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Cnut's law code of 1018

Published online by Cambridge University Press:  26 September 2008

A. G. Kennedy
A. G. Kennedy
Affiliation:
Emmanuel College, Cambridge
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Extract

It is a matter of general recognition that Wulfstan, bishop of London from 996 until 1002 and archbishop of York from 1002 until his death in 1023, was responsible for the formulation of the series of law codes issued by Æthelred II, most likely between the years 1008 and 1014. For many years, however, the prevailing opinion among scholars was that the code of Cnut, which borrowed extensively from the 1008 code of Æthelred, was not produced until after Wulfstan died. This opinion was based on arguments set out by Liebermann in his article on relations between Wulfstan and Cnut, which he later reproduced in abbreviated form in the Gesetze: Liebermann believed that Cnut's code must have followed his proclamation of 1027.4 Such a dating would, of course, preclude the direct involvement of Wulfstan in its compilation.

Type
Research Article
Information
Anglo-Saxon England , Volume 11 , December 1982 , pp. 57 - 81
Copyright
Copyright © Cambridge University Press 1982

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References

1 The various versions, complete and fragmentary, have been edited by Liebermann, F. (Die Gesetze der Angelsachsen (Halle, 1903–1916) 1, 236–70)Google Scholar as V–X Æthelred. Among these codes the Old English V and VI Æthelred and a related Latin version are thought to derive from the same legislative session at Enham in 1008. The relationships between the versions are complex: explanations for their divergences have been suggested by Jost, Karl, Wulfstanstudien (Bern, 1950), pp. 35–44Google Scholar; Sisam, Kenneth, Studies in the History of Old English Literature (Oxford, 1953), pp. 278–87Google Scholar; and Wormald, Patrick, ‘Æthelred the Lawmaker’, Ethelred the Unready: Papers from the Millenary Conference, ed. David, Hill, BAR Brit. ser. 59 (Oxford, 1978), 47–80.Google Scholar There is general agreement that what Liebermann printed as VI Æthelred Appendix (Gesetze 1, 256–9)Google Scholar was not part of the original code. VII Æthelred, preserved only in the Quadripartitus, and the associated Old English VIIa Æthelred seem to derive from a royal council at Bath in 1009. VIII Æthelred is attributed to the year 1014 and may well be connected with the return of Æthelred from exile in Normandy. IX and X Æthelred are fragments which may represent versions of other codes which have survived more nearly intact; on this point, see Wormald, ‘Æthelred the Lawmaker’, pp. 52–3 and 59–60. For the evidence that Wulfstan was responsible for drafting this body of laws, see Whitelock, D., ‘Archbishop Wulfstan, Homilist and Statesman’, TRHS 4th ser. 24 (1942), 25–45, at 35–8Google Scholar, and Jost, , Wulfstanstudien, pp. 13–35.Google Scholar

2 Liebermann, , Gesetze 1, 278–371. 1–IIGoogle Scholar Cnut is in fact, as Liebermann acknowledged, a single code divided into ecclesiastical and secular parts.

3 ‘Wulfstan und Cnut’, ASNSL 103 (1899), 47–54Google Scholar, and Gesetze 111, 194.

4 Ed.Liebermann, , Gesetze 1, 276–7.Google Scholar

5 Whitelock, D., ‘Wulfstan and the Laws of Cnut’, EHR 63 (1948), 433–52.CrossRefGoogle Scholar

6 Throughout this article I refer to the text in CCCC 201 as D. The manuscript is no. 49B in Ker, N. R., Catalogue of Manuscripts Containing Anglo-Saxon (Oxford, 1957), pp. 82–90Google Scholar. On its provenance, see Whitelock, D., ‘Wulfstan at York’, Franciplegius: Medieval and Linguistic Studies in Honor of Francis Peabody Magoun, Jr, ed. Bessinger, J. B. Jr, and Creed, R. P. (New York, 1965), pp. 214–31, at 221–4.Google Scholar

7 Gesetze 1, 278–80, 308–12, 288–91, 252–6, 318 and 256–8. This is the order in which the various provisions occur in D. Apart from D all references to the Anglo-Saxon laws in this article are to the editions in the Gesetze and the abbreviated forms of reference adopted by Liebermann are used. References to D are to my edition, below.

