Background: Consecrated and Unconsecrated Burial in Anglo-Saxon England

In tenth-century law, unconsecrated burial was reserved for serious offenders: executed criminals, individuals killed while committing an unlawful act, or those who refused to repent of major sins before their death.Footnote ⁶ Although such miscreants comprised only a small segment of England's population, “deviant” burials are visible in the archaeological record and have attracted considerable scholarly attention.Footnote ⁷ Recent studies have illuminated the prevalence of execution cemeteries in isolated or border territories, situated well away from the hallowed ground of late Anglo-Saxon churchyards, and these sites seem to confirm that royal laws which mandated unconsecrated burial were more than merely aspirational.Footnote ⁸ Such sites are attested across much of the Anglo-Saxon period, with the earliest known execution cemeteries dating from the seventh and eighth centuries.Footnote ⁹ Nevertheless, it was only from the tenth century that English lawmakers began mandating burial practices in written legislation. The first mention of unconsecrated burial in any European text, in one of Æthelstan's lawcodes, decrees that perjurers who refuse penance “shall not be buried in any consecrated cemetery” when they die.Footnote ¹⁰ This proclamation seems to be born of its time, since rites for consecrating cemeteries first emerged in the tenth century.Footnote ¹¹ Before this period, burial in hallowed churches or in churchyards was a possibility for some — notably members of the clergy and lay elites — but not an expectation for most Christians, who were more likely to be interred in local cemeteries or family plots.Footnote ¹² Yet in order for the threat of unconsecrated burial to carry weight as a deterrent against illicit behavior, the Christian population must have considered burial in hallowed ground to be a desirable and feasible way to dispose of the dead. Archaeological evidence indicates that churchyard cemeteries became increasingly common in tenth- and eleventh-century England, and it is reasonable that exclusion from hallowed ground came to carry greater stigma during this period.Footnote ¹³ The perceived efficacy of unconsecrated burial as a judicial punishment is borne out by its regular appearance in royal legislation. After Æthelstan's reign, the practice was prescribed in the lawcodes of Edmund (r. 939–946), Æthelred II (r. 978–1016), and Cnut (r. 1016–35), and it was evidently decreed by Edgar (r. 959–975), as well — that is, every king of England known to have issued written legislation between 925 and the Norman Conquest.

Despite the prevalence of unconsecrated burial in late Anglo-Saxon law and the visibility of deviant burial in the landscape, the legal rationale for posthumous exclusion was never stated explicitly in pre-Conquest sources. Nevertheless, two factors may explain its enduring appeal to lawmakers. First, exclusion from hallowed ground would permanently ostracize an offender from communities of law-abiding individuals. In other words, unconsecrated burial could function after an offender's death in much the same way outlawry or exile might function during his lifetime.Footnote ¹⁴ The most extravagant manifestations of this logic can be identified in execution cemeteries, where criminals’ bodies were not simply separated from the pious dead but denied the respectful burials that their law-abiding counterparts enjoyed: corpses might be dumped together in burial pits, crammed into too-small graves, exposed to the elements, or prominently displayed as they rotted.Footnote ¹⁵ While such treatment may have been particularly attractive to legislators, since a desecrated body could serve as a warning to living miscreants, unconsecrated burial also took less conspicuous forms. A corpse might be buried or abandoned in an isolated area, or submerged in a swamp or body of water.Footnote ¹⁶ It is also possible that a dead offender would be allowed a respectful burial near his home or a church, even if his remains were prohibited from hallowed ground.Footnote ¹⁷ In any of these scenarios, the non-normative disposal of a body could memorialize the deceased's offense and confirm his social exclusion.Footnote ¹⁸ It might also negatively affect his survivors. From the tenth century, royal lawcodes anticipated that relatives would go to great expense to recover a kinsman's body from unconsecrated ground, suggesting that exclusionary burial would bring social, legal, or financial burdens upon a dead offender's family.Footnote ¹⁹

The second factor which likely made unconsecrated burial appealing to legislators was religious: the condemned would be excluded from hallowed ground and, by extension, from the communities of pious Christians buried therein.Footnote ²⁰ In royal law, this principle seems to be justified by the idea of legally protected ecclesiastical space.Footnote ²¹ Churches were granted special privileges in Anglo-Saxon lawcodes from the seventh century onward, and even if these laws were initially meant to buttress ecclesiastical policy, they established kings as legitimate guardians of religious sites.Footnote ²² By the ninth century, royal law extended sanctuary protections to any church which had been consecrated by a bishop, a policy which linked legal privileges to liturgical ritual.Footnote ²³ In the early tenth century, Æthelstan's prohibition of consecrated burial focused on the placement of the offender's corpse, requiring that it not be placed within the boundaries of a consecrated cemetery — thereby expanding the geographical scope of legally designated sacred space, from ecclesiastical buildings to a wider range of church grounds.Footnote ²⁴ According to the logic of these lawcodes, a body that was denied a hallowed grave would not enjoy the legal protections attached to consecrated ground but would be left vulnerable to disturbance or desecration.Footnote ²⁵

However, it was the liturgical rite of consecration, not the decrees of royal law, which gave hallowed cemeteries their distinctive status, and the spiritual protections created through ecclesiastical ritual were believed to have weightier long-term implications than any legal privilege. Latin rites for cemetery consecration were first recorded in England in the late tenth century, although the practice probably originated some decades before.Footnote ²⁶ The earliest extant formula invokes divine favor for individuals interred within a consecrated cemetery — that is, “those who have received the sacrament of baptism and who are persistent in the catholic faith until the end of their life” — and asks God to protect the Christian dead from harm and corruption:Footnote ²⁷

These requests for protection focus on human bodies (“corporibus humanis”) and the physical space in which they are to be placed (“cymiterium,” “sedem,” “loco”), yet the professed danger comes from evil spirits, who might injure or defile the dead. The vocabulary used for spiritual incursion (“incursione”) and pollution (“inquinamento”) might be applied as easily to human intruders as to malicious spirits, and these exhortations imply that evil forces could hinder a Christian's salvation if his corpse were left without divine protection. Still, the consecration rite is not exclusively comprised of defensive prayers. Requests for protection are coupled with entreaties for divine favor:

This rhetoric implies that individuals interred in consecrated churchyards would be well positioned to receive divine mercy in the afterlife, with a likelihood of absolution and salvation. According to this reasoning, excluded offenders were not simply separated in death from the community of the faithful; they also forfeited the posthumous spiritual protections and privileges that Christians might ordinarily claim. Liturgical rites for consecrating churchyards affirmed that hallowed burial was beneficial to the soul, and it is reasonable that the inverse was also true: that individuals deprived of consecrated graves faced a spiritual disadvantage in the afterlife. A person interred in unconsecrated ground lacked the Church's protection in this world and the next; he was left to face God alone.

Unconsecrated burial has been widely linked in modern scholarship with excommunication: the formal separation of an incorrigible sinner from the Church and its rituals, implemented through a liturgical curse.Footnote ³⁰ Because those who died in excommunication were generally believed to be condemned to hell in the afterlife, some recent studies of have postulated that unconsecrated burial was designed to facilitate the deceased's damnation.Footnote ³¹ Yet in the tenth century, when unconsecrated burial was first prescribed in royal law, its association with excommunication or damnation must not be taken for granted. Patristic tradition held that the adverse treatment of a body could not injure the soul, and this position is antithetical to the idea that burial outside hallowed ground could, in itself, hinder a person's salvation.Footnote ³² That said, it had long been recognized that burial at holy sites — notably among the saints (ad sanctos), or within or beside churches — could be spiritually beneficial, just as prayers and masses for the dead were believed to advance their prospects in the afterlife.Footnote ³³ Although such efforts did not guarantee salvation, since judgment was left ultimately to God, early medieval authors asserted that burial at holy sites, like posthumous prayer, was advantageous to the soul. Accordingly, it was believed that such treatment should be reserved exclusively for the pious dead, who deserved spiritual assistance because of their virtuous lives. Gregory the Great argued that it was worthless to bury the sinful ad sanctos, since they would derive no benefit from holy ground; moreover, those who allowed such burials to take place would be sinning in their own right, by exalting the impious.Footnote ³⁴ Carolingian ecclesiastics embraced similar views. Bishop Theodulf of Orléans (died 821) decreed that only priests and the just (“iusti hominis”) were worthy of burial in churches, while the 813 Council of Mainz ruled that no bodies were to be interred in a church unless they belonged to members of the clergy or faithful laypeople (“fideles laici”).Footnote ³⁵ In England, the seventh-century Penitential of Theodore went a step further, instructing that the remains of any pagan (“paganus”) or gentile (“gentiles”) be thrown out of consecrated churches and decreeing that Christian altars must not be consecrated if bodies of the unfaithful (“infidelium”) were buried nearby.Footnote ³⁶ These texts assert that sinful corpses were unworthy of burial among the virtuous and could pollute sacred space, but it does not necessarily follow that burial location in itself had the power to effect either damnation or salvation.Footnote ³⁷ Rather, in the centuries before the rise of consecrated cemeteries, church burial was construed by early medieval authors as a desirable privilege, which might give the souls of good Christians further help in the afterlife but which would offer no benefit to sinners. Like canonical mandates to withhold prayer from the impious, exclusion from consecrated burial would deprive sinners of a spiritual advantage which might profit the faithful.Footnote ³⁸

By the tenth century, however, Continental authors had begun to construe exclusionary burial not simply as a loss of privilege but as an element of spiritual punishment, as the practice became formally associated with excommunication.Footnote ³⁹ The key to this connection was the fact that excommunication was, fundamentally, medicinal: it was intended to pressure obstinate sinners to repent of their misdeeds and submit to ecclesiastical correction, by threatening terrible consequences in this life and the next.Footnote ⁴⁰ Accordingly, although excommunication formulae conceded that a sinner could escape torment if he repented, their threats needed to be sufficiently dire in order to be effective. The earliest known excommunication rite, promulgated at Reims in 900, concludes its list of curses by delineating how excommunicants must be treated if they should die in their sin:

This passage presents exclusionary burial as a corollary to excommunication, which would ensure that an unrepentant sinner would be deprived of salvific rites and privileges in death as well as in life. The rhetoric of the Reims formula was adapted by Regino of Prüm (died 915), who included four excommunication formulae in his canon law collection, the most terrible (“terribilior”) of which echoed the Reims formula: excommunicants were to “be given an ass's burial and be placed on a dung-heap upon the face of the earth.”Footnote ⁴² Regino's succinct phrasing would subsequently be reproduced in redactions of the Romano-German Pontifical, as well as in the canonical compilations of Burchard of Worms, Ivo of Chartres, and Gratian.Footnote ⁴³ These later adaptations follow Regino's example by making no reference to the body's use as an example to the living (a departure from the Reims formula) but treating exclusionary burial simply as a consequence of excommunication. Another early rite, falsely attributed to Pope Leo VII and likely produced in the 940s, goes into greater detail about the treatment of dead excommunicants: “their cadavers shall be food for all the birds of the air and the beasts of the land,” for “if they will not repent, we close heaven and we deny the earth for burial.”Footnote ⁴⁴ As evocative as this rhetoric may be, it must be noted that instructions about corpses and their disposal were not standard in early excommunication rites. Only one of four formulae recorded by Regino and only two of six preserved in Romano-German Pontifical manuscripts mention the treatment of excommunicated bodies after death.Footnote ⁴⁵ Moreover, when they do appear, references to dead bodies are relatively brief. In Regino's terribilior rite and the “Pope Leo” formula, as in the earlier Reims formula, only one or two phrases are dedicated to burial, appended to much longer explications of how an excommunicant must be punished in life.

