This was originally submitted to Notes & Queries, but after something like 18 months of faff (not just on their end), I decided it wasn’t worth it for something so small. But maybe it’ll be useful to someone at some point. And it could be helpful as an overview of the early sources to the common motif of judges being influenced by fear, favour and greed in their judgements (though I could never quite get the structure of the article right and so it does present these sources in a slightly unintuitive way). Anyway!

A POSSIBLE SOURCE USED IN THE PROLOGUE TO KING ALFRED’S LAW-CODE

The translator responsible for rendering several chapters of Exodus into Old English for the prologue to the law-code of King Alfred of Wessex (r. 871–99) kept reasonably close to the Latin original. Some changes were made to syntax, phrasing and occasionally penalties or legal procedures, but it is never in doubt that we are reading a translation of parts of Exodus 20–23. However, one passage bears so little resemblance to the direct source of the surrounding material that it can’t be called a translation. The passage in question reads ¹

Dem ðu swiðe emne. Ne dem ðu oðerne dom þam welegan, oðerne ðam earman, ne oðerne þam liofran 7 oðerne þam laðran ne dem ðu.

Judge very justly. Do not judge one judgement for the rich, another for the poor; do not judge one for one you love and another one you hate.

Given the surrounding verses, it ought to be a translation of Exodus 23:6: ‘Non declinabis in judicium pauperis’, ‘Do not go aside in the poor man’s judgment’ or Exodus 23:3 ‘Pauperis quoque non misereberis in judicio’, ‘Neither shall you favour a poor man in judgment’.²

The passage in the law-code is not drawn from elsewhere in the Bible, nor can the rewriting be explained by the logic underlying the other – less radical – alterations made to the biblical text.³

The idea that justice could be undermined was relatively common in the early Middle Ages and there was a textual tradition of expressing the causes of injustice through opposing pairs: love and hate, fear and favour, poverty and riches, friend and foe. This motif is found in, for instance, Isidore of Seville’s Sententiae and in early medieval continental legislation. Finding analogues to the passage in Alfred’s prologue is therefore not difficult, and, as we’ll see below, there are several texts through which this motif could have reached Anglo-Saxon royal courts. However, the direct source for Alfred’s prologue is likely to be a psalm commentary, the only text which can account both for this particular framing of injustice and, crucially, also for why it was considered a suitable replacement for Exodus 23:3/6. I’ll start by introducing this most likely direct source.

There are two, closely related, psalm commentaries which may have been used as direct sources for the prologue: the seventh-century Frankish Glosa psalmorum ex traditione seniorum and a slightly later, possibly Irish commentary Breviarium in psalmos (Pseudo-Jerome).⁶ Both may have been used for the Old English translation of the first fifty psalms, a text which is believed to have come from Alfred’s court.⁴

Both offer the same commentary on Psalm 32:5:⁵

Quomodo dicit: diligit misericordiam, cum alio loco dicat: Ne miserearis pauperi in iudicio? id est non propter pauperem nec propter diuitem, non propter proximum et longinquum, non propter cognitum et incognitum: non declines a recto iudicio.⁶

How does it say: he loved mercy [Ps 32:5], since it says in another place: you should not favour a poor man in judgment [Ex 23:3/6]? That is, neither for the sake of a poor man nor a rich man, not for the sake of a kinsman or a stranger, nor for the sake of someone you know and someone you don’t; do not divert from just judgment.

The passage covers the poor and the rich, just like Alfred’s prologue, as well as the theme of love and hate (or perhaps rather indifference) through the two pairs proximus/longinquus and cognitus/incognitus. It ends with an exhortation in the second person, just like the opening to the passage in Alfred’s prologue (‘Dem ðu swiðe emne’, ‘Judge very justly’).

Crucially, this exhortation and the opposing pairs are used to explain not just Psalm 32:5 but also Exodus 23:3/6, the Exodus verse(s) replaced in Alfred’s prologue. This offers us a convincing explanation for why the translator of the prologue departed from the biblical text at this point in the prologue. As the commentaries imply, the message of Exodus 23:3/6 looks contradictory to other scriptural exhortation to justice, mercy and the protection of the poor. The translator involved with Alfred’s code may have reached for an interpretation of Exodus 23:3/6 instead of the biblical verse itself to make the meaning clearer and more in line with the overall purpose of the prologue.

