10 - Capital Punishment and the Anglo-Saxon Judicial Apparatus: A Maximum View?

Summary

In the final volume of his Commentaries on the Laws of England, Sir William Blackstone praised what he saw as the ‘most remarkable’ achievements of pre-Conquest English law: ‘the constitution of parliaments,’ ‘the election of their magistrates by the people,’ and the development of the ‘most important guardian both of public and private liberty,’ the jury. Equal to these accomplishments, in Blackstone’s view, was Anglo-Saxon law’s ‘great paucity of capital punishments,’ particularly for first offenses. Although Blackstone’s version of pre-Conquest legal history has been largely discredited, his assertion that legislators often restricted, if not abandoned entirely, the use of the death penalty came to form part of a scholarly consensus on early English criminal prosecution. This consensus assumed its most durable form in the work of Frederic William Maitland, who argued that capital punishment played only a small role in Anglo-Saxon law; according to Maitland, it was not until the latter half of the twelfth century that ‘the doctrine of felony was developed [and] capital punishment supplanted the old wites.’ Among Anglo-Saxonists, Maitland’s arguments have led to analyses of a perceived ambivalence towards execution in pre-Conquest courtly and ecclesiastical culture. Tracing inconsistencies in the legislative definition of capital crime as well as objections to the death penalty raised by such prominent writers as Ælfric of Eynsham, those studying this issue have suggested that the Anglo-Saxon attitude towards the execution of criminals was complex, contradictory, and subject to considerable debate. For such scholars, the legal and conceptual problems posed by capital punishment may perhaps best be summed up by Archbishop Wulfstan’s famous declaration in V Æthelred: ‘it is the judgment of our lord and his council that Christian men shall not be sentenced to death for minor crimes; but instead, more mild penalties shall be assessed to meet the needs of the people, so that the handiwork of God and what he purchased dearly for himself not be destroyed for minor offenses.’

Recently, however, excavations of what have been labeled ‘execution cemeteries’ by Andrew Reynolds, Jo Buckberry, Dawn M. Hadley, Craig Cessford, Graham Hayman, and others have uncovered evidence that capital punishment may have been far more widespread than traditionally thought. These scholars draw on the work of historians arguing for a ‘maximalist’ account of Anglo-Saxon state-formation in order to suggest that such cemeteries provide evidence for the early centralization of pre-Conquest judicial practices.