Although excommunication formulae proliferated in Continental canon law and liturgical collections from the early tenth century, it is important to recognize that none is attested in any English manuscript before the mid-eleventh century.Footnote ⁴⁶ One of the earliest, added to blank folios of the eleventh-century Lanalet Pontifical, echoes the language of Continental curses: excommunicated sinners who persist in their wrongdoing “shall not have any burial other than one for asses.”Footnote ⁴⁷ This is the only formula recorded in England before the twelfth century that mentions the excommunicant's corpse.Footnote ⁴⁸ Instead, the majority of early English rites frame exclusion in general terms. For example, one post-Conquest formula pronounces the following:

There are intimations of physical penalties here. The sinner's body will be destroyed along with his soul, and he is to be expelled from — literally, placed beyond the limits of (“eliminamus”) — the Church and its members. Yet although this prescription might well include unconsecrated burial, there is no direct mention of how the excommunicant's corpse should be disposed of. Another contemporary formula provides further detail about the parameters of exclusion:

Again, there are restrictions here which could apply to dead excommunicants — they are denied access to churches and the clergy is forbidden to intervene with God on their behalf — but there are no explicit instructions concerning corpses. Other formulae offer greater geographical specificity, declaring that excommunicants must not enter the boundaries (“liminibus”) of churches, but while this spatial designation could well encompass consecrated churchyards, there is no straightforward prohibition against burial.Footnote ⁵¹ Elsewhere, instructions appended to excommunication rites require that excommunicants not be recognized as Christians:

The redesignation of the excommunicant as a pagan (“pagano”) might prevent him from legitimately being buried in hallowed ground, based on the criteria provided in cemetery consecration rites, but this connection is not articulated in the text.Footnote ⁵³

A similar pattern is evident in sanction clauses in Anglo-Saxon charters, which provide earlier evidence for excommunication in England and anticipate the exclusionary rhetoric of eleventh-century liturgical formulae. For example, an individual who violated the terms of a charter could be “alienated from the fellowship of the holy church of God, and from the body and blood of our lord Jesus Christ” or “expelled and excommunicated and tortured without end, now and later and continually into eternity,” unless he repented and made amends for his offense before death.Footnote ⁵⁴ Although some sanction clauses include graphic details about posthumous torment, these focus on the offender's spiritual body rather than his earthly remains: a violator might be “damned and buried in the lowest hell,” he might “lie forever in the bottomless pit of hell,” or he might have “his life shortened and his dwelling be at the bottom of hell.”Footnote ⁵⁵ The fate of an excommunicant's mortal body was not a significant concern for drafters of sanction clauses. Remarkably, the clearest pre-Conquest instructions for denying consecrated burial to an excommunicant do not come from any charter or liturgical rite, but from an Old English homily, committed to parchment in the second half of the eleventh century:

This vernacular passage is contemporary with the earliest excommunication formulae recorded in England, but it postdates by more than a century the first prescription for unconsecrated burial in Anglo-Saxon royal law.

Given how rarely English religious texts explicitly discuss the disposal of excommunicated bodies, as well as the late — usually post-Conquest — date of these sources, we cannot take for granted that early legal prescriptions for unconsecrated burial were informed by established ecclesiastical custom. Although exclusionary and deviant burials are well attested in the archaeological record, the ideologies behind these practices in the tenth and eleventh centuries may not be as straightforward as they seem.Footnote ⁵⁷ While there can be little doubt that religion was central to tenth-century understandings of unconsecrated burial, since it was the expansion of hallowed ground and increased use of churchyard cemeteries that gave legal prohibitions their weight, there is no clear evidence that posthumous exclusion was used in England as an ecclesiastical penalty before the eleventh century. This is not to suggest that the clergy were not involved in promoting the practice. High-ranking ecclesiastics helped conceive, draft, and promulgate royal law throughout the later Anglo-Saxon period, and these advisors surely endorsed the inclusion of unconsecrated burial in royal legislation.Footnote ⁵⁸ Nevertheless, the clergy's approval does not prove that this was an existing ecclesiastical custom. As the evidence below will demonstrate, it is more probable that unconsecrated burial was first conceived as a stand-alone punishment in royal law; it came to be deployed by religious authorities only some decades later.

The Mid-Tenth Century: Policies of King Æthelstan (r. 924/5–939) and King Edmund (r. 939–946)

The earliest mention of unconsecrated burial in any English text appears in the legislation of Æthelstan, in the final clauses of his longest lawcode, known conventionally as II Æthelstan. This is among the earliest pieces of legislation issued in Æthelstan's name and, like his later lawcodes, was compiled at a council of ecclesiastical and lay advisors.Footnote ⁵⁹ The clauses on burial read as follows:

This clause establishes two consequences for swearing a false oath. First, the perjurer would suffer a loss of legal status, since he would no longer be qualified to render oaths in judicial settings.Footnote ⁶¹ This means that he could not testify in his own defense, should he be accused or charged of wrongdoing in the future, nor could he serve as a witness in other cases. A later law of Æthelstan requires all oath-worthy members of local communities to be prepared to testify in judicial proceedings, and a convicted perjurer would thus be disqualified from full participation in his legal community.Footnote ⁶²

The second consequence is a conditional one: if the convicted perjurer fails to undertake penance within thirty days, he will not be allowed burial in any consecrated cemetery. The penitential requirement affirms that oath-breaking was not simply a violation of royal law but also an offense against God.Footnote ⁶³ Prescriptions for penance were not unprecedented in Anglo-Saxon royal legislation, but II Æthelstan 26–26.1 go into greater practical detail than any earlier lawcode by delineating the roles of various clergymen and establishing a thirty-day timeframe for the offender to proclaim his intention to atone.Footnote ⁶⁴ Although decisions about the appropriate penance are left to the discretion of the clergy — the offender must do “as his confessor assigned” — the logistical focus of these clauses suggests that Æthelstan and his advisors were using royal law to standardize a religious process and ensure compliance among both the clergy and laity.Footnote ⁶⁵ Accordingly, if a confessor should neglect to report a perjurer's atonement to the bishop, he must compensate for being derelict in his duty.Footnote ⁶⁶ If a convicted perjurer should fail to undertake penance in the required thirty-day period, he must be punished by being denied a consecrated grave at his death.

This formulation firmly links an offender's mode of burial with his willingness to undertake penance in a timely manner. Yet while this punishment is only prescribed for those who refuse devotional action, it does not follow that prohibition from a consecrated cemetery was tantamount to excommunication or that it was even an ecclesiastical penalty. Three aspects of II Æthelstan 26–26.1 indicate that unconsecrated burial fell within the jurisdiction of secular authorities, not their ecclesiastical counterparts. First, the burial prohibition is framed as a restriction on geographical space: “nor within any hallowed cemetery shall he lie” (“ne binnon nanum gehalgodum lictune ne licge”). Although consecrated burial must have been a realistic and desirable possibility for laypeople during Æthelstan's reign, the practice was far from universal in the early tenth century, and it is unlikely that the clergy exerted uniform control over burials.Footnote ⁶⁷ II Æthelstan 26 denies an unrepentant oath-breaker an earthly privilege — burial in a desirable location — and imposes a restriction on his physical body, actions which were within the power of secular authorities to implement. Second, the requirement that the bishop give testimony (“gewitnesse”) about the oath-breaker's penance means that he was not the person responsible for imposing or nullifying a sentence of unconsecrated burial. The bishop is presented as the only person qualified to confirm a perjurer's penance, and he must testify to that fact — presumably at some sort of judicial hearing — in order to finalize the punishment. If this were an ecclesiastical case, rather than a secular one, the bishop would surely pronounce this sentence himself instead of merely testifying as a witness. Finally, the law's provision of a strict thirty-day window for a perjurer to begin penance is more consistent with royal policy-making than with ecclesiastical reasoning. Conditional penalties governed by time limits are attested in earlier Anglo-Saxon legislation, as well as in Æthelstan's other lawcodes.Footnote ⁶⁸ By contrast, ecclesiastical calls for spiritual repentance did not come with an expiration date: a clergyman might argue that it was better to begin penance as soon as possible, so as not to compound one's guilt through obstinacy, but recalcitrant sinners were nevertheless encouraged to seek and receive absolution later in life, even on their deathbeds.Footnote ⁶⁹ II Æthelstan 26–26.1 do not present the oath-breaker's death as imminent, which means that he could potentially turn to penance of his own accord after the first month had passed. However, even if a convicted perjurer were absolved of his sin after a delay, his sentence of unconsecrated burial would apparently still stand. Because posthumous exclusion is presented as an intractable punishment rather than a spiritual remedy, it is reasonable to conclude that this sentence was imposed and administered by secular, not ecclesiastical, authorities.

Æthelstan's successor Edmund built on this example, prescribing unconsecrated burial twice in his laws. Both references to the practice appear in I Edmund, a code concerned with religious matters. Although this text has been likened to canon law, it was promulgated by a mixed council of secular and ecclesiastical magnates convened by Edmund; accordingly, I Edmund should be understood as a document produced and disseminated under royal authority, whose statutes were enforceable by either secular or ecclesiastical actors, depending on the context.Footnote ⁷⁰ The first clause, which focuses on sexual misconduct among the clergy, sets ecclesiastical and secular penalties for those who fail to live chastely, proclaiming:

Two distinct sets of punishments are prescribed here. The first is an unspecified canonical penalty, the earliest direct reference to a canon law sentence in English royal legislation. The second requires offenders to forfeit their property and be buried in unconsecrated ground, unless they repent.Footnote ⁷² It appears that this clause envisions two systems of justice at work, in cases of sexual misconduct among the clergy. The canonical punishment cited in the first part of the clause would undoubtedly be imposed by ecclesiastical authorities, while the financial and physical punishments listed in the concluding sub-clause would presumably be administered as secular justice.Footnote ⁷³

The response to clerical sex in I Edmund 1 spans two jurisdictions, each with its own set of consequences. Although the canonical penalty is not described explicitly, it likely required that unchaste clergy be deposed from holy orders and then undertake a course of penance.Footnote ⁷⁴ This hypothesis is supported by the fact that the second, secular punishment treats clerical offenders like ordinary laypeople, subject to earthly justice and punishments; this would be reasonable if they had already been stripped of their ecclesiastical status.Footnote ⁷⁵ In this context, the clause's final directive — “they will forfeit their worldly possessions and a hallowed burial place, unless they repent” — seems designed to motivate sinful clergy to complete their assigned penance, even once they had been removed from holy orders. The conditional structure of this sentence is quite similar to that of II Æthelstan 26: a sinner will only suffer secular consequences if he refuses ecclesiastical correction. Edmund's innovation is to add a financial penalty — the forfeiture of earthly goods — to the physical punishment of unconsecrated burial.Footnote ⁷⁶ Perhaps this was a practical consideration, meant to prevent obstinate ex-clergy from living comfortably if they spurned the Church and persisted in a sinful relationship. In any case, I Edmund adopted the same approach toward unconsecrated burial as II Æthelstan, using the threat of posthumous punishment to incentivize penance before death.

The second reference to unconsecrated burial in I Edmund is also concerned with unrepented sexual misconduct, this time among the laity:

Once again, unconsecrated burial is not prescribed for the violation proper (illicit sex) but for the perpetrator's refusal to atone for it; the only direct consequence for committing adultery or having sex with nuns is a course of penance. This clause places sexual misconduct entirely within ecclesiastical jurisdiction, yet it was still deemed necessary to reinforce penitential sentences with the threat of bodily punishment. This policy should thus be understood as an attempt to buttress ecclesiastical policy with the force of secular justice. The same logic is applied to homicides in a comparative reference in I Edmund 4: unrepentant sexual offenders would not merit consecrated burial “any more than a killer.” Homicides are not the grammatical subject of this clause, and given the seemingly off-hand nature of this remark, it should probably be understood as an addendum to the preceding decree:

I Edmund 3 follows the same pattern as the clauses governing sexual offenders: it is a perpetrator's refusal to submit to penance that triggers punishment in the secular sphere — in this case, exclusion from the king's presence (“neawiste”).Footnote ⁷⁹ I Edmund 4 extends this penalty to include unconsecrated burial if the killer has still not repented at the time of his death.Footnote ⁸⁰

Read together, I Edmund 1 and 4 indicate that unconsecrated burial was understood somewhat differently than it had been a generation earlier, in the reign of Æthelstan. In II Æthelstan 26, the prohibition focuses on geographical space: the dead offender must not be placed within the bounds of a consecrated cemetery (“ne binnon nanum gehalgodum lictune ne licge”). Fundamentally, this provision governs the actions of the living, delineating where they are permitted to inter an offender's corpse. In I Edmund, by contrast, consecrated burial is depicted as a privilege that can be revoked: the deceased may forfeit (“þolian”) or be deemed unworthy (“ne… wyrðe”) of a hallowed resting place. This new phrasing shifts responsibility from authorities to the offender. Where II Æthelstan simply excludes the dead from a communal space, I Edmund indicates that they failed to meet the criteria required for admission — that is, they disqualified themselves through their own sinful actions and refusal to repent. This rhetorical shift may reflect the widening expectation, across the tenth century, that dead Christians would be committed to consecrated ground; denying an offender a hallowed grave would bar him from a practice that was becoming increasingly common for laypeople. Yet the purpose of these clauses, in both Edmund's and Æthelstan's codes, was to regulate behavior among living perpetrators. The threat of unconsecrated burial would be effective only if an unhallowed grave were recognized as a worse option than penance, and the repeated appearance of this choice in tenth-century lawcodes suggests that it was.

