Indeed, transportation seemed likely to develop after 1660 into a major elem-
ent in the English penal system. It became so firmly established as a pardon con-
dition for large numbers of offenders that in the years after the Restoration
judges at the Old Bailey routinely announced that they had reprieved convicted
offenders ‘for transportation’—acting on the certainty not only that their re-
prieve would result in a royal pardon but that the condition imposed would be
transportation. Condemned offenders petitioning for their lives also learned to
ask for transportation in place of hanging.^81 And it became routine for royal
warrants to the recorder granting pardons to convicted offenders to specify
whether those spared from hanging were to be included in the ‘clause for trans-
portation’ or ‘without transportation’. (In the latter case it was understood they
would receive a free pardon and be discharged.)
No doubt the enthusiasm for transportation in the middle decades of the cen-
tury derived in large part from the rapid development of the colonies in Amer-
ica and the Caribbean. In the early years of the Restoration merchants with
American and West Indian interests were eager to take pardoned offenders
across the Atlantic.^82 So many convicted men and women were pardoned in the
early 1660 s on condition of transportation and returned to gaol to await ships
that Newgate appears at times to have become seriously overcrowded—creat-
ing not only a security and health danger, but extra costs for the sheriffs ofLon-
don and Middlesex, who supervised the gaol. It is revealing of the profit that was
assumed to be available to those who transported prisoners that the sheriffs
were given the right on at least two occasions to act as agents to dispose of some
of the convicts ‘so they may have benefit for themselves in recompense’ for their
expenses in managing so many prisoners in Newgate.^83
The clearest indication of the enthusiasm for transportation in some circles,
and the major role it was coming to play in the administration of the criminal
law, can be seen in the efforts made in both houses of parliament in the early
years of the Restoration to get it established in law as a punishment for felony
and petty larceny. Transportation was successfully included in several statutes
dealing with specific offences in the last years of the 1660 s as a punishment that
could be awarded at the judges’ discretion as an alternative to hanging.^84 Early
The Old Bailey in the Late Seventeenth Century 291Eighteenth-century English Penal Practice’, in Carl Bridge (ed.), New Perspectives in Australian History
( 1990 ), 1 – 24.
(^81) CSPD, 1666 – 7 , p. 399.
(^82) W. L. Grant,James Munro, and Almeric W. Fitzroy (eds.), Acts of the Privy Council of England: Colonial
Series, 6 vols. ( 1908 – 12 ), i. 310. In 1663 a merchant was given authority to transport three men and two
women who had been acquitted of minor charges at the Westminster quarter sessions but held in gaol as
‘Incorrigible Persons’ (ibid., 370 – 1 ).
(^83) SP 44 / 14 , p. 1 ( 19 December 1662 ); and for another such warrant, SP 29 / 92 , fo. 123 ( 10 February
1664 ).
(^84) In an act aimed at preventing ‘theft and rapine’ on the northern borders which removed clergy
from a variety of thefts committed in Northumberland and Cumberland but also allowed the judge to
substitute transportation for life in place of execution ( 19 Chas II, c. 3 ( 1666 ), s. 2 ); an act that removed
benefit of clergy from the offence of stealing cloth at night from tenters or racks on which it was being