Kings and Crime : Ideology and Practice in the tenth and twelfth Centuries
p. 15-38
Texte intégral
Introduction
1In this paper, I compare certain aspects of the ideals and practices of royal approaches to crime in England in the tenth and the later twelfth centuries. In the latter, the Angevin period, the birth of the English Common Law is traditionally found ; in the former Patrick Wormaid has recently located what he calls the Making of English Law.1 My central concern is to make comparisons regarding the conceptualization and treatment of offences and offenders. I aim to set the issues in a wider context, as suggested by the initial terms of the conference. Underlying my arguments are concerns raised for a later period by E.P. Thompson, especially in Whigs and Hunters, by the various essays collected in Albion’s Fatal Tree, in particular Hay’s “Property, authority and the criminal law”, and by Foucault in Surveiller et punir (translated into English under the title Discipline and Punish).21 examine the classification of certain acts as illegal ; the place of these offences, and offenders, in the wider thought-world ; the role of ritual in the execution of the law. I seek to uncover areas of little change, of continuing but steady change, and of more marked rupture. In addition, I make suggestions as to longer term continuities, through the later middle ages into the early modern period and beyond.3
2A paper of this length is naturally restricted in coverage, being merely an essay suggesting some possible themes and interpretations. I do not discuss the problematic issue of the applicability of the term ‘crime’ to my period. It is clear that certain serious offences were seen as against the community and the realm, rather than simply against individuals,4 and for brevity’s sake I refer to such offences as crimes. Such a looseness of definition is also necessary for comparison across periods.5 Second, almost all of my evidence concerns the most serious crimes. I necessarily exclude lesser offences, for example breaches of regulations, which were no doubt far more numerous than homicides, robberies, woundings, or serious thefts, as in later periods. Third, I concentrate on royal courts. One can do little more than speculate about the probably essential roles of village or manorial and of ecclesiastical courts in economic and moral regulation and definition.6 Likewise the deeds of local officials such as bailiffs and reeves, certainly crucial in the later middle ages and surely also in the earlier, must remain almost entirely unknown to us. Fourth, I concentrate on the core areas of the English realm ; practices, and even ideals, may well have been different in outlying areas such as Northumberland and Cornwall.7 Fifth, I omit discussion of extra-legal social control and deal only to a limited extent with the extra-judicial pursuit of offenders.
3What, then, are the most important types of evidence ? First there are descriptions of offences, trials, and punishments. These start in the late ninth century and continue throughout my period. Only at the end of the twelfth century, however, do official accounts of trials begin, in royal court rolls. Next are the various texts sometimes collectively known as the Anglo-Saxon law-codes. This term can be misleading, notably neglecting the variety of types of text. They include strongly ecclesiastical statements regarding the better Christian conduct of the realm as well as local responses to royal initiatives concerning wrong-doers.8 It is controversial how far any of the texts were practical statements of law to be enforced in court, how far ideological or aspirational texts.9 Although the amount of administrative material within them increases.10 none display the administrative clarity of the Angevin assizes in the later twelfth-century. These assizes do not formally resemble Anglo-Saxon laws or later mediaeval statutes. Rather the Assizes of Clarendon (1166) and Northampton (1176) seem to relate instructions to justices travelling through the country.11 Also from the post-Conquest period come entries in Domesday Book concerning local customs, and unofficial legal collections such as the Quadripartitus and the Leges Henrici Primi, the relationship of which to current legal practice is again uncertain.12 Finally there is the Angevin legal manual commonly referred to as Glanvill, after the royal justiciar in whose time it was composed.13 This is largely concerned with real property law, but its introduction and its short final book on crime are relevant here.
4These sources present various problems. The vast majority give a royal or ecclesiastical point of view – or, particularly from the pre-Conquest period, the view of churchmen close to the king. They therefore conceal alternative perceptions of ideals and practices concerning crime. In addition, they are not easy to use for purposes of chronological comparison. They could exaggerate continuity. Elements of text could fossilise, repeated but in fact of diminishing significance. Even harder to detect are changes in the meaning of words which continue in use, be they very general, such a justitia, or somewhat narrower, such as felonia. Alternatively, the evidence may exaggerate change. Apparent differences of ideals and practices in fact stem solely from changes in the nature of the sources, as new records bring to light pre-existing ideas and practices.
The context and classification of crime
5By the context of crime I mean both the nature of society and authority and also the thought world and the mental representations of society. The social context is a subject too large for extended consideration here. There certainly were changes between 900 and 1200, for example increasing economic exchange and monetarisation, nucleation of villages, the further growth of towns, and also the imposition of a more concentrated form of lordship following the Norman Conquest of 1066. All no doubt had a definite but hard to distinguish impact on the patterns of crime, its policing and prosecution.14 Other aspects, or symptoms, of the social context remained very similar, and would continue well after this period.15 Kings and victims had to contend with criminal lords or families and with the corruption of officials.16 Actually catching criminals was always a major difficulty. Considerable efforts were therefore made to exclude suspected offenders from the community, notably through outlawry.17
6Likewise, the thought world in which crime was set must have changed – the period takes in both Gregorian reform and the twelfth-century Renaissance –, but here the continuities are also very evident. The first, obvious but often neglected aspect is the Christian context. Although sources for popular piety at this time are minimal, it is clear that people considered that they lived in a fallen world, a world which contained evil. Such views are clear in more learned sources. Take the following passage from the preface of the early twelfth-century English lawbook, the Quadripartitus :
“Since the beginnings of the world man’s better nature has never been able to keep to one course of life but has always gone astray, as his impulses drove him, into the everlasting fires of punishment. Hence with the desire for kingdoms the detestable wantonness of malice increased ; hence driven by their blind minds and ill-intentioned angers the tearful calamity of mortal men endeavoured to take the property of others. Soon, as time passed and dissoluteness spread abroad, all kinds of shameful acts, all perils of evil, became consolidated together and overflowed.’’18
Crime and sin were closely associated, indeed at times undistinguished verbally (the Latin crimen could be used for either) or conceptually in this period or beyond ; it has been suggested by a historian of the sixteenth century that “until the nineteenth century (when law-breaking was firmly connected to an urban underclass, fixed penalties and published statistics), contemporaries tended to think less in terms of crime, than individual sins carrying their own particular social meanings.”19 Christian and Biblical thought are obvious in the Anglo-Saxon law codes, in their likely process of composition,20 their general form, their specific content21, and their manuscript context.22 Both before and after the Norman Conquest, religious beliefs were important in descriptions of criminal motivation, in the classification of offences, in the conduct of trials, and in punishment.23 God appears often in the language of the courtroom. Thus certainly in the thirteenth century, and probably before, a man accusing another of homicide stated that the victim had been “in the peace of God and of the king (in pace Dei et regis).”24
7It is, then, not surprising that considerable attention was paid to offenders’ souls.25 Secular, physical or financial penalties co-existed with ecclesiastical, penitential ones, for example for theft, homicide, and perjury :
“Wrong-doing is not permitted at any time, yet at sacred seasons and in sacred places special care shall be taken to prevent it. [...] And ecclesiastical amends shall always be diligently demanded in accordance with the directions contained in the books [of canons / penance], and secular amends in accordance with secular law.”26
8Penance might involve excommunication, fasting, vigils, pilgrimages, and prayers.27 It was to benefit the offender’s soul, to warn against re-offending, and to deter other sinners,28 as also was the related practice of burial in unconsecrated ground :
“If there is anyone who is regarded with suspicion by all the people, the king’s reeve shall go and place him under surety, so that he may be brought to do justice to those who bring charges against him. If, however, he has no surety, he is to be slain and to lie in unconsecrated ground.”29
Although in reports of cases there are few mentions of penance,30 a recent study has concluded that “scattered though the references [are] over two centuries [...] the evidence suggests that throughout [the period 900-1050] the Church’s universal call to penance was answered by the lower orders.”31
9Yet from emphasizing the Christian context, one must not move to a world of programmed Christian automata. Different clerics had different views, lay views differed from clerical, individual and collective views might vary according to circumstance. One may wonder what was the attitude of sufferers or authorities to criminal bands :32 did they give any thought to the Fall of man, was their response even shaped by particularly Christian or Biblical assumptions, or did they simply seek protection or retribution ?