8 The Laws of the Kings of England from Edmund to Henry I, ed. Robertson, A. J. (Cambridge, 1925), pp. 90–107 and 154–219.Google Scholar

9 With Whitelock, ‘Wulfstan and the Laws of Cnut’, p. 443 n., I take D ch. I to refer to the same meeting as that mentioned in the Anglo-Saxon Chronicle 1018 D: Two of the Saxon Chronicles Parallel, ed. Plummer, Charles (Oxford, 1892–1899) 1, 154Google Scholar. I take the clause ‘7 Dene. 7 Engle wurdon sammæle æt Oxana forda. to Eadgares lage’ to imply an agreement to observe Eadgares lagu, whatever that phrase was intended to mean. The translation in English Historical Documents 1, ed. Whitelock, D., 2nd ed. (London, 1979), p. 251Google Scholar n., on the face of it suggests something rather different which I do not think the Old English will bear.

10 II Cn. 57 from VI Atr. 37. Slighter omissions are noted by Whitelock, ‘Wulfstan and the Laws of Cnut’, p. 436 n. As she says, Ibid. p. 433 n., it is a matter of convenience to describe the source of both D and I–II Cnut as VI Æthelred: a version lying between V and VI Æthelred is more probable.

11 Both D ch. 2.2 and I Cn. 2.2 are closer to E Gu 1 than to VI Æthelred: Whitelock, Ibid. p. 433 n. On the attribution of that code to Wuifstan, see Whitelock, D., ‘Wulfstan and the So-Called Laws of Edward and Guthrum’, EHR 56 (1941), 1–21.CrossRefGoogle Scholar

12 D chs. 12–12.2 and I Cn. 7 and 7.1 are closer to the statement of these provisions in Wulfstan. Sammlung der ihm zugeschriebenen Homilien, ed. Napier, A. (Berlin, 1883)Google Scholar, no. lix, p. 308, lines 4–10, than to VI Æthelred. The point was made by Jost, , Wulfstanstudien, p. 98.Google Scholar

13 ‘Wulfstan and the Laws of Cnut’, pp. 434–5.

14 Ibid. p. 434.

15 Homilien, p. 308, lines 27–30. This homily reproduces with minor variations all the provisions in VI Atr. App. that appear in D. The three versions are identical at the point where the borrowing is made for D, but the provision as a whole is progressively shortened from Napier lix through VI Atr. App. 42.3 to D ch. 29 and substantially abbreviated by the substitution of a short phrase for a whole clause in D ch. 2. I do not understand the statement of Whitelock, ‘Wulfstan and the Laws of Cnut’, p. 446 n., that ‘I Cnut 2, 2.1 = Polity xxv’ unless by I Cnut 2 only the words ‘7 gelomlice secean … 7 us sylfum to þearfe’ are meant. These do correspond to ‘and hi gelomlice and geornlice sece him silfum to þearfe’ now in Die ‘Institutes of Polity, Civil and Ecclesiastical’ ed. Jost, K., Schweizer anglistische Arbeiten 47 (Bern, 1959), at 142.Google Scholar

16 Whitelock, ‘Wulfstan and the Laws of Cnut’, p. 434. This order excludes VI Atr. 26 and 26.1, which appear again as II Cn. 73.

17 ‘Wulfstan and the Laws of Cnut’, pp. 437–44. The characteristics of Wulfstan's vocabulary and syntax have been described many times and there seems little need to rehearse them here. See inter alia Jost, , Wulfstanstudien, pp. 155–68Google Scholar; The Homilies of Wulfstan, ed. Bethurum, Dorothy (Oxford, 1957), pp. 87–98Google Scholar; The Old English Benedictine Office, ed. Ure, J. M. (Edinburgh, 1957), pp. 30–9Google Scholar; and Sermo Lupi ad Anglos, ed. Whitelock, Dorothy, 3rd ed. (London, 1963), pp. 17–19.Google Scholar On Wulfstan's career, see Homilies, ed. Bethurum, pp. 54–87, and Sermo Lupi, ed. Whitelock, pp. 7–17.

18 ‘Wulfstan and the Laws of Cnut’, pp. 450–2.

