An Enquiry into the Causes of the late Increase of Robbers/Section 5

SECT. V.

Of the Punihment of.

Now one great Encouragement to Theft of all Kinds is the Eae and Safety with which tolen Goods may be dipoed of. It is a very old and vulgar, but a very true Saying, 'that if there were no Receivers, there would be no Thieves.' Indeed could not the Thief find a Market for his Goods, there would be an abolute End of everal Kinds of Theft; uch as Shop-lifting, Burglary, &c. the Objects of which are generally Goods and not Money. Nay Robberies on the Highway would o eldom anwer the Purpoe of the Adventurer, that very few would think it worth their while to rique o much with uch mall Expectations.

But at preent, intead of meeting with any uch Dicouragement, the Thief dipoes of his Goods with almot as much Safety as the honetet Trademan: For firt, if he hath made a Booty of any Value, he is almot ure of eeing it advertied within a Day or two, directing him to bring the Goods to a certain Place where he is to receive a Reward (sometimes the full Value of the Booty) and no Quetions aked. This Method of recovering tolen Goods by the Owner, a very learned Judge formerly declared to have been, in his Opinion, a Compoition of Felony. And urely if this be proved to be carried into Execution, I think it mut amount to a full Conviction of that Crime. But, indeed, uch Advertiements are in themelves o very candalous, and of uch pernicious Conequence, that if Men are not ahamed to own they prefer an old Watch or a Diamond Ring to the Good of the Society, it is pity ome effectual Law was not contrived to prevent their giving this publick Countenance to Robbery for the future.

But if the peron robbed hould prove either too honet, or too obtinate, to take this Method of recovering his Goods, the Thief is under no Difficulty in turning them into Money. Among the great Number of Brokers and Pawnbrokers everal are to be found, who are always ready to receive a Gold Watch at an eay Rate, and where no Quetions are aked, or, at leat, where no Anwer is expected but uch as the Thief can very readily make.

Beides, the clandetine Dealers this Way who atify their Conciences with telling a ragged Fellow, or Wench, that they hope they came honetly by Silver, and Gold, and Diamonds; there are others who corn uch pitiful Subterfuges, who engage openly with the Thieves, and who have Warehoues filled with tolen Goods only. Among the Jews who live in a certain Place in the City, there have been, and till are, ome notable Dealers this Way, who in an almot public Manner have carried on a Trade for many Years with Rotterdam, where they have their Warehoues and Factors, and whither they export their Goods with prodigious Profit, and as prodigious Impunity. And all this appeared very plainly lat Winter in the Examination of one Cadoa a Jew, in the Preence of the late excellent Duke of Richmond, and many other Noblemen and Magitrates.

What then hall we ay? Is not this Michief worthy of ome Remedy, or is it not capable of it? The noble Duke (one of the worthiet of Magitrates as well as of the bet of Men) thought otherwie, as would have appeared, had his valuable Life, for the Good of Mankind, been prolonged.

Certain it is, that the Law as it now tands is ineffectual to cure the Evil. Let us ee therefore, if posible, where the Defect lies.

At the Common Law, any one might lawfully (says Lord Hale) have received his own Goods from the Felon who tole them. But if he had received them upon Agreement not to proecute, or to proecute faintly, this would have been Theftbote punihable by Imprionment and Ranom.

But in neither of the foregoing Caes would the Receiver of the Goods have become an Accesary to the Felon. So if one Man had bought another's Goods of the Thief, though he had known them to be tolen, if he had given the jut Value for them, he would not have become an Accesary. But if he had bought them at an Undervalue, this, Sir Richard Hyde held, would have made him an Accesary. My Lord Hale differs from his Opinion, and his Reaon to ome Readers may eem a pleaant one; for if there be any odds (says he) he that gives more, benefits the Felon more than he that gives les than Value. However this, his Lordhip thinks, may be a Midemeanor punihable by Fine and Imprionment; but that the bare receiving of Goods knowing them to be tolen makes not an Accesary.

So ays the great Lord Hale, and o indeed was the Law; though the Judges eem not to have been unanimous in their Opinion. In the Book of Asizes, Scrope is aid to have held otherwie; and though Shard there quahed an Appeal of Felony for receiving tolen Goods only, yet I cannot help oberving, that the Reporter of the Cae hath left a Note of Atonihment at the Judgment of the Court. This, ays he, was wonderful! and wonderful urely it is, if he who receives, relieves, comforts, or asits a Felon, hall be an Accesary, that he hall not be o, who knowingly buys the Goods of the Felon; which is generally, I believe, the tronget Relief, Comfort and Asitance which can be given him, and without the Hope and Expectation of which, he would never have committed the Theft or Robbery.

It is unnecesary, however, to enter further into this Controvery; ince it is now expresly declared by Statute, 'That the Receivers of tolen Goods, knowing them to be tolen, hall be deemed Accesaries after the Fact.'

But this Statute, though it removed the former Aburdity of the Law, was not ufficient to remedy the Evil; there yet remaining many Difficulties in bringing the pernicious Micreants to Jutice, conistent with legal Rules. For,

1. As the Offence of the Accesary is dependant on that of the Principal, he could not be tried our out-lawed, till after the Conviction or Attainder of the Principal; o that however trong Evidence there might be againt the Receiver, he was till afe, unles the Thief could be apprehended.

2. If the Thief on his Trial hould be acquitted, as often happens through ome Defect of Evidence in the mot notorious Caes, the Receiver, being only an Accesary, tho' he hath confesed his Crime, or tho' the mot undeniable Evidence could be brought againt him, mut be acquitted likewie.