10Similar problems arise when considering the relationship of crime and social standing. Legal texts and the workings of law had classificatory functions. This is particularly obvious in Anglo-Saxon law-codes, with the different values attached to lives of different status. It is also apparent elsewhere, as in the classification of men as knightly or free ; free or unfree ; law-worthy or unlaw-worthy. Conversely, legal texts commonly stated or implied that social rank did not affect an offender’s treatment, at least among freemen. The Preface to the Quadripartitus stated that “they are unjust judges and worthy of evil who rush to judge where they have no knowledge and observe the rank of persons rather than the merits of the facts.”33 Sometimes, indeed, it was suggested that men of higher status should be treated more strictly : "the greater a man is and the higher his rank, the more stringently must he make amends to God and to men for wrong-doing.”34
11However, in practice an offender’s relatively low social status was more likely to harshen his treatment.35 First, there is the question of access. Victims or kindred of lower status no doubt had more restricted access to some sources of justice, for reasons of cost or distance. Secondly, there are issues of corruption and of extra-legal influence in and out of court. The weak may have been more liable to suffer from the bringing of false charges.36 The strong or well-connected could bring supporters with them to court in order to sway decisions. Even when convicted, the well-connected had a better chance of benefiting from a pardon.37 One notable case comes from a tenth-century record of the activities of St Æthelwold :
“It happened that at the same time Oslac was accused before King Edgar, and the king ordered that he be disseised of all his land and that he be deprived of everything which he had. Therefore he humbly asked Bishop Æthelwold that he be his defender and deign to intercede for him with the king. The bishop did this and the king restored everything to Oslac on account of his love for Bishop Æthelwold, and his entreaties, on condition that Oslac gave him one hundred mancuses. Since he did not have that much gold, he borrowed forty mancuses from the bishop, and because the bishop had often helped him, he promised that he would give him forty acres of land at Cambridge, and a farm and the third part of a wood a Dullingham.”38
The obtaining and granting of mercy was also the exercise of patronage.
12Thirdly, the powerful might more easily escape prosecution and punishment for their deeds, even when these would normally be deemed illegal. An abbot could on occasion strike a royal reeve with impunity ; a villager was less likely to do so.39 In Henry Il’s reign it was said to be the custom in London that a hundred or more sons and relations of the nobles of the city carried out nocturnal raids on the houses of the rich and plundered them, and if they found someone wandering through the streets at night they immediately killed him without any mercy, so that few dared to walk in the city at night out of fear of them.40
13The implication is that the offenders long acted without penalty. In contrast, as in the early modern period, wandering men or vagabonds were likely to be treated as criminals unless they were very careful to observe regulations.41 Fourthly, certain actions popularly considered just and permissible were categorised by the powerful as offences, notably in this and later periods the taking of wild animals.42 Fifthly, certain actions may have been placed in one legal category if committed by a rich or powerful man, in another if committed by a poor or weak. Distraint – the temporary removal of goods in order to impose pressure and gain compliance – was a key process in many types of law-case. Removal of goods may have been more easily classified as distraint when carried out on behalf of an important person ; the same deed, performed in person by a poorer man, might be classified as theft.43 Likewise a poor man who took his debtor’s goods as a security might, in adverse circumstances, be accused as a thief.44
14Few now will be surprised to find the mediaeval judicial system favouring the richer and stronger in various ways. Comment was provoked at the time. The Anglo-Saxon Chronicle for the year 1124 famously complained of the hanging of forty-four thieves at Hundehoge in Leicestershire that
“A large number of trustworthy men said that many were destroyed unjustly there, but our Lord God Almighty who sees and knows all secrets – he sees the wretched people are treated with complete injustice : first they are robbed of their property and then they are killed. It was a very troublesome year : the man who had any property was deprived of it by severe taxes and severe courts ; the man who had none died of hunger.”45
In this instance, at least, the chronicler had no doubt that criminal justice was part of the oppression of the weak by the powerful.
Ideals of government
15What ideals of government interacted with this social and conceptual context ? Immediately clear in the sources is the focus on the king. Patrick Wormaid has very plausibly suggested that at least from the time of Alfred thinking concerning crime was very closely associated with the oath of loyalty taken by all free men to the king.46 Glanvill’s treatment of crime concentrated on the breaching of the king’s peace and the conduct of trials in the king’s court. In his treatment of rape, he deals first, and at some length, with accusation and court procedure. He then rules it improper that a wrong-doer escape punishment after conviction by promising to marry the woman concerned. Only at the end of his discussion, and briefly, does he mention the possibility of settlement by marriage of woman and accuser before judgment, and then mentions the need for the licence of the king or his justices, as well as the families. Thus by ruling out other social practices or by relegating them to the end of his discussion, Glanvill prioritises his legal views. He pays only limited attention to values which were not central to royal law, only explicitly writing in terms of the honour, feelings, or rights of the victim or kindred when seeking to rule out the possibility of settlement after judgment.47 The establishment of a more purely legal discourse thus reinforced the centrality of the king.
16Furthermore, royal ideals were not the preserve of written texts but could be brought to the populace through the very practices of the administration of justice. In the thirteenth century, the lawbook Bracton notes of the judicial eyre that, if the justices so wished, one of the senior justices at the start of the session might “publicly declare in the presence of all the reason for their coming, the usefulness of the eyre, and the advantage to be derived from the keeping the peace.”48 No doubt other court holders had made similar speeches in previous centuries.
17The nature of the sources does privilege the royal position and largely conceals co-existing views. Yet there are some hints of such views. Anglo-Saxon laws mentioning the avenging of thieves, presumably after their execution, suggest an ideal which placed family solidarity above royally enforced order.49 The continuing frequent settlement of criminal cases out of court likewise shows alternative ideals and practices to those presented by Glanvill.50 Different perceptions of honourable practice and of just law co-existed and at times clashed. Yet, despite these reservations, the focus upon the king remains a characteristic of the treatment of crime in England in this period.51
18What of the concepts and language used by the sources in consideration of crime ? The key terms were peace, justice, mercy, and, to a lesser extent, majesty, words and concepts which remained central to thinking on criminal law certainly into the eighteenth century. The terms were closely related, often appearing as a group :
“Nor is there any dispute how justly and how mercifully, how prudently he, who is the author and love of peace, has behaved towards his subjects in time of peace, for his Highness’s court is so impartial that no judge there is so shameless or audacious as to presume to turn aside at all from the path of justice or to digress in any respect from the way of truth.”52
They were encapsulated in the king’s coronation oath, which has a continuous history at least from the tenth century. The king swore “that true peace should be assured to the church of God and to all Christian people for all time” ; forbade “robbery and all unrighteous deeds by all statuses” ; promised “justice and mercy in the decision of all cases, in order that God, who liveth and reigneth, may in his grace and mercy be brought thereby to grant us his eternal compassion.”53
19Justice was central to ideas of kingship, with roots notably in Saint Augustine : “When justice has been removed what are kingdoms except great thefts”54. Ideas relating to majesty likewise appears in texts both before and after the Norman Conquest, and the word maiestas becomes more common as the influence of Roman Law extends. The early twelfth-century tract known as the Leges Henrici Primi referred to the tremendum regie maiestatis [...] imperium, the “formidable authority of royal majesty”55. Glanvill put “the crime which in the Laws [i.e. Roman law] is called the crime of lèse-majesté » first in his list of criminal pleas56.
