We will look in the following section at the way in which men and women
convicted of capital offences for all property crimes were dealt with in this
period—at the operation and consequences of the cabinet’s scrutiny of the lists
of condemned prisoners presented by the recorder. Here we might note the
punishments meted out to defendants found guilty of non-capital crimes against
property, the offences most directly affected by the Transportation Act. As we
have seen, the act had made the accused liable for transportation if they were
convicted of any form of simple theft, either grand or petty larceny. About a
thousand of those charged in our sample of sessions between 1714 and 1750 were
convicted of those offences, either directly or as the consequence of a partial ver-
dict, and were sentenced to some form of non-capital punishment.
What is immediately striking about these sentences—especially when one re-
members the pattern of non-capital punishments in the past—is the effect of the
Transportation Act on the consequences of conviction for theft in London
(Table 9. 2 ). Decisions about sentencing under the act were presumably made as
they were made about other penalties. During the course of the trials, agree-
ments about appropriate sentences in particular cases may have been reached
by the judges who happened to be on the bench—expressing what was referred
to on one occasion as ‘the sense of the court’.^33 There may have been discussion
among the judges present as sessions drew to a close and the convicted offend-
ers were brought back into court to be sentenced. But it also seems certain that
William Thomson exercised considerable influence over the decisions being
made. He was well known as the author of the act, and had strong views about
the purposes of transportation. In practical terms, he was also in a strong pos-
ition to shape the court’s sentencing practices since, as recorder, he pronounced
the sentences in court and—by whatever means—must have been aware of the
details of each case. It was under Thomson’s influence that a discretionary elem-
ent crept into the administration of the law, an element that took advantage of
the flexibility that his Transportation Act provided in dealing with petty theft in
the metropolis.
Discretion in sentencing took shape within a year of the passage of the act. At
first the Old Bailey bench seems to have taken the view—a view that recorder
Thomson did nothing immediately to challenge—that the act made trans-
portation the mandatory penalty for larceny. Virtually every non-capital prop-
erty offender was sentenced to be transported in the early sessions after the act
came into force. But the language of the statute clearly made it a choice at the
William Thomson and Transportation 437(^33) SP 36 / 62 / 161. Usually only one of the three high court judges or the recorder presided at felony tri-
als at the Old Bailey. On occasion, as Langbein has shown, more than one was present on the bench and
his or their opinions might be sought by the presiding judge. But any resemblance to the collegial bench
of Continental practice, Langbein concludes, was accidental. Occasionally one of the City aldermen sat
as the trial judge at the Old Bailey (see, for example, Ch. 1 , text at n. 36 ). But for the most part, the trials
at the Old Bailey, as at the assizes, were conducted before one of the judges or the recorder, certainly the
capital cases. For this subject, see Langbein, ‘Structuring the Eighteenth-Century Criminal Trial’, 31 – 6.