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Law-Codes and Legal Treatises Durham E-Theses Protection, Feud and Royal Power: Violence and its Regulation in English Law, c. 850 c. 1250. LAMBERT, THOMAS,BENEDICT How to cite: LAMBERT, THOMAS,BENEDICT (2009) Protection, Feud and Royal Power: Violence and its Regulation in English Law, c. 850 c. 1250. , Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/2/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 Protection, Feud and Royal Power Violence and its Regulation in English Law c. 850 – c. 1250 T. B. Lambert Thesis submitted for the Degree of Doctor of Philosophy. Durham University,i 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 i 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”. ii Acknowledgements It is impossible to undertake a project of this size and duration without incurring many debts of gratitude. I would like, in particular, to thank my supervisors, David Rollason and Christian Liddy, for their patience and unstinting support throughout the process. Many thanks must also go to Pat Musset, David Ashurst, Cynthia Neville, Clare Stancliffe, David Pratt, Helen Lacey, Stefan Jurasinski, Giles Gasper, Len Scales and the members of Durham’s Medieval and Renaissance Postgraduate Discussion Group for various forms of help, advice and friendly debate, as well as to my father, Peter Lambert, for his generous efforts in seeking out obscure books. Meredith Bacola, my closest companion in medievalism, deserves a special mention both for her sympathy and understanding, and for her incredible capacity for cheerful optimism. It would have been a much lonelier journey without her company. My greatest debt, however, is to my wife, Ruth, because of whom I will always be able to look back upon my postgraduate years as a time of true happiness. She has put up with a great deal without complaint and I don’t know if I could have done this without her. Finally, grateful thanks are due to those institutions whose financial support has made this work possible: to the Arts and Humanities Research Council (www.ahrc.ac.uk) for its Doctoral Award and to Durham University for its Doctoral Fellowship. iii Contents Abbreviations vi Introduction 1 PART ONE: VIOLENCE AND POWER IN LATE ANGLO-SAXON ENGLAND Chapter One Feud, Crime and Homicide Introduction 18 The Core of the System of Feud 19 A Royal Crime of Homicide? 39 Conclusions 54 Chapter Two Protection, Prohibition and the Regulation of Violence Introduction 56 Prohibitive Power: Understanding Morð 57 Complex Protections: Delegitimising Vengeance 63 Protections and Royal Jurisdiction 70 o Spatial Protections 71 o Personal Protections 93 o Forsteal 97 o Other Protections 102 Conclusions 104 Chapter Three The Distribution of Legal Power: A Reassessment Introduction 111 Delegated Powers 114 Non-Delegated Power 133 Conclusions 142 PART TWO: THE DESTRUCTION OF THE SYSTEM OF FEUD IN TWELFTH-CENTURY ENGLAND Chapter Four Dating the Royal Crime of Homicide Introduction 149 Homicide, Pardoning and the Pipe Rolls 154 Conclusions 161 iv Chapter Five Murder, Infamy and the King’s Peace: The Legal Roots of “Violent Crime” Introduction 163 Historiography and the King’s Peace 164 The Murder Fine 171 Expanding Protections: Hamsocn, Griðbryce and “Tickets” 180 Protection and Charters 184 The Appeal and Infamy 188 Conclusions 196 Chapter Six Ideology and the Criminalisation of Violence Introduction 200 The Idea of Peace 201 Felony and Oaths 214 Conclusion 220 Conclusion 221 Bibliography 233 List of Primary Sources 249 v Abbreviations A Note on the Citation of Laws: This thesis follows the now standard system of citation for Anglo-Saxon and Anglo-Norman legal texts established by Felix Liebermann in his Die Gesetze der Angelsachsen (Halle: Max Niemeyer, 1903-1916). For many of the texts, the Gesetze remains the most authoritative edition. There are, however, other editions and a number of different translations available. These are all indicated here, with the first reference indicating the primary edition. The translations employed here tend to be based on the modern editions noted below, with any modifications aimed at producing a more literal rendition of the text. Where the use of a particular translation is significant, this is noted in the footnotes. Abt Laws of Æthelberht. Edited: Oliver (2002); Gesetze; Attenborough (1922). English translations: Oliver (2002); Attenborough (1922); E.H.D. i, no. 29. Though Oliver (2002) introduced a new system of numbering the clauses, Liebermann’s is retained here because of its presence in all the other editions. Af Laws of Alfred. Edited: Gesetze; Attenborough (1922). English translations: Attenborough (1922); E.H.D. i, no. 33. [I-VI] As Laws of Æthelstan. Edited: Gesetze; Attenborough (1922). English translations: Attenborough (1922); E.H.D. i, nos. 35-37 (II, V and VI As). A.S.C. Anglo-Saxon Chronicle, cited from J. Earle and C. Plummer, eds., Two of the Saxon Chronicles Parallel (2 vols., Oxford: Clarendon, 1892-99). It is cited by corrected year (supplied from translation in Swanton (2000)) and by version. So, A.S.C. 946(D) refers to the ‘D’ version of the chronicle in the year 946. [I-X] Atr Laws of Æthelred. Edited: Gesetze; Robertson (1925). English translations: Robertson (1925); E.H.D. i, nos. 42-46 (II, III, V, VII and VIII Atr). Að The anonymous legal text “Að”. Edited: Gesetze. Blas The anonymous legal text “Be Blaserum”. Edited: Gesetze. BoretiusCapitularia Alfred Boretius, ed., Capitularia Regum Francorum (2 vols., MGH Legum Sectio II; Hanover: Hahn, 1883-97).
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