There are signs of a broader cultural context of thinking carefully about just judgment and care of the poor at Alfred’s court, which could explain why verses like Exodus 23:3/6 would have seemed unacceptable to the makers of the law-code and why they reached for a text like the psalm commentaries to find a replacement. In Asser’s Vita Ælfredi, Alfred’s advisor and biographer Asser stated that the king worked particularly hard to ensure justice for the poor, because their protection was part of his own and judges’ spiritual duty and it was necessary for the common good. If the king came across an unjust judgment (in any case, not just those involving the poor), he would⁷

…interrogabat quare tam nequiter iudicassent, utrum per ignorantiam aut propter aliam quamlibet malevolentiam, id est utrum pro aliquorum amore vel timore aut aliorum odio aut etiam pro alicuius pecuniae cupiditate.

…ask why they [the judges] had passed so unfair a sentence – whether through ignorance or because of some other malpractice, that is to say, either for love or fear of the one party or for hatred of the other, or even for the sake of greed for some reward.

This has several parallels to the passage in the prologue. However, I don’t believe Asser’s text was the direct source – it lacks mention of the rich and poor and, crucially, it cannot explain why the passage on the causes of injustices ended up where it did in the prologue. But it does reveal the potential real-life context behind the translators’ choice to replace the Exodus verse: there was a genuine concern for just judgment and justice for the poor.

We should bear in mind that Asser could be referring to a formal oath to be sworn by judges that they had not been or would not be partial in judgment. There is a parallel to this in the seventh-century Leges Visigothorum, which states that judges could clear themselves from accusations of wrongful judgments by swearing an oath that it was not done for love, greed or advantage.⁸ Indeed, many later oaths sworn by judges take on a similar form, up until the modern day.⁹ A later Anglo-Saxon law from King Edgar states that witnesses to trading must swear that they have not been moved by money, love or fear to lie about what they’ve seen or heard (IV Eg 6.1). This reminds us that this kind of formula had a life outside texts too.

However, surviving textual parallels suggest that Asser’s formulation and that of the prologue drew on a textual tradition to express the causes of injustice, not just an oral one. An early expression of this tradition is found in Isidore of Seville’s Sententiae¹⁰

Quattuor modis iudicium humanum peruertitur: timore, cupiditate, odio, amore. Timore dum metu potestatis alicuius ueritatem loqui pauescimus; cupiditate dum praemio muneris alicuius corrumpimur; odio dum contra quemlibet aduersari molimur; amore dum amico uel propinquis praestare contendimus.

There are four ways in which human judgment is perverted: by fear, greed, hatred, and love. By fear when we are afraid to speak the truth out of fear of someone’s power; by greed when we are corrupted by the reward of some bribe; by hatred when we are stirred up to be an adversary to someone; by love when we strive to prefer a friend or family member.

Asser echoes Isidore in listing amor, timor, odium and cupiditas, strongly suggesting he used Sententiae ¹² or another text drawing on it, such as the Collectio Canonum Hibernensis, a widely circulated early eighth-century canonical collection.¹¹ The psalm commentaries may also have drawn on an Isidorean source, suggested by their inclusion of kinsmen, strangers, those you know and those you don’t. In fact, several of the sources described below may ultimately be traced to Isidore, including the oath from the Leges Visigothorum, written not long after Isidore’s work and within the same intellectual milieu.

The motif probably also reached Asser and Anglo-Saxon courts through Carolingian legislation. One such source is the decrees of a church council held in Mercia and Northumbria in 786. It was convened by Carolingian papal legates, who were also behind the only surviving copy, which contains the following passage on just judgment ¹³

…ut potentes et divites iusta iudicia statuant, nec personam divitis accipiant, nec pauperes contemnant, neque a rectitudine iudiciorum devient, nec munera super innocentes accipiant, sed in veritate et iusticia dicente propheta: ‘Iuste iudicate, filii hominum’.

