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King Alfred and Mosaic Law

Felix Liebermann

<plain_text><page sequence="1">KING ALFRED AND MOSAIC LAW By Professor Dr. F. LIEBERMANN, LL.D. {Corresponding Member of the Society), Paper read at University College, London, before the Jewish Historical Society of England, Monday, February 3, 1908. Great literary achievements shed their light into remote countries and distant centuries. Mosaic law, two thousand years after it had been written down, and nearly a thousand years after it had lost its political force, met with an admiring translator among the Teutons of Britain. He was not an anonymous monk, scholarly, and amusing his leisure with a private tract, but the King of the West Saxons, the most famous lawgiver of whom Britain can boast before the Norman Conquest. Towering high above the average prince of his time, Alfred saw the aim of kingship not solely in the protection of his people against foes from without and criminals within, but he desired to raise the whole standard of English civilisation. While generally this higher purpose, then and for many centuries later, used to be furthered by the Church, a genius on the throne, so it would appear, was now almost beginning to conquer it for the State. In fact, however, the royal scholar would have shrunk from the slightest rivalry with the ecclesias? tical power. The clergy alone could pave the way for the King in his endeavours to enlighten his subjects. Churchmen, whose names are not all forgotten, helped him to translate several Latin books into English. The two different parts played by Alfred in his internal policy by which he has come down to posterity, as an educator and as a lawgiver, are for once combined in the introduction which about 890 he prefixed to his own code of laws, viz., the translation of the Ten Commandments and the two following chapters from Exodus. 21</page><page sequence="2">22 KING ALFRED AND MOSAIC LAW. It is possible, nay probable, that the execution of this version was not the work of the King alone. Noble writers in those times were not in the habit of handling the pen themselves, but used to dictate; and Alfred, rex veridicus as ever, frankly confesses that he needed the help of scholars in order to understand Latin. If then this work, as well as Alfred's other translations, were written not without the assistance of some churchman, then we may assume that the King's secretary in composing it, as in translating St. Gregory's Pastoral, was Asser, the Welshman of St. David's. In his biography of the King, Asser praises him as a jurist, a judge, and a strict administrator of justice, who ordered the presidents of courts of law " to study Saxon books." No Saxon book of legal contents was then in existence but Alfred's Dooms. If Asser had this work in mind, his own connection with it would become the more likely. Another argument, though in itself by no means convincing, may be mentioned. Alfred and Asser, when wishing to describe in the severest terms the treason of the vassal against his lord, allege it to be the crime committed by Judas against Christ. It would, however, be hypercritical to try to divide the authorship of the introduc? tion between two individuals. Its whole spirit agrees far too well with what we know of the character of Alfred to allow us to doubt his sole responsibility for it. About the year 890 there probably was no soul living in Britain that knew Hebrew. The medium through which Alfred was able to read the Old Testament was the Latin Vulgate. This version suffers from several gross mistakes in the chapters here in question. Alfred, however, naively took it as infallible, and never hinted that he derived his biblical knowledge from a Latin stream flowing from a Hebrew well spring. It is the more remarkable that in translating the Decalogue he seems to have followed a separate version. Some slight divergences from the Exodus Vulgate may indeed be explained by contamination with the parallel passage in Deuteronomy, but in other places Alfred omits just the same lines which are wanting in other Decalogues as well. He therefore must have used some text besides the Vulgate, which, however, seems now not to be known. Even supposing that Alfred had been a mere verbal translator, his work would still possess a general historical interest, and should not be left to the philologist of the Anglo-Saxon tongue alone. For we should</page><page sequence="3">KING ALFRED AND MOSAIC LAW. 23 be glad to have this sure criterion as to what seemed to the King worthy of the first place of honour. Why did he not order Frankish law-books to be sent over ? He had called living instructors from France, he had been there as a boy, and he certainly was aware of Charles the Great's Capitulars. But the decrees of the mighty Emperor faded in importance in the mind of pious Alfred when compared with God's own law. Roman law, which did not come again under the notice of English jurists before the end of the eleventh century, would have appeared to Alfred, had he known it, far too technical and unsuited to the primitive stage of social development of his Anglo-Saxons. Mosaic law, however, had already been quoted by many Teutonic legal writers, not only in the canons of the Church, but also in secular laws and