This Old English code represents the agreement reached at Oxford in 1018 between the Danes and the English early in the reign of King Cnut (1016–1035). Both peoples accepted the laws of Edgar I (king of England, 959–975) as the basis for an Anglo-Danish settlement. The code, composed by Archbishop Wulfstan, is an adapted version of Æthelred’s Enham code of 1008 and foreshadows the fuller promulgation of Cnut’s Winchester code of 1020/1.

Digital edition

Edited by Alan Kennedy

Manuscripts

Text filiations

Introduction

by Alan Kennedy

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 1014.1 For many years, however, the prevailing opinion among scholars was that the code of Cnut,2 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:3 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.

In 1948 Whitelock challenged the late dating of I–II Cnut.5 She relied in large measure on a detailed examination of a version of materials mainly common to I–II Cnut and VI Æthelred in Cambridge, Corpus Christi College 201, pp. 126–30, which she called the D version according to the system of sigla adopted by Liebermann.6 Liebermann found it difficult to place in his stemma of I–II Cnut and considered it to be an arbitrarily arranged collection of fragments. He rejected the evidence of the introductory passage which attributes its compilation to a time immediately after the cessation of hostilities between the English and the Danes, and printed D in the Gesetze as variants of both VI Æthelred and I–II Cnut.7 In this he was followed by Robertson, who cites D in the footnotes to her text of both codes in her edition of the later Anglo-Saxon laws.8 It is the purpose of this article to present for the first time a coherent text and translation of D in the conviction that it represents, as Whitelock argued, legislative pronouncements compiled by Wulfstan and issued in consequence of the meeting between Danes and Englishmen at Oxford in 1018.9

Whitelock showed in the first place that D is not the mixture of extracts from other codes that Liebermann took it to be, but a compilation of some rationale standing in an intermediate position between VI Æthelred and I–II Cnut. With one substantial exception10 D contains all the material that I–II Cnut uses from VI Æthelred, adapted to the order of I–II Cnut over several series of provisions. Much of the wording in D shows that chapters which are developed there from VI Æthelred form in turn the basis for chapters in I–II Cnut. The larger patterns are set out in the following table. Round brackets indicate reminiscences rather than proximate sources.


V-VIII Æthelred

D

I–II Cnut

III Edgar Prol. (E Gu. Prol.)

Introduction

VI 1.1

1

I 1

1.1, 1.2

VI 1

1.3

I 1, 18. 1

VI App. 42.3

2

I 2

VI 13, 1411

2.1, 2.2

I 2.1, 2.2

VI 8, 8.1, 10.2, 10.3, 10, 10.1, 9

3–6

II 1–3

VI 7 (VIII 40)

7

II 4, 4a

(VIII 41)

8

II 4.1

8.1–10.1

II 4.1, 4.2, 6–7.1

VI 2.1, 2.2, 5, 5.1, 5.3

11–11.2

I 6–6. 2a

VI 11–12.112

11.3–12.2

I 6.3–7.1

(VI 28.2)

12.3

I 7.2

VI 12.2

12.4

I 7.3

VI 16–18.1

13–13.4

I 8–9.1

VI 19–22.1

13.5–14.1

I 10–15.1

VI 22.2, 22.3

14.2, 14.3

I 16a

VI 22.3, 23

14.4, 14.5

I 16

V 16

14.6

I 17.1

VI 24

14.7

I 16a

VI 25–25.2

15–15.2

I 17, 17.2, 17.3

VI 26, 26.1

16, 16.1

II 73

VI 27–28

17–18

I 19, 19.1

VI 28.1, 30

19

I 19.2, 19.3

VI 31–32.1

20–20.2

II 8

VI 32.2

21

II 9

VI 32.3

22, 23

II 10

VI 40, 40.1

24

II 11, 11.1

III Edgar 3

25

II 15.1, 15.1a

VI App. 42–49

26–26.4

II 15.2

27

II 15.3

28–36

 

