Pirates and Benefit of Clergy

[Daniel]

One of the bizarre little twists of European and colonial law was the "benefit of clergy." In England, by the 17th century, if you could read Psalm 51, the court pretended that this established you were a clergyman, and therefore not eligible for the death sentence. In the old days they would actually hand you over to a canon law court, but by our period that wasn't done any more; they just branded you on the thumb to make sure you couldn't plead the benefit twice, and might sentence you to up to a year in prison. Psalm 51 came to be known as the "neck verse," because it would save your neck if you could read it, or if you could memorize it and pretend to read it (very significant in an illiterate age).

In 1706, the "reading" of the neck verse was abolished, and the benefit of clergy became available to all first time offenders. The 1718 Transportation Act made the branded pleaders liable to transportation to North America (hence, I suppose, the passage in Moll Flanders where Moll's mother tells her that much of the population of Virginia has been branded in the hand).

The obvious question: are there any cases of pirates pleading benefit of clergy to save their necks? Not all offenses were clergyable in English law, particularly severe ones. (I think Catholic countries, which also had benefit of clergy, tended to be much more liberal in granting it; the Pope was very angry at Henry VIII for excluding certain offenses from benefit of clergy). Nicholas Trott, presiding over the trial of Stede Bonnet's pirates in 1718, said that a statute of Henry VIII had caused pirates to be "ousted of the Clergy," which suggests that piracy was not subject to benefit of clergy.

An 1830 law treatise draws a slightly different picture. It says that a statute of James I restored piracy to the benefit of clergy, as ruled by Sir Edward Coke, but that subequent law had again excluded piracy from benefit of clergy. The Piracy Act of 1717 declares that pirates "shall and ought to be utterly debarred and excluded from the benefit of clergy." But I don't know whether this was the first time since James I that pirates had been excluded from the benefit of clergy, or the act merely confirmed that an earlier exclusion of pirates from the benefit was still in force.

[Jib]

Any idea what the brand looked like?

[Daniel]

According to the Old Bailey on line the brand was a letter: T for Thief, F for Felon, or M for Murderer. I assume there were not too many of the latter, given that murder was usually not clergyable, but it was given to persons convicted of manslaughter. Between 1699 and 1707 the brand was applied to the cheek (ouch!), but they stopped that when they found that it made the victim unemployable, and thus, presumably, guaranteed to turn to (or return to) theft.

I looked again and fonud I was wrong in stating that other countries had benefit of clergy. Benefit of clergy in England resulted from when King Henry II had to promise to let clergy be tried by church courts in order to get the Pope's forgiveness for Thomas Becket's murder. Other kings hadn't made any such promise, so the Pope was angry with Henry VIII only because he wasn't adhering to his predecessor's promise.

Edited May 31, 2011 by Daniel

[Capt. Sterling]

According to the Old Bailey on line the brand was a letter: T for Thief, F for Felon, or M for Murderer. I assume there were not too many of the latter, given that murder was usually not clergyable, but it was given to persons convicted of manslaughter. Between 1699 and 1707 the brand was applied to the cheek (ouch!), but they stopped that when they found that it made the victim unemployable, and thus, presumably, guaranteed to turn to (or return to) theft.

From what I have read, the branding of the "M" was for those who committed murder for the first time and the case is shaky at best...it was their version of manslaughter and was only allowed once...after that it was a hanging offense...at least in English territories..

In the colony of Virginia the brand was applied to the left hand at the fleshy base of the thumb...hence, place your right hand on the Bible and raise your left hand....

[Capt. Sterling]

The Benefit of Clergy Plea

The Benefit of Clergy Plea

by Linda Rowe

Commit a felony in eighteenth-century Virginia, and if convicted, you faced a mandatory death sentence—unless it were your first conviction on one of a few “clergyable” crimes (see below). If that were the case, you could escape the gallows by entering a claim to benefit of clergy, a type of motion in arrest of judgment. If the judges saw fit to rule in your favor on the motion, you went free but not before a court official burned a mark into your hand with a hot iron. This would be the first and last time you could claim benefit of clergy.1 The brand was thought to be the most effective means of keeping you from making repeated claims to benefit of clergy, although the court clerk made a record of your release as well. The sight of the court-applied brand on your hand was supposed to keep would-be felons on the straight and narrow.

Thus it was that the high courts in Virginia (General Court and Court of Oyer and Terminer) were equipped with branding irons. County courts, the venue for slave trials, had branding irons after 1732, the year the General Assembly granted slaves limited access to benefit of clergy.

