Early Distinctions

There was nothing novel in The Mirror's distinguishing between petty and capital larceny, because this was done in the law codes of the pre-Conquest Kings Ӕthelstan, Ӕthelred, and Cnut.Footnote ⁴ The treatise Leges Henrici Primi, and details in stories of a miracle of St Thomas Becket, show that the difference continued to be observed thereafter, as do court records from the early thirteenth century.Footnote ⁵ The treatise De Legibus et Consuetudinibus Angliae, commonly known as Bracton, which was largely a product of the 1220s and 1230s, followed suit in declaring that “No christian [sic] is to be put to death for petty theft or a trifle …”, but was notably imprecise as to what actually constituted petty theft, and the courts, too, were slow to define it in all but general terms, usually doing so by reference to the nature of the goods taken rather than to their value.Footnote ⁶ Twelve pence in goods or money has been suggested as the point which, after about 1200, separated petty from capital theft, and a man convicted at a delivery of Oakham gaol in 1256 of the theft of goods worth exactly that sum escaped the gallows.Footnote ⁷ But when at the 1261 Oxfordshire eyre the justices penalized the abbot of Eynsham's court at Charlbury for hanging one Gilbert of Evenlode for stealing a sheepskin worth 4d—“so small a theft”—they made no effort to define the amount for which that court could have legitimately given judgment of death..Footnote ⁸

For much of the thirteenth century there was probably no certain dividing line, just as no single punishment was prescribed for minor transgressors. Mutilation was a possibility—in one case a thief lost his right foot, but the splitting or severance of ears was commoner—and expulsion from a vicinity was another.Footnote ⁹ But the commonest response to pilfering was the demand that the offender should find pledges willing to guarantee his or her future good behavior (fidelitas), perhaps with the rider that anyone unable to do so must clear out. A recidivist might have to do this anyway, while a persistent re-offender could still be hanged, however trivial his individual misdeeds. Such was the fate of Robert Onhere, as recorded at the 1263 Rutland eyre. Having had his ears slit for stealing bacon, he had the remains of them cut off after a further theft, and was finally hanged for a third transgression.Footnote ¹⁰

In the late 1250s, harvest failures and a widespread famine—“a great dearth” (magna caristia)—led to a number of people appearing in court charged with thefts that were then attributed to “want,” or “extreme hunger,” or “want and very great poverty.”Footnote ¹¹ In such circumstances, one might have expected their offenses to be defined in monetary terms, but there is no record of this happening, and the definition of petty theft remained vague. In February 1274, one Richard de Bery, arrested for the theft of “silk surplices and other things pertaining to holy church,” was hanged at Newgate after confessing himself “a thief of those and other things,” even though the stolen property was valued at just 6d.Footnote ¹² Only in 1275 was the issue of value ostensibly settled, when chapter 15 of the first Statute of Westminster declared that suspected thieves could be released to bail if they had been arrested “on slight suspicion or for petty larceny amounting to not more than twelve pence in value …”.Footnote ¹³

The Edwardian Statute

This was not the end of the matter, however, and the application of this definition to acts of felony required further legislation. The earliest evidence of a statute specifically distinguishing between petty and capital theft comes from the record of the Sussex eyre, which began on June 25, 1279, in the form of the justices’ response to the presentment that one Alexander son of Edelina had been prosecuted for the theft of a linen sheet worth 6d in the Earl of Gloucester's court at Rotherfield, convicted, and hanged: “And as the suitors hanged him for a lesser value than 12d ., and contrary to the statute,” the sheriff was ordered to make them come to the eyre, where their action cost them five marks (£3 6s 8d).Footnote ¹⁴ Then at the 1280-1 Hampshire eyre, William de Valence at Newton Valence's court was recorded as having hanged a certain John Longsomer for theft of “chattels worth less than 12d., and this after the king's statute, namely the seventh year.”Footnote ¹⁵ At the 1289 Wiltshire eyre, Beatrice de Mohun's court at Mildenhall was found to have hanged a man for stealing an overcoat, “contrary to the statute, for the theft of only 5d .”; this time the penalty for the suitors was a two marks fine (£1 6s 8d).Footnote ¹⁶ At gaol deliveries at Lincoln and Nottingham in 1293, petty thieves were released by reference to the statute—at Nottingham one Richard Treweman was freed after his conviction of taking clothes worth 6d “because of the smallness [of the theft] in accordance with the king's statute”—and at York in the same year a woman who had stolen a coat was described as “excused through the king's statute issued thereon …”.Footnote ¹⁷

