The concept of benefit of clergy
The swamp waters are still rising around The Legal Genealogist this week.
But… but… but…
I can’t help but respond to the plaintive wail of fellow genealogist Victor Jones, who ran across a record in the New Bern District Superior Court minutes from 1785-1786 in which the defendant was found guilty of manslaughter. When it came time for the punishment, however, the defendant pleaded “benefit of clergy.”
Victor noted that he had “seen this term frequently in the 1700s and early 1800s court minutes for this District and for Craven County Superior Court. I know some (most?) of the defendants were not ‘clergy’.”
So, he wondered, “What exactly does ‘benefit of clergy’ mean? What effect did it have in the pronouncement of a punishment for the guilty?”
I’ve written briefly about benefit of clergy before, in the context of its abolition in Oregon Territory,1 but some of the references there are dated so…
A quick review.
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 a fairly wide variety of offenses — many many more than we might imagine.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 places, that requirement was dropped. If the courts granted the benefit, the person was punished in a manner other than by death — usually, by branding in the hand with a hot iron.5
This was very much part of early colonial law, including in North Carolina, where Victor is researching.6
And the provision persisted into North Carolina well into the 19th century. In 1806, it was extended to females7 (the presumption earlier likely being that they couldn’t read), and in 1816 the legislature there extended the benefit of clergy to slaves on the same basis as it was extended to whites.8
It wasn’t abolished in North Carolina until 1855.9
So… benefit of clergy … a form of statutory mercy at a time when the death penalty was in wide use.
- See Judy G. Russell, “Of crime and punishment in Oregon Territory,” The Legal Genealogist, posted 16 Jul 2012 (https://www.legalgenealogist.com/blog : accessed 17 Jan 2017). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 128, “benefit of clergy.” ↩
- Linda Rowe, “The Benefit of Clergy Plea,” Research Division, Colonial Williamsburg (http://research.history.org : accessed 15 Jul 2012). Now available via the Internet Archive Wayback Machine, or as a podcast, “Escape the Noose: Benefit of Clergy,” Colonial Williamsburg (both accessed 17 Jan 2018). ↩
- Black, A Dictionary of Law, 128, “benefit of clergy.” ↩
- Rowe, “The Benefit of Clergy Plea.” ↩
- See generally Lawrence. M. Friedman, Crime and Punishment in American History (New York : Basic Books, 1996), 43-44. See also George W. Dalzell, Benefit of Clergy in America and Related Matters (Winston-Salem, NC: J.F. Blair, 1955). ↩
- See Chapter 697, in Henry Potter, editor, Laws of the State of North-Carolina (Raleigh: J. Gales, 1821), II: 1063-1064; digital images, Google Books (http://books.google.com : accessed 18 Jan 2018). ↩
- Ibid., Chapter 912, at 1554. ↩
- §22, Chapter 34, “Crimes and Punishments,” in Bartholomew Moore and Asa Biggs, editors, Revised Code of North Carolina (Boston: Little, Brown & Co., 1855), 207; digital images, Google Books (http://books.google.com : accessed 18 Jan 2018). ↩