Crime and Punishment in American History - Lawrence M. Friedman [27]
Pennsylvania was not the only colony where the pardoning power made a difference. By one estimate, the Governor and Council in Virginia pardoned or commuted the sentence of a quarter or more of those who were condemned to die in the eighteenth century.57 In eighteenth-century New York, 51.7 percent of the condemned won some sort of mercy.58 Some were pardoned on the condition that they leave the province, or, in a few cases, were forced to enlist in the army or navy.59 In one special situation, a condemned person had a legal right to reprieve (though not pardon): a pregnant woman. In April 1736, for example, Margaret Grass, sentenced to death in New York, “pleaded her Belly and said she was with child.” A “jury of matrons” was convened to examine her claim. This “jury” reported that Margaret was indeed pregnant, and she was spared until she should give birth; in August, she was given a pardon 60
Murder, of course, was a capital crime. So was rape. Rape was a violent crime; but, under English law, it was legally rape to have intercourse of any kind with a child under ten. Massachusetts Bay enacted a similar law, after an appalling incident in the 1640s: three servants of John Humfry had intercourse with his nine-year-old daughter. The General Court declined to impose the death penalty; there was no specific law on the subject, and it was not, biblically speaking, a capital crime. They fined the main villain, ordered his nostrils to be slit and seared, and made him wear a noose of rope around his neck. The other two culprits were fined and whipped. The General Court then made rape, including statutory rape, a capital offense.61
The death penalty was also imposed on persistent backsliders and incorrigibles. A Virginia statute of 1748 illustrates the point. For stealing a hog, the first offense was worth twenty-five lashes and a fine; the second offense meant two hours in the pillory, nailed by the ears, plus a fine. The third offense brought death.62
Nonetheless, it remains true that the colonies used the death penalty rather sparingly. In Massachusetts, one mitigating factor was evidentiary. No one was to be put to death in Massachusetts Bay “without the testimonie of two or three witnesses, ”a rule that had biblical backing (Deuteronomy 17:6). This was yet another reason why colonial law so favored confessions: if the prisoner confessed, the two-witness rule was dispensed with.63
Another mitigating doctrine was that curious legal fiction, “benefit of clergy.” This strange device neatly illustrates one of the quaintest habits of the common law: its skill at changing a rule while pretending not to. As the phrase implies, this was originally a doctrine only priests and monks could use. In the Middle Ages, if a priest was accused of, say, murder, he could claim the privilege of his status, and demand to be transferred for trial to the ecclesiastical courts. But how can we tell if someone is a priest or not? Simple: a priest can read, a layman cannot. A defendant proved his right to benefit of clergy by reading from a book; not any book, of course, but the Good Book.
By about 1600, this old device had been twisted into a wondrous new shape. In the first place, it protected anybody who could read at all, not just priests and monks; and, in the second place, a defendant who claimed the privilege did not go to a church court; he escaped the death penalty altogether. Instead, he received a milder punishment—usually branding on the thumb with a hot iron. The Bible “reading” also became quite stereotyped: the Bible was always opened to the very same passage, the first lines of Psalm 51: “Have mercy upon me, O God, according to thy loving-kindness: according unto the multitude of thy tender mercies blot out my transgressions.” This passage came to be called the “neck verse.” Its magic words delivered the defendant from the