jurisprudence. Here, however, it is not merely a few single lines, but more than two long chapters, in their continuous sequence, which were embodied into a royal code, and put, not in a casual, indifferent place, but at the very beginning of the whole. If, then, Alfred appreciated the value of Mosaic law so highly, it was nevertheless far from his intention to introduce it among his Anglo-Saxons. He could not dream of such an impossibility. English monarchy, by no means absolute, required the consent of a very con? servative nobility for the slightest legal alterations from time-honoured custom. For three centuries longer new laws were never permitted to be instituted in England without being masked as mere re-enactments of some older constitution. Such a radical change, therefore, was quite out of the question. Nor does Alfred leave any doubt that practical force is to be given only to his own English code, which follows after the introduction. He is careful to sever the two parts from each other, first by a historical passage about the abrogation of Old Testament precepts by the Christian apostles; secondly, by a separate preface to his own code, where he names three Anglo-Saxon kings as his authorities without alluding to Moses; and lastly, by putting at the head of his own code, the word " Firstly." Accordingly, the later legal literature of the Anglo-Saxons, though often extracting from or referring to Alfred's code under the name of "the law-book" (which clearly denotes its paramount authority), never quotes the Mosaic introduction. All the manuscripts, however, faithfully copy both parts. Only a fourteenth-century compilation, known under</page><page sequence="4">24 KING ALFRED AND MOSAIC LAW. the name of Bromton's Chronicle, dares to transcribe Alfred's English laws without their Mosaic introduction. Now, if Alfred did not want legally to enact the decrees of Exodus, what was his purpose in giving them such a distinguished place ? While his other translations which concerned historical, theological, or philo? sophical works could not be expected to be read but by the clergy and a few aristocrats, his code was intended to be carefully perused by the judge and doomsmen of every court of law, and to influence the meanest subject as soon as he became a party in a lawsuit. Here, therefore, it was the legal genius of the whole people whom Alfred desired to present with a sample of what he considered to be God's own legislation. Pondering over the differences of Mosaic and actual English law, he could not but admire certain milder features characteristic of the Bible. As to capital punishment, on the other hand, for crimes which the Anglo-Saxon atoned for by a mere money penalty, Alfred was eager to explain the change as having been brought about by Christian mercy. It is, therefore, an ideal of humanity which Alfred desires to place before the eyes of his subjects, in order to exalt their legal thinking to a higher standard of civilisation. The purpose of his introduction is thus half ethical, half political. We have spoken so far of the forty-eight biblical articles which precede Alfred's code, as if they were a mere verbal translation of two or three chapters from Exodus. But this is not the case. Alfred omitted, altered, added, and rearranged. Let us quickly pass over a few unintentional blunders. He mistook " the living animal found with the thief," for "the animal with the living thief," misreading vivens as viventem. He failed to understand the word dii in the Vulgate, mean? ing ''judges." Twice, therefore, he avoided its translation altogether, and in the third place he erroneously imagined the sense of " God" lurking behind it. The second commandment in Alfred's version forbids the worship of false " gods over (or besides) me," while the Bible meant " before me." Much more important are the omissions. They reveal to us a reason? able principle of selecting the sentences applying to mankind universally, and of leaving out historical narrative and decrees of limited Hebrew interest. Alfred cancels the verses about the apparition on Mount Sinai, about the building of the altar from unhewn stones, and about</page><page sequence="5">^ neiniirn6 notnan fteci^ Iia^o^.diKt, S$jmuTnjue?fti/ *jjntip.^^^&amp;Sg^*~^ -'4 ' ??4.</page><page sequence="6">KING ALFRED AND MOSAIG LAW. 25 leaving the field fallow in the seventh year. We must not, however, expect from a layman, writing in the ninth century in his vulgar tongue, the systematic sequence of a modern author. In one place Alfred dis? cards the motive applicable only when addressing Hebrews, " because ye were strangers in the land of Egypt." In the other place he allows it to stand, without hinting that these words were directed to Israelites. A certain tendency to give the foreign matter a homely garb is clear throughout. Instead of "judges" Alfred uses "witan." Instead of the "Hebrew serf" he puts the "Christian slave." Again, he calls the Creator of the world " Christ" where the Vulgate has Dominus, an alteration to which the Anglo-Saxon epos known under the name of Crist offers an exact parallel. His literary skill, however, would hardly have sufficed uniformly to modernise or to christianise Exodus. At any rate, he did not endeavour to do so. His want of learning luckily caused him to avoid the trap, into