually seen the document itself. This is a rather different route to the conclusion of this chapter—Bede is not trustworthy enough for his description of ÆC to be considered “explicit evidence”—but it is certainly a viable one. 105 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.28, 54. 41 sources that say what he wants them to say. He quotes documents at length, but the additive effect of those documents is always frustratingly parallel to the narrative he is trying to construct.

Given the lack of relevant documents, the mischaracterization of the documents that are employed, and other details that Bede provides, the generic conversion narrative for Æthelberht, and Bede’s known agendas in writing the HE, it is clear that scholars should not view Bede’s evidence for the Kentish mission wholly credulously. His statements about Æthelberht, his conversion, or his law code, must therefore be viewed carefully. It seems that Bede, regardless of his skill as a historian, does not have enough evidence to make the claims about Æthelberht that he does.

The Letters of Saint Boniface

It would be easy to write off Bede’s misrepresentation of Æthelberht’s conversion as the dual result of his agenda and a broader dearth of evidence. But those two factors are not enough to explain why Bede uses the question-and-answer text of Pope Gregory and Augustine. It does not advance Bede’s thesis, aside from providing evidence for communication between the mission and Rome—something already known, given that Pope Gregory, bishop of Rome, sent

Augustine to Kent. Bede certainly could be using every scrap of documentation relating to the

Augustinian mission that he could find in order to represent himself as having deep knowledge of Kent. It is best, however, to explore other explanations as to why Bede uses these letters.

Turning to one of the only other voices from this period, Saint Boniface, one finds eerie similarities between his priorities and Bede’s. Although Boniface, a renowned missionary, mostly practiced on the Continent, he was an Anglo-Saxon from Wessex, and a contemporary of 42

Bede.106 Boniface and Bede were aware of each other, although Bede, curiously, does not mention Boniface in the HE.107 In 735, four years after Bede finished the HE, and before

Boniface had received word that it existed, Boniface wrote to the Archbishop of Canterbury, a position now held by Nothelm. He asked for

a copy of the letter containing, it is said, the questions of Augustine…and the replies of the sainted Pope Gregory. In this writing it is stated, among other things, that marriages between Christians related in the third degree are lawful.108 Now will you cause an inquiry to be made with the most scrupulous care whether or not that document has been proved to be by the aforenamed father, Saint Gregory.109

This passage is remarkable. Boniface is aware of the gist of what the text says, if not the actual contents themselves. But he also doubts their veracity, since they seem to condone incest.

Boniface was unable to find the letters in the archives of Rome, and believes that they can be found in Kent, but he is also asking the Archbishop to ensure that they are not forgeries.

Boniface’s request for “an inquiry,” and the fact that he believes that these letters can be found in Kent—and not in Rome—suggests that Boniface, at least, believes that Kent itself was involved in the safekeeping of the question-and-answer text.110 Boniface, in the same letter, also finishes by writing that “I beg also that you will let me know in what year of the Incarnation of

Christ the first missionaries sent by Saint Gregory to the English people arrived.”111 Once again,

Boniface mirrors Bede in believing that the Augustinian mission had some importance to Anglo-

106 Thomas F.X. Noble, “Introduction,” in Ephraim Emerton, Boniface, The Letters of Saint Boniface. Translated by Ephraim Emerton. New York: Columbia University Press, 2000, ix. 107 Bede does refer to a close relationship between himself and Boniface’s patron, making Boniface’s omission from the text of Bede even more strange. 108 This is indeed stated in Gregory’s response to question 5, which I did not include above. 109 Emerton, Boniface, The Letters of Saint Boniface, 40. 110 In this respect, Boniface is likely right that Canterbury has these letters, but is wrong that Kentish figures are the only ones who do. The question-and-answer text circulated widely, according to Meyvaert, and likely originated in its form on the Continent itself. Therefore, while figures in Canterbury could be using the document for propagandist purposes, it is not their argument alone. See Meyvaert, “Bede’s Text of the Libellus Responsionum of Gregory the Great to Augustine of Canterbury,” 15-33. 111 Emerton, Boniface, The Letters of Saint Boniface, 41. 43

Saxon Christianity; again, Boniface believes that the answers to his questions about the

Augustinian mission can be found in Kent, not Rome. Boniface was not aware of the HE at the time of his letter to Kent. He and Bede therefore independently believe that the question-and- answer text—and by proxy, the Augustinian mission in general—is important.

The similarities between Boniface’s and Bede’s beliefs contextualize Bede’s arguments.

Bede has his specific motivations and evidentiary difficulties, but there appears to be more going on than that. Bede and Boniface are two of the only sources from the period, and each seem to be fixated not only on the Augustinian mission, but on the same specific aspects of it. Judging by

Boniface’s incredulity about the legitimacy of the question-and-answer text, it appears that

Kentish clergymen might be making the same case as Bede and Boniface. Indeed, it is even possible that they are the ones making the argument in the first place. Although the question-and- answer text did not originate in Kent itself, there are indications that Kentish clergymen used it for their purposes in the decades preceding Bede’s and Boniface’s scholarship. Bede may not have received the text directly from Nothelm, but “the text [closest to Bede’s own] is found in the copies…that accompany the penitential collection of [Archbishop] Theodore of Canterbury

[who died in 690], and may represent a revision done at Canterbury itself.”112 Even though Bede likely did not receive the text from Nothelm, that his copy came from Canterbury at all implies that Kentish clergymen were using the text for their own purposes. Notes Shaw,

The evidence suggests, fairly clearly, that by at least the eighth century, Canterbury was passing off older or older-looking items as genuine relics of the original Augustinian mission. Bede’s statement [about items sent by Gregory] therefore is evidence for contemporary Canterbury claims, not for the actual items brought by the ‘mission fathers’.113

112 Meyvaert, “Bede’s Text of the Libellus Responsionum,” 26. 113 Shaw, Bede’s Narrative, 116. 44

These “older-looking items” included various texts that were “furnished with a more venerable ancestry than they in fact had,” such as an Italian Gospel book known as the “Augustine

Gospels.”114 Like the question-and-answer text, the “Augustine Gospels” also had a Continental

(and in fact, probably an Italian) origin, but was coopted by figures in Canterbury for their promotion of the Augustinian mission. This evidence, combined with Bede and Boniface echoing each other’s perspectives, indicates that Bede likely was not the locus of the HE’s outsized attention on the Augustinian mission. Instead, it appears that Canterbury was.

ÆC

Bede’s agenda, which colors his description of the Augustinian mission, conversion of

Æthelberht, and the enshrinement of ÆC, does not seem unique to Bede himself. Boniface echoes it; Kentish figures appear to be the ones promoting it. If Kentish clergymen are the ones who are first making an argument for the importance of the Augustinian mission, and are advertising certain documents as authentic relics that are inauthentic, and figures like Bede and

Boniface do not seem entirely able to discern what is and is not authentic, then Bede’s evidence for Kent is called into question.

Consider again Bede’s description of ÆC—the “only explicit evidence that Æthelberht did issue the code ascribed to him.” Æthelberht, according to Bede via his sources in Kent,

“established with the advice of his counsellors a code of laws after the Roman manner. These are written in English and are still kept and observed by the people.”

Scholars have puzzled over the phrase “after the Roman manner.”115 Nothing about ÆC takes after the Roman manner in any significant way. It is the first Germanic law code to be

114 Ibid. This book has a sixth-century origin in Italy; it is not Augustine’s. 115 See Wormald in The Making of English Law, 98; and Oliver in The Beginnings of English Law, 18. 45 written in vernacular rather than Latin; “after the Roman manner” is practically the opposite of what ÆC actually is. Wormald has argued that “Roman” actually referred to “German” and the code is similar to some North German codes.116 The answer is likely much simpler. Either the

Kentish clergymen who showed Nothelm ÆC—or Bede, mirroring a Kentish argument—meant to link ÆC to Rome as a way to indicate that Anglo-Saxon Christianity has Roman Christian roots.

Bede writes that ÆC is apparently “still kept and observed by the people.” There is no reason why ÆC should have been. Christianity lapsed after Æthelberht’s death, to the point that even after conversion, Eadbald could not reinstitute the Archbishop of Canterbury. There was also an interregnum of archbishops in the 660s. Although Archbishop Deusdedit died in 664, his successor, Archbishop Theodore, who was sent directly from Rome, only arrived in 669. At the same time, there was no bishop at Rochester, nor abbots of the monastery of Saints Peter and

Paul, the other important ecclesiastical seats in Kent at the time. There is also evidence for political disruption. Bede writes that Eorcenberht died on the same date as Deusdedit, and his son and successor, Egbert, was likely a young child at the time.117 All this indicates that for several years, there was no Christian authority in Kent, and likely little political authority, which may have had a severe effect on the preservation of older sources.118 Even after Christianity returned to Kent with the accession of Archbishop Theodore, political disruption continued.

Upon Eadric’s death in 686, “various usurpers or foreign kings plundered the kingdom” of Kent.

116 Wormald, The Making of English Law, 98. 117 Shaw, Bede’s Narrative, 308-311. 118 Ibid., 312. This would also, obviously, have serious ramifications for any of Bede’s evidence for the Augustinian mission. It is likely one major reason why Bede’s evidence is so bare and generic. 46

Not until around 690 did “Wihtred, son of Egbert, [establish] himself on the throne and [free] the nation from invasion by his devotion and zeal” and Kent fully stabilize.119

Even if the Kentish are supposed to have continued to observe ÆC through numerous invasions and waxing and waning Christian observance and political authority, several Kentish kings—Hlothere and Eadric, Wihtred, and possibly Eorcenberht—all issued law codes before the time of the HE. 120 years had passed since the supposed enshrinement of ÆC and Bede’s writing. And ÆC supposedly was issued in a time when Kent was still mostly pagan, or only very recently converted. The Kent of 731 was solidly Christian. If ÆC was current and practiced among the Kentish people, then this evidence indicates that ÆC, whether authentic or inauthentic, was part of Kent’s emphasis of their early Christian roots, along with the question- and-answer text, “Augustine’s Gospels,” and other sundry documents and items.

And it is almost certain that Bede does know at least some of the contents of ÆC, indicating that it really was current in 731. Bede accurately states the first restitutions of the code that we know as Æthelberht’s; that is why the HE is seen as explicit evidence of ÆC’s origins in the first place. And ÆC is, in fact, the only law code that Bede discusses in the entire HE. For

Eorcenberht, for instance, whom historians believe to have issued his own law code, Bede discusses his orders, royal authority, and prescriptions, but does not mention any law code.120 For kings like Hlothere and Eadric, whom historians know issued a law code, Bede barely mentions the kings themselves, let alone their legal production.121 If ÆC is the only law code that Bede mentions in the HE, and if he bases his history of Kent at least somewhat on the documents that

Nothelm procured for him, then it seems clear that ÆC is among the documents that Nothelm

119 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, iv.26, 222-23. 120 Oliver, The Beginnings of English Law, 119. Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, iii.8, 54. 121 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, iv.5, 183; iv.26, 222. 47 received, or at least was made to be familiar with through word of mouth. Bede would therefore describe it apparently accurately in the HE.

The problem in attribution arises when all the confounding factors previously discussed are considered. Bede’s narrative for the Augustinian mission is simply weaker than the rest of the

HE. Bede believes that Anglo-Saxon Christianity has Rome to thank rather than Ireland or

Britain. He therefore minimizes the impact of British Christians throughout the HE and takes a nuanced, but not necessarily positive, position toward Irish missionaries. These shifting emphases indubitably color Bede’s depiction of the events surrounding Æthelberht’s conversion.

Moreover, even if Bede were to relay events exactly as he knew them, with an impossible standard of disinterest, he simply would not be able to do so. He does not have much primary evidence directly relating to the Augustinian mission, and compensates for this defect by citing primary document after primary document, none of which are important to the overall narrative.

Finally, his concordance with Boniface’s perspective, and the evidence that Kent is the source of the mystique around the Augustinian mission, indicates that even the sources Bede is receiving from his intermediary are politically motivated, and hence unlikely to be entirely accurate. All this indicates that the attribution for ÆC must be called into question.

Bede is not the correct figure to answer this question. Bede is Venerable, to be sure, but he is not Infallible. Bede’s motivations in writing the HE are too salient, his lack of evidence for

Æthelberht’s conversion too problematic, his distance from early seventh century Kent too far, both physically and temporally, for his word to be taken at face value. And this argument only takes into account the time from Æthelberht’s death in 616/8 to Bede’s writing in 731. ÆC survives only in a single manuscript in the 12th century, the Textus Roffensis. And the HE is one of the most widely read documents in all of England. It is entirely possible—perhaps even 48 plausible—that ÆC, its attribution to Æthelberht only referenced in its rubric, was edited in the

12th century to match Bede’s description of a lost law code. There is simply too little dispositive evidence in Bede’s account or, more generally, the wisdom of taking one person’s word as ironclad evidence, to believe that Bede is correct. Judging purely by Bede’s account and the context of the times, it actually seems more likely that ÆC is a product of the eighth century, not the seventh.

Bede must, therefore, be decentered from any discussion of ÆC’s correct attribution. His explicit evidence is not so convincing; relying on one strand of explicit evidence is not a wise choice.122 Instead, it is best to explore other avenues to examine ÆC’s legitimacy and attribution.

Examining the text of ÆC itself, and comparing it to other contemporary Germanic law codes, as well as the other Anglo-Saxon law codes in the Textus Roffensis, is an approach likely to yield a better understanding of how ÆC might have functioned, and in what time and context.

122 Bede, of course, remains a valuable voice for the period, and the field of Anglo-Saxon history is greatly indebted to his remarkable work. Regardless of his impact, however, scholars should always be wary of relying on a single source, no matter how blurry the picture is with its removal. Alternative means of corroborating a source should always be considered. This is all to say, from a merely philosophical standpoint, that the second chapter of this thesis should be written regardless of the existence of the first chapter. Even if Bede’s account were to be accepted as true, it is worth attempting to support it via other means. Wormald, to his credit, does just that, an argument that I will engage with in the third chapter of this thesis. 49

Chapter 2: Comparisons and Textual Analysis

Overview

Æthelberht’s eponymous law code takes part in a broader Germanic legal tradition.

Whether authentic or otherwise, the code’s style, at least, resembles those of the Germanic successor states to the Roman Empire, such as those produced by the Burgundians, Lombards,

Salian Franks, and other Anglo-Saxons. It also greatly resembles two other, later Kentish law codes. The aim of this chapter is to place ÆC in contemporary context and to explore its associations with other Germanic law codes of the early Medieval period, both on the Continent and within Kent itself.

Before proceeding, it is important to clear up certain misconceptions about these successor states, and the fall of the Roman Empire itself. After the fall of the Western Roman

Empire in 476, a number of transient kingdoms took its place. The Germanic tribes that comprised these successor states—the aforementioned Burgundians, Lombards, Franks, Anglo-

Saxons, as well as several others—have, in their time and presently, been characterized as

“barbarians.”123 Greek and Roman contemporaries viewed them as uncivilized and uneducable.

