exercised over the lives of the poor by the provision of workhouses for the needy,
and by sumptuary laws and ‘strict Inspection into the Lives of such as live
vitiously and extravagantly, and have neither Estate, nor Employment to sup-
port it’. His second point concerned the inadequacy of capital punishment as a
response to minor crime—a punishment he thought that was ‘better layd aside,
and something more effectual substituted in its Room’. Execution was wrong,
he argued, because it reduced consumption and procreation, and—in argu-
ments that echoed those of the 1650 s—because it endangered the souls of the of-
fenders by not allowing them time to repent, was disproportionate to the crime,
and, as a result, discouraged prosecution. Nor did it work as a deterrent because
‘few [offenders were] sensible of Death ’till under the Sentence’. The heart of
his proposal then followed. He wanted a penal regime in which ‘the least Crime
went not unpunished, but that sometime [those who committed petty offences]
were Condemned to Work’. The writer anticipated the reformers of the late
eighteenth century in expressing the view that minor offenders—pickpockets,
‘lifters’, cheaters, and receivers—‘should all undergoe a Punishment according
to the Nature of their Offences’. For those who committed more serious crimes,
short of murder, or who persisted in offending, his view was that they ought to
be set to work for a long term, even ‘perpetuall Slavery’, drawing dung carts
about the streets ‘or to be transported to Turkey, for to exchange Christian
Slaves’. This, he concluded, would be a greater terror than mere hanging.^130
No such alternatives to capital punishment—or to transportation and whip-
ping—emerged in English practice in the seventeenth century.^131 Nor were
there any signs that alternatives might be forthcoming from parliament in the
decades after the Restoration.^132 Indeed, apart from the efforts to establish
transportation, Restoration parliaments engaged in only the most limited way
with the problems being dealt with by the criminal courts. The experience of the
civil war and Interregnum perhaps discouraged tampering with institutions as
fundamental to social order as the criminal law—at least without the explicit
leadership of the king. And those attitudes may well have hardened as conflict
deepened between the king and the growing opposition to his regime, in parlia-
ment and beyond, in the second decade of his restored monarchy. In the strug-
gle between the Stuart kings and their whig opponents the law and the courts
became crucial battlegrounds; and the nature of trial, the roles of judges and
jurors, and the rights of the prisoner were all thrust forward as matters of urgent
The Old Bailey in the Late Seventeenth Century 311(^130) SP 29 / 443 , fos. 104 – 6.
(^131) For interesting suggestions about why hard labour schemes were not taken up in England, see
Innes, ‘Role of Transportation’, 10 – 11. And for the relationship between the English practice of trans-
portation, on the one hand, and galley service and labour regimes on the Continent, on the other, see
Langbein, Torture and the Law of Proof, 29 – 44.
(^132) The following discussion owes a great deal to work of Julian Hoppit and Joanna Innes and the
team they directed in their investigation of the legislation of the period 1660 – 1800. See, for example, Ju-
lian Hoppit (ed.), Failed Legislation, 1660 – 1800 : Extracted from the Commons and Lords Journals( 1997 ), with an
introduction by Hoppit and Innes. For other work drawn from this study, see below, Ch. 7 , n. 3.