Judges and justices in England and Virginia probably viewed branding not so much a punishment as a humane alternative to the death penalty. 2 First-time felons likely viewed the painful and disfiguring ordeal of branding in a somewhat different light.

Benefit of Clergy in Colonial Virginia

Benefit of clergy entered the practice of law in Virginia from both the common law and the statute law of England. Royal instructions that accompanied the first Virginia charter provided that the only clergyable offense be manslaughter, a much narrower application than in England, but the same instructions provided that the death penalty be used much more sparingly than in England, confined as it was in early Virginia to mutiny and rebellion, murder, incest, rape, and adultery.3 In spite of King James’s attempt to simplify the legal system by naming six capital offenses and allowing clergy only in the case of manslaughter, after Virginia became a royal colony in 1624, court practice bore much closer resemblance to English practice.4 Like England, the fledgling colony limited benefit of clergy to white men who could read.

Difficult for an investigation of the application of benefit of clergy in Virginia is the small number of records of the General Court and the Court of Oyer and Terminer that survive. These courts, the highest in Virginia, passed judgment on free people (whites, free blacks, and Indians) accused of felonies and regularly imposed the death penalty for felony convictions. The high courts granted white felons a second chance when benefit of clergy was applicable, but free blacks and Indians were not eligible for benefit of clergy until 1732 (and even then on a more limited basis than whites). County courts had jurisdiction in slave trials, and benefit of clergy was made available to slaves in 1732 (see below). County court records, including those in which benefit of clergy was granted to slave felons, survive in much greater abundance than high court trial records.

From the meager records of the seventeenth-century General Court comes the earliest surviving case involving benefit of clergy. A fourteen-year-old boy, William Reade, was indicted, tried by a jury, and found guilty of manslaughter on January 4, 1628/9 in the death of one John Burrowes. When asked what he had to say, Reade demanded his clergy and was “delivered to the ordinary &c.” The ordinary in Virginia was probably the minister of the Anglican parish in which the General Court was situated (Jamestown until 1699; then Bruton Parish in Williamsburg).5 Although records do not reveal what the ordinary reported following this and several other early seventeenth-century manslaughter convictions, it is clear that even without professional judges or lawyers, the Court knew that manslaughter was a clergyable offense and understood the legal mechanisms involved, and that both the defendant and the local minister knew what was expected of them.6

In Virginia, as in England, public and official sentiment gradually came to favor widening the use of benefit of clergy. As the seventeenth century wore on, benefit of clergy made its appearance in association with felonies other than manslaughter. For instance, in 1670 Alexander Phillis was convicted of larceny of goods from a store. He demanded clergy and was burnt in the hand. The governor had it within his power to be merciful on occasion. In 1671 Edward Reddish was found guilty of manslaughter “and did read and by the Governor’s clemency and mercy was acquitted from burning.” In 1701 (sixteen years, it should be noted, before a general transportation law was enacted in England) Evan Roberts, convicted of manslaughter, confessed that he could not read but asked for transportation out of the colony which was granted. In the same year John Quidley and Edward Crowder, condemned for stealing goods from houses, “prayed for transportation which was granted.” We are left to wonder what mitigating circumstances came to the attention of the judges.

Information about General Court and Oyer and Terminer Court cases has turned up in sources other than court records. From 1736 onwards, for instance, the Virginia Gazette newspaper reported verdicts and sentences in the high courts, but the reports are often disappointing. They usually note only that a defendant was convicted of an unspecified “felony” for which the persons was acquitted, condemned, pardoned (infrequently), or “burnt in the hand” (court-speak for a successful claim to benefit of clergy). Similarly frustrating references have come to light in personal papers as well. For instance, councillor and General Court judge William Byrd II noted in his diary on June 12, 1711, “I drank some cider and after staying about an hour [with the Governor] we went to court where two men were [tried] for felony and both found guilty.” The next day, Byrd reported that “I… got my papers together and went to court where one of the prisoners was burnt in the hand and the other ordered to the whip.”7 Both men were found guilty of a felony, both crimes evidently fell within benefit of clergy because neither was executed, but what circumstances led the judges to brand one man and whip the other?

1732: “An Act for settling doubts… in relation to the benefit of Clergy”

In 1732, the General Assembly enacted a bill that abolished the reading test to qualify for benefit of clergy. The law also made white women eligible for benefit of clergy on the same footing as white men. By the same act, “any negro, mulatto, or Indian whatsoever” became eligible for benefit of clergy. Thereafter slaves, free blacks, and Indians could claim benefit of clergy, but it is important to note that the act severely limited the types of cases in which blacks and Indians could claim clergy (see below).