Said the famous Greek surgeon Galen, “I expect no more to have Germans among my readers than I would expect to have bears or wolves.”124 Their incursions into Roman territory, meanwhile, have been characterized as an invasion, an attempt by uncivilized savages to sack and destroy the civilized beacon of the West. In fact, barbarian culture was more or less indistinguishable from that of other provincial subjects of the Roman Empire—they were agrarian peasants with strong familial ties and weak forms of broad-scale authority. Their

123 Peter Brown, The Rise of Western Christendom: Triumph and Diversity, AD 200-1000, (Malden, Mass.: Blackwell, 1997), 12. 124 Ibid. 50 incursions into the Roman Empire do not represent a carefully plotted, multi-front invasion; rather, they represent “the controlled immigration of frightened agriculturalists” who had been

“subjected to Hunnish [truly nomadic raiders from the Steppe] raids,” “seeking to mingle with similar farmers south of the [Roman] border.” Perhaps nothing undercuts the popular conception of Germanic barbarians more than this charming example—when the Visigoths attempted to flee

Hunnish raids, they asked the Roman Empire for permission to relocate.125

Likewise, contrary to popular belief, although the Western Roman Empire is generally acknowledged to have collapsed in 476, its fall was not as clearly defined as the precise date suggests. The Empire declined in stages, over centuries, gradually waning in power and influence. By the early fifth century, in the words of one contemporary, the Empire was “now dead or at least drawing its last breath in that part of the world where it appears to be still alive.”126 And as Rome itself waned in power and influence for internal reasons, its frontier region waxed in the same. Germanic culture, traditions, and norms intermingled with provincial

Roman culture, traditions, and norms, creating a Romano-Germanic amalgam culture, one which gradually expanded outward to encompass nearly all of what had been the Western Roman

Empire.127 Another fifth century contemporary was correct in stating that “the destiny of Europe belongs to the Teutonic tribes,” but post-Roman Europe was not a purely Germanic culture.128

Instead, although the various successor states were populated and quasi-governed by Germans, aspects of those states were unmistakably Roman: namely, that their religion gradually came to be Christianity; and that, like Romans, they issued their own law codes.

125 Ibid. Although “barbarian” was a pejorative among Greeks and Romans, it is no longer considered so. I mostly use “Germanic” rather than “barbarian,” but use the two terms interchangeably. 126 Peter Brown, Through the Eye of the Needle: Wealth, the Fall of Rome, and the Making of Christianity in the West, 350-550 AD, (Princeton, N.J.: Princeton University Press, 2012), 435. 127 Brown, The Rise of Western Christendom, 16. 128 Brown, Through the Eye of the Needle, 434. 51

The Romano-Germanic amalgam culture is evident in the layout and creation of barbarian law codes. Although Roman conceptions of justice were territorial—i.e. anyone in

Roman territory was subject to Roman laws—barbarian law was generally personal—i.e.

Germans were subject to differing laws and restitutions than Romans.129 Barbarian law codes were often chaotic and disorganized codes that attempted to reconcile Roman vulgar law with long-held Germanic customs, apply similar legal frameworks to differing people, and enshrine the restitutions for various specific cases that arose during a certain king’s reign.130 Although

Roman influence was slightly greater in the regions closer to Italy, most barbarian states had similar mixes of Roman and Germanic cultural fusion and were therefore highly comparable.131

And each state had at least some interaction with the Romans, be they as far north as the Anglo-

Saxons, or as far south as the Vandals. Each state, however, had significant differences from the others. Their shared legal framework, and similarities between their various law codes, remain one of the only sources that suggest an overarching similarity of culture among the various barbarian groups to establish the successor states.

Although the Roman Empire was either declining or collapsed at the time that these various kingdoms were writing their law codes, its example was still obvious and, although inimitable, certainly not beyond attempt to imitate. Kings therefore issued their law codes not merely to govern their newly established states, but to legitimize their states in the eyes of their contemporaries.132 These kings were likely attempting to show themselves as the rightful and

129 Katherine Fischer Drew, The Burgundian Code: Book of Constitutions or Law of Gundobad-Additional Enactments. Trans. by Katherine Fischer Drew, Philadelphia: University of Pennsylvania Press, 1972, 4. 130 Katherine Fischer Drew, Lombard Laws. Trans. by Katherine Fischer Drew, Philadelphia: University of Pennsylvania Press, 1973, 2. 131 Ibid, 6. 132 Katherine Fischer Drew, The Laws of the Salian Franks. Trans. by Katherine Fischer Drew, Philadelphia: University of Pennsylvania Press, 1991, 8. 52 worthy successors of the Roman Empire, and therefore deserving of the same respect. Indeed, these law codes were almost exclusively written not in vernacular, but in Latin.133

These law codes were far from rare or localized issuances. All over Europe, from just around the official collapse of the Roman Empire and after, barbarian kings enshrined their laws.

The Visigoths, who controlled much of Spain, were likely the first to issue their own laws, in about 481. The Burgundians, who controlled a region of what would become France and

Switzerland in the fifth and early sixth century, issued their own law code, the Burgundian

Code.134 The Lombards, who ruled most of the Italian peninsula from the mid-sixth to late-eighth century, first issued their own laws, the Lombard Laws, in the mid-seventh century.135 The

Salian Franks, who ruled over much of France and Germany from the late fifth century onward, first issued their own Salic Law in the early sixth century. Two other barbarian peoples, the

African Vandals and Italian Ostrogoths, likely also participated in legislative activity just after the fall of the Roman Empire, but their law books have not survived.136 Finally, the Anglo-

Saxons, who had settled in Britain sometime between the mid-fifth and mid-sixth century, issued their own law codes. ÆC is understood to be the first Anglo-Saxon law code to be written down, allegedly established by Æthelberht sometime before his death in 616/8. In this case, since

England had much less Roman influence than the Continent, the Anglo-Saxons had no need to issue laws for their Roman population, and therefore issued their laws in the Old English vernacular, rather than the standard Latin for other Germanic peoples.

133 With ÆC, Hlothere and Eadric’s code, and Wihtred’s code as important exceptions. See below for further discussion. 134 Fischer Drew, Burgundian Code, 1-3. 135 Fischer Drew, Lombard Laws, xix. 136 Fischer Drew, Laws of the Salian Franks, 25. 53

Across the Germanic tribes, throughout Europe, whether written in the fifth century or the eighth, the format of these law codes and the culture they preserve is broadly similar. While the specifics of each code vary greatly, all were concerned with matters including murder, land inheritance, offenses committed by slaves, offenses involving animals, and swearing oaths on accused men’s behalf.137 Each law details some sort of offense, usually involving theft, injury, murder, or familial mistreatment, and then decrees a certain fine, called a composition, paid in some cases to the victim, in others to the king, as remedy. These compositions were almost always in the form of some amount of Roman currency, the solidus. The maximum fine was generally the wergild, with various permutations of murder sometimes resulting in a fine of some multiple of the wergild.138 Kings in this period were generally rather impotent, unable to project nearly as much authority as modern states. The main form of conflict resolution was therefore feuds between families within tribes. Feuding was likely not considered a detriment to society, but rather a way of ensuring peace. Oral traditions or law codes likely provided an alternative to feuding. Instead of killing the family of the man who stole another’s cattle, one could pay with gold, silver, or some other form of restitution, satisfying both parties as an alternative to a drawn- out feud.139

These law codes tend to vary in length, but are often quite long. Rothair, King of the

Lombards, issued his own set of laws, Rothair’s Edict, that totaled 388 separate laws.140 Later

Lombard kings issued law codes updating Rothair’s Edict, some with as many as 153 separate

137 See “Rothair’s Edict,” §§1-388, in Fischer Drew, Lombard Laws, 53-130; “Salic Law,” §§I-LXXVII, in Fischer Drew, Laws of the Salian Franks, 59-167; “Burgundian Code,” §§I-CV, in Fischer Drew, Burgundian Code, 17-87. 138 “Salic Law,” §XLI, in Fischer Drew, Laws of the Salian Franks, 104-106. 139 See Gluckman, Max, The Peace in the Feud, Oxford: Oxford University Press, 1955, 1-14; Lambert, Tom, Law and Order in Anglo-Saxon England. Oxford: Oxford University Press, 2017, 1-52. 140 Fischer Drew, Lombard Laws, 53-130. 54 laws; others with as few as nine.141 The Burgundians issued one major law code with 105 separate laws.142 The Salian Franks’ law code, the Salic Law, totaled 133 separate laws.143 Many of these law codes contained multiple clauses within almost every law. §XXXVIII of the Salic

Law, “Concerning the Theft of Horses or Mares,” for example, contains 14 separate clauses with differing compositions:

1. He who steals a horse that pulls a cart… 2. He who steals a stallion… 3. He who steals a gelded horse… 4. He who steals a stallion belonging to the king… 5. He who steals a stallion with its herd—that is, between seven and twelve mares… 6. But if the herd was smaller—up to seven including the stallion… 7. He who steals a pregnant mare… 8. He who steals a one- or two-year old colt… 9. He who steals a foal… 10. He who drives off another man’s mare… 11. He who steals a horse or mare… 12. He who gelds another man’s stallion… 13. He who through arrogance or hate strikes or injures another man’s horses or mares… 14. He who cuts off the tail of another man’s horse without the consent of the owner…144

This level of specificity within each law was not unique to the Salic Law. The Burgundian Code frequently boasts laws with more than 10 clauses; almost all of Rothair’s Edicts are single-clause laws, but there are 388 of them. By modern standards, of course, these law codes are rough and disorganized, but in the context of their times, they were complex, extensive, and, if not entirely complete, at least preserving wide-ranging aspects of Germanic culture, ranging from beliefs about witchcraft to drowning, oath-bearing, honor, and familial ties.

141 See “The Laws of King Grimwald”; “The Laws of King Liutprand”; “The Laws of King Ratchis”; and “The Laws of King Aistulf,” in Fischer Drew, Lombard Laws, 131-238. 142 “Burgundian Code,” §§I-CV, in Fischer Drew, Burgundian Code, 17-87. 143 “Salic Law,” §§I-CXXXIII, in Fischer Drew, Laws of the Salian Franks, 57-168. 144 Ibid., “Salic Law,” §XXXVIII, 99-101. 55

These codes are so wide-ranging and disorganized precisely because they represent the written instantiation of a broader oral or cultural tradition that is primarily not in writing. As such, many aspects of Germanic culture are touched upon, but careful organization or absolute comprehensiveness is all but impossible. And these codes preserve an essentially oral character of the law, even in written form. The Salic Law, for instance, envisions the importance in legal procedures of the rachimburgi—glorified judges who “speak the Salic Law” to those who bring cases.145 Law codes ostensibly issued later than ÆC in Kent emphasize the importance of oath- helpers—people who could swear to the innocence and character of the accused, thereby clearing his name.146 Even in written Germanic law codes, therefore, one senses a broader culture, one that prized oral tradition.

Among this wide tradition of Germanic law codes, one stands in stark contrast to all others. ÆC is anomalous beyond merely the language in which it is written. Although many

Germanic law codes were rather short, those understood to have been the first of each tribe were generally much longer and wide-ranging. ÆC, however, is a law code of just 83 laws. Of those laws, just 21 have more than one clause, and just two have more than three clauses.147 While the other extant Germanic codes shed light on many different aspects of Germanic culture, ÆC is tightly focused, almost exclusively defined by setting compositions for personal injuries.

Whereas other law codes display evidence of pastoral concerns, some aspects of agrarian culture, and even nature impacting society, all those are absent from ÆC. Continental Germanic codes, as well as some later law codes of the Kentish tradition, do not mention Christianity explicitly.148

ÆC begins with seven laws detailing the expensive composition owed to various church figures.

145 Ibid., “Salic Law,” §LVII, 120-1. 146 Oliver, The Beginnings of English Law, 127. 147 Ibid., “ÆC,” §§1-83, 60-81. 148 Wihtred’s code is a notable exception, discussed at length below. 56

ÆC is neither late nor early in this period of Germanic successor states codifying their laws. And while Anglo-Saxon England was somewhat removed from Roman influence, they were certainly in continuous contact with both the continent and Rome itself from the late sixth century onward.149

ÆC, although contemporaneous with many other Germanic law codes, is an outlier. A comparison with Rothair’s Edict, the Salic Law, and the Burgundian Code makes this point especially clear. Like them, ÆC is the first law code of its Germanic people, the Kentish—yet its differences with these other first codes could hardly be greater. Further anomalies emerge upon a comparison of ÆC to the other Kentish codes in the Textus Roffensis—Hlothere and Eadric’s code as well as Wihtred’s code—and a study of the relationship among these later codes to the

Continental Germanic codes. Specifically, the codes of Hlothere and Eadric and Wihtred are more similar to Continental Germanic codes than is ÆC, while neither of those later codes seem aware of the existence of ÆC. Finally, closer study reveals many anomalies within the text of

ÆC itself, which are hard to reconcile with its purported establishment date before 616/8.

Together, this evidence suggests that ÆC in the form we have received it is not the product of

King Æthelberht of Kent and does not date from the early seventh century.

Comparison with Continental Law

As ÆC is part of the Germanic tradition, it is reasonable to compare it to the other

Germanic law codes of the period in order to determine points of agreement, disagreement, or areas where the laws are working at cross-purposes. These laws were composed at similar times, preserving a snapshot of similar cultures, and were presumably composed for the same dual

149 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.23, 37. 57 purpose of legitimating their respective kingdoms and serving as a reference for laws and cultural norms.150

Of the law codes issued in the successor states, the Salic Law is the most famous and provides the most apt comparison to ÆC. King Clovis likely issued the Salic Law between 507 and 511, 90 years before Æthelberht’s conversion to Christianity. Since the code was updated numerous times over the next two centuries, it must have been widely known and continuously used. As Katherine Fisher Drew states,

the issuance of the Pactus Legis Salicae [trans. The Compact of Salic Law] was an aspect of the new royal power that Clovis exercised as heir to Roman rule in northern Gaul. The writing may actually have been done by Roman scribes at the dictation of Roman personnel—but the authority of the Frankish king gave legitimacy to the code.151

The Salic Law therefore served both political and legal purposes. By issuing laws like a Roman emperor, Clovis showed himself to be a legitimate and powerful ruler, the “heir to Roman rule in northern Gaul.” The law code itself was probably not meant to be referenced whenever a dispute arose. The post-Roman world was rural and royal power weak.152 Law codes such as the Salic

Law were therefore not entirely usable, even though they did enshrine real Germanic concepts of justice, such as the wergild. The Salic Law—and other contemporaneous Germanic law codes— represent attempts to associate royal authority with legal authority. The Franks surely had laws before they had kings; since few of their laws require any sort of royal authority to be followed, it is difficult to find an alternative explanation than that their laws do not have a royal basis. The political statement that came from issuing these laws was therefore paramount.

150 Fischer Drew, Lombard Laws, 2. 151 Fischer Drew, Laws of the Salian Franks, 29. 152 Rosamond McKitterick. "A King on the Move: The Place of an Itinerant Court in Charlemagne’s Government.” In Royal Courts in Dynastic States and Empires: A Global Perspective, edited by Duindam Jeroen, Artan Tülay, and Kunt Metin. Leiden; Boston: Brill, 2011, 145. 58

There are specific reasons to expect a relationship between the Salic Law and ÆC.

Æthelberht’s wife, Bertha, was a Frankish noblewoman born a generation after Clovis’s reign, and would almost certainly have been familiar with the Salic Law.153 Kent was the closest

English kingdom to the Continent, while Frankish Gaul was the closest Continental kingdom to

England. As such, they traded significantly with each other.154 Frankish coins are found throughout Kent during the early seventh century, when Æthelberht reigned and ÆC was ostensibly composed. The Bishop of Rochester and the Abbott of Saints Peter and Paul, two

Kentish clergyman, attended a much-publicized Frankish church council in 614.155 The Franks, therefore, were the most proximate Continental tradition to Kent, and as such might have exercised the greatest influence on Kent, including on its legal tradition.

