T. B. Lambert
Past and Present: Vol.214:1 (2012)
It is a startling but infrequently remarked upon fact that for five centuries English law, which prescribed the sternest penalties for theft, contained only a relatively minor royal fine for homicide. Whereas the first clear statement that the death penalty applied to thieves is found in the late seventh-century West Saxon laws of Ine, we have no equivalent statement with respect to homicide before the text known as Glanvill, composed in the late 1180s. This apparent disparity between the treatment of homicide and theft throughout the Anglo-Saxon period, and indeed well into the twelfth century, was not something that unduly troubled scholars of a century ago — F. W. Maitland, for one, was content simply to accept the two offences’ differing treatments at face value — but the modern generation of legal historians has been rather more sceptical. Perhaps in part because of the recent (anthropologically influenced) trend to view law codes and other normative sources with suspicion, and to favour instead the evidence of real-life cases, they have felt able to disregard the disparity in the laws and to present a picture of broad continuity in substantive criminal law reaching back from the time of Glanvill well into the late Anglo-Saxon period. Although the scholarly basis for the idea is in fact rather minimal — the point has only ever been argued explicitly in an extended footnote by Naomi Hurnard in 1949 and from another angle by Patrick Wormald in an article first published in 1997 — it is now commonly assumed that homicide was prohibited in a way similar to theft for some time before the Norman Conquest. Modern accounts of the development of the Common Law now tend to emphasize the importance of procedural innovations, mostly introduced in some form under the Norman kings and institutionalized under Henry II; the idea that there was any substantial change in the nature of offences between 1066 and the thirteenth century (let alone the one of ‘marvellous suddenness’ described by Maitland) is now either absent or actively denied.
In this article I want to question this modern consensus, which I believe has resulted in a considerable distortion of our understanding of the development of royal legal power both before and after 1066. I argue that there was indeed, as Maitland recognized, a major distinction in the treatment of homicide and theft before the Norman Conquest, and that this reflects a fundamental division between two categories of royal jurisdiction. Broadly speaking, the division is between offences against property, which tend to be treated in a similar way to theft, and offences against the person, which tend to follow the model of homicide. The true picture is nowhere near so tidy as this — there are exceptional offences, ones that overlap to an extent, and many areas where the difference between the two groups is much less clear-cut than between homicide and theft — but the aim here is not to illustrate late Anglo-Saxon justice in all its complexity, just to use the starkest point of contrast to demonstrate the existence of a fundamentally divided jurisdictional structure. It is important to emphasize at the outset that this is not a mere legal-historical technicality: it is an issue of considerable importance for some of the central themes of this period of English history. The most obvious is the nature of what is conventionally termed the Anglo-Saxon state. Wormald’s description of a polity with a ‘developed notion of crime and punishment’ capable of claiming and exploiting Weber’s ‘monopoly of legitimate violence’ is, of course, part of a much broader characterization of the kingdom as possessing an unusually sophisticated and centralized system of royal administration. Clearly, if we recognize that kings did not prohibit homicide in the same way as they did theft, one element of this picture of Anglo-Saxon sophistication must be revised. The potential implications for our understanding of the post-Conquest period are also clear-cut: the creation of effective royal jurisdiction over homicide by the late twelfth century, placing it alongside theft in the new category of ‘felonies’, appears much more revolutionary once we appreciate how separate the two offences had hitherto been. It highlights a major post-Conquest development of which modern historiography has almost completely lost sight.