which ecclesiastical authors adapting the Old Testament to their use were wont to fall, namely, allegorical explanation. He rather preferred faithfully to adhere to his authorities, so much so that he did not strike out distinct divergences between his own code and King Ine's laws, which he appended to it. We, nowa? days, are at a loss indeed to imagine which penalty judges would impose for complicity with a gang of criminals, if Alfred asked thirty shillings and Ine one hundred and twenty, or which course they would take, if Athelstan's London decree fixed the age of punishable responsi? bility, now at twelve years and later on at fifteen. But glaring dis? crepancies like these do exist in the Anglo-Saxon laws, and must not be slurred over. They make it easier for us to understand how Alfred could prefix Hebrew laws of widely different character to his English code. If we now proceed to compare in detail the single Mosaic enact? ments selected by Alfred with those of old English law, it seems but natural to begin with the protection of religion, as the King's chief and successful struggle aimed at the saving of Britain from the danger of becoming a limb in the circle of Scandinavian paganism. Idolatry had been punished among the Anglo-Saxons by money penalties and ecclesiastical penance. Alfred now translated from the Bible that he who sacrificed to idols should die. He added to the prohibition to swear by heathen gods, that nobody should invoke them. In the</page><page sequence="7">26 KING ALFKED AND MOSAIC LAW. Decalogue, in accordance with the Roman Catholic practice, he left out the second commandment against the worship of images, only a century after the English and Frankish Churches had protested against the Greek Iconodules. But while the Church, in order to complete the number ten of the Decalogue, split the tenth commandment into two, Alfred appended the prohibition of metal idols from a later verse in Exodus, an insertion directed against the heathenism introduced by the Danish invaders. This unorthodox addition to the Decalogue was rejected by some twelfth-century transcriber of the Latin version of Alfred, though not yet in this version itself, which we call Quadripartitus. Its author had been content to normalise Alfred's work according to ecclesiastical learning by supplying from his own Yulgate most of Alfred's omissions, including the second command? ment. Alfred intentionally left out the prohibition of the offering of the first-born son to God. He retained, on the other hand, the prohibition of meat "torn of beasts," and most likely meant this verbally to be observed, just as he took care to translate from the Apostles' letter the prohibition of tasting blood or things strangled. The Venerable Bede had also forbidden the eating of morticinum, or captum a bestia, but he had boldly altered the prohibition of tasting blood into one of shedding it. While the Vulgate enacted " sorcerers thou shalt not suffer to live," Alfred puts instead of sorcerers " women who are wont to receive [and assist] conjurers, magicians, and sorcerers." Capital punishment for sorcery occurs in Anglo-Saxon law only where murder was connected with it. Accessories, on the other hand, were sentenced to death in the same way as the criminals themselves. Sorcery was considered by many Teutonic peoples as a crime to which women seemed peculiarly prone. If these facts, taken together with Alfred's strict orthodoxy, fail to explain this alteration, we must fall back on the ingenious hypothesis of Professor Turk, who points out that the words "women are wont to receive " form in the Vulgate the conclusion of the preceding verse, and may, by a mere blunder of punctuation, have been mistaken for the beginning of the next. In a similar way, when translating the commandment to honour father and mother, iUfred adds, "whom God giveth thee," while in the</page><page sequence="8">KING ALFRED AND MOSAIC LAW. 27 Bible this relative sentence refers to the land where the dutiful child may hope to live. Here, however, I should not suspect a mere casual transposition of words, but rather the intentional stress laid upon the dignity of parents by the loving son of iEthelwulf and Osburg. From Alfred's versions of Boman books we know how often he carefully omitted obscenities. Here he retains indeed the mention of a foul vice which, however, in the Penitentials of the time, forms but one article of a detestably long list of hideous lust, half barbaric, half refined. One or two slight alterations reveal the chaste mind of this moral prince, even when dealing with the Bible. If Mosaic law forbids adultery, Alfred prohibits all illegitimate intercourse. This possibly may be due to the double sense of moechari in the Yulgate. Hardly anything else, however, but a monogamic tendency could have induced him to leave out the " coveting of thy neighbour's wife " and the poly? gamy of the buyer of a female slave. It is according to the Anglo-Saxon marriage law that he enacts the bride to be paid for by the bridegroom to her father or guardian, where the Yulgate prescribes she shall be dowered by him. Similarly he introduces " dowry " as an explanation of " price of virginity." While Teutonic popular custom threatened strangers almost as fiercely as outlaws, monarchs took their protection into