As far as my research has shown, the Salic Law and ÆC have surprisingly few points of agreement. They are both clearly in the Germanic tradition and hence share some overarching similarities, but the Salic Law is far more similar to other Continental Germanic codes, such as

Rothair’s Edict and the Burgundian Code, than it is to ÆC.

The Salic Law is far more expansive than ÆC. It includes laws about offenses committed in mills, in boats, concerning cutting someone’s hair, secret hirings, false testimony, the ordeal,156 allodial lands, concerning removing oneself from one’s kin group; calling someone a sorcerer with no evidence—everything that made the Salic Law a clear snapshot of Frankish culture.157 Of all those laws, and many more, there is no analog in ÆC. Whereas the Salic Law is

153 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.25, 39. 154 Stenton, Anglo-Saxon England, 10. 155 Wormald, The Making of English Law, 100. 156 A method of proving one’s innocence. It involved placing one’s hand in boiling water; hence, the name “ordeal.” 157 “Salic Law,” §§XXI, XXII, LXLVII, XXVIII, XLVIII, LIII, LIX, LX, LXIV, in Fischer Drew, Laws of the Salian Franks, 76-144 59 a clear depiction of a vibrant society, ÆC appears a colder, lifeless, compensatory code, with every fingers’ composition detailed, but no mention whatsoever of four-legged animals that kill a man.158 ÆC, in contrast to the Salic Law, only focuses on a few aspects of society: the church; the king; all manner of personal injuries; and some assorted familial and servant relations. While cases in ÆC are often specific, their permutations are nothing out of the ordinary—the loss of a ring finger, for instance; or abduction of a virgin.

Where both codes deal with the same offense, their compositions are often defined in different terms. The wergild for ÆC is defined as 100 shillings; for the Salic Law it is 200 solidi.159 As the wergild is the most important form of restitution in Germanic law, and appears in every single successor state’s legal tradition, one can make a rough exchange rate for the purposes of comparison: two solidi for one shilling.

With this point of comparison, very few offenses other than murder are equivalent.

Breaking an enclosure without committing an offense is a six shilling fine in ÆC, while it is worth 30 solidi in the Salic Law.160 Highway robbery is also a six shilling fine in ÆC, while it is worth 62.5 solidi in the Salic Law.161 The Salic Law differentiates between murder (200 solidi, as stated), and drowning (600 solidi), as well as murder of a king (600) or drowning of a king

(1800).162 ÆC does not have a composition for drowning, and whereas many offenses in the

Salic Law are worth more than the standard wergild of 200 solidi, just one offense in ÆC is worth more than the wergild of 100 shillings—castration, which is penalized by three-times the

158 “Salic Law,” §XXXVI, in Fischer Drew, Laws of the Salian Franks, 98; “ÆC,” §§53-58, in Oliver, Beginnings of English Law, 63. 159 “Salic Law,” §XLI, in Fischer Drew, Laws of the Salian Franks, 104; “ÆC,” §24, in Oliver, Beginnings of English Law, 57. 160 “Salic Law,” §XI, in Fischer Drew, Laws of the Salian Franks, 76-77; “ÆC,” §22, in Oliver, Beginnings of English Law, 67. 161 “Salic Law,” §XIV, in Fischer Drew, Laws of the Salian Franks, 79; “ÆC,” §23, in Oliver, Beginnings of English Law, 67. 162 “Salic Law,” §XLI, in Fischer Drew, Laws of the Salian Franks, 104. 60 wergild.163 Composition in the Salic Law is almost entirely defined in fixed payments—120 denarii for a slave committing theft of 2 denarii, for instance; 240 denarii for a slave committing theft of 40 denarii.164 For ÆC, compositions are often defined in –fold composition. A slave, for instance, must pay two-fold if he steals.165 Such lack of similarity would seem to indicate that the composers of ÆC were not familiar with the laws set in the Salic Law. It is also not as if the laws are starkly in contrast with one another. There are no sections where ÆC clearly defines itself as separate from the Salic Law. They merely rarely intersect.

Even where the two law codes do intersect, the intersection seems more representative of broader Germanic culture than of any true similarity between the codes. Disabling injuries in the

Salic Law, such as gouging out an eye, maiming a hand or foot, or cutting off a nose or ear, are set at 100 solidi, or half of the wergild.166 In ÆC, although the prices for a hand are not explicitly set, the sum price for each finger sliced off is 50 shillings, half of the wergild.167

This similarity appears to be incidental. First, the prices are set entirely differently. ÆC is straightforward, writing about each finger in simple Kentish: a forefinger is worth 9 shillings, a middle finger 4, a ring finger 6, a pinky 11, the thumb 20. The Salic Law mostly focuses on the hands themselves rather than each individual finger. When the Salic Law does price each finger, it does so in a contradictory, incomprehensible manner. The thumb and forefinger are each priced individually, at 30 and 35 solidi respectively, and therefore not in concordance with ÆC judging by the 2:1 ratio. For the three remaining fingers, however, the Salic Law states:

If he cuts off one of [the three remaining fingers], he shall be liable to pay 30 solidi. He who cuts off a following finger [the middle] shall be liable to pay…15

163 “ÆC,” §64, in Oliver, Beginnings of English Law, 75. 164 A denarii was worth 1/40th of a solidus. 165 “ÆC,” §83, in Oliver, Beginnings of English Law, 81. 166 “Salic Law,” §XXIX, in Fischer Drew, Laws of the Salian Franks, 92-4. 167 “ÆC,” §§53-8, 69, in Oliver, Beginnings of English Law, 73. The price is explicitly set for cutting off a foot at 50 shillings, half of the wergild. Interestingly, the sum of each individual toe is only 25 shillings. 61

solidi. If he strikes off a fourth finger, he shall be liable to pay 9 solidi. If he strikes off the little finger, he shall be liable to pay…15 solidi.168

It is unclear whether the price for the middle, ring, and pinky fingers are 30 solidi each, or 15, 9, and 15. Earlier in the code, the price for those three combined appears to be 45 solidi, if the whole hand is to be worth 100 solidi. Nevertheless, regardless of the actual meaning of the code, none of those prices conform to the prices set in ÆC, or even the various importances of each finger implied in ÆC. The middle finger is worth as much as the pinky in the Salic Law, while it is barely a third as much in ÆC. The ring finger is worth less than either the pinky or the middle finger in the Salic Law, while it is worth more than the middle finger and less than the pinky in ÆC. And the prices set in the Salic Law—either 30 solidi, 9, or 15, at no point are met with equivalent prices in shillings in ÆC—be they 4 shillings, 6, or 11. Although the price for each hand is half the wergild in both ÆC and the Salic Law, the similarities cease there.

Second, other Germanic law codes also have the same price set for this sort of disabling injury. The Burgundians decreed that “whoever cuts off with a blow the arm of a man…let him compound half his wergild.”169 Rothair’s Edict decrees that “[h]e who cuts off another man’s hand shall pay the injured party as composition half of the wergild at which he would have been valued if he had been killed.”170 The half-wergild price for disabling injuries is thus representative of broader Germanic culture, not of specific similarities between the Salic Law and ÆC.

Further differentiating the Salic Law from ÆC is the Salic Law’s messy, organic nature.

The Salic Law’s restitutions often contradict one another in a way that ÆC does not. I showed above the differing restitutions for cutting off the same three fingers. This example is far from

168 “Salic Law,” §XXIX, Fischer Drew, Laws of the Salian Franks, 93. 169 “Burgundian Code,” §XI, in Fischer Drew, Burgundian Code, 31. 170 “Rothair’s Edict,” §62, in Fischer Drew, Lombard Laws, 63. 62 the only contradiction in the code. The composition for “strik[ing] out [another man’s] eye” in the Salic Law is “to pay four thousand denarii [i.e. 100 solidi].”171 11 lines later, the Salic Law states that “he who puts out another man’s eye shall be liable to pay twenty-five hundred denarii

[i.e. 62.5 solidi].”172 The same offense, in the same section of the Salic Law, is inexplicably priced differently. The Salic Law is rife with these contradictions. ÆC, however, has none of the same type of contradictions. Each of its restitutions are stated, and stated once.

Moreover, the order of the laws enshrined in Salic Law, and indeed Rothair’s Edict and the Burgundian Code, are distinguished from those of ÆC. The former three law codes are messy, whereas ÆC is tightly ordered. The Salic Law’s order is essentially meaningless. Laws concerning arson are followed sequentially by those concerning wounds, concerning “Him Who

Accuses Before the King an Innocent Man Who is Absent,” concerning “Magic Philters or

Poisoned Potions,” and concerning the “Man Who Touches the Hand or Arm or Finger of a Free

Woman.”173 While there may be a logic to the ordering of these laws, arguments proving such are beyond the scope of this thesis. The Burgundian Code is not appreciably better ordered than the Salic Law. A representative slice of its order includes, sequentially, laws “[o]f the Abolition of the Advocacy of Barbarians in Lawsuits Involving Romans,” “[o]f Injuries Which Are Caused by Animals,” “[o]f Burgundian Women Entering a Second or Third Marriage,” “[o]f Thefts and

Acts of Violence,” and “[o]f Knocking Out Teeth.”174 Nor too is Rothair’s Edict.175 Its laws contain, in sequence, those concerning “the use of poison,” “the man or woman slave who

171 “Salic Law,” §XXIX, in Fischer Drew, Laws of the Salian Franks, 93. 172 Ibid., “Salic Law,” §XXIX, 93. 173 Ibid., “Salic Law,” §§XVI-XX, 81-84. 174 “Burgundian Code,” §XXII-XXVI, in Fischer Drew, Burgundian Code, 38-41. 175 Katherine Fischer Drew, upon whose translation of Rothair’s Edict I rely, argues that it was intended to constitute a complete code of law and therefore was reasonably well-organized. While it is more organized than many of the other Germanic law codes I have studied, its order is underwhelming, particularly when compared to ÆC. If this is an example of a systematically organized, complete code of law, then ÆC is even more anomalous than I argue in the main body of text. 63 administers poison,” “the man who seeks revenge after accepting composition,” and “the master builders from Como.”176 In contrast to these law codes, ÆC is much better organized. Its ecclesiastical section, odd though it is, is constrained to the first seven laws.177 Laws concerning acts done in the presence of the king follow, followed shortly after by a personal injury section detailing all manner of injuries, sequentially, in order from the top of the head to the toenails.178

Continental Germanic codes do not boast the same organization. Rothair’s Edict contains one major personal injury section, but it is neither ordered head to foot nor the only area in the code where laws concerning personal injuries appear.179 The Burgundian Code has no dedicated personal injury section, and instead has multiple laws throughout the code that detail various injuries and affronts.180 The Salic Law is disorganized in much the same way as the Burgundian

Code, as far as personal injuries are concerned.181 Whereas the Salic Law—and indeed, all the other Continental Germanic codes—appear organic and disorganized, ÆC appears inorganic and characterized by an order absent from all other Germanic codes. It appears flat and contrived.

The Salic Law and other Germanic law codes appear more organic than ÆC for other reasons too, chiefly that their laws include permutations so specific that they can only be case law or memorable judgments enshrined in the code. In §XLI of the Salic Law, which is concerned with “the killing of freemen,” clause 11 states that “he who finds a freemen without hands or feet whom his enemies have left at a crossroad and kills him and it is proved against him shall be liable to pay four thousand denarii [i.e. 100 solidi].”182 This sort of clause is almost

176 “Rothair’s Edict,” §§141-44, in Fischer Drew, Lombard Laws, 45. 177 “ÆC,” §1-7, in Oliver, Beginnings of English Law, 60-61. 178 Ibid., “ÆC,” §§8-71, 62-77. 179 “Rothair’s Edict,” §§45-126, in Fischer Drew, Lombard Laws, 61-71. 180 “Burgundian Code,” §§IX-XCIII, in Fischer Drew, Burgundian Code, 30-83. 181 “Salic Law,” §§XVII-XXIX, in Fischer Drew, Laws of the Salian Franks, 82-94. 182 Ibid., “Salic Law,” §§XLI, 105. 64 certainly too specific to have been conceived of in a theoretical sense. It is likely that at some point, either during the compiling of the Salic Law or in Frankish history, a freeman must have been waylaid by his enemies, had his hands and feet cut off, and left at a crossroad, at which point someone else killed him, perhaps out of mercy. The king or some other royal figure therefore was required to decree some sort of restitution, which became enshrined in the Salic

Law.183 And while this is perhaps the most obvious example, it is far from the only one in the

Salic Law. Examples abound, particularly various permutations of events that would affect land inheritance, permutations which are likely case law enshrined rather than formulated legal concepts.184 This phenomenon is not limited to the Salic Law. The Burgundian Code, for instance, includes §LI, “of those who do not give their sons the portions of their property due to them,” stating explicitly that:

because in a recent controversy it became clear that a certain Athila had passed over the provisions of the old enactments and displayed insubordination to those most useful precepts of law and had not given his son the portion due to him but had transferred his property to other persons through illegal written title since he had wished nothing therefrom to belong to his son, and that no one may follow a bad example in this manner…185

It could not be more clear that this law is case law later enshrined in the compiled Burgundian

Code.186 Rothair’s Edict contains these same obvious manifestations of case law. It devotes two separate laws to those “concerning the master builders from Como,” and those “concerning the hiring of the master builders from Como.” In the second of these, the code states that:

183 An alternative explanation is that this particular case was not contemporaneous to the compiling of the Salic Law, and was instead a memorable judgment from older tradition. Even if this were to be the case, it still represents a significant difference between the Salic Law and ÆC. It still represents an organic, specific cultural tradition, a tradition that is entirely absent from ÆC. 184 “Salic Law,” §§LI-LII, in Fischer Drew, Laws of the Salian Franks, 115-116, 185 “Burgundian Code,” §LI, in Fischer Drew, Burgundian Code, 58. 186 Again, that this is case law does not necessarily suggest that this is recent case law. The law speaks of a “recent controversy,” but that is not necessarily a dispositive statement. Regardless, as with the Salic Law and with Rothair’s Edict below, and unlike ÆC, the very discussion of a controversy, recent or otherwise, represents a code that is deeply in touch with the cultural tradition it enshrines. 65

If anyone seeks out and hires one or more master builders from Como…to work by the day alongside his own slaves in the making of a house or home for himself, and if it happens by some chance that one of the [hired] builders is killed in connection with [the building of] that house, no compensation shall be required from him whose house it is. But if a piece of wood or stone falls from the building and kills some stranger or causes him injury, liability should not rest upon the builders but he who hired them shall be responsible for the damages.187

As with §LI of the Burgundian Code, this law does not derive from legal theory; rather, it was a memorable, real world case that needed resolution, either during Rothair’s reign or at some point in the past, and was therefore included in Rothair’s Edict. This example and the myriad others enshrined in the Salic Law, the Burgundian Code, and Rothair’s Edict indicate that in the compilation of genuine Germanic law codes, the tradition enshrined is organic and often based in real-world cases, not theorized royal concoctions.

ÆC, by contrast, contains few, if any, laws that appear to reflect memorable precedents.

