By Thomas B. Lambert
PhD Dissertation, Durham University, 2009
Abstract: The thesis analyses the change in the way that violence was addressed in English law between the late ninth and early thirteenth centuries. It attempts to explain how a system largely based on feud, in which violence was a matter primarily for the parties involved, became one in which all serious violence was punished by the crown as crime. It does so through the examination of all the relevant legal material in the period: mostly royal law-codes and private legal compilations alongside more limited records of real-life cases. The central argument is that the concept of protection – or “protective power” – is crucial to understanding both how violence was regulated as a whole and how royal jurisdiction over violence grew. It emphasises not just royal jurisdiction but the real power that was exercised by other parties such as lords, churches, guilds and kindreds.
The thesis is split into two parts, divided chronologically by the Norman conquest of England in 1066. Part one begins by assessing the situation at the beginning of this period, outlining the core elements by which a case of homicide would be settled in the system of feud. It criticises the arguments for the introduction of a royal crime of homicide under the Anglo-Saxon kings, arguing instead that the core elements of feud remained relatively unchanged before 1066. The second chapter then examines the ways in which royal jurisdiction over violence did advance in this period, and finds that these almost invariably involved the extension of specific limited protections, such as that which made violence in a house an offence punishable by the king. This picture of expanding royal jurisdiction is combined with the evaluation of the significance of feud from the first chapter to produce a new model of the regulation of violence in pre-conquest England. The third chapter applies these findings to the wider debate about the distribution of legal power under the Anglo-Saxons. It concludes that a misunderstanding of the role of protection has, in part, led historians to underestimate the significance of the powers exercised by ecclesiastical institutions, lords and free kindreds, skewing assessments of legal power heavily in the king’s favour.
Part two opens with an assessment of when we can first securely demonstrate the existence of a royal prohibition of homicide. Using a variety of sources it identifies a significant shift at around the time of the Assize of Clarendon in 1166. The fifth chapter looks at a number of possible legal mechanisms that might have contributed to the shift from a system of protections to a general royal prohibition on violence. The development of the murder fine; the introduction of the concept of infamy for those defeated in judicial duels; the significance of the protection inhering in charters; and the possibility that specific royal protections merged and expanded into a general peace are all examined. The picture that emerges is once again one in which protective power plays a major role. The final chapter looks at wider ideological trends, such as the Peace Movement and the representation of crime as treachery to the king, examining the likelihood of their influencing legal developments. It argues that the ideal of a general peace against violence, which was central to the Truce of God, may well have been important in twelfth-century England. Overall, it is argued that, throughout the period, royal jurisdiction over violence increased through the expansion of royal protective power within a wider system of protections. When that expansion reached a point where the system was wholly dominated by royal protections, however, protection was swiftly replaced by a general prohibition of “violent crime”.