This table accords in general with the one that Whitelock assembled,13 but there are a few points to be noted. The first is that, apart from the opening formula 'And witena gerædnes is' in D ch. 11, VI Atr. 2 is not used by D or I Cnut. The surrounding material in VI Æthelred does appear in the later codes and the changes from '7 witena gerædnes is' to 'And witena gerædnes is þæt hi willað' to 'And we willað' amount to another small piece of evidence for a process of adaptation from VI Æthelred for D which was continued further in I–II Cnut. A second point concerns the proposition that VI Atr. App. was not used in I–II Cnut, which is perhaps misleading in the context in which it occurs,14 for it depends upon the assumption, to be proved, that D is the first source for I–II Cnut. D ch. 2 derives for the most part from VI Atr. App. 42. 3, or from Napier lix.15 The final point is that, as the table shows, the material in VI Atr. 16–40.1 which is used in I Cn. 8–19.3 and II Cn. 8–11.1 does not appear in the later code in quite the order Whitelock stated,16 but this one small discrepancy does not challenge the general thrust of her argument.

The way in which D is put together in relation to VI Æthelred and I–II Cnut and the wording of many individual provisions in relation to the corresponding provisions in these codes amount to a strong case for believing it to be, as Whitelock argued, just what the introductory passage claims for it, a series of ordinances which were drawn up when Cnut began his reign as king of England and which could be augmented later when time permitted. That Wulfstan should have been responsible for drafting the code is a natural assumption, given his apparently friendly relations with Cnut and the familiarity which the compiler of the code shows with Wulfstan's earlier writings. But Whitelock assembled a considerable amount of evidence of a more detailed kind to support this assumption, based on variations within the range of the stylistic habits that Wulfstan shows elsewhere, similarities in D to his known methods of extracting from his sources and the Wulfstan associations of much of the other material in the manuscript.17

From a demonstration of the probable authenticity of D, Whitelock went on to argue that Wulfstan was responsible for the formulation of the much more comprehensive code issued by Cnut. She showed that the objections that Liebermann took to dating I–II Cnut to early in the reign were insubstantial and based partly on an anachronistic attitude towards Anglo-Saxon law-making processes.18 II Cnut in particular is very much an omnium gatherum of sources both known and unknown, but there is much throughout the two parts of the code to connect it with Wulfstan in an authorial sense. Apart from the provisions which were largely developed in D or borrowed from VIII Æthelred the code bears the marks of the Wulfstan style in passages derived from works not in his style and includes passages from homiletic pieces written entirely after his manner. Whitelock also detected the occasional indication of his substantive interests.19

Whitelock's conclusions about the nature of D and her views on the authorship and date of I–II Cnut do not stand or fall together. But, based as they are on evidence of similar kinds, they have been taken in this way and, in general, supported by other scholars working in the field of Wulfstan studies. Bethurum gave Whitelock immediate published support,20 as did McIntosh, whose work on the prose rhythm that Wulfstan used did much to confirm the identification of his works by means of other aspects of his style and external evidence.21 Loyn described his facsimile edition of the composite manuscript London, British Library, Cotton Nero A. i, which contains the oldest surviving copy of I–II Cnut, as A Wulfstan Manuscript, and endorsed both the Whitelock theses.22 So too did Fowler, the latest editor of a Wulfstan text.23 The authenticity of D was accepted by Wormald in the most recent discussion of the legislation of Æthelred.24

But Jost, the pioneer of modern studies on Wulfstan, the characteristics of his prose and the canon of his works, refused to accept that D is what it purports to be. In an addition to the chapter headed 'Cnut und Wulfstan' in his Wulfstanstudien25 Jost sought to deny the archbishop any direct responsibility for I–II Cnut by refuting Whitelock's arguments for the authenticity of D. Whitelock answered most of his points quite adequately in 1955,26 but one or two aspects of the dispute between these two scholars merit further comment.

Whitelock valued the introductory passage in D (Introduction and chs. 1–1.3 in my edition) because it is written in the Wulfstan style, it seems to be used in I Cn. 18.1 and it contains one of three surviving references to an agreement to observe Eadgares lagu, the others being also, as she supposed, connected with Wulfstan.27 The appearance of this in the D version of the Anglo-Saxon Chronicle has been noted:28 this version is also the only one to contain both the 'poems' that Jost long ago attributed to the archbishop on stylistic grounds.29 The third reference is in the 1020 proclamation of Cnut, uniquely preserved in the York Gospels.30

Jost pointed to several items of vocabulary in this proclamation which are uncharacteristic of Wulfstan and accordingly argued that the archbishop was not the drafter of the document; he suggested further that Wulfstan had perhaps somewhat fallen out of favour with Cnut at this time.31 In her 1955 article Whitelock took the stylistic point but countered with the suggestion that the proclamation was written in Denmark, as it seemed to address Earl Thorkel as regent acting in the absence of the king.32 This suggestion, if accepted, would dispose of any notion that Cnut was not taking Wulfstan into his confidence at the highest level, a notion for which there is no other evidence,33 but, on the face of it, it does nothing to retrieve the idea that a promise to observe Eadgares lagu was something arising out of a meeting very early in Cnut's reign that Wulfstan in particular wanted to emphasize.

