Æthelstan modifies the penalties for theft (c.930-39)
This text,1 found only in Textus Roffensis, is a modification of King Æthelstan’s legislation on the penalties for theft.2 It concerns both the age at which a thief could be executed and the lower limit of the value of property stolen for which a thief could be put to death.
In his first known pronouncements on theft, recorded in what is known as the Grately Code (issued at Grately, Hampshire, c.926-c.930),3 Æthelstan stated: ‘First, that one should not spare any thief who is caught red-handed, [who is] over 12 years, and [the value is] over eight pennies’.4 The modification, made by the king during a meeting with his counsel at Whittlebury,5 changes the age to 15 and the property value to 12 pennies.
Legal and cultural context
That thieves caught in the act could legitimately be killed was well established before Æthelstan; however, he insisted ‘on a stricter implementation of existing punishments’, as Tom Lambert notes in his study, Law & Order in Anglo-Saxon England (Lambert, p. 175).
After first granting an amnesty for thieves (seen in the Exeter Code, which also appears in Textus Roffensis), ‘such that those who committed theft could for a specified period compensate their victims without suffering any punishment’, the king, at Thunderfield (Surrey), ushered in what Lambert calls ‘the dawn of a new, distinctly merciless order’ (Lambert, p. 175). The Thunderfield Code states:
And if there is a thief who has committed theft since the council was held at Thunderfield, and is still engaged in thieving, he shall in no way be judged worthy of life, neither by claiming protection nor by making monetary payment, if the charge is truly substantiated against him – whether it is a freeman or a slave, a noble or commoner, or, if it is a woman, whether she is a mistress or maid – whosoever it may be, whether taken in the act or not taken in the act, if it is known for certainty [sic] – that is if he shall not make a statement of denial – or if the charge is proved in the ordeal, or if his guilt becomes known in any other way. (Lambert, pp. 175-76.)
The extension of execution to those not caught in the act was radical. And the removal of protection and monetary compensation was brutal. This is the context, then, in which the Whittlebury modification falls.
Æthelstan’s punishment of those who committed thievery was, indeed, ‘distinctly merciless’. However, we learn from the modification that the king found the execution of persons ‘so young’ – as young as twelve – and for ‘so little’ – as little as eight pennies – just a little uncomfortable. It seemed to him ‘too cruel’, we are told.
Lest, however, we are tempted to think of Æthelstan as a kind-hearted ruler, the modification still allowed for the killing of children younger than fifteen in certain circumstances, namely, where they put up a fight in resisting capture or attempted to flee.
If the child had his life spared, he was either to be imprisoned or his family were to redeem him with the full value of his wergild, that is, the legal price of his life, which was something every free person was granted according to their rank. Unfortunately, should the wergild payment not be forthcoming – perhaps the family could not afford it – then the child had to become enslaved.
Upholding peace
We may wonder why punishment for theft was so disproportionate and brutal. In the broader context of law and order in the centuries before the Norman Conquest of England, the treatment of thievery is a complex subject that merits more than a few sentences. However, we might summarise one key reason for the legislating of harsh punishment for thieves by referring to the final words of this modification law, in which King Æthelstan states: ‘If we uphold it thus, then I trust to God that our peace [‘frið’] will be better than it was before’.
The peace here alluded to might be best understood as communal – ‘our peace’ – the peaceful state of all the people, the whole kingdom. In Anglo-Saxon laws the supressing of theft is closely associated with this peace, as if there were a collective responsibility to remove the tyranny of thieves (see Lambert, pp. 207-210). We may thus read the ‘evermore frightening punishments’ for thieves (Lambert, p. 210) as an attempt at deterrence, and as the king taking the lead in upholding the peace of the kingdom.
At some point in its transmission the modification text was appended to another of Æthelstan’s law codes, also unique to Textus, which was issued at London, sometime after Thunderfield. You will notice that it begins with ‘Twelfthly’, following on from the previous eleven sections in the London Code.
Transcription
92v (select folio number to open facsimile)
Twelfte, þæt se cyng cwæð nu eft at witlanby-
rig to his witan, ⁊ het cyðan þam arcebiscope be þeo-
drede biscop, þæt him to hreowlic þuhte, þæt man
swa geongne man cwealde oððe eft for swa
lytlan swa he geaxod hæfde, þæt man gehwær dyde. Cwæð þa þæt him þuhte, ⁊ þam þe he hit wiðrædde,
þæt man nænne gingran mann ne sloge þonne xv.
wintre man, buton he hine werian wolde, oððe
fleoge, ⁊ on hand gan nolde, þæt hine man þonne
lede, swa æt maran, swa æt læssan, swa hwæðer
hit þonne wære. ⁊ gif he þonne on hand gan
wille, þonne do hine man on carcern, swa
hit æt greatanlea gecweden wæs, ⁊ hine be þam
ylcan lynige.6 Oððe gif he in carcern ne cume,
⁊ man nan næbbe, þæt hi hine niman be his ful-
lan were on borh, þæt he æfre ma ælces yfeles
geswice. Gif seo mægð him ut niman nelle,
ne him on borh gan, þonne swerige he swa him
bisceop tæce, þæt he ælces yfeles geswycan wille,
⁊ stande on þeowete be his were. Gif he þonne
ofer þæt stalie, slea man hine, oððe ho, swa man
þa yldran ær dyde. ⁊ se cyng cwæð eac, þæt
man nænne ne sloge for læssan yrfe þonne
xii. pænigas weorð, buton he fleon wille, oððe hine
werian, þæt man ne wandode þonne þeah hit læsse
wære. Gif we hit þus gehealdað, þonne gely-
fe ic to gode, þæt ure frið bið betera, þonne hit
æror wæs.