Each law rather obviously follows from the one before it. If there is to be a composition for cutting off the middle finger, there should likely be one for cutting off the ring finger and pinky too. Other laws are specific, but are the most obvious permutations of possible events. It takes little imagination to write a law concerning the composition for a killer fleeing rather than staying to pay for his crime.188 ÆC contains very few laws with sub-clauses. The one with the most, §76, is illustrative:

76. If a person buys a maiden with a [bride-]price, let the bargain be [valid], if there is no deception. 76.1. If there is deception, afterwards let him bring [her to her] home, and let him be given his money. 76.2. If she bears a living child, let her obtain half the goods [belonging to the household] if the husband dies first. 76.3. If she should wish to dwell with the children, let her obtain half the goods [of the household.]

187 “Rothair’s Edict,” §145, in Fischer Drew, Lombard Laws, 75. 188 See “ÆC,” §24, in Oliver, Beginnings of English Law, 67. 66

76.4. If she should wish to take a man [i.e., another husband], provision as for one child [i.e., the inheritance is split equally between the mother and each of the children. 76.5. If she does not bear a child, her paternal kin should obtain [her] property and the morning-gift.189

This is the law within ÆC with the most permutations and the strangest circumstances. Yet those strange circumstances are entirely unremarkable. The maiden either deceives, or does not.190 She bears a child, or does not. Her inheritance and her children’s inheritance changes based on whether she wishes to dwell with them or take another man. These are general circumstances, and do not refer to any specific events. Those sub-clauses stand in stark contrast to the Salic

Law’s memorable quadruple-amputee mercy killing clause; the Burgundian Code’s chatty inheritance section, which states that it is a law established because of a certain case; and the law in Rothair’s Edict reflecting the case of the master builders of Como. And this is as specific and precedent-oriented as ÆC gets. In the Salic Law, Rothair’s Edict, and the Burgundian Code, the laws enshrined organically developed from real cases. There is no evidence of the same phenomenon in ÆC.

ÆC therefore appears anomalously constrained, ordered, and inorganic, in contrast to all other contemporaneous Continental Germanic law codes. It appears to be a contrived code, arising from no real-world problems, that has no practical applications. Its contrast from other supposedly comparable law codes suggests a different origin.

189 Ibid., “ÆC,” §76, 79. 190 Deception in this case presumably would mean whether she was a virgin or otherwise. 67

Comparison with Hlothere and Eadric’s Code

ÆC is also anomalous when compared to the other Kentish law codes contained in the

Textus Roffensis: namely, the law code of Hlothere and Eadric and the law code of Wihtred.

Historians have posited that ÆC was written during the reign of Æthelberht, before 616/8, while

Hlothere and Eadric’s code was written around 679-85, and Wihtred’s code almost certainly in

695.191 If ÆC was indeed written in the time of Æthelberht, one should expect several conclusions when comparing ÆC to these later codes: first, that the later law codes in some way reference, even obliquely, ÆC; second, that the later law codes have fewer pagan and more

Christian elements; third, that the later law codes reflect fewer elements of earlier Germanic oral tradition, or are better organized than ÆC, indicating a culture more accustomed to establishing law codes. In fact, an examination of these later law codes yields few, if any, of those conclusions. The later law codes do not reference ÆC. Although Wihtred’s code has more

Christian elements than ÆC, Hlothere and Eadric’s code contains no Christian elements. Both, however, reference Germanic cultural features that ÆC inexplicably ignores. Hlothere and

Eadric’s law code is poorly organized, while Wihtred’s is remarkably well-organized, and aware of a broader legal tradition. Both Hlothere and Eadric’s code and Wihtred’s code preserve elements of oral legal culture, in contrast to ÆC.

While Hlothere and Eadric’s laws have been enshrined in the Textus Roffensis, we know almost nothing of the kings behind them. Hlothere only garners passing mention in Bede’s

Ecclesiastical History; Eadric is mentioned just once, in two successive sentences.192 Indeed, as

Oliver writes, “[Felix] Liebermann points out that an indirect argument for the authenticity of the text is provided by the lack of fame attached to either of these rulers. Who, he asks, ever thought

191 Oliver, Beginnings of English Law, 148. 192 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, iv.26, 222. 68 about them again after their deaths, and what later forger would choose these two kings with whom to associate this text?”193 While ÆC’s authenticity may be in doubt, there are good reasons to accept the authenticity of the codes ascribed to Hlothere and Eadric.

As an Anglo-Saxon law code in the Germanic tradition, Hlothere and Eadric’s code shares characteristics with the Germanic law codes of the continent. Although Hlothere and

Eadric were Christian kings, their law code ignores entirely any Christian elements, much like the Salic Law, Burgundian code, and Rothair’s Edict. Like Continental Germanic law codes and unlike ÆC, their code is comprehensible because it is often procedurally focused.194 Like

Continental codes such as the Salic Law and the Burgundian code, Hlothere and Eadric’s code includes specific permutations of cases and the procedure by which one might swear an oath, buy property, or provide hospitality.195 These features are entirely absent from ÆC. The organization of Hlothere and Eadric’s code is also poor. Whereas in ÆC the laws are ordered head to foot,

Hlothere and Eadric’s code begins with laws on servants murdering freemen, then on abduction, inheritance, and repossessing stolen land.196 This disorganization mirrors that of the Continental law codes. This similarity further indicates that Hlothere and Eadric’s code is legitimate and organic in that tradition. It also displays ÆC to be at least an outlier among Germanic law codes.

Even though Hlothere and Eadric’s code was ostensibly written nearly a century later than ÆC, while most of the Germanic codes examined are older than ÆC, Hlothere and Eadric’s code is more in touch with Germanic legal tradition.

193 Oliver, Beginnings of English Law, 120. 194 Ibid., 134. 195 “Hlothere and Eadric’s code,” §§1-11, in Oliver, Beginnings of English Law, 127-134; “Rothair’s Edict, §§9, 25, 359-363, in Fischer Drew, Lombard Laws, 54, 57, 122-4; “Burgundian Code,” §§XIX, XXXVIII, LXXXIII, in Fischer Drew, Burgundian Code, 36, 47, 77; “Salic Law,” §§XLVII-XLIX, in Fischer Drew, Laws of the Salian Franks, 111-113. 196 “Hlothere and Eadric’s code,” §§1-5, in Oliver, Beginnings of English Law, 127-9. 69

Hlothere and Eadric’s code seems unaware of ÆC. The rubric laying out their law code refers only vaguely to the decrees of their ancestors, stating that “Hlothere and Eadric, kings of the people of Kent, added to the laws that their ancestors made before with these decrees, which are stated hereafter.”197 Far from constituting a reference to Æthelberht and his laws, this reference is almost the opposite—a vague gesture to an anonymous, indefinite legal tradition.

Indeed, Oliver writes that

“the use of the plural Æ, ‘laws,’ might…be used to argue that the prologue refers to laws that have not come down to us. Certainly orally transmitted laws must have augmented the rather selective compilation recorded during Æthelberht's reign. And, as discussed earlier, there may even have been other written laws. Bede discusses laws of Eorconberht, which may represent a written text lost to us…”198

While Hlothere and Eadric do refer to “their ancestors,” it is striking that they do not name

Æthelberht, their most illustrious recent ancestor. Future Anglo-Saxon monarchs like Alfred the

Great—from Wessex, not Kent—mention Æthelberht and ÆC in introducing his own laws.199

Hlothere and Eadric do not.

Comparison with Wihtred’s Law Code

The law code of King Wihtred, the successor to his brother Eadric, also seems unaware

ÆC’s existence. Wihtred, a Christian, inherited the throne following the death of Eadric around

690, and lived until 725.200 His law code, which historians are almost certain was issued in 695, five years after his reign began, is longer than Hlothere and Eadric’s. Wihtred’s code is 23 laws

197 Ibid., “Hlothere and Eadric’s code,” rubric, 127. 198 Ibid., 135. 199 Dammery, Richard. John. Edward. Law-code of King Alfred the Great. Dissertation, University of Cambridge, 1991, 237. 200 See Oliver, The Beginnings of English Law, 147-180; Stenton, Anglo-Saxon England, 61-63; Bede, Ecclesiastical History, trans. and ed. by Judith McClure and Roger Collins, 223, 246, 288, 293, 409. 70 and is almost entirely ecclesiastically focused—18 of the first 19 laws deal with offenses against the church and offenses by clergymen.201 This focus is at most tangentially related to ÆC. While

ÆC’s first several laws deal with composition to the church, bishops, deacons, and other clerical positions, Wihtred’s code is much more specific and procedurally focused. It mentions oath- helpers who might swear to one’s innocence, a feature common to Germanic societies, and at least somewhat workable as a law code.202

Wihtred’s code is extremely rich textually. Not only is it specific and procedurally focused, but it is also “the first of the English laws to use literary citation.”203 As Oliver writes,

First, the prologue strongly echoes that of Hlothere & Eadric. Second, §8 is so similar in content to §§3-3.2 of the slightly earlier West-Saxon laws of Ine, although it employs a very different phraseology, that Liebermann assumes both to have been drawn from Latin canons drafted by an English synod…Third, §14 contains the Latin oath formulation to be spoken by the priest. Fourth, §23 is almost identical in language to a clause in the laws of Ine; the similarity might reflect a lost common source (written or oral), or the clause in Wihtred may be a deliberate borrowing from existing written laws of Ine. Finally, it is possible that the laws in Wihtred prohibiting the worship of idols are based on a lost text of Eorcenberht's laws.204

For the first time in Kentish history, the law codes enshrined seem fully aware of the legal tradition around them, not merely Germanic customs common to tribes across Europe.

Yet despite Wihtred’s code’s innovative “literary citation,” it has nothing to say about

Æthelberht. Wihtred’s code cites Hlothere and Eadric and also possibly, Eorcenberht, three previous Kentish kings who issued their own law codes. It even cites Ine, a West Saxon monarch. It does not, however, seem at all aware of ÆC, despite ÆC being the sole extant

Kentish law code other than Wihtred’s to have any Christian elements.

201 Oliver, Beginnings of English Law, 148; “Wihtred’s Code,” §§1-23, in Oliver, Beginnings of English Law, 152-163. 202 “Wihtred’s Code,” §18, in Oliver, Beginnings of English Law, 161. 203 Ibid., 166. 204 Ibid. 71

There is only one point of overlap between Wihtred’s code and ÆC. §2 of Wihtred’s code states that “[violation of the] protection of the church shall be 50 shillings, as the king’s.”205

§14 of ÆC states that “[for violation of] the king’s protection, 50 shillings.”206 This overlap is likely incidental. A 50 shillings fine is half of a wergild. In the Burgundian Code, anyone who

“killed an agent of our [the king’s] property…shall be compelled to pay 150 solidi.”207 The wergild in the Burgundian Code is set at 300 solidi.208 Therefore, roughly the same offense is penalized in the same proportions across two disparate Germanic states with no direct connection. Further undercutting a direct lineage between §2 of Wihtred’s Code and §14 of ÆC is the lexicon used. Although ÆC and Wihtred’s code ostensibly contain distinct lexical similarities, these particular laws do not.209 Each law contains the word “king” in its Old English,

Kentish form, in the genitive case.210 In this section of ÆC, “king” is spelled “[c]yninges.”211 In

Wihtred’s code, the spelling is “cinges.”212 This difference would indicate that unlike the other law codes referenced almost verbatim in Wihtred’s code, ÆC is not directly referenced, further lending credence to the notion of a Pan-Germanic composition for violation of the king’s protection, rather than a reference to a law coined solely by Æthelberht. And these two laws are the only ones in either code that even tangentially relate to each other. Absent this dubious relationship, ÆC and Æthelberht are entirely absent from Wihtred’s code.

This absence is strange. It is impossible that Wihtred, who was consciously Christian, was unaware of his great-great-grandfather. Indeed, Wihtred named one of his sons

205 Ibid., “Wihtred’s Code,” §2, 153. 206 Ibid., “ÆC,” §14, 65. 207 “Burgundian Code,” §L, in Fischer Drew, Burgundian Code, 57. 208 Ibid., “Burgundian Code,” §II, 23. 209 See Oliver, The Beginnings of English Law, 148. See chapter 3 for a complete discussion of the significance of lexical similarities between ÆC and Wihtred’s Code. 210 meaning, roughly, “of the king’s.” 211 Ibid., “ÆC,” §14, 65. 212 Ibid., “Wihtred’s Code,” §2, 152. 72

Æthelberht.213 It is unclear how common the name Æthelberht was in Kentish society—the name means “bright noble”—but that is immaterial. Wihtred was aware of Æthelberht, and was likely influenced by him as well. ÆC’s absence from Wihtred’s code is therefore all the more striking.214

Textual Examination of ÆC

The last primary source to examine is the text of ÆC itself. There are two main oddities in the code. First, §§1-7 are striking when compared to the rest of the code, not merely because of their unique ecclesiastical focus, but also because of the compositions set. Second, the terms of recompense used throughout the code are likely anachronistic given an issuance date of around or before 616/8 CE.

The first few laws of ÆC, §§1-7, are odd in comparison to the remainder of the code in large part because these laws are the only ones that deal, either explicitly or implicitly, with the church and Christianity. Yet they are odd also because of the composition set for each offense.

The laws are laid out below:

1. God's property and the church's [is to be compensated] with 12[-fold] compensation. 2. A bishop's property [is to be compensated] with 11[-fold] compensation. 3. A priest's property [is to be compensated] with 9[-fold] compensation. 4. A deacon's property [is to be compensated] with 6[-fold] compensation. 5. A cleric's property [is to be compensated] with 3 [-fold] compensation. 6. [Violation of] church peace [is to be compensated] with 2[-fold] compensation. 7. [Violation of] assembly peace [is to be compensated] with 2[-fold] compensation.215

213 Ibid., 148. 214 See Chapter 3 for complete discussion of the significance of this absence. 215 “ÆC,” §§1-7, in Oliver, Beginnings of English Law, 61. 73

Æthelberht was the first Anglo-Saxon king to convert to Christianity, and, given the Augustinian mission’s dubious success, it strains credulity to suggest that the church had a particularly strong foothold in Anglo-Saxon England during Æthelberht’s reign. Æthelberht’s son, Eadbald, spurned

Christianity, and other kingdoms, such as Wessex, had not yet converted.216 Despite the fledgling state of Christianity in Anglo-Saxon England, and despite the vast distance between Kent and

Rome, the ecclesiastical laws of ÆC display remarkable understandings of the differing hierarchies of the church. There are bishops, priests, deacons, and other clerics in ÆC, even though that same hierarchy did not exist among the Frankish Christians living in Kent at the time, and Æthelberht would have only just converted to Christianity. 217 Not only do the hierarchies already exist in ÆC, but they are also given incredible respect. The church’s property and a bishop’s property receive 12-fold and 11-fold compensation. Elsewhere in ÆC, it is decreed that “if a freeman should steal from the king, let him compensate with 9-fold compensation.”218 In ÆC, therefore, the king places himself at the same level as a priest, and below bishops and the Church itself.