It is argued here that the statute referred to in these cases was not Westminster I c. 15, but a discrete ordinance laying down that theft was not to be treated as a capital felony when the value of the stolen goods was less than 12d. The former was concerned with bail, with the treatment of suspects who had been arrested but had yet to stand trial, whereas the cases cited previously are all concerned with the treatment of suspects at a later stage, when they came before a court, whether royal or private, and were convicted. It is undeniably possible that the difference reflects only a radical redirection of the 1275 statute by the king's justices (although that would in itself be a development of considerable interest, as being effectively an exercise in constructive legislation), but that does not appear to have been how the author of The Mirror of Justices saw it. His presentation of Edward I's enactment, cited at the beginning of this article, is neutral, perhaps even mildly favorable, in tone. But his assessment of Westminster I c. 15 is neither neutral nor favorable, instead denouncing it as “reprehensible.”Footnote ¹⁸ A contradiction that would be both puzzling and surprising if the same enactment were referred to in both passages, ceases to be so if it is understood that the writer was referring to two statutes, the one being doubtless intended to supplement the other. There is reason to believe, moreover, that this second statute contained provision for the treatment of men and women convicted of petty theft. The evidence is presented and discussed subsequently.

The Hampshire case cited here suggests that John Longsomer was hanged in 1278 or 1279, during Edward I's seventh year, in contravention of a statute that had only recently been enacted. The likeliest occasion for its promulgation was the autumn Parliament of 1278, at which arrangements were made for a general eyre in which two sets of justices were to circulate the whole country. Probably containing no more than two or three short clauses, it may have been one of the articuli that they were to enforce when they were appointed to act “according to the law and custom of our realm …”.Footnote ¹⁹ Several reasons can be proposed for its enactment. Population growth during the thirteenth century brought a corresponding increase in vagrancy, which appears to have added greatly to the number of poor and homeless people who frequented English communities and roads. Cases like those arising from the famine of the late 1250s show that there was a contemporary awareness of a possible connection between poverty and theft, but it was not until late in the thirteenth century that this issue, and its social consequences, found any reflection in legal texts. In its discussion of theft Bracton said nothing of poverty as a mitigating factor. But The Mirror of Justices, which was composed around 1290, declared that “the poor man who to escape starvation takes victuals to sustain his life, or a garment to prevent death by cold, if thereby he saves himself from death, is not to be adjudged to death, if he had no power to buy or borrow, for such things are warranted by the law natural …”Footnote ²⁰ And Britton, written at about the same time, also exempted from the penalties of felony “poor people who through hunger enter the house of another for victuals …”.Footnote ²¹ Both referred to the 12d limit, which in one text of Britton was given elaborate, if not entirely lucid, justification: “At three halfpence a day, 12d. would be eight days wages; and as a man going without sustenance for eight days might be expected to die on the ninth, the 12d. has regard to the destruction of life, for which offence a man is rightfully put to death …”Footnote ²²

The increase in pauperism, and of the pilfering associated with it, must have constituted a significant element in the background to Edward I's statute. And the same is true of shifts in social and legal attitudes toward punishment. Bracton had stated that petty theft should be punished in some way, “lest ease of pardon furnish others with the occasion for offending and lest wrongdoing remain unpunished.” Proceedings before royal justices in the mid-1270s show that by then the courts were following a similar line. At the 1276 Bedfordshire eyre Devorguilla de Balliol's court at Kempston had to pay a 40s fine for discharging two men arrested with half a bushel of malt, when “no-one arrested with stolen goods should be unpunished.”Footnote ²³ And when at the previous year's Worcestershire eyre the abbot of Westminster's court at Pershore was found to have released a petty thief “without any punishment in atonement for his deed”; the justices declared it contrary to the custom of the realm “to release a malefactor who has offended against the dignity of the royal crown without a punishment according to the gravity of his deed.”Footnote ²⁴ If the “gravity” of an offense was to dictate its penalty, then a clear yardstick would be needed whereby to assess it.

