From the beginning of the eighteenth century on (the privilege having been extended by statute to all the inhabitants of England, male or female), any one, irrespective of his learning, could plead his clergy once to any crime that remained clergyable, if he could find one, and priests in orders could do so indefinitely. But the crimes which were clergyable were correspondingly reduced in number. In 1779 branding was practically done away with in England. (19 Geo. 3, c. 74 s. 3.)
It is interesting to find the custom still in vogue in America as late as 1784, as shown by the case of Cullen.[41]
In one or two of the Southern States the plea lingered on for nearly another half century.
When the defendant could not avail himself of clergy and no pardon was at hand to save him, the law in the early days took its full and awful course. Thus we read in the first almost illegible volume of the records, the phraseology of the sentence, save for its terms, being practically the same to this day:
Att a Court holden for the tryal of negro
and Indian slaves at the Citty Hall of the Citty of New-York,
on Tuesday the 15th day of April, Anno Dom. 1712.Present: Caleb Heathsope, } Esquires, William Smith, } Justices Edward Blagge } Court opened— The defendt Tom being brought to the Barr & having nothing to say for himself why
judgment of death should not pass agt him according to the verdict &c.
It is considered by the Court that he be carryed from hence to the place from
whence he came and from thence burned with a slow fire that he may continue
in torment for eight or ten hours and continue burning in said fire untill he be
dead and consumed to ashes.Dom Regina { vs. { Tom the Negro man, slave { of Nicholas Rossvelt J.D. {
Att a Court holden for the tryal of negro | ||
| Present: | ||
| Caleb Heathsope, | } | Esquires, |
| William Smith, | } | Justices |
| Edward Blagge | } | |
| Court opened— | ||
| The defendt Tom being brought to the Barr& having nothing to say for himself why judgment of death should not pass agt himaccording to the verdict &c. It is consideredby the Court that he be carryed from hence tothe place from whence he came and from thenceburned with a slow fire that he may continue in torment for eight or tenhours and continue burning in said fire untill he be dead and consumed toashes. | ||
| Dom Regina | { | |
| vs. | { | |
| Tom the Negro man, slave | { | |
| of Nicholas Rossvelt J.D. | { |
At present, when "benefit of clergy" is but a legal tradition, and pardons are obtained with difficulty, but one legal barrier can be raised to the interposition of sentence upon a convict—proof of his insanity. If, in the opinion of the court, there is reasonable ground for believing him to be mentally unbalanced, the question must be determined as provided in the Code. If he is found to be sane, judgment must then be pronounced, but if found insane he must be committed to the State Lunatic Asylum until he recovers his sanity, and when notice is given of that fact he must be brought before the court for judgment. Of course, he may also allege legal ground why the judgment should be arrested or why a new trial should be granted, but at this time a technical discussion of these motions would be unnecessary.
Defendants are far less likely to feign insanity at the time of their sentence than they are upon the actual trial; for if a man is clever enough to act the part of a lunatic he is shrewd enough to realize that the best time to do so is before he has been convicted of the crime charged against him.
There is a reputed case, the memory of which still lingers around the criminal courts, where it is said that a defendant who was charged with murder in its first degree feigned insanity just before his case was moved for trial. This was many years ago, at a time when such a fact did not, of itself, necessarily excite the same suspicion that it does to-day. The issue of the defendant's sanity was tried before a lay jury, who promptly found that he was incapable of understanding the proceedings against him or of making proper preparation for his defence. He was thereupon committed to the State Asylum for the Insane, where he remained incarcerated for many years. It so happened that there was but a single eye-witness to the shooting, and the circumstances surrounding the affair were such that without the testimony of this witness it would be a practical impossibility to determine whether the deceased had been murdered or had committed suicide. After twenty years, in the course of which the defendant's lawyer had died and the entire family of the prisoner had either died or disappeared, another lawyer, who had found among some old papers a memorandum of the case, went to Matteawan, located the defendant, and discovered, as he had anticipated, that he was entirely sane. A writ of habeas corpus was thereupon procured and the defendant brought back to New York.
In that time the entire aspect of the city had changed. Buildings twenty-five stories in height had replaced those of six; the city had reached far up and entirely covered the island; electric surface cars had taken the place of ramshackle, bobtail horse cars. The defendant, prematurely aged and with clothes long out of date, impressed those in the court-room as a sort of Rip Van Winkle, awakened after a long sleep. There was absolutely no question as to the man's sanity, and he was discharged upon the writ of habeas corpus and remanded to the Tombs to await his trial. The following morning he was brought into court, and the district attorney moved that the indictment against him be dismissed on the ground that there was no longer any evidence upon which the people could proceed to prosecution. Then for the first time the defendant discovered that the only witness against him had died ten days after he had been committed to the asylum. Although the writer does not vouch for the authenticity of this story, the incident may well have happened.