Translation
Twelfthly, that the king now spoke once more to his council at Whittlebury, and made it known to the archbishop,7 through Bishop Theodred,8 that to him it seemed too cruel that one so young a person should be slain, or for so little, as he had learned was done everywhere.
He then said that it seemed to him, and to those with whom he had discussed it, that one should not slay a young person less than fifteen years old,9 unless he wishes to fight,10 or flees, and does not wish to submit; in that case one may lay him low,11 whether for a greater or lesser [offence], whichever it then might be.
And if, however, he wishes to submit, then one should put him in prison, as it was agreed at Grately, and, according to the same, let him be redeemed.12
Or if he does not go to prison, or none is available,13 that they take him under surety of his full wergild,14 that he for evermore cease from all evil.
If the kindred is unwilling to take him out [from prison], or stand surety for him, then he should swear as the bishop directs him, that he will cease from all evil, and he should stand in slavery for his wergild.15
If then he should steal after that, one should slay or hang him, as one would do with an older person.
And the king also said that one may not slay anyone for less than property worth 12 pennies; unless he wants to flee, or fight, in which case one should not hesitate, even though it were for less.
If we uphold it thus, then I trust to God that our peace will be better than it was before.
Bibliography
Lambert, Tom, Law & Order in Anglo-Saxon England (Oxford University Press, 2017).
Lapidge et al, The Blackwell Encyclopaedia of Anglo-Saxon England, ed. Michael Lapidge, John Blair, Simon Keynes, and Donald Scragg (Blackwell Publishing, 1999).
Whitelock, Dorothy, English Historical Documents c.500-1042, second edition (Eyre Methuen/Oxford University Press, 1979).
Websites
Early English Laws, Early English Laws: Home.
Bosworth Toller’s Anglo-Saxon Dictionary online, Bosworth-Toller Anglo-Saxon Dictionary online (bosworthtoller.com).
Further reading
Wormald, Patrick, The Making of English Law: King Alfred to the Twelfth Century (Blackwell, 1999).
Footnotes
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1 Many thanks to Elise Fleming for proofreading the introduction, translation and notes.
2 Æthelstan was regarded as ‘king of the English’ from 927 until his death on 27 October 939. Prior to being king of the unified kingdom of the English, he was recognised as king in Mercia and his brother Ælfweard as king in Wessex, following the death of their father, Edward the Elder on 2 Aug. 924. As Ælfweard did not long survive his father, Æthelstan became king ‘of the Anglo-Saxons’, being consecrated as ‘king of the Anglo-Saxons and of the Danes’ on 4 September 925 (Lapidge et al, p. 514).
3 Whitelock’s date, p. 417.
4 ‘Ærest thæt man ne sparige nænne þeof þe æt hæbbendre handa gefangen sy, ofer xii winter, ⁊ ofer eahta peningas’, Textus Roffensis, folio 33r, opening lines. A full translation of the Grately Code is available on the Textus pages of this website.
5 Whittlebury today is a village in the south of Northamptonshire, close to the border of Buckinghamshire.
6 ‘lynige’ appears to be an error for ‘lysige’, as noted by Felix Liebermann: see Early English Laws: Liebermann edition [accessed 14 December 2022]. The verb, therefore, is lisian ‘to redeem’: see the entry at Bosworth-Toller Anglo-Saxon Dictionary online (bosworthtoller.com) [accessed 14 December 2022].
7 Wulfhelm, the archbishop of Canterbury, was appointed c. 926; his term ran until his death on 12 February 941.
8 Theodred, the bishop of London, was consecrated between 909 and 926; his term ran until his death, which was between 951 and 953.
9 Literally, ‘less than fifteen winters’.
10 Or, ‘defend himself’; Whitelock, p. 427, gives ‘unless he tried to defend himself’.
11 Or, ‘kill him’; Whitelock, p. 427, gives ‘in that case he was to be struck down’.
12 That is, according to the same agreement at Grately.
13 More literally, ‘or/and one has none’.
14 The ‘they’ here refers to those redeeming the criminal; we can presume this typically would have been the child’s parents or other relatives; see the clause that follows. The wergild (Old English wer is an abbreviated form of wergild) was the established monetary value of a free person’s life according to their rank. This amount would have to be paid in order to redeem the criminal.
15 That is, the child must become a slave in lieu of the unforthcoming wergild payment.