But it is possible to look at the proclamation in its surviving form in a rather different light and as evidence of a rather different sort. The close association of the manuscript with Wulfstan in the period 1019–23 can scarcely be denied. The proclamation is found among other Old English texts added on the last six leaves and is in the same hand as four of them. Three of these pieces are homiletic tracts written in Wulfstan's style: one is headed Sermo Lupi and all three carry additions in the hand which has been identified as his own.34 Jost admitted that much of the proclamation is in the Wulfstan style.35 If it was written in Denmark substantially as preserved in the York Gospels, its drafter must have had some fair acquaintance with what Wulfstan wrote, either from memory or from documents which he had with him. The proclamation must then have been copied into the York Gospels by a scribe whose work Wulfstan seems to have supervised.

It is perhaps more likely that the surviving version stands at some remove from the precise wording of the original document as it was delivered to England. Wulfstan was given to recasting in his own style material written by others, although in a less than thorough way. He seems for instance to have disliked the use of æ to denote the divine law in general: in his rewriting of one of the letters that the homilist Ælfric sent to him he replaces æ with lagu but lets æ slip through at several points.36 A similarly incomplete revision has been postulated to explain peculiarities of vocabulary in the Old English Benedictine Office.37 It would not seem implausible then to suppose that Wulfstan partly redrafted the text of the proclamation according to his own tastes for copying into the York manuscript. His motives for doing work of this kind must have been purely stylistic (there would otherwise be little point in revising his own correspondence) and one would not necessarily expect any signs that Wulfstan took the opportunity of the revision to enhance his own standing.38 A location of the origin of the 1020 proclamation in Denmark, then, need not imply an independent tradition about the promise to observe Eadgares lagu. The evidence that all three surviving references to this event derive from Wulfstan is no more secure than it was when Whitelock wrote in 1948, but it is certainly no less so.

That Wulfstan may have felt comparatively free in his drafting and revising of 'official' productions is a point which Wormald elaborated in his recent discussion of the legislation of Æthelred.39 Those responsible for drawing up legislative and declaratory productions supposedly 'authorized' by the king may well have perceived a lesser distinction between them and more patently 'private' works than has generally been thought.40 It is quite another matter to reject a plausible explanation for a text that accords with what it purports to be, and replace it with the view that it is a pedantic exercise.41 In rejecting the authenticity of D in this way, Jost came close to special pleading: he was quite happy to regard Napier li, a piece with rather less claim than D to be considered in the context of 'official' deliberations, as written by Wulfstan and probably prepared by him for a meeting of the royal council.42

In the years since 1955 much important work on Wulfstan and his writings has appeared.43 But nothing has been published to disturb in its essentials the argument that Whitelock made for the authenticity of D and its attribution to Wulfstan, and the identification of his own hand in a number of manuscripts which can be associated with him on other grounds provides some further evidence against the conclusions to which Jost came about the Wulfstan canon. This identification was first suggested by Ker in 1948, elaborated in later publications and finally presented in 1971 as one from which the qualification 'probable' should be dropped.44 It is possible that the hand described by Ker does not belong to Wulfstan.45 It may be wondered whether he could have copied out, unnecessarily in the context, the verses so very flattering to him in London, British Library, Cotton Vespasian A. xiv.46 It is curious too that it should have been left to Wulfstan to enter his own name and that of the king in the conclusion to the Latin version of the 1008 code of Æthelred.47 But Ker came to his conviction that the hand belonged to Wulfstan after long years of experienced consideration of the manuscripts and their palaeography, and his latest presentation of the evidence makes a very impressive case.

