The Disadvantage of the Benefit of Clergy

As reported here, jurors convicted Pvt. Mathew Kilroy and Edward Montgomery of manslaughter instead of murder for the Boston Massacre. Manslaughter was still nominally a capital crime—but only nominally.

Under British law, people convicted of manslaughter could plead “benefit of clergy” at their sentencing. That plea was an old protection for actual or potential members of the clergy, who could get out of hanging by demonstrating the valuable skill of being able to read from the Bible.

While avoiding execution, those defendants who weren’t actually in holy orders got branded on the base of their thumbs to mark them as convicted felons, ineligible to make the same plea a second time. Sources from the late Middle Ages say the brand was “M” for murderer or manslayer, “T” for thief and other lesser criminals. (Some histories say there was another brand of “F” for felon. It’s hard to sort out.)

That branding was of course painful. Thus, the benefit of clergy plea was a way to reduce a death sentence to a corporal punishment and public shaming for first-time offenders.

And it wasn’t just for the literate after all. Courts asked defendants to read the same verse—Psalms 51:1, the “neck verse”—so illiterate criminals could memorize that verse and gain the same benefit.

And British society knew all that. When the jury in the Massacre trial found Kilroy and Montgomery guilty of manslaughter, everyone knew they were setting those men up for a remitted death sentence and a branding.

Some people felt that was still too harsh. Acting governor Thomas Hutchinson reported shortly after the trial, “I was applied to to remit the burning.”

People wanted to spare Montgomery in particular. He “had been knocked down with a club, and provoked to fire, as appeared in the course of the evidence,” the governor wrote. Montgomery was also “a fellow of very good character.”

However, Hutchinson found, “[Lt. Col. William] Dalrymple & other Officers wished I would not,” probably to avoid making Bostonians more resentful toward the army. Dalrymple’s 14th Regiment was still stationed on Castle Island (and that had become a political issue in itself). And after all, Montgomery was just a soldier.

In the end, therefore, Hutchinson decided he “did not think it prudent” to commute the soldiers’ branding. The sentencing, and punishment, was set for 14 December.

COMING UP: The smell of burning flesh.