This discussion raises two questions about the motivations behind Æthelstan's and Edmund's legal prescriptions for unconsecrated burial: why was it the kings’ responsibility to bring offenders to penance, and why did their legal prescriptions focus on these particular sins? Æthelstan and Edmund were not the first rulers to issue religious regulations, and such initiatives were justified by the notion that Christian kings were obliged to protect and cultivate the Church. It is reasonable that their penitential laws were designed to place the weight of secular enforcement behind ecclesiastical requirements, and this might have been considered especially necessary in cases of perjury, sexual offense, and homicide, which could undermine the integrity of the Christian community. Yet in addition to being serious sins, these offenses were socially disruptive. Adultery devalued legitimate marriages; clerical sex threatened the credibility of the institutional Church; homicide damaged the stability of communities; and swearing false oaths undermined legal order. Moreover, these offenses had the potential to incite further conflict in the secular sphere, for victims of these actions (or their allies) might seek to retaliate against the perpetrators. In such a scenario, an offender's acceptance of penance — which required them to confess their guilt — could serve as a first step toward reconciliation with an injured party.

I have argued that unconsecrated burial functioned as a secular punishment in II Æthelstan and I Edmund, rather than an ecclesiastical penalty imposed by the clergy. Although the practice is invariably connected with the offender's spiritual state, it would be pushing the evidence too far to equate unconsecrated burial with excommunication in these texts. Of course, bishops participated in the deliberations behind these lawcodes, and it is significant that the threat of unconsecrated burial would function in much the same way as prescriptions for medicinal excommunication: both were designed to bring an offender to repentance, so that he would not be expelled from the Christian community or forfeit the benefits to which its members were entitled.Footnote ⁸¹ Importantly, though, excommunication was prescribed elsewhere in I Edmund, and it stands to reason that unconsecrated burial — which was always assigned independently of excommunication in early tenth-century royal law — was understood as a distinct sentence.Footnote ⁸² Accordingly, I conclude that in the laws of Æthelstan and Edmund, burial restrictions were deployed as a secular alternative to excommunication, to be imposed by lay authorities in order to combat spiritual obstinacy. Although consultation with religious authorities would be necessary at various stages, and although it is conceivable that a secular sentence of exclusionary burial might coincide with an ecclesiastical pronouncement of excommunication, it appears that decisions concerning the disposal of bodies fell within the sphere of secular authority.

The Later Tenth Century: Policies of King Edgar (r. 959–975) and King Æthelred II (r. 978–1016)

By the end of the tenth century, unconsecrated burial had assumed a different purpose in royal law. Where the legislation of Æthelstan and Edmund only prescribed this penalty as an alternative to penance for offenders who refused to atone for their sins, mentions of unconsecrated burial in Edgar's and Æthelred's decrees make no reference to religious considerations. Under these kings, unconsecrated burial was presented only as punishment for secular wrongdoing, and there was no longer an option for offenders to reverse or mitigate their sentence through penance. Yet even as they moved away from earlier approaches, Edgar and Æthelred began introducing policies that normalized the use of consecrated churchyards. Their legislation did not regulate funerary practice directly, but rather addressed financial considerations associated with churchyard burial. Edgar established the value of tithes due to different types of churches: those with cemeteries of their own were entitled to more substantial payments.Footnote ⁸³ In a similar categorization, Æthelred established fines due to different types of churches should their protection be violated (“griðbryce”): small churches with graveyards were entitled to greater compensation than those without.Footnote ⁸⁴ Æthelred's laws also introduced the concept of soul-scot, a monetary payment rendered at the open grave to the deceased's church.Footnote ⁸⁵ These three laws took for granted that burial would be conducted under ecclesiastical supervision and that possession of a consecrated graveyard contributed to the status (and revenue) of individual churches.

Although these royal laws clearly connected burial with ecclesiastical dues and privileges, they never mandated particular religious practices — presumably because such matters were within the Church's purview, not the king's. This secular focus extended to Edgar's and Æthelred's prescriptions for unconsecrated burial. There are four extant references to these kings legislating the practice, one from Edgar's reign and three from Æthelred's. The earliest of these is not preserved in any surviving lawcode but was attributed to Edgar in a Latin hagiography produced in the 970s, either during the king's reign or shortly after his death. Lantfred's Life of St. Swithun reports the following:

This hagiographical account must be approached cautiously, as it introduces the story of an innocent man wrongly punished with many of these mutilations, only to be healed of his injuries by the intervention of St. Swithun. Nevertheless, it is reasonable to assume that this was in fact a policy enacted under Edgar, even though it is not preserved in surviving copies of the king's written law; the same set of mutilations appeared some fifty years later in Cnut's legislation, suggesting that these comprised a codified punishment in the late tenth and early eleventh centuries.Footnote ⁸⁷ Yet in Cnut's laws, this is construed as a non-lethal penalty which would allow an offender to live long enough to repent of his sins and save his soul; there is no mention of his death or his corpse.Footnote ⁸⁸ In the initiative attributed to Edgar, by contrast, offenders were to be subjected to a drawn-out death penalty, in which human agents would mutilate the body to the point of death and then let nature take its course. The offender is not explicitly forbidden from receiving consecrated burial, according to Lantfred, but the mandate to abandon the dying man in a field and leave him to be consumed by wild animals precludes the possibility of a hallowed grave.Footnote ⁸⁹ There is no mention of saving the convict's soul in this formulation, and there does not seem to be any opportunity for him to reconcile with the Church before his sentence is imposed.

This represents a sharp departure from Æthelstan's and Edmund's legislation, where the threat of an unhallowed grave was used as an incentive for living offenders to undertake penance. Moreover, unlike the earlier kings’ laws on unconsecrated burial, Edgar's policy prescribes this punishment for offenses that would have a relatively minor impact on an offender's soul. The actions which merited posthumous exclusion in Æthelstan's and Edmund's laws — perjury, homicide, and sexual misconduct — were serious sins in their own right, which could lead to a perpetrator's excommunication or damnation if he failed to repent. By contrast, Edgar's mandate is concerned with theft and robbery, offenses which are not construed as mortal sins in Anglo-Saxon penitentials.Footnote ⁹⁰ On the contrary, penitential literature suggests that theft might incur relatively little sin and require minimal atonement, if the perpetrator's circumstances were truly desperate.Footnote ⁹¹ Although it is possible that theft and robbery were understood as forms of oathbreaking, if they were directly prohibited by a loyalty oath that all subjects were required to swear, this rationale is not articulated in Lantfred's text.Footnote ⁹² Instead, this punishment is described as a deterrent against wrongdoing (“ad deterrendos quosque malos”), to be implemented by secular judges at the direction of the king. As presented by Lantfred, this was not a religious initiative but a secular one.

Three further provisions on criminal burial appear in the early laws of Æthelred, issued in the period from 978 through 1007, before Archbishop Wulfstan began drafting the king's legislation in 1008. The first, preserved in I Æthelred, is concerned with bringing traitorous individuals to justice:

This sequence focuses on offenders who cannot be brought to justice in an ordinary manner, because they lack surety — that is, protection offered by someone who assumes responsibility for the accused's future behavior and guarantees his participation in the judicial process. Once again, it is conceivable that this punishment was tied to oathbreaking, if the offense was deemed to have violated a subject's oath of loyalty.Footnote ⁹⁴ However, as the clause is written, it is not the perpetrator's faithlessness which leads to unconsecrated burial but his inability to secure appropriate surety. After being taken into custody (under the reeve's surety) and brought to justice, he would require further surety — from an ally in good legal standing — in order to escape a death sentence, should he be convicted. An earlier clause of I Æthelred mandates that every freeman must have a trustworthy surety, and 4.1 is concerned with serious offenders who fail to meet this requirement: if they cannot secure the support of an upstanding member of the community, they are deemed unworthy of life or Christian burial.Footnote ⁹⁵ The following subclauses continue to confirm that the key problem is disregard for proper procedure.Footnote ⁹⁶ In 4.2, anyone who attempts to stop the offender's punishment would share his fate of death and unconsecrated burial, not because he participated in the offender's original violation but because he sought to undermine a mandated legal procedure. In 4.3, anyone who fails to enact the required procedures would be liable for a monetary fine due to the king, for disobeying royal law and disregarding a collective agreement.Footnote ⁹⁷ Although death sentences are reserved for those offenders who actively subvert the law (as in 4.1–4.2), rather than those who passively refuse to fulfill it (as in 4.3), this sequence is primarily concerned that judicial procedures be properly followed.

In this construction, burial is one element of a multi-staged physical punishment. Unlike earlier legislation, in which unconsecrated burial was a punishment in its own right, I Æthelred 4.1 presents the disposal of an offender's corpse as a corollary to his death sentence, not as a stand-alone penalty.Footnote ⁹⁸ Furthermore, this clause diverges from the diction of earlier Old English laws, notably in its lack of reference to physical space. In the first half of the tenth century, II Æthelstan prohibited unrepentant oathbreakers from burial in “any consecrated cemetery” (“nanum gehalgodum lictune”), while I Edmund decreed that unrepentant killers and sexual offenders would forfeit a “consecrated burial place” (“gehalgodre legerstowe”).Footnote ⁹⁹ I Æthelred 4.1 construes this fate somewhat differently, omitting any reference to consecrated ground and focusing instead on undesirability of the offender's mode of burial: he is to be “laid” or “buried in foulness” (“on ful lecge”). This diction does not exclude the offender from any particular site nor suggest a loss of privilege; neither does it define the penalty in relation to normative practice, as earlier lawcodes had done. Instead, I Æthelred 4.1 creates a new category of undesirable burial. It is not entirely clear what “buried in foulness” indicates, however. One possibility is that such burial was defined by location. Old English ful was used in tenth- and eleventh-century charters to describe specific sites defined by pollution or some other unpleasantness: in addition to numerous references to unclean water, the term is applied to pits, ditches, roads, and lands.Footnote ¹⁰⁰ The charters cite these landmarks as territorial boundaries, areas which were consistently used for deviant burial in the pre-Conquest period.Footnote ¹⁰¹ Perhaps the condemned bodies envisioned in I Æthelred 4.1 would have been relegated to sites that were not simply unconsecrated but widely recognized as unclean — topographical features or burial places designated as ful.Footnote ¹⁰²

It is also possible that “laid” or “buried in foulness” concerned the treatment of the body. The phrase may have been understood as a mandate to desecrate or dishonor the condemned corpse, perhaps in one of the modes attested in execution cemeteries, or perhaps by abandoning it to scavengers, as prescribed in Edgar's anti-theft policy. This interpretation of ful would foreground the body's disintegration: decomposition was ordinarily concealed by timely interment in a closed grave, but for a dead offender, corruption would become the defining feature of his mortal remains.Footnote ¹⁰³ Alternatively, on ful lecge could mean that the deceased would be “buried in guilt,” without a chance to make peace with the parties he had wronged or repent of his sins.Footnote ¹⁰⁴ In such a scenario, the condemned might be deemed unworthy of the privileges which the Church ordinarily extended to the dead, including consecrated burial.Footnote ¹⁰⁵ Such an outcome is not mentioned explicitly, however, and there is no direct discussion here — or in any other clause of I Æthelred — of religious belief or practice.Footnote ¹⁰⁶ Æthelred's early laws conspicuously omit the religious language and policies that characterized the legislation of earlier kings, and I argue elsewhere that this rhetorical change was meant to create a clearer separation between secular and ecclesiastical jurisdictions.Footnote ¹⁰⁷ By avoiding any reference to penance or hallowed ground, which figured in earlier tenth-century laws, I Æthelred 4.1 presents exclusionary burial as a secular response to an earthly offense — an addendum to the death penalty, rather than an incentive to spiritual repentance.

