Temple University

The Debate on Capital Punishment during the English Revolution

Author(s): Robert Zaller
Source: The American Journal of Legal History, Vol. 31, No. 2 (Apr., 1987), pp. 126-144
Published by: Temple University
Stable URL: http://www.jstor.org/stable/845879
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 The Debate on Capital Punishment
During the English Revolution
by ROBERTZALLER*

By one means therfor or by other, other by howke or crooke,

they must nedes departe awaye, pore, sylie, wretched soules;
men, women, husbandes, wyuves, fatherles chyldren, wid-
dowes, wofull mothers with their yonge babes, and their hole
housholde smal in substaunce, and much in nombre, as hus-
bandrierequirethmany handes. Awaye they trudge, I say, out
of their knowen and accustomed howses, fyndyng no places to
rest in. All their householde stuff, whiche is verye lytle worth,
though it myght well abyde the sale, yet beyng sodeynelye
thrustout, they be constraynedto sell it for a thyng of nought.
And when they haue, wanderyngeabout, sone spent that, what
can they els do but steale, and then iustelye, God wote,
behanged. .. .' For great and horryble punyshments be
appoynted for theues; whereas much ratherprouysyon should
have bene made, that there were some meanes wherby they
might gett theyr lyuynge, so that no man should be dreuen to
thys extreame necessitie, fyrst to steale, and then to dye.2
Sir Thomas More's famous description of the social and legal
consequences of enclosure remained,with the exception of the brief
flurry of reform activity under EdwardVI and the occasional pro-
tests of lawyers such as Sir EdwardCoke and Sir Henry Finch, a cry
in the wilderness until the English Revolution.3The death penalty
* Robert Zaller is Professor of History at the University of Miami. He will become
Professor of History and Head, Department of History and Politics, Drexel Univer-
sity, in the fall of 1987. An earlier version of this essay was presented at the conven-
tion of the American Historical Association in December 1984. The present version
has benefitted greatly from discussions at the seminars of Professors John Morrill and
Conrad Russell.
1. The Utopia of Sir Thomas More, 53 (J.H. Lupton, ed. 1895).
2. Id. at 44.
3. E. Coke, The Third Part of the Institutes of the Laws of England (London,
1660): H. Finch, Nomotexnia (1613). Coke deplored the number of executions in
England, but also the number of pardons. On Finch, see Prest, "The Art of Law and
the Law of God," in Puritans and Revolutionaries: Essays in Seventeenth-Century
History presented to Christopher Hill, 94-117 (D. Pennington & K. Thomas eds.
1978). Finch opposed the death penalty for theft, but favored it for adultery and for
dishonoring one's parents.
1987 DURINGTHE ENGLISHREVOLUTION
CAPITALPUNISHMENT 127

for felony, including the theft of a shilling or a shilling's worth

of goods, had been long established by the time he wrote. By the
seventeenth century there were some fifty categories of capital
offense, of which treason, murder, grand larceny, robbery, rape,
mayhem and arson were the most notable.4 Under these general
headings were numerous subcategories which, particularlyin the
treason statutes, were both varied and imaginative.5The result was
to provide very wide discretion in capital sentencing. Sympathetic
juries often committed "pious perjury" in undervaluing stolen
goods, and a very liberal interpretationof benefit of clergy meant
commutationin practice for anyone who could demonstrateliter-
acy.6 However, the impracticabilityof applyingthe full rigorof the
law merely meant that its terror was held in reserve. In times of
economic dearth and political repression, such as the 1620s and
1630s, the felony laws were more stringentlyenforced; in the wake
of the enclosure riots of 1629-31,the numberof felony executions is
estimated to have increased by 250%.7This was facilitated by the
One of the few early seventeenth-centurycommentatorsto link hangingfor theft
with the injusticeof the social orderwas RobertBurton,whose words stronglyrecall
More's:"A poor sheep-stealeris hangedfor stealingof victuals,compelledperadven-
ture by necessity of that intolerablecold, hunger,and thirst, to save himself from
starving:but a great man in office may securely rob whole provinces, undo thous-
ands, pill andpoll, oppressad libitum,flay, grind,tyrannize,enrichhimselfby spoils
of thousandsof the commons,be uncontrollablein his actions,andafterall, be recom-
pensed with turgenttitles, honouredfor his good service, and no man dare fault, or
mutterat it." 1 TheAnatomyof Melancholy62 (1932)(1st ed. 1621).Consideration
about the appropriatenessof specific capital penalties may have occurred in the
context of the debate over the applicabilityof the civil law of Moses in Reformed
commonwealths,a subjectthat was warmlydiscussed in Englandin the latterhalf of
the sixteenth century. See Avis, Moses and the Magistrate: a Study in the rise of
Protestant Legalism, 26 J. Ecclesiastical Hist. 149-172 (1975).
4. 3 W. Holdsworth, A History of English Law 360-68 (5th ed. 1973); 1. L.
Radzinowicz, A History of the English Criminal Law 5 (1948).
5. J. Bellamy, The Tudor Law of Treason. An Introduction (1979).
6. The standardsources for benefitof clergy are W. Blackstone,4 Commentaries
on the Laws of England, 358-67 (1771), and 3 Holdsworth, supra note 4 at 293-302.
See also the sources cited in J. A. Sharpe, Crime in Seventeenth-Century England
(Cambridge,1983),p. 227, n. 41. For pious perjury,see 4 Blackstone, supra at 238,
and Radzinowicz,supra note 4, at 144-46.
7. J. S. Cockburn,A Historyof EnglishAssizes 1558-1714131, (1972). This esti-
mate is supportedby Sharpe'stabulationof executions at the Essex assizes for the
period 1620-80.The totalnumberof recordedexecutionsrose from25 in 1620-24to 63
in 1624-29and 100in 1630-34;thereafterit declinedprecipitouslyand never exceeded
40 in any subsequentquinquennium.The years 1629-31,the climax of a decade of
dearth and depression, saw the most serious populardisturbancesof the century
against food shortagesand enclosures, followed by a vigorous assertion of central
authority, particularlyat the assize level. Sharpe, supra note 6, at 143. See also
Buchanan Sharp, In Contempt of All Authority: Rural Artisans and Riot in the West
of England, 1586-1660 (1980), and Keith Lindley, Fenland Riots and the English
Revolution (1982).
128 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXI

laxity of procedure in such cases. Juries were not always manda-

tory, and the testimony of a single witness, even the plaintiffhim-
self, might be held sufficient evidence for conviction.8
It was againstthis backgroundthat the first demandsfor reform
in the capital sentencing laws emerged duringthe English Revolu-
tion. The debate that ensued must be understoodwithin the context
of the more general social agitationof the period, and particularly
the demand for root and branch reform of the legal system as a
whole.9Nonetheless, the questionof capitalpunishmentwas both a
distinct and independent strand of that larger whole, and in many
respects a paradigmaticissue.
The first organized demand for a limitationof capital punish-
ment came from the Levellers. In their so-called Large Petition of
March 1647, they demanded that no capital sentence be imposed
without "the testimony of two witnesses at least, of honest conver-
sation," and that punishmentsbe made proportionalto crimes so
that "no mans life may be taken, his body punished, nor his estate
forfeited, but upon . . . weighty and considerable causes."10?No
distinctionwas made yet between corporaland capital punishment,
nor was there a demandthat the latter be abolishedfor any specific
category of offense. The emphasis was on correct procedure, ade-
8. Recent studies have stressed the wide discretion in capital sentencing and ex-
ecution shown by judges and juries in early modern England. For example, 1
Radzinowicz supra note 4, at 140-151, estimated that no more than 10 to 20% of
convicted felons were sentenced to death between the mid-sixteenth and mid-eigh-
teenth centuries, of which only about half (5-10% of those convicted) were actually
executed. Cockburn, supra note 7 at 131, estimated the number of those executed at
10%. Cynthia Herrup's study of East Sussex seems to indicate a somewhat higher
percentage. Herrup, Law and Morality in Seventeenth-Century England, Past and
Present, 106n (1985). Herrup's general conclusion cannot be quarreled with:
A hanging did not result from any single decision about guilt or innocence, but
rather was the end product of a series of discrete decisions assessing degrees of
culpability. ... By the time a felon was actually hanged, as many as three dozen
men had participated in the decision-making process that sent him to the gallows.
Herrup, supra at 107.
Such a finding, as Herrup admits, is nonetheless compatible with the notion of selec-
tive repression. M. J. Ingram points out in his study of Wiltshire that whereas 68% of
all local residents tried for theft at the quarter sessions of 1616, 1619 and 1623 were
convicted, 93% of all non-residents were found guilty. Such a disparity no doubt
reflected the local community's more informal policing of its own, but it clearly
served the wider function of controlling vagabonds, a population bound to increase
with hard times. Ingram, "Law and Disorder in Early Seventeenth-Century Wilt-
shire," in Crime in England 1550-1800 110-34 (J.S. Cockburn, ed. 1977); cf. Herrup,
supra at 118.
9. The best study of the subject is D. Veall, The Popular Movement for Law
Reform 1640-1660 (1970). See also S. E. Prall, The Agitation for Law Reform During
the Puritan Revolution (1966); M. James, Social Problems and Policy During the
Puritan Revolution (2nd ed. 1966); W. Schenk, The Concern for Social Justice in the
Puritan Revolution (1948); C. R. Niehaus, The Issue of Law Reform in the Puritan
Revolution (Harvard Ph.D. diss., 1958).
10. Leveller Manifestoes of the Puritan Revolution 140 (D.M. Wolfe ed. 1944).
1987 CAPITAL PUNISHMENT DURING THE ENGLISH REVOLUTION 129

quatetestimony,andgeneralequity.Indeed,the LargePetitionac-
tuallyaddeda newcapitalcategory,namelydenialof dueprocess.I
Between this documentand the appearanceof the second
Agreement of the People in December 1648, individualpamphle-
teers began to take up the issue. The Army preacher Hugh Peter
called for the abolition of the death penalty for petty theft in the
latterpartof 1647,12thus voicing the demandthat was to become the
most commonsinglerefrainamongcapitalpunishmentreformers.
The anonymous author of An Experimental Essay Touching the
of theLawsof England,whostyledhimselfan "Impar-
Reformation
tial Well-Willer"and was probably an associate of the Levellers,
proposed that the death penalty be abolished for all crimes except
treason, rebellionand murder.13The second Agreement both tight-
ened this definition and put it firmly in a social context. Its sixth
clause declared that:
It shall not be in their [i.e. the next Representative's]power to
make or continue any Law for taking away any mans life, ex-
cept for Murther,or for endeavouringby force to destroy this
Agreement; but [they] shall use their uttermost endeavour to
propoundpunishmentsequal to offences; that so mens lives,
limbs, liberties and estates may not, as hitherto,be liable to be
taken away upon trivial or slight occasion; and shall have spe-
cial care to keep all sorts of people from Misery and Beggery.14
The numberof capital crimes was reducedhere to two, murder
and treason, with the latter defined specifically as an attempt to
overthrow the Agreement itself. For all other offenses, the death
penalty was no longer considered "proportional."Presumablythe
authors of the Agreement had petty theft in mind when they de-
nounced the inflictionof death for "trivial or slight" causes, for in
the same sentence they pronouncedit a specific obligationof gov-
ernment to keep men from the destitution that results in such
crimes.
The linkingof theftto "Misery"movedthe abolitionistargument
beyond proportionalityto social analysis. It reflected not only the

11. Id. at 139.

12. H. Peter, A Wordfor the Armie. And Two Words to the Kingdome 12 (1647).
On Peter, see R. P. Steams, The Strenuous Puritan: Hugh Peter 1598-1660 (1954).
13. Anon., An Experimental Essay Touching the Reformation of the Laws of
England 5 (Aug. 1648). The Well-Willer calls for a broad spectrum of reforms en-
dorsed by the Levellers, and for a new Magna Carta. His suggestion that a simplified
law code will free men to study the "Divine Mysteries" of the "Inward Christian
Life" indicates that he may have been one of the religious Independents who made
common cause with the Levellers in 1648.
14. Leveller Manifestoes, supra note 10, at 302.
 130 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXI

real hardshipof economic conditionsin 1648,15but the profoundgulf

that had opened up between the revolutionaryestablishmentin Par-
liament and the Army and its radical critics in the twenty-one
months since the presentation of the Large Petition. The second
Agreementwas in many respects, and particularlyin its sixth griev-
ance clause, a response to the position set out by Henry Iretonat the
Putney debates in October 1647, that
... men may justly have by birthright, by their very being born
in England, that we should not seclude them out of England.
That we should not refuse to give them air and place and
ground, and the freedom of the highways and other things, to
live amongst us. . . . But that by a man's being born here he
shall have a share in the power that shall dispose of the lands
here, and of all things here, I do not think it a sufficient
ground.16
The Leveller response to this classic statement of the landed
interest was to assert not only that all men not in receipt of alms or
domestic wages were to be empowered to choose the sovereign
representative,but that society had a special obligationto those in
want, an obligation that precluded it from consideringas enemies
those driven by such want to crimes against property. This theme
was echoed by individual pamphleteers. In Unum Necessarium,
John Cook declared it "a truth as cleer as Christall,that as obedi-
ence is due to the Magistratefor conscience sake, so it lies upon him
in point of conscience to provide for the sustentationof all that are
subjectto the civill government.""17Peter Chamberlenurgedin 1649,
and thereafter continuously for the next decade, that confiscated
royal and ecclesiastical wealth be used to finance a public works
programto eliminatepoverty and unemployment.Cook condemned
hoardersand engrossersas "patricides"who shouldbe dealt with as
traitors, and suggested that theft in cases of genuine destitution
should not be considered a felony. Cook drew a careful distinction
between wealth and greed; his quarrel,he said, was not with great
estates as such, and he disavowed any scheme that aimed at "par-
ity." Chamberlen,however, had no similarreservation.In his Leg-
islative Power in Problemes he came close, like Gerrard Winstanley,
to equating property with theft: "What do privileges signify," he
asked, "saving thou shalt not steal, but I may?"18

15. John Cook, Unum Necessarium: Or, The Poore Mans Case 5 (1649).
16. Puritanism and Liberty 53-54 (A. S. P. Woodhouse, ed. 1950).
17. Cook, supra note 15, at 6.
18. P. Chamberlen, Legislative Power in Problems 5-6 (1659). On Chamberlen, see
1 Biographical Dictionary of British Radicals in the Seventeenth Century 133-35
(R. L. Greaves & R. Zaller eds. 1982) (hereinafter BDBR).
1987 CAPITAL PUNISHMENT DURING THE ENGLISH REVOLUTION 131

Such an observationtoucheduponanotherfavoritethemeof
reformers, the Norman Yoke. The Levellers had originally em-
ployed the argumentthat the social and legal order of Englandhad
been foundedon the oppressionof the Normanconquest as a means
of combattingthe monarchy.19However, it was also clearly applica-
ble to all who profitedfrom this order. WilliamTomlinsonasserted
that the power of great families was founded on "tyranny, cruelty
[and] oppression," and warned with characteristiczeal: "Woe to
the oppressors of the earth, who grind the faces of the poor, who
rackand stretchout theirrents till the poor with all the sweat of their
brows and hard labor can scarce get bread to eat."20 The implica-
tions of this reasoningwere obvious. To execute capitalpunishment
on those driven to theft by necessity was not only unjust, but the
final compoundingof injustice. It was itself a crime. To those who
might object that such an argumentlegitimatedtheft, WilliamCole
replied in A Rod for the Lawyers (1659) that if the law must hang
men for it, "may it take hold of the great ones first."21 A Leveller
petitionto Cromwelljust afterhis expulsion of the RumpParliament
in April 1653came closer to home: "Nor should Death be inflicted
for a trifle of five shillings," it asserted, ". . . whilest vast sums are
taken from the Commonwealth,without any accompt, by Commit-
tee men, and others."22
The Levellers did not recede from their platformin the Agree-
ment of the People aftertheirfailureto shape the revolutionin 1648-
49, although its third and final version was a more muted one.23
However, the focus of abolitionistdebate remainedalmost entirely
on the questionof punishmentfor theft. There were several reasons
for this. Fromthe perspectiveof radicalssuch as Chamberlen,hang-
ing for theft was the starkestmetaphorof social injusticein general.
It was also the issue where the most broadlycompellingarguments
could be produced: it clearly violated the principle of equity that
punishmentbe proportionalto crime, and it was contraryto Scrip-
ture, a considerationof particularforce among the godly. Thus, it
was the issue on which a public consensus seemed most readily

19. On this subject see C. Hill, "The Norman Yoke," in Puritanism and Revolu-
tion 50-122 (1958).
20. W. Tomlinson, Seven Particulars at sig. A2, (1658). Tomlinson was a Quaker.
3 BDBR (1984), supra note 18, at 247.
21. 4 The Harleian Miscellany; Or, A Collection of Scarce, Curious, and Enter-
taining Pamphlets and Tracts 306 (1809).
22. To His Excellency The Lord General Cromwel ... The Humble Remonstrance
of Many Thousands in and about the City of London 3 (1653).
23. The third Agreement, a final bid for support before the abortive uprising at
Burford in May 1649, restored capital penalty for "hainous offences destructive to
humane Society." Leveller Manifestoes of the Puritan Revolution, supra note 10,
at 407.
132 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXI

attainable. The Leveller proposal to eliminate all but two capital

categories in the second Agreementproducedthe predictableretort
that such an idea was tantamountto "the making of Laws in the
favourof Treasons,Burglaries,Felonies, Soddamy,Buggerie,Rapes,
and such like abominations."This Parliamentwould "never grant,"
an assertionthat gainedpoint with the enactmentof a capital statute
for adulteryin 1650.24It was clearly morepolitic to divorce the issue
of petty theft from rape, sodomy and treason in the prevailingcli-
mate. Moreover, this could be done without weakeningthe force of
the more general argument, since no one (with the exception
of GerrardWinstanley)publiclyproposed the abolitionof the death
penalty for all offenses whatever.
Of the two principalargumentsagainst capital punishmentfor
theft, the argument from Scripture was the most frequently em-
ployed, reflectingthe revival of the sixteenth-centurydebate about
the authorityof the "judicialsof Moses" amongreligioussectarians
and the godly in general.25Unlike much of what was argued from
Scriptureabout law and governmentduringthe EnglishRevolution,
the passages concerning punishmentfor theft, though widely scat-
tered, were reasonably straightforwardand consistent. The thief
was to make four or seven-fold restitutionof the value of the theft,
or be put into bondage. Literalistswere content to cite this prescrip-
tion, although it presented some difficulties. Restitution meant
translatingwhat had become a civil penalty back into the penal law.
Bondagewas generallyinterpretedas time in the workhouse, where
restitution could be exacted by labor, banishment, or transporta-
tion.26 Hugh Peter suggested that thieves might be employed in
draining the fens.27 Compensatorypunishments were also some-
times suggested, such as branding,flogging, or imprisonment.
The proportionalityargumentwas in a sense comprehendedin
the Scripturalequation of a four or seven-fold restitution, but its
24. W. Ashhurst, Reasons Against Agreement with a Late Printed Paper,
Intituled, Foundations of Freedome: Or, The Agreement of the People 11 (1648). On
the adultery legislation, see Thomas, "Puritans and Adultery: The Act of 1650 Re-
considered," in Puritans and Revolutionaries: Essays in Seventeenth-Century His-
tory Presented to Christopher Hill 257-282 (D. Pennington & K. Thomas eds. 1978).
25. See C. H. and K. George, The Protestant Mind of the English Reformation
1570-1640 (1961). The sectarian position during the Revolution was in a clear line of
descent from the Elizabethan separatist Henry Barrow, who held the judicial law of
Moses to be binding in all its details and, interrogated about the lawfulness of hanging
for theft, replied that "God in the law had ordeyned an other kinde of punishment for
such." Avis, supra note 2, at 170. I am grateful to Wilfred R. Prest for discussions of
this point.
26. Transportation, originating in the late Elizabethan period, had already become
a popular substitute for execution. See A. E. Smith, The Transportation of Convicts
to the American Colonies in the Seventeenth Century, 39 Am. Hist. Rev. 232-49
(1934).
27. Peter, supra note 12, at 12.
1987 CAPITAL PUNISHMENT DURING THE ENGLISH REVOLUTION 133

