1. The Law of Æthelbehrt, c597 – 604.

24. If a person kills someone, let him pay an ordinary person-price, 100 shillings.

History has been kind to Æthelbehrt of Kent. In many respects very little tangible remains of Dark Age Britain –  before England itself existed, in a society which rarely built in stone and left little in the way of written records. It can be difficult to untangle history from legend. But we know more of Æthelbehrt – or Ethelbert as he is depicted in many street names across Kent – because the Venerable Bede, England’s earliest historian whose writing gives us a sense of England emerging as a nation-state – places him towards the centre of his narrative.

Æthelbehrt was King of Kent from about 589 until his death in 619, apparently directly descended from Hengist, the Jutish warrior who founded the Kingdom of Kent in the 5th century with his brother Horsa. According to – perhaps not terribly reliable – legend, Horsa may actually have been some kind of horse. At the time Kent, oldest of the Anglo-Saxon kingdoms, was the most powerful, and according to the Venerable Bede the Kentish King as Bretwalda exercised overlordship over the other Kings.

The prosperous Kingdom of Kent had close connections with the Franks on the other side of the channel and Æthelbehrt married Bertha, daughter of King Charibert of the Franks. Unlike her husband, Bertha was a Christian and brought with her a Bishop, Luidhard. Aethebehrt built Luidhard a church, St Martin’s in Canterbury, the oldest parish church in continuous use and the oldest church in the English-speaking world.

So it was natural that in 596 when Pope Gregory decided to send Augustine on his mission to Christianise the Anglo-Saxons, it was to Aethelbehrt’s Kent that he was sent. There were already Christians at his court, and he was the most powerful monarch in the country.

It is possible that Æthelbehrt had already converted under the influence of his wife and Frankish relations – it is likely to have been a condition of his marriage to Bertha that he at least consider conversion – but as that would have been seen as acknowledging the overlordship of the Frankish King it is more likely that he waited to be converted by Augustine. Certainly, Augustine was suspicious enough of Æthelbehrt that he insisted that their first meeting should be in the open air.

Æthelbehrt seems to have taken to his new role as a Christian monarch with alacrity, and used his influence as Bretwalda – it was he, and not his client Sæbehrt King of Essex, who built and endowed the first St Paul’s Cathedral on the site where it still stands.

As a freshly-minted Christian King, Aethelbehrt may have been – consciously or unconsciously – imitating great Christian lawgivers and in particular the Emperor Justinian, whose Corpus Juris Civilis was hugely influential. Æthelbehrt could demonstrate his status as a good and wise Christian monarch by giving law in the same manner. What better way to show his people, his Frankish relatives and the Pope that he and his people were civilised Christians, than by being a lawgiver in the mould of Justinian, even of Moses himself? Sometimes, laws are made largely or wholly to send a message or to improve the reputation of the lawmaker.

Aethelbehrt’s law code goes to the heart of why we have law, and we are going to meet the themes in it frequently. It lays down a series of fines for transgressions, aimed at preserving public order by avoiding blood feuds. Part of the King’s duty as a monarch was to maintain law and order and enforcing these financial penalties was the means by which he kept control. Ultimately, legal systems fail if they don’t keep order and leave people with an alternative to taking the law into their own hands, and they bring their societies down with them. And there is an important lesson which we need to bear in mind throughout this history: there are limits to what any law can achieve. While Aethelbehrt may have hoped to deter some violent crime, and to keep order in his Kingdom, nearly 1,500 years later we are still trying to find ways to keep violence under control.

Of course, given that he would have received part of the fines, the King had a financial interest in collecting them. No matter how well-intentioned (and some are not well-intentioned at all) no government can wholly put aside their own interest when making law.

As Bede says:

Among the other benefits which he thoughtfully conferred on his people, he also established enacted judgments for them, following the examples of the Romans, with the council of his wise men. These were written in English speech, and are held and observed by them to this day.

His law is not new; it follows heavily in the tradition of other Germanic legal systems. The penalties are laid down systematically – starting with the King, and working down to the lowest slave, and from the top of the head down to the feet. It may well be that this is an echo of its origins as an oral system, ordered systematically in order to make it easier to remember. His desire to be seen as a good Christian monarch did not extend to imposing a new legal system on his subjects after his conversion, but rather he codified the existing legal system of his pagan ancestors.

But what was new was that this code was written down, and in his people’s own language. It is the oldest known text in the Old English language. No contemporary examples of the text exist, but we have a copy in the Textus Roffensis, a text compiled in the 1120s by a single scribe at Rochester Cathedral and still owned by them.

When Alfred the Great came to lay down his own law, he acknowledged the influence of Aethelbehrt’s laws as well as those of Ine of Wessex and Offa of Mercia. Aethelbehrt’s code helped to lay the foundations of English law.



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Introduction

England has one of the oldest and most settled legal systems in the world; one that has profoundly influenced our national life. In this blog I hope to show how the history of England can be told through the laws that monarchs and Parliaments chose to make. Over the past millennium England has gone from the Norman conquest, through being a trading, naval and then imperial power, and to a modern post-imperial democracy. All of that has required legal innovation. And so has our constitutional settlement, restricting the power of monarchs and moving – sometimes painfully slowly – towards representative democracy.

Some themes will recur again and again – punishing violent crime, keeping public order, and securing the state – but others, like the obsessive regulation of religion, seem alien to us now.

It would be easy, but in my view misleading, to think of all this as an inevitable progressive march towards liberty and democracy. There’s a Whig view which sees the English throwing off the Norman yoke and rediscovering ancient English liberties, becoming a shining beacon of freedom across the world. But there’s much in English history which is messy, complex and sometimes shameful. Yes, for example, the British abolished the slave trade and used her naval power to suppress it – but only after participating in it, protecting it and propagating it across the world.

Laws were made by fallible humans for reasons that were sometimes noble, but often base or corrupt. It is this complex story which I hope to tell here.