Biblical Analogues for Early Anglo-Saxon Law

chapter 11 Biblical Analogues for Early Anglo-Saxon Law

Carole Hough

Introduction

Religious influence on Anglo-Saxon law is taken to begin with the late seventh-century codes of Kings Wihtred of Kent and Ine of Wessex,1 where such topics as church dues, infant baptism, and Sunday observance first appear.2 The only earlier extant laws, those issued by King Æthelberht of Kent towards the end of the sixth century or the beginning of the seventh,3 and a supplementary set issued by his successors Hlothhere and Eadric in the mid seventh century, deal exclusively with secular concerns. With the exception of the opening sequence of Æthelberht’s code, inserted to make provision for the Roman missionaries whose arrival in the late sixth century acted as the catalyst for its promulgation in written form, his laws had clearly been in oral circulation long before the conversion to Christianity. The main analogues for these early Kentish laws are found on the continent, where comparison with other barbarian codes both aids interpretation and points towards a common ancestry. Aids to interpretation are much needed, since the early Kentish laws offer many challenges. Difficulties arise partly from the high proportion of hapax legomena, and partly from the elliptical phraseology, which assumes much background knowledge on the part of the reader or listener.4 As Whitelock explains:

1 I am grateful to participants at the conference on Law and Ritual in the Middle Ages, held in Leeuwarden from 22–23 September 2016, for their feedback on this paper. 2 It is less certain whether references to ecclesiastical penance appear as early as this. The issues are discussed in Carole Hough, ‘Penitential Literature and Secular Law in Anglo-Saxon England’, Anglo-Saxon Studies in Archaeology and History 11 (2000), 133–41, which at 139 concludes that ‘there is little evidence of a close link between the penitentials and secular law in early Anglo-Saxon England’. 3 The dating evidence is discussed in Carole Hough, ‘Legal and Documentary Writings’, in A Companion to Anglo-Saxon Literature, ed. Phillip Pulsiano and Elaine Treharne (Oxford: 2001), 170–3. 4 A list of hapax legomena in the Kentish laws is compiled by Patrizia Lendinara, ‘The Kentish Laws’, in The Anglo-Saxons from the Migration Period to the Eighth Century: An Ethnographic

The translation of the Anglo-Saxon laws has its special difficulties. They are frequently, especially in the earlier times, very briefly and even cryptically expressed, being composed for persons familiar with the general circumstances and thus requiring guidance on a particular issue only.5

The absence of surviving case law drawing on the extant legislation closes off that potential route to interpretation, and also leaves it uncertain whether the laws were actually put into practice.6 The same applies to a large extent even to later Anglo-Saxon law, including the great domboc issued by Alfred the Great towards the end of the ninth century. As well as incorporating the laws of Ine, the domboc contains a Prologue which draws extensively on Mosaic law and situates the Anglo-Saxons, like the Israelites, as the chosen people of God.7 Alfred’s domboc is thus taken to represent the first link between Old English and Old Testament law. The purpose of this paper is to suggest that such links may already appear in Æthelberht’s code, and to discuss some of the implications for our understanding of early Anglo-Saxon legislation.

Anglo-Saxon and Continental Law

The suggestion is not entirely new. The Anglo-Saxon laws stand apart from their continental cousins by being written in the vernacular language, Old English, rather than in Latin, and the reasons for this have been much debated. Indeed, since the three Kentish codes survive only in the twelfth-century Textus Roffensis manuscript (Rochester, Cathedral Library A.3.5), it has even been suggested that they may originally have been issued in Latin, and only later translated into Old English.8 This is not widely accepted, however, and

Perspective, ed. John Hines (Woodbridge: 1997), 223–4, followed by two further lists of words of limited occurrence, at 224–5. 5 Dorothy Whitelock, ed., English Historical Documents: Volume I, c. 500–1042, 2nd edn. (London: 1979), 365. 6 Surviving records of case-law are brought together in Patrick Wormald, ‘A Handlist of Anglo- Saxon Lawsuits’, Anglo-Saxon England 17 (1988), 247–81. Most date from the later Anglo-Saxon period, while the early material deals with civil rather than criminal justice—‘inasmuch as the distinction exists under early medieval conditions’, as Wormald points out, at p. 279. 7 The role of Mosaic law in Alfred’s domboc is examined in detail in Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century, volume I: Legislation and its Limits (Oxford: 1999), 416–29. 8 Lendinara, ‘The Kentish Laws’.