strengthrestednot so muchon the system'sfailureto complywith

the letter of the biblical sanction as on revulsion at the grotesque
disproportionof men being hanged, as the reformersput it, for "tri-
fles." The barristerJohn March went further. "Life," he wrote,
"for any worldly or temporal substance whatsoever, holds not the
least equalitieof proportion,for one mans life is of greatervalue and
esteem, than all the treasureupon the earth.'"28WilliamTomlinson
expressed the same sentimentin 1658with equal passion but with a
vehemence born of a decade's frustration:
Oh England!how is it that after so many Parliamentsthis most
unjust Law is still put in execution in the midst of thee, to take
away the life of man for Goods? Dost thou value the life of a
man no more then so, as to cut it off for the value of a Garment,
yea even of a pairof Shoes or Stockins, or a Shirt, or any thing
above such a piece of money? Oh how this will stink in the
Nostrils of the Ages following, when Equity and Righteousness
shall take place, when Judgementshall be laid to the line, and
Righteousnessto the Plummet,when men shall be able to dis-
cern of things, as to make the punishment and the crime
proportionable !29
Unquestionablythe most single-mindedand impassionedof the
abolitionists was the London merchant, Leveller and lay minister
Samuel Chidley.30Chidley successively petitioned the Common
Council of London, the Lord Mayor, Thomas Andrews, the com-
missionersof Oyer and Terminer,the Councilof State, the Council
of the Army, and the Hale Commissionfor law reform.He collected
all these petitions into a pamphlet, A Cry Against a Crying Sin,31
which he printed in red letters and personally affixed to a tree at
Tyburn. Chidley's 'crying sin' was execution for theft, which he
termed as "inhuman,bloody, barbarousand tyrannical,''32 "one of
the Abominationsof the Time,'33 and an inequity that "defiles'"34
the earth. Like Chamberlen,Tomlinson and Cook, Chidley was
struckby the evident class bias of the law and its application.Those
arraigned,he noted, were mostly "poor Labourers,and such Crea-

28. J. March, Amicus Reipublicae 106-07 (1651). On March, see Veall, supra note
9, at 117, 138, 159; 2 BDBR (1983), supra note 18, at 213.
29. Tomlinson, supra note 20, at 11.
30. On Chidley, see R. L. Hine, History of Hitchin, 212. (1927) and references
cited in 1 BDBR (1982), supra note 18, at 140-41.
31. S. Chidley, A Cry Against a Crying Sin (1652), reprinted in 8 Harleian Miscel-
lany, supra note 21, at 455-68.
32. Id. at 459.
33. Id. at 457.
34. Id. at 467.
134 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXI

tures who stole Things of a small Value, peradventure,for mere

Necessity."35The real guilt, he argued,lay upon the rich, who first
denied the poor the necessities of life and then murderedthem for
seeking to satisfy theirhungeras best they could: "For the Bread of
the Needy is the Life of the Poor, and he that defraudethhim of it is
a Murderer."36
Chidley took the proportionalityargumentto its most uncom-
promisingconclusions. "Life," he asserted, "is above Liberty and
Estate: The Jewel of one Man's Life all your Estates cannot bal-
ance."37If life were not to be reckoned with all the wealth of Eng-
land, then "how unjust it is to kill a Man for stealing Fourteen
Pence, let all Men reasonablejudge.'""38Those who took away life
for "unvaluableTrifles" were themselves guilty of a capital crime,
and should be punishedaccordingly. "You ought to cry out against
Murder before you do any Thing else,""39Chidley told the Hale
Commission. All other issues were secondary; all other reforms
could wait: "I am angry, and grieved at the Heart, that you should
so dally in God's Matters."40
However, Chidley's argumentwas not based primarilyon eq-
uity, but on Scripture. Although reason might demonstratethe in-
equity of the laws of theft, their wickedness, and hence their sin,
derived from their opposition to the law of God. That law, as
Chidleypointed out repeatedly,providedtwo and only two punish-
ments for theft: restitutionand servitude.Men could administerthis
law in any way compatiblewith its spirit;for example, a felon unable
to make restitutionto his victim might be requiredto labor for him
directly, or in a governmentworkhouse, or be transported.To ex-
ceed God's express limitations"in the smallest measure" however
was "Iniquity," for God was the sole lawgiver,and "all laws which
are not according to God's Law, and pure Reason, are null and
void." To fail upon due warningto set aside unjustlaws was to call
"the heavy Wrathof God" upon the nation and its governors, and
therefore Chidley admonishedthe latter to act "lest the Justice of
God take Hold upon those who are the Causers of [Iniquity],and
that the like Punishmentbe inflictedjustly upon them, which they
inflict upon others unjustly."41
For Chidley, of course, as for his contemporariesgenerally,

35. Id. at 461.

36. Id. at 457.
37. Id. at 461.
38. Id. at 460.
39. Id. at 467.
40. Id. at 467.
41. Id. at 457.
1987 CAPITAL PUNISHMENT DURING THE ENGLISH REVOLUTION 135

there could be no incompatibilitybetween divine law and equity.