There is no reasonable political necessity for why this should be so. Historians such as

James Campbell have written that, “one undoubtedly new royal responsibility was the Church, and kings took it very seriously [, which is why] Æthelberht gave churches a heavier compensation for theft than himself.”219 But this reasoning makes little sense. The Church was only necessary as a new royal responsibility if Æthelberht deemed it to be so, and its significance

216 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ii.5, 79. 217 See Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.27, 45. Augustine’s sixth question to Gregory asks “whether a bishop may be consecrated without other bishops being present, if they are so great a distance from one another that they cannot easily meet.” Gregory’s answer begins by stating that “in the English Church of which you are as yet the only bishop…” This exchange strongly indicates that Æthelberht’s reign coincided with only the very beginning of the church hierarchy’s establishment in England. 218 “ÆC,” §10, in Oliver, Beginnings of English Law, 63. 219 James Campbell, The Anglo-Saxons. Ithaca, N.Y.: Cornell University Press, 1982, 99. 74 was largely up to him, given that he was the first Anglo-Saxon king to convert. In this time period, kings were more glorified warlords than stately monarchs, so deliberately placing oneself below another institution would have served only to undercut the king’s already tenuous authority.220 And although our understanding of Kentish society’s conversion other than

Æthelberht’s is somewhat hazy, that the kingdom reverted to paganism after Æthelberht’s death strongly suggests that Christianity’s foothold among the Kentish was weak. Æthelberht therefore almost certainly would not be pandering to his subjects’ religious convictions by championing the Church; rather, his actions might well have angered them as they maintained their pagan roots. If ÆC is indeed the work of Æthelberht, therefore, the compositions decreed in §§1-7, and especially §§1-3, are therefore problematic.

Perhaps more problematic is ÆC’s use of shillings and sceattas as recompense throughout the code. Late sixth century or early seventh century Anglo-Saxon England was not, by any stretch of imagination, a wealthy or bustling region of Europe. Accordingly, it had little use for coins, and had not had so since the fall of Roman Britain in 410. Writes Tom Lambert,

“evidence for meaningful continuity with the Roman past—for coin use…ceases swiftly and completely. We can be certain that the economy collapsed catastrophically, definitely by the mid-fifth century and possibly much more quickly than that.”221 Although Kent, with its proximity to the Continent, eventually did become a kingdom with a bustling economy compared to the rest of Anglo-Saxon England, this did not occur until around, or likely just after,

Æthelberht’s time.222 Oliver notes that

gold coins were struck in Kent—probably in Canterbury—from the turn of the seventh century, but until about 630 coining was only sporadic. The

220 Fischer Drew, Burgundian Code, 13. 221 Lambert, Law and Order in Anglo-Saxon England, 27. 222 Bassett, Steven, The Origins of Anglo-Saxon Kingdoms. London: Leicester University Press, 1989, 55. 75

earliest gold coin with a royal name found south of the Humber bears the name of Æthelberht's son Eadbald.223

If gold coins were not struck in Kent for almost 200 years, and were only sporadically being struck when ÆC was issued, then it is strange that the law code would almost entirely be written in terms of shillings—gold coins—or sceattas— either pieces of gold or a debased silver coin.224

Shillings are also not viewed by the code as particularly rare. A wergild was 100 shillings; very small offenses, like striking off a fingernail, were worth a shilling.225 Presumably offenses such as these were not uncommon; therefore, if the laws were intended to be followed, shillings should also have been common. They were not. When coinage recirculated in England in the early seventh century, it almost exclusively was Continental in origin, and even then, the

“monetary role” these coins played “for several decades [after the start of the seventh century] must have been very limited…the same is true of the earliest coins struck by the Anglo-Saxons themselves…the output of each [mint] was very small. Although the coinage grew in the third quarter of the century, it was still tiny in comparison with that of the Franks.”226 For ÆC to use shillings so extensively, even profligately, as a term of recompense despite shillings being exceedingly uncommon in the early seventh century is certainly strange, if one accepts ÆC’s issuance as an early seventh century phenomenon.

Even though Germanic law codes were ornamental as well as practical, we know that their laws were intended to be followed and the composition set for each offense were not meaningless monetary values. In rural areas such as Kent, coins may have been rare, but there are documented cases of this problem appearing in Continental successor states. When the

223 Oliver, Beginnings of English Law, 83. 224 See the third chapter of this thesis for a complete discussion of sceattas and their significance. 225 “ÆC,” §59, in Oliver, Beginnings of English Law, 73. 226 Grierson and Blackburn, Medieval European Coinage, 157. 76

Frankish king Charlemagne conquered Saxon pagans about two centuries after Æthelberht’s reign, he issued a capitulary [law] spelling out exactly what one solidus was worth in terms

Saxons could understand, writing, “what properly constitutes a solidus among the Saxons should be noted. A yearling ox of either sex counts as one solidus in the autumn, when it is put into stall…”227 If the fines that comprise ÆC were meant to be bare guidelines, and not a reasonable estimate of the price of each offense, or if coins were so scarce that abiding by ÆC would have been impossible, then one should expect ÆC to have made this fact clear or offered some term of equivalency. It does not. The use of shillings and sceattas as almost exclusive terms of recompense is therefore problematic, given our current understanding of the age of ÆC.

Conclusion

When comparing ÆC to Continental Germanic codes and later Kentish codes, a number of issues arise if one is to believe that ÆC was drafted in around 616/8. In contrast to all other

Continental law codes, ÆC is well-organized, constrained, inorganic, and no more related to the

Salic Law, the law code from the culture with which Æthelberht may have been familiar, than the Burgundian code, the law code from a culture with which Æthelberht would not have been.

Those codes, meanwhile, are broadly similar to each other, and to other, later Germanic law codes, including Rothair’s Edict, Hlothere and Eadric’s code, and Wihtred’s code. There is an overarching Germanic legal culture of which ÆC seems barely a part. Meanwhile, at no point in

Hlothere and Eadric’s code is ÆC ever referenced, even obliquely, while Wihtred’s code, despite citing previous Kentish, Saxon, and Roman laws, also seems unaware of ÆC. Finally, examining

ÆC itself yields puzzling relationships between the level of restitution owed to the king and that

227 King, P.D. Charlemagne: Translated Sources. Lamprigg, Kendal, Cumbria: P.D. King, 1987, 232. 77 owed to the Church, and the problems inherent in a coin-scarce economy nevertheless issuing a law code almost entirely in coin-based terms.

All these puzzlements, these oddities, these strange features of ÆC—they are not discrete. They are additive, and they add to a preponderant conclusion: there are significant reasons to doubt that ÆC is the product of Æthelberht, at least in the form in which we have received it. Instead, as I will further argue in the next chapter, aspects of ÆC in its current form align better with the context of late seventh century or early eighth century Kent, during the reign of King Wihtred. In this context, the code would have likely been written by religious figures in

Kent as a means of legitimating and extending Canterbury’s ecclesiastical supremacy, at the expense of other English dioceses, and even, possibly, at the expense of Wihtred himself.

78

Chapter 3: Answering the Who, When, and Why of ÆC

Overview

The Venerable Bede does not have enough evidence to make the claims that he does about Æthelberht and ÆC. He should be decentered from a discussion of ÆC’s origins.

Furthermore, examining the text of ÆC itself and comparing it to contemporaneous Germanic law codes indicates that its origins are unlikely to have been the work of Æthelberht, and instead suggests that it is likelier to have been issued several decades, or even a century, later.

It remains to present and engage with the standard view of ÆC, best embodied in Patrick

Wormald’s argument in The Making of English Law. Wormald also seeks to read and analyze

ÆC without Bede, yet still posits that ÆC is the work of Æthelberht. A careful analysis of

Wormald’s evidence, rather than supporting his case, actually supports the case that ÆC is inauthentic. It also remains to make a positive, supported argument for ÆC’s attribution.

Multiple textual aspects of ÆC align with contextual aspects of Wihtred’s reign—particularly its ecclesiastical aspects. This alignment indicates that a late seventh or early eighth century ecclesiastical origin for ÆC is a distinct possibility, and is perhaps likelier than the seventh century royal origin commonly understand.

Wormald’s Argument

Patrick Wormald was not interested in ÆC itself when he wrote about it in his The

Making of English Law: King Alfred to the Twelfth Century. As the title suggests, his attention is on the period between Alfred the Great’s reign (which began in 899) and the aftereffects of the

Norman Invasion (which occurred in 1066). Wormald engages with ÆC as background for

Alfred’s laws, since Alfred cites ÆC as inspiration for his own laws. It is important to note, 79 however, that Wormald’s glancing treatment of ÆC is in fact the norm. No scholar singles out

ÆC for analysis. It is universally treated as a necessary first step in a broader discussion of

Anglo-Saxon law. It is still worth specifically refuting Wormald for two reasons. First, Wormald remains the reigning authority on early English law. His analysis therefore represents the standard understanding of ÆC and its place in history. Second, Wormald’s argument about ÆC proceeds without taking Bede’s word for granted, in contrast to other scholars and like my own work.

Wormald begins his discussion of ÆC by noting that there is little “explicit evidence that

Æthelberht did issue the code ascribed to him.”228 The only evidence is Bede’s aforementioned passage explaining that Æthelberht “established with the advice of his counsellors a code of laws after the Roman manner.”229 Much as I concluded in Chapter 1 of this thesis, Wormald proceeds with the assumption that Bede’s word is not good enough, instead exploring alternative means of proving ÆC’s origins.

Wormald notes three specific strands of evidence that indicate that ÆC is the work of

Æthelberht. Hlothere and Eadric’s code, the next extant Kentish legislation, contains a prologue that says the kings “have ‘added to the Æ [laws] that their predecessors have made before with these [laws].”230 This law code’s “vocabulary resembles Æthelberht’s while [its] syntax represents the same sort of advance on Æthelberht’s as do [later Frankish codes] with Lex

Salica.”231 And in the HE, Bede notes that Æthelberht’s grandson Eorcenberht ordered the abandonment of idols, whereas ÆC merely sets the composition for thefts against various clergymen, and is otherwise as secular as the Salic Law. Concludes Wormald, “if [ÆC] was as

228 Wormald, The Making of English Law, 93. 229 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ii.5, 78. 230 Wormald, The Making of English Law, 93. 231 Ibid., 93. 80 official as the Kentish tradition relayed by Bede asserted, it must be almost as early as

Æthelberht. It may as well be Æthelberht’s.”232

After concluding that ÆC is Æthelberht’s, Wormald continues to discuss its origins and significance, including positing that ÆC may preserve an earlier oral code. Wormald believes this to be likely for several reasons. One is that “the utter simplicity of Æthelberht’s syntax sets it apart from all subsequent Old English legislation, while matching very well what is often thought typical of early law in general.”233 Two others are that ÆC is well-organized and somewhat lacking in innovation that would behoove royal power—in contrast to later codes, there are fines paid to the king rather than the affronted and the like.234

Despite his reasoned discussion of ÆC and careful arguments, Wormald has a tendency to offer significant caveats. The above paragraph provides one such example, when Wormald admits that one of his arguments uses as evidence “what is often thought typical of early law in general.” At other points, Wormald engages in open speculation, framing his analysis with phrases like “it remains conceivable…” and “this could be why…”235 At a later stage of his discussion, where his subject is similarities between ÆC and certain Continental law codes,

Wormald writes that “allowing that the south German codes were reshaped in the eighth century and accepting large amounts of leeway in the details, it is definitely possible that Kentish law partook of the same influence as the others.”236

232 Ibid., 93-4. 233 Ibid., 94. 234 Ibid, 96. At this point, Wormald moves to discussing why Æthelberht would have codified an existing oral custom in the first place, an argument that, while interesting, has little bearing on this thesis because it proceeds from the assumption that ÆC is correctly attributed. 235 Ibid. 236 Ibid., 100 81

Wormald also restates certain arguments about ÆC’s attribution later on in his discussion of early English codes. He opens the next section of his book, eight pages later, with the following: “The sole evidence for what Æthelberht called his laws is Bede’s. But the code of

Hlothere and Eadric has a prologue…”237 Wormald discusses the laws of Hlothere and Eadric almost entirely in terms of comparison to ÆC, rather than discussing the code on its own terms.

A representative passage is the following: “these codes are not without shape and system.

Hlothere’s first four clauses are a balanced pair, supplementing Æthelberht’s final laws and revealing a nobleman’s previous unwritten wergild.”238

Despite Wormald’s treatment of ÆC being the standard for other scholars, it falls somewhat short. In his treatment of Hlothere and Eadric’s rubric, their laws themselves, the supposed laws of Eorcenberht, and the syntactical advances of later Kentish codes, Wormald reads too much into incidental details. In examining ÆC’s simplicity and organization, Wormald draws a conclusion more complex than warranted. And Wormald himself seems to be aware that his discussion is flawed for these reasons, as he offers the aforementioned caveats and repeats certain arguments.

Wormald’s discussion of Hlothere and Eadric’s code, particularly its rubric and seeming relationship to ÆC, relies on incidental, ambivalent details. Since Hlothere and Eadric’s code only survives in the Textus Roffensis, it is impossible to conclude whether later compilers added to the laws—especially the rubric, written in red as opposed to the code’s black—or whether it was transmitted accurately. The code’s rubric does state that “Hlothere and Eadric, kings of the people of Kent, added to the laws that their ancestors made before with these decrees…” but even if one is to accept that these are their words, faithfully transmitted, it is striking that neither

237 Ibid., 101. 238 Ibid., 102. 82

Æthelberht nor ÆC are specifically mentioned. Three kings had ruled Kent between Æthelberht and Hlothere, and historians believe that only one of them, Eorcenberht, may have issued their own law code—the decrees Bede mentions during his reign appear sweeping.239 Æthelberht, as the first Christian king, would have been by far the most illustrious of their ancestors. Future

Anglo-Saxon monarchs, like Alfred the Great, explicitly mention Æthelberht and ÆC in their own prologues.240 That Hlothere and Eadric do not explicitly do the same indicates that ÆC may not have been extant at the time. In any case, that the two ostensibly state that they are adding to the legal custom of their ancestors is not compelling alternative evidence for proving ÆC is

Æthelberht’s.

As for Hlothere and Eadric’s first four clauses being a balanced pair to supplement ÆC,

Wormald draws conclusions from ambivalent evidence. The clauses he mentions supplement only one of ÆC’s laws, §79, and only arguably so. The clause stipulates that “if a servant should kill another [who is] guiltless, let him pay [the dead man’s master] his entire worth.”241 The clauses Wormald mentions stipulate the restitution for a servant killing a nobleman, as well as a servant killing a freeman.242 This supplement, however, matters far less than it might appear. Of all of ÆC’s 83 laws, §79 is not a particularly important one. Law codes tend to be written by freemen or noblemen, and for the use of freemen or noblemen. While the composition for servants doing various actions would of course be considered as well, this would likely not be a primary concern. Yet the composition for a freeman killing a nobleman is not stipulated in

Hlothere and Eadric’s code—that supplement to ÆC never occurred. Nor, indeed, does their

239 Oliver, Beginnings of English Laws, 119; Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, iii.8, 54. 240 Dammery, Law-code of King Alfred the Great, 237. 241 ÆC, §79, in Oliver, Beginnings of English Law, 79. 242 Ibid., “Hlothere and Eadric’s code,” §§1-2, 127. 83 code supplement any of the 82 other laws in ÆC. Indeed, no supposedly later Kentish law code seems aware of ÆC in any way, other than this single possible supplement. This supplement is therefore not remarkable for proving that ÆC is older than Hlothere and Eadric’s code. It is remarkable because it highlights the fact that the immediate legal successors to ÆC appear almost entirely unaware of its existence. By drawing attention to this single instance, Wormald hits on the important point, that later law codes, at most, refer to ÆC once, but draws the opposite conclusion than is warranted. This instance really indicates that ÆC has no true supplement.