20If one term was the most important, however, it was peace, the different meanings of which can be suggested by various passages.57 Wulfstan of Worcester, preaching soon after the Norman Conquest, gave a theological and monastic version of peace
“Than which nothing is sweeter to hear, nothing more desirable to search for, and finally nothing better to be found by mortals. Peace should be the beginning of human salvation and its end, and is as it were the extreme limit of God’s commands. It was sung by an angelic choir on the threshold of redemption ; the Lord gave it to his disciples as he was preparing for crucifixion, and restored it to them as a triumphal gift on his resurrection. All this the bishop explained to the crowd [...] Many who previously resisted all efforts at reconciliation were on that day persuaded to consent to pacification.”58
Other senses included, for example, the absence of conflict and the presence of general security, or the special protection of the king. Whilst both were covered by the Latin pax, the former tended to be frith in Old English, the latter grith.59 Probably by the time of Henry I, and possibly even before 1066, there was a further sense of the king’s peace extending throughout the realm, breach of which constituted a crime.60
21How did the emphasis on peace relate to notions of honour and vengeance, very important in aristocratic and royal ideologies and in the workings of communities ?61 The royal approach was to be selective. Certain elements of honourable conduct were drawn upon to further judicial administration. Most notable is the emphasis upon men’s word, reinforced in legal and other contexts by ritual and appeal to the supernatural.62 Similarly, royal administration demanded that victims or kin bringing accusations act honourably in being prepared to stand up and fight to prove their accusations. On the other hand, there were clear royal attempts to limit or exclude practices of vengeance, practices which might widely have been regarded as honourable.63 By the twelfth century, Orderic Vitalis, writing in southern Normandy, commented that the waging of war [guerra] and burning of neighbours’ crops by an aristocrat was an unfamiliar offence [inusitatum crimen] in England.64 Even individual pursuit of suspected criminals was to be limited in certain ways.65
22However, the language and imagery of vengeance and violence did not disappear from the discourse and activities of the prosecution of crime. God was called upon or simply chose to take vengeance66, and on earth the king or his representatives were to have a monopoly of vengeance imagery. They might themselves pursue justice through force or channel violence through their courts67. In the twelfth century Henry I was praised as the Lion of Justice, and the Lion was well known to be a savage beast68. Although Glanvill was to distinguish between on one hand war and arms, and on other peace and laws, the sword of justice was a vivid symbol. The laws and case reports fit this imagery. The laws of King Æthelstan, in the mid-tenth century, state the following concerning a man executed for failing to attend an assembly : “and if anyone tries to avenge him, or to carry on a feud against any of them [who slew him], then he shall be the enemy [beo he fah] of the king and all his friends”69. When Henry II heard that noble thugs in London had killed the brother of Robert de Ferrers earl of Derby secretly and at night, he reportedly “swore to take serious revenge [grauem uindictam] on the citizens of London”.70 Sometimes the king would allow the vengeance to be channelled through royal legal process, as when a winner in a trial by battle was responsible for blinding and castrating his defeated opponent71. Similarly, the raising of the hue and cry could render legitimate violent action which otherwise would be condemned.72
23The imagery of revenge was matched with that of mercy. For example the laws of King Cnut record the king forbidding the condemning to death of Christians for excessively minor offences, and recommending merciful punishments, lest “the handiwork of God and the purchase which he made at a great price be destroyed for trivial matters”.73 Case reports sometimes outline exemplary instances of such mercy.74. A certain Ralph son of Walter the ditcher, who “admitted to the crime of theft, lost his law-worthiness, and according to the custom of judgment in England ought to have lost his possessions and his life”, successfully sought the mercy of King Henry I and his queen, and also the pity of his own lord, the abbot of Abingdon.75 Henry II had ordered that a man convicted of forging the royal seal be hanged, but then
“He saw a venerable man, good and just, the brother of the evil-doer, weeping with covered head, and was immediately overcome with mercy. Taking more account of the goodness of the just man than of the villainy of the culprit, with tears he restored joy to the tearful one. However, when the thief was set free, he ordered him to be confined in [a] monastery, lest his pity should appear excessively indulgent.”76
24The texts present these criminals as having received royal mercy freely. However, the Latin word for mercy, misericordia., was also used other senses, in what seems to us an Orwellian distortion of language. By the thirteenth century, to be in the king’s mercy was generally to be subject to a small payment (amercement), often for a procedural fault or a minor wrong-doing.77 In the earlier post-Conquest period, it could be to face physical punishment or severe financial demand.78 Henry II’s treasurer emphasized that to be in the king’s mercy concerning one’s moveable goods [pecunia] meant all of one’s moveables, not just part.79 It may be that the meaning of “in the king’s mercy” gradually shifted through the idea of a pecuniary penalty being an exercise of mercy compared with physical punishment. If so, royal justices and others may have felt such use of the word mercy, misericordia, perfectly reasonable ; one suspects that some of those convicted shared our sense of the grim irony of the term. Chroniclers intent on praising kings were silent about such practices and instead emphasized instances where kings refused monetary bids for mercy. Of Henry I’s punishment of moneyers, Robert of Torigny wrote “O manful defender of justice and keenest punisher of iniquity ! O if he had been prepared to accept redemption money for the limbs of so many impious men, how many thousands of talents might he have gained, but as we said he despised money out of love for justice.”80
25We have, then, signs of the processes of vengeance and mercy being both monopolised and routinized. Those constructing the ideologies of this process were helped by the variety, and indeed the adaptability, of Biblical texts and contemporary Christian tenets. Potentially contradictory notions, consciously or unconsciously, skilfully or crudely, were made to co-exist and justify royal action. Kings drew on the language of emotion when dealing with criminals, but also stated that laws were based on reason.81 Mercy and severity, peace and vengeance, could be combined in the ideals of justice and kingship, as they would continue to be combined in the modern period.82
Practice
26Let us move now from representations, ideals, and ideologies to practice, beginning with the initiation of proceedings, trials, and punishments, and then looking at wider aspects of the administration of justice. We again meet long-term continuities.83 Thus it has been written that “almost all prosecutions were initiated by private persons, at their discretion, and conducted in accordance with their wishes”. This might have been written of the tenth or the twelfth century but in fact concerned the eighteenth.84 Certainly there were fluctuations over the centuries.85 In the thirteenth century, royal justices displayed a willingness to take up appeals – that is, private accusations of serious offences – which the private appellor was not pursuing.86 There were also changes in the form of the private bringing of cases.87 However, emphasis on the private, in contrast to modern public prosecution, remains a long-term continuity.88
27Private initiative might bring not prosecution and eventual punishment, but rather settlement. The contrast once drawn between a pre-Conquest system based heavily upon payments of compensation and an Angevin one based on punishment can no longer be maintained. It may be that in the Anglo-Saxon period compensation in some serious cases had been a matter for courts, whereas later it was largely settled out of court.89 Yet from the point of view of social practice, and indeed of the parties in disputes, we may again be in an area of long-term continuity. In 1729 the Recorder of London explained the link between small public fines and pre-existing private settlements, in the context of an assault and battery case : he said that it was “usual in these cases for the Defendant to make satisfaction to the Prosecutor for his wounds and costs and charges – before the Court sets the fine which is usually greater if a Defendant won’t make a Prosecutor easy as the Court directs.”90
When a prosecution was pursued, and the guilt or innocence of the accused was not obvious, ritual pressures, especially oaths and the possibility of ordeals were of central importance :
“He who swears a false oath, and it becomes manifest he has done so, is never again to have the right to swear an oath ; and he shall not be buried in a consecrated cemetery when he dies, unless he has the testimony of the bishop in whose diocese he is that he has made such amends as his confessor has prescribed to him...”91.
Possibly the reforms of Henry II reduced in some ways the ritual and the sacred aspects of oaths because of their routine use to deal with large numbers of suspects. The chronicler Ralph Diceto was certainly worried about the matter, commenting of a forest inquest that men “were bound without reverence [minus reuerenter artati]” to give information on oath.92 Yet the question remains, is this simply more plentiful sources revealing what had always been the case, that some viewed oaths with awe, others simply as an element of administrative machinery ?
28Should the accused be convicted, and not succeed in obtaining a pardon, physical punishment, most notably the death penalty, was employed both before and after the Norman Conquest.93 An Anglo-Saxon poem, possibly of the tenth century, tells that
“One [man] shall ride the high gallows and upon his death hang until his soul’s treasury, his bloody bone-framed body, disintegrates. There the raven black of plumage will pluck out the sight from his head and shred the soulless corpse – and he cannot fend off with his hands the loathsome bird of prey from its evil intent. His life is fled and, deprived of his senses, beyond hope of survival, he suffers his lot, pallid upon the beam, enveloped in the mist of death. His name is damned’’.94
Other evidence reveals the processes and ceremonies involved in hanging. Anglo-Saxon charter boundaries mention, for example, a “rogue rood”, and an “execution place” (the same word as was applied to Golgotha). Their positioning on boundaries suggests the taking of the criminal away from the heart of the community, as does the position of Tyburn some distance outside the city of London.95 Punishments might be inflicted by a royal official, but could also be the business of the accuser,96 or of others of the locality. In the thirteenth century, four tenants of Newenham abbey owed the following services in return for their tenements : one would take a prisoner to the gallows, the second erect the gallows, the third provide the ladder, and the fourth do the actual hanging.97 Public involvement in execution could also take other, less direct forms, notably the role of spectator. In the reign of Richard I, William fitzOsbert, the leader of a tax riot in London, was hanged, an event recorded in several accounts :
“He was dragged, with his feet attached to the collar of a horse, from the Tower of London through the centre of the city to the Elms, his flesh was demolished and spread all over the pavement and, fettered with a chain, he was hanged that same day at the Elms with his associates and died.so that the punishment of one man might deter many, he was [...] deprived of his clothes, had his hands tied behind his back and his feet fettered with long ropes, and... was dragged through the centre of the city to the gallows at Tyburn. And so he was hanged, attached with iron chains to stop [the corpse] coming down fast.”98
Trials, punishments, and associated rituals were thus explicitly believed to emphasize the power of the law, to reinforce the ideals and classifications outlined earlier.
