'Benefit of Clergy' in Maryland and Virginia
Jeffrey K. Sawyer
University of Baltimore - School of Law
January 1, 1990
American Journal of Legal History, Vol. 34, No. 1, January 1990, pp. 49-68
Many historians know of the famous trial of British soldiers involved in the "Boston Massacre" of March 5, 1770, after which two of the soldiers received "benefit of clergy."' Before the justices of the Superior Court of Massachusetts, a jury of New Englanders, none of them Bostonians, found all of the defendants innocent of murder. However, the jury returned a verdict of manslaughter against two defendants, whereupon the convicted soldiers immediately asked the justices for benefit of clergy. Benefit of clergy was granted, and the court ordered the men "burnt in the hand," and released.
The Massachusetts court had not unearthed an obscure relic of English law in order to allow the soldiers to escape harsher justice; it had followed a criminal law procedure well established in the colonies as well as in England. The common law generally allowed a convicted felon to be hanged, but first time offenders convicted of manslaughter were frequently branded with a letter "M" for "manslayer" in the "brawn of the thumb" and released without further punishment-after having been granted benefit of clergy. The procedure was an integral part of the criminal common law with the generally understood and accepted purpose of mitigating the harshness of the law in cases where first time offenders were found guilty of lesser felonies. The procedure was used widely in the colonies until after the Revolution.
This article has two purposes. First, it demonstrates that benefit of clergy was a fundamental feature of colonial criminal justice in the Chesapeake colonies. An examination of court records, legal treatises, and statutory enactments proves that, as in England, benefit of clergy was a common law procedural right that had an enormous impact on the administration of criminal justice. Second, the Maryland pattern of criminal law reform and prison building closely mirrors the developments in Virginia already examined by Kathryn Preyer. This evidence strengthens the argument that the need to abolish the effects of benefit of clergy was a determining factor in the eighteenth-century reforms in favor of "proportionate" punishments and the substitution of prison sentences of varying lengths for other forms of punishing felons.
Number of Pages in PDF File: 20
Keywords: Maryland, Virginia, colonial history, legal history, benefit of clergy, criminal law, manslaughter, homicide, murder, punishment, English law
JEL Classification: K14, K19, K39, K42, K49Accepted Paper Series
Date posted: June 1, 2014
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