There are also several reasons to doubt the veracity of the syntactical advances of

Hlothere and Eadric’s code that Wormald mentions. For Wormald’s arguments here, he appears to defer to Lisi Oliver, noting both that “these [syntactic analyses and archaisms] are illuminated as never before by Oliver,” and “Dr. Carole Hough and Dr. Lisi Oliver are each preparing new editions [translations] of the early codes, and I have greatly profited from consultation of their doctoral dissertations.”243 Perhaps Wormald has deferred too much in this instance and would have been better served by adhering to his own expertise, as the syntactic arguments are problematic.244 The Kentish dialect of Old English is separate from the West-Saxon dialect that eventually dominated the written records of Anglo-Saxon England and became standard Old

English. Kentish written records are in fact rather rare, and often use different spelling than West

Saxon Old English. Spelling conventions themselves were not scrupulously adhered to, even within dialects.245 The text of Hlothere and Eadric’s code, as well as ÆC, is short. It is

243 Wormald, The Making of English Law, 93-94. 244 As discussed further below, since Oliver believes Wihtred’s code has more archaisms than Hlothere and Eadric, and shares some lexical similarities to ÆC, if one is to accept these arguments, it helps my thesis more than Oliver’s arguments. In any event, this line of argument does not greatly help either Oliver or Wormald. 245 Mitchell, Bruce, and Robinson, Fred C. A Guide to Old English, (Hoboken: John Wiley & Sons, Incorporated, 2011), 11. 84 impractical to make definitive statements about syntactical advances or archaisms in either text, given that they are written in a different dialect from the Old English that Medievalists may learn, that spelling was not of great importance, that there is little source material with which to master Kentish, and that the trajectory of the Kentish dialect is not entirely known. And it is dangerous to make any definitive statements about the syntax, vocabulary, or archaisms in either text. These codes only survive in a single copy, compiled around 500 years after they were first written, and may have been copied manually more than once. These copyists cannot be trusted to transmit so faithfully that one can opine about the absence of an –e at the end of “and” or the use of –ae rather than –a—which is what this line of argument is.246

Wormald’s discussion of Eorcenberht’s supposed laws as a means of proving ÆC’s attribution also lacks solid evidence. Wormald notes that “Bede says that…Earconberht [sic] ordered the abandonment of idols and observance of Lent,” whereas ÆC “merely sets out graded compensations for the property of successive clerical ranks in laws otherwise as secular as Lex

Salica…it must be almost as early as Æthelberht. It may as well be Æthelberht’s.” There are a few problems with this argument. First, it suffers from the “Bede says” fallacy. We have already seen that “Bede says” is a dangerous statement, particularly as far as seventh century Kent is concerned. Bede lacks clear evidence, has clear motivations, and is responding to possibly skewed information from Kentish clergymen themselves. This reasoning is interesting from a perspective examining the political motivations of Canterbury, but is orthogonal to a discussion of what actually occurred in seventh century Kent.

Second, Wormald has stated at the outset that he is questioning whether Bede is right about ÆC.247 If he is to do that and explore alternative means of proving ÆC’s attribution, his

246 See Oliver, The Beginnings of English Law, 148-50. 247 Wormald, The Making of English Law, 93. 85 arguments should not still rely on Bede. To Wormald’s credit, he implicitly acknowledges that

Bede’s perspective has its problems by questioning him in the first place, and he even shows some wariness in his attribution, concluding only that “[ÆC] may as well be Æthelberht’s.”

Wormald would have been better served by remaining wary, and not using this line of argument.

Last, Wormald does not fully engage with the contrast between Eorcenberht’s supposed decrees and the other law codes of Kent, including ÆC. His decrees were ostensibly issued between ÆC and Hlothere and Eadric’s code. Wormald cites the “secular” nature of ÆC, but does not note that Hlothere and Eadric’s laws are even more secular. While ÆC contains several laws devoted to thefts against the church and clergy, Hlothere and Eadric’s laws do not mention

Christianity at all. Yet no one argues that Hlothere and Eadric’s code is older than Eorcenberht’s supposed decrees. Dating law codes by how secular they are is an ineffective means of comparison. Moreover, despite Wormald viewing ÆC as secular, the code grants the Church apparatus extreme power as compared to the king himself.248 The restitution for robbing a church or a bishop is higher than the restitution for robbing a king—a king who apparently only recently converted to Christianity. Mandating the abandonment of idols and observance of Lent is a display of royal power. Setting the king below the church and the bishop is a display of royal weakness and ecclesiastical power. Concluding that the former represents the advance of

Christianity and the latter only the first tendrils of Christian influence ignores the issue of how kings and churches would have likely exerted their power.

Wormald’s discussion of ÆC’s attribution and significance, which I believe to be the best positive case for ÆC’s attribution that a recent scholar has made, therefore falls short. Wormald does not fully remove Bede from a discussion of ÆC’s attribution, despite attempting to do so.

248 An anomaly that I will further discuss in this chapter. 86

His alternative arguments that do not include Bede’s words rely too much on ambivalent or thin evidence to be of enough persuasion. And Wormald himself appears aware of his argument’s shortcomings, peppering his analysis with caveats and repeating arguments. In short, the best case for ÆC being the work of Æthelberht is not good enough.249

The True Origins of the Law Code Ascribed to King Æthelberht of Kent

The time has come to consider what ÆC is, who wrote it, where it was written, when, and why.250 Answering one question is easy—ÆC was written in Kent. Bede has likely received it among the documents that Nothelm procured for him, and there is no political or ecclesiastical purpose for it to have emanated from any other locale.251 Before answering the who, when, and why questions, it is best to fully explain just what ÆC actually is.

ÆC is a law code that is atypical in its organization, focus, and legal body in comparison to contemporaneous Germanic codes. No other Continental Germanic codes or later Kentish codes have the same level of organization; the only one that approaches this level is Wihtred’s code.252 Every other Continental Germanic law code engages with wide swaths of society, displaying, even if incidentally, the hallmarks of a vibrant communitarian society. ÆC contains no laws about livestock, nor oath-bearers, sorcerers, or devils; for a law code that was

249 I remain grateful to Wormald for his overview of English law, and generally continue to defer to his scholarship. His discussion of ÆC in The Making of English Law is 10 pages out of 483. I by no means suggest that anything other than his specific case for ÆC’s attribution is flawed. 250 Throughout this explanation, I greatly rely on evidence and arguments that I have already made in Chapters 1 and 2. This repetition is unfortunate, but it is necessary to make a centralized, strong argument. Where possible, I will note if I have used certain evidence or made certain arguments elsewhere in this thesis. As a general rule, my textual analyses in this chapter rely on arguments made in Chapter 2; my contextual analyses rely on arguments made in Chapter 1. 251 Bede describes ÆC specifically and apparently accurately; ÆC is the only law code that Bede mentions in the HE. Regardless of whether ÆC is legitimate, it seems clear that Bede possesses either ÆC or very good information about ÆC. See my argument at greater length in Chapter 2. 252 See Chapter 2 for an expanded version of this argument. 87 purportedly the first for an entire kingdom, its focus is remarkably narrow.253 Other law codes involve specific permutations that could only have arisen from case law, or explicitly state that they are enshrining various cases into law. ÆC betrays essentially no specific permutations, one reason why Wormald himself concluded that parts of ÆC must be even earlier oral code.254

Because ÆC is so well organized, so constrained, and so clearly not resulting from case law or past judgments, it is likely that it is a concocted code. Clearly, ÆC is not a law code even in the sense that contemporaneous law codes were.

ÆC is not only a concoction. It also lacks any conceivable practical use. Who could have cared about a law code that only deals with a very small segment of society, that grew out of no organic tradition, that prescribes composition in terms of unavailable, unminted coinage? It did nothing to boost the profile of the king who issued the code. As Wormald writes, Æthelberht would have “gained less than did kings from Lex Salica or Rothari from his Edict, and much less than did late-seventh-century English kings.”255 It did not establish Kent as a Christian kingdom.

Other Germanic states that issued law codes did so long after conversion.256 Since ÆC is impractical for use and would not have boosted the profile of an early seventh century, recently converted monarch, it need not have been issued at the time of conversion.

Instead, although little evidence points toward ÆC having been issued during the early seventh century, much aligns with its having been drafted during King Wihtred’s reign, probably after 695. One can reach this conclusion from examining both textual and contextual clues. The

253 See Chapter 2 for an expanded version of this argument. 254 The argument that ÆC’s inorganic nature means it preserves an earlier oral code is, I believe wishful thinking. First, it relies on the flawed argument of examining so-called archaisms and syntax. Second, a monetary system of any sort was not present until just before ÆC was purportedly written, meaning that an oral code defined in terms of shillings and sceattas would have been meaningless. 255 Wormald, The Making of English Law, 96. 256 Fischer Drew, The Lombard Laws, 16-17. The Lombards had been Arian Christians for centuries, and even after a marked shift toward Catholicism that began in 584, Rothair’s Edict was not written until 643. 88 prologue to Hlothere and Eadric’s code does not mention Æthelberht by name. Nor does

Wihtred’s code seem at all aware of ÆC. Although Wihtred’s code recognizes the existence of

Hlothere and Eadric’s code, Ine’s code, and even, possibly, Eorcenberht’s lost code, ÆC is entirely absent, despite Æthelberht apparently being an illustrious king, and his law code the basis for all Anglo-Saxon law.257 Since historians are reasonably certain about the date of

Wihtred’s law code—it was issued in September of 695—that Wihtred neither mentions

Æthelberht nor seems in touch with ÆC suggests that ÆC was not written until after Wihtred’s law code; that is, ÆC likely dates to later than 695.

Examining the language of ÆC itself, as compared to Wihtred’s code, also indicates a date of issue during Wihtred’s reign. Oliver wrote that “the language of the laws of Wihtred demonstrates more archaic retention than that of the laws of Hlothere and Eadric but more modernization than found in the laws of Æthelberht…[it] shares many of the archaisms present in Æthelberht.”258 While we have seen the dangers of using archaisms as a method of precisely dating each code, the grammatical anomalies undeniably set ÆC and Wihtred’s code apart. If

ÆC shares supposed archaisms with Wihtred’s code, and not Hlothere and Eadric’s, then the similarity indicates that the two codes may have been written by people with similar lexicons.

Since Hlothere and Eadric’s code was written between when ÆC was purportedly written and when Wihtred’s code was written, the resulting pattern of so-called primitive lexicon changing to a more so-called modern lexicon, before reverting to a primitive one would be strange indeed.

Instead, by adopting a healthy skepticism toward the notion that one can determine whether lexicon is primitive or modern, and merely examining the differences and similarities of lexicon,

257 Oliver, Beginnings of English Law, 165-66. See Chapter 2 for an expanded version of this argument. 258 Ibid., 148. 89 a simpler pattern emerges. ÆC and Wihtred’s code were likely written at around the same time; that is, at around the turn of the eighth century.

ÆC’s opening provisions suggest a far more powerful church than one might credit for the early seventh century. ÆC defines exorbitant composition for offenses against all manner of the church hierarchy: the church itself, bishops, priests, deacons, and other clerics. In ÆC, the king is apparently worth only as much as a priest.259 British Christians aside, the church hierarchy was not well-established during Æthelberht’s reign.260 The Christian foothold in Kent was transient in any event, faltering during Eadbald’s reign, also suggesting that no well- established church hierarchy existed.261 Since Archbishop of Canterbury Deusdedit died in 664, and Archbishop Theodore did not arrive until 669, Anglo-Saxon Christianity was not permanently established in Kent until the last three decades of the seventh century.262 This section is not a meaningless veneer; it is a clear display of the church’s power as compared to the king’s. And given that the church did not begin to truly accrue power in Kent until after around

670, this display of power indicates that ÆC may date to the end of the seventh century, or perhaps the beginning of the eighth century.263

A comparison of the opening provisions of ÆC with the question-and-answers text between Gregory and Augustine also strongly indicates that the code cannot date to earlier than the late seventh-century. In response to Augustine asking “I beg you to tell me how one who robs

259 Ibid., “ÆC,” §§1-7, §10, 61-63. This feature, incidentally, is one that Wormald views as “a problem whatever approach one adopts: an early medieval legal system where bishops were accorded higher status than kings is not easily envisaged.” I believe that my approach, that ÆC may have been written somewhat later than commonly acknowledged, and probably by clergymen themselves rather than the king, solves this problem. 260 See Chapter 2 for this argument. 261 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ii.5, 79. 262 Nor should ÆC have been enshrining an ideal for what Æthelberht hoped the church hierarchy would be. As argued at much greater length in Chapter 2, there was no real political reason for Æthelberht to have his law code feature the church so prominently. 263 See below for a further discussion of the significance of the church accruing power after 670. 90 a church should be punished,” Gregory states that “you should also add that they ought to restore whatever they have stolen from a church. But God forbid that the Church should make a profit out of the early things it seems to lose and so seek to gain from such vanities.”264 Gregory therefore states quite plainly that stolen property can be restored, but the church cannot seek anything in addition to the original value, or indeed anything beyond simple restoration. Yet a corresponding law of ÆC, §1, states that “God’s property and the church’s [is to be compensated] with 12-fold compensation.”265 This is not an incidental law. It is the first law of the entire code, and it is the one that decrees the greatest composition.

The disparity between Gregory’s condemnation of the Church’s profiting from theft and

§1 of ÆC is striking. There are several conclusions to be drawn from this disparity. First,

Gregory’s condemnation appears more consonant with the weak state of the early Anglo-Saxon

Church in Kent. While there is no way to be certain as to what the composition for stealing from the Church was at the time, the Church was probably impotent such that the composition was closer to equal restoration than twelve-fold restoration. In this comparison, ÆC appears the outlier, not Gregory’s prescription. Second, since recent scholars believe the question-and- answer text is authentic, albeit not extant in England as a manuscript until the arrival of

Archbishop Theodore to Kent in 669, for both the question-and-answer text and ÆC to be authentic would suppose unlikely contortions. In this scenario, Gregory would have ordered

Augustine to be lenient with thieves. Yet Augustine, sent by Gregory to convert the English, and having just written to Gregory for advice, would have then allowed Æthelberht to write ÆC to

Augustine’s advantage in a way that Gregory specifically prohibited and which was to

264 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, i.27, 44. “Vanities” is likely a corrupted translation. The true meaning is probably “fines.” 265 “ÆC,” §1, in Oliver, Beginnings of English Law, 61. 91

Æthelberht’s disadvantage. While there is no way to be certain that this scenario is not factual, it seems tremendously unlikely. Third, ÆC seems to be directly responding to the question-and- answer text. Precisely what Gregory specifically prohibited, exactly where he drew limits on

Canterbury’s power, is the law with the greatest composition; that most directly asserts the church’s power; that opens the code. The question-and-answer text in this form only arrived in

England in the late seventh century, and the Church’s power only greatly increased at this point as well. The disparity between Gregory’s answer and §1 of ÆC, as well as the fact that §1 seems to be a direct response to the question-and-answer text, indicates that ÆC dates to no earlier than the late seventh century.