19 Ibid. pp. 448–50.

20 Bethurum, Dorothy, ‘Six Anonymous Old English Codes’, JECP 49 (1950), 449–63, at 449.Google Scholar

21 McIntosh, Angus, ‘Wulfstan's Prose’, PBA 35 (1949), 109–42, at 142 ii.Google Scholar

22 A Wulfstan Manuscript (British Museum Cotton Nero A. 1), ed. Loyn, Henry R., EEMF 17 (Copenhagen, 1971), 14 and 45.Google Scholar

23 Wulfstan's Canons of Edgar, ed. Fowler, Roger, EETS o.s. 266 (London, 1972), xlvii.Google Scholar

24 ‘Æthelred the Lawmaker’, p. 54.

25 Wulfstanstudien, pp. 94–103.

26 Whitelock, Dorothy, ‘Wulfstan's Authorship of Cnut's Laws’, EHR 70 (1955), 72–85.CrossRefGoogle Scholar

27 ‘Wulfstan and the Laws of Cnut’, p. 443.

28 See above, n. 9.

29 ASC 959 DE and 975 D: Two Chronicles, ed. Plummer 1, 114–15 and 121; Jost, K., ‘Wulfstan und die Angelsächsische Chronik’, Anglia 57 (1923), 105–23.Google Scholar

30 Ed. Liebermann, , Gesetze 1, 273–5.Google Scholar There seems no cogent reason for attributing its production specifically to 1020, but I have retained the title for convenience of reference to the Gesetze. The manuscript is no. 402 in Ker, , Catalogue (pp. 468–9).Google Scholar

31 Wulfstanstudien, pp. 102–3.

32 ‘Wulfstan's Authorship of Cnut's Laws’, pp. 83–4.

33 There is little to be concluded from the fact that Wulfstan consecrated Ashingdon for Cnut in 1020, as Lyfing, archbishop of Canterbury, may have been dying at the time. Rather better evidence of his influence comes from the records of his apparently successful intercession with Cnut after Æthelnoth became archbishop in the same year; see Anglo-Saxon Writs, ed. Harmer, F. E. (Manchester, 1952), pp. 182–4Google Scholar. There is nothing in the subscriptions of Wulfstan to the few charters issued by Cnut in the years 1017 × 1023 to suggest any particular attitude of the king towards him, but in any event this would not be expected. On what witness lists might be expected to reveal, see Keynes, Simon, The Diplomas of King Æthelred ‘The Unready’, 978–1016 (Cambridge, 1980), pp. 130–4 and 154–7.CrossRefGoogle Scholar The Liber Eliensis (ed. Blake, E. O. (London, 1962), p. 156)Google Scholar may not be far astray in describing Wulfstan as doctissimus consiliarius to Cnut (and Edmund), as well as to Æthelred.

34 These are Napier lix–lxi (Homilien, pp. 307–11); see Ker, , Catalogue, pp. 468–9Google Scholar. On the handwriting, see below, pp. 64–6.

35 Wulfstanstudien, p. 103. Jost here seems to identify this material as ‘annähernd wörtliche Zitate aus VI Atr.’, which is perhaps too casual a description. One might compare, for instance, the list of wrongdoers in Cn. 1020 15, ‘mægslagan 7 morðslagan 7 mansworan 7 wiccean 7 wælcyrian 7 æwbrecan 7 syblegeru’, with the corresponding list in VI Atr. 36, ‘morðwyrhtan oððe mansworan oððe æbere manslagan’. The phrase ‘wiccean 7 wælcyrian’ occurs elsewhere in Old English only in the Sermo Lupi (ed. Whitelock, line 171) and in Napier lvii (Homilien, pp. 291–9, at 298, line 18). It is true that Wulfstan is most unlikely to have had anything directly to do with this latter homily; see Wulfstanstudien, pp. 221–36.

36 Die Hirtenbriefe Ælfrics, ed. Fehr, Bernhard (Hamburg, 1914Google Scholar; repr., with supplement by Peter Clemoes, Darmstadt, 1966), pp. 68–140.

