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
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
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.
Felonies
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.
Private felonies:
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 New
South Wales.
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.
10. Piracy
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.
Hanging outside Newgate - Wikimedia
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;
30. Sacrilege.
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.
35. Mutiny.
36. Desertion.
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.
19. Manslaughter.
20. Cutting
or stealing timber trees.
21. Stealing
a shroud out of a grave.
22. Watermen
carrying too many passengers in the Thames, if
any drowned.
23. Perjury.
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.
www.evelyntidmanauthor.com