The launching of Quo Warranto inquests, from 1278 held in every county visited by the king's justices, suggests a more immediate context for enactment of the statute.Footnote ²⁵ The cases cited here show that the statute had nationwide validity, and was to be observed in every court. But the offenses against it were all, as recorded, committed by the courts of liberties. Some may have followed their lords’ example by acting in deliberate defiance of the king's authority; the Earl of Gloucester was particularly given to disregarding royal rights and commands. Other executions may reflect a resolve on the part of lords or their officers to retain their franchises by ensuring that they were used when occasion arose. This second consideration was not a new one. From the late 1230s onwards, Henry III's government had been determined not only to preserve the king's own rights and revenues, but also to ensure that holders of franchises—rights of government in private hands—exercised them both properly and fully. The Wiltshire landowner William Mauduit temporarily forfeited his court in 1249 because it failed to hang two men caught in possession of stolen goods.Footnote ²⁶ That this was a consideration that private courts kept in mind is argued by two cases recorded at the 1278 Hertfordshire eyre, but probably dating from the early 1270s, in which three petty thieves were hanged by William de Say's court at Sawbridgeworth: a man for the theft of six capons and two women for stealing a linen sheet and a hand-towel.Footnote ²⁷ The justices clearly did not doubt that the court had acted wrongly (its steward had to make a £10 fine), but no less significant is the fact that no value is recorded as having been set upon the objects taken, again illustrating the need for definition.

Edward I's statute did not bring an instant end to such injustices. At the 1286 Norfolk eyre, for instance, it was presented that at Michaelmas in the previous year the court of John de Crek at Fundenhall had hanged one Roger Bomund for the theft of grain worth only 4d, a “trespass” that cost the court two marks.Footnote ²⁸ And it also brought a problem of interpretation., on a point seemingly trivial but potentially vital to those concerned; namely, whether theft became capital when the value of stolen goods reached 12d, or only when it exceeded that sum. The legal texts of the years around 1290 are unclear, even contradictory, on the point, and the king's justices may themselves have been initially uncertain.Footnote ²⁹ At the 1287 Gloucestershire eyre, a man was hanged for stealing a sheep valued at exactly 12d, and a report from the 1293–94 Yorkshire eyre describes a Pontefract man who had abstracted fish worth 10d from another man's ponds as being informed by the bench that he would have gone to prison for 3 years “if the two fishes had been worth as much as a man would be hanged for the theft thereof, namely twelve or thirteen pence …”.Footnote ³⁰ But ultimately the tendency was towards leniency. At a delivery of Newgate gaol in September 1279, for instance, at which Walter of Enfield was convicted of stealing a coat and a sheet, again worth precisely 12d, he was sent to the pillory rather than the gallows, “because this theft does not exceed (superonerat) that whereby he should undergo judgment of death,”Footnote ³¹ and during the years that followed it appears to have become accepted that it was exceeding, rather than attaining, the sum that brought sentence of death for thieves. And so when in May 1300 Gilbert de Thorp was arrested and convicted at Newgate “for a purse stolen with thirteen pence,” the justices did not hesitate to pass “judgment of hanging” upon him.Footnote ³²

Punishing Petty Theft

The contemporary outlook noted previously makes it seem very likely that the statute declared that those convicted of petty theft were to be punished, probably by imprisonment or in some other appropriate way, according to the discretion of the justices (where the court was royal, or of the presiding officer in a liberty court). And so when William Warin of Aston was convicted at the 1287 Gloucestershire eyre of stealing a coat, it was decided that “as the overcoat is valued at only 8d., he is quit for the present, but he is committed to prison according to the statute.”Footnote ³³ Seventy-three men and women were convicted of petty theft during the gaol delivery of the 1293–94 Yorkshire eyre, and on the evidence of the plea roll they were all promptly released. But reports of some of the same proceedings give a rather different impression, with the presiding justice telling the thief of a hanging and a sheet, together valued at 9½d, that had his pickings been worth 2½d more he would have been hanged, “but as ill-doing (maleficium) should not remain unpunished, you will remain in prison for eight days”..Footnote ³⁴ As matters turned out, imprisonment was only one possible punishment for petty theft, but Edward I's statute appears to have given it official status.

