between the threat of hanging and the government’s anxiety about the level of
crowd disturbances on the streets of the capital. But it is none the less likely that
judges would have been encouraged to display the power of the law and the ter-
ror of the gallows as a general deterrent to violent expressions of opposition to
the court. And with Jeffreys acting then as recorder of the City and playing a
major role at the Old Bailey, the bench was likely to have exerted as much influ-
ence as possible on the jury to find acceptable verdicts. At the following session
in July 1680 more than forty defendants from Middlesex and the City together
were convicted and sentenced to death, though most of them were subsequently
pardoned.^107 The impact and importance of capital punishment in London is
more nearly captured not by averages, but by the occasional years in which very
large numbers of men and women were hanged at the Tyburn triple tree. Nar-
cissus Luttrell, who recorded convictions and executions in London, reports
several years in which fewer than twenty-five men and women were con-
demned, but also many in which the numbers were much higher than that—in
1697 , for example, as many as sixty-eight.^108
There was thus no loss of faith in the power of the gallows and the usefulness
of its terror when the occasion required it—when serious crime seemed in dan-
ger of escalating or social or political unrest threatened the stability of the
regime. But the ordinary run of verdicts and sentences passed at the Old Bailey
after the Restoration none the less speaks to a reluctance to see the criminal law
enforced to its fullest rigour. We might ask what that circumspection signifies.
Why had the artisans, craftsmen, shopkeepers, and merchants who sat on the
juries, and the judges and officials who were the gatekeepers of the pardon
process, come to the view that capital punishment would be most effective if it
were applied only selectively, as an example and a warning? It seems to me most
likely that the practice of the courts sprang from a recognition that the range
and numbers of offences in the metropolis could not be stemmed simply by dis-
plays of the state’s violence. This was a recognition not of the illegitimacy of the
terror that capital punishment was expected to create but of its limits; and evi-
dence of a gradual, parallel, recognition that supplementary penal measures
were needed. The enthusiasm for transportation after the Restoration was but
one sign of that, and it inaugurated a sixty-year effort to make it work or, failing
that, to find an alternative.
Transportation was valued both as a condition of pardon from capital pun-
ishment and as an acceptable punishment that would help to fill the wide gap
between execution and the branding and discharge of benefit of clergy—intro-
ducing a sanction for offences that had gone virtually unpunished. It was par-
ticularly valued in the metropolis in which petty thefts were pervasive, many of
The Old Bailey in the Late Seventeenth Century 301(^107) CSPD 1679 – 80 , p. 561.
(^108) Narcissus Luttrell, A Brief Historical Relation of State Affairs from September 1678 to April 1714 , 6 vols.
(Oxford, 1857 ), iv. 175, 194, 215, 231, 254, 278, 302, 322.