As for the terms of composition used in ÆC itself, these also converge in suggesting a late seventh-century date.266 Each offense is defined in terms of shillings or sceattas. At the time of Æthelberht, however, gold coins were not minted to great extent, and even then for ornamental, not monetary purposes.267 The earliest English gold coin discovered appears to have been issued by Eadbald. Other numismatic evidence suggests that coins were rare in early seventh century Kent, and therefore were unsuitable as terms of recompense.268 Coins did not circulate in England itself to a great enough extent to support a monetary fine system until far deeper into the seventh century, indicating that for ÆC to have functioned at issuance, it should have been issued late in the seventh century. Germanic kings did mean for their fines to be paid in coin, and would set suitable substitutes for populations which did not yet use money.269 That

266 See Chapter 2 for further discussion of this significance. My foregoing argument about sceattas in this chapter, however, is novel. 267 Grierson and Blackburn, Medieval European Coinage, 160. 268 Ibid., 157. 269 King, Charlemagne: Translated Sources, 232. 92

ÆC does not do so suggests that in the context in which it was written, coins were already a normal means of compensation.

The use of the term “sceatta” is also a curious feature that suggests that ÆC was issued no earlier than the end of the seventh century, and probably later than Wihtred’s code. Although a single undated old English poem suggests that sceattas were divided shillings, the term

“sceatta” later in the seventh century became associated with a debased silver coin.270 These coins crowded out shillings very quickly, eventually entirely replacing them by the middle of the eighth century before themselves becoming replaced by pennies. That ÆC uses the term

“sceatta” on several occasions suggests that it was written during a time when sceattas were beginning to replace shillings as accepted compensation. Since this did not occur until the end of the seventh century—and since the use of sceattas and shillings ceases entirely after the time of

Wihtred in favor of pennies—ÆC would therefore date to around this time. Notably, neither of the other two extant Kentish codes use sceattas, although a corrupted translation of a single law in Wihtred’s code indicates that that law may have set sceattas as composition rather than an anomalously high composition in terms of shillings.271 Hlothere and Eadric setting no

270 See Oliver, Beginnings of English Law, 82; Grierson and Blackburn, Medieval European Coinage, 163. The text itself of the poem states that a ring “by shilling count was reckoned 600 sceattas of pure gold.” This would seem to indicate that sceattas were made of gold, but it is, of course, a single poem, and not from Kent. The historian H. Munro Chadwick, whom Oliver cites as one of the bases for her claims about monetary systems, himself writes that “there can be little doubt that in Æthelberht’s Laws at all events sceatt is used to denote a silver coin, in all probability coins of the small and comparatively thick type to which the name has always been applied by numismatists.” Chadwick also notes that ÆC gives sceattas curiously little value as compared to shillings—20 sceattas to the shillings, rather than Mercia’s 4 sceattas to the shilling. Since Mercia’s sceattas were of the debased silver coin type, this would indicate that if ÆC’s sceattas were weights of gold, they would have to be miniscule for the terms of equivalence to work. Chadwick concludes, however, that ÆC’s sceattas likely did not differ greatly in weight (and presumably type of metal) from Mercia’s sceattas, and the true difference was that Kentish shillings weighed much more than Mercia’s shillings. Since sceattas were not minted until later in the seventh century, a fact that Chadwick, writing in 1905, did not himself know, his evidence therefore implicitly suggests that ÆC has a later issuance date than thought. 271 “Wihtred’s code,” §8, in Oliver, Beginnings of English Law, 157; Oliver, Beginnings of English Law, 172- 3. The law in question sets 80 shillings as composition for a lord’s servant doing slave-work on the Sabbath, a stiff fine given that the wergild was only 100 shillings. Scholars believe a scribe misunderstood an abbreviation, possibly sc’, and the true fine was meant to be 80 sceattas, or 4 shillings. 93 composition in terms of sceattas, Wihtred possibly doing so for a single law, and ÆC doing so for seven separate clauses within four laws indicates a pattern in which ÆC would be the latest of the three codes.

Beyond the text of ÆC itself, contextual evidence suggests that ÆC dates no earlier than the late seventh century, and that it may have been circulated as part of a broader propaganda campaign undertaken by the church at Canterbury. After the confused period during which the see of Canterbury was vacant and King Egbert likely a child, Archbishop Theodore’s tenure, beginning in 669, marked the permanent establishment of Anglo-Saxon Christianity in Kent.272

At around this time, as Shaw notes, Canterbury began “passing off older or older-looking items as genuine relics of the original Augustinian mission.”273 These relics were texts—the questions- and-answers between Gregory and Augustine, “Augustine’s Gospels,” and the like—but more importantly, they were physical manuscripts, akin to saints’ relics. Their circulation is itself an argument for Canterbury’s deep Christian heritage, regardless of what the documents actually said. Since the Augustinian mission was rather ineffectual, and the establishment of Anglo-

Saxon Christianity rather recent, the evidence suggests that there was an ecclesiastical argument at play, with figures in Kent connected to the archdiocese circulating materials emphasizing the antiquity of Christianity and Christian practices in Canterbury.

One can also view the contours of this propaganda effort by examining the similarity in perspectives on the Augustinian mission among Bede and Boniface, before Boniface ever heard of the HE. Bede in Northumbria and Boniface on the Continent each go to Kent for details about

272 This time corresponds well to the 664 Synod of Whitby, when the Northumbrian King Oswiu formally ruled that his kingdom would celebrate the Roman date for Easter, rather than the Irish one. The establishment of Anglo-Saxon Christianity as a Roman Christian tradition appears to be a mid-seventh century phenomenon, rather than directly resulting from Augustine’s mission. 273 Shaw, Bede’s Narrative, 116. 94 the origins of the Augustinian mission and the question-and-answer text; not only are both fixated on the Augustinian mission, but they are fixated on the exact same aspects of the

Augustinian mission. This note-for-note similarity makes sense in the context that Kentish religious figures are making an argument—and passing off “older-looking items as genuine relics”—about the Augustinian mission, which Bede and Boniface therefore respond to and repeat.

ÆC appears likely to be one of those “older-looking items.” Since Kentish figures at this time seem concerned with emphasizing Canterbury’s rich Christian heritage, a law code with some ecclesiastical aspects, purporting to be from the days of the first Anglo-Saxon convert to

Christianity, would accomplish that goal well. That the code is still “kept and observed by the people” also suggests a late seventh or early eighth century issuance.274 With various wars, vacant sees, rising and falling levels of Christianity among the populace, and several kings issuing their own law codes, ÆC should have been abandoned or become obsolete by Bede’s time. That it had not—or that Bede’s intermediaries told him that it had not—suggests not ÆC’s longevity, but its recency.

By this point in this thesis, ÆC certainly appears to be a product of the late seventh or early eighth century. Kentish religious figures were at this time promoting the story of the

Augustinian mission and many aspects relating to it, regardless of their authenticity, a propaganda effort that ensnared Bede—or, perhaps, of which he himself was a part. And there are numerous reasons to doubt ÆC’s authenticity. A textual analysis of ÆC itself and comparison with contemporaneous Germanic law codes and later Kentish law codes reveals that the code is an outlier in its tight focus, careful organization, and flat legal body; that it is written

274 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, ii.5, 78. 95 in terms of recompense for coins that either were not in wide circulation in early seventh century

Kent or did not yet exist; that, unlike most other law codes from the period, ÆC was impractical for use; that no Kentish king mentions Æthelberht explicitly in the prologue to his own law code nor implicitly references ÆC in the body of his codes; that no king mentions Æthelberht by name or references ÆC until Alfred the Great at the turn of the tenth century. Rather than having been issued during Æthelberht’s reign, ÆC appears likelier to have been written or issued during the reign of Wihtred, sometime in the 30 years or so preceding Bede’s HE.

As for who is likely to have drafted ÆC, the evidence is inconclusive, but it points toward agents aligned with the archdiocese of Canterbury. Since ÆC appears to be written for the purpose of demonstrating primacy of the archdiocese of Canterbury, it seems likely that it is ecclesiastical rather than royal in origin. Albinus, “educated in the Kentish Church by

Archbishop Theodore…passed on to [Bede] whatever seemed worth remembering through

Nothelm,” himself a future Archbishop of Canterbury, indicating that Bede’s skewed knowledge of Kent came directly from the archdiocese.275 The code’s organization and opening provisions also indicate this conclusion. Ecclesiastical figures would have had a stake in creating a code that granted the church and bishop more power than the king himself—notably, the highest protection the church garners in Wihtred’s code is equal to, not greater than, the king’s.276 Indeed, that those clauses are in direct contradiction to Gregory’s prohibition on the church profiting from the restitution of stolen property also suggests that ecclesiastical figures interested in boosting their own power are responsible for the code. These figures would have also had a more vested interest in promoting Kent’s Christian heritage and Roman roots, particularly given that Wihtred and his court would have been consumed by more banal matters, like attempting to regain

275 Bede, Ecclesiastical History, ed. and trans. by McClure and Collins, preface, 3-4. 276 “Wihtred’s code,” §2, in Oliver, Beginnings of English Law, 153. 96 control over and hold of his secular kingdom. Kent, once the most powerful and culturally important kingdom of Anglo-Saxon England, was at this stage in its history beginning to decline, and would soon be subsumed by other, more powerful kingdoms. A conscious promotion of

Kent’s rich and ancient Christian heritage—at least when compared to other Anglo-Saxon kingdoms—could have functioned as a way to cling to cultural importance, even as political strength waned.277 ÆC would be a small, but vital part of that promotion. These propagandists, in an effort to make the code seem old and genuine, may have included real customs in their forgery to go along with the Christian veneer to begin it. It is notable that although the rest of the code is not Christian, it is not overtly pagan either—there are no references to offerings to devils, as in later codes; no references to sorcery or other magic, as in Germanic law codes. The lack of pagan aspects to the code is further evidence that it was the work of Christian figures working from Canterbury.

One cannot discount the possibility, however, that Wihtred and his court were responsible for—or at least aware of, and tacitly approving—the issuance of ÆC. If ÆC was written by a similar hand as Wihtred’s code, then it is certainly possible that it was written by the same hand, rather than merely someone who lived at the same time. And Wihtred’s code is itself highly

Christian, more overtly so than ÆC itself (with the caveat that ÆC grants the Church more power than Wihtred’s code). Wihtred’s code’s overt Christianity indicates that the king may have been comfortable enough with the church’s power to have included such a powerful Christian section at the beginning of the ÆC.278 Moreover, were a forged ÆC to have been circulating in

277 And evidently, a pretty successful attempt, given how widely the HE became. 278 The question-and-answer text’s existence and widespread circulation is one reason for why Wihtred himself could not simply issue the laws in ÆC that gave the Church such power. Augustine and Gregory the Great were revered figures, meaning that it may have been difficult for a monarch to obviously undercut them. A law code purporting to be from Æthelberht’s time, however, could show a tradition as old as the question-and- answer text, lending its provisions a greater veneer of legitimacy. 97

Kent during Nothelm’s expedition and at the time of the HE, presumably some royal authority must have been allowing the code to circulate, as if it were real.

At this juncture, it is impossible to say who exactly issued ÆC, for what purpose, and when. Numismatic, archaeological, and contextual evidence, as well as the evidence of ÆC itself, suggests that ÆC was not a product of the early seventh century, as it has been understood to have originated for nearly 1,300 years. Instead, evidence points to an issuance date of about a century later, during the reign of Wihtred, if not issued by Wihtred himself, as an aspect of

Canterbury’s larger propagandistic campaign to extoll its own Christian heritage. This case is not ironclad. There is too much still in doubt, and that historians have to this point been so credulous of Bede has stunted the chance to best analyze Æthelberht and ÆC. I am, however, certain that my analysis yields a better explanation for ÆC’s origins than the conventional view. While I am not certain that agents aligned with the archdiocese of Canterbury forged ÆC, or that Wihtred did, or whether ÆC contains some genuine early Anglo-Saxon laws, I find it likelier than not that

King Æthelberht himself did not issue the eponymous law code.

98

Conclusion: Our View of Early Anglo-Saxon England

One can say few things with certainty about seventh and eighth century Kent. Too much time has passed; too few sources survive; our context for the sources that do survive is frustratingly limited. Those caveats aside, too much about ÆC seems suspicious for it to be accepted as authentic—as it has been for over a millennium. If Bede is entirely removed from the narrative, then all we are left with for ÆC is its existence in a single 12th-century manuscript, in which the attribution to Æthelberht is only noted in the code’s rubric.279 No one would take that attribution seriously on this basis, quite apart from the fact that ÆC looks flat, invented, and contrived. But instead of trying to understand the code in the context of the Textus Roffensis, historians have inserted it into Bede’s narrative, creating a historical timeline not borne out by the evidence.

Indeed, even with ÆC’s attribution as Æthelberht’s, the code has not meant much to anyone in any specific way. ÆC may be viewed as the earliest English law and therefore important for legal history, but only in a symbolic sense. Its utility to an understanding of Anglo-

Saxon legal history is in the form of book titles—Law and Legislation from Æthelberht to

Magna Carta, for instance.280 Even in book like Law and Legislation, its authors admit that “we have spoken of Æthelberht’s ‘laws,’ but it is desirable to make it clear that these laws are not legislation in a wide sense.”281 Because King Alfred the Great, the famous ninth century Wessex king, mentions ÆC in the preface to his own law code, historians give ÆC lip service, but only as symbolic lineage to real Anglo-Saxon laws. Even historians like Lambert, who do examine the text of ÆC itself to make historical arguments about Kentish society, do not take the laws

279 Oliver, Beginnings of English Law, 83. 280 Richardson and Sawyer, Law and Legislation from Æthelberht to Magna Carta. 281 Ibid., 5. 99 literally. Lambert writes that they are “best understood as a snapshot of an existing pre-Christian oral tradition” that encouraged feuding as conflict resolution, rather than as a practical legal framework.282

The reason that ÆC is only symbolically important is because it is not materially important. Although prior historians have all argued for ÆC’s authenticity or taken it for granted, they all implicitly hold this view. The laws of ÆC themselves are one-dimensional. It is not because ÆC preserves an even earlier oral tradition that had to be memorized; it is because ÆC does not preserve, in any meaningful sense, organic legal tradition. It is only through taking

Bede’s description of the text’s existence and purpose as gospel that historians have forced themselves to believe that ÆC is important in any way, that it must be examined as a means of determining the contours of early Anglo-Saxon legal tradition, or that it represents a snapshot of

Æthelberht’s proto-Christian kingdom.

For what other documents, what other accepted areas of Anglo-Saxon history, is it the case that relying on Bede has obscured historians’ vision? Although I demonstrated that Bede had a paucity of evidence for Kent, Bede himself seemed proud of his evidence. He went so far as to write that his Kentish intermediary was the “principal authority and helper in this modest work…it was chiefly through the encouragement of [him] that I ventured to undertake this work.”283 If Bede was so certain about Kent, yet so wrong about how events actually occurred, other parts of the HE should be called into question. Much work is necessary to reexamine the documents from this period. Historians have taken the Venerable Bede at his word for far too long, questioning ancillary aspects of his work—what were his sources? His biases? —without fully coming to terms with what his deficiencies indicate for our understanding of Anglo-Saxon

282 Lambert, Law and Order in Anglo-Saxon England, 10. 283 Bede, Ecclesiastical History, ed. and trans. by Judith McClure and Roger Collins, preface, 3-4. 100

England. Bede may be a major source for this period, but he is not the only one, and his importance does not mean that historians should treat his work as credulously as many have.