A possible outcome of such treatment is envisioned in III Æthelred, which establishes a procedure by which a thief's survivors might exonerate him after his conviction and death. This sequence assumes that the thief has already been killed:

The vocabulary here is standard for depictions of the ordeal, in which an individual able to refute a charge is deemed “clean” (“clæne”), while one who cannot is deemed “foul” (“ful”).Footnote ¹⁰⁹ According to these clauses, attempting to exonerate an executed thief would require not only physical suffering — the relative would have his hand burned by hot iron or water during the ordeal — but also a substantial financial risk, and it is reasonable to question why a relative would undertake a painful and potentially expensive exercise on behalf of a dead person.Footnote ¹¹⁰ These clauses imply that a family would be motivated by a desire to move their kinsman's body: if they fail at the ordeal, the deceased must continue to “lie where he is buried” (“licge þar he læg”); if they are successful, they can exhume — literally “take up” (“nime upp”) — the body and assume possession of it. The language of this clause indicates that the condemned would have been interred in a way unacceptable to his survivors, likely in an execution cemetery or some undesirable site. Removing an innocent body from a ful burial (like the one prescribed in I Æthelred 4.1) could restore the honor of the dead man and his family, after the degradation of an execution, and enable a normative Christian burial in consecrated ground.

While it is logical that the family of a wrongly executed person would wish to repair his reputation and help advance his salvation, the process of posthumous exoneration outlined in III Æthelred 7–7.1 suggests that there may have been additional considerations that justified the physical and financial risks associated with the ordeal. The procedure for exoneration is much more strenuous under Æthelred than under earlier royal law, and this implies that family members were now being discouraged from seeking to redeem an executed relative.Footnote ¹¹¹ Perhaps there was more at stake than simply the fate of a body in such cases. Forfeiture of property was an attested penalty for theft across the tenth century, and it is possible that a thief's heirs would be deprived of their livelihood once he was convicted.Footnote ¹¹² III Æthelred 7–7.1 make no mention of forfeiture, but it is conceivable that success at the ordeal would allow the deceased's survivors to seek the restoration of their property. Although an unjust execution could not be reversed, the recovery of a wrongly convicted body would confirm that the original judgment was faulty and might serve as a first step toward challenging other aspects of an unjust sentence. In any case, it is clear from the scenario envisioned in III Æthelred 7–7.1 that “foul” burial was not designed to bring a living offender to penance but to affirm his guilt and enhance his physical punishment.

A final questionable reference to undesirable burial practice appears in IV Æthelred 4, preserved uniquely in a twelfth-century Latin translation.Footnote ¹¹³ According to this clause, an individual killed in the act of resisting justice after committing forcible entry (“hamsocnam”) or in the midst of an assault on a royal road is to be buried (“iaceat”) in a particular way: “in ungildan ækere.”Footnote ¹¹⁴ The precise meaning of this vernacular phrase is unclear. It is rendered “in an unhonoured grave” in the text's standard translation, but this is a rather loose reading of the vocabulary.Footnote ¹¹⁵ The term “ungildan” refers to the fact that the deceased had forfeited his right to wergild through his illicit actions, while “ækere” — which may be translated as “field” or “land” — gives the phrase a geographical focus.Footnote ¹¹⁶ It is conceivable that this clause is relegating offenders to inferior burial places, reserved for those who are not entitled to wergild payments if they are killed.Footnote ¹¹⁷ Alternatively, this diction could represent an imprecise rendering by a Latin translator of the Old English phrase licgan ungilde, “let him lie without compensation,” which appears elsewhere in Æthelred's laws.Footnote ¹¹⁸ As written, this clause diverges from Æthelred's other prescriptions for exclusionary burial, in that the offenses it punishes — house-breaking and assault on roads — do not merit the death penalty outright. On the contrary, an offender who has recourse to violence but is not killed in the act is required only to render monetary compensation.Footnote ¹¹⁹ Still, the burial restrictions required by IV Æthelred 4 align with the king's other laws on exclusionary burial: the offender's posthumous treatment is presented as an undesirable consequence of death, but there is no explicit prohibition against his interment in consecrated ground.Footnote ¹²⁰

Edgar's and Æthelred's policies built upon earlier tenth-century precedent: whatever other indignities foul, unclean, or unredeemed burial may have encompassed, these sentences surely entailed exclusion from Christian cemeteries. Nevertheless, the later tenth-century texts departed from earlier laws in three significant ways. First, these policies assigned exclusion from hallowed ground for secular offenses that were not construed as sinful. Where earlier kings reserved unconsecrated burial for offenders who willfully endangered their souls by refusing to repent of major sins, Edgar and Æthelred prescribed this penalty for thieves, as well as for problematic individuals whose actions disqualified them from participating in judicial processes and remedies. Although it is possible that such offenders were deemed to have violated a loyalty oath, their actions were never described as infidelity or oathbreaking, which might justify a religious penalty alongside a secular one. Instead, deprivation of normative Christian burial was presented as a secular punishment for secular violations. Second, unconsecrated burial was not paired with penance in Edgar's and Æthelred's policies, as it was in Æthelstan's and Edmund's laws. It was never presented as a conditional penalty, designed to motivate an offender to spiritual reconciliation, but as a straightforward consequence of wrongdoing, with no apparent possibility for mitigation before death. The objective of unconsecrated burial was no longer redemption but punishment. Third, unconsecrated burial was prescribed only for convicts whose death was certain, under Edgar and Æthelred; it was not a stand-alone penalty to be assigned whether or not the offender's death was imminent, as in the laws of their predecessors. This does not necessarily mean that unconsecrated burial was an automatic component of all death sentences, since most references to capital punishment in these kings’ laws make no mention of burial.Footnote ¹²¹ However, for the first time in Anglo-Saxon royal law, the posthumous fate of a body was determined directly by the mode of death: burial was only restricted for those who were executed or who died while resisting justice. Although the dishonorable disposal of such corpses may have already been common before Edgar's and Æthelred's reigns, it was only in the later tenth century that this practice began to be codified in legal texts. It does not follow, though, that the “foul” disposal of bodies would effect damnation — or that this was the intention of any tenth-century law. Although the denial of burial privileges may have been perceived as detrimental, it was never directly equated with excommunication in this period and was consistently presented as a punishment imposed by secular authorities, with no reference to ecclesiastical ritual.

Tenth-Century Charters

Alongside the evidence for policies on unconsecrated burial in royal law, there is a small group of tenth-century charters that describe the implementation of this punishment. One was produced in Edgar's reign (S1447) and one in Æthelred's (S883); there are also references to the practice in two charters dated to Æthelstan's reign, although these were likely produced in the mid- or later tenth century (S414, S415). Collectively, these documents offer insight into how unconsecrated burial functioned in judicial contexts, under the jurisdiction of kings and laymen.

The only vernacular charter in this group, S1447, records a land dispute adjudicated by Edgar, probably in the 960s.Footnote ¹²² After tracing the history of an estate at Sunbury, ownership of which is being confirmed in this document, the text recounts the fate of its former owner, Ecgferth.Footnote ¹²³ During Edgar's reign, Ecgferth entrusted his land to Archbishop Dunstan of Canterbury, with the king's approval, to ensure that his wife and children would be provided for after his death. When Ecgferth died, however, his property was confiscated by the king, apparently as punishment for an unspecified offenses. When Dunstan objected and claimed the property on behalf of Ecgferth's survivors, Edgar refused to restore it:

Dunstan then tried another approach, offering to pay Ecgferth's wergild (“wer”) to the king in exchange for the return of the property. Again, Edgar declined, referring the case to the ealdorman to whom he had granted Ecgferth's forfeited estates:

There is no further information on the fate of Ecgferth's body. However, the charter states that six years after these events, Dunstan purchased Ecgferth's estates from Ælfheah and became their legitimate owner.

The forfeiture of Ecgferth's property and his deprivation of a “clean grave” are both presented in S1447 as consequences of a posthumous judgment against him. The nature of his offense is not stated, but his twofold punishment has precedent: a generation earlier, I Edmund 1 prescribed forfeiture and unconsecrated burial for unchaste clergy who refused to repent.Footnote ¹²⁶ Yet Ecgferth was not a clergyman, and the evidence against him appears to have involved violence rather than sex, since it was reportedly his possession of a sword that led to his conviction. Ecgferth's situation more closely resembles the scenario imagined in IV Æthelred 4, in which burial restrictions are imposed upon individuals killed while perpetrating a violent offense.Footnote ¹²⁷ Moreover, Dunstan's efforts on behalf of Ecgferth's survivors evoke the provisions of III Æthelred 7–7.1, which envision family members attempting to exonerate a dead criminal. Nevertheless, Dunstan was not seeking to prove Ecgferth's innocence, since he offered monetary compensation for his violation rather than attempting to exonerate him through a judicial oath or ordeal; his objective was only to recover the forfeited estates, which he claimed as trustee.Footnote ¹²⁸ It seems that Dunstan's efforts were rooted in a legal question: was property in fact subject to forfeiture if it had been legitimately entrusted to another party before any offense was committed? According to this charter, Edgar's answer was yes, and his judgment meant that Dunstan would have to negotiate directly with the property's new owner, Ælfheah. It would take six years for the two to reach a settlement concerning the property, but when the archbishop finally bought back the forfeited estates, he appears to have granted Sunbury to Ecgferth's widow, thereby fulfilling his original agreement with the deceased.Footnote ¹²⁹

It is possible, though, that Dunstan did recover Ecgferth's body in the aftermath of his death. The charter presents Edgar's suggestion — that the archbishop offer to pay Ælfheah for the corpse — as a direct quotation, phrased in the first person. The king's reference to Ecgferth's undesirable burial may have been remembered (or invented) years after the incident because this was precisely how events unfolded.Footnote ¹³⁰ This suggestion must, of course, remain speculative. However, if Ecgferth was in need of a clean grave (“clænum legere”), he must have been buried at the time of his death in an manner that was considered unclean. The terms clæn and ful are often paired in Old English law and used to depict innocence and guilt; the clean (“clænum”) grave of S1447 rhetorically anticipates the foul (“ful”) burial prescribed a generation later, in Æthelred's laws.Footnote ¹³¹ Yet where III Æthelred decreed that the bodies of condemned thieves could be relocated only if they were fully exonerated, Edgar indicated that Ecgferth's body could be acquired with monetary payment. The king thought it reasonable that Dunstan offer Ecgferth's wer — a fine or payment whose value was determined by its subject's social status — and this would have been a substantial sum, perhaps as much as £60.Footnote ¹³² Significantly, this proposition implies that Dunstan, the archbishop of Canterbury, had no inherent right to claim Ecgferth's body for Christian burial.Footnote ¹³³ Instead, possession of the body is presented in S1447 as corollary to a property dispute, to be negotiated with the ealdorman who held jurisdiction over the case. All parties evidently understood that Ecgferth's mode of burial was a penalty which could be mitigated with payment to a lay authority, implying that deprivation of a “clean” grave was a material punishment for an earthly crime.

The nature of Ecgferth's offense is never explained, however. S1447 asserts that he drowned, but the charter never states whether he died accidentally or whether he was killed while committing a violation. Still, two things are clear. First, his punishments were discrete, separable, and negotiable. If Ecgferth died in the midst of an illicit act, as seems probable, the relegation of his body to an unclean grave may have been automatic — but it was also reversible, if certain conditions were met. Nevertheless, the recovery of his body would not affect the fate of his forfeited property, which would remain in the possession of its new owner, according to Edgar's judgment. The mitigation of one punishment would thus have no impact on the other. Second, there is no indication that Ecgferth's mode of burial was determined by spiritual considerations. There was no apparent opportunity for him to escape his unconsecrated grave by submitting to penance, as the early tenth-century laws allowed, and neither were his survivors and advocates able to recover his body through devotional action (such as commissioning masses or giving alms on his behalf). The only way for his friends to gain access to the body was through a monetary payment equivalent to a legal fine, to be rendered to the ealdorman who held jurisdiction over the entire case (“ealle þa spæce”).Footnote ¹³⁴ Unconsecrated burial is depicted in S1447 as a temporal punishment rather than a religious one, to be imposed and remedied by secular authorities, like any other judicial penalty.