If Ker is right and Wulfstan personally made the entries ascribed to him, it becomes very difficult indeed to deny that he was responsible for putting together Napier l.48 Jost suggested that a practised manipulator of Wulfstan materials was responsible for this piece and for Napier lx and lxi, as they all seemed to him to be compiled in a similar manner.49 Since Wulfstan made additions to Napier lx and lxi, these texts can scarcely be attributed to a later compiler, and the case against Wulfstan's responsibility for l cannot be sustained on the ground of similarities in compilation to lx and lxi. It follows that there is no longer the evidence that Jost found in these texts for someone who arranged passages written by Wulfstan and in the process produced D.

If the handwriting is not that of Wulfstan himself, it is most likely that of a secretary long in his personal service. To take this view would have some consequences for the detailed information that may otherwise be inferred about how the archbishop went about his affairs: for instance, we would no longer be able to follow him personally surveying records of Worcester and York properties.50 But it would not vitiate the corroborative evidence of the entries in Napier lx and lxi that Wulfstan was responsible for these pieces: entries by a secretary of long standing must at least tie them firmly into his circle of literary production.

It has to be admitted that accepting D as authentic within the limits of probability that the nature of the evidence imposes, and so as an addition to the tradition of royal legislation in the early eleventh century, provides very little for the historian of Anglo-Saxon law. The code is almost exclusively derivative: apart from the introductory passage and the general form of the condemnation of malefactors in chs. 8–10. 1, to all appearances only chs. 25–7, developed from III Eg. 3, perhaps have some claim to originality and they appear again of course as II Cn. 15.1–15.3.51 That the code is so derivative may be due in part to its being hastily compiled. It exhibits in its general pattern, and especially in relation to I–II Cnut, the very degenerative tendencies that one might expect in an interim formulation hurriedly put together. A first section is developed by Wulfstan from VI Æthelred in specific consequence of the Oxford meeting and this section (chs. 1–12.4) is reproduced in I–II Cnut. The code then moves on to other material from VI Æthelred in chs. 13–24, which find their way into I–II Cnut in much expanded form, and finally to matter from the appendix to VI Æthelred, which repeats the substance of earlier material and is for the most part discarded when I–II Cnut is compiled (chs. 28–36). The chapters derived from III Edgar are awkwardly inserted between the second and third sections.52

It is true also that, constructed as it is from earlier legislation, D is almost barren of the kinds of practical measures which might have been thought useful in implementing the peace that Cnut imposed on Danes and Englishmen and which appear in the surviving records of other settlements between the two groups.53 Statements about secular affairs are general in the extreme: the performance of the traditional obligations is enjoined, but otherwise, apart from chs. 25–7, there is nothing that amounts to much more than injunctions that justice should be done and that every man should do his duty. It is clear from his homilies and from his earlier legislative activity that Wulfstan in his writings preferred the general to the particular, the statement of principles to the explication of their practical application, and it may be that, in the delicate situation which the circumstances of 1018 constituted for him personally as well as for others, he felt it best to allow his preferences full rein. The omission from D of the more specific rules about the conduct of military and naval affairs which occur in VI Æthelred may reflect such a concern, as the provisions were doubtless framed with the Viking threat in mind.54

There is a last negative point to be made about D as a derivative text. Wulfstan constructed his legislation for Æthelred and Cnut after the manner of his homilies and other works. In composing a text, he seems to have adopted a method of supplementing his sources with variant material which he had already developed from the same sources, working from among a group of more or less related pieces in a way which has suggested to some scholars that this may have been done partly from memory rather than with the actual documents at hand.55 The results of composing along these lines suggest that Wulfstan was rather more interested in style than content: certainly the deployment of his characteristic preferences in vocabulary can lead to slightly absurd implications if understood too literally. One would not expect that Wulfstan took any more permissive an attitude than Ælfric did to drunkenness among the clergy, but this would be the implication of a literal interpretation of his rewriting of the second Old English letter which Ælfric sent to him: 'Ne drincan æt wynhuse, ne druncengeorn beon' becomes 'Ne drincan æt winhusum ealles to gelóme, ne to druncangeorn wurðan'. 56

