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
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
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
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.
• Bigamy (the only known cases in Virginia resulted in
acquittals so clergy was not claimed)
• 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.
• Willful murder
• 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
• 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)
• 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
• Witchcraft (obsolete by eighteenth century)
• Piracy (tried before the vice-admiralty court)
SLAVES, FREE BLACKS, AND INDIANS
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
• 1765–Manslaughter made clergyable for slaves but only in the death of
• 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
Before 1732, all felonies were non-clergyable for
this group (a few exceptions to this rule may have occurred)
As of 1732
• Willful murder
• 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
• 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
• 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
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
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
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,
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
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.
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.
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.
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.
41Beattie, p. 141.
42Scott, p. 103; Stephen, p. 458; Beattie, p. 141.
43Beattie, p. 142.
44Baker, p. 587, fn. 70.
45Baker, p. 589.
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.