The second late tenth-century charter that describes unconsecrated burial likewise portrays it as a secular punishment. S883 is dated to 995, during the reign of Æthelred.Footnote ¹³⁵ Written in the king's voice, the charter describes how five hides of land at Ardley, Oxfordshire came into Æthelred's possession. The property had belonged to three brothers, who employed a servant who stole a bridle; when the brothers came to their servant's defense, two were killed in the resulting skirmish. The brothers’ land at Ardley was forfeited, but there was disagreement concerning the disposal of their bodies:

This may be understood as a conflict between regional and local authority, with the higher-ranking ealdorman challenging the decisions of the reeves responsible for adjudicating the theft and the ensuing violence.Footnote ¹³⁷ Æthelred was approached to arbitrate the dispute, and the charter frames his decision in terms of his personal relationship with the royal reeve Æthelwig:

This charter is the only extant document to mention Æthelwig, so it is impossible to know the extent of his relationship with the dead brothers or with Æthelred, who referred to him variously in S883 as “my reeve” (“meus prepositus”) and “my thegn” (“meo militi”).Footnote ¹³⁹ Unlike Edgar's charter, which allowed for the possibility of a clean grave in exchange for material payment, Æthelred's charter indicates that the king's judgment was based on empathy rather than financial interest: he was reluctant to grieve Æthelwig, a “dear and precious” (“carus et preciosus”) subordinate. Yet even though his decision is presented as royal mercy or perhaps even religious scruple, the king's reeves were still accused of acting unlawfully (“non recte”). Based on III Æthelred 7–7.1 and IV Æthelred 4, accessories to theft who were killed while resisting justice were to be denied normative Christian burial, and the king's judgment in S883 seems to condone his reeves’ disregard for the law.

The use of explicitly religious language in this charter is noteworthy. Where I Æthelred 4.1 requires dead offenders to be “buried in foulness” (“on ful lecge”), S883 does not use comparable Latin vocabulary. Instead, the charter is concerned with whether or not the offenders ought to be buried “among Christians” (“inter Christianos”). The text records a judicial deliberation — presumably conducted in the vernacular and then rendered into Latin — and it is certainly possible that the participants used an Old English equivalent to this phrase, such as mid cristenra.Footnote ¹⁴⁰ Alternatively, it is conceivable that this diction was a rhetorical choice by the charter's drafter. Perhaps he used more evocative religious language to justify the reeve's grief, or perhaps this was simply a logical rendering of the Old English ful.Footnote ¹⁴¹ Whatever the explanation, this diction clearly links the brothers’ place of burial to their inclusion in the Christian community. It thus appears that Æthelred's early laws merely obscured the spiritual implications of exclusionary burial, rather than effectively dissociating it from religious practice.Footnote ¹⁴² It is no wonder that S883 construes this as a troubling penalty, which could arouse pity in local law-enforcers and clemency in a king.

Despite the emotional affect of this passage, it is worth questioning whether there was more to Æthelred's decision than sympathy alone. It is significant that the king remitted only one element of the brothers’ punishment: the burial restriction was waived, but the forfeiture was fully implemented. As in Edgar's charter, these two punishments are presented as distinct and separable. Likewise, in Æthelred's case as in Edgar's, control over the bodies and property was granted to a single person, in this case, the reeve Æthelwig. The primary purpose of S883 was to confirm his ownership of the brothers’ forfeited estate, which was transferred to him by royal grant.Footnote ¹⁴³ Moreover, Æthelwig apparently faced no penalty for burying the brothers in consecrated ground. It is striking that such preference would be shown to a reeve who was judged to have acted unlawfully. When this episode is read alongside S1447 — in which Archbishop Dunstan proffered significant sums to recover a condemned man's body and property — it is reasonable to hypothesize that Æthelwig also rendered some sort of payment to Æthelred, perhaps to compensate for his disobedience, or to keep the bodies in consecrated graves, or to offset the cost of the granted estate.Footnote ¹⁴⁴ While Æthelwig may well have made an emotional plea before the king, I suggest that the charter's affectionate rhetoric obscures practical negotiations that that enabled the reeve's advancement.Footnote ¹⁴⁵ S883 may reveal a degree of resistance to unconsecrated burial among those who were meant to enforce it, but the text is clear that criminal bodies remained under secular control.

A final, tentative set of examples should be included with the charter evidence for unconsecrated burial: two charters that purport to have been issued in the reign of Æthelstan but were more likely produced in the mid- or later tenth century.Footnote ¹⁴⁶ S414, a grant of land to St. Peter's, Bath, and S415, a grant to Malmesbury Abbey, are each dated 931 and presented in Æthelstan's voice.Footnote ¹⁴⁷ Both charters include the same narrative passage explaining how the lands in question had been forfeited to the crown some years earlier.Footnote ¹⁴⁸ According to this account, a certain Alfred sought to ambush and blind Æthelstan shortly after his father's death in 924, before his accession to the kingdom.Footnote ¹⁴⁹ Once the plot was revealed, Alfred was given a chance to prove his innocence: he was sent “to the church in Rome, where he would defend himself by swearing an oath in the presence of Pope John, and he did this in the presence of the altar of St. Peter.”Footnote ¹⁵⁰ Yet as soon as he had sworn, Alfred collapsed before the altar; he died three days later.Footnote ¹⁵¹ At this point, the pope consulted Æthelstan:

Both charters include this explanation in order to affirm that the king “did not seize the aforementioned lands unjustly.”Footnote ¹⁵³ Rather, they assert that the forfeited property came into Æthelstan's possession “just as all the magnates in the kingdom of the English decided, as well as John, the apostolic pope of the Roman church.”Footnote ¹⁵⁴ As in the charters from Edgar's and Æthelred's reigns, exclusionary burial and forfeiture are presented in S414 and S415 as distinct and separable penalties: the kingdom's magnates requested that Alfred be interred with Christians, but they nevertheless declared his property forfeit, presumably as punishment for treason.

Although these charters cannot reliably be dated to Æthelstan's reign in their current form, it is possible that their account of Alfred's death and burial originated in the 920s or 930s. There is indeed evidence that Æthelstan's accession met with resistance in Winchester between his father's death in July 924 and his coronation in September 925; Alfred was later remembered to have plotted with the king's half-brother, Eadwine, to have Æthelstan blinded in the city.Footnote ¹⁵⁵ The narrative in S414 and S415 is consistent with this version of events, but it attributes the conspiracy entirely to Alfred's jealousy and malice, with no mention of a royal challenger.Footnote ¹⁵⁶ The ætheling Eadwine lived until 933, and it is conceivable that the drafter of this passage sought to downplay the political conflict behind these events by omitting any mention of dynastic in-fighting.Footnote ¹⁵⁷ Æthelstan's concession to his subjects’ request that Alfred's body be buried among Christians could likewise be read as a diplomatic decision, intended to prevent any retaliation for treating a politicized corpse dishonorably. Another striking link to Æthelstan's reign is the fact that the king's laws prohibit consecrated burial for unrepentant perjurers — literally, those who “swear a false oath” (“mannað swerige”).Footnote ¹⁵⁸ S414 and S415 imply that Alfred swore a false oath of innocence, with his sudden illness and quick death revealing his guilt; the claim that this oath was rendered before the pope, at one of the holiest sites in Christendom, implies that divine justice was at work in this case. The charters’ assertion that Alfred was “unworthy” (“indignus”) of burial among Christians is consistent with the logic of II Æthelstan 26–26.1, even if his penalty was ultimately waived by royal fiat.

Despite these considerations, S414 and S415 were almost certainly created in their extant form after Æthelstan's death. Their witness lists appear to have been drawn from a 941 charter issued by Edmund, which has the same proem as S414 and S415.Footnote ¹⁵⁹ In this context, it may be telling that the earliest legislative pairing of forfeiture and unconsecrated burial appeared in Edmund's reign.Footnote ¹⁶⁰ However, the descriptions of exclusionary burial in S414 and S415 more closely anticipate the rhetoric of later tenth-century charters. Where Æthelstan's and Edmund's laws merely prohibit the condemned from hallowed ground, Æthelred's 995 charter explicitly frames this penalty as isolation from other Christians. In S883, Æthelred refers to burial “with Christians” (“cum Christianis”) and “among Christians” (“inter Christianos”); in S414 and S415, Æthelstan refers to burial “with other Christians” (“cum ceteris Christianis”), “with the bodies of Christians” (“cum corporibus… Christianorum”), and “near other Christians” (“ad ceteros Christianos”). In these three charters, descriptions of burial focus exclusively on the deceased's physical proximity to other Christians, not on the quality of the ground or grave. Furthermore, Æthelstan purportedly allows consecrated burial because he is sympathetic to the pleas of the dead man's friends — just as Æthelred would, in S883 — not because the perpetrator had performed penance, as early tenth-century laws prescribed. Alfred is still deemed “unworthy” (“indignus”) of Christian burial, in S414 and S415, but this penalty is overridden by royal mercy. Once again, unconsecrated burial is construed as a temporal punishment, to be imposed or rescinded by secular authority; even the pope reportedly deferred to Æthelstan's decision on whether or not to grant Christian burial.

I would offer two observations based on the analysis of these tenth-century charters. First, there is a divide between Latin and Old English accounts of unconsecrated burial. Edgar's vernacular pronouncement in S1447 is consistent with descriptions in late tenth-century law, in its focus on the quality of the grave: it can be either “clean” or “foul.” By contrast, the Latin descriptions of judgments attributed to Æthelred in S883 and to Æthelstan in S414 and S415 focus on the condemned's isolation from the Christian dead, treating unconsecrated burial as ideological exclusion from a community rather than physical exclusion from a desirable burial site. Certainly, this difference may be explained by rhetorical style: the Latin charters provide narrative accounts of deliberative judgments, while Edgar's declaration in the Old English S1447 — like the tenth-century vernacular laws — is prescriptive. Still, the Latin charters’ consistent descriptions of offenders being posthumously excluded from Christian cemeteries affirm that this punishment was connected to religion, even if the policies set by Edgar and Æthelred made no explicit reference to its spiritual dimensions.

The second observation is that all four of the charters on unconsecrated burial depict the law being superseded by royal clemency, at the petition of the deceased's friends. Posthumous exclusion is repeatedly construed as a distressing punishment, even for individuals whose guilt has been established; some survivors evidently considered it worth the effort and expense to seek consecrated burial for the dead.Footnote ¹⁶¹ Where royal laws establish how unconsecrated burial ought to be prescribed — for certain unrepented offenses in the early tenth century, for certain secular violations in the later tenth century — the charters indicate that this remained a negotiable sentence, at least for those with persuasive advocates and access to high-level authorities.Footnote ¹⁶² These texts confirm that exclusion was a punishment to be assigned or rescinded by secular magnates, but they also reveal a divide between prescription and practice. In each of the charters, advocates of the deceased had opportunities to secure consecrated burial, even though they recognized that sentences of forfeiture would stand. Although the negotiation of judicial punishments may have been a relatively common feature of Anglo-Saxon lawsuits, the flexibility surrounding unconsecrated burial sentences suggests that waiving this penalty would not undermine secular authority. On the contrary, the Latin charters indicate that allowing convicted offenders to receive Christian graves was a praiseworthy expression of royal mercy. This logic also suggests, however, that there was some degree of discomfort with the use of unconsecrated burial as a secular punishment. Certainly, the claim in S883 that Æthelred's clemency was inspired by a friend's grief indicates that such an explanation would be palatable to an elite audience. Likewise, there is no reproach for the crowds that beg Æthelstan for mercy in S414 and S415. Even Edgar's straightforward proposal, in S1447, that a “clean” grave be acquired through the payment of a standard fine, indicates that it was reasonable for this part of the offender's sentence to be reversed. Even though Edgar's and Æthelred's legal policies departed from earlier law by presenting exclusionary burial as a non-negotiable and secular punishment, the charter evidence indicates that this penalty was in fact seen to have religious implications, and that it could also be waived or reversed.