37 Benedictine Office, ed. Ure, pp. 39–43. Ure argued that Wulfstan reworked the prose sections of the Office from an existing Old English text, which may have been written by Ælfric. Clemoes, P., ‘The Old English Benedictine Office, Corpus Christi College, Cambridge, MS 190, and the Relations between Ælfric and Wulfstan: a Reconsideration’, Anglia 78 (1960), 265–83, at 265–70Google Scholar, showed that there is no evidence to suggest that Ælfric provided such a text, and perhaps some evidence to the contrary. But the existence of an earlier version remains a plausible explanation for some features of the prose Office and Jost, reviewing Ure's edition in RES n.s. 10 (1959), 75–7, accepted that an ‘outside influence’ was involved.

38 It was suggested by Chaplais, Pierre, ‘The Anglo-Saxon Chancery: from the Diploma to the Writ’, Jnl of the Soc. of Archivists 3 (1966), 160–76, at 173–4CrossRefGoogle Scholar, that the text in the York Gospels represents an oral proclamation which Wulfstan later caused to be written down in his own wording. Chaplais does not mention the problems of style involved in this interpretation of the document and it seems unlikely that Wulfstan could have been responsible for it, unless he was revising a written form of the proclamation.

39 ‘Æthelred the Lawmaker’, pp. 49–65.

40 The arguments raised by Wormald imply perhaps some weakening in the force of what Whitelock says (‘Wulfstan's Authorship of Cnut's Laws’, pp. 76–8) about the nature and function of written laws of the period.

41 Jost, , Wulfstanstudien, p. 100.Google Scholar

42 Homilien, pp. 274–5; Wulfstanstudien, 104–9. The evidence lies in the opening and closing lines (Homilien, pp. 274, lines 7–11, and 275, lines 11–12): these seem to attribute the piece to someone presenting tentative legislative proposals.

43 Perhaps the attribution of texts to Wulfstan reached its high-water mark with the suggestion by Bethurum, Dorothy, ‘Episcopal Magnificence in the Eleventh Century’, Studies in Old English Literature in Honor of Arthur G. Brodeur, ed. Greenfield, S. B. (Oregon, 1963), pp. 162–70Google Scholar, that the estate tracts ed. Liebermann, , Gesetze 1, 444–55Google Scholar, as Rectitudines singularum Personarum and Gerefa owe to him the form in which they survive.

44 Ker, N. R., ‘Hemming's Cartulary: a Description of the Two Worcester Cartularies in Cotton Tiberius A. xiii’, Studies in Medieval History Presented to Frederick Maurice Powicke, ed. Hunt, R. W., Pantin, W. A. and Southern, R. W. (Oxford, 1948), pp. 49–75, at 71Google Scholar; The Pastoral Care, ed. Ker, N. R., EEMF 6 (Copenhagen, 1956), 24–5Google Scholar; Ker, , Catalogue, pp. 140, 162, 178, 211–12, 250–1, 267–8, 302, 385 and 468Google Scholar; and Ker, Neil, ‘The Handwriting of Archbishop Wulfstan’, England before the Conquest. Studies in Primary Sources Presented to Dorothy Whitelock, ed. Clemoes, Peter and Hughes, Kathleen (Cambridge, 1971), pp. 315–31.Google Scholar See also Clemoes, , Die Hirtenbriefe Ælfrics, ed. Fehr, p. cxxviiiGoogle Scholar, and Whitelock, , Sermo Lupi, pp. 11–12.Google Scholar

45 Hohler, C. E., ‘Some Service Books of the Later Saxon Church’, Tenth-Century Studies, ed. David, Parsons (London, 1975), pp. 60–83 and 217–27, at 225Google Scholar, n. 59, states that he does not believe that the hand is Wulfstan's, but he does not elaborate.

46 Ker, ‘Handwriting’, pp. 326–7. The point is made by Wormald, ‘Æthelred the Lawmaker’, p. 52.

47 Ker, ‘Handwriting’, p. 321.

48 Homilien, pp. 266–74.

49 Wulfstanstudien, p. 266. Jost strongly doubted the existence of a Wulfstan imitator properly so described, but he acknowledged the more or less casual borrowing of Wulfstan's characteristic phrases. See his comments on Napier xxx (Wulfstanstudien, pp. 208–10) and, on the same piece, Scragg, D. G., ‘Napier's “Wulfstan” homily xxx: its Sources, its Relationship to the Vercelli Book and its Style’, ASE 6 (1977), 197–211.Google Scholar

50 Ker, ‘Handwriting’, pp. 324–7, and Catalogue, p. 302.

51 But see below, p. 70.

52 That the code may have been compiled in haste is certainly suggested by ch. 1.1. It would be unwise to draw any conclusions on the point from the external circumstances: the political situation may have been just as pressing when VII and VIII Æthelred were produced and they are both organized much more coherently than D.