The statute may also have prescribed forfeiture of chattels. Another report from the 1293–94 Yorkshire eyre records the justice as explaining to a woman whom he was allowing to go free because the clothes she had stolen were worth only 9d (in words that do not in the least resemble a discourse upon Westminster I c. 15), that Edward I had “granted that no man should be hanged for theft unless that theft amounts to at least 12d., wherefore although the present king has remitted judgment of blood up to the quantity of 12d., he has not because of this remitted forfeiture of chattels, but he who has been convicted of theft below the quantity of 12d. will lose all his chattels …”.Footnote ³⁵ Although a great many convicted pilferers will have had no chattels to lose, the report is supported by an entry in the record of the 1293 Northumberland eyre, setting out that Walter of Babbington, convicted of stealing goods worth 10½d, was saved from execution by the small value of his theft, “but his chattels remain forfeited to the king for that felony”—they were valued at 10s 2d—and also by evidence like that of Kentish gaol deliveries in the reign of Edward II, at which a number of petty thieves were either said to have no chattels, showing that had they not been paupers they would have lost them, or were recorded as forfeiting what they had.Footnote ³⁶

Some of the petty thieves who appeared at the 1293–94 Yorkshire eyre were permitted to make fines following conviction, seemingly to avoid prison rather than to keep their belongings out of the king's hands.Footnote ³⁷ They would hardly have been in a position to do so had all their chattels just been confiscated, and the apparent inconsistency suggests that the punishment of petty thieves was ultimately decided by the justices, who at eyres, in particular, may have preferred to avoid adding to the number of prisoners packed into already overcrowded gaols. In Yorkshire not only did the county gaol have to accommodate hundreds of prisoners while the 1293–94 eyre was in progress, but also their number was greatly augmented by suspects who now surrendered to prison in order to stand trial and thereby avoid outlawry. Many of them were said to have starved to death after proceedings were indefinitely adjourned in June 1294.Footnote ³⁸

There is a further possibility, although this can only be a matter of inference, that the statute either clarified or elaborated upon contemporary definitions of petty theft. This is suggested by a single entry, but one involving two suspects, from the gaol delivery of the 1286 Buckinghamshire eyre.Footnote ³⁹ The first prisoner, William Bruning, charged with stealing relics, was found to have received them in pawn from an unnamed woman. He was not said to have stolen them himself, but he had received them “knowingly” (scienter) and “contrary to the statute,” and was therefore taken into custody, subsequently making fine by 6s 8d for what was described as his trespass. In their discussions of capital larceny, Bracton, and later Fleta, laid down that the conscious receiver of stolen goods should incur the same punishment as the original thief. Perhaps the Edwardian statute corrected a belief that when the proceeds of crime were of small monetary value, the receivers of them could be regarded as having committed no offense. The second prisoner, Ralph le White of Ivinghoe was charged with stealing one and a half bushels of corn, worth 9d, from the granary of his lord, by night. The Yardley jurors convicted him, and in the words of the plea roll, “as he committed that felony by night, so he is hanged.” The clear implication is that had Ralph stolen the grain in broad daylight he would have been spared, saved by the statute. That breaking and entering in order to steal would likewise have excluded suspects from the protection of the statute is suggested by some carefully worded verdicts from the 1290s and later. Robert son of Gillian atte Crucche went quit at the 1293 Kent eyre after a jury described how he entered the mill he was accused of burgling through a gap in its wall, and took flour worth 8d by pouring it out of a chest rather than breaking into it.Footnote ⁴⁰ In other cases, thieves who took goods of small value were no less deliberately presented as having entered the houses where they stole them through open doors.Footnote ⁴¹