The 1732 Act for settling doubts and differences of opinion, in relation to the benefit of Clergy marked the first time that the General Assembly regulated benefit of clergy itself. That the burgesses felt this act was necessary may be good reason to think there was some doubt about whether slaves, free blacks, Indians, illiterate white men, and women were eligible to plead benefit of clergy. For instance, why was it necessary for a 1723 act, put into effect nearly a decade before the 1732 law, to state that slaves could not plead benefit of clergy if convicted of conspiring to incite an insurrection or plotting to murder any person?8

Branding Procedure

Benefit of clergy could not be claimed until after a guilty verdict was announced. General Court judges asked convicted felons in the seventeenth century whether they could show reason they should not be executed, whereupon the defendants themselves asked the court to grant them clergy. Up until the reading test was abolished in 1732, the prisoner qualified himself for benefit of clergy by reading a passage from the Bible, usually the first verse of Psalm 51 (“Have mercy upon me, O God, after thy great goodness; according to the multitude of thy mercies do away mine offences.”)9 The 1732 law eliminated this step.

Since slaves were tried in the county courts (not the high courts), it was not until 1732, when an act of assembly granted benefit of clergy to African-Americans, that county courts officially needed branding irons. In eighteenth-century slave trials in York County court, justices announced a guilty verdict then “demanded” of the slave if he or she knew cause “why the court should not proceed to judgmt & execution against him [her].” In 1753, slave Peter “prayed the benefit of the Act of Assembly in such case made to him to be allowed.”10 In Richmond County in 1737, justices were “of opinion that [Jack] is Guilty of the Felony Mentioned in the said Indictment, within the benefit of Clergy whereupon the said Jacke pray’d the said Benefit and accordingly was burnt in the Hand at the Bar with a Hott Iron.”11 Presumably the same procedure obtained in the General Court and Oyer and Terminer Court for free black and Indian felons (after 1732) and white convicts. Common knowledge or advice from a court official must have prepared defendants, free and slave, to enter their pleas for clergy at the appropriate point.12

The duty of the public jailor to “constantly attend and execute the commands of the general court” included branding persons granted benefit of clergy. In open court, he marked the “Brawn of the left Thumb” with an M for manslaughter or T for various forms of thievery.13 The granting of benefit of clergy restored to free persons full citizenship rights. 14 High court judges in Virginia occasionally remitted the burning, but they also on occasion imposed a whipping or term of imprisonment in addition to branding. Just which county official administered the branding iron to slaves after 1732 is not clear. Sheriffs likely delegated the duty to deputy sheriffs, constables, or county jailors. Justices frequently added a whipping or time in the pillory to branding.

Whether or not branding became merely symbolic as the eighteenth-century wore on is open to question. In 1774, Richard Starke charged that branding was done with “an Iron Scarcely heated” which seemed to him of little use \and “rather a Piece of absurd Pageantry, tending neither to the Reformation of the Offender, nor for Example to others.”15 It is true that in 1739 John Oldham of Richmond County was convicted of manslaughter in the Court of Oyer and Terminer at the Capitol in Williamsburg, granted clergy, and, according to the Virginia Gazette, “burnt in the Hand with a cold iron.” This, however, is the only case so reported in the Gazette and so may indicate an exception rather than a rule. A review of Richmond County court records shows that Oldham’s actions did lead to the death of John Hutchins. The court seemed satisfied that it was not Oldham’s intention to kill the man, when he challenged Hutchins to a fight at a race ground.16 Perhaps the Oyer and Terminer Court in Williamsburg thought Oldham ought to be publicly humiliated but spared him the actual burning. Again we are left to wonder about what the judges took into consideration to arrive at this conclusion.

Branding with a hot iron continued after the Revolution. The procedure was mentioned in Virginia statutes in 1788, 1789, and 1792.17 In 1796, a speech before the House of Delegates in support of penal reform shows that a heated iron was still applied to the flesh (however briefly) at that time:

This benefit of clergy is the application in open court of a hot iron for the space of about one second to the brawn of the criminal’s thumb. The pain of the burn may perhaps continue for five minutes and the hand may be sore for three days or a week afterwards.18

Clergyable and Non-Clergyable Crimes in Virginia

The lists at the end of this section summarize the crimes that were clergyable and non-clergyable for whites, blacks, and Indians in colonial Virginia. It was not a straightforward matter to assemble these lists. For one thing, no one act of the Virginia General Assembly defined and categorized criminal acts and the legal consequences if convicted. Nor was benefit of clergy addressed by the Assembly until 1732, although it had been used in the General Court since the late 1620s, if not earlier. Nor is it always possible to account for deviations from the letter of the law taken by high court judges and county justices. Records of court proceedings often do not survive or provide incomplete information about the circumstances that judges and justices took into consideration.