29Again, however, we have traces of contrary attitudes.99 Far from an execution being an occasion of awe, it might be one of frivolity. A young men had been condemned to death for theft, and was being brought for execution :
“A large crowd had gathered to see the spectacle, forming a sad crown all around him and telling the executioner [carnificem] to hurry. Standing there with his terrible face, strong hand, and cruel mind, the executioner lifted his sword with both hands, ordering the captive to stick out his neck and be ready for one blow. The convict lifted his eyes a little and looked at the church, saying “Help me now, Wilfrid, for if you refuse to do it now, quite soon you won’t be able to”. As everyone laughed at the simplicity of those words and many mocked him, the executioner himself dissolved in laughter and postponed the stroke so that, while he briefly dropped his fierceness, this very dissolution retarded the blow. During that slight delay two young men turned up on very swift horses, paid bail for the youth according to the custom of the country, snatched him from death, loosened his bonds and let him go free.”100
30It may also be that popular vocabulary had similarities to that of the eighteenth century, when
“In contrast to the solemn abstractions of the law the speech of the labouring class described the hanging with irreverence, humour and defiance [...] To hang [...] was [...] to ‘dance the Paddington frisk’, ‘to morris’. It was ‘to go west’, ...] ’to dangle in the Sheriff s picture frame’.”101
31Irreverence, morbid humour, and language far from that of the law court challenged the “formidable authority of royal majesty.”102
32Finally, let us move out from court to the wider administration of justice. I wish to concentrate on one particular issue, of obvious concern when considering the development of a “common law” (in the British and North American sense) : the attempt to administer justice uniformly throughout the realm. Here we find many continuities. From the early Anglo-Saxon legislation, there was a particular concentration upon the king.103 By the tenth century there are signs that some may have considered the king over-burdened with cases to hear, and that men were turning to the king before completing the proper legal processes elsewhere.104 There were also laws at least purporting to be general to the realm, for example regulation of coinage, weights and measures, and the price of wool.105 The degree of apparent legal regulation of the sale of cattle is likewise very striking.106
33However, it is still possible that the Angevin kings were aiming to increase the uniformity of administration. The Angevin reforms do not seem to have emphasised local initiatives in the way notably those of King Æthelstan had. The latter produced responses, preserved in writing, from London, and perhaps more surprisingly from the bishops and wise men of Kent.107 Local co-operation was mentioned in some of the Anglo-Saxon legal collections : “If one hundred shall follow up a track into another hundred, notice shall be given to that hundredsman, and he shall then take part in the search. If he neglects to do so, he shall pay 30s. to the king”.108 However, none of them match the level, or the detail, of the Assize of Clarendon’s instruction that
“If any sheriff shall send word to another sheriff that men have fled from his county into another county, on account of robbery or murder or theft or the harbouring of them [...] let [the second sheriff] arrest them ; and also if he knows of himself or through others that such men have fled into his county, let him arrest them and guard them until he has taken safe pledges for them.”109
34Again, this could be a new type of document reasserting an earlier practice. However, other evidence too suggests efforts at greater uniformity and central control. In particular there is the use of itinerant justices : justices sent out from the centre to deal with cases in a circuit of shires. It is just possible that such practices are hinted at in Anglo-Saxon sources. A charter refers to Tofi the Proud being present in the Herefordshire county court in the time Cnut, on king’s business [ærende].110 However, it is not clear what kind of royal business this was. Even if he had some judicial function, it is a considerable leap of faith to make him the tip of an administrative ice-berg which would match the regular use of itinerant justices in the later twelfth century.
35Certainly it is very important not to neglect continuing local responsibilities for peace-keeping, or the role of private courts particularly with regard lesser offences but also felonies in some privileged cases.111 Yet comparison with continental practices again emphasizes the relative uniformity in England, stemming from pre-Conquest practice but extended in the twelfth century. An extreme example comes in Frederick Barbarossa’s 1186 edict against fire-raisers :
c. 1.16 “If an arsonist in his flight comes to a castle and the lord of the castle happens to be his lord or vassal or relative, then he need not hand him over to his pursuers, but will help him to leave the castle for the forest or some other place that he deems safe. But if he is neither his lord, vassal nor relative, he should hand him over to the pursuers or he will be guilty of the same crime.”112
36This is clearly far from the spirit and practice of the near contemporary Assizes of Clarendon and Northampton. Or to take a closer comparison, the Norman Très Ancien Coutumier of c. 1200 included thefts [furta], among lords’ pleas.113 In England, for Glanvill, theft [furta] was a plea which belonged to the sheriff, whilst the Assize of Clarendon has thieves [latrones] presented before the royal justices.114 If in practice various lords enjoyed rights over thieves, the presumption was control exercised by the king and his officials. The Angevin reforms in England, characterised by the Assize of Clarendon, show the long-standing use of local officials being supplemented by direct administrative contact between people in the localities and officials dispatched from the centre.
37Related to such developments may be the use of writing. Whilst the production of Domesday Book just 20 years after the Conquest shows the capacity of the Anglo-Saxon regime to work with and through the written word, there is singularly little sign of the use of writing in pre-Conquest administration concerning crime. In contrast, the Assize of Clarendon states
“Let all the sheriffs make a record [faciant inbreuiari] of all fugitives who have fled from their counties ; and let them do this in the presence of the county courts and carry the names of those written therein before the justices, when next they come to them, so that these men may be sought throughout England, and their chattels may be seized for the needs of the king.”115
38Such provisions certainly had an impact, and this may well reflect their novelty. A miracle story recounts that “By royal command, men who had committed homicide, theft and the like were traced in the various provinces, arrested and brought before judges and royal officials at St Edmunds and put in jail. Lest they be freed by some ruse, their names were entered on three lists [in tribus breuibus] at the judges’ order.”116 Like the increased contact between centre and subject, the increased use of writing and the development of record-keeping mentalities was not simply a change in administrative practice, but also involved a shift in the ideals of government and perceptions of society and government.117
Conclusion
39The purpose of this essay has been compare the conceptualization and treatment of crime in the tenth and twelfth centuries, in a context set for a later period of Thompson in Whigs and Hunters, Hay in Albion’s Fatal Tree, and Foucault in Surveiller et punir. The limited evidence has made it difficult to reach more than impressionistic conclusions on many of the issues raised in these works. Clearly law, including law relating to crime, helped to render legitimate royal rule.118 The administration of justice also reinforced the position of the powerful, and was seen at least on occasion to oppress the weak. How far one can extend this evidence and these conclusions towards the theses of Thompson in Whigs and Hunters and Hay in Albion’s Fatal Tree will to a large extent be a matter of personal taste.119 For example, Hay writes that
“The private manipulation of the law by the wealthy and powerful was in truth a ruling-class conspiracy, in the most exact meaning of the word. The king, judges, magistrates and gentry used private, extra-legal dealings among themselves to bend the statute and common law to their own purposes. The legal definition of conspiracy does not require explicit agreement ; those party to it need not even all know one another, provided they are working together for the same ends. In this case, the common assumption of the conspirators lay so deep that they were never questioned, and rarely made explicit.”120
40Even setting aside the controversial nature of this argument for the eighteenth century, for my period it simply cannot be proved whether, for instance, the emphasis on the strict or stricter treatment of powerful offenders was deliberately, or even unconsciously, used to conceal the true picture of the disadvantages of the weak.121 The markedly different treatment of a man who took another’s land worth two pounds compared with the thief who stole goods worth two shillings may seem like clear discrimination favouring the powerful over the poor. Yet at the very least the discrimination was mediated through a considerable process of legal development, not the simple product of an immediate assertion of social or political power.122 Likewise, the classification of deeds into categories of offences, if not the creation of those categories, rested heavily on the decisions not of the great but of the significant free men in the localities, for example in the Angevin period through the jury of presentment.123 Legal categories and judicial administration were closely tied to the exercise of power, but the complexities of such power were manifold.