The Early Eleventh Century: Archbishop Wulfstan of York (r. 1002–1023)

The legal and diplomatic sources reviewed thus far indicate that unconsecrated burial should not be understood as a form of religious excommunication in tenth-century law. Although dead offenders might be denied normative interment in hallowed cemeteries, the written evidence consistently depicts this practice as a punishment to be imposed by secular authorities. Unlike excommunication, which was imposed by the clergy through liturgical ritual, unconsecrated burial was prescribed and administered exclusively by kings and lay magnates; even high-ranking ecclesiastics had to petition secular judges if they wished to secure Christian graves for the condemned. In the tenth century, a sentence of unconsecrated burial did not constitute formal expulsion from the Church or condemnation to hellfire. Rather, it was the deprivation of an earthly privilege. A convicted offender might be required to forfeit a consecrated grave, in accordance with secular justice, just as he might be required to surrender a fine, his property, or his life. In the documents discussed above, there is not one explicit connection drawn between exclusionary burial and the deceased's fate in the afterlife.

Nevertheless, unconsecrated burial was consistently recognized as an undesirable and harmful penalty. All of the charters depict friends or relatives seeking to save or recover bodies from unconsecrated ground, even when there was no chance of reversing the deceased's other punishments, and this suggests that the practice was especially distressing to survivors.Footnote ¹⁶³ Royal legislation also anticipated that the living would seek to reverse a sentence of unconsecrated burial. Æthelstan's and Edmund's laws included procedures by which convicted offenders might escape this punishment, and III Æthelred 7–7.1 expected families to risk financial and physical harm in order to secure their kinsman a hallowed grave. While such measures could be motivated by various considerations — a desire to honor a relative, use a traditional burial place, or revive a family's reputation — it is likely that religious concerns were also a factor. If the Christian dead enjoyed spiritual protections and benefits from hallowed ground, it stands to reason that individuals subjected to exclusionary burial would find themselves at a disadvantage in the afterlife. In the early tenth-century laws of Æthelstan and Edmund, an unhallowed grave perpetually affirmed the sin of an unrepentant offender: though administered by a secular authority, unconsecrated burial was a testament to the deceased's spiritual obstinacy in refusing penance. Yet this rationale was no longer articulated in laws and charters by the end of the century. The legal vocabulary for exclusionary burial had shifted by the reigns of Edgar and Æthelred: the condemned were relegated to “foul” (ful) burials instead of “clean” (clæn) ones, with no mention of consecrated ground. Posthumous exclusion was no longer reserved for unrepentant sinners but was now prescribed for various offenses — including treason, theft, and illicit violence — which were presented as violations against earthly authorities rather than sins against God. I suggest that this new approach under Edgar and Æthelred blurred the distinction between secular and religious wrongdoing. Despite the secularized vocabulary used to describe the practice by the later tenth century, it is probable that ful burial in unconsecrated ground was still believed to have dire religious implications. If so, contemporaries may well have reasoned that secular authorities had the power to impose spiritually detrimental punishments upon individuals convicted of earthly crimes.Footnote ¹⁶⁴

At the turn of the eleventh century, a different approach began to be articulated. Its chief proponent was Archbishop Wulfstan of York, who, from 1008 onward, drafted royal laws for Kings Æthelred and Cnut. Wulfstan was a prolific author, who produced homilies and sermons, religious regulations, and royal law throughout his episcopal career; he was also an avid compiler, who preserved and revised earlier texts.Footnote ¹⁶⁵ His corpus was influential beyond his lifetime, for later generations of ecclesiastical authors drew from his religious writings, and the legislation he penned for Cnut in the early 1020s remained relevant through the Norman Conquest. Wulfstan wrote repeatedly about unconsecrated burial, and his career marks another shift in the way this practice was understood. Where the tenth-century evidence placed exclusionary burial within the jurisdiction of secular authorities, Wulfstan presented the disposal of the dead as an ecclesiastical prerogative. He emphasized that an individual's place of burial must be determined by his spiritual state and, accordingly, that judgments about the disposal of the Christian dead be issued by clergy, not laymen. The following pages will first evaluate Wulfstan's sermons, laws, and religious regulations on the topic, and then examine prescriptions for unconsecrated burial in his penitential compilation, the Old English Handbook.

Wulfstan closely associated consecrated burial with Christian devotional obligations. According to his regulatory and homiletic writings, a person must know the Pater Noster and Creed in order to be worthy of Christian communion and a hallowed grave. Wulfstan explicitly drew this connection twice in his early career, first in his collection of religious regulations known as the Canons of Edgar, likely composed between 1004 and 1008:

A similar passage appears in a sermon on baptism, also composed in the first decade of the eleventh century:

Both passages construe consecrated burial as a privilege reserved for good Christians, which — like participation in communion — signals their inclusion in the religious community. Where tenth-century charters and laws indicate that only serious offenders would be forbidden hallowed graves, Wulfstan's approach would exclude anyone who could not meet fundamental devotional criteria. In the archbishop's discourse, it is incumbent upon every Christian to prove himself worthy (“wyrðe”) through his actions in life. Burial in hallowed ground (“gehalgodan”) or a clean grave (“clænes legeres”) was a privilege to be earned through personal devotion, not a right to be forfeited through misbehavior.

After the first decade of the eleventh century, there is no mention of unconsecrated burial in Wulfstan's extant laws and sermons until the final years of his life. Two of the archbishop's later compositions, penned toward the end of his career, expand upon his earlier prescriptions. In Napier 59, a sermon of ca. 1020 which outlines the obligations of lay Christians, Wulfstan adapts the text of his Canons of Edgar as follows (new elements are underlined):

In addition to articulating the communal aspects of consecrated burial and its spiritual benefits, Wulfstan's revisions emphasize the importance of understanding and knowledge during a person's lifetime, describing these as necessary for true belief (“rihtne geleafan”).Footnote ¹⁶⁹ These additions clarify that inclusion in the Christian community requires more than rote memorization of the Pater Noster and Creed. Rather, in order to be worthy of communion and consecrated burial, an individual must know (“cunne,” “cune”) these prayers and apply them toward a fuller understanding of the faith.Footnote ¹⁷⁰ Wulfstan went on to codify this principle in royal law in the early 1020s. In the first section of his two-part code I–II Cnut, the archbishop expounded upon the connection between prayer and true faith:

This sequence articulates more clearly than the other passages how the Pater Noster and Creed facilitate true belief (“rihtne gelefan”) and thereby enable Christians to cultivate personal relationships with God. In addition to introducing a new focus on inward devotion and faith, Napier 59 and I Cnut 22–22.6 describe consecrated burial differently than Wulfstan's early-career writings. Where the texts from the early 1000s focus on an individual's physical placement in consecrated space — hallowed ground (gehalgodan) or a clean grave (clænes legeres) — the sources from the 1020s are concerned with community.Footnote ¹⁷² Napier 59 asserts that a pious individual will merit interment “with Christian people in a consecrated resting place,” while I Cnut 22.5 decrees that those who fail to learn their prayers must not be buried “among Christian people nor rest in a consecrated cemetery.”Footnote ¹⁷³ In these texts, burial in hallowed ground signifies full membership in the Church.

By the 1020s, it appears that Wulfstan regarded consecrated burial as a standard way to dispose of the Christian dead. Because interment in a hallowed cemetery was a privilege that could be earned only by true Christians, according to the archbishop's logic, it could not be granted to anyone who failed to meet the devotional requirements for inclusion. Based on the passages discussed so far, it is reasonable to posit that Wulfstan envisioned ecclesiastical authorities, rather than secular ones, making decisions about burial, since the clergy were best qualified to evaluate an individual's faith and devotion. The consistent pairing of burial and communion in these texts suggests that the same religious criteria would be applied in decisions about exclusion, whether the sinner were alive or dead at the time of judgment. Significantly, however, Wulfstan did not conflate excommunication and unconsecrated burial. Rather, he treated them as parallel forms of religious exclusion for the living and the dead. This was a departure from the tenth-century legal and judicial descriptions of unconsecrated burial, in which it was deployed by lay authorities as a secular punishment. The new approach advocated by Wulfstan likely drew upon Continental models, which had begun linking exclusionary burial with religious excommunication more than a century earlier.Footnote ¹⁷⁴ Yet it is also possible that Wulfstan was responding directly to an English judicial practice that he viewed as secular overreach. As archbishop, it is conceivable that he sought to expand ecclesiastical control over disposal of the dead and clarify the spiritual implications of unconsecrated burial — especially if contemporaries believed that secular authorities could injure a criminal's soul by depriving him of a hallowed grave.Footnote ¹⁷⁵

Nevertheless, there is one instance in Wulfstan's legislation where he appears to accept and promulgate tenth-century legal attitudes toward unconsecrated burial. In II Cnut 33–33.2, Wulfstan quoted verbatim Æthelred's early decree on faithless (“ungetrywe”) individuals who lack surety: if such a person is convicted, the law dictates, “let him be killed and buried in foulness.”Footnote ¹⁷⁶ The death sentence and exclusionary burial mandated in II Cnut 33–33.2 seem uncharacteristic of Wulfstan's life-sparing approach to justice, and I have suggested elsewhere that this was an instance of the archbishop appropriating an earlier law without revision.Footnote ¹⁷⁷ This explanation is unsatisfactory, however, not least because Wulfstan was adept at adapting earlier legislation and aligning it with his own ideology. It is more probable, I now propose, that this older decree assumed new meaning in the 1020s, thanks to Wulfstan's career-long redefinition of burial as a religious matter, as well as his understanding of what faithless behavior entailed. In his Sermo Lupi ad Anglos, Wulfstan lamented the kingdom's “great faithlessness (“ungetreowða”) against God and in the world,” and it is reasonable that he understood the faithless (“ungetrywe”) individuals of II Cnut 33 to have offended in both the spiritual and secular spheres.Footnote ¹⁷⁸ Moreover, given the conditions for consecrated burial listed in I Cnut 22, it seems impossible that the faithless offender of II Cnut 33 would meet the religious criteria needed to secure a hallowed grave. A true Christian could presumably call on upstanding members of his religious community to provide legal and financial support, thereby saving him from the punishments imposed upon individuals who lacked surety; one might imagine a bishop standing as an advocate and providing surety in such a case.Footnote ¹⁷⁹ By contrast, a person who was faithless “to the entire population” (“eallum folce”) would have proved himself unworthy of inclusion in earthly and spiritual communities. Such an individual would thus merit the twofold punishment prescribed in II Cnut 33–33.2: a death sentence for his treachery against the community and unconsecrated burial for his refusal to lead a good Christian life.Footnote ¹⁸⁰

A final text must be included among Wulfstan's discussions of unconsecrated burial: the six-part penitential collection known as the Old English Handbook.Footnote ¹⁸¹ This penitential was almost certainly compiled by Wulfstan or at his direction, and it survives in multiple manuscripts associated with the archbishop.Footnote ¹⁸² All three of the Handbook’s references to unconsecrated burial appear in Part IV of the text, a list of penitential tariffs based on two earlier collections: Wulfstan drew from the late tenth-century Old English Penitential, which was itself a vernacular rendering of a Latin penitential by Bishop Haltigar of Cambrai (died 829).Footnote ¹⁸³

Of the three Handbook clauses that mention unconsecrated burial, two are concerned with sexual misconduct. The first states that anyone who forsakes his marriage by taking a second wife is an adulterer, who — along with his new wife and any witnesses to the marriage — would be subject to the following punishment, if he failed to repent:

Like those who refuse to learn the Pater Noster and Creed, unrepentant bigamists and their abettors are prohibited from Christian rituals and cemeteries. A second Handbook clause prescribes a lifetime's worth of penance for anyone who marries two siblings in succession, the first having died.Footnote ¹⁸⁵ While individuals who repent of this sin would ultimately be allowed last rites, those who continue in this illicit arrangement until their death would not:

These clauses evoke the sexual misconduct clauses in I Edmund, in which consecrated burial is forbidden only to those who persist in sin and refuse to atone. Yet the Handbook does not assign unconsecrated burial for sex among the clergy or adultery among the laity, the offenses that merited that punishment under Edmund's laws.Footnote ¹⁸⁷ Furthermore, a number of sexual actions condemned as serious offenses in the Handbook — including rape, homosexual acts, and bestiality — do not merit exclusion from Christian cemeteries.Footnote ¹⁸⁸ Instead, the Handbook’s sexual misconduct clauses reserve unconsecrated burial for those who flaunt ecclesiastical authority by persisting in forbidden relationships, rather than those who commit prohibited acts on occasion. Although a sentence of posthumous exclusion might conceivably be used as an incentive to penance, as in I Edmund, the Handbook treats this penalty as a last resort, to be imposed when all other modes of correction have failed.