The various types of theft (burglary, larceny, robbery, etc.) were defined by specific circumstances or actions that had to be present. Distinguishing among these types in the acts of Assembly or in court records is difficult. For instance, “burglary” was usually breaking and entering in the night whether or not goods were stolen, but burglary was compounded by larceny when something was removed from the premises. However, breaking and entering in the daytime also was called burglary under certain circumstances.

Information for the lists comes from a variety of sources ranging from court cases to legislation passed piecemeal addressing specific problems to summaries of English and Virginia legal practices included in eighteenth-century legal handbooks designed for justices of the peace. The work of historians of colonial Virginia courts and law such as Arthur Scott, Hugh Rankin, and David Konig was also essential in the construction of these lists.

The “rules” under which benefit of clergy could be claimed made it necessary to organize these lists along racial lines. Although it was necessary to group slaves, free blacks, and Indians together with regard to clergyable and non-clergyable felonies, there was one important difference among them: From 1692 onwards, slaves accused of felonies were to be tried in the county courts. 19 Free blacks and Indians charged with felonies were tried in the high courts in Williamsburg (General Court or Oyer and Terminer Court) at the Capitol for which the governor and Council made up the panel of judges. But like slaves, free blacks and Indians could not escape execution by pleading benefit of clergy before 1732.

The act of 1732 that broadened the application benefit of clergy came about at least in part as a result of the case of Mary Aggy, a slave accused of the theft of goods valued at forty shillings. When the sentence of death was passed upon her in the court of York County, the woman, a Christian, claimed “the benefit of the Statute made in the third and fourth years of William and Mary.” York County justices forwarded the case to the General Court from whence her request was forwarded to England for resolution.20 The act regulating benefit of clergy that passed two years later made it possible for non-whites to claim benefit of clergy, but it permitted the plea under much more limited circumstances than whites enjoyed:

That when any negro, mulatto, or Indian whatsoever [meaning slave, free black, or Indian], shall be convicted of any offence within the benefit of clergy, judgment of death shall not be given against him, or her, upon such conviction; but he or she, shall be burnt in the hand in open court, by the jailor, and suffer such other corporal punishment, as the court shall think fit to inflict: except [when] convicted of manslaughter, or the felonious breaking and entring any house in the night-time, or for breaking and entring, in the day-time any house, and taking from thence any goods or chattels whatsoever, to the value of five shillings sterling.21

In other words, white felons could claim benefit of clergy for manslaughter; slaves, free blacks, and Indians could not. This law further restricted the application of benefit of clergy for slaves, free blacks, and Indians: burglary (breaking and entering) by slaves, free blacks, and Indians was a felony and non-clergyable if the value of goods stolen was a mere five shillings; whites had to steal twenty shillings worth before their crime was a felony and non-clergyable.

WHITES

FELONIES (Clergyable)

• Bigamy (the only known cases in Virginia resulted in acquittals so clergy was not claimed)

• Manslaughter

• Maiming (or mayhem; to purposely cut out the tongue, slit the nose, bite or cut off a nose or lip, cut off or disable any limb of another)

• Grand larceny (stolen goods valued over 12 pence; less than that was petit larceny which was not a felony)

Illiterate white men—not eligible for benefit of clergy until 1732 (Before 1732, some illiterate convicts likely qualified for benefit of clergy by memorizing the required Bible verse.)

White women—not eligible for benefit of clergy until 1732; after that on same footing as white men.