Wulfstan seems also to have been rather casual with vocabulary which might be expected to carry a more precise semantic burden, at least in what purports to be legislation. There is for instance considerable semantic overlap among the native words dom and riht and the Norse loan word lagu as terms for basic legal notions in late Old English. In his own writings Wulfstan reflects the tendency in writings of all sorts for lagu to replace riht as an objective term for the secular law as a general concept (and sometimes also as a subjective term for an entitlement) and dom, when this word denotes a generally applicable rule rather than a particular judgment. But beyond this general tendency Wulfstan vacillated from one expression to another in a way that leads to a kind of imprecision not found in other Old English legal documents. It is not easy to suppose for instance that there is any intended difference in meaning between 'rihte laga upp arære. And æghwilce unlaga georne afille' in D ch. 3 and 'ælc riht arære and unriht afylle' in Napier l. 57 Outside works written in the Wulfstan style riht, when used in the plural or when the context contemplates the plural, means rights or obligations, not rules or the law in general. This restriction applies also in compounds: folcriht may be an objective notion, but folc(ge)rihta are entitlements or duties. But Wulfstan here is working with contrasts of the most general sort and probably did not intend any distinction of this kind between ælc riht and rihte laga.58

Two other instances may serve to demonstrate how what seems to be purely stylistic variation makes it difficult to read any circumstantial application into the minor changes that Wulfstan made to his source material for its inclusion in D. VI Atr. 9 reads in part 7 witena gerædnes is, þæt man Christene men 7 unforworhte of earde ne sylle, ne huru on hæþene þeode'. In revising this provision for D ch. 6 (II Cn. 3) Wulfstan omitted the phrase 7 unforworhte and replaced it with ealles to swiðe. Whether the word unforworht was intended to carry a precise legal meaning in VI Atr. 9 and in a similar context in the Sermo Lupi is not entirely clear.59 But, given that the phrase is semantically superfluous in other contexts, it does not seem justified to take ealles to swiðe in D as indicating here a more tolerant attitude to the international slave trade than in earlier pronouncements and thus as suggesting that Wulfstan was making a concession to the interests of the new regime in 1018.60 To take the phrase another way and with Robertson to treat

it as a parenthetic comment on the current prevalence of the slave trade is syntactically presumptive and may likewise be giving the phrase more weight than it deserves.61

It is similarly unlikely that 'And se ðe unlaga arære. oððe undom deme' in D ch. 25 says anything more than 'se ðe oðrum on woh gedeme' in III Eg. 3 about the kinds of wrongs that persons in judicial authority might particularly be thought to commit.62 Liebermann speculated that unlagu could refer to the Rechtsnorm and undom to the Richterspruch as constituent elements of the one concept of the Urteil,63 but it may be doubted whether Wulfstan could have intended legal precision of this sort. Elsewhere in his writings he clearly does use undom to mean perverse judgments,64 and the synonym wohdom appears next to unlagu in one of the lists of wrongs set out in the Sermo Lupi.65 The term unlagu, however, usually implies violations of law or simply wrongs, rather than bad laws, and so should generally be taken as synonymous with lahbryce.66 In view of the apparent ease with which Wulfstan replaces one term with another and juxtaposes words in ways that would appear very awkward if precise meanings were attached to them, it does not seem probable that he was attempting to describe features of judicial process more accurately in D ch. 25 than did the author of III Edgar.

These comments are in no way intended to deny Wulfstan any literary ability.67 His skills were, however, rhetorical and pastoral and he used just these skills in the legislation he wrote. Much of what he wrote is not amenable to close legal analysis and the value of D (apart from its relationship to I–II Cnut) lies not in its details but simply in its existence. It is a general witness to the settlement that Cnut created when he became king of England and to the mutual accommodation which the young king and the old archbishop found it possible to reach so early in the reign. One need not suppose that D reflects with any great accuracy what actually went on at the meeting in 1018: it could scarcely have been of much practical use in the courts or in arbitration between Danes and Englishmen, and the laymen at the meeting must have had more pressing concerns than the payment of church dues and the observance of fasts.