His assumptionswere thereforemutuallyreinforcing.Either equity
alone-the nature of justice disclosed by reason to the godly-or
the express commandmentof God in Scripturesufficed to demon-
strate the iniquity of capital punishmentfor theft. Together, they
made an overwhelmingclaim againstwhich no humanlaw or institu-
tion might stand. Hence the force of Chidley's moralcertitude, and
the strength of his challenge to positive law, precedent, and the
entire legal tradition.
However, the very vehemence of Chidley's argumentexposed
its limitations. For Chidley, the wickedness of shedding blood for
theft could only be expiated by blood itself, the abuse of capital
punishmentby its rightfulexercise. The Bible commandedthe latter
no less expressly thanit prohibitedthe former.J. W., an authorwho
opposed capital punishmentexcept for murder,thus exceeding the
Levellers' most advanced position, took it for grantedthat the lex
talionis could not be questioned:"Is not the law, An eye for an eye,
and a tooth for a tooth?"42 Whetherwithinthe frameworkof biblical
sanction or of natural equity, there seemed to be no means for
addressingthe issue of capitalpunishmentas such. A Leveller mani-
festo of July 1653restatedJ. W.'s position from an explicitly equita-
ble standpoint: "that Punishments are to be proportionedto the
Offences, an Eye for an Eye, a Tooth for a Tooth, and Blood for
Blood."'43
The case of WilliamAspinwall, a Fifth Monarchistand former
associate of John Cotton, illustratesthe more extremeconsequences
of biblical literalism. In his The Legislative Power is Christs Pecu-
liar Prerogative, 44 Aspinwall pointed out that, in additionto theft,
the Bible also proscribed the death penalty for rape, fornication,
slander, battery, trespass and fraud. Like other Fifth Monarchists,
his literalismled him in some other apparentlypromisingdirections
as well.45 "Christs Law," he wrote, "alloweth any of the Sons of
men, to live in any place . . . But Mens Laws (at least in some
places) do make it death for a Jew to live amongst them ... Christs
Law gives all the Sons of Adam a kind of Lordshipover the Crea-
ture: But Mens Laws restrain that Liberty, making some kind of
fowls, the Kings game only . ."46 On the other hand, "Christs
Law" also requiredthat adulterersbe punished by death and not
merely public shaming,and in additionto murder,treason, kidnap-
42. J.W., A Mite to the Treasury 13 (1653).
43. The Fundamental Lawes and Liberties of England 12 (Anon. 1653).
44. W. Aspinwall, The Legislative Power is Christs Peculiar Prerogative at 30-33
(1656).
45. Id. at 32-3.
46. Id.
136 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXI

ping, bearing false witness in a capital case and adultery, the Bible
demanded death for blasphemy, wilful profaning of the Sabbath,
idolatry or inciting to idolatry, witchcraft, the cursing of God, one's
mother or father, and the ruler, "Unnatural Copulations, whether
Sodomy or Buggery," and "Whoredome of a maid in her Fathers
house," i.e., ravishing a virgin.47
Aspinwall's insistence on the full biblical letter had currency
only among extreme sectarians. More typical was the view of John
Cook that the Old Testament, at least, should be regarded as a first
rather than a final standard of law.48 This view went back to More
himself, who expressed it with customary vigor: "Moyses lawe,
thoughe it were ungentle and sharpe, as a lawe that was gyven to
bondmen; yea, and them verye obstinate, stubborne, and styf
necked; yet it punished thefte by the purse, and not wyth deathe.
And let us not thynke that God in the newe lawe of clemencie and
mercie, under the whiche he ruleth us with fatherlie gentlenesse, as
his dere chyldren, hath geven us greater scoupe and license to ex-
ecute crueltie one upon an other."49
Implicit in this view was the notion that the rigor of Mosaic law
could be mitigated, but not exceeded. More's blunt reproach to the
magistrate was echoed by the reformers of the Revolution. "[I]f
God... thought not fit to give that Magistrate, who is his Viceregent
here upon earth, such power over the lives of men," wrote John
March, "how dare any power or authoritie whatsoever usurp it?"'5
To do so was "tyranny," a word with strict connotations for the
Scripture-based controversialists of the 1650s. The tyrant was he
who exceeded God's law, inventing new offenses where none had
existed before, or applying new and harsher penalties to old ones.
The more sophisticated of the reformers noted the connection be-
tween the proliferation of laws and penalties and the repression of
the poor generally, a tendency exacerbated by the opportunism of
the Revolution. Yet this behavior was merely an expression of the
pride, vanity and hardness of heart of those who had rejected God,
and as servants of the Antichrist had given themselves up to the
appetites of power. Such men were, literally, appalling, monsters
who slew and tortured men at pleasure. Whether it was a duty to
resist them as Charles I had been resisted was a question that exer-
cised the Fifth Monarchists particularly, but there was no doubt that
it was a duty to denounce them and to withdraw all allegiance from
them, however one might be compelled to yield a fleshly obedience.
In a society where the traditional props of legitimation had been
47. Id.
48. Cook, supra note 15, at 43.
49. More, supra note 1, at 62-3.
50. March, supra note 26, at 107.
1987 CAPITAL PUNISHMENT DURING THE ENGLISH REVOLUTION 137

seriously weakened, such oppositionposed a serious problem,even

if confined to a few.
The conservative response to the charge of tyranny was that
capital punishment was a necessary deterrent to crimes against
property.This claim was vigorously contested by the abolitionists.
Few wanted to deny that theft was a serious social problem, and
fewer still to excuse it. John March admittedthat it was a proper
object of the law "to deterreand affrightenmen fromthis sin, which
is so frequent among us"; he added but that this goal could not
justify tyranny. Deterrence was not a sole and sufficient end in
itself; it must submit to the restraintsof divine law and equity.51
The abolitionistsbuttressedtheir case with a powerfulseries of
practical objections, many of which were to be repeated in eigh-
teenth-centurydebates on the subject. Deterrenceby capitalpenal-
ties, they argued, increased rather than diminishedtheft. It could
not reduce crime among the destitute because necessity knew no
law. It encouragedprofessionalthieves because victims were reluc-
tant to prosecute and juries to convict under so harsh a code. Not
only did this permit felons to escape theirjust punishment,but it
placed prospectiveplaintiffsandjurors in the intolerableposition of
being able to avoid one form of sin only by condoning, indeed be-
coming party to another. On the other hand, since conviction was
lawful on the basis of the plaintiff's own testimony, both malicious
prosecution and homicide against genuine victims were
encouraged.52
The result, arguedthe abolitionists,was to frustratethe ends of
justice and bring the law itself into disrepute. The system failed
everyone. It failed the victim, for he was denied a just restitution
and left only with a revenge that Christiancharity and respect for
divine law obliged him to reject. It deprivedthe jurors of their func-
tion, which was not primarilyto punish offenders so much as "to
relieve the wronged.""53 It deprived the thief of the opportunityto
repent of his crime, both inwardly and by means of material
restitution. If the thief were convicted, it deprived his wife and
childrenof the supportof a husbandand father, and the forfeitureof
his estate renderedthem destitute if they were not so already. Fi-
nally, it deprived the community itself not only of its right and