FELONIES (Non-Clergyable):

• Willful murder

• Rape

• Treason

• Arson22

• Horse-stealing

• Burglary (breaking and entering a house, church, or public building in the night time with the intent to kill or steal though none be killed nor anything stolen); described in 1730 as to “feloniously break” in the night or day any warehouse or storehouse and take therefrom money, goods, chattels, wares, or merchandizes, of the value of twenty shillings lawful money or more23

• Robbery (violent taking away from a man’s person or house, goods or money to any value and “putting him in Fear”)

• Hog-stealing, third offense (in effect from 1751)

• Slave-stealing

• Counterfeiting coins

• From 1755 onwards, counterfeiting treasury notes (paper money)

• Picking pockets (grand larceny when goods stolen were worth over 12 pence but not clergyable as “regular” grand larceny was; under 12 pence was petit larceny)

• Witchcraft (obsolete by eighteenth century)

• Piracy (tried before the vice-admiralty court)

SLAVES, FREE BLACKS, AND INDIANS

FELONIES (CLERGYABLE):

Under the act passed in 1732

• Maiming (mayhem)

• Grand larceny (stolen goods valued over 12 pence)

Note: Bigamy, a clergyable crime for free people, would not have applied to slaves whose marriages did not have legal standing.

By later acts

• 1748–Slaves administering medicine without permission but without ill intent or “bad consequences” (illness or death of the person taking the medicine)24

• 1765–Manslaughter made clergyable for slaves but only in the death of another slave25

• 1772–“breaking any house in the night time” without removing goods or chattel unless the same “in the case of a freeman, would be a burglary”26

FELONIES (NON-CLERGYABLE):

Before 1732, all felonies were non-clergyable for this group (a few exceptions to this rule may have occurred)

As of 1732

• Willful murder

• Manslaughter

• Treason

• Rape

• Arson

• Horse-stealing

• Robbery (violent taking away from a man’s person or house, goods or money to any value and “putting him in Fear”)

• Counterfeiting coins and after 1755, Virginia treasury notes (paper money)

• Picking pockets

• Burglary (breaking and entering) in the daytime with the removal of goods valued at five shillings sterling or more

• Burglary (breaking and entering) in the nighttime with the removal of goods valued at five shillings sterling or more

By later acts

• 1748–Slaves administering medicine without an order from a mistress or master, especially in the event of illness or death of the person taking the medicine27

• 1748–Burglary (breaking and entering) in the day time or night time with the removal of goods to the value of twenty shillings current money 28

• 1751–Hog-stealing, third offense29

Benefit of Clergy—Background

From Canon Law to Criminal Law

The story of this curiously named plea and how it came to have a place in the criminal code of England and Virginia could be said (with a little overstatement) to have begun with the fourth century conversion of the Roman Emperor Constantine to Christianity. Over the next several centuries, the Western Church developed and refined an elaborate organizational structure including a system of jurisprudence that paralleled but was wider than royal justice. At the same time, ecclesiastical authority came to be centralized in the pope at Rome. By the twelfth century, rules and pronouncements emanating from the Church in Rome circulated in Europe; by the fourteenth, there existed a substantial body of Canon (ecclesiastical) law.30

In England before the Norman conquest (1066), bishops and sheriffs presided together over the shire (county) courts which heard both ecclesiastical and civil cases. William I (the Conqueror) ordered in the 1070s that ecclesiastical and lay pleas at the county level be separated, but that process probably was not complete until the end of the twelfth century. By that time, English ecclesiastical courts were part of a hierarchy of Church tribunals that transcended national boundaries.31

Up until the Protestant Reformation in the sixteenth century, all Latin-rite Christians were taken to be subject to the Canon law of the Roman Catholic Church.32 Its enforcement in the temporal world, however, depended upon the cooperation of temporal authority which varied from country to country.33 How were the pope and heads-of-state to share power? What matters were spiritual and which were temporal? Was Canon law independent of the king’s law and vice versa? As one historian of English law has put it, “two systems of equal validity which claimed to operate within the same geographical territory” spawned a jurisdictional tug-of-war; in England that tug-of-war34 heated up in the early Middle Ages.

The late twelfth century was the period during which Henry II (r. 1154-1189) set about centralizing royal governance and the administration of justice in England. His efforts put him at cross purposes with the Catholic Church over the jurisdiction of ecclesiastical courts.35 One aspect of the quarrel was Henry’s desire to restrict a privilege members of the clergy had gradually come to expect—immunity from criminal prosecution in secular courts. The privilege of the clergy resided in the right of priests to be judged by their own superiors in church courts—not just when they breached Canon law but also when they were charged with crimes such as murder ordinarily tried in the king’s courts.36 (Clerical privilege does not appear ever to have applied in cases of high treason, nor to simple misdemeanors.)

