property. And since such offences were particularly common in London, it it not
surprising that it was London opinion and interests that led this search, most
prominently the authorities in the City.
The form that an acceptable punishment might take had been suggested in
the practice of the courts during the interregnum in the 1650 s, as well as in the
extensive discussion of the criminal law and its sanctions in that decade. The
preferred alternative that had emerged was some form of punishment that in-
volved hard labour, a persuasion that led to a considerable increase in trans-
portation to the American colonies and the West Indies as a condition of pardon
from capital punishment. The promise of transportation survived the restor-
ation of the monarchy. Indeed, transportation seemed certain to become estab-
lished in the 1660 s as a punishment that might be imposed directly on convicted
felons and to provide a non-capital sanction that might at least supplement the
branding and discharge that were the consequences of benefit of clergy. It was
not to be, for the reasons we have explored. Transportation faded as a viable op-
tion by the 1670 s because it depended on the willingness of merchants trading
with America and the West Indies to take convicts to the colonies in the hopes
of being able to sell their labour. The merchants received no compensation in
England; not unnaturally, they chose to take healthy young men, but balked at
taking others whose labour would be less valuable. In addition, no government
had sufficient determination and political will to impose transportation on re-
luctant colonies when they objected to receiving convicts and passed legislation
making it illegal for merchants to land convicts.
Transportation continued to be problematic after the Revolution of 1689 ,
even though there was a significant increase in prosecutions for property of-
fences in London through the 1690 s. Indeed, it was almost certainly the virtual
collapse of transportation, coupled with a strong increase in prosecutions as
crime rose at the conclusion of wars in 1699 and 1713 , that encouraged interest
groups in London to persuade parliament to extend capital punishment to two
non-violent but pervasive forms of theft by making them non-clergyable
felonies. It is possible that the supporters of these statutes, and the members of
parliament who accepted them, were persuaded that execution by hanging was
the right punishment for shoplifting and theft by servants, that these offences
were so threatening that only the terror of the gallows would deter potential of-
fenders. It seems as likely, however, that the death penalty was imposed on these
relatively petty offences because no effective option was available.
The succession of failed efforts to establish a workable non-capital punish-
ment in the sixty years after 1660 makes it clear that, while private members
could move parliament to pass legislation—in the absence as yet of a govern-
ment claim to a monopoly over the criminal law—they could not command the
public resources necessary to put ambitious schemes into effect. This weakened
an effort to create a non-capital punishment for property offences when, in
1706 , London members obtained the passage of a bill that gave judges theConclusion 471ch10.y5 11/6/01 12:06 PM Page 471