Friday, June 6, 2014

Sawyer on Benefit of Clergy and Anti-Lawyer Sentiment in Early Maryland and Virginia

Jeffrey K. Sawyer, University of Baltimore, has posted two articles from his backlist on the legal history of the colonial and early national Chesapeake.  The first is 'Benefit of Clergy' in Maryland and Virginia, American Journal of Legal History 34 (January 1990): 49-68:
Many historians know of the famous trial of British soldiers involved in the "Boston Massacre" of March 5, 1770, after which two of the soldiers received "benefit of clergy."' Before the justices of the Superior Court of Massachusetts, a jury of New Englanders, none of them Bostonians, found all of the defendants innocent of murder. However, the jury returned a verdict of manslaughter against two defendants, whereupon the convicted soldiers immediately asked the justices for benefit of clergy. Benefit of clergy was granted, and the court ordered the men "burnt in the hand," and released.

The Massachusetts court had not unearthed an obscure relic of English law in order to allow the soldiers to escape harsher justice; it had followed a criminal law procedure well established in the colonies as well as in England. The common law generally allowed a convicted felon to be hanged, but first time offenders convicted of manslaughter were frequently branded with a letter "M" for "manslayer" in the "brawn of the thumb" and released without further punishment-after having been granted benefit of clergy. The procedure was an integral part of the criminal common law with the generally understood and accepted purpose of mitigating the harshness of the law in cases where first time offenders were found guilty of lesser felonies. The procedure was used widely in the colonies until after the Revolution.

This article has two purposes. First, it demonstrates that benefit of clergy was a fundamental feature of colonial criminal justice in the Chesapeake colonies. An examination of court records, legal treatises, and statutory enactments proves that, as in England, benefit of clergy was a common law procedural right that had an enormous impact on the administration of criminal justice. Second, the Maryland pattern of criminal law reform and prison building closely mirrors the developments in Virginia already examined by Kathryn Preyer. This evidence strengthens the argument that the need to abolish the effects of benefit of clergy was a determining factor in the eighteenth-century reforms in favor of "proportionate" punishments and the substitution of prison sentences of varying lengths for other forms of punishing felons.
The second is Distrust of the Legal Establishment in Perspective: Maryland During the Early National Years, Georgia Journal of Southern Legal History 2 (Spring/Summer 1993): 1-40:
Despising lawyers has been popular for centuries, and knowing when to take it seriously is often difficult. Since the 1640s in England, vicious attacks on lawyers and the common law have occasionally accompanied reform movements. Are these outbursts evidence of a long-term tradition of radical hostility towards the legal establishment? Or do they point to a tradition of political posturing with little real substance?

With respect to early America, some very good historians have come to differing conclusions on these questions. Maxwell Bloomfield suggests that, while radical in tone, the attack on lawyers was rooted in essentially middle-class values and was not seriously connected to an ideology of social leveling or egalitarianism. He nevertheless demonstrates elegantly that the anti-lawyer sentiment of the Jacksonian period was part of a longer-term and culturally pervasive pattern. Richard Ellis's work, in partial contrast, documents radical attacks on the legal establishment during the Jeffersonian years, notably in Kentucky, Massachusetts, and Pennsylvania. Other legal historians have often stressed that fundamentally different conceptions of law, lawyers, judges, juries, and courts shaped the legal politics of Americans in the post-revolutionary years.

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