Henry’s efforts to bring priests accused of serious crimes under the authority of lay courts produced a major dispute between the king and the Catholic Church in England and the pope in Rome. In 1164, Henry issued the constitutions of Clarendon in which the relationship between the church and the state in England was spelled out including a statement on clerical privilege. Priests were to be arraigned on criminal charges in lay courts; if they then claimed to be clergymen and could prove it, they were handed over to church courts for trial; if a church court then convicted a priest of a serious crime, he was stripped of his clerical status and returned as a layman to the king’s court for sentencing—the death penalty since felonies were capital offenses.

This arrangement soon ran afoul of a long-running dispute between Henry II and Thomas Becket, the archbishop of Canterbury. Becket argued that the procedure amounted to double punishment for clergymen (degradation and execution). His intransigence on this and other aspects of church/state relations enraged Henry. The matter came to a head on December 29, 1170 when some of Henry’s knights, acting on ill-considered remarks made by the king, assassinated the archbishop. In the aftermath, English clerical privilege got a reprieve when Henry, forced to do public penance for Becket’s murder, made several concessions to the pope and the Church.

Benefit of clergy in England subsequently underwent various abridgements and qualifications. Sometimes by acts of Parliament, but just as often through interpretation by judges on the benches of secular courts, clerical privilege was gradually extended to more and more people (laymen, women, etc.). But over time, Parliament also limited the types of felony included in benefit of clergy. And ultimately, the connection between the benefit of clergy plea and ecclesiastical courts was severed entirely. What follows is a brief summary of developments that came about in a series of remarkably awkward and intricate changes over a long period of time.

An English statute of 1275 was interpreted to mean that a clergyman was to be indicted in the king’s court before he could claim his privilege and be turned over to the church court for trial and punishment. During the reign of Henry VI (1422-1461), it was settled that priests be convicted in lay courts before they could claim clergy. After that, priests accused of serious crimes accepted jury trials in lay courts and claimed clergy only in the event of conviction (which if allowed to stand meant death via the gallows). A representative of the bishop, known as the ordinary, was in attendance at court to “claim” clergymen for transfer to church courts.

Judges mistrusted ordinaries at first and upheld claims only if the prisoner were in clerical dress and tonsured (ritually shaved or clipped hair), or if he could read a passage from the Bible (considered a valid test in an age when few but the clergy were literate). If the court accepted the ordinary’s decision that a convicted felon was indeed a priest, the prisoner was turned over to the ecclesiastical court for a new trial and if convicted there, for punishment.37

It is important to rest of this story to remember that church courts did not impose the death penalty. Trials in ecclesiastical courts were conducted by compurgation whereby the accused took an oath to establish his innocence or guilt after which twelve persons (compurgators) swore that the accused was telling the truth. Moreover, if the church court did find that a minister was guilty and sentenced him to a term in the bishop’s prison, he found himself in the medieval equivalent of minimum security or “country club” prisons today. The time was not hard and escape was notoriously easy.38 Consequently, over time, clerical privilege came to be viewed as a means of escaping execution.

The harsh realities of the medieval period had spawned an equally harsh legal system in England: Many crimes were deemed felonious and felonies carried mandatory death sentences. In fact, mandatory death sentences were the rule for treason and all felonies, except petty larceny and mayhem (maiming), down to the year 1826!39 In the late medieval period, judges in the king’s courts cast about for a way to relieve the inevitability of execution following upon criminal conviction. Up to the fourteenth century, clerical privilege was limited to felonious clergymen. After that, secular courts gradually extended it first to all manner of folk affiliated with the Church including persons not strictly in orders. For instance, Church assistants, such as doorkeepers, readers, and sub-deacons convicted of serious crimes were granted “clergy” and turned over to church courts.40 By the fifteenth century, judges were ignoring dress altogether and accepting as proof of eligibility a single criterium—literacy. Literacy, established when the convicted felon read a passage from the Bible, became the means by which lay judges ameliorated the sentences of larger and larger numbers of claimants. In effect, judges extended temporary clergy status to convicts (they became “clerks convict”) who had no actual clerical connection whatever. The reading test became the means by which “clergy became the massive fiction [pretending priestly status for felons who could read] that tempered in practice the harshness of the common law rule.”41

The means was now available to laymen who could read to save themselves from the gallows by having their cases moved to ecclesiastical courts. But the door was also open to wholesale abuse of the system, particularly in view of the fact that common law courts developed in practice the doctrine that all felonies (except treason) were clergyable for the first offense. The possibility that heinous criminals in significant numbers could go virtually unpunished and be free to break the law again prodded Parliament to remove from benefit of clergy serious crimes such as murder, rape, arson, burglary, robbery, horse-stealing, and so on.42