A third prescription for unconsecrated burial in the Handbook departs from this model, making no mention of renouncing sin or undertaking penance in life. Instead, it concerns individuals who are already dead:

Here, unconsecrated burial is construed as a posthumous penalty, which cannot be mitigated by the deceased before his death. The final set of prescriptions aligns with the treatment of dead criminals recorded in the tenth-century charters, as well as with I Æthelred 4 and II Cnut 33: in all of these texts, unconsecrated burial is applied as an addendum to a death sentence or imposed upon those who died while perpetrating a violation. Yet the equation of suicides and secular offenders in the Handbook has problematic implications. Suicides would inevitably die in a state of unrepentance, since the act of killing oneself was deemed a sin against God; this, presumably, justified the decision to withhold last rites and consecrated burial.Footnote ¹⁹⁰ By prescribing the same fate for individuals condemned for committing a secular offense, however, the Handbook implies that they too would be unable to reconcile with God in this lifetime and would necessarily die in sin.

At first glance, such a position seems antithetical to Wulfstan's logic elsewhere. He repeatedly legislated that convicts be allowed to confess their sins before capital punishment was administered, and throughout his career, he prescribed non-lethal penalties so that offenders’ bodies and souls — “God's handiwork and his own purchase” — could be rehabilitated during their earthly lifetimes.Footnote ¹⁹¹ Yet this apparent inconsistency can be explained by the different audiences Wulfstan envisioned for his legislation and the Handbook. In laws promulgated on behalf of kings, the archbishop discouraged secular authorities from imposing punishments that could hinder a convict's salvation. This policy was grounded in notions of Christian mercy, but it also touched on an important jurisdictional matter: lay authorities were not entitled to make judgments that could affect an offender's soul; this was an ecclesiastical prerogative. Part IV of the Handbook, which contains all three of the text's references to unconsecrated burial, is addressed explicitly to bishops and priests, not to secular authorities.Footnote ¹⁹² This indicates that decisions about Christian burial — even in cases concerning executed criminals — were to be made by the clergy, an apparent departure from earlier practice. As delineated in the Handbook, once a death sentence was administered in accordance with secular justice, it was a clergyman's responsibility to impose the posthumous penalty of unconsecrated burial, since the condemned had failed to earn a hallowed grave through lifelong Christian devotion.

Although the Handbook treats unconsecrated burial as a clerical prerogative, it does not conflate this penalty with excommunication. Rather, its prescriptions for unconsecrated burial are followed by three decrees that require living offenders to be expelled from the Church. These clauses, which address rape and abduction, state outright that a perpetrator “be excommunicated” (“beo he amansumod”) — a command which has no parallel in the unconsecrated burial clauses.Footnote ¹⁹³ The prescriptions for excommunication make no mention of the offender's death or burial; instead, they present this sentence as an immediate ecclesiastical response to an illicit act. The Handbook, like Wulfstan's homiletic and legislative pronouncements, treats excommunication and unconsecrated burial as distinct penalties — for the living and the dead, respectively — which could be prescribed independently of one another.

There is a further striking feature of the Handbook canons: in at least two of the three clauses, the prescriptions for unconsecrated burial were apparently composed by Wulfstan and not adapted from a source text. In their discussions of suicides and executed criminals, the penitential of Haltigar and the Old English Penitential stipulate that the dead should not be commemorated or buried with psalms, but it is only the Handbook which specifies that the body should also be denied a clean grave (Figure 1).

Figure 1. Sources for Handbook clause on suicides and executions

The penitential of Haltigar never mentions burial in relation to those who married two siblings, and neither do two of the three manuscripts that preserve the corresponding canon of the Old English Penitential (Figure 2). The only version of this text which prohibits consecrated burial is preserved in Oxford, Bodleian Library, Junius 121, a manuscript closely associated with Wulfstan.Footnote ¹⁹⁵ Although it is possible that this condition was included in a tenth-century copy of the Old English Penitential, which was later reproduced by Wulfstan or one of his circle, it seems more likely that the prohibition against a clean grave in Junius 121 — which employs the exact same phrasing as the corresponding clause in the Handbook — was added by Wulfstan or his scribe.

Figure 2. Sources for Handbook clause on marrying siblings

It is only in the Handbook’s clause on bigamy that the prescription for exclusionary burial is clearly drawn from an earlier source (Figure 3). Although Haltigar's penitential does not provide instructions for burial, all manuscripts of the Old English Penitential specify that a bigamist who dies in his sin may not be buried with other Christians, and the Handbook reproduces this condition in similar language.

Figure 3. Sources for Handbook clause on bigamy

The inclusion of this prescription in the Old English Penitential suggests that unconsecrated burial had in fact begun to be recognized as an ecclesiastical penalty before Wulfstan compiled the Handbook. Both texts are difficult to date precisely, since they survive exclusively in eleventh-century manuscripts, but the Old English Penitential is typically attributed to the later tenth century, although it may have been produced in the early eleventh.Footnote ¹⁹⁶ While this text must have been produced before the Handbook, for which it was a source, it is possible that the Old English Penitential was compiled during Wulfstan's ecclesiastical career and reflects an approach to unconsecrated burial that may have been gaining momentum ca. 1000.Footnote ¹⁹⁷ Certainly, its prescription for exclusion from Christian cemeteries indicates that Wulfstan was not alone in his effort to bring burial practice into the ecclesiastical sphere around the turn of the eleventh century. Indeed, the Handbook’s prohibition against burying such offenders “with Christian people” (“mid cristenum mannum”) was anticipated by the tenth-century Latin charters, which discussed whether offenders should be buried “with Christians” (“cum Christianis”).Footnote ¹⁹⁸ At the same time, the Handbook and Old English Penitential clauses that characterize any bigamist as an adulterer (“æwbrica,” “æwbreca”) and relegate the unrepentant to unconsecrated ground are consistent with early tenth-century law: I Edmund 4 prohibits anyone convicted of adultery (“æwbrice”) from receiving a consecrated grave.Footnote ¹⁹⁹ Yet even as they affirm the legitimacy of I Edmund’s approach, these penitentials provide a more nuanced discussion of adultery and its remedies, as well as clarifying that exclusionary burial was a punishment for the clergy — not secular authorities — to assign.

As this survey has demonstrated, Wulfstan addressed unconsecrated burial more frequently than any previous English author. Rather than assuming that the justifications for and implications of this practice would be understood by his audience, as had earlier legislators and drafters of charters, Wulfstan delineated the circumstances under which posthumous exclusion was appropriate and entrusted decisions about Christian burial to the clergy. This clarity suggests that the archbishop aimed to combat popular confusion and affirm ecclesiastical control over burial practice. Nevertheless, it appears that Wulfstan's own thinking on this subject evolved across his career. He made the criteria for Christian burial more stringent over time, at first requiring only the ability to recite the Pater Noster and Creed, but later asserting that memorization of these prayers must be accompanied by inward understanding. This condition likely informed his condemnation of executed criminals to “foul” graves in II Cnut 33.1: even if a convict could recite the Pater Noster and Creed, his illicit action — faithlessness to the entire population — proved that he had rejected any true understanding of the Christian faith. Perhaps Wulfstan's compilation of the Handbook and his close reading of earlier penitential literature helped justify this later approach. One clause of the Old English Penitential confirmed that the clergy were empowered to bar unreconciled sinners from Christian cemeteries, and both the Old English Penitential and Haltigar required executed offenders and suicides to be deprived of prayers and burial rites after death. It is logical that Wulfstan, in his reworking of these canonical texts, would find support for a broader application of posthumous exclusion in his own legal and penitential prescriptions.

Still, it is worth noting that Wulfstan was restrained in his calls for unconsecrated burial. Like excommunication, he prescribed it rarely, in cases where other forms of correction had failed to bring a sinner to repent. Yet it is clear in Wulfstan's writings that these were two distinct penalties, to be imposed under different circumstances. Excommunication was fundamentally a medicinal treatment: it was intended to pressure stubborn sinners to seek penance and reconciliation during their lifetimes, so they might amend their ways and save themselves from damnation. Such rehabilitation would be impossible for someone who was already dead, and it would be the antithesis of Christian mercy to excommunicate a condemned criminal unless he was given a chance to redeem his soul before his execution.Footnote ²⁰⁰ It is certainly possible that an individual could be subjected to both penalties if he refused to repent of his sins, since an excommunicant who declined penance in life might reasonably be barred from Christian cemeteries at his death. However, Wulfstan never indicated that these sentences would be imposed simultaneously, and he never conflated them. Instead, his writings demonstrate that he understood unconsecrated burial as a sort of spiritual compromise, which allowed the Church to surrender responsibility for an irredeemable soul. The clergy would not curse executed criminals, suicides, or those who died without a proper understanding of their faith, but neither would they provide them spiritual assistance by praying for them or allowing their bodies to lie in hallowed ground. With all earthly remedies exhausted, the sinner's fate would rest entirely with God: “we do not know any advice to give him, except that it is dependent upon God's judgment.”Footnote ²⁰¹

Conclusions: The Later Eleventh Century

Wulfstan's clearest achievement, in the regulatory texts discussed above, was to establish that judgments concerning unconsecrated burial rightly fell under ecclesiastical, not secular, jurisdiction. His efforts were likely inspired by a desire to eliminate confusion about the practice, and it is possible that Wulfstan's was just one of numerous voices advocating such a distinction around the turn of the eleventh century. However, it was his forceful articulation of this principle that seems to have influenced subsequent generations of ecclesiastical authors who deployed unconsecrated burial as a religious penalty. Wulfstan's legacy on this topic is especially pronounced in a set of regulations for clergymen, known as the Northumbrian Priests’ Law. This text draws upon Wulfstan's legislation and is preserved uniquely in a late eleventh-century compilation of the archbishop's writings, but it was composed after his death and departs somewhat from his approach to unconsecrated burial.Footnote ²⁰² Two passages mandate posthumous exclusion for individuals who died without having repented of certain sexual sins. The first applies to those who keep more than one wife or marry within a prohibited degree of kinship:

The text then turns to sexual activity with nuns:

The offenses described in these clauses — polygamous or illicit marriages, clerical sex — are consistent with those listed in earlier prescriptions for unconsecrated burial.Footnote ²⁰⁵ Their diction recalls tenth-century laws which identifed hallowed burial as a privilege which a sinner could forfeit (þolige).Footnote ²⁰⁶ As in Wulfstan's writings, these clauses prescribe one type of exclusion for living sinners and another for the unreconciled dead; they also take for granted that Christians would ordinarily be buried in consecrated ground.Footnote ²⁰⁷ Yet they depart from the archbishop's approach in other ways. Where Wulfstan commanded the clergy to withhold ecclesiastical rituals such as communion, prayer, and commemoration of the dead, these clauses of the Northumbrian Priests’ Law make no mention of the earthly Church, asserting instead that an unrepentant sinner would endure divine punishment: once dead, “he shall forfeit God's mercy.”Footnote ²⁰⁸ In Wulfstan's canon, “God's mercy” (“Godes mildse”) is something to be earned through pious devotion, but in the Northumbrian Priests’ Law, it is something for Christians to lose or forfeit.Footnote ²⁰⁹ The phrase may have been used in this later text as an euphemism for excommunication, but it conveys a certainty about God's judgment that was absent from earlier discussions of burial. These appear to be the first direct statements by an English author in which unconsecrated graves are linked to damnation, rather than exclusion from the Christian community on earth.