41Finally, what of the comparison between the tenth and the twelfth centuries ? Again, the limits of the evidence produce difficulties, particularly in telling what was new as the period progressed. Take one area touched upon at various points above, the possibility that ecclesiastical influence was reduced, and that sacral aspects of the criminal justice were diminished, although they did not disappear. Bishops were probably extremely important in shire courts in the Anglo-Saxon period, but not by the late twelfth century. They were prominent in providing responses to Æthelstan’s measures concerning crime,124 they had no such part in Henry H’s assizes. After the Norman Conquest, separate ecclesiastical courts emerged.125 In the early thirteenth century, clerical involvement in trial by ordeal was ended.126 The impact of these changes on the ideals and practices of justice regarding crime is extremely hard to assess, but surely was wide ranging. They may be linked, for example, to the possible emergence of more secular ideals during the Angevin period, perhaps under the influence of Roman law. In Glanvill’s Book XIV, devoted to crime, there is no mention of God.127 Clause one of the Assize of Clarendon states that its purpose was “preserving peace and holding justice”, but again there are none of the Christian trappings of the Anglo-Saxon laws.128 It is possible that we may be neglecting Christian ideas contained within the very notions of peace and justice. In addition, we may simply have new kinds of texts revealing attitudes that had existed earlier. Yet, unless there are some strange chances of survival, the very changes in the sources are themselves evidence of wider change : Angevin clerics did not produce law codes similar to Archbishop Wulfstan’s ; late Anglo-Saxon clerics did not produce manuals on financial practice or chronicles preserving instructions to royal justices.129 New ideas and practices thus emerged, to some extent replacing or transforming, but also co-existing with older ones.
42Further, more general, conclusions can also be suggested. There are clear continuities between the tenth and twelfth centuries, for example the power of royal administration, the classification of serious offences, and the centrality of the concept of peace. Some of these continuities stretch much further, perhaps backwards and certainly forwards into the post-mediaeval period. There were also “continuing changes”, for example with regards the royal monopolization of vengeance. If there were marked discontinuities in the later twelfth century, they most probably relate to the uniformity of the administration of justice, to direct contact between the localities and royal officials dispatched from the centre, and to the use of writing.
43Henry II claimed to be seeking to restore the times of his grandfather, Henry I. What he and his advisers were in fact doing was seeking to realise their own construct of times of peace. Working from such a construct was in itself probably favourable to greater uniformity. So too may have been the use of writing, and the related development of bureaucracy. The same pressures were working in the field of land law, as opposed to crime. Whilst Henry’s measures regarding crime were probably of the greatest importance to him amongst the legal reforms of his reign, they had limited effect in actually catching criminals. In contrast, measures concerning landholding were of great popularity. Royal concern alone could not determine the pattern of future legal development.
Notes de bas de page
1 P. Wormaid, The Making of English Law : King Alfred to the Twelfth Century. Volume I Legislation and its Limits, Oxford, 1999. I would like to thank Rob Bartlett and Paul Brand for their comments on an earlier draft of this paper, and Patrick Wormaid for his generosity in letting me see drafts of portions of volume two of his Making of English Law.
2 E.P. Thompson, Whigs and Hunters, London, 1975 ; Albion’s Fatal Tree : Crime and Society in Eighteenth-Century England, eds. D. Hay et al., London, 1975 ; M. Foucault, Surveiller et punir, Paris, 1975. The criticisms of J. Langbein, “Albion’s Fatal Flaws”, Past and Present, 98 (1983), p. 96-120, do not primarily deal with the rhetoric and rituals of criminal justice, which are one key element of Hay’s argument, and perhaps that most stimulating to mediaevalists.
3 See also below, p. 34, for comparisons with Continental Europe.
4 See P. Wormaid, “A handlist of Anglo-Saxon lawsuits”, Anglo-Saxon England, 17 (1988), no. 60, Charters of Rochester, ed. A. Campbell, Oxford, 1973 (Anglo-Saxon Charters, 1), no. 32 for a man who had often committed theft and rapine being referred to as a “public enemy [publicus hostis]".
5 For similar usage, see e.g. P. Wormaid, “Giving God and king their due : conflict and its regulation in the early English state”, Settimane di Studio del Centro Italiano di studi sull’alto medioevo, 44 (1997), p. 562 ; for words of caution, see J.G.H. Hudson, The Formation of the English Common Law, London, 1996, p. 56, 160-4. Note also e.g. the comments D. Klerman, “Settlement and the decline of private prosecution in thirteenth-century England”, Law and History Review, 19 (2001), p. 1, n. 1 ; on the fourteenth century of B.A. Hanawalt, Crime and Conflict in English Communities 1300-1348, Cambridge, Mass., 1979, p. 4, and on the early modern period of J.A. Sharpe, Crime in Early Modern England, London, 1984, p. 4-7. See also below, p. 19 on crime and sin. Obviously looser use of the term crime for comparative purposes does not render irrelevant studies of changing categorization of, and terminology for, offences and offenders.
6 Church courts would deal with a wide range of cases, for example concerning marriage, adultery, usury, and illicit games. See also below, p. 37.
7 See also e.g. Wormaid, « Giving God and king their due », p. 560.
8 Cf. V Æthelred and III Æthelstan ; for texts of the Anglo-Saxon law-codes, see Die Gesetze der Angelsachsen, ed. F. Liebermann, 3 vols., Halle, 1903-1916.
9 For the former view, see e.g. S.D. Keynes, “Royal government and the written word in late Anglo-Saxon England”, in The Uses of Literacy in Early Mediaeval Europe, ed. R. McKitterick, Cambridge, 1990, p. 226-57 ; for the latter, see especially Wormaid, Making of English Law, p. 430-1 ; at p. 444 he writes “What is tentatively suggested, then, is that the legislative impulse of the Old English kingdom waxed and waned with its imperial consciousness”.
10 See e.g. I Edward, c. 1.
11 See esp. the Assize of Clarendon (1166) and Assize of Northampton (1176) ; note also the Assize of Arms (1181) and Assize of Forest (1184) ; for the texts see Select Charters and Other Illustrations of English Constitutional History, ed. W. Stubbs, 9th ed., Oxford, 1913, p. 170-3, 179-81, 183-4, 186-8, for translations, see English Historical Documents, II, 1042- 1189, ed. D.C. Douglas and G.W. Greenaway, 2nd edn., London, 1981, nos. 24, 25, 27, 28.
12 Leges Henrici Primi, ed. L.J. Downer, Oxford, 1972 ; Hudson, Formation of English Common Law, p. 249-50 ; B.R. O’Brien, God’s Peace and King’s Peace : the Laws of Edward the Confessor, Philadelphia, 1999.
13 The Treatise on the Laws and Customs of the Realm of England commonly called Glanvill, ed. and tr. G.D.G. Hall, 2nd edn., Oxford, 1993.
14 For the suggestion that in Europe between 900 and 1100 there was a link between increasing amounts of money in circulation and increasing instances of robbery, see A. Murray, “Money and robbers, 900-1100”, Journal of Medieval History, 4 (1978), p. 55-93.
15 An obvious example is the long-lasting link between crime and excess consumption of alcohol. In the 1170s, Richard, fitz Nigel, Dialogus de Scaccario, eds. C. Johnson et al., Oxford, 1983, p. 87, blamed the prevalence of manifest and secret thefts, as well as other crimes, on the riches of the realm and the innate over-indulgence [crapulam] of the inhabitants. Reputedly, “it was the custom of the English on feast-days to indulge in banqueting and getting drunk and to watch their enemies and laugh at their observance of holy days” ; English Lawsuits from William I to Richard I, ed. R.C. van Caenegem, 2 vols., 1990-1991 (Selden Society, 106,107), no. 471.
16 See e.g. VI Æthelstan, c. 8.2 : “if it happens that any kindred is so strong and large, within the district or outside it, whether men of a twelve hundred wergild or of a two hundred, that they refuse us our rights and stand up for a thief, we are to ride thither with all our men with the reeve whose district it is” ; II Æthels tan, c. 17 : “If anyone takes bribes from a thief, and ruins the rights of another, he is liable to pay his wergeld". For corrupt reeves, see e.g. the case involving a reeve named Eadric, D. Whitelock, “Wulfstan Cantor and Anglo-Saxon law”, in her History, Law and Literature in 10th- 11th Century England, London, 1981, V 87-8 ; also e.g. English Lawsuits, ed. van Caenegem, no. 471. For later periods, see e.g. H. Summerson, “Maitland and the criminal law in the age of Bractori”, in The History of English Law : Centenary Essays on “Pollock and Maitland”, ed. J. Hudson, Oxford, 1996, p. 135, Hanawalt, Crime and Conflict, p. 45-50.
17 See e.g. Summerson, “Maitland and the criminal law”, p. 122-3.
18 R. Sharpe, “The prefaces of ‘Quadripartitus’”, in Law and Government in Medieval England and Normandy, eds. G.S. Garnett and J.G.H. Hudson, Cambridge, 1994, p. 153.
19 M. Gaskill, Crime and Mentalities in Early Modern England, Cambridge, 2000, p. 28. See also e.g. Hudson, Formation of the English Common Law, p. 56 ; Summerson, “Maitland and the criminal law”, p. 140. To emphasize the long-term Christian context is not of course, to suggest that such a religious context was unchanging ; see Gaskill, Crime and Mentalities, e.g. p. 203, for what he argues is a particular emphasis on Christian providence in Early modern England.
