Documents and Comments on Benefit of Clergy as Applied to Slaves
The following transcripts from the records of the Superior Court of Richmond County, North Carolina, illustrate the application of benefit of clergy to slaves charged with and found guilty of crimes punishable with death.[A]
Fall Term 1828
State } Burglary { Pleads "not Guilty" vs } { The following George (A Slave) } { Jury Empaneled therein { (Viz) (1) Cyrus Bennet (2) Alen Shaw (3) Try McFarland (4) Wade LeGrand (5) George Wright (6) James Covington (7) William Crowson (8) Thos. B. Blewett (9) Israel Watkins (10) Risdon Nichols (11) Lenard Webb (12) Hampton Covington— Who find the Prisoner "not Guilty" of Burglary in manner and Form as charged in the Bill of Ind't'm't But guilty of Grand Larceny....
The Prisoner appeared at the Bar and being asked by the Court If he had any thing to say why Sentence of Death should not be pronounced against him, Answered by Council praying the benefit of his Clergy. Which was allowed him by the Court & adjudged that he receive THIRTY NINE lashes on his Bare Back & stand committed till his Master enter into recognisance of $200 for his good behavior for the Space of Twelve months & pay cost of Prosecution.... Sentence to be Carried into effect on Tomorrow at 4 Oclock P. M.
| State | } | Burglary | { | Pleads "not Guilty" |
| vs | } | { | The following | |
| George (A Slave) | } | { | Jury Empaneled therein | |
| { | (Viz) (1) Cyrus Bennet | |||
| (2) Alen Shaw | (3) Try McFarland | |||
| (4) Wade LeGrand | (5) George Wright | |||
| (6) James Covington | (7) William Crowson | |||
| (8) Thos. B. Blewett | (9) Israel Watkins | |||
| (10) Risdon Nichols | (11) Lenard Webb | |||
| (12) Hampton Covington— | ||||
Fall Term 1828
State } No. 19
Burglary{ Pleads "Not Guilty" vs } { The following Jury Dennis (a Slave) } { empanelled & sworn { (1) James Meacham (2) George Wright (3) John Gibson (4) Silas Jones (5) Lemuel Chance (6) Wilie Chance (7) Thomas Bostick (8) Ananias Graham (9) James LeGrand (10) Elias Pate (11) Hugh McLean (12) George Hunesucker ... Who find the Dfd't not guilty of the Burglary as charged in the Bill of Indtmt; but guilty of Grand Larceny....
The prisoner appeared at the Bar and being asked by the Court If he had any thing to say why sentence of death should not be pronounced against him; replied by his Council, praying the Benefit of his Clergy; which was allowed; and the prisoner Dennis, to be taken to the Whipping Post and receive Thirty nine lashes on his Bare Back. Sentence to be carried into effect at 4 O'clock P. M. on Saturday.
| State | } | No. 19 Burglary | { | Pleads "Not Guilty" |
| vs | } | { | The following Jury | |
| Dennis (a Slave) | } | { | empanelled & sworn | |
| { | (1) James Meacham | |||
| (2) George Wright | (3) John Gibson | |||
| (4) Silas Jones | (5) Lemuel Chance | |||
| (6) Wilie Chance | (7) Thomas Bostick | |||
| (8) Ananias Graham | (9) James LeGrand | |||
| (10) Elias Pate | (11) Hugh McLean | |||
| (12) George Hunesucker ... | ||||
Spring Term 1832
State } No. 19
Burglary{ The following Jury vs } { empanelled & sworn—viz. Harry (a Slave) } { (1) Alexander Shaw (2) Cyrus Bennet (3) Try McFarland (4) George Wright (5) Silas Jones (6) John Gibson (7) Barton C. Everett (8) William Everett (9) Jno McAlister (10) William Strickland (11) Francis T. Leak (12) Peter H. Cole Who find the Dfdt guilty in manner and form as charged in the Bill of Indictment.
The Prisoner appearing at the Bar, being asked by the Court if he had any thing to say why sentence of Death should not be heaped against him, replied through his Council praying the Benefit of his Clergy.... Which was allowed ... and he was sentenced to be carried to the whipping Post and there to receive Twenty Lashes on his bare Back.... Sentence to be carried into effect at 4 Oclock this afternoon.
