The Rape of Elizabeth Henbury

Dateline: Philadelphia, 1700. What she do? Marry her “rapist”? Did she love him and claim rape to marry him? Or did she want to save his life by marriage to him?

The case is brief, so no need for an introduction.

11 Oct 1700

Council held at Philadelphia

Council:

Wm Penn, the Proprietor and Governor, is in town, so he presides.

Samuel Carpenter, Griffith Owen, Thomas Story, Edward Shippen, Caleb Pussey, John Moll. Humphrey Murray took his place on the board, after attesting the oath of the Councilman.

The blanks are original, but the second entry in December reveals their first names.

Modernized transcription begins:

_____ Smith, father to _____ Smith is in jail upon suspicion of a rape committed on ____ _____, desired his son might be bailed;

Whereupon the attorney being heard for the king, and David Lloyd for the said Smith.

It was by the Governor and Council ordered that he continue prisoner till the Proprietor and Governor’s return from the Assembly at New Castle, to be held there the 14th instant [1700].

Transcription ends.

Now we get some resolution.

19 December 1700

Wm Penn

Edward Shippen, John Moll, Thomas Story, Samuel Carpenter, Humphrey Murray, all Esquires

Modernized transcription begins:

Application being again made to this board by Wm. Smith, in pursuance of the petition formerly given in that his son Wm Smith, prisoner in the county jail of Philadelphia for a rape might be admitted to bail, the rigor of the season and the length of time by his not being brought to trial in Sept. last, rendering his confinement extremely hard and scare supportable.

John Moore, Attorney General for the King and David Lloyd for the prisoner appeared.

It was pleaded by David Lloyd in behalf of the prisoner that felonies had often been bailed, though felony of death.

Objected by the King’s Attorney that this was only where the presumption of innocence was strong, which here was the contrary, but continued to say it was his opinion he might and ought to be bailed as the case now stood, for that it would scarce be possible to convict him for want of evidence, he having clandestinely married the woman in prison he committed the rape on, and as they are now one flesh, she could give no evidence against her husband.

Elizabeth Henbury, the woman herself, was sent for, and appearing she confessed her former evidence given before Edward Shippen;

As also that she was since married, to which she says she was persuaded to save the man’s life, and a certificate of their marriage under the hands of 13 persons was produced, which, though not legal, must invalidate the evidence or take off the force of it.

Ordered:

Thereupon that Edward Shippen take bail by recognizance of the father and son, in the sum of five hundred pounds, for the said prisoner’s appearance at the next provincial court at Philadelphia, etc.

Transcription ends.

Did Elizabeth love William, or did she marry him just to save his life? I don’t have the court record, but it seems he would be let off because of the marriage. A wife cannot testify against her husband.

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SOURCES

Minutes of the Provincial Council, vol. 1, 1683-1700, (Jo. Severns and Co. 1852), p. 589.

Minutes from the Provincial Council of Pennsylvania, vol. 2, 1700-1717 (Harrisburg: Theophilus Fenn, 1838), p. 5.

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