Theft, Homicide and Crime in Late Anglo-Saxon Law
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.