We have all heard how in previous centuries a person could be hanged on the slightest pretext. What crimes merited transportation? Or death? Or corporal punishment? Quite by accident, I came across the following information.
“Death Without the Benefit of Clergy”
There were more than 160 offences which warranted the death penalty, the sentence being “death without the benefit of Clergy.” This term was attached to many sentences. What exactly was ‘Benefit of Clergy’?
Basically, Benefit of Clergy, privilegium clericale, came about in 1274 under Edward I in response to the high esteem in which the ruling classes held the church. It meant that:
1. Places consecrated to religious duties were exempted from criminal arrest. Hence, the idea that a criminal could claim sanctuary in a church.
2. Clergymen were exempt from being brought before a secular judge in certain cases.
Later, anyone who could read could claim benefit of clergy. If a literate man were condemned to death, the bishop of the diocese had the option of claiming him as a clerk, and find him a place among the clergy as he saw fit. The prisoner at the bar was given a Latin book in black Gothic characters by the ordinary, from which he must read one or two verses. If the ordinary declared him to be ‘legit ut clericus’, that is ‘He reads like a clerk’, the offender was burnt in the hand. If he could not read, he suffered death.
Henry VII restricted the privilege in 1489, and in 1512 was abolished by Henry VIII with regard to murder and other serious crimes.
So what crimes merited the death penalty?
High Treason was considered the worst civil crime, and was divided into seven different categories:
1. Compassing (i.e. bringing about, scheming or plotting) or imagining the death of the king, queen, or heir apparent.
2. Levying war against the king in his realm.
3. Adhering to the king’s enemies and giving them aid in the realm or elsewhere.
4. Slaying the king’s chancellor, or judge, in the execution of their offices.
5. Violating the queen, the eldest daughter of the king, or the wife of the heir apparent, or eldest son.
6. Counterfeiting the king’s great seal, or the privy seal.
7. Counterfeiting the king’s money, or bringing false money into the kingdom.
The punishment for High Treason was:
“That the offender be drawn to the gallows, on the ground or pavement; that he be hanged by the neck, and then cut down alive; that his entrails be taken out and burned while he is yet alive; that his head be cut off; that his body be divided into four parts; and that his head and quarters be at the King’s disposal.”
However, women were only to be drawn and hanged, although previously, they were burned at the stake.
Petty Treason was the offence of:
1. A servant killing his master.
2. A wife killing her husband.
3. A person killing a prelate.
The sentence was death.
Two kinds of felonies – public and private.
Public felonies were state felonies relating to:
1. The coin of the realm.
2. The king and his Counsellors.
3. Soldiers and marines.
4. Embezzling public property.
5. Riot and sedition.
6. Escape from prison.
7. Revenue and trade.
1. Murder. When a murderer had been executed, his body was handed over for dissection, and his property was forfeited to the State (as was the property of a suicide).
2. Manslaughter. A person who was guilty of manslaughter had his hand burned and his possessions forfeited.
3. Sodomy. Punishment: Death.
4. Rape. Punishment: Death.
5. Forcible marriage. ‘Forcible marriage or defilement of women’ was an offence where the property was considered more important than chastity. It was a felony without the benefit of clergy to take away for lucre any woman having lands or goods, or being an heir apparent to an estate by force or against her will and to marry or to defile her. However, the forcible marriage or defilement of a woman without an estate was not punishable at all! Obviously wealth had a higher moral virtue!
6. Polygamy. A statute of James I declared Polygamy to be a felony, but not excluded from benefit of clergy, so offenders were not subject to the death penalty, but were transported, although there are no records of polygamists arriving in
7. Maiming. ‘Maiming, cutting the tongue, putting out the eyes of any of the King’s liege people, slitting the nose, cutting off a nose or lip, or cutting off or disabling any limb or member by malice forethought and by ling in wait with an intention to maim or disfigure’ was called ‘Mayhem’, and was subject to death.
8. Simple Larceny. Divided into grand larceny and petit larceny. Grand larceny, punishable by death and the forfeiture of property, was “the felonious taking and carry[ing] away the mere personal property or goods of another above the value of twelve-pence [1 shilling].’ Petit larceny was taking of goods valued at less than twelve pence, and was punishable by imprisonment, whipping, or transportation, and the forfeiture of goods and chattels.
9. ‘Mixt larceny’ was the taking of a man or goods from his house. If a person was previously threatened or assaulted, the crime was termed Robbery.
11. Arson. Punishable by death without the benefit of clergy if someone set fire to corn, stacks of straw, hay, or wood, or rescuing any such offender; setting fire to a coalmine, windmill, watermill or other mill, or pulling down the same; burning any ship; burning the king’s ships of war, afloat or building, the dock-yards or any of the buildings, arsenals or stores therein. Threatening by anonymous or fictitious letters to burn houses, barns etc. But if someone burned their own house without injuring anyone else, it was only counted as a misdemeanour and punished by fine, imprisonment or the pillory.
12. Burglary. Punishable by death for both perpetrators and those who were accessories before the event.
The following “domestic aggravations” or larceny were punishable with death without the benefit of clergy: Larcenies above the value of twelve pence:
1. In a church or chapel, with or without violence or breaking the same.
2. In a booth or tent, a market or fair, in the daytime or in the night, by violence or breaking the same, the owner or some of his family being therein.
3. By robbing a dwelling in the daytime, any person being therein; in a dwelling-house by day or by night, without breaking, any person being therein and put in fear.
Larcenies to the value of five shillings:
1. By breaking any house, outhouse, shop or warehouse belonging in the daytime.
2. Privately stealing goods, wares, or merchandise in any shop, warehouse, coach house, or stable by day or night, though the same was not broken open, and though no person was therein.
