Mary Aggie and Benefit of Clergy in Virginia

Miserere mei, Deus, secundum magnam misericordiam tuam;
et secundum multitudinem miserationum tuarum, dele iniquitatem meam.

Psalmus 50. iii.

LAWS OF VIRGINIA, MAY 1732−−5th & 6th GEORGE II.

CHAP. VII.

An Act for settling some doubts and differences of opinion, in relation to the benefit of Clergy; for allowing the same to Women; and taking away of Reading; and to disable certain Persons, therein mentioned, to be Witnesses.

I. WHEREAS it has been held, That where, by an act of parliament, made in England before the settlement of this colony, the benefit of clergy, as it is called, hath been taken away from any offences, that persons committing the like offences in this colony, are excluded by virtue thereof; but this opinion, if it were nicely examined, might possibly be questioned: And for settling the law in that point,

II. Be it enacted, by the Lieutenant-Governor, Council and Burgesses, of this present General Assembly, and by the authority of the same, That where, by any act of the parliament of England, made before the fourth year of the reign of the late king James the first, the benefit of clergy is taken away from any offence, the same shall hereafter be adjudged to be taken away from the like offence, committed in this colony, in respect to principals, and accessories standing mute, and challenging a greater number of the jury than the law allows.

III. And whereas the old distinction, of allowing the benefit of clergy, to men only, and excluding women, and putting the offender, being a layman, to read, hath been taken away by the parliament of England: Be it enacted, That where a man, being convicted of any felony, may demand the benefit of his clergy, if a woman be convicted of the same, or the like offence, upon her prayer to have the benefit of this act, judgment of death shall not be given against her upon such conviction, nor execution awarded upon any outlawry, for such offence; but she shall suffer the same punishment as a man should suffer, that has the benefit of his clergy allowed him in the like case; That is to say, shall be burnt in the hand by the jailor in open court, and shall be afterwards dealt with, as a man in the like case might be. And if any person be convicted of a felony, for which he ought to have the benefit of clergy, and shall pray to have the benefit of this act, he shall not be required to read, but without any reading, shall be allowed, taken, and reputed to be, and punished as a clerk convict; which shall be as effectual, to all intents and purposes, and as advantageous to him, as if he had read as a clerk; any other law or statute, to the contrary hereof, in any wise, notwithstanding. Clergy allowed to women.

IV. And whereas a question hath lately arisen, touching the right of negros, to the benefit of clergy: for the determination thereof, Be it further enacted, That when any negro, mulatto, or Indian whatsoever, shall be convicted of any offence within the benefit of clergy, judgment of death shall not be given against him or her, upon such conviction; but he or she, shall be burnt in the hand in open court, by the jailor, and suffer such other corporal punishment, as the court shall think fit to inflict; except where such negro, mulatto, or Indian, shall be convicted of manslaughter, or the felonious breaking and entring any house in the night-time, or for breaking and entring in the day-time any house, and taking from thence any goods or chattels whatsoever, to the value of five shillings sterling; and where he or she hath once had the benefit of this act; and in those cases, such negro, mulatto, or Indian, shall suffer death, and be excluded from the benefit of this act.

V. And whereas negros, mulattos, and Indians, have lately been frequently allowed to give testimony as lawful witnesses in the general court, and other courts of this colony, when they have professed themselves to be christians, and been able to give some account of the principles of the christian religion: but forasmuch as they are people of such base and corrupt natures, that the credit of their testimony cannot be certainly depended upon, and some juries have altogether rejected their evidence, and others have given full credit thereto: For preventing the mischiefs that may possibly happen by admitting such precarious evidence,

VI. Be it further enacted, That no negro, mulatto, or indian, either a slave or free, shall hereafter be admitted in any court of this colony, to be sworn as a witness, or give evidence in any cause whatsoever, except upon the trial of a slave, for a capital offence; in which such case they shall be allowed to give evidence, in the manner directed by one act of assembly, made in the ninth year of the reign of the late king George, intituled, An Act directing the trial of Slaves committing Capital Crimes; and for the more effectual punishing Conspiracies and Insurrections of them; and for the better government of Negros, Mulattos, and Indians, bond or free.

Curator: Christian Clay Columba Campbell

Christian Clay Columba Campbell is a Roman Catholic of the Anglican Use. As Senior Warden of the Cathedral of the Incarnation (Orlando, FL), he organised the process by which the parish accepted the Apostolic Constitution Anglicanorum coetibus, petitioning to join the Catholic Church. The Anglican Cathedral is now the Church of the Incarnation in the Personal Ordinariate of the Chair of St. Peter. Personal queries should be directed to me at eccentricbliss dot com.

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