Most everyone has heard that Henry Shultz was branded for murder. Well, not exactly – he was sentenced to be branded for Assault with Intent to Murder. And it turns out that sentencing and happening are two different things. But what in the world is this branding business all about anyway – is that medieval or what?
Well, totally! 19th Century branding in Southern states led back to an old and convoluted legal device. In medieval days, a brother in holy orders might get pinched by the local sheriff for acquiring a wandering pig or whatever. The Church (all-powerful in those days) argued that they had their own ways, including their own courts, and the undamaged brother should be turned back over to them. At the time Church and State overlapped so much that there was nothing remarkable about such a demand. This idea of escaping secular punishment to the judgment of the Church came to be called Benefit of Clergy. In time it was no longer necessary for the bishop to come down and rescue his man, the culprit could prove churchly learning by reading a few lines from a Bible.
This morphed even further by collision with another legal trend – nuance and clemency. Again in medieval days, the law was pretty simple – you commit a felony, you die. In time came the idea that a punishment should fit the crime, and Benefit of Clergy offered welcome leeway in sentencing cases falling short of blackest evil. Lay imposters were allowed to get away by faking the literacy test, even by reciting a rehearsed phrase.
Centuries passed, and repeated abuse of the privilege became scandalous. In 1487 Parliament drew the line – the layman could claim his clergy only once. And to make sure of that, a murderer was to be ‘marked with an M upon the brawn of the left thumb’. The court could further teach a lesson by tacking on up to a year in jail.
In 1712 the Province of South Carolina enabled a long list of English statutes, including this one. By the opening of the 19th Century this mechanism was recognized to be a legal farce, and in some cases the branding was a charade with a cold iron. Very possibly others let the flesh sizzle as they held to the letter of the law.
Shultz had a bit of luck in 1827, at the conclusion of the sensational Joseph Martin murder trial at Edgefield Court House. Judge Johnson sentenced Shultz to be ‘imprisoned until the first day of the next Term of this Court, and that you then be branded on the Brawn of the Left thumb with the letter M’. Shultz was pardoned by the Governor halfway through his six month jail term, and the brand was never mentioned again, so it’s a good possibility that he escaped it.
Benefit of Clergy was still out there until The War. The Confederate Constitution of South Carolina saw fit to forbid it in cases of treason. According to Dalzell, even the 1866 ‘Black Code’ of South Carolina listed clergyable felonies. It’s quite possibly still on the books somewhere, just fallen into disuse and forgotten.
Brevard, Joseph (1814), Alphabetical Digest of the Public Statute Law of South Carolina. Volume 1 pages 69-81.
Cooper and McCord (1837), Statutes at Large of the State of South Carolina. Volume 2 page 455, ‘English Statutes Made of Force’.
Dalzell, George W. (1955), Benefit of Clergy in America.
Robinson, James Harvey (1907), Development of Modern Europe. Volume 1 pages 136-142, ‘The Catholic Church’.