Jane Fletcher - sentencing in 1803

My ancestor Jane FLETCHER had quite an eventful life. She was born in Orleton, Hereford, England to Richard Fletcher and Tabita nee LLOYD, baptised on 11 Jun 1786 (a Sunday). In March 1803 Jane appeared at the Hereford Assizes, as reported in the Hereford Journal of 23 Mar 1803 "...Jane Fletcher, aged 15, for the murder of her newborn bastard child, {was} capitally convicted, and received sentence of death.... the latter was to have been executed on Monday last, but is respited to the second of May next". The Hereford Journal also reported on 4 May 1803: "On Saturday night a respite arrived at our County Gaol for Jane Fletcher, convicted at the last assizes of the murder of her bastard child, till the 20th of June next."

While no further article has been identified, the execution never took place, as she sailed on the 'Experiment' from Cowes (Isle of Wight) on 2 Jan 1804 with 2 male and 134 female convicts. The ship arrived at Sydney on 12 Jun 1804. While her life in New South Wales will be the subject of another entry, she married fellow convict Rowland EDWARDS at St Johns, Parramatta (aged about 17) and had several children with him before he was murdered 10 years later at the Parramatta Toll House. Jane re-married to John ALLAN/ALLEN in 1815, and had several children with him before he died in 1826. Jane passed away in 1832, presumably in the Richmond area of NSW where her farm with Rowland Edwards was located and where she was stated as living in the 1828 NSW census.

I have now found out how Jane Fletcher’s death sentence was commuted to transportation.

The explanation is contained in the The Journal of Jurisprudence, 1886, Vol XXX, Edinburgh (available on-line through Google Books) in an article entitled ‘Technical Objections and Escapes from Justice – Informal Sentencing’, p68-77. The transcript is below. Amazingly, she was sentenced to death, but the judge omitted, in sentencing her to death, to articulate the sentence in full (specifically, that after hanging her body be anatomized as she was a murderer). As she was not sentenced correctly, and the judge did not rectify his error, her sentence was commuted to transportation. As explained:

“In cases of murder our capital sentence has one peculiar element, sanctioned by inveterate practice, namely, that the condemned criminal be fed on bread and water after conviction and till execution. It is nothing to the purpose that this dietary is not carried out in practice any more than actual hard labour was always insisted in where a hard labour sentence was pronounced: the form must be observed, however the fact may be. Suppose this qualification of bread and water diet was omitted from the capital sentence, as the qualification of hard labour was omitted from the case of Fergusson, would not the condemned criminal, assuming the hard labour case to have been correctly decided, be entitled to have his sentence set aside as Ferguson had his?

Incredible as it may appear, there is an English case in point, where the prisoner escaped hanging because of an omission in a subordinate part of the sentence. Jane Fletcher (Russell & Ryan's Crown Cases Preserved, and Burke's Romance of the Forum) was convicted of the murder of her child before Sir Alan Chambre at the Hereford Spring Assizes in 1803.

By the statute 25 Geo. II. cap. 37, then in force, it was directed that the body of any one convicted of murder should be dissected and anatomized, and that the sentence should express the marks of infamy in order to impress just horror in the mind of the offender, and to the minds of those present in Court when the sentence was pronounced. In the sentence of death passed upon Fletcher, the formal part thereof, relating to the dissection and anatomization of her body, was by mistake omitted. The omission was discovered on the evening of the same day when the assize calendar was taken to the lodgings of the judge to be signed. Execution was respited in order to afford time to consider the point; and a meeting was held at the chambers of Lord Ellenborough on 27th April 1803, being the first day of Easter term. As there was considerable difference of opinion, there was an adjournment till 10th June, being the first day of Trinity term, when the case was debated at great length. The twelve judges were equally divided in opinion, six of them holding that the omission in the sentence did not prevent the attainder taking place, and that it would not be an error if the judgment were formally drawn up, omitting that part of the sentence; while the other six were of opinion that the marks of infamy directed by the statute were a material part of the sentence, and that therefore a judgment omitting that part would be erroneous. All the judges, however, agreed that the omission might have been remedied, by the judge returning to Court after the adjournment and having the prisoner brought up again and passing the proper judgment, as the sentence might be corrected or altered at any time during the session. The result was that a pardon was granted on condition of transportation.”

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A second reference on the same case

'Crown Cases Reserved for Consideration and Decided by the Twelve Judges of England, from the year 1799 to 1824', by William Oldnall Russell and Edward Ryan, 1839.

"Rex v. Jane Fletcher.