Benefit of clergy continued to change and evolve. For instance, a statute of 1489 required that men not actually in orders (who were not actually priests) be denied a second claim to clergy by means of a brand on the brawn of the thumb (M for murderer; T for various forms of theft). Clergymen were required to produce proof of ordination for a second claim. The link with ecclesiastical courts was entirely severed in 1576 when Parliament ended the requirement that the clergied offender undergo compurgation (trial in a church court). Thereafter, following the successful pleading of clergy and the branding procedure, judges discharged prisoners immediately. 43 Women in England could not claim benefit of clergy on the same footing as men until 1691.44 Parliament finally abolished the plea altogether in the late 1820s.45

Endnotes

1This means only once in a lifetime, not once for each type of clergyable felony. A 1789 Virginia law stated that the only way a person could be granted benefit of clergy more than once was this: If the person were admitted to benefit of clergy upon conviction of a felony, that admission did not act as a pardon or discharge for other clergyable offenses committed by the person before the current conviction and that if those previous clergyable offenses were later discovered and resulted in convictions, the person was to be granted clergy on each and burned in the hand for each of the earlier offenses. William Waller Hening, The Statues at Large… 13:30-2.

2One other legal use of branding human beings in the Virginia colony has come to light. An early seventeenth-century law (1642/3) specified that servants who repeatedly ran away were to be “branded in the cheek with the letter R. and passe under the statute of incorrigible rogues”. Whether county courts ever made use of this procedure is unknown. In the revised Virginia code of 1705, the extensive “Act concerning Servants and Slaves” contains no mention of branding of either servants or slaves for any reason. Hening, 1:254-55; 3:447-462.

3George W. Dalzell, Benefit of Clergy in America & Related Matters (Winston-Salem, N.C., 1955), pp. 95-8; Arthur P. Scott, Criminal Law in Colonial Virginia (Chicago, 1930), p. 103.

4Scott, p. 103-4. Interestingly, none the acts of the General Assembly of Virginia before the Revolution provides a complete rundown of penal offences in Virginia.

5George MacLaren Brydon, Virginia’s Mother Church (Philadelphia, 1952), 2:52; Dalzell, pp. 96-97. Brydon says that because there was no bishop in Virginia, the governor (as head of the church in Virginia) acted as ordinary. Dalzell says that the prisoner was turned over to “the rector of the parish” to test his literacy. Ordinaries in England were priests who represented the bishop, not the bishop himself. In Virginia, it was probably the rector of the parish in which the Court was located, rather than the governor himself, who tested the literacy of the claimants. The General Assembly abolished the reading test in 1732.

6Dalzell, p. 97.

7Louis B. Wright and Marion Tinling, eds., The Secret Diary of William Byrd of Westover, 1709-1712 (Richmond, 1941), pp. 358-59.

8Thad W. Tate, The Negro in Eighteenth-Century Williamsburg (Williamsburg, 1965), pp. 94-5.

9Psalm 51 (Miserere mei, Deus) has a significant place in Biblical history as the most famous of the penitential psalms. King David openly confesses his affair with Bathsheba and prays for the removal of personal and social disorders that his sin has brought him. (Thanks to Dave DeSimone for this insight.)

10York County, Judgments and Orders 2, pp. 323-4.

11Peter Charles Hoffer and William B. Scott, eds. Criminal Proceedings in Colonial Virginia… [Richmond County, Virginia] (Athens, Ga., 1984), p. 181.

12Whether judges and justices were obliged to inform defendants about benefit of clergy is another question. In any case, the plea was put in as a matter of course for eligible defendants in the eighteenth century.

13No references to other letter brands (such as B for bigamy) have turned up.

14Richard Starke, Office and Authority of a Justice of the Peace Explained and Digested (Williamsburg, Va., 1774), pp. 87-8, 91; William Blackstone, Commentaries on the Laws of England (Chicago, 1979), 4:360. The brawn of the thumb is the fleshy area at the base of the thumb.

15Starke, p. 88.

16Richmond County Records, p. 197.

17Hening, 12:734, 13:31, 434. Calendar of State Papers, 5:592.

18Dalzell, p. 249.

19Hening 3:102-3. In a few instances, slaves charged in insurrections, probably because of the seriousness with which whites viewed slave uprisings, were brought before the General Court or the governor and Council. Mary Aggy’s 1730 case in which she, a slave, claimed benefit of clergy from the York County was referred to the General Court as well. Philip J. Schwarz, Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705-1865 (Baton Rouge, La., 1988), pp. 19, 87.