their own hands. Alfred, who reformed church and navy by the help of strangers and foreigners, was anxious to accentuate the biblical enactments in their favour. He prohibits the bearing of false witness without the ensuing biblical words "against thy neighbour." This omission could not mean otherwise than the forbidding of damaging strangers as well. The same words, however, are wanting in iElfric too. The omission, therefore, may be again due to a peculiar Decalogue. Mosaic consideration for slaves most likely struck a sympathetic note in the heart of the King, who, in his own code, forbade the selling of slaves?at least in certain circumstances. A father had, with the Teutons as with the Hebrews, the power to sell his child into slavery, though no Anglo-Saxon record can be adduced to prove it. We only know that whole families preferred slavery to starvation. Alfred translated the case of a father selling his daughter. A Frankish canonist of the same age copied it too, and among the Franks still later,</page><page sequence="9">28 KING ALFRED AND MOSAIC LAW. proofs exist of this right being exercised. No Teutonic slave was ever set free after six years of thraldom. Manumission after a number of years is entirely unknown in Germanic countries, with the exception of the island of Gothland, where it seems to have been influenced by Mosaic law. Alfred translated from Exodus the words " in the seventh year he shall go out free," most likely for the same reason which is given by a French law copying the same verse twenty or thirty years before, " because it would morally edify those who observe it." Possibly many an English slave-owner felt such a humanising influence from Alfred's code. Among the mass of manumission records, however, the Bible is never once quoted. The Hebrew slave who wished to stay with his lord had his ear bored through at his master's doorpost. Alfred puts " the temple's door " instead, possibly desiring to give this ceremony an ecclesiastical garb, just as the opposite, that of manumission, was favoured by, and was often under the control of, the Church. Among the motives of slavery voluntarily continued, Alfred introduces the man's desire not to lose his possessions. This is another argument for the fact that Anglo-Saxon slaves as a rule had some cattle, if not in absolute ownership, at all events for their individual use. The criminal responsibility of the master killing his slave, excerpted from the same verse in Exodus by several Penitentials and by a Frankish law, is rendered by Alfred in enlarged phraseology, and the manumission of slaves whose eye or tooth the lord had smitten out, or whose female honour he had violated, is faithfully translated. All this was without parallel in Teutonic hard slavery. It is not before Cnut's time that biblical humanity triumphs in secular law. The owner who violates his slave-girl has to lose her. In one place, Alfred, in order to please his readers, altered a biblical line in disfavour of the slave-girl. Legal betrothal of a free Anglo-Saxon to a slave being out of the question, he changed " betrothal" into " concubinage." Why did Alfred omit the Sabbath-rest of the slave % It is wanting in other Anglo-Saxon Deca? logues too. But the idea quite agreed with the King's own mind, who in his English code enacts that holidays be allowed to slaves. Possibly the reason was that Ine, wdiose laws he appended to his own, had already decreed that the slave working on Sunday by the master's command is to be set free, and, if voluntarily doing so, is to be scourged. Where Exodus taxes the value of the slave at thirty shekels, Alfred values it in</page><page sequence="10">KING ALFRED AND MOSAIC LAW. 29 so many shillings, a thoughtless English adaptation, as introducing a price far too low. Not less interesting is the King's treatment of the Mosaic para? graphs concerning justice. He enlarges upon the warning against the judges' favouring friends or injuring adversaries. But he leaves out the passage against countenancing the poor, doubtless because he saw and disapproved of the enormous advantage enjoyed by the rich in Teutonic process. The warning against following a multitude is so much en? larged, that the old Germanic participation of the people in deciding lawsuits seems not yet to have lost its actual force. It belongs to the tendencies common to the Hebrew and to the Anglo Saxon lawgiver, nay, to every primitive reformer of human society, if they want to limit private vengeance of wrong, with its consequences of blood feud, to extend the action of public justice. Exodus goes so far as to find guilty the landlord who killed the housebreaking burglar caught in the act during the daytime. Here Alfred is careful to add the words, " except if he had been forced to the slaying," declaring the owner to be innocent, if the thief had withstood being bound and delivered over to justice as a redhand criminal. Capital punishment for stealing and selling a person is limited by Alfred to the case, "if the defendant cannot purge himself." In both these enactments, Alfred wants to intro? duce the all important distinction of Teutonic criminal process between ordinary suit, which gave the benefit of purgation to the accused man, and the summary process against the delinquent caught in the act, who was convicted