Murder. Qu. Whether the award of dissection and anatomising in pursuance of 25 G.2 c.37. is an essential part of the sentence to be pronounced by the judge upon a convicted murderer.

THE prisoner was tried and convicted before Mr. Justice Chambre, at the spring assizes at Hereford, in the year 1803, upon an indictment for the murder of her bastard child. Sentence of death was immediately passed upon her, but, in pronouncing the sentence, that part of it which relates to the dissection and anatomisation of the body happened to be omitted. The other convicts being in court to receive their sentences, the attention of the learned judge was drawn off to them, and when that business, being the last remaining to be done in court, was over, the court was adjourned to the lodgings, and the learned judge did not, till some time after he had arrived at the lodgings, recollect the omission. The calendar was taken to the learned judge the same evening, in which calendar the dissection and anatomising of the body were stated as part of the sentence, and he signed the calendar at the lodgings; but being doubtful how far that could remedy the defect of the sentence pronounced in open court, and what would be the legal consequence of not having conformed literally to the directions of the statute 25 G. 2. c. 37., he respited the execution until the 2nd day of May, and directed the particular restraints imposed by the act on such convicts, to be omitted until Friday the 29th of April, in order to have the opportunity in the mean time of consulting the *judges, upon the proper steps to be taken under these circumstances.

The statute 25 G. 2. c. 37., reciting that the horrid crime of murder had been of late more frequently perpetrated than formerly, was passed in order to add some further terror and peculiar marks of infamy to the punishment of death. It therefore provides for the more speedy execution of such offenders, and for the disposal of their bodies by delivery to surgeons to be dissected and anatomised. And the third section enacts, "that sentence shall be pronounced in open court, immediately after the conviction of such murderer, and before the court shall proceed to any other business, unless the court shall see reasonable cause for postponing the same; in which sentence shall be expressed not only the usual judgment of death, but also the time appointed hereby for the execution thereof, and the marks of infamy hereby directed for such offenders, in order to impress a just horror on the mind of the offender, and on the minds of such as shall be present, of the heinous crime of murder."

This case was taken into consideration by all the judges, (assembled at Lord Ellenborough's chambers) on the 27th of April, 1803, being the first day of Easter term, when there appeared to be a considerable difference of opinion, and it was adjourned to the first day of Trinity term. On Friday the 10th of June, 1803, being the first day of Trinity term, at a meeting of all the judges at Lord Ellenborough's chambers in Serjeant's Inn, this case was again debated, when the judges were equally divided in opinion: Lord Ellenborough, Lord Alvanley, Macdonald C. B., Heath J., Rooke J., and Chambre J., being of opinion, that the omission of dissection and anatomising in the sentence pronounced did not prevent the attainder taking place; and that it would not be error if the judgment were formally drawn up omitting that part of the sentence; and Hotham B., Grose J., Thompson B., Lawrence J., Le Blanc J., and Graham B., being of a contrary opinion, namely, that the marks of infamy directed by the statute were a material part of the sentence, and that a judgment omitting such part would be erroneous.

Those judges who thought that the omission was not an essential part of the judgement argued from the several clauses of the statute 25 G.2 , that the statue was only directory; that the *common law judgment of hanging worked the attainder; and that as, before the statute, the body of the criminal was at the king's disposal, the statute only directed how it should be disposed of in all cases of murder, and that to inspire greater horror, the mode of disposing of the body after death should be stated by the judge at the time he passed sentence.

The judges who thought otherwise relied on the terms of the third section of the statute, making it necessary to express the marks of infamy in the sentence; and conceived that such terms were added as a further punishment for the offence: and they relied much upon the opinion of the majority of the judges stated in Foster's Crown Law at the end of the case of Swan v. Jefferys, (a) and upon the form in which judgments in cases of murder have ever since the statute been drawn up, making the dissection and anatomising a part of the judgment.

All the judges agreed that the omission in the passing of the sentence might have been remedied by the judge going again into court, after adjournment, from the lodgings, and ordering the prisoner to be again brought up, and then passing the proper judgment; as the sentence may be corrected or altered at any time during the assizes. Upon this difference of opinion it was resolved, that the prisoner should be reprieved generally, and that application should be made to the Crown for a pardon on condition of transportation, (c) (It is not an essential part of the sentence that the day of execution should be awarded therein, the statute in that respect being directory only.)

It seems remarkable to me that existence can hang on so tenuous a thread as an error in pronouncing sentence by a judge. Perhaps the hubbub as he announced her death sentence distracted him.