| State | } | No. 19 Burglary | { | The following Jury |
| vs | } | { | empanelled & sworn—viz. | |
| Harry (a Slave) | } | { | (1) Alexander Shaw | |
| (2) Cyrus Bennet | (3) Try McFarland | |||
| (4) George Wright | (5) Silas Jones | |||
| (6) John Gibson | (7) Barton C. Everett | |||
| (8) William Everett | (9) Jno McAlister | |||
| (10) William Strickland | (11) Francis T. Leak | |||
| (12) Peter H. Cole | ||||
Investigation of the law pertaining to benefit of clergy in the slave-holding States reveals the following facts. It existed for a longer or shorter time in Delaware, Maryland, Virginia, the Carolinas, Georgia, Alabama, Mississippi, Kentucky, Arkansas, and Missouri. Slaves were admitted to benefit of clergy in Virginia in 1732, and although the privilege was abolished as it applied to free persons in 1796, it remained legal for slaves until 1848. Likewise Kentucky withdrew the privilege from whites in 1798 but did not deny it to slaves until 1852. Alabama admitted slaves to benefit of clergy in 1805, but in 1807 all laws, customs and usages relating to Benefit of Clergy were abolished. Slaves were admitted to the privilege in North Carolina in 1816, and it was not denied them until benefit of clergy was abolished in 1854. In the other slave-holding States slaves were not admitted to benefit of clergy by statute but a law of Maryland of 1751 which imposed the death penalty on slaves without benefit of clergy implies that the privilege prevailed there through custom. Benefit of clergy was abolished in Maryland in 1809, in Georgia in 1817, in Mississippi in 1822, in Arkansas in 1838, in Delaware in 1852, in Missouri in 1845, and in South Carolina some time during the reconstruction period.
An interesting feature of benefit of clergy was its relation to the amelioration of the criminal law. In this respect there is a parallel between English and American practice. The English statute of 1706 (5 Anne 6) provided that "if any person shall be convicted of any such felony, for which he ought to have had the benefit of his clergy, if this act had not been made, and shall pray to have the benefit of this act, he shall not be required to read, but without reading, shall be allowed, taken and reputed to be, and punished as, a clerk convict, which shall be as effectual to all intents and purposes, and be as advantageous to him, as if he had read as a clerk; anything in this act, or any other law or statute, to the contrary notwithstanding." Thus benefit of clergy was extended to all classes in England.
A few years later Delaware adopted the principle of the English statute: "that if any person convicted of any such felony as is hereby made capital, for which he ought by the laws of Great Britain to have the benefit of clergy, and shall pray to have the benefit of this act; he shall not be required to read, but without any reading shall be allowed, taken and reputed, and punished as a clerk convict," etc. Likewise Virginia in 1732 adopted the application of benefit of clergy as laid down in the statute of Anne: "and if any person be convicted of a felony, for which he ought to have the benefit of clergy, and shall pray to have the benefit of this act, he shall not be required to read, but without any reading, shall be allowed, taken, and reputed to be, and punished as a clerk convict; which shall be as effectual, to all intents and purposes, and as advantageous to him as if he had read as a clerk; and any other law or statute, to the contrary notwithstanding." Thus, in the language of Pike, "a relic of extreme barbarism" became "the first step towards a modification of the previous laws which deprived a man of his life by a brutal mode of execution for a very petty transaction." (A History of Crime in England, II, 281.)
Another parallel between English and American experience was in the abolition of benefit of clergy. In Virginia and Kentucky it was denied to free persons when servitude in a penitentiary was substituted for most of the older penalties for felonies. These states anticipated the policy of England, for benefit of clergy was not there abolished and service in workhouses substituted for existing penalties until 1827. The Virginia policy adopted in 1796 was due to some extent to the example of Pennsylvania which revised its penal system in 1786. The abolition of benefit of clergy in most of the other Southern States was contemporaneous with revisions of the criminal codes.
But given a penal system in which imprisonment was the principal feature, it was not advantageous to the slave-owner or to the State to give prison sentences to slaves. And here the ghost of benefit of clergy would not down. In place of imprisonment the slave was usually corporally punished. In the language of the Alabama statute of 1807, "when any negro or mulatto whatsoever shall be convicted of any offense not punishable with death by this act, ... he or she shall be burnt in the hand by the sheriff in open court or suffer such other corporal punishment as the court shall think fit to inflict." Likewise Mississippi in 1822 enacted that "if any negro or mulatto slave was convicted of felony not punishable with death, such negro or mulatto should be burnt in the hand and suffer such other corporal punishment as the court should think fit to inflict, except when he or she shall be convicted of a second offense of the same nature, in which case such negro or mulatto slave shall suffer death." Most interesting are the laws of two States in which benefit of clergy was not provided for. According to the Black Code of Louisiana when slaves were charged with crimes punishable with death or hard labor for life, the jury might at its discretion commute the death penalty and inflict a lesser punishment. In Florida a slave guilty of crime punishable with death might at the discretion of the court suffer instead a whipping not exceeding thirty-nine lashes, have his ears nailed to a post and stand one hour, and be burned in the hand.
In the light of the documents quoted and the statutes cited the statement so frequently made that benefit of clergy disappeared in America at the time of the Revolution, and the dictum of an Indiana judge that "it is unknown to our laws" (I Blackford 63), can not be taken at their face value.
Wm. K. Boyd
Trinity College,
Durham, N. C.