better trial and conviction of such persons as shall be indicted for petty treason,
murder, and felony’.^86 This was likely to have been the legislation referred to by
a petitioner who wanted the right to arrange the transportation of ‘felons and
other convicts not judged worthy of death, a bill being now before the Com-
mons to change their sentence into transportation’.^87 These attempts all failed
in their early stages, but an ambitious proposal in October 1667 to establish
transportation as a possible punishment for highway robbery got much further
before dying with the end of the session in the following year.^88
This is a decidedly mixed legislative record, but one that none the less makes
it clear that transportation was viewed in some quarters in the 1660 s as an im-
portant addition to the penal arsenal, both as a substitute for hanging and for
non-capital offences. It was surely the ease with which the authorities expected
to dispose of convicts across the Atlantic that encouraged judges in the 1660 s
and into the 1670 s to engage in two forms of verdict and sentencing manipula-
tion: on the one hand reprieving a significant number of defendants convicted
of non-clergyable felonies, especially women, beforepronouncing the death sen-
tence and then ordering them to be transported as a condition of the royal par-
don that would follow; and, secondly, using the reading test and the rule that
restricted the right to clergy to the first offence, to deny defendants convicted of
clergyable felonies—and in this case mainly men—the right to claim benefit of
clergy, thus threatening them with capital punishment, but in fact immediately
reprieving many of them on condition of transportation. This back-door way of
creating transportation as a punishment for clergyable offences in place of the
branding and discharge that followed a successful plea of clergy was not simply
a matter of the vindictiveness of a few individual judges or magistrates, but
rather a conscious policy of the king and his ministers.^89
The idea of transportation had taken such root in the early years of the Restor-
ation that it was widely assumed there were considerable profits to be derived
The Old Bailey in the Late Seventeenth Century 293(^86) JHC, 8, 613( 1665 ).
(^87) CSPD 1665 – 6 , p. 138 (undated, but assigned to 1665 by the editors).
(^88) In October 1667 a committee of the House of Commons was appointed ‘to consider of the former
Laws, and such Propositions as shall be tendered; and propose what they shall think fit to be done for
guarding and securing the Countries and Highways against Thieves and Robbers; and in particular,
consider of the Law touching their Transportation’. The bill was presented, read twice, sent to commit-
tee, and the amendments made there debated and the bill finally engrossed. By this point—at the end of
March 1668 —the session was drawing to an end and the bill was lost. It does not seem to have been rein-
troduced: perhaps the particular anxieties about highway robbery dissipated (JHC, 9 ( 1667 – 87 ), 5, 8, 16,
27, 28, 64, 72).
(^89) Kelyng’s account of the way he forced some of those convicted before him of clergyable crimes in
1666 to prove their literacy by giving them randomly chosen passages from the Bible gives the impres-
sion that that was entirely his idea of how some offenders should be treated (Beattie, Crime and the Courts,
474 ). But in a royal warrant of 1662 giving the sheriffs of London licence to transport convicts it was said
that Newgate was crowded because it contained numbers of ‘prisoners condemned for crimes within
clergy, who usually beg and obtain our gracious pardon under limitation of being transported into for-
eign plantations’. This strongly suggests that the denial of clergy followed by pardon on condition of
transportation was a matter of conscious policy (SP 44 / 14 , fo. 1 ). For the numbers of offenders sentenced
to be transported in this way, see below, pp. 302‒3.