53 Alfred and Guthrum (Gesetze 1, 126–9), II Æthelred (Gesetze 1, 220–5) and, one presumes, the lost friðgewritu mentioned in II Ew. 5.2 (Gesetze 1, 144). The Laws of Edward and Guthrum, like D, have nothing to say about how relations between Danes and Englishmen should be conducted.

54 VI Atr. 55–5.

55 So Whitelock, , Sermo Lupi, p. 37Google Scholar and note to lines 166–73. It may be wondered whether the jocular remark of Hohler (‘Service Books’, p. 225, n. 59) that Wulfstan ‘could easily have whiled away the time on horseback putting into rhythmical prose matter fed to him by a secretary’ may not contain more than a grain of truth.

56 Hirtenbriefe, ed. Fehr, p. 134.

57 Homilien, p. 272, line 19.

58 Napier L is probably one of the last pieces that Wulfstan wrote; see Homilies, ed. Bethurum, pp. 39–41, where she points to the reference to divisive meetings in the past (Homilien, p. 272, lines 24–5) as an indication that the work was written after Cnut had established peace in the country.

59 OE unforworht corresponds to insons in the Latin version of the 1008 legislation (Gesetze 1, 251), to which there is no equivalent in the source; Jost, , Wulfstanstudien, pp. 16–35Google Scholar. It is quite possible that unforworht merely elaborates upon earme men in the Sermo Lupi, lines 43–6, and Christene men in VI Atr. 9 and that no real distinction was intended between the criminal and the innocent. See on the point, Homilies, ed. Bethurum, p. 359, n. 45, and Sermo Lupi, ed. Whitelock, p. 52, n. to lines 44–5. Liebermann (Gesetze 1, 250) takes unforworht to mean those who had not incurred the death penalty, but this can hardly be right. See also the comment by David Pelteret, ‘Slave Raiding and Slave Trading in Early England’, ASE 9 (1981), 99–114, at 110, n. 89. Pelteret seems to assume, as I would, that ealles to swiðe in II Cn. 3 is meaningless, but he allows the possibility that unforworht may have some practical significance in the earlier legislation.

60 This would seem to be how Liebermann takes the phrase (Gesetze 111, 202).

61 Laws, ed. Robertson, p. 177 and associated n., p. 352. Bethurum (Homilies, p. 92) describes phrases like this as used in an ironic manner and ‘in an idiom somewhat like litotes’. This is a reasonable way to take these phrases in most contexts, considered one by one, but they are very common indeed and it may be wondered whether Wulfstan can have intended to be so continually and unrelievedly ironic as this frequency might suggest. In any event, irony is scarcely an appropriate device for law codes and is in general alien to the tradition of written Anglo-Saxon law, right through to the time when II Cn. 69–83 were drawn up in the form in which they appear in the code: it may be noted that the phrase to hrædlice in II Cn. 73.3 must mean just what it says. Stafford, Pauline, ‘The Laws of Cnut and the History of Anglo-Saxon Royal Promises’, ASE 10 (1982), 173–90Google Scholar, has shown that these chapters probably derive from a publication of Cnut independent of the full code and may incorporate material from a secular counterpart to VIII Æthelred. Her arguments provide further evidence that the value of D is as a political witness rather than as a legal one.

62 The clause ‘7 þolige á his þegnscipes’, which appears in both III Eg. 3 and III Cn. 15.1 and links the provision specifically to offences by officials, is omitted from D ch. 25. The omission can be explained as homoeoteleuton; Whitelock, ‘Wulfstan and the Laws of Cnut’, p. 436, n. 4.