…that the powerful and rich should uphold just judgment, neither accepting the person of the rich nor condemning the poor, nor should they stray from the correctness of judgments, nor take bribes against the innocent, but in truth and justice, as the prophet says, ‘Judge justly, sons of men’.

The rendering of Psalms 57:2 ‘Iuste iudicate, filii hominum’ provides an analogue to our passage in the prologue and could even be a possible source for Alfred’s ‘Dem ðu swiðe emne’. This clause is also similar to Alfred’s in mentioning the rich and poor, though it does not include love and hate. No manuscripts survive from England, but it may have been known to Alfred’s circle and to churchmen in the tenth century.¹⁴ So while it was probably not a direct source for the prologue, it may have formed part of the intellectual context in which it was written and as an analogue it shows us that injustice was an ongoing concern in legislation produced for Anglo-Saxon England.

Another relevant text is Charlemagne’s 789 decree Admonitio Generalis. The relevant chapter opens with ‘Iuste iudicate, filii hominum’, followed by a warning about accepting bribes.¹⁵ Thereafter, the decree states that judges must not deviate from justice, with words reminiscent of Isidore¹⁶

…per adolationem aliquorum aut per amorem cuiuslibet amici aut per timorem alicuius potentis aut propter praemium.

…because of someone’s flattery or because love of some friend or because of fear of some powerful person or on account of bribery.

Thus, it covers Alfred’s concept of love, though ‘fear’ takes the place of ‘hate’ and there is no explicit mention of rich and poor. We have no direct evidence that this text was available to Alfred, though there are some other broad similarities between Admonitio and Alfred’s code. In general and in the case of injustice, the Admonitio might have influenced Alfred’s legal thinking, but it was not used as a direct source.

The 786 decrees and Admonitio Generalis both show signs of having been written by the Northumbrian scholar Alcuin, who was attached to Charlemagne’s court.¹⁷ Alcuin is certainly the author of a third relevant Carolingian work to make use of the injustice motif. The passage in question is found in the chapter ‘De judicibus’ in Alcuin’s De virtutibus et vitiis. Like the 786 decrees and Admonitio, Alcuin cited Exodus 23:8 on the dangers of accepting bribes, before stating¹⁸

Qui innocentes damnat, vel impios justificat pro muneribus; vel cujuslibet personae amore vel odio [inique judicat, in Dei judicio vindictam sustinebit].

He who condemns the innocent or justifies the impious for the sake of bribes or judges falsely from love or hate of any person will endure punishment on judgment day.

This passage and the chapter as a whole have an intriguing association to Alfred’s code: an Old English translation of it was included just before the prologue in an eleventh-century copy of Alfred’s law-code, now known as Iudex. ¹⁹ This translation includes a version of the above, but an even more significant overlap with the prologue is found elsewhere in the chapter. The translation expands on the original’s ‘Sine personarum acceptione debent esse iudicia’, ‘Judgment ought to be without regard to persons’²⁰. This was expanded as follows²¹

Domas sceolon beon butan ælcere hadarunge: þæt ys, þæt he ne murne naðer ne rycum ne heanum, ne leofum ne laðum folcriht to recceanne.

Judgments ought to be without any partiality, that is that he should not be afraid to grant public law to neither the rich nor the poor, to neither those he loves nor hates.

The italicized part is not in the Latin original and offer a close parallel to the law-code, especially in the inclusion of both opposing pairs (rich/poor, love/hate) and the verbal echo in the phrase ‘ne leofum ne laðum’.²² The trouble is that we don’t know when this translation was made; it could have been influenced by the wording of Alfred’s code rather than vice versa.²³ So while Alcuin’s original Latin text formed part of a Carolingian intellectual context which had influence at Anglo-Saxon courts, we can’t determine the exact relationship between the translation in Iudex and Alfred’s code.

To sum up, it is clear that Alfred’s circle was familiar with a particular textual and oral tradition on the perversions of justice, transmitted to the court through Isidore, Collectio Canonum Hibernensis and Carolingian legislation. Their decision to insert it in place of an Exodus verse on the judgment of poor people is, however, best attributed to direct influence from a psalm commentary.