20 Note especially the role of Archbishop Wulfstan : Wormald, Making of English Law, p. 330-66.
21 Some of the texts are very clearly concerned with religious matters ; note I Æthelstan, V Æthelred, VI Æthelred. It is notable that they appear in manuscripts together with documents which to modern eyes appear more obviously “legal” ; see Wormaid, Making of English Law, c. 4. See also e.g. II Cnut, c. 11 for the promotion of Christianity and the suppression of injustice.
22 See Wormaid, Making of English Law, esp. c. 4-6.
23 For monastic attribution of crime to the instigation of the devil, see e.g. English Lawsuits, ed. van Caenegem, no. 14. For offences committed on Sundays or other holy days being more severely penalised, see e.g. Alfred, c. 5.5 : "We decree that whoever steals on Sunday, or at Christmas or Easter, or on Holy Thursday in Rogation days, shall pay in each case double compensation, as during the Lenten fast” ; also e.g. Domesday Book, f° 262v. For supernatural indication of a man’s guilt even before he undergoes trial by battle, see e.g. English Lawsuits, ed. van Caenegem, no. 468.
24 Bracton, De Legibus et Consuetudinibus Regm Anglie, f° 138, ed. and tr. S.E. Thorne, 4 vols., Cambridge, Mass., 1968-77, II, 388. Note that Placita Corone, ed. J.M. Kaye, London, 1966 (Selden Society, Supplementary Series, 4), e.g. p. 2, 7, mentions God’s peace and the king’s peace in other types of appeal (i.e. accusation) as well.
25 Cf. the emphasis on the “soul” of the criminal in Foucault, Surveiller et punir, e.g. p. 24.
26 II Cnut, c. 38 ; see also e.g. I Edmund, c. 3 “If anyone sheds the blood of a Christian man, he shall not come anywhere near the king until he proceeds to do penance, as the bishop instructs him or his confessor directs him” ; III Æthels tan, c. 3 ; II Edmund, c. 4 ; also below, p. 25, on II Æthelstan, c. 26 ; note T.P. Oakley, English Penitential Discipline and Anglo-Saxon Law in their Joint Influence, New York, 1923, p. 144-8, on penitential matter in the Anglo-Saxon laws. For the combination of worldly punishment and ecclesiastical breaking down in the context of the Becket dispute and clerical crime, see e.g. English Lawsuits, ed. van Caenegem, no. 416. For promise of penance if worldly punishment can be escaped, see e.g. English Lawsuits, ed. van Caenegem, no. 471.
27 Note e.g. Oakley, English Penitential Discipline, p. 147.
28 Oakley, English Penitential Discipline, p. 44-5 “To the natural notoriety gained by conviction in a secular court there would [...] be added public humiliation before the congregation. Thus the performance of public penance might serve as an important part of a bigger process, of which one purpose was to subject the criminal effectively to adverse public opinion ; but it would also serve, by public examples, to educate the community to feel the heinousness of crimes”.
29 II Cnut, c. 33.
30 Note, however, the dispute over Christian burial recorded in a charter of King Æthelred from 992-5, Wormaid, “Anglo-Saxon lawsuits”, no. 54, P.H. Sawyer, Anglo-Saxon Charters, London, 1968 (Royal Historical Society Guides and Handbooks, 8), no. 883, translated in English Historical Documents, i.c. 550-1042, ed. D. Whitelock, 2nd edn., London, 1979, no. 117.
31 S. Hamilton, The Practice of Penance, 900-1050, London, 2001, p. 206. See also Oakley, English Penitential Discipline, p. 86 on offences requiring penance, 167-9 on feud, 172 on theft, 194 on pre-meditated homicide, 195-6 on rape, fornication, and abortion.
32 Note Ine, c. 13.1 “We call up to seven men ’thieves’, from seven to thirty-five a ‘band’, anything beyond this an ‘army’ [here]”. The large number of thieves executed at once at Hundehoge in 1124 may have resulted from the capture of a criminal band ; below, p. 23.
33 Sharpe, “Prefaces”, p. 159. Note also e.g. Glanvill, Prologue, ed. Hall, p. 2.
34 II Cnut, c. 38.1.
35 See also below.
36 Possible cases are English Lawsuits, ed. van Caenegem, nos. 204, 471.
37 For later periods, see e.g. Albion’s Fatal Tree, p. 52, quoted below, p. 31.
38 Wormaid, “Anglo-Saxon lawsuits”, no. 118, Liber Eliensis, ed. E.O. Blake, London, 1962 (Camden Society, 3rd Series, 92), p. 95 ; after King Edgar’s death, Oslac annulled his gift leading to a dispute and then settlement with the abbot of Ely. Note also e.g. Liber Eliensis, p. 105-7, and the Fonthill letter, English Historical Document, I, no. 102 ; Wormaid, "Anglo-Saxon lawsuits”, nos. 23-6, 124-5. For a rather similar example in the twelfth century, see English Lawsuits, ed. van Caenegem, no. 317.
39 See English Lawsuits, ed. van Caenegem, no. 12.
40 English Lawsuits, ed. van Caenegem, no. 493, from the chronicle of Roger of Howden ; note that the troublemakers were prosecuted in the end.
41 Assize of Clarendon, cc. 15-16, Select Charters, ed. Stubbs, p. 172 ; English Historical Documents, II, no. 24.
42 For judicious views on such "social crimes” in a later period, see Sharpe, Crime in Early Modern England, c. 6. Note Dialogus de Scaccario, p. 59-60 on the forest laws being based “not on the common law of the realm, but on the arbitrary legislation of the king [non communi regni iure set uoluntaria principum institutione subnixas]” ; Richard may have felt the laws justified, but his perhaps uneasy statement reveals the likelihood that their justice was contested.
43 Note J.G.H. Hudson, Land, Law, and Lordship in Anglo-Norman England, Oxford, 1994, p. 22, 42 ; see also P. C. Maddern, Violence and Social Order : East Anglia 1422-1442, Oxford, 1992, p. 72 ; cf. Hanawalt, Crime and Conflict, p. 143, on a case where “the jurors dismissed charges against a knight and his son for breaking into a man’s house and taking his goods because the victim was the knight’s serf who was in arrears on rent”.
44 English Lawsuits, ed. van Caenegem, no. 471.
45 English Lawsuits, ed. van Caenegem, no. 237.
46 See e.g. P. Wormaid, “Maitland and Anglo-Saxon Law : beyond Domesday Book”, in The History of English Law : Centenary Essays on « Pollock and Maitland », ed. J. Hudson, Oxford, 1996, p. 15 ; also below, p. 26.
47 Glanvill, Bk. xiv c. 6, ed. Hall, p. 175-6.
48 Bracton, f° 115v, ed. Thorne, ii 327 : publice coram omnibus proponat que sit causa aduentus eorum, et que sit utilitas itinerationis, et que commoditas si pax obseruetur.
49 See e.g. II Æthelstan, c. 6. 2-3. Part of the trouble may have occurred over thieves whom kin thought had been wrongly convicted ; II Æthelstan, c. 11. For earlier laws, see e.g. Ine, c. 16.
50 See also below, p. 30. For suggestions as to royal judicial “policy” towards such settlements in the thirteenth century, see Kierman, “Settlement”.
51 See also below, p. 32, on the administration of justice.
52 Glanvill, Prologue, ed. Hall, p. 1-2. Note also e.g. Quadripartitus, argumentum, c. 6, Sharpe, « Prefaces », p. 163, on a gathering in Cnut’s time concerning the state of the kingdom : « everything was solemnly and savingly laid down, so that peace seemed to be sought by purging the vices of the heart, not by executing people with impunity. »
53 Two Anglo-Saxon Pontificals, ed. H.M.J. Banting, London, 1989, (Henry Bradshaw Society, 104), p. 113 ; see also Wormaid, Making of English Law, p. 446-9. The ideals are also obvious, for example, in the law-codes, e.g. II Cnut, c. 1 : “First, I desire that just law be promoted and every injustice be zealously suppressed, that every illegality be rooted up and eradicated from this land with the utmost diligence, and God’s justice be promoted”.
54 Remota itaque iustitia quid sunt regna nisi magna latrocinia, Augustine, City of God, Bk. IV c. 4, cited J.L. Nelson, “Kings with justice, kings without justice : an early medieval paradox”, in Settimane di Studio del Centro Italiano di studi sull’alto medioevo, 44 (1997), p. 797 ; her whole article gives important background and comparative material for England in the tenth to twelfth centuries.