There is, however, one provision in D which may signal in a specific, albeit oblique, way recognition of the new order. V Atr. 16, which prescribes the celebration of the feast of St Edward the Martyr throughout England, has no equivalent in VI Æthelred or the Latin version of the Enham legislation. It was suggested by Sisam in 1953 that this provision was interpolated into the defective copy of V Æthelred from which the surviving manuscripts derive and that it was the pronouncement of a later council.68 The suggestion has been revived recently by Wormald, who connects the provision with the accession of Cnut: its first authentic appearance would then be as D ch. 14.6.69 If this view is correct, it would seem that the provision represents a deliberate attempt to demonstrate respect for English kingship, while distracting attention from the rôle played by the Danes in subverting the authority of individual kings in the intervening decades. It would follow too that for Cnut Wulfstan was prepared to give public encouragement to the cult of St Edward, something that he may have been reluctant to do while Æthelred was king.70

TEXT

The text is printed from the manuscript (CCCC 201, pp. 126–30) and the orthography and punctuation of the manuscript are preserved, but word division is my own. Abbreviations are silently expanded. In the Gesetze Liebermann omits an accent mark over hig (ch. 10) and I have not found the mark that he places over oððe (ch. 25). Otherwise I have found only one error in his text.71

The scribe of D was careless and it has been necessary, largely by comparison with the relevant passages in VI Æthelred and I–II Cnut, to emend the manuscript readings at various points to make the text intelligible. A word resulting from emendment is italicized. A word or letter supplied to make good an omission is placed within square brackets. But, in treating D as a unique copy of a distinct code in its own right, I have preferred to keep some readings which do make sense, although perhaps poor in comparison with the corresponding passages in other codes. For the same reason I have attempted to retain the divisions indicated by the scribe through rubrication and large initial letters, although it has not always been practicable to do this, as it would sometimes obscure the sense of a passage, its unitary nature or its evident connection with the surrounding material.

My translation can scarcely but owe a great deal to those by Liebermann, Robertson and Whitelock. It seems to me that Wulfstan presents special problems for the translator, most particularly in his legal writings. He sometimes means rather less than he appears to say and sometimes means something rather different from what a natural construction of his words would suggest. Modern English, with its concentration on the value of the individual word, has no easy correspondences to his idiom. I have not, however, pursued this matter very far in this translation, which I have kept as literal as has seemed consistent with modern English usage.