The effort to mythologize and emphasize the importance of the Augustinian mission is ripe for further study. If Bede’s narrative is abandoned and ÆC’s authenticity discarded, then it appears that Pope Gregory and Augustine were 60 years ahead of their time. The conversion of

Anglo-Saxon England did not, in reality, occur from the Augustinian mission sent from Rome at the turn of the seventh century, but from Irish missionaries in the decades following, and other agents from Rome not affiliated with the Augustinian mission. The 660s appear to be a watershed moment in which Anglo-Saxon Christianity fully turns toward Rome, with the Synod of Whitby in 664 and the arrival of Archbishop Theodore in Canterbury in 669. It is only at this point that Kent becomes a literate kingdom. Hlothere and Eadric’s law code is contemporaneous with Theodore’s archbishopship, while Wihtred’s code and ÆC likely date to shortly after

Theodore’s death in 690. It is also around this time that Canterbury appears to be asserting its ancient origins and attempting to increase its power. Either by coopting manuscripts purporting to be from the Augustinian mission that were widely circulating, or by circulating their own relics from the mission, it is then, contemporaneous with the promulgation of other Kentish law codes, that Canterbury makes its self-aggrandizing argument that emphasizes the importance of the Augustinian mission.

Bede’s work is clearly influenced by this effort, but it is an effort with wider ramifications than just Bede. Whether Bede was taken in, or was even a willing participant, is an open question. Bede, after all, shares the same motivations of emphasizing Rome as the basis for

Anglo-Saxon Christianity, and probably did not feel certain that the debate had finished by his 101 time.284 Future scholars may also be able to determine when this effort began. Was it Archbishop

Theodore himself who first made this argument, as a way to solidify his jurisdiction and pontifical dignity? Or did the effort only begin after his death, when the prominence of Kent began to wane and the need to legitimate and ensure Canterbury’s ecclesiastical dominance became more urgent? Although sources remain thin and there is no way of ensuring that the sources that do exist are any more reliable than was the HE, I am confident that some answers do exist, and await competent scholarship to be elucidated.

Historians like Tom Lambert have parsed the words of ÆC, trying to determine what the world of early Anglo-Saxon England looked like. Although our vision is somewhat obscured, it is not entirely so. Seventh and early eighth century Anglo-Saxon England was broadly

Germanic, with fledgling royal and ecclesiastical power, mature enough that figures existed to write histories, question documents, and further their own agendas. Its intellectual development was such that propagandistic efforts existed, with documents either forged or coopted for such purposes. The names, customs, language, culture, and even, to some extent, religion, may be unfamiliar, but the power struggles, propaganda efforts, and forgeries are certainly not. The elite actors of early Anglo-Saxon society are subtler, more complex and, for better or worse, more similar to our society than they are often credited.

284 Foley and Higham, “Bede on the Britons,” 154-185. 102

Bibliography

Primary Sources

Attenborough, F.L., The Laws of the Earliest English Kings. New York: Russell & Russell, 1922.

Barmby, James, Gregory the Great, “Registrum Epistolarum: Book XI, Letter 29.” From Nicene and Post-Nicene Fathers, Second Series, Vol. 13. Edited by Philip Schaff and Henry Wace, translated by James Barmby. Buffalo, NY.: Christian Literature Publishing Co., 1898. Revised and edited for New Advent by Kevin Knight. .

Bede, Ecclesiastical History of the English People, edited and translated by Judith McClure and Roger Collins. Oxford: Oxford University Press, 1969.

Emerton, Ephraim, Boniface, The Letters of Saint Boniface. Translated by Ephraim Emerton. New York: Columbia University Press, 2000.

Drew, Katherine Fischer. The Laws of the Salian Franks. Translated by Katherine Fischer Drew. Philadelphia: University of Pennsylvania Press, 1991.

Drew, Katherine Fischer. The Burgundian Code: Book of Constitutions or Law of Gundobad- Additional Enactments. Translated by Katherine Fischer Drew. Philadelphia: University of Pennsylvania Press, 1972.

Drew, Katherine Fischer. Lombard Laws. Translated by Katherine Fischer Drew. Philadelphia: University of Pennsylvania Press, 1973.

King, P.D. Charlemagne: Translated Sources. Lamprigg, Kendal, Cumbria: P.D. King, 1987.

Robertson, Agnes Jane, ed. The Laws of the Kings of England from Edmund to Henry I. Cambridge: Cambridge University Press, 1925.

Whitelock, Dorothy. English Historical Documents. Vol. Volume 1, C.500-1042. London: Eyre & Spottiswoode, 1955.

Secondary Sources

Adams, Henry, “The Anglo-Saxon Courts of Law,” in Henry Adams et. all., Essays in Anglo- Saxon Law, 1-54. Boston, Mass: Little, Brown, 1876.

Ahern, Eoghan. “Bede's miracles reconsidered.” Early medieval Europe 26 (2018): 282-303.

Ammon, Matthias. “‘Ge mid wedde ge mid ade’: The Functions of Oath and Pledge in Anglo- Saxon Culture,” Historical Research 86 (2013): 515-35. 103

Bassett, Steven, The Origins of Anglo-Saxon Kingdoms. London: Leicester University Press, 1989.

Blair, Peter Hunter, Roman Britain and Early England: 55 B.C.- A.D. 871. New York: The Norton Library History of England, 1963.

Brooks, Nicholas P. “The Laws of King Æthelberht of Kent: Preservation, Content and Composition,” in Textus Roffensis: Law, Language, and Libraries in Medieval England, edited by Bruce O’Brien and Barbara Bombi, 105-36. Turnhout: Brepols Publishers, 2015.

Brooks, Nicholas P., Anglo-Saxon Myths: State and Church 400-1066 (Rio Grande, Ohio: Hambledon Press, 2000.

Brown, Peter. The Rise of Western Christendom: Triumph and Diversity, AD 200-1000. The Making of Europe. Malden, Mass.: Blackwell, 1997.

Brown, Peter. Through the Eye of a Needle: Wealth, the Fall of Rome, and the Making of Christianity in the West, 350-550 AD. Princeton, N.J.: Princeton University Press, 2012.

Bruce-Mitford, Rupert. The Sutton Hoo Ship-Burial, Volume 1: Excavations, Background, the Ship, Dating and Inventory. London: British Museum Publications, 1975.

Brown, George Hardin. A companion to Bede. Woodbridge: The Boydell Press, 2009.

Campbell, James. The Anglo-Saxon State. 1st Edition. London; New York: Bloomsbury Academic, 2003.

Campbell, James. The Anglo-Saxons. Ithaca, N.Y.: Cornell University Press, 1982.

Campbell, James. "Questioning Bede," in Intersections: the archaeology and history of Christianity in England, edited by Martin Henig, 119-127. Oxford: Oxford University Press, 2010.

Carlson, David Richard. "Bede on Roman Britain's end," Latomus 73 (2014): 188-199.

Chadwick, Hector Munro. Studies on Anglo-Saxon Institutions. Cambridge: Cambridge University Press, 1905, 1963. 1-18, 202-92.

Church, Stephen D. "Paganism in Conversion-Age Anglo-Saxon England: The Evidence of Bede's Ecclesiastical History Reconsidered," History. The Journal of the Historical Association 93 (2008) 162-180.

Dammery, Richard. John. Edward. Law-code of King Alfred the Great. Dissertation, University of Cambridge, 1991. https://doi.org/10.17863/CAM.15910

104

Esmonde-Cleeary, A.S. The Ending of Roman Britain. London: Rowman & Littlefield, 1990.

Foley, William Trent and Nicholas J. Higham. "Bede on the Britons," Early Medieval Europe 17 (2009):154-185.

Gluckman, Max, “Peace in the Feud,” in Gluckman, Custom and Conflict in Africa, 1-26. Oxford: Basil Blackwell, 1955.

Goffart, Walter A. The Narrators of Barbarian History (A.D. 550-800): Jordanes, Gregory of Tours, Bede, and Paul the Deacon. First Paperback Edition. Notre Dame, Indiana: University of Notre Dame Press, 2005.

Goffart Walter, “Bede’s Vera Lux Historiae Explained,” in Anglo-Saxon England 34 (2005): 111-116.

Grierson, Philip, and Mark Blackburn. “The Anglo-Saxons: Sixth-Mid Eighth Centuries,” in Medieval European Coinage: With a Catalogue of the Coins in the Fitzwilliam Museum, Cambridge. Volume 1: The Early Middle Ages (5th-10th centuries), 155-189. Cambridge: Cambridge University Press, 2007.

Harding, A. The Law-Courts of Medieval England. London: George Allen & Unwin, 1965.

Herren, Michael W. "The 'Papal letters to the Irish' cited by Bede: how did he get them?" in Clerics, Kings and Vikings: Essays on Medieval Ireland in Honour of Donnchadh Ó Corráin, edited by Emer Purcell, Paul MacCotter et a., 3-10. Dublin: Four Courts Press, 2015.

Higham, Nicholas J. "Bede and the Early English Church," in Leaders of the Anglo-Saxon Church. From Bede to Stigand, edited by Alexander R. Rumble, 25-40. Woodbridge: The Boydell Press, 2012.

Hilliard, Paul. “Bede and the Changing Image of Rome and the Romans.” Chapter. In Writing the Early Medieval West, edited by Elina Screen and Charles West, 33–48. Cambridge: Cambridge University Press, 2018. doi:10.1017/9781108182386.004.

Hough, Carole. “The Earliest English Texts? The Language of Kentish Laws Reconsidered,” in Textus Roffensis: Law, Language, and Libraries in Medieval England, edited by Bruce O’Brien and Barbara Bombi, 137-156. Turnhout: Brepols Publishers, 2015.

Jones, Michael E., The End of Roman Britain. Ithaca: Cornell University Press, 1996.

Kirby, David, “Northumbria in Time of Wilfrid,” in Saint Wilfrid at Hexham, edited by David Kirby, 1-34. Newcastle upon Tyne: The Society of Antiquaries of Newcastle, 1917.

Knibbs, Eric, “Pseudo-Isidore at the Field of Lies: Divinis praeceptis (JE †2579) as an Authentic Decretal,” Bulletin of Medieval Canon Law n.s. 29 (2011/2012): 1–34.

105

Lambert, Tom. Law and Order in Anglo-Saxon England. Oxford: Oxford University Press, 2017.

Lambert, Malcolm David. Christians and Pagans: The Conversion of Britain from Alban to Bede. New Haven: Yale University Press, 2010.

Lapidge, Michael. "Bede and Roman Britain," in Intersections: the archaeology and history of Christianity in England, edited by Martin Henig, 107-117. Oxford: Oxford University Press, 2010.

Lehman, Warren Winfred, "The First English Law," Journal of Legal History 6, no. 1 (May 1985): 1-32.

Levison, Wilhelm. England and the Continent in the Eighth Century. Oxford: Clarendon Press, 1946.

Loyn, H.R. "The Hundred in England in the Tenth and Eleventh Centuries," in British Government and Administration: Studies Presented to S.B. Chrimes, edited by H. Hearder and H.R. Loyn, 1-14. Cardiff: University of Wales Press, 1974.

MacCarron, Máirín. "Royal Marriage and Conversion in Bede's Historia Ecclesiastica Gentis Anglorum," The Journal of Theological Studies 68 (2017): 650-670

Meyvaert, Paul, “Bede’s Text of the Libellus Responsionum of Gregory the Great to Augustine of Canterbury,” in England before the Conquest: Studies in Primary Sources Presented to Dorothy Whitelock, edited by Peter Clemoes and Kathleen Hughes, 15-33. Cambridge: Cambridge University Press, 1971.

McKitterick, Rosamond. "A King on the Move: The Place of an Itinerant Court in Charlemagne’s Government.” In Royal Courts in Dynastic States and Empires: A Global Perspective, edited by Duindam Jeroen, Artan Tülay, and Kunt Metin, 145-69. Leiden; Boston: Brill, 2011. http://www.jstor.org/stable/10.1163/j.ctt1w8h2rh.12.

Mitchell, Bruce, and Robinson, Fred C. A Guide to Old English. Hoboken: John Wiley & Sons, Incorporated, 2011. Accessed December 9, 2018. ProQuest Ebook Central.

Moorhead, John. "Bede on the Papacy," The Journal of Ecclesiastical History 60 (2009): 217- 232.

O'Brien, Conor. "Kings and Kingship in the Writings of Bede," The English Historical Review 132 (2017): 1473-1498.

Oliver, Lisi, The Beginnings of English Law. Toronto: University of Toronto Press, 2002.

Pohl, Benjamin. Bulletin of the John Rylands Library: (Re-)Framing Bede's Historia ecclesiastica in Twelfth-Century Germany: John Rylands Library, MS Latin 182. Vol. 193 num. 1, Spring 2017: 67-120.

106

Richardson, HG, and GO Sawyer. Law and Legislation from Æthelberht to the Magna Carta. Edinburgh: Edinburgh University Press, 1966.

Sawyer, P.H. From Roman Britain to Norman England. New York: Routledge, 1978.

Shaw, Richard. “What Bede's Use of Caveats Reveals about his Attitude to his Sources,” Nottingham Medieval Studies (2015): 1-24.

Shaw, Richard. How an Early Medieval Historian Worked: Methodology and Sources in Bede's Narrative of the Gregorian Mission to Kent. Dissertation, University of Toronto, 2014.

Stancliffe, Claire. “British and Irish contexts,” in The Cambridge Companion to Bede, edited by Scott DeGregorio, 69-83. Cambridge, UK: Cambridge University Press, 2010.

Stenton, Frank. Anglo-Saxon England. 3rd Edition. Oxford, UK: Oxford University Press, 1971.

Twomey, Carolyn. "Kings as Catechumens: Royal Conversion Narratives and Easter in Bede's Historia ecclesiastica," The Haskins Society Journal 25 (2013): 1-18.

Thacker, Alan. “Bede and history,” in The Cambridge Companion to Bede, edited by Scott DeGregorio, 170-190. Cambridge, UK: Cambridge University Press, 2010.

Wickham, Chris. Framing the Early Middle Ages: Europe and the Mediterranean, 400-800. Oxford: Oxford University Press, 2005.

Williams, Ann, Kingship and Government in Pre-Conquest England, c. 500-1066. New York: St. Martin’s Press, 1999.

Williams, Rowan. "Theology and the Paschal Controversy: Bede's Case Against the British Church." In Prayer and Thought in the Monastic Tradition, edited by Santha Bhattacharji, Rowan Williams, and Dominic Mattos, 31-44. London: Bloomsbury Publishing, 2014.

Wormald, Patrick, The Making of English Law: King Alfred to the Twelfth Century. Volume 1: Legislation and its Limits. Oxford, UK: Blackwell Publishing, 2001.

Wormald Patrick. The First Code of English Law. Canterbury: The Canterbury Commemoration Society, 2005.

Wormald, Patrick. “Bede and Benedict Biscop.” In The Times of Bede, edited by Patrick Wormald and Stephen Baxter, 3-29, Oxford, UK: Blackwell Publishing, 2006.

Yorke, Barbara. Kings and Kingdoms of Early Anglo-Saxon England. London: Routledge, 2002. Accessed March 15, 2019. ProQuest Ebook Central.

107

Images

Christie, Mike, English Kingdoms 600, June 26, 2007, online image, Wikimedia, https://commons.wikimedia.org/wiki/File:English_kingdoms_600_-_2.png