55 Leges Henrici Primi, c. 6. 2a, ed. Downer, p. 96-7.
56 Glanvill, Bk. 1 c. 2, ed. Hall, p. 3. Oddly, in his book on criminal pleas, he does not use the term lèse-majesté, but he does treat treachery to the king first amongst offences, perhaps making it the archetype for other crimes. Note also Bracton, f° 118-119v, ed. Thorne, ii 334- 7. Cf. Foucault, Surveiller et punir, p. 57, writing of the eighteenth century : “Dans toute infraction, il y a un crimen maiestatis, et dans le moindre des criminels un petit régicide en puissance. Et le régicide, à son tour, n’est ni plus ni moins que le criminel total et absolu, puisque au lieu d’attaquer, comme n’importe quel délinquent, une décision ou une volonté particulière du pouvoir souverain, il en attaque le principe dans la personne physique du prince”.
57 Note also Quadripartitus, argumentum, c. 11, translated by Sharpe, “Prefaces”, p. 164, on “those laws, those bonds of peace [federa pads], for which the hearts of Englishman always sigh and long in every way”. Note likewise Glanvill, Prologue, ed. Hall, p. 1, for arms and laws being treated as a parallel pair to war and peace ; cf. Justinian, Institutes, Proemium.
58 English Lawsuits, ed. van Caenegem, no. 139.
59 Frith-, e.g. II Edward, Prologue ; V Æthelstan, Prologue ; grith-. e.g. III Æthelred, c. 1. See also J. Goebel, Felony and Misdemeanor, New York, 1937, especially p. 423-9.
60 See Hudson, Formation of the English Common Law, p. 82-3. By the end of the twelfth century, the customary requirement that appeals of felony must include mention of breach of the king’s peace may have further refined a technical meaning ; see above, p. 24. For the pre-Conquest period, note Wormaid, « Maitland and Anglo-Saxon law », p. 14 on the extension of use of the £5 fine beyond breach of the king’s specially given protection ; the argument is to be developed further in volume two of his Making of English Law.
61 For actions concerning those of bad repute, see e.g. III Edgar, c. 7, I Ætheired, c. 4.
62 Note e.g. Alfred, c. 1 ; I Edward, c. 3. For later periods see e.g. the thought-provoking comments in R.F. Green, A Crisis of Truth : Literature and Law in Ricardian England, Philadelphia, 1999 ; also e.g. Gaskill, Crime and Mentalities.
63 See especially Wormaid, “Giving God and king their due”, p. 554-8 ; note also his comment, p. 560, that the situation north of the Humber was probably different ; and his summary at p. 561 concerning the tenth and early eleventh centuries : “English kings no longer merely wrote themselves into the discords of society. They in effect re-orchestrated the whole symphony of feud in a royal key”. For actions motivated by revenge continuing to be a problem after the Norman Conquest, see e.g. English Lawsuits, ed. van Caenegem, no. 139 ; they also provide the background to the action brought by the writ de odio et atia. For later rhetoric concerning “the power and passion of righteous vengeance”, see e.g. Albion’s Fatal Tree, p. 28 ; also Foucault, Surveiller etpunir, p. 52.
64 See English Lawsuits, ed. van Caenegem, no. 190.
65 See below, n. 88.
66 See e.g. English Lawsuits, ed. van Caenegem, no. 139 ; also e.g. Chrétien de Troyes, Lancelot, 1. 4975.
67 See e.g. VI Æthelstan, c. 8.2, English Lawsuits, ed. van Caenegem, no. 173.
68 See A. Cooper, ‘“The feet of those that bark shall be cut off : timorous historians and the personality of Henry I”, Anglo-Norman Studies, 23 (2001), p. 52.
69 II Æthelstan, c. 20.7 ; note also e.g. Edward and Guthrum, c. 12.
70 English Lawsuits, ed. van Caenegem, no. 493 ; for the background, see above, p. 000.
71 See e.g. English Lawsuits, ed. van Caenegem, no. 504.
72 See Summerson, “Maitland and the criminal law”, p. 122 for a thirteenth-century Yorkshire case in which a man who had beheaded his brother’s two killers was outlawed because “it is testified that the hue was not raised before [he] took vengeance on them". It may be significant that this case is from the north of the kingdom.
73 II Cnut, c. 2a.1. II Cnut, c. 67 states that “if anyone eagerly wishes to turn from lawlessness to lawful conduct, he is most readily to be treated mercifully [mildsige], for the fear of God”. Note also e.g. Alfred, c. 7, where it is laid down whether a man captured for fighting or drawing his weapon in the king’s hall is to be condemned to death or granted life at the king’s judgment. See also above, p. 24, for Glanvill, Prologue, ed. Hall, p. 1-2.
74 See also above, p. 22, on the obtaining of pardon.
75 English Lawsuits, ed. van Caenegem, no. 192. It is unclear whether Ralph had to pay for such mercy.
76 English Lawsuits, ed. van Caenegem, no. 611. Note also English Lawsuits, ed. van Caenegem, no. 461, concerning a young man who was miraculously freed from fetters : after hearing invocation of St Thomas the martyr, “the king, showing royal clemency rather than judicial severity, said ’If Thomas liberated him, let no one henceforth molest him : he shall go in peace’.”
77 F. Pollock and F.W. Maitland, The History of English Law, 2 vols., 2nd edn, Cambridge, 1968, II, 513 ; see also e.g. Glanvill, Bk. III c. 8, ed. Hall, p. 43.
78 See e.g. Leges Edwardi Confessoris, c. 12. 3 ; Leges Henrici Primi, c. 11. 12, 13, ed. Downer, p. 112, 116, and his note at p. 329 ; also Pollock and Maitland, ii 513, Hudson, Formation of the Common Law, p. 79 and works cited there.
79 Dialogus de Scaccario, p. 113.
80 English Lawsuits, ed. van Caenegem, no. 239.
81 See e.g. Glanvill, Prologue, ed. Hall, p. 2.
82 E.g. Glanvill, Prologue, ed. Hall, p. 2 (nunc seuerius nunc micius agendo prout uiderint expedire) ; see also Nelson, “Kings with justice”, p. 821-2 ; Albion’s Fatal Tree, p. 17 ; cf. Thompson, Whigs and Hunters, p. 253 on an eighteenth-century construction of the meaning of the word “tenderness” in a judicial context.
83 Note also how, for various and in some cases changing reasons, desire to obtain a confession is central to the processing of suspected offenders in the medieval and the modern periods ; note also Foucault, Surveiller et punir, p. 45.
84 Albion’s Fatal Tree, p. 40 ; note also e.g. Kierman, « Settlement and the decline of private prosecution », 1.
85 See Klerman, “Settlement”, p. 3, 7, 20, 35 ; note also Summerson, “Criminal law in the age of Bracton”, p. 119.
86 Kierman, “Settlement”, p. 3, 38.
87 See e.g. Kierman, “Settlement", p. 7, on individuals bringing accusations to juries : “the grand jury primarily screened accusations made by others, declaring ‘true bill’ of accusations (‘indictments’) it approved. Although these prosecutions were formally brought in the name of the Crown, the predominance of victim initiative suggests that they are properly classified as private prosecutions”.
88 See e.g. Sharpe, Crime in Early Modern England, p. 7 : “in the absence of a modern police force, most prosecutions of crime, and the overwhelming majority of prosecutions of felony in particular, were brought either by the victim or by local officers or individuals offended at what they regarded as deviant behaviour".
89 Away from the most serious offences, however, note the development of the actions which came to be categorized as trespass ; Hudson, Formation of the English Common Law, p. 164-6, and the literature cited there.
90 Quoted in J. Briggs et al., Crime and Punishment in England : an Introductory History, London, 1996, p. 83. For early modern instances of private settlement by money, see also Gaskill, Crime and Mentalities, p. 251 and n. 43 ; and on out-of-court settlements in criminal cases Sharpe, Crime in Early Modern England, p. 45-7.
91 II Æthelstan, c. 26 ; see also Oakley, English Penitential Discipline, p. 158. The main burden regarding punishment of perjury probably fell on the Church ; see Oakley, English Penitential Discipline, p. 174-93 for provisions in penitentials.