3. In Petit Larceny there can be no uch Accesary : for tho' the Statute ays that a Receiver of tolen Goods, knowing, &c. hall be an Accesary after the Fact, that is, legally undertood to mean only in Caes where uch Accesary may be by Law; and that is confined to uch Felonies as are to receive Judgment of Death, or to have the Benefit of Clergy. Now, for Petit Larceny, which is the Stealing Goods of les Value than a Shilling, the Punihment at common Law is Whipping; and this was properly enough conidered as too trifling an Offence to extend the Guilt to Criminals in a econd Degree. But ince Juries have taken upon them to conider the Value of Goods as immaterial, and to find upon their Oaths, that what is proved to be worth everal Shillings, and ometimes everal Pounds, is of the Value of Tenpence, this is become a Matter of more Conequence. For Intance: If a Pickpocket teal everal Handkerchiefs, or other Things, to the Value of Twenty Shillings, and the Receiver of thee, knowing them to be tolen, is dicovered, and both are indicted, the one as Principal, the other as Accesary, as they mut be; if the Jury convict the Principal and find the Goods to be of as high Value as a Shilling, he mut receive Judgment of Death; whereas, by finding the Goods (which they do upon their Oaths) to be of the Value of Tenpence, the Thief is ordinarily entenced to be whipt, and returns immediately to his Trade of picking Pockets, and the Accesary is of coure dicharged, and of coure returns to his Trade of receiving the Booty: Thus the Jury are perjured, the Public highly injured, and two excellent Acts of Parliament defeated, that two Micreants may laugh at their Proecutors, and at the Law.

The two former Defects are indeed remedied by a later Statute, which enacts, 'That the Buyers and Receivers of tolen Goods, knowing them to be tolen, may be proecuted for a Midemeanour, and punihed by Fine and Imprionment, though the principal Felon be not before convicted of Felony.'

This lat Statute is again repeated in the 5th of Queen Anne ; and there the Power of the Court to punih in the Cae of Midemeanour, is farther encreaed to any other corporal Punihment, which the Court hall think fit to inflict, intead of Fine and Imprionment; and, in the Cae of the Felony, the Accesary is to receive Judgment of Death; but the Benefit of Clergy is not taken away. Latly, By the Statute of George II. the Receivers of tolen Goods, knowing &c. are to be tranported for 14 Years. And by the ame Statute, every Peron taking Money or Reward, directly or indirectly, under Pretence or upon Account of helping any to tolen Goods, unles uch Peron apprehend and bring to his Trial the Felon, and give Evidence againt him, is made guilty of Felon without Benefit of Clergy.

And thus tands the Law at this Day; which, notwithtanding the repeated Endeavours of the Legilature, Experience hews us, is incapable of removing this deplorable Evil from the Society.

The principal Defect eems, to me, to lie in the extreme Difficulty of convicting the Offender; for,

1. Where the Thief can be taken, you are not at Liberty to proecute for the Midemeanour.

2. The Thief himelf, who mut be convicted before the Accesary is to be tried, cannot be a Witnes.

3. Without uch Evidence it is very difficult to convict of the Knowledge, that the Goods were tolen; which, in this Cae, can appear from Circumtances only. Such are principally, 1. Buying Goods of Value, of Perons very unlikely to be the lawful Proprietors. 2dly, Buying them for much les than their real Value. 3dly, Buying them, or elling them again, in a clandetine Manner, concealing them, &c. None of thee are commonly liable to be proved; and I have known a Man acquitted, where mot of thee Circumtances have appeared againt him.

What then is to be done, to extirpate this tubborn Michief? to prove the pernicious Conequence of which, I need, I think, only appeal to the Sene of Parliament, tetified in o many repeated Acts, and very trongly expresed in their Preambles.

Firt, Might it not be proper to put an effectual Stop to the preent candalous Method of compounding Felony, by public Advertiements in the News Papers? Might not the inerting uch Advertiements be rendered highly criminal in the Authors of them, and in the Printers themelves, unles they dicover uch Authors?

2dly, Is it imposible to find any Means of regulating Brokers and Pawnbrokers? If o, What Arguments are there againt extirpating entirely a Set of Micreants, which, like other Vermin, harbour only about the Poor, and grow fat by ucking their Blood?

3dly, Why hould not the receiving tolen Goods, knowing them to be tolen, be made an original Offence? by which Means the Thief, who is often a paultry Offender in Comparion of the Receiver, and ometimes his Pupil, might, in little Felonies, be made a Witnes againt him: for thus the Trial of the Receiver would in no Cae depend on the Trial or Conviction of the Thief.

4thly, Why may not the bare buying or taking to Pawn tolen Goods, above a certain Value, be made Evidence of receiving with Knowledge, &c. unles the Goods were bought in Market overt, (no Broker's or Pawnbroker's Shop to be reputed uch Market overt) or unles the Defendant could prove, by a credible Witnes to the Tranaction, that he had good Caue to regard the Seller or Pawner of the Goods to be the real Owner. If 20s. was the Value limited, it would anwer all the Purpoes contended for; and would in nowie interfere with the honet Trade (if indeed it ever be o) between the Pawnbroker and the Poor.

If none of thee Methods be thought posible or proper, I hope better will be found out. Something ought to be done, to put an End to the preent Practice, of which I ee daily the mot pernicious Conequences; many of the younger Thieves appearing plainly to be taught, encouraged and employed by the Receivers.