Crime and Punishment in American History - Lawrence M. Friedman [28]
Benefit of clergy was one of the legal customs that made it across the Atlantic; records in Virginia and Maryland are full of examples.64 Thus, in 1664, in Maryland, a grand jury indicted Pope Alvey for killing his servant, Alice Sandford: he beat her to death with “Certaine Sticks ... which hee ... in his right hand then and there did hold.” The petit jury found him guilty. At that point, the record states that Alvey “Craves Benefitt of Clergy, which was granted him, And the booke being given and demanded whither he read or not, Answere was made that hee read.” The court then ordered Alvey to be “forthwith burnt in the brawne” of his right hand “with a red hott Iron. Which was by the Under Sherriffe immediately Executed.”65 In North Carolina, in 1702, Thomas Dereham was convicted of manslaughter; he beat William Hudson to death “with a Certain Weapon Comonly Called ... a Catt of Nine tayles.” But Dereham was “Savd by his Book”; his punishment was branding in the left thumb “with a hott Iron haveing the Letter M.”66
The net effect, then, was to give another chance, and a minor punishment, to first offenders who committed “clergyable” offenses, even though the official punishment for their crimes was supposed to be death. 67 “Clergy” had become a total fiction. By about 1700 -—England, women, too, were entitled to benefit of clergy; and, since any fool could memorize the “neck verse,” literacy no longer made any difference 68 These developments were followed in the colonies. In 1732 Virginia passed an act allowing women to claim benefit of clergy, and abolished the reading test 69 In the eighteenth century, moreover, it became the practice in Virginia, in some cases at least, to use an “Iron scarcely heated,” thus rendering the whole business a “Piece of absurd Pageantry,” in the words of one contemporary.70 After 1732, even slaves could claim benefit of clergy in Virginia; and in some cases they did .71 By this time, “clergy” was so pervasive, that a legislature, when it wanted to show it meant business, added the phrase “without benefit of clergy” to a criminal statute; so, in 1730, a Virginia law assessed the punishment of death “without benefit of clergy” on anyone who maliciously burned a tobacco or grain warehouse, and in 1732 on anyone who stole a slave belonging to someone else.72
The Puritan colonies had little truck with benefit of clergy as a form (there are a few examples in Massachusetts, though only after 1730);73 but the core idea, without the mummery, was very much alive in New England. For many crimes, only dyed-in-the-wool, repeat offenders were exposed to the death penalty. Under the Laws and Liberties of Massachusetts, a first-time burglar was to be branded on the forehead with the letter B; a second offender was to be branded and whipped; only for the third offense would he suffer death, “as being incorrigible.”h
In the South, capital punishment was much more frequent than in the northern colonies; and the burden of it fell most frequently on slaves. In the period 1706-84, 555 slaves were sentenced to death in Virginia ; this was a much higher death toll than in any northern state75 Yet one of the bloodiest episodes of capital punishment in the colonial period took place in New York, in 1741, not in the South; it, too, had a racial element. This concerned an alleged plot by blacks, in conspiracy with white devils, to rise up, pillage, and burn. A great conspiracy trial followed; more than 150 slaves, along with 20 whites, were tried. In the end, over 30 slaves were executed, along with 4 whites. The whites and 18 of the blacks were hung; 13 slaves were burned alive at the stake.76
Salem and Its Witches
Another bloody episode, also in the North, is perhaps the most famous (or infamous) aspect of colonial criminal justice. This is the Salem witchcraft trials. They have given rise to an enormous literature.77 The “witch-hunt” in Salem was an eruption of the late seventeenth century. It was unusual, but not unique. Witchcraft was a recognized offense in England, and was also a crime in