51. Id. at 111.

52. The Onely Right Rule For Regulating The Lawes and Liberties of the People of
England (Anon., 1652) argued against confiscation of estates on any grounds as the
only remedy against malicious prosecution. Forfeitures, like most of the penal laws
and procedures under the Norman yoke, were "the invention of Kings to turn fam-
ilies upside down at pleasure, for to them their forfeitures went, and they gave them
to their creatures and Sickovants." Id. at 8-9.
53. Tomlinson, supra note 20, at 12.
138 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXI

obligation to provide justice, but of its own share in the thief's

labor.54
William Tomlinson pointed out that Israel had prospered for
centuriesundera more lenient code thanthat of ChristianEngland.55
A similarargumentwas raisedin Leveller pamphlets,which claimed
that capital punishmentfor theft was prohibitedunder the funda-
mental laws of England and had never been imposed while they
were in force. Yet the country had been so safe in those days,
asserted one such pamphlet,that a rich man mighthave traveledthe
entire land with no more protection than "a white wand in his
hand."56
The argumentfrom fundamentallaw was a variantof the argu-
ment from Scripture:an appeal to prescriptive authority. It dealt
with Englishratherthan Mosaic law, and thus emphasizedboth how
recent an innovation the capital statutes were and how far they
representeda departurefrom custom and tradition.The lawyer Wil-
liam Sheppard enumerated a host of statutes from Edward I to
James I which had imposed capital penalties for such offenses as
"razing a Record" or "calling a mans self an Egyptian" (i.e., a
gypsy). Like many other reformers,Sheppardwas particularlycriti-
cal of the capital penalties in the game laws, which seemed to dero-
gate from man's biblical dignity as lord of creation, but he pointed
out as well that a man could be imprisonedeven for stealingthe eggs
of a wild fowl.57
In additionto emphasizingthe novelty of most capital statutes,
fundamentallaw argumentsalso cited the loss of basic procedural
rights in capital trials (e.g., testimony by at least two independent
witnesses, and the right to counsel) which tyranny had abrogated.
However, what the fundamentallaws themselves were held to pre-
scribe for theft (fines, involuntarylabor, corporalpunishment,and
public shaming) closely followed the biblical sanctions, of whose
equity they representedof course a confirmation.Indeed, given the
elaborateargumentraisedby abolitionistsagainstthe efficacy of the
death penalty as a deterrentto theft, it is not surprisingto find advo-
cates of stricternoncapitalpunishmentsamongthem. D. T. andJ. W.
were among those who favored whippingaccordingto the severity
54. Id. at 12-13, 18. The author of Chaos (1659), who favored capital punishment
only for murder, manslaughter and rape, proposed a treble restitution for theft, to be
divided equally between the victim, the upkeep of the parish, and the maintenance of
the highways.
55. Tomlinson, supra note 20, at 17; Anon., supra note 52, at 10.
56. Leveller Manifestaes of the Puritan Revolution, supra, note 10.
57. W. Sheppard, Englands Balme 195-96, 16 (1657). Sheppard however favored
corporal and in certain (unspecified) cases even capital punishment for sectarian
"Opinions." On his career, see N. L. Matthews, William Sheppard, Cromwell's Law
Reformer (1984).
1987 CAPITAL PUNISHMENT DURING THE ENGLISH REVOLUTION 139

of the offense( a punishmentcommonlyimposedforpettylarceny),

while J. W. contemplatedcorporalpunishments"moregrievous
thandeath."58PresumablyJ. W. had in mindthe sort of men de-
scribedby WilliamTomlinson,so desperateandhardenedthatthe
prospectof "halfanhourshanging"heldno greatterror.Tomlinson
suggestedthattheworkhousemightbe a morepersuasivedeterrent:
"[N]ota shortlife anda sweet, butfor a littlesweet, a longservi-
tudeandslavery,hardWorkandLabourfor shortpleasure."59 The
Moderate,a Leveller-affiliatednewspapereditedby GilbertMabbot
in 1648-49,wenta stepfurtherandarguedthatthedeathpenaltywas
too lenientto deter: ""[W]ould not a continuedafflictionduring
life," it asked,"be moreterriblethendeathit self,andjusticebetter
satisfied. . .?"60
Opinionwas dividedaboutthieves who provedincorrigible.
JohnCookfounda distinctionin Scripturebetweenthosewho stole
from"wantonnes"andthosewho appropriated fromnecessity.He
thoughtthatthe latteroughtto be assisted,notpunished,becausein
seeking to preserve themselves they had simply exercised an
indefeasiblenaturalright,and "the law of propertymustnot dero-
gate fromthe Law of Nature,muchless abrogateit."6'However,
"wanton"thieves-presumablyrepeatoffenders,or thoseshowing
no signof repentance-hadearnedtheirhanging,andwerenotto be
pitied.62Others,however,agreedwith ChidleyandJ. W. that the
biblical prohibitionagainst executing thieves was categorical and
absolute.63
Virtuallyall commentators,abolitionistor not, thoughtthat the
penalties should be increased for one class of defendant. The old
medieval right of benefit of clergy, which allowed clerics to plead
relief from trial in secular courts, had over the centuries become a
device by which anyone who could demonstrateliteracycould claim
exemption from capital and many other penalties in most felony
prosecutions.Even in cases of homicide, the penaltywas reducedto
brandingon the hand.64 Perhapsnothing illustratedthe class-based
inequity of the criminaljustice system more than benefit of clergy
appliedto the felony of theft. It was not only regardedas a license
58. D. T., Certain Queries, or Considerations presented to the view of all that
desire Reformation of Grievances 22 (1651); J. W., A Mite to the Treasury, supra
note 42 at 13.
59. Tomlinson, supra note 18, at 18.
60. Tomlinson, supra note 18, at 18; Jurgen Diethe, The Moderate: Politics and
Allegiances of a Revolutioinary Newspaper, 4 Hist. Pol. Thought 272-73n. (1983).
61. Cook, supra note 15, at 44.
62. Cook, supra, note 15, at 65.
63. Chidley, supra note 30, at 463; J.W., supra note 42 at 13; Chamberlen, Legis-
lative Power in Problemes 22 (1659).
64. This was intended to serve as a mark to identify recidivists. Clergy themselves
were exempt from branding.
140 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXI

for educatedmen to steal with virtualimpunity,but it meantthat the

illiteratethief was being executed, as the author of The Laws Dis-
covery put it, not for his offense, "but because he cannot read."65
For reformers, the law of theft broughtinto focus the radical
injustice of much of the legal system. It summedup the anti-Chris-
tian tyranny of the rich over the poor. It condemned the latter to
death against the laws of equity and divinity, and mocked their
sufferingby the arbitraryexemption of benefit of clergy. It confis-
cated their meager possessions, and left them to the medieval tor-
ture of pressingto death if they strove to protect their families from
destitution by refusing to plead.66The death penalty was both the
cause and crown of these other injuries. It was unwarrantedand
unsuitablein manyjurisdictions,but nowheremoreegregiouslythan
in the law of theft. In attackingit there, abolitionistsnot only had a
cause that would enlist ready sympathyand that dovetailedwith the
concern of millenariansamong them to exalt biblicallaw and trum-
pet the last days. They had laid bare the very taproot of social
injustice, the property system itself.
Yet it was from this very prospect that they shrank.Even those
who like John Cook criticized the oppressions of the rich most
scathingly did so within the frameworkof the traditionalChristian
antithesisbetween covetousness and charity, ratherthan as a quar-
rel with propertyas such. Indeed, the abolitionistswere particularly
anxious to clear themselves from the imputationof "levelling" in
the most pejorativesense. Cook advocated a series of intervention-
ist measures on behalf of the poor that included free medical care,
interest-freeloans, forfeituresagainst usurers, confiscationof gam-
blers' winnings, a sales tax, a tithe on ministers, and price controls
on grain. However, he added, "I would not be mistakenas if I were
an enemy to great Estates; the God of orderhath appointedseverall
degrees of men. . . . I am not of their opinion that drive at parity to
have all men a like, ti's but a Utopian fiction, the Scriptureholds
forth no such thing."67Cook's very distinctionbetween the needy
poor whose appropriationof goods for survivalwas justified by the
65. The Laws Discovery (Anon. 1653). In 2 The Harleian Miscellaney; Or A Col-
lection of Scarce, Curious, and Entertaining Pamphlets & Tracts 577 (1809). Psalm
51 was typically, though not necessarily, the verse required. Professional thieves
often committed it to memory. Since judges could determine both the verse to be read
and the satisfactoriness of the "reading," wide discretion was available here too. A
felon could plead benefit of clergy even after judgment, enabling him to memorize his
verse in jail: Baker, "Criminal Courts and Procedure at Common Law 1550-1800," in
Crime in England 1550-1800 41 (J.S. Cockburn ed. 1977). Once again, "leniency" in
interpreting an archiac practice facilitated selective enforcement. The reading test,
though not benefit of clergy itself, was abolished in 1706.
66. March's denunciation of peine forte et dure is particularly thorough. March,
supra note 28, at 137-49.
67. Cook, supra note 15, at 36.
1987 CAPITAL PUNISHMENT DURING THE ENGLISH REVOLUTION 141

law of natureandthose 'wanton'thieveswho meritedthe fullrigor

of the law implieda kindof tradeoff-an attemptto prickthe con-
sciencesof therichwithoutalarmingthemaboutthesecurityof their
fortunes.Thusthe abolitionistsremainedessentiallywithinthe sys-
tem of propertyrelationsthat had framedthe felony laws, as well as
withinthe retributiveassumptionsof the lex talionis. Even the most
eschatologically-mindedof the reformers, such as Chamberlen,
were able to combinetheir expectationof the world's last days with
a healthy concern for the state of trade.68With one exception, the
abolitionistswere unableto move from the premisethat a man's life
should not be taken away for the value of a garmentto the question
of whether it should be taken away for any reason at all.
The exception was GerrardWinstanley. We know too little of
Winstanley'sbackgroundto do more than speculate whetherhe had
contact with Familistgroups in Englandwho were said to reject the
concept of punishmentitself. However it may be, Winstanleywas
the only figure to publicly propose the complete abolitionof capital
punishmentduringthe EnglishRevolution,and the first of whom we
have recordanywhere. This alone would entitle him to a significant
place in the moral history of mankind.
Winstanley'sabolitionismwas the productof religiousegalitar-
ianismmarriedto a pantheist,materialistinterpretationof the fall of
man. Its clearest statement is in The New Law of Righteousness:
It is not for one creaturecalled man to kill another, for this is
abominableto the Spirit,and it is the curse which hathmade the
Creationto groan under bondage;for if I kill you I am a mur-
derer, if a thirdcome, and hangor kill me for murderingyou, he
is a murdererof me; and so by the government of the first
Adam, murder hath been called Justice when it is but the
curse.69
Winstanley'swhole vision is here: the notion that government
as men have known it, the governmentof "Adam," is not merely
the result of the Fall but the instrumentof its perpetuation;the
radicalequality of all men; the transcendentvalue of the creation;
and the identification of original sin-what Winstanley calls the
"curse"-not with the apple in the Gardenbut with the slaying of
Abel. Witha sublimedisregardfor all forms of hierarchyand author-
ity, he asserts that whenever the "creature called man" takes the
life of any of his fellows, under whatever pretext or justification,
murderis committedand spiritualdeath affirmed.With a grandand
total gesture, he sweeps aside all law and tradition,everythingthat
stands in the way of his vision of the dignity of man.
68. Chamberlen, supra note 18, at 61.
69. The Works of Gerrard Winstanley, 193 (G. H. Sabine ed. 1941).
142 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXI

Winstanleyhimself could not sustainthat vision. In TheLaw of

Freedom (1652), the blueprintfor a new society he wrote after the
collapse of the communitarianmovementwith which he was briefly
associated, the Diggers, the death penalty was restorednot only for
the crimes of rape and murder,but for either engagingin or advocat-
ing commerce within the communityor for practicinglaw or divin-
ity.70The dreamof a spontaneousbrotherhoodwas replacedby the
arid formulasof a utopia, and Winstanleyseemed to fall back on a
scarcely convincing conflation of the Mosaic code and the Sermon
on the Mount:"He who strikeshis Neighbor, shallbe struckhimself
by the Executionerblow for blow, and shall lose eye for eye, tooth
for tooth, limb for limb, life for life: and the reason is, that men may
be tender of one anothers bodies, doing as they would be done
by."71
From a practicalpoint of view, any call for a complete abolition
of capital punishmentwould have faced an insuperableobstacle in
the circumstances of the English Commonwealthitself. The Com-
monwealth had been founded on an act of such punishment, the
execution of CharlesI. It is difficultto imaginea governmentwhich
had broughtitself into being by a deliberateand ceremonialshedding
of blood entertaininga proposalthat would in effect have requiredit
to repudiate its own legitimacy. The unprecedentednature of the
proceeding, the nature of the person and office, and Charles' own
sharpchallengeto the legality of his trial, would have madethe issue
still more sensitive. It is hardly surprisingtherefore that the com-
plete abolitionism of The New Law of Righteousness had no second-
ers, and by the time Winstanleyhimself producedan appeal for his
later programto Cromwell,he pointedlyadvocateddeathfor anyone
seeking to restore "Kingly bondage.'"72
Yet the more limitedcampaignto abolishcapitalpunishmentfor
theft, to eliminatepeine forte et dure to compel pleadingand auto-
matic forfeitureof estates in felony proceedings, and to requirethe
testimony of two independentwitnesses, had a good deal moreplau-
sibility. Cromwellhimself supportedthese goals. The parliamentary
Hale Commissionof 1652,institutedpartlyat his urging,considered
these and a variety of other proposalsfor law reform.7"The work of
the Commissionwas abortedby the dissolutionof the RumpParlia-
ment, although its recommendationsgot a second hearing a few
months later in the Barebones Parliament,whose members were
nominatedby Cromwelland his Council. The reformof the capital
70. Id. at 591-92, 595, 597, 599.
71. Id. at 591-92.
72. Id. at 595.
73. See Mary Cotterell, Interregnum Law Reform: The Hale Commission of 1652,
83 Econ. Hist. Rev. 689-704 (2nd series 1968).
1987 CAPITAL PUNISHMENT DURING THE ENGLISH REVOLUTION 143

statutes was modest enough. Persons executed for manslaughter

were to be sparedthe forfeitureof their estates, and women were to
be hanged rather than (as in cases of treason) burned. The most
importantrecommendationswere for the abolitionof peine forte et
dure, and for the reductionin penalty for a first offense of cuttinga
purse or stealinga horse from death to two years in the workhouse,
treble restitution of damages, brandingin the left hand, monthly
whipping, and the wearing of an iron collar permanentlyrivetted
about the neck.74 None of these proposals, however, was acted
upon. Perhaps one cannot greatly regret that the last of these was
passed over in silence, as was anotherto cut off the right hands of
"wilful murtherers"before their execution.
Nonetheless, Cromwell remained committed to reform. He
urged it again on his second ProtectoralParliamentin 1656: "To
hang a manfor six-and-eightpenceand I know not what; to hang for
a trifle and to acquit murder. . . . This is a thing God will reckon
for."75The gentry and lawyers of his most conservative Parliament
proved more interested in devising novel punishments for the
QuakerJames Nayler, who had unadvisedlyproclaimedhimself to
be Jesus Christ, than in alleviating the inequities of the law.
Ironically, the imminentdeath of the chief sponsor of legal reform
stimulated a new spate of abolitionist pamphleteering. Both
Chamberlenand Tomlinsontook up theirpens in the waningdays of
the Protectorate,and the abolitionof the death penaltyfor theft was
one of the major demands in three Quakertracts that circulatedin
the year before the Restoration, Edward Billing's 31 Proposals,76
George Fox's 59 Proposals,77 and Thomas Lawson's Appeal to the
Parliament Concerning the Poor.78 Indeed, one of the most impres-
sive aspects of the abolitionistcampaignwas the breadthof its sup-
port across the entire radicalspectrum;as R. L. Hine remarkedof
Samuel Chidley, he was "a Puritanof Puritans, Fifth Monarchist,
Leveller, Lilburnian,Millenarianand all.'79
74. Cromwell, "Several Draughts of Acts ... ," in 6 Somers Tracts. A Collection
of Scarce and Valuable Tracts, 235-37 (Sir Walter Scott ed. 1811).
75. Quoted in Veall, supra note 9, at 1.
76. Billings, 31 Proposals (1659).
77. Fox, 59 Proposals (1659).
78. Lawson, Appeal to the Parliament Concerning the Poor (1660).
79. Quoted in James, supra note 9, at 385. Fox opposed the death penalty except
for murder. William Cole's A Rod for the Lawyers (1659) and William Pryor's A Plea
for the Poor and Helpless (1659) also appeared at this time. Pryor attributed theft and
murder to "misery and want," to which the poor were exposed by the power of the
great: "So they necessitate them to steal by tyranny, and then hang them for it, and
this begets animosity, secret hatred, seeking for revenge, the product of which is
murder." Pryor, supra at 23. The recall of Parliament prompted an abolitionist peti-
tion as well: Long Parliament-Work (if they will please to do't) for The Good of the
Common-wealth (1659).
144 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXI

The Restoration silenced the abolitionists, and much else.

Winstanleyprobablyended his days amongthe Quakers,and it was
a Quaker,John Bellers, who finally took up his lone and forgotten
cry for a complete abolitionof the death penalty half a centurylater
in his Essays About the Poor.80 By that time, the great regression
had begun that was to swell the numberof capital crimes to more
than two hundredby the early nineteenthcentury. As Douglas Hay
has remarked,the GloriousRevolution,enthroningpropertyvalues,
made them "the measure of all things."81Chidley had condemned
the law "that forceth all Men to preferthe meanestThingbefore the
greatest, that is, a little wicked Mammonwith an idolatrousBadge
upon it, before a Man's preciouslife.''82 From Locke to Blackstone,
the law protected the nation's precious commerce before any
wicked little life. Three hundred years were to pass before
Winstanley'svision became the law of the land in England.In most
of the world, it still awaits its vindication.

80. J. Bellers, Essays About the Poor (1699).

81. D. Hay, Albion's Fatal Tree: Crime and Society in Eighteenth-Century Eng-
land 5 (1975).
82. Chidley, supra note 30, at 468.