Notes

  1. 1. ^ The various versions, complete and fragmentary, have been edited by F. Liebermann (Die Gesetze der Angelsachsen (Halle, 1903–16) 1, 236–70) 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 Karl Jost, Wulfstanstudien (Bern, 1950), pp. 35–44; Kenneth Sisam, Studies in the History of Old English Literature (Oxford, 1953), pp. 278–87; and Patrick Wormald, 'Æthelred the Lawmaker', Ethelred the Unready: Papers from the Millenary Conference, ed. David Hill, BAR Brit. ser. 59 (Oxford, 1978), 47–80. There is general agreement that what Liebermann printed as VI Æthelred Appendix (Gesetze I, 256–9) 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 D. Whitelock, 'Archbishop Wulfstan, Homilist and Statesman', TRHS 4th ser. 24 (1942), 25–45, at 35–8, and Jost, Wulfstanstudien, pp. 13–35.
  2. 2. ^ Liebermann, Gesetze 1, 278–371. I–II Cnut is in fact, as Liebermann acknowledged, a single code divided into ecclesiastical and secular parts.
  3. 3. ^ Wulfstan und Cnut', ASNSL 103 (1899), 47–54, and Gesetze iii, 194.
  4. 4. ^ Ed. Liebermann, Gesetze 1, 276–7.
  5. 5. ^ D. Whitelock, 'Wulfstan and the Laws of Cnut', EHR 63 (1948), 433–52.
  6. 6. ^ Throughout this article I refer to the text in CCCC 201 as D. The manuscript is no. 49b in N. R. Ker, Catalogue of Manuscripts Containing Anglo-Saxon (Oxford, 1957), pp. 82–90. On its provenance, see D. Whitelock, 'Wulfstan at York', Franciplegius: Medieval and Linguistic Studies in Honor of Francis Peabody Magoun, Jr, ed. J. B. Bessinger, Jr. and R. P. Creed (New York, 1965), pp. 214–31, at 221–4.
  7. 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. 8. ^ The Laws of the Kings of England from Edmund to Henry I, ed. A. J. Robertson (Cambridge, 1925), pp. 90–107 and 154–219.
  9. 9. ^ With Whitelock, 'Wulfstan and the Laws of Cnut', p. 443 ii., I take D ch. 1 to refer to the same meeting as that mentioned in the Anglo-Saxon Chronicle 1018 D: Two of the Saxon Chronicles Parallel, ed. Charles Plummer (Oxford, 1892–9) 1, 154. 1 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. D. Whitelock, 2nd ed. (London, 1979), p. 251 n., on the face of it suggests something rather different which I do not think the Old English will bear.
  10. 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. 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 Wulfstan, see D. Whitelock, 'Wulfstan and the So-Called Laws of Edward and Guthrum', EHR 56 (1941), 1–21.
  12. 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. A. Napier (Berlin, 1883), no. lix, p. 308, lines 4–10, than to VI Æthelred. The point was made by Jost, Wulfstanstudien, p. 98.
  13. 13. ^ 'Wulfstan and the Laws of Cnut', pp. 434–5.
  14. 14. ^ Ibid. p. 434.
  15. 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. K. Jost, Schweizer anglistische Arbeiten 47 (Bern, 1959), at 142.
  16. 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. 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. 155–68; The Homilies of Wulfstan, ed. Dorothy Bethurum (Oxford, 1957), pp. 87–98; The Old English Benedictine Office, ed. J. M. Ure (Edinburgh, 1957), pp. 30–9; and Sermo Lupi ad Anglos, ed. Dorothy Whitelock, 3rd ed. (London, 1963), pp. 17–19. On Wulfstan's career, see Homilies, ed. Bethurum, pp. 54–87, and Sermo Lupi, ed. Whitelock, pp. 7–17.
  18. 18. ^ 'Wulfstan and the Laws of Cnut', pp. 450–2.
  19. 19. ^ Ibid. pp. 448–50.
  20. 20. ^ Dorothy Bethurum, 'Six Anonymous Old English Codes', JEGP 49 (1950), 449–63, at 449.
  21. 21. ^ Angus McIntosh, 'Wulfstan's Prose', PBA 35 (1949), 109–42, at 142 n.
  22. 22. ^ A Wulfstan Manuscript (British Museum Cotton Nero A. 1), ed. Henry R. Loyn, EEMF 17 (Copenhagen, 1971), 14 and 45.
  23. 23. ^ Wulfstan's Canons of Edgar, ed. Roger Fowler, EETS o.s. 266 (London, 1972), xlvii.
  24. 24. ^ Æthelred the Lawmaker', p. 54.
  25. 25. ^ Wulfstanstudien, pp. 94–103.
  26. 26. ^ Dorothy Whitelock, 'Wulfstan's Authorship of Cnut's Laws', EHR 70 (1955), 72–85.
  27. 27. ^ 'Wulfstan and the Laws of Cnut', p. 443.
  28. 28. ^ See above, n. 9.
  29. 29. ^ ASC 959 DE and 975 D: Two Chronicles, ed. Plummer 1, 114–15 and 121; K. Jost, 'Wulfstan und die Angelsächsische Chronik', Anglia 57 (1923), 105–23.
  30. 30. ^ Ed. Liebermann, Gesetze 1, 273–5. 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).
  31. 31. ^ Wulfstanstudien, pp. 102–3.
  32. 32. ^ 'Wulfstan's Authorship of Cnut's Laws', pp. 83–4.
  33. 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. F. E. Harmer (Manchester, 1952), pp. 182–4. 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 Simon Keynes, The Diplomas of King Æthelred 'The Unready', 978–1016 (Cambridge, 1980), pp. 130–4 and 154–7. The Liber Eliensis (ed. E. O. Blake (London, 1962), p. 156) may not be far astray in describing Wulfstan as doctissimus consiliarius to Cnut (and Edmund), as well as to Æthelred.
