Cambridge Ancient Hi.. - Index of

266 10. law in the western kingdoms
‘according to exempla of the Romans’, and this has suggested to some that
the conception of the king as legislator was not already traditional in
Æthelberht’s time; on this view, Æthelberht’s Law was a conscious attempt
to adopt, on a small scale, the legislative role of an emperor. According to
Wallace-Hadrill, Æthelberht was putting into writing ‘just that fraction of
custom that seemed enough to satisfy royal pride in legislation’. 27 What was
promulgated, on this view, was not so much the particular dōm – that was
already customary – but an image of a royal lawgiver.
This is certainly not what Bede meant to convey, for he declares that
Æthelberht promulgated his laws for the sake of his people and also that
the laws were observed by them up to Bede’s own day. It is also rendered
unlikely by the particular situation that Bede has in mind. According to him,
Æthelberht’s laws were enacted with the advice of his wise men. This term,
sapientes, recurs in Bede’s account of the Northumbrian royal council at
which Edwin and his sapientes debated whether or not the king and his
councillors should, all together, accept the Christian faith. What Bede had
in mind was the situation also implied by the late-seventh-century prologues
to the laws of Wihtred and of Ine. 28 Although in the former the
council is said to make the laws, while in the latter the king makes them with
the advice of his wise men, both are probably alternative descriptions of
the one process: the king took the advice of his councillors and then made
a declaration, more or less formal, of his decision, to which they gave their
assent. 29 The same process of decision-making lies behind early English
charters and explains why they could be described by Bede both as cartae
and as royal decrees promulgated in a council. 30
The process of legislation was, therefore, oral. For kings to satisfy royal
pride in legislation it was not necessary that those laws should be committed
to writing. 31 What did matter was that the political élite should put their
collective weight behind legislation promulgated by the king with their
advice and in their presence. Writing the law down, if it happened at all,
was an entirely secondary matter; for precisely the same reason, writing a
charter was a secondary matter. This pattern of legislative action provides
a context in which the concept of a dōm, at once edict and judicial verdict,
makes complete sense. As edict, the dōm is a decree promulgated by the king
in his council; as judgement, it is the decision promulgated by judge or
judges in the court.
The same pattern is exemplified among the Franks by the decrees of
Childebert II, promulgated at the annual assembly on 1 March. 32 The extant
27 Wallace-Hadrill (1971) 37. 28 Ed. Liebermann, Gesetze i.12, 88.
29 Cf. Ganshof (1961) 35–40, 52–62.
30 Bede, Epistola ad Ecgberhtum cc. 12, 13, 17, ed. Plummer, Baedae Opera Historica i.415–21.
31 The legislation of Earconberht, mentioned by Bede, HE iii.8, may never have been written.
32 Pactus Legis Salicae ed. Eckhardt (1962) 267–9.
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