Larcenies to the value of forty shillings [£2] from a dwelling house or its outhouses, although the same be not broken, and whether a person is therein or not, unless committed upon their masters by apprentices under the age of fifteen years.
Other Principle Capital Offences
1. Stealing an heiress
2. Forgery of deeds, bonds, etc.
3. Bankrupts not surrendering, or concealing their effects.
4. Highway robbery.
5. Stealing bank notes, bonds, etc.
6. Stealing linen from bleaching grounds, or destroying the same.
7. Maiming or killing cattle maliciously.
8. Stealing horses, cattle, or sheep.
9. Shooting at a revenue officer, or any other person.
10. Breaking down the head of a fish-pond, whereby fish may be lost
11. Cutting down trees in an avenue, garden, etc.
12. Cutting down river or sea banks, or hop binds.
13. Taking reward for helping another to stolen goods.
14. Returning from Transportation, or being at large in the Kingdom after sentence.
15. Stabbing a person unarmed, or not having a weapon drawn, if he dies within six months.
16. Concealing the birth of a bastard child.
17. Sending threatening letters.
18. Riots by twelve or more, and not dispersing in an hour after proclamation.
19. Stealing woollen cloth from tenter ground.
20. Stealing from a ship in distress.
21. Challenging jurors above 20 in capital felonies or standing mute.
22. Selling cottons with forged stamps.
23. Deer stealing, second offence.
24. Uttering counterfeit money.
25. Prisoners under Insolvent Act guilty of perjury.
26. Destroying silk or velvet in the loom, or the tools for manufacturing same, or destroying woollen goods, racks, or tools, or entering a house for that purpose.
27. servants purloining their master’s goods, value 40 shillings.
28. Personating bail, or acknowledging fines or judgements in another’s name.
29. Escape by breaking prison;
31. Attempts to kill Privy Counsellors, etc.
32. Smuggling by persons armed or assembling armed for that purpose.
33. Robbery of mail.
34. Destroying turnpikes or bridges, gates, weighing engines, locks, sluices, engines for draining marshes, etc.
37. Soldiers or sailors enlisting into foreign service.
Crimes not punishable by death
‘Single Felonies’ were punished by transportation, whipping, imprisonment, the pillory and hard labour in houses of correction according to the offence:
1. Grand larceny, which was every sort of theft above the value of one shilling, not otherwise distinguished.
2. Receiving or buying stolen goods, jewels and plate.
3. Ripping or stealing lead, iron, copper, etc., or buying or receiving the same.
4. Stealing or receiving ore from black lead mines.
5. Stealing from furnished lodgings.
6. Setting fire to underwood.
7. Stealing letters, or destroying a letter or packet, advancing the postage and secreting the money.
8. Embezzling naval stores.
9. Petty larcenies or thefts under one shilling.
10. Assaulting with intent to rob.
11. Aliens returning after being ordered out of the kingdom.
12. Stealing fish from a pond or river, fishing in enclosed ponds, or buying stolen fish.
13. Stealing roots, trees, or plants of the value of 5 shillings or destroying them.
14. Stealing children with their apparel.
15. Bigamy, or marrying more wives or husbands than one.
16. Assaulting or cutting, or burning clothes.
17. Counterfeiting the copper coin.
18. Solemnising marriage clandestinely.
20. Cutting or stealing timber trees.
21. Stealing a shroud out of a grave.
22. Watermen carrying too many passengers in the
24. Frauds by cheating or swindling.
25. Conspiring to injure others.
26. Stealing dead bodies.
27. Stealing growing cabbages, turnips, etc.
28. Cutting and stealing wood.
29. Robbing orchards and gardens.
30. Stealing deer from forests.
31. Stealing dogs.
32. Making and selling fireworks and squibs.
33. Throwing the same on fire about the streets.
34. Uttering base money.
35. Embezzlements in the woollen, silk or other manufactures.
36. Combinations and conspiracies for raising the price of wages.
37. Keeping bawdy and disorderly houses.
38. Escaping out of House of Correction.
39. Committing the same offence, after being once punished as rogues and vagabonds.
Because the punishments were OTT to the crimes, often petty crimes went unpunished, and punishments when handed down were often not carried out.
Treaties on the Police of the Metropolis by Dr. Colquhoun in 1780 states:
“It generally happens in the metropolis that out of from 2,000 to 2,500 prisoners who are tried for different crimes in the various Courts of Justice, above five sixth parts are for larcenies, acts of vagrancy and smaller offences, where the Benefit of Clergy either attaches or does not apply at all. The major part are, of course, returned upon Society, after a short imprisonment, or some corporal punishment, so frequently to renew their depredations on the public. But a vast proportion are always acquitted.”
In the year 1795, out of 1,894 prisoners tried at the Old Bailey and the different assizes in the country, (not taking the smaller courts into account), 854 were acquitted because of no prosecutors.
“According to the present system, out of about two hundred and upwards who are, upon an average every year, doomed to suffer the punishment of death, four-fifths or more are generally pardoned, either on condition of being transported, or of going into his Majesty’s service, and not seldom, without any condition at all. Hence it is that, calculating on all the difference chances, encouragement to commit crimes, actually arise[s] out of the system intended for their prevention – first from the hope of avoiding detection and apprehension; secondly of escaping conviction, from the means to vitiate and suborn the evidence; thirdly, from the mercy of the jury, in considering the punishment too severe; and fourthly, from the interest of persons of rank or consideration applying for the interference of Royal mercy, by pardons.”
So the 18th century malefactor might get away with it.
Or he/she might not.
Evelyn Tidman is the author of four historical novels.