63 Gesetze 111, 204.

64 Napier l (Homilien, pp. 267, line 28, and 268, lines 1 and 18), and Homilies, ed. Bethurum, no. xi, line 177.

65 Sermo Lupi, lines 189–90. Sermo Lupi, lines 188–94, are translated from a passage in a letter from Alcuin to Æthelheard, archbishop of Canterbury, ed. from Cotton Vespasian A. xiv by Colin Chase (Two Alcuin Letter-Books (Toronto, 1975), 11Google Scholar, no. 10, lines 110–13). OE wobdomas presumably represents iniquitas et iniustitia iudicorum, but there is nothing further of specifically legal import in the passage to whichunlagu might correspond.

66 That unlagu and lahbryce were synonymous in most contexts would not hinder the inclusion of both words in lists of wrongs, as is the case in MS E of the Sermo Lupi, lines 188–90. In Homilies, ed. Bethurum, no. xi, lines 176–7, ‘Ve qui condunt leges iniquas et scribentes iniustitiam scripserunt, ut opprimerent in iudicio pauperes’ is translated as ‘Wa þam, he cwæð, þe ræreð unriht to rihte 7 undom demeð earmum to hynðe’ and the whole passage (lines 175–80) is headed ‘Be Unlagum’, which would suggest a very general meaning for unlagu. Sermo Lupi, ed. Whitelock, n. to line 14, states that there is no ‘clear case’ of unlagu being used to mean ‘bad laws’: it may be doubted whether Wulfstan would have recognized a distinction between ‘violations of law’ and ‘bad laws’, or at least whether such a distinction was meaningful.

67 See Clemoes, Peter, Rhythm and Cosmic Order in Old English Christian Literature, an Inaugural Lecture (Cambridge, 1970), pp. 21–3Google Scholar, and Hollis, Stephanie, ‘The Thematic Structure of the Sermo Lupi’, ASE 6 (1977), 175–95.Google Scholar

68 Studies, pp. 280–1.

69 ‘Æthelred the Lawmaker’, pp. 53–4.

70 On the development of the cult of St Edward, see Fell, Christine E., Edward King and Martyr (Leeds, 1971), pp. xx–xxvGoogle Scholar, and ‘Edward King and Martyr and the Anglo-Saxon Hagiographic Tradition’, Ethelred the Unready, ed. Hill, pp. 1–13. For the most recent assessment of the political implications of Edward's murder and subsequent canonization, see Keynes, , Diplomas, pp. 163–74Google Scholar. The early popularity of the cult is not to be doubted, nor that Æthelred acknowledged Edward's sanctity. What may be doubted is whether Æthelred is likely to have given general encouragement to the cult through a prescription like V Atr. 16, which Fell (‘Edward King and Martyr’, p. 10) describes as unique. Æthelred may well have felt that the veneration accorded Edward enhanced the kingship and so protected his own position. On the other hand he may merely have acquiesced in the sanctity of Edward and have found it discomforting that, whatever the actual circumstances, the king whose murder enabled him to succeed to the kingship should be honoured in this way. It is possible too that the personal attitudes of Wulfstan are involved, for he did not call Edward a saint in the Sermo Lupi.

71 See below, n. 76.

72 Whitelock (English Historical Documents 1, 443, n. 1) points out that friðlice steora corresponds to penas salvandi and that the punishments concerned cannot properly be described as ‘lenient’. I am reluctant nevertheless to translate friðlic as ‘life-sparing’ (Liebermann, , Gesetze 1, 311Google Scholar, [Leben] schonend): Norse terminology is clearly borrowed here, but there is no evidence that a general frið had any technical significance for the Anglo-Saxons.

73 With Homilies, ed. Bethurum, p. 90. I take beod- as having primarily an intensive force: Liebermann, Gesetze 1, 313, translates þeodscada as öffentliche Räuber.

74 MS 7.

75 MS we.

76 Liebermann, , Gesetze 1, 290Google Scholar: leafe.

77 MS hine added above the line, between gearwige and eac, with a small cross at the point below the line.

78 MS unrœd.

79 MS 7 before þœt.

80 MS be þœt.

81 I would like to thank Dr Simon Keynes for his suggestion that the publication of a coherent text of the 1018 code was a worthwhile undertaking, and Professor Clemoes for his helpful criticism. For the opinions expressed I alone am responsible.