without the opportunity of exculpating himself. According to Alfred's English code the " man thief " (the person who had stolen a human being, without being caught in the act) underwent no other public penalty than the higher money-fine. Proof in ordinary suit was in Anglo-Saxon courts offener adduced by oath-helpers than by witnesses. Testimonium in mediaeval Latin, and icitness in Anglo-Saxon, had both these meanings. Alfred seems erroneously to have misunderstood the former, as he warns " to say witness after the wicked," where the Vulgate offered him the reading "pro impioP We have seen above how Alfred was opposed to blood vengeance. He indeed retains the biblical text enjoining it against the manslayer, but is anxious to increase the cases where the defendant can be re? deemed by " the atonement according to popular custom," meaning the</page><page sequence="11">30 KING ALFRED AND MOSAIC LAW. wergild to the relatives of the person slain. He translates, however, without hesitation, the paragraphs " dooming to death him that smiteth or curseth his parents or kills a woman with child," though according to his English code in the latter case, no more than a wergild falls due for the mother and half the price for the child. In the same way he clings to the biblical poena talionis, " eye for eye, tooth for tooth," while in the English code he offers a long list of money-fines for wounding any limb of the human body, as far down as the finger-nails. It is this payment to the wounded man, besides the restitution of the doctor's fee, which he wants to maintain when he leaves out the acquittal of the man smiting another who " rises again." All these contrasts between the Mosaic introduction and the English code he most likely meant to smooth away by the historic passage inserted between the two, according to which capital punishment, thanks to Christian mercy, had been limited to treason. A wilful murderer, says Exodus, can " be taken from mine altar, that he may die." Alfred translates this sentence verbally, and else? where, in the version of Gregory's Pastoral, betrays once more his interest in Hebrew places of refuge. He probably intended to show by the Hebrew model that not every criminal, as Ine had decreed, ought to have an absolute warrant for his life merely by reaching sanctuary. A reaction against such an extravagant Church privilege might seem necessary in favour of strict justice. In Alfred's English code, asylum is given for a number of days only, and two generations later, serious criminals are excluded from it altogether. In case of larceny, Exodus enjoined five oxen to be rendered for one stolen ox. If Alfred asks but two, the Anglo-Saxon rule of double restitution seems to guide him. Public money-penalty due to the judge, and the case of arrest in the act itself, remain unmentioned. A thief unable to pay could be sold as a slave both among Hebrews and Saxons. Damage done by animals is avenged by killing them, as if ;they were rational beings, according to the law of both these and many other primitive races. Alfred translated Exodus about the goring ox, but in his English code he neither acquits the guiltless owner by the mere loss of the animal, nor does he condemn the negligent one to lose his life or wergild. Civil law, as in all the ancient English laws, is but slightly touched</page><page sequence="12">KING ALFRED AND MOSAIC LAW. 31 upon in Alfred's introduction. The rule in Exodus against usury appears somewhat altered, " do not press the borrower of thy money like a slave." The King seems to aim at those rich Anglo-Saxons to whom insolvent debtors surrendered themselves as slaves. The biblical dis? tinction, whether the chattels lost by the defendant had been entrusted to or borrowed by him, is slurred over by Alfred. A short remark concerning old English economy may close our comparison. Eight times in the few chapters translated by Alfred, Exodus speaks of the ass. Alfred suppresses its mention altogether, surely a proof how small a part the humble donkey played in Anglo Saxon economy. After having dwelt so long on the variations between Alfred's code and Exodus, because they serve to reveal his character, his knowledge, and Saxon custom, let us be careful not to deem all these divergences as of paramount importance. No, the chief stress must be laid on that majority of paragraphs where the King faithfully clings to his Bible, the Ten Commandments, the many moral precepts in favour of slaves, girls, widows, orphans, strangers, and poor debtors, the regard paid to the enemy whose cattle is going astray, and the forcible warnings against injustice and falsehood. It was no mean merit to unveil before the eyes of all the English people such a treasury hidden up to his time under a foreign garb. In true appreciation of its value, Alfred placed it on the very front of his legislative edifice. He twice proclaimed its origin from God Himself. As a divine and eternal legacy to humanity, it will indeed be for ever revered even by the most sceptical student of the comparative history of civilisation. And Englishmen of the Jewish persuasion ought grate? fully to remember that the gem so honoured by their greatest king, the founder of the English constitution, as Alfred was called in the twelfth century, was the Mosaic law.</page></plain_text>