alternative sanctions. Only Winstanley among the leading critics supported the
total abolition of capital punishment,^58 but most of the proponents of criminal
law reform argued for a sharp reduction in the scope of execution as it had been
hitherto applied. There was general agreement, for example, that minor thefts
should not be punishable by hanging, and some writers would have removed
capital punishment from all property crimes.
The justifications put forward were as various as the plans proposed. They
drew heavily on Scripture, on what the Law of Moses required and allowed.
Perhaps the fundamental argument advanced in the 1640 s and 1650 s against
the scope of capital punishment was that execution was wrong for property
crimes because it put too little value on life. Several reformers were also con-
cerned about the distortions that the death penalty introduced into the admin-
istration of the law, and offered arguments that would be resurrected in different
circumstances and with different emphases a century and a half later in a re-
newed and ultimately successful attack on the dominance of capital punishment
in the English penal law. It was argued in the 1650 s, for example, that the
prospect of an offender being executed discouraged victims from prosecuting,
or, if not that, encouraged jurors to acquit and the judges and the authorities to
pardon large numbers of those who were convicted—all of which was believed
to embolden and encourage thieves and robbers. The argument was also made
that the indiscriminate use of the death penalty led some offenders to kill their
victims in order to remove the only witnesses who could convict them.^59
The abolition of capital punishment was a novel and deeply radical idea. But
limitations on its uses had emerged in the practice of the courts before the civil
war, along with proposals to find alternatives to the death penalty. The argu-
ment that lesser punishments would not only be more justifiable but also more
effective as deterrents made explicit the assumptions that supported the discre-
tionary uses of the law which had already become common by 1642. A range of
proposals to find a more limited punishment for petty offences was made in the
interregnum. Among those commonly advanced was the notion that restitution
in the case of theft (twice or four times the value of the goods stolen) not only ac-
corded more with Scriptural authority but would also be a more effective pun-
ishment and deterrent. Failing that—in cases in which the offender was not able
to make restitution—a favoured penalty was some form of labour. This was not
entirely a new idea. The reformative possibilities of work had been pioneered in
London a century earlier in the Bridewell, though hard labour had not been ex-
tended in England as a punishment for serious offenders in the way that that
had developed on the Continent, particularly in Holland and the German
states.^60 It was discussed as a possible alternative to the death penalty in the
The Old Bailey in the Late Seventeenth Century 281(^58) Zaller, ‘Debate on Capital Punishment’, 141 – 2. (^59) Ibid., 137.
(^60) For an account of the emergence of imprisonment at hard labour as a penal sanction in early mod-
ern Europe and its relationship to capital punishment and other forms of non-capital punishments, see
John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime(Chicago, 1976 ), ch. 2 ;