were not necessarily intended as benevolent gestures. Indeed, since it was likely
that a woman convicted of non-clergyable theft and sentenced to death would
be pardoned by the king and—in the absence of an alternative punishment—
released, the interruption of the process in court and imposition of transporta-
tion was almost certainly intended as a way of imposing stiffer and more
deterrent sentences on women who committed thefts of more than ten shillings
in value. That supposition seems to be confirmed by the falling away of that
practice when transportation ran into difficulties by the late 1670 s. Almost all of
those pre-sentence reprieves with transportation as a condition were awarded
before 1675 , when enthusiasm about sending convicted criminals to the West
Indies or the American plantations was at its height. Most of the women whose
sentences were interrupted by the judges in the following fifteen years were
granted a free pardon and released, and—clearly as a consequence of that—
many fewer such reprieves were granted then.
Whether, in taking to themselves the power to reprieve and to name an alter-
native punishment, the judges had intended to correct an unfairness in the
treatment of men and women convicted of simple theft or, as seems more likely,
they had had more punitive intentions, this pattern of sentencing is an illumin-
ating reminder of the way in which discretionary powers made it possible for
juries and judges to manipulate the outcomes of trials. It is also a reminder of the
importance of resources and opportunity in the history of punishment: several
hundred women in the metropolis of London (if the indication of our Sample
can be trusted) were almost certainly punished more severely over the fifteen
years following the Restoration than they would have been if transportation had
not seemed so attractive and had not been momentarily available to the courts;
indeed, it is possible that fewer women would have been prosecuted. On the
other hand, whatever intentions had lain behind this exercise in discretion, it is
clear that opinion shifted in this period against the centuries-long denial of
clergy to women on the same basis as men. It comes as no surprise, in conse-
quence, that the privileges of clergy were fully extended to women soon after the
Revolution of 1689,when parliament was sitting regularly and, as we will see, a
spate of legislation dealing with criminal law matters was enacted.^99
Most of the men and women convicted of capital offences were brought into
court at the conclusion of the session to hear the recorder pronounce the words
that threatened them with the terrifying prospect of being hanged at Tyburn.
Some, however, were immediately reprieved and told that they would be rec-
ommended for a royal pardon. Reprieves would also be ultimately granted to
women who claimed to be pregnant and whose claim was confirmed by the
‘jury of matrons’.^100 The rest were left to be executed. After sentence was passed,
The Old Bailey in the Late Seventeenth Century 297(^99) See Ch. 7.
(^100) James C. Oldham, ‘On Pleading the Belly: A History of the Jury of Matrons’, Criminal Justice
History, 6 ( 1985 ), 1 – 64. By this period at least, a reprieve until the child was born was likely to be followed
by a pardon (ibid., 19 – 21 ).