pardoned from a capital sentence, transported to America.^55 As a pattern of
greater discrimination in both verdicts and sentencing was established, the
criminal law was becoming, as Archer has argued, ‘a more subtle and flexible
instrument discriminating between degrees of seriousness in crime’.^56
These patterns of verdicts and punishments derived from the practice of the
courts. They must have derived, too, from widely shared views about the best
way to manage capital punishment, and from a growing conviction that there
was a need for alternative sanctions for petty offences. At least it seems reason-
able to suppose that the assumptions acted on in the courts in the decades
before the civil war were to some degree the seed-bed of the ideas that came to
be expressed in the remarkable outburst of writing and speculation about the crim-
inal law that followed the breakdown of authority after 1642 and accompanied the
experiments in governance in the 1650 s. Nothing remotely like the extreme
radicalism with respect to the criminal law voiced then by several pamphleteers
had been heard before. Though some were extreme, the proposals put forward
for the reform of the criminal law offered solutions to problems that had been
recognized in the practice of the courts since Elizabeth’s reign.
When the opportunity arose in the 1640 s and 1650 s to write and speak freely
about magistrates and criminal procedure, about trial and punishment, much
of the criminal law came under serious examination. The reform of the law be-
came an issue of urgent concern, particularly for the Levellers and other radical
groups and, from the mid- 1640 s—as debates were engaged on the parliamen-
tary side about the shape of future settlements—an extraordinary range of ideas
was voiced about the law, the courts, and especially about capital punishment
and the unjustness and inadequacy of the penalties available to the judges in
sentencing convicted offenders. The Rump Parliament was moved to begin a
process of fundamental reform, and established a commission in 1652 under the
chairmanship of Matthew Hale to recommend ways in which the criminal law
should be restructured.^57
There was no unanimity among the leading proponents of criminal law
reform in the 1640 s and 1650 s. But the more radical among them shared a broad
ambition to change the bases and principles of the common law with respect to
the punishment of criminal offences, especially its dependence on capital pun-
ishment. The most striking idea, common to many of the leading pamphleteers,
was that punishment ought to be proportional to the offence—an idea that went
to the heart of a criminal justice system in which it was possible for any convicted
felon to be executed, and in which the courts had little leeway to impose
280 The Old Bailey in the Late Seventeenth Century
(^55) Barbara A. Hanawalt, Crime and Conflict in English Communities, 1300 – 1348 (Cambridge, Mass., 1979 ),
57 – 9 ; J. A. Sharpe, Judicial Punishment in England( 1990 ), 28 – 32.
(^56) Archer, Pursuit of Stability, 248.
(^57) For the range of ideas expressed about the criminal law during the civil war and interregnum, see
Donald Veall, The Popular Movement for Law Reform, 1640 – 1660 (Oxford, 1970 ), chs 1, 5; Nancy L. Matthews,
William Sheppard: Cromwell’s Law Reformer(Cambridge, 1984 ), 169 – 72 ; Robert Zaller, ‘The Debate on Cap-
ital Punishment during the English Revolution’, American Journal of Legal History, 31 ( 1987 ), 126 – 44.