Problems of Implementation

The role of jurors in all cases involving theft before a royal court was crucial, since they provided the valuations of allegedly stolen goods and so decided the fate of those convicted. They were certainly not squeamish about convicting thieves, who could be hanged in considerable numbers (no fewer than 279 men and women were recorded as having perished thus after being convicted of theft and associated offenses in the gaol deliveries that formed part of the 1293–4 Yorkshire eyre), but they were not reckless either, and must often have been prepared to give suspects the benefit of the doubt, especially if they already knew these suspects and their reputations. Thanks to the statute, jurors could now do this not only by acquitting the suspects altogether, but also by assessing what they had stolen at a lower value than had been originally specified. The justices, for their part, are not recorded as having objected to the jurors’ doing so. Hence a case like that of Alexander son of Simon le Swyk, charged at the 1293 Kent eyre with stealing bees, sheep “and other thefts.” The bees were allegedly worth 2s, but the Maidstone jurors, while convicting Alexander of taking them, reduced their value to 6d. and cleared him of the other offenses, with the result that he was sent to gaol “for the smallness of the theft” instead of being hanged.Footnote ⁴²

The nature of what was allegedly stolen will sometimes have made a difference. In a case like that of Gilbert de Thorp, cited previously, the fact that what he had taken was money left very little opportunity for assessment, as the coins he stole could be added up and their number will have determined his fate. But in many cases there was opportunity for calculation. Inevitably it is impossible to prove that juries deliberately undervalued stolen goods in order to spare suspects’ lives, but it can certainly be said that some petty thieves came very close to the gallows. William the Bowyer, for instance, convicted at Southwark in 1307 of stealing wool from sheeps’ backs worth 10½d, along with a cock valued at 1d, and other men and women whose thefts were valued at 11d.Footnote ⁴³ In such cases, the testimony of the juries may be evidence for clemency on their part, or it could simply demonstrate the conscientiousness with which they undertook the task of assessment. The justices, for their part, may not usually have minded very much whether cutpurses or pilferers were executed or not, as long as the valuations were not flagrantly inaccurate, or the accused notorious evildoers (something about which a county's officials could doubtless have informed them).

The fact that cutpurses and other minor offenders might be assaulted and even killed by the people they targeted suggest that there may well have been times when the courts appeared unduly indulgent in the eyes of victims of petty theft, for some of whom 12d could easily have represented a significant sum.Footnote ⁴⁴ Be that as it may, the evidence suggests that the Edwardian statute did not intend pilferers and pickpockets to escape scot-free, but provided for their being punished by imprisonment or in some other appropriate way. One possibility was a severe beating, a punishment inflicted on John son of Magge of Capernwray, convicted at Lancaster in 1303 of stealing a sheep. The animal was worth only 8d, and so John was sent to prison with an order that he be thrashed—fustigetur.Footnote ⁴⁵ Cutpurses, in particular, were liable to have their ears slit or amputated (a punishment recommended for them by both Fleta and Britton), while repeat offenders were executed. The value of the second offense might not even be recorded, since the state of their ears was sufficient evidence of past crimes.Footnote ⁴⁶ A number of petty thieves were sent to the pillory, and sometimes had their ears cropped as well.Footnote ⁴⁷ A session in the pillory seems to have lasted for an hour in the 1270s, and for considerably longer by the 1290s, when a man convicted at Berkhamstead of stealing a sword was ordered to stand in the pillory “from prime to nones”: from daybreak until the early afternoon.Footnote ⁴⁸ There was also the possibility of a repeat appearance. Estrilda of Worcester, convicted at Newgate in 1313 of cutting a purse containing 6d was sent to the pillory for three market days (perhaps the one recorded in the parish of St Peter, Wood Street, not far from the gaol).Footnote ⁴⁹

The Development of Penal Imprisonment

From the last two decades of the thirteenth century onwards there was a growing tendency for men and women convicted of petty theft to be sent to gaol. This was a significant change from previous practice. For much of the thirteenth century petty thieves were usually required to find pledges for their remaining law abiding in the future, but as the country's vagrant population grew, many drifters must have been unable to find such guarantors, just as at the same time the doctrine that every offense required an appropriate punishment must have done much to militate against poultry thieves and cutpurses being set free without some kind of chastisement. The doubtless stern warning not to offend again, which is occasionally recorded as having been handed down from the bench, hardly met this need.Footnote ⁵⁰

