Reprise: Crime and punishment in Oregon Territory

Benefit of clergy, wager of “battle,” and petit treason

(Note: In honor of, and to get ready for, The Legal Genealogist‘s trip to the Genealogical Forum of Oregon this weekend, here’s a reprise of this 2012 post about Oregon’s criminal laws!)

Those readers whose ancestors helped settled the Oregon Territory will be pleased, no doubt, to know that, from its earliest days, Oregon’s statutes expressly abolished the “plea of benefit of clergy, wager of battle, and the distinction between murder and petit treason.”¹

Oregon Territorial Statutes

Then again, without a legal dictionary close at hand, maybe you’re not so sure…

The plea of benefit of clergy was an old English (and early American) method of getting out from under the death penalty in some cases. It started out in England as a way to get clergymen out of the secular — state-run — courts and into the ecclesiastical — church-run — courts for most offenses. But it morphed into a privilege first for anybody who could read and then for anybody who knew enough to ask for it to get out of a death sentence for first-time offenses.²

The reason for the concept in the first place was that the death penalty was originally the penalty of choice for just about any crime, including a variety of theft crimes. By colonial times in America, fewer offenses carried the death penalty but they still included grand larceny.³

So what exactly happened with the benefit of clergy? First the person had to be convicted of a felony. Then he had to claim benefit of clergy. Originally, he had to prove he could read — generally 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”).⁴ Later, in some colonies and in early state laws, that requirement was dropped. If the courts granted the benefit, the person was branded in the hand with a hot iron.⁵

By the time the Oregon Territory was passing its statutes — and the Territory was created in 1848⁶ — the death penalty there was pretty much confined to first degree murder.⁷ Even second degree murder provided only for a life sentence.⁸ And so the benefit of clergy wasn’t part of Oregon’s scheme from the beginning.

Wager of battle, as it was spelled in the Oregon statutes, or battel, as it was typically spelled, was “a species of trial introduced into England, among other Norman customs, by William the Conqueror, in which the person accused fought with his accuser, under the apprehension that Heaven would give the victory to him who was in the right.”⁹ A law dictionary that was fairly contemporary with the Oregon statutes simply described this as a “superstitious mode of trial which till lately disgraced the English law.”¹⁰ So… um… er… no. Not part of the scheme of things on this side of the Atlantic.

And then comes petit treason. In English law, this was the “killing of a master by his servant; a husband by his wife; a superior by a secular or religious man.”¹¹ As explained in Blackstone’s Commentaries on the Law:

Treason… in its very name … imports a betraying, treachery, or breach of faith. It … is indeed a general appellation, made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, … and the inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such his superior or lord. … for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary; these, being breaches of the lower allegiance, of private and domestic faith, are denominated petit treasons.¹²

So this was, in essence, a special breed of murder, and it carried a special penalty. A man convicted of petit treason was to be drawn to the place of execution and then hanged. A woman was to be burned at the stake.¹³ In some cases, such as the execution of Catherine Bevan of New Castle County, Delaware, in 1731 for the murder of her husband, the sheriff would hang the woman over the pile of wood in the hopes that she might strangle quickly and be spared the burning. In that case, the rope failed, the woman fell into the fire “and had to be pushed back into the flames, and held there by the sheriff and the crowd, while she died a lingering and horrible death, in conformity with the sentence of the Court.”¹⁴

Um… not that in Oregon either. Plain old ordinary murder, not petit treason, and plain old ordinary penalties.

See? Told you you’d be pleased to hear of the changes…

 
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