92 English Lawsuits, ed. van Caenegem, no. 480, concerning a forest enquiry in 1175.
93 For the possibility of death for theft before 1066, see e.g. Ine, c. 12, IV Æthelstan, c. 6 ; for cases involving the death penalty before the Norman Conquest, see e.g. Wormald, “Anglo-Saxon lawsuits”, nos 31, 100, 178 ; after the Norman Conquest e.g. English Lawsuits, ed. van Caenegem, nos. 14, 192, 237. For physical punishments other than death, see e.g. Wulfstan of Winchester, Life of St Æthelwold, ed. and trans. M. Lapidge and M. Winterbottom, Oxford, 1991, p. 68-9 : “Bishop Ælfheah [...] had a thief, who was guilty on many counts, whipped and sent to the stocks for sterner tortures”. On pardons, see above, p. 22.
94 Anglo-Saxon Poetry, ed. S.A.J. Bradley, London, 1982, p. 342 ; for the original, see The Exeter Anthology of Old English Poetry, ed. B.J. Muir, 2 vols, Exeter, 1994, I, 248. On execution cemeteries, see S. Lucy, The Anglo-Saxon Way of Death, Stroud, 2000, p. 75.
95 Sawyer, Anglo-Saxon Charters, nos. 606, 926, references I owe to Patrick Wormaid. The name Tyburn means “boundary stream” ; E. Ekwall, English River-Names, Oxford, 1928, p. 424-5.
96 See e.g. English Lawsuits, ed. van Caenegem, nos. 471 (p. 512), 504.
97 Crown Pleas of the Devon Eyre of 1238, ed. H. Summerson (Devon and Cornwall Record Society, New Series 28, 1985), p. xx.
98 English Lawsuits, ed. van Caenegem, no. 644 (p. 692, 693).
99 For beliefs relating to trial by ordeal which make no appearance in the legal sources, see English Lawsuits, ed. van Caenegem, no. 471. For open questioning of the result of trial by battle, see English Lawsuits, ed. van Caenegem, no. 403. Note also worries that executed men might be treated as martyrs ; e.g. English Lawsuits, ed. van Caenegem, no. 644. Cf. P. Linebaugh, « The Tyburn riot against the surgeons », in Albion’s Fatal Tree, p. 65-117.
100 English Lawsuits, ed. van Caenegem, no. 350. For lewd games accompanying punishment, see P.R. Hyams, “The strange case of Thomas of Eldersfield”, History Today, 36 (1986), p. 9-15.
101 Albion’s Fatal Tree, p. 66.
102 See above, p. 25.
103 See e.g. Hlothere and Eadric, c. 7 : “If one man steals property from another, and the owner afterwards reclaims it, the accused is to vouch to warranty [geteme] at the king’s hall, if he can, and produce the man who sold it to him” ; note also e.g. Hlothere and Eadric, c. 16. For later laws illustrating the same focus, see e.g. II Edmund, c. 6. Note also the question asked in the famous Fonthill letter, English Historical Documents, I, no. 102 : “if one wishes to change every judgment which King Alfred gav.e, when shall we have finished disputing ?” For a similar conclusion, see Wormaid, « Giving God and king their due », p. 580.
104 II Æthelstan, c. 3 : “he who appeals to the king before he demands justice as often as is required is to pay the same fine as the other would have done, had he refused him justice”.
105 III Edgar, c. 8. For Angevin regulatory measures, and their neglected place in the analysis of the legal reforms, see Hudson, Formation of the English Common Law, p. 133, 135-6.
106 See e.g. III Ætheired, c. 9. For standardisation in the Anglo-Saxon period, see also II Æthelstan, c. 1 on the punishment of theft ; IV Edgar, c. 1.6, laying down that ecclesiastical dues were to be the same throughout the realm ; II Cnut, c. 34, specifying that boroughs were to have one law of exculpation. Note, however, that they do not lay down the administrative processes whereby standardisation was to be achieved.
107 VI Æthelstan and III Æthelstan respectively. Note also the comments of Wormald, Making of English Law, p. 299.
108 I Edgar, c. 5. Note also VI Æthels tan, c. 8.4, which ends with the statement that “all reeves shall help one another for the sake of the peace of us all, or pay the fine for disobedience to the king”.
109 Assize of Clarendon, c. 17, Select Charters, ed. Stubbs, p. 172, English Historical Documents, II, no. 24.
110 Wormaid, “Anglo-Saxon lawsuits”, no. 80, Anglo-Saxon Charters, ed. A.J. Robertson, Cambridge, 1939, no. 78. On Tofi, see Anglo-Saxon Charters, ed. Robertson, p. 400 ; M.K. Lawson, Cnut, London, 1993, p. 164.
111 See e.g. English Lawsuits, ed. van Caenegem, no. 432, where Henry II promised that the entry of his justices into the bishopric of Durham would not be turned into custom ; no. 641 concerning “the gallows on which robbers taken in the village of Crowland were hanged by judgment of the abbot’s court” ; also no. 581 for a dispute over jurisdiction in a homicide case. Note also e.g. Crown Pleas of the Devon Eyre of 1238, ed. Summerson, p. xv-xx. Also on geographical variation in law, see P.A. Brand, « Local custom in the early common law », in Law, Laity and Solidarities, eds. P. Stafford et al., Manchester, 2001, p. 150-9.
112 Monuments. Germanise Histories : Legum, sectio IV, Constitutiones, t. 1, 451.
113 Costumiers de Normandie, I. Le Très Ancien Coutumier de Normandie, ed. E.-J. Tardif, Rouen and Paris, 1881 (Société de l’histoire de Normandie), c. LIX, p. 50.
114 Glanvill, Bk. I c. 2, Bk. XIV c. 8, ed. Hall, p. 4, 177 ; Select Charters, ed. Stubbs, p. 170, English Historical Documents, II, no. 24 ; see also Pollock and Maitland, History of English Law, II, p. 494-500.
115 Assize of Clarendon, c. 18, Select Charters, ed. Stubbs, p. 172, English Historical Documents, II, no. 24. Note also mention of record keeping in other administrative measures under Henry II ; see e.g. Assize of Arms, c. 9, Assize of the Forest, c. 10, Select Charters, ed. Stubbs, p. 184,188, English Historical Documents, II, nos. 27, 28.
116 English Lawsuits, ed. van Caenegem, no. 501.
117 See also Wormaid, « Anglo-Saxon lawsuits », p. 277 : “It cannot be said that official (and to that extent impartial) reports of early English legal proceedings were never made. But it must be said that almost all surviving accounts of Anglo-Saxon case-law in any sort of detail seem to have been written by or on behalf of the eventually successful disputant”.
118 See also e.g. R. Le Jan, “Justice royale et pratiques sociales dans le royaume franc au ixe siècle”, in Settimane di Studio del Centro Italiano di studi sull’alto medioevo, 44 (1997), p. 84.
119 Other elements of their arguments may well have considerable resonance for mediaevalists, whilst being unprovable particularly in a period of limited case records : note e.g. Albion’s Fatal Tree, p. 33 : “When the ruling class acquitted men on technicalities they helped instil a belief in the disembodied justice of the law in the minds of all who watched. In short, its very inefficiency, its absurd formalism, was part of its strength as ideology”.
120 Albion’s Fatal Tree, p. 52.
121 See also above, p. 16, for the vital role of the ill documented local and also church courts where the great mass of issues regarding the material and the moral economies would have been processed.
122 Note Wormaid, « Giving God and king their due », p. 576-7 on reaflac, D.W. Sutherland, The Assize of Novel Disseisin, Oxford, 1973, c. 1.
123 Assize of Clarendon, c. 1 ; Assize of Northampton, c. 1 requires “the oath of twelve knights of the hundred, or, if knights be not present, the oath of twelve free and lawful men” ; Select Charters, ed. Stubbs, p. 170, 179, English Historical Documents, II nos. 24, 25. Note also R.D. Groot, “The jury of presentment before 1215”, American Journal of Legal History, 26 (1982), p. 1-24, on the influence of these juries over the of the accused. Cf. also the comments of Langbein, “Albion’s, fatal flaws".
124 See III Æthelstan, VI Æthelstan.
125 Note C. Morris, “William I and the church courts”, English Historical Review, 72 (1967), p. 449-63.
126 Note English Lawsuits, ed. van Caenegem, no. 471 (p. 511) for justices denying any priest access to the accused ; the general significance of this statement is unclear.
127 Note also the absence of explicit references to God or Christianity in Glanvill’s Prologue, although its language is constituted of words full of religious resonance in the twelfth century.
128 Note also, in a different legal context, Glanvill, Bk. II c. 7, ed. Hall, p. 28, on the Grand Assize being a royal benefit for the people by the clemency of the prince.
129 Further changes would occur in the thirteenth century, for example with the emergence of a legal profession, with its own ethos ; P.A. Brand, The Origins of the English Legal Profession, Oxford, 1992.
Auteur
Dept, of Mediaeval History, University of St Andrews
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