20Anne R. Willis, “The Masters’ Mercy: Slave Prosecutions and Punishments in York County, Virginia, 1700 to 1780” (M.A. thesis, College of William and Mary, 1995), p. 104, 137-148.

21Hening, 4:325-327.

22The General Assembly described arson in an act of 1730 as malicious burning of “any tobacco-house, warehouse, or storehouse, or any house or place, where wheat, Indian corn, or other grain, shall then be kept, or any other houses whatsoever.” Hening, 4:271.

23Hening, 4:272.

24Hening, 6:105.

25Hening, 8:139.

26Hening, 8: 522; for discussion of slaves and benefit of clergy, see also Schwarz, pp. 19, 21-3, 27, 75-6, 90, 123, 126, 206.

27Hening, 6:105.

28Hening, 6:106.

29Hening, 6: 123.

30J.H. Baker, An Introduction to English Legal History (London, 1990), p. 146.

31Baker, p. 147.

32By 1439, the final attempt to reunite the Eastern Orthodox Church with Rome had failed. As a result, Eastern Orthodox Christians were not subject to the laws of the Catholic Church.

33Baker, pp. 148-9.

34Baker, p. 148.

35Church courts had pervasive and unquestioned jurisdiction over the lives or ordinary people in family matters such as marriage and bastardy, sexual offenses (fornication, adultery), wills and inheritance of personal property, and defamation and breach of faith (blasphemy). Baker, pp. 149-50.

36Based on pronouncements from Rome in the early Middle Ages such as “A Constitution of the Pope that no man should accuse the Priests of the Holy Church before a secular judge.” The rule protected priests who dared rebuke rulers and noblemen who transgressed the moral law. Brydon, 2:50. Brydon noted biblical precedents for the idea. St. John the Baptist was beheaded when he condemned King Herod’s moral indecency. He would not be the last prophet or preacher to risk his life by rebuking temporal authority.

37Baker, p. 586-7.

38Ecclesiastical courts did not impose the death penalty under the doctrine that crimes against society constituted sins against God and that God wanted not the death of a sinner but rather an amended life achieved through confession and penance. This meant that the system sometimes allowed the unrepentant priest not only to save his neck but to be free possibly to commit another serious crime. Dalzell, p. 13.

39J.M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton, 1986), p. 141; James Fitzjames Stephen, A History of the Criminal Law of England (New York, 1883), 3:458.

40Stephen, I:457-61.

41Beattie, p. 141.

42Scott, p. 103; Stephen, p. 458; Beattie, p. 141.

43Beattie, p. 142.

44Baker, p. 587, fn. 70.

45Baker, p. 589.

Sources

Baker, J. H. An Introduction to English Legal History. London, 1990.

Beattie, J. M. Crime and the Courts in England, 1660-1800. Princeton, 1986.

Blackstone, William. Commentaries on the Laws of England, 4: 358-69. Facsimile of the First Edition of 1765-1769. Chicago, 1979.

Cockburn, J. S. and Thomas A. Green, eds. Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800. Princeton, 1988.

Dalzell, George W. Benefit of Clergy in America & Related Matters. Winston-Salem, N.C., 1955.

Milsom, S. F. C. Historical Foundations of the Common Law. London, 1969.

Rankin, Hugh F. “The General Court of Virginia.” Colonial Williamsburg Foundation Research report. Williamsburg, Va., 1958.

Rankin, Hugh F. Criminal Trial Proceedings in the General Court of Colonial Virginia. Williamsburg, Va., 1965.

Schwarz, Philip J. Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705-1865. Baton Rouge, La., 1988.

Scott, Arthur P. Criminal Law in Colonial Virginia. Chicago, 1930.

Starke, Richard. Office and Authority of a Justice of the Peace Explained and Digested. Williamsburg, Va., 1774.

Stephen, James Fitzjames. A History of the Criminal Law of England. 3:457-476. New York, 1883.

Webb, George. The Office and Authority of a Justice of the Peace. Williamsburg, Va., 1736.

Linda Rowe is a historian in the Department of Training and Historical Research. This paper was published in the Colonial Williamsburg Interpreter, Volume 19, No. 1 (1998).

[Daniel]

Good article, Captain. Makes it very clear that the benefit of clergy in the colonies lagged behind the benefit of clergy in England in many ways.