Gaol sentences could vary greatly and in some cases were not specified. At a delivery of Colchester gaol in 1280 one Roger Born was “returned to prison to stay there for half a year as penance as he was convicted of [stealing] a bushel of oats worth 2½d.”Footnote ⁵¹ The unusual severity of his sentence, coming very soon after the issuing of the statute, may reflect uncertainty about its implementation. More often people like Roger were sent to gaol for several weeks, while others were released following conviction because they had been interned for long, or even very long, periods before coming up for trial. At Leicester in 1306 a woman convicted of stealing a bronze pan was discharged after the sheriff testified that she had been imprisoned for 4 years, and although that was exceptional, in December 1323 a man convicted at a Newgate gaol delivery of stealing clothes worth 8d was freed “at the discretion of the justices” because he had been held in prison awaiting trial for a whole year, far longer than any sentence he could have expected to incur for his offense.Footnote ⁵²

That discretion was probably quite often exercised, despite a temporary trend toward precision in sentencing in the years around 1300. At the gaol delivery of the curtailed Surrey eyre that began on May 28, 1294, convicted pilferers were variously remanded to the feasts of Pentecost (June 6), Trinity Sunday (June 13), the Nativity of St John the Baptist (June 24) and St Margaret (July 20), and in addition, sentences of 3 weeks, 1 month, and 6 weeks were imposed.Footnote ⁵³ Similar offenders were treated in like fashion at the Kent and Middlesex eyres of the early 1290s, except in one Middlesex case in which a man and a woman who had stolen poultry worth 10d were sent to prison “while the justices remain in this county.”Footnote ⁵⁴ William Fycays, convicted on July 23, 1299 of stealing lead worth 8d from a chapel in St Paul's Cathedral in London, was sentenced to remain in prison until the next delivery of Newgate gaol, which did not take place until November 20, 4 months later.Footnote ⁵⁵ Perhaps his offense was regarded as sacrilegious, and therefore meriting an unusually long sentence. At Kent trailbaston sessions in 1305 the justices usually imposed a term of a week in gaol for every penny's worth of goods stolen—6 weeks for whitings valued at 6d for instance, and 8 weeks for a sheep worth 8dFootnote ⁵⁶—a policy that was further refined at later trailbaston sessions. William the Bowyer, whose conviction in 1307 has been noted, was sent to prison for 11 weeks and 3 days for his theft of goods worth 11½d, and the sentences for other petty offenders were no less minutely calculated.Footnote ⁵⁷

This apparent trend toward consistency in sentencing was fleeting, however. In 1315–16, an atrocious famine must have made petty thieves more numerous and perhaps made the justices more lenient, and a consensus may then have developed that the former should spend only a day in prison for every penny's worth of stolen property. In 1316 a malefactor convicted at Newgate of stealing malt worth 9d was sent to gaol for 9 days, and in the following year, the tariff for two hens and a duck valued at 5d was 5 days in prison.Footnote ⁵⁸ But it is hard to see any settled sentencing policy at this time, and some gaol delivery rolls from Edward II's later years show no punishment at all for minor offenders, although again the possibility should not be discounted that a suspect's discharge was due to his or her having been long in prison before coming up for trial.Footnote ⁵⁹

A further issue raised by Edward I's statute concerning petty theft was the treatment of escapers from gaol. In the 1270s, the law still treated fugitives from prison as self-confessed felons, who by the very fact of his flight had admitted his guilt and should therefore be treated with the utmost rigour when recaptured, regardless of his alleged offense. By declaring that the theft of goods under the value of 12d was not, in normal circumstances, a capital offense, the statute should have prevented the execution of people suspected of it, and may well have been a factor behind the order given in 1295, sometimes referred to as a statute, which declared that in future the escaper should receive only the punishment appropriate to the offense for which he or she had been imprisoned.Footnote ⁶⁰ During assizes held in Essex in 1278, the jurors in an action of novel disseisin over land in Walthamstow told how its previous possessor had been arrested for the theft of a strongbox worth 3½d, had escaped from prison, and had been hanged after being caught.Footnote ⁶¹ Nothing was said to suggest that his execution was regarded as having been excessive or unjust, something that would have been hardly possible 20 years later.