punishment was coming into question but rather that its effects in the City were
perhaps raising doubts about the way it had hitherto been administered and the
amount of time that crowds were encouraged to gather. My speculation—for
that is what it is at the moment—is that similar doubts may explain a reluctance
to administer public whippings too frequently, and were already raising ques-
tions about the numbers of condemned men and women taken across the
metropolis in the procession to Tyburn.
The discretionary manipulation of verdicts and sentences at the Old Bailey
in the thirty years after the Restoration resulted in a pattern of punishments
considerably different from those imposed on convicted property felons a cen-
tury earlier—most notably a change in the level of executions. How might such
a change be explained—in particular the lower execution rate and the anxiety
to find a substitute? In his explanation of the sharp reduction in capital punish-
ment in England, which he dates from the second quarter of the seventeenth
century, Philip Jenkins considered a variety of factors, including the effects of
changing crime and conviction rates and the importance of royal pardons, and
concluded that the crucial new element in the criminal justice arena was the
punishment made available by the possibility of transportation to the new
colonies in America. The sharp fall in executions had resulted, in Jenkins’s view,
from the colonial enterprise across the Atlantic and its demand for labour.
Transporting convicts rather than executing them served the national inter-
est.^122 Jenkins’s emphasis on the importance of transportation is well placed. It
does not, however, answer the prior question of why alternatives to capital pun-
ishment were wanted in the first place. The usefulness of transportation and its
apparent affordability were no doubt crucial considerations. But the funda-
mental point is that there was clearly a felt need for a new form of punishment.
The evidence to be read in the practice of the courts is that transportation was
taken up when it became a possibility because it offered a form of punishment
that particularly suited the unique crime problem emerging in the urban world
of London—a world in which too much violence in punishment could be seen
as disruptive and counter-productive and in which there were virtually no us-
able penal responses to petty offences against property. Transportation was val-
ued because it was becoming clear that the terror of the gallows was no longer
on its own a sufficient penal weapon that might control violent offenders and at
the same time frighten petty thieves into obedience, especially perhaps the large
numbers of women who from time to time found themselves in difficulties in
their struggle to scratch a living in the metropolis. Nor did the branding of felons
pleading benefit of clergy provide an adequate substitute, particularly since it
did not extend to the largest number of women and and seemed to hold little
fear or threat for men. The practice of the courts—notably the threatened
execution of large numbers of offenders in order to manipulate them into
308 The Old Bailey in the Late Seventeenth Century
(^122) Jenkins, ‘From Gallows to Prison?’, 64 – 7.