right to choose among the various non-capital punishments that had earlier
been available: the branding of clergy for grand larceny; the whipping hitherto
ordered in the case of petty larceny; and the sentence of transportation created
by the new act. A dispute at the Old Bailey in 1720 or early 1721 (presumably
among the judges, though the evidence is not clear on that) about the limitations
imposed by the Transportation Act on the sentencing powers of the court was
said by the clerk of Newgate, who kept minutes of the session, to have been ‘over
ruled by Mr Recorder, who brought the Act into the house, [and who declared]
that there remained a Discretionary power in the Court whether they wo’d
transport, Burn or whip’.^35
That decision had perhaps been forced by the very rigidity of the initial sen-
tencing policy adopted by the court. Inevitably, some of the defendants sen-
tenced to be transported petitioned the king to grant them a pardon and
substitution of a punishment that, as was often said, they could serve in Eng-
land. In the early years a number of such petitioners received pardons from
transportation through the same process by which all pardons were granted.^36
Petitions were also, however, received by the court, and within a year or two of
the act being put in place petitions were increasingly common and often led to
reconsideration of sentences of transportation. Thus, in February 1719 , Thomas
Bates was charged with simple grand larceny and found guilty of petty larceny
by the City trial jury at the Old Bailey. He was sentenced to transportation for
seven years as the act allowed, but five months and several sessions later, with
Bates still in gaol and awaiting embarkation, his sentence was modified by the
court to whipping.^37 Petitions to alter transportation sentences were considered
by the court into the mid- 1730 s, and a few sentences (though rarely large num-
bers) were regularly modified at subsequent sessions: transportation orders
being changed to either clergyable branding or whipping, depending on the of-
fence, followed by the immediate discharge of the prisoner.^38 Indeed, the
process became so common and so expected that the Old Bailey bench began
in 1722 to postpone sentencing decisions in a number of cases so that the cir-
cumstances of the prisoners involved—the number of their dependants, their
opportunities to find employment, perhaps the interests of the parish Poor Law
officials—could be investigated and a firm determination made at the following
session.
William Thomson and Transportation 439(^35) SP 35 / 26 / 19. The clerk, Lewis Ryder, also made it clear that the branding of clergy was thought to
be the most merciful option. He observed that the defendants who were allowed clergy had given ‘very
good recomendations and [assurances] that they should be taken care of not to comitt the like’ offence
again, though sometimes—he added—‘I’m afraid a Knave slips in by and by.’ He also disclosed that
clergy had so diminished as a punishment that the ‘branding’ was sometimes administered with a cold
iron.
(^36) SP 44 / 79 A, p. 285 ; and for another example in 1722 , see SP 44 / 81 , p. 23.
(^37) CLRO: SM 85.
(^38) In the printed Proceedings—the OBSP—modified sentences became one of the regular items among
the punishments reported at the conclusion of the trials. Defendants whose sentences of transportation
were altered were referred to as those ‘formerly convicted’, and their substitute punishments are noted.