It is also worth returning to the Hatton 115 homily, which has been cited as evidence of a connection between excommunication and unconsecrated burial.Footnote ²¹⁰ This passage was written in the second half of the eleventh century, but the offenses it describes are consistent with those listed in pre-Conquest texts:

As in earlier sources, individuals who persist until their death in sexual offenses — clerical sex, adultery, and incestuous unions — are to be excluded from the Church. The Hatton 115 homilist followed Wulfstan in establishing parallel consequences for unrepented misconduct in life and death, but he delineated more clearly than any previous author how disrespectfully the corpse should be treated. Excommunicants like these were not simply to be prohibited from hallowed ground; they were unworthy of even a “heathen” burial in an unconsecrated pit and deserved to have their bodies exposed to the elements.Footnote ²¹² This treatment evokes Edgar's policy, a century earlier, which relegated the corpses of condemned thieves to animal scavengers, but it also signals a departure from Wulfstan's approach. While the archbishop's early eleventh-century writings depicted unconsecrated burial as a passive form of abandonment by the clergy once all efforts at eliciting penance had failed, the Hatton 115 homily condoned the active abandonment of dead bodies and their deliberate exclusion from hallowed ground.

The Hatton 115 homily and the Northumbrian Priests’ Law were both committed to parchment around the time that excommunication formulae are first attested in England, and this may help explain the more forceful connections they drew between unconsecrated burial and spiritual exclusion. Some of the earliest extant formulae were transmitted to England in a German manuscript containing a version of the Romano-German Pontifical: BL Cotton Tiberius C.i was compiled on the Continent in the mid-eleventh century but was apparently in England by the 1070s.Footnote ²¹³ The manuscript includes an adaptation of one of Regino's excommunication rites and a version of the “Pope Leo” formula, which commands that excommunicated corpses be left as food for scavenging animals and proclaims that “we close heaven and deny the earth for burial.”Footnote ²¹⁴ Another early example, the Lanalet Pontifical formula, specifies that when excommunicants die, they “shall not have any burial other than one for asses.”Footnote ²¹⁵ The appearance of such formulae — and, presumably, the formalization of excommunication rituals that led to their codification — may well have influenced English vernacular texts, leading the author of the Northumbrian Priests’ Law to associate unconsecrated burial with damnation and the Hatton 115 author to diverge from his source by explaining how to dispose of excommunicated corpses.Footnote ²¹⁶

Still, it is remarkable that so few English formulae mention how the bodies of excommunicants should be disposed of. Aside from the Lanalet Pontifical, the only known eleventh-century excommunication formula to reference burial is contained within a German pontifical. It was not until the twelfth century that another English formula mentioned burial, but even at this later date, such language was not standard or automatic: of the nineteen formulae written in English manuscripts from the later eleventh century through ca. 1200, only one makes any reference to the sinner's corpse.Footnote ²¹⁷ Moreover, although the eleventh-century ecclesiastical authors who mentioned unconsecrated burial associated it with excommunication or damnation, it nonetheless continued to be used as a secular punishment during this century, most notably in cases of treason. Cnut, at the beginning of his reign, executed Ealdorman Eadric “Streona” of Mercia and reportedly had his body relegated to unconsecrated ground.Footnote ²¹⁸ In 1040, King Harthacnut ordered the corpse of his predecessor Harold Harefoot — whom the new king's partisans identified as a usurper — to be exhumed from its grave at Westminster Monastery and deposited in a swamp.Footnote ²¹⁹ William the Conqueror was remembered as having consigned Harold Godwineson's remains to an unconsecrated grave after the Battle of Hastings, and some twenty years later, he executed Earl Wæltheof of Northumbria for treason and had his body dumped in a ditch.Footnote ²²⁰ In three of these four cases, there are accounts of the executed bodies later receiving a consecrated burial: Harold Harefoot's corpse was secretly recovered and buried in a London churchyard, but Harold Godwineson's and Wæltheof's remains were reportedly released to monastic communities for burial, with William's permission.Footnote ²²¹ Significantly, in all four of these cases, it was not the clergy but the king who held jurisdiction over the burial — and, in the post-Conquest cases, the recovery — of condemned bodies.

Notwithstanding these high-profile examples from the early Conquest period, the use of unconsecrated burial as a secular punishment declined in England under Norman rule. Anglo-Saxon execution cemeteries fell out of use under the new regime, as capital punishment went out of favor, and it appears that executed bodies began to be interred in churchyards.Footnote ²²² Unconsecrated burial still remained a possibility, as demonstrated by late eleventh- and twelfth-century religious texts that threatened excommunicants with unhallowed graves, but archaeological evidence for the practice is scarce for the Norman and Angevin periods.

That said, there is evidence that exclusionary burial was employed in England well before it was prescribed in royal law or threatened in ecclesiastical curses. The earliest known English execution cemeteries date to the seventh and eighth centuries, but it is not until the tenth century that we can see ideological justification for the practice: the earliest rites for consecrating cemeteries date to this period, as do the earliest legal prohibitions against burial in hallowed ground. It is reasonable that posthumous separation was already customary for certain categories of offenders by the time the practice began to be codified as exclusion from hallowed ground. This does not mean, however, that exclusionary burial practices were standardized or that their significance was undisputed, even in the later Anglo-Saxon period. On the contrary, the evidence surveyed here indicates that exclusion was understood and employed in various ways. In the first half of the tenth century, unconsecrated burial was conceived as a secular punishment with a religious justification: conditional prohibitions from hallowed ground were used in the laws of Æthelstan and Edmund to pressure offenders to repent and reconcile with the Church. By the later part of the century, the laws of Edgar and Æthelred treated exclusionary burial as standard for certain capital offenders, yet it was never construed as an incentive to spiritual redemption; rather, it was presented as a physical punishment for temporal violations. Importantly, this shift occurred as consecrated burial was becoming more accessible to the lay population and was increasingly considered normative — perhaps even spiritually necessary — among some communities. If interment in hallowed cemeteries was now widely perceived as standard practice for the Christian dead, exclusion from consecrated ground would represent a clear separation from the religious community, even if that exclusion were threatened or imposed by a lay authority.

It is likely, given this context, that royal prescriptions for unconsecrated burial were in fact understood by some of the tenth-century population as tantamount to excommunication. Even if this explanation was never formally stated or endorsed by the Church, charter narratives indicate that the living might go to great expense to save or retrieve remains of the condemned from unconsecrated graves, and it is reasonable that such actions would be motivated in part by spiritual concerns. Wulfstan's efforts to define religious criteria for hallowed burial and give the clergy authority over the disposal of Christian bodies imply that such clarification was necessary by the early eleventh century. Although he stopped short of equating posthumous exclusion with excommunication, Wulfstan presented these as parallel penalties, each concerned with an offender's status in the religious community. Still, he did not eliminate prescriptions for exclusionary burial in royal law, and eleventh-century kings continued deploying the practice, notably in cases of treason. In the generations after Wulfstan's death, English ecclesiastical authors began to adopt the logic of Continental excommunication formulae in their descriptions of unconsecrated burial, with a sinner's posthumous exclusion confirming the condemnation of his soul in the afterlife. While it is fair to state that unconsecrated burial was formally equated with excommunication in England by the later part of the eleventh century, it took more than a century for this association to be firmly established.

A final conclusion to be drawn from this evidence is that the line between secular and ecclesiastical jurisdictions in pre-Conquest England was not as hazy as generally believed. Although the clergy contributed heavily to the composition and promulgation of royal lawcodes, it does not necessarily follow that they were empowered to oversee the implementation of royal policies or issue judgments in secular matters, even when those matters concerned Christian burial. Such limitations are evident in the tenth-century charters. S1447, S414, and S415 present the loftiest clergymen — the archbishop of Canterbury and the pope — deferring to the king's judgment in decisions about burial. In S883, the only extant charter concerned with the implementation of legally mandated burial restrictions, the fate of the offenders’ corpses is determined entirely by laymen; the deliberation and judgment reportedly involved reeves, an ealdorman, and King Æthelred, without any mention of clergymen. Although the bishops and other clergymen who attested this charter may have advised Æthelred as he formulated his judgment, the text of S883 unambiguously depicts burial as a matter to be decided by the king and his secular agents.Footnote ²²³ Likewise, the contentious exchange between Archbishop Dunstan, King Edgar, and Ealdorman Ælfheah in S1447 demonstrates that the kingdom's highest-ranking clergyman had no automatic claim to a Christian's corpse or authority over its place of burial. The legal policies of Edgar and Æthelred conform to this pattern as well, with unconsecrated burial prescribed by royal decree for secular offenses. The texts which preserve these royal policies make no mention of sin or penance, nor do they acknowledge the clergy's participation in issuing or executing sentences of unconsecrated burial.

The laws of Æthelstan and Edmund also draw distinctions between ecclesiastical and secular penalties, even though they explicitly link unconsecrated burial to offenders’ spiritual state. II Æthelstan 26 allows unconsecrated burial to be imposed even if a perjurer had done penance for his offense, indicating that this was not an ecclesiastical response to unredeemed sin but a secular penalty meant to punish unlawful behavior. I Edmund 1 states that unchaste clergy would be subject to both canonical and secular penalties, and unconsecrated burial is listed as part of the latter category. The fact that there is no explication of the canonical punishment in this clause, nor in the prescriptions concerning homicide and sexual misconduct among the laity in I Edmund 4, confirms that the specific details of ecclesiastical penalties were outside the scope of this lawcode and would need to be determined separately, by members of the clergy. These laws aimed to bring certain offenders to penance by threatening unconsecrated burial, but they pointedly did not encroach on the clergy's right to issue ecclesiastical judgments, canonical penalties, and spiritual remedies.Footnote ²²⁴ A century later, Wulfstan adapted this approach in his own royal legislation: unconsecrated burial could be prescribed for individuals whose actions placed them outside the Church's communion, but it was the clergy who would determine whether this standard had been met. The archbishop's other writings clearly present decisions about consecrated burial as an ecclesiastical prerogative and not a secular one, a position that affirmed the Church's authority over funerary ritual and disposal of the dead. The site of a person's grave signaled his membership in or exclusion from the Christian community, according to Wulfstan, so judgments concerning burial places, like judgments of excommunication, could legitimately be made only by the clergy. Although this approach departed from earlier understandings of unconsecrated burial as a secular punishment, Wulfstan and the tenth-century lawmakers all recognized that this penalty fell within one jurisdiction — either ecclesiastical or secular — to the exclusion of the other.

Of course, these theoretical distinctions between ecclesiastical and lay authority may not have been consistently reflected in practice. Perhaps lay authorities tended to seek ecclesiastical advice before denying anyone a hallowed grave, or perhaps high-ranking clergy began using this secular sentence as part of their own ecclesiastical judgments before the eleventh century.Footnote ²²⁵ Indeed, lay and clerical judges might issue the same penalties — such as fines or compensation payments — for different offenses, and it would not be surprising if unconsecrated burial was also used in both spheres of justice. Yet unlike monetary penalties, unconsecrated burial was associated from its inception with Christian ritual, and its use as a secular punishment could thus have raised troubling questions. Did an unconsecrated grave merely confirm a person's state of sin, or did it actually effect his damnation? Were kings, ealdormen, and reeves in fact empowered to deny spiritual benefits to the deceased, or was this a prerogative reserved for the clergy? Could a condemned convict attain salvation if his corpse were excluded from unconsecrated ground, or did his sinful actions make his burial place irrelevant? The diverse contexts and justifications for unconsecrated burial in tenth- and eleventh-century texts suggest that there was confusion about how the penalty ought to be deployed, and by whom. By designating unconsecrated burial either a secular or an ecclesiastical penalty, the sources surveyed here aimed to allay this confusion. Such efforts do not seem to have been entirely successful, given how differently each tenth- or eleventh-century author understood the practice. However, by treating unconsecrated burial as either a secular or an ecclesiastical penalty — and never both at once — these texts recognize distinct jurisdictions for lay and religious authorities.