  34. 34. ^ These are Napier lix–lxi (Homilien, pp. 307–11); see Ker, Catalogue, pp. 468–9. On the handwriting, see below, pp. 64–6.
  35. 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. 36. ^ Die Hirtenbriefe Ælfrics, ed. Bernhard Fehr (Hamburg, 1914; repr., with supplement by Peter Clemoes, Darmstadt, 1966), pp. 68–140.
  37. 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. P. Clemoes, '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 265–70, 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. 38. ^ It was suggested by Pierre Chaplais, 'The Anglo-Saxon Chancery: from the Diploma to the Writ', Jnl of the Soc. of Archivists 3 (1966), 160–76, at 173–4, 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. 39. ^ 'Æthelred the Lawmaker', pp. 49–65.
  40. 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. 41. ^ Jost, Wulfstanstudien, p. 100.
  42. 42. ^ Homilien, pp. 274–5; Wulfstanstudien, pp. 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. 43. ^ Perhaps the attribution of texts to Wulfstan reached its high-water mark with the suggestion by Dorothy Bethurum, 'Episcopal Magnificence in the Eleventh Century', Studies in Old English Literature in Honor of Arthur G. Brodeur, ed. S. B. Greenfield (Oregon, 1963), pp. 162–70, that the estate tracts ed. Liebermann, Gesetze 1, 444–55, as Rectitudines singularum Personarum and Gerefa owe to him the form in which they survive.
  44. 44. ^ N. R. Ker, '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. R. W. Hunt, W. A. Pantin and R. W. Southern (Oxford, 1948), pp. 49–75, at 71; The Pastoral Care, ed. N. R. Ker, EEMF 6 (Copenhagen, 1956), 24–5; Ker, Catalogue, pp. 140, 162, 178, 211–12, 250–1, 267–8, 302, 385 and 468; and Neil Ker, 'The Handwriting of Archbishop Wulfstan', England before the Conquest. Studies in Primary Sources Presented to Dorothy Whitelock, ed. Peter Clemoes and Kathleen Hughes (Cambridge, 1971), pp. 315–31. See also Clemoes, Die Hirtenbriefe Ælfrics, ed. Fehr, p. cxxviii, and Whitelock, Sermo Lupi, pp. 11–12.
  45. 45. ^ C. E. Hohler, 'Some Service Books of the Later Saxon Church', Tenth–Century Studies, ed. David Parsons (London, 1975), pp. 60–83 and 217–27, at 225, n. 59, states that he does not believe that the hand is Wulfstan's, but he does not elaborate.
  46. 46. ^ Ker, 'Handwriting', pp. 326–7. The point is made by Wormald, 'Æthelred the Lawmaker', p. 52.
  47. 47. ^ Ker, 'Handwriting', p. 321.
  48. 48. ^ Homilien, pp. 266–74.
  49. 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, D. G. Scragg, 'Napier's "Wulfstan' homily xxx: its Sources, its Relationship to the Vercelli Book and its Style', ASE 6 (1977), 197–211.
  50. 50. ^ Ker, 'Handwriting', pp. 324–7, and Catalogue, p. 302.
  51. 51. ^ But see below, p. 70.
  52. 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. 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. 54. ^ VI Atr. 33–5.
  55. 55. ^ So Whitelock, Sermo Lupi, p. 37 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. 56. ^ Hirtenbriefe, ed. Fehr, p. 134.
  57. 57. ^ Homilien, p. 272, line 19.
  58. 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. 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. 16–35. 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. 60. ^ This would seem to be how Liebermann takes the phrase (Gesetze 111, 202).
  61. 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. Pauline Stafford, 'The Laws of Cnut and the History of Anglo-Saxon Royal Promises', ASE 10 (1982), 173–90, 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. 62. ^ The clause '7 þolige á his þegnscipes', which appears in both III Eg. 3 and II 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. 63. ^ Gesetze 111, 204.
  64. 64. ^ Napier l (Homilien, pp. 267, line 28, and 268, lines 1 and 18), and Homilies, ed. Bethurum, no. xi, line 177.
  65. 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), 11, no. 10, lines 110–13). OE wohdomas presumably represents iniquitas et iniustitia iudicorum, but there is nothing further of specifically legal import in the passage to which unlagu might correspond.
  66. 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. 67. ^ See Peter Clemoes, Rhythm and Cosmic Order in Old English Christian Literature, an Inaugural Lecture (Cambridge, 1970), pp. 21–3, and Stephanie Hollis, 'The Thematic Structure of the Sermo Lupi', ASE 6 (1977), 175–95.
  68. 68. ^ Studies, pp. 280–1.
  69. 69. ^ 'Æthelred the Lawmaker', pp. 53–4.
  70. 70. ^ On the development of the cult of St Edward, see Christine E. Fell, Edward King and Martyr (Leeds, 1971), pp. xx–xxv, 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. 163–74. 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. 71. ^ See below, n. 76.