Pleading the Death of the Clergy

Under the rules of criminal trials at the time of the Boston Massacre, defendants weren’t allowed to testify on their own behalf. That meant that none of the eight soldiers’ voices got into their trial record. (Capt. Thomas Preston helped with his defense, and is thus recorded as having asked questions, not answered them.)

Yet there is an anecdote that might preserve the voice of Pvt. Mathew Kilroy. He was one of the two men convicted of manslaughter. That was a capital crime, but under an old British law defendants convicted of it for the first time could “plead the benefit of clergy” and suffer only being branded with the letter F on the base of one thumb.

One of the three trial judges, Peter Oliver (shown above), included this incident in his delightfully caustic memoir of the run-up to the Revolution:

At the Conclusion of the Trial of Capt. Preston’s Soldiers in Boston; one of them, who was brought in guilty of Manslaughter, standing at the Bar, was asked by the chief Justice, what Objection he had to offer why sentence of Death should not be passed upon him? The simple Fellow did not know what to say. A Bystander whispered to him, to pray the Benefit of the Clergy. The Man not understanding the whole of the Direction, bawled out with an audible Voice, “may it please your Honors! I pray the Death of the Clergy”—& many present nodded their Amen.

It’s possible that the man who cried out was Pvt. Edward Montgomery, the other soldier convicted of manslaughter. But there’s at least a 50% chance it was Kilroy, and since we know Kilroy hadn’t been educated well enough to sign his name I like to think he was the man.

The “benefit of clergy” was originally a benefit for actual or potential members of the clergy, who qualified by showing that they knew how to read from the Bible. The branding was added to prevent such a felon from escaping capital punishment twice.

So how did Kilroy avoid hanging this way? While it’s possible he could read without being able to sign his name, the most likely explanation is that by the eighteenth century “benefit of clergy” was merely a ritual. People understood that the branding had become the actual punishment for manslaughter, as well as a permanent “one strike” for the felon. Convicts were even known to memorize the Bible verse they traditionally had to read—Psalms 51:1, the “neck verse”—but courts still went through the motions of the plea. (For more on “benefit of clergy,” here’s an article from Colonial Williamsburg, and a podcast transcript.)

The muster rolls of the 29th Regiment show that several of the soldiers put on trial were promoted to corporal or sergeant soon after they rejoined their company. Kilroy didn’t rise in those ranks, probably because being a non-commissioned officer required some literacy.

(A quick reminder: Pvt. Mathew Kilroy’s fatal confrontation with the Boston crowd is being reenacted three times today, the 241st anniversary of that event.)