An Enquiry into the Causes of the late Increase of Robbers/Section 7

SECT. VII.

Of apprehending the Perons of Felons.

I Come now to a third Encouragement which the Thief flatters himelf with, viz. in his Hopes of ecaping from being apprehended.

Nor is this Hope without Foundation: How long have we known Highwaymen reign in this Kingdom after they have been publicly known for uch? Have not ome of thee committed Robberies in open Daylight, in the Sight of many People, and have afterward rode olemnly and triumphantly through the neighbouring Towns, without any Danger or Moletation. This happens to every Rogue who is become eminent for his Audaciounes, and is thought to be deperate; and is in a more particular Manner the Cae of great and numerous Gangs, many of which have for a long Time committed the mot open Outrages in Defiance of the Law. Officers of Jutice have owned to me, that they have pased by uch with Warrants in their Pockets againt them, without daring to apprehend them; and indeed they could not be blamed for not expoing themelves to ure Detruction: For it is a melancholy Truth, that, at this very Day, a Rogue no ooner gives the Alarm, within certain Purlieus, than twenty or thirty armed Villains are found ready to come to his Asitance.

On this Head the Law may eem not to have been very defective in its Cautions: Firt, By veting not only the Officers of Jutice, but every private Man, with Authority for ecuring thee Micreants, of which Authority it may be of Service to the Officers, as well as to the Public in general, to be more particularly informed.

Firt, By Wetminter I. Perons of evil Fame are to be imprioned without Bail. By the Statute of Wincheter, uspicious Night-walkers are to be arreted and detained by the Watch. A Statute made in 5 Ed. III. reciting that many Manlaughters, Felonies, and Robberies had been done in Times pat, enacts, That if any Peron have an evil Supicion of uch Offenders, they hall be incontinently arreted by the Contable, and hall be delivered to the Bailiff of the Franchie, or to the Sheriff, to be kept in Prion till the coming of the Jutices. The 34 Edw. III. gives Power to the Jutices of the Peace, inter alia, to enquire of Wanderers, and uch as will not labour, and to arret and imprion uspicious Perons, and to take Sureties of the good Behaviour of Perons of evil Fame, 'to the Intent, ays the Statute, that the People be not by uch Rioters, &c. troubled nor endamaged, nor the Peace blemihed, nor Merchants nor others pasing by the Highways of the Realm diturbed, nor put in Peril by uch Offenders.'

Secondly, By the Common Law every Peron who hath committed a Felony, may be arreted and ecured by any private Man preent at the aid Fact, though he hath no general nor particular Authority, i.e. tho' he be no Officer of Jutice, nor have any Writ or Warrant for o doing; and uch private Man may either deliver the Felon to the Contable, ecure him in a Goal, or carry him before a Magitrate. And if he refues to yield, thoe who arret may jutify beating him; or, in cae of abolute Necesity, killing him.

Nor is this Arret merely allowed; it is enjoined by Law, and the Omision, without ome good Excue is a Midemeanor punihable by Amercement or Fine and Imprionment.

Again every private Man may arret another on Supicion of Felony, though he was not preent at the Fact. But then if the Party arreted hould prove innocent, two Circumtances are necesary to jutify the Arret. 1st, A Felony mut be actually committed; and, 2dly, there mut be a reaonable Caue of Supicion; and common Fame hath been adjudged to be uch Caue.

But in this latter Cae my Lord Hale advies the private Peron, if posible, to have recoure to the Magitrate and obtain his Warrant, and the Asitance of the Contable; for this Arret is not required by Law, nor is the Party punihable for neglecting it; and hould the Peron arreted, or endeavoured to be arreted, prove innocent, the Party arreting him, &c. will, in 2 great Meaure, be anwerable for the ill Conequence; which if it be the Death of the innocent Peron occaioned by Force or Reistance, this will, at leat, be Manlaughter; and if the other hould be killed in the Attempt, this likewie will amount to Manlaughter only.

Again, any private Peron may jutify arreting a Felon purued by Hue and Cry. This, as the Word imports, is a public Alarm raied all over the Country, in which the Contable is firt to earch his own Vill or Diviion, and then to raie all the neighbouring Vills about, who are to purue the Felon with Hoe and Foot. And this Hue and Cry may either be after a Peron certain, or on a Robbery committed where the Peron is not known; and in the latter cae, thoe who purue it may take uch Perons as they have probably Caue to uspect, Vagrants, &c.

This Method of Puruit lies at the Common Law, and is mentioned by Bracton; and it is enforced by many Statutes, as by Wetm. 1. 'All are to be ready at the Summons of the Sheriff, and at the Cry of the County, to arret Felons as well within Franchies as without.' By 4 Edw. I. 'Hue and Cry is ordered to be levied for all Murders, Burglaries, Men lain, or in Peril to be lain, and all are to follow it.' And latly, the Statute of Winton enacts as we have een before.

And this Puruit may be raied, 1. By a private Peron. 2. By the Country without an Officer. 3. By an Officer without a Warrant. 4. By the Warrant of a Magitrate. And this lat, if it can be obtained, is the afet Way: for then all who asit are enabled by the Statutes 7 and 21 Jac. to plead the general Isue.

The Common Law o trictly enjoined this Puruit, that if any Defect in raiing it lay in the Lord of the Franchie, the Franchie hould be eized into the King's Hands; and if the Neglect lay in the Bailiff, he hould have a heavy Fine, and a Year's Imprionment, or uffer two Years Imprionment without a Fine. And now by a very late Statute, 'if any Contable, Headborough, &c. of the Hundred where any Robberies hall happen, hall refue or neglect to make Hue and Cry after the Felons with the utmot Expedition, as oon as he hall receive Notice thereof, he hall for every uch Refual and Neglect forfeit 5l. half to the King and half to the Informer.'

Now Hue and Cry is of three different Kinds: 1. Againt a Peron certain by Name. 2. Againt a Peron certain by Decription. 3. On a Robbery, Burglary, &c. where the Peron is neither known, nor capable of being decribed.

When a Hue and Cry is raied, every private Man is not only jutified in puruing; but may be obliged by Command of the Contable to purue the Felon, and is punihable, if he diobey, by Fine and Imprionment. And in this Cae whether a Felony was committed or not, or whether the Peron arreted (provided he be the Peron named or decribed by the Hue and Cry) be guilty or innocent, or of evil or good Fame, the Arret is lawful and jutifiable, and he who raied the Hue and Cry is alone to anwer for the Jutice of it.

In this Puruit likewie the Contable may earch uspected Houes, if the Doors be open; but breaking the Door will not be jutifiable, unles the Felon be actually in the Houe; nor even then, unles Admittance hath been firt demanded and denied. And what the Contable may do himelf will be jutifiable by any other in his Asitance, at leat, by his Command. Indeed a private Peron may jutify the Arret of an Offender by the Command of a Peace Officer; for he is bound to be aiding and asiting to uch Officer, is punihable for his Refual, and is conequently under the Protection of the Law.

Latly, A private Peron may arret a Felon by Virtue of a Warrant directed to him: for though he is not bound to execute uch Warrant, yet if he doth, it is good and jutifiable.

Thirdly, Officers of public Jutice may jutify the Arret of a Felon by Virtue of their Office, without any Warrant. Whatever therefore a private Peron may do as above, will certainly be jutifiable in them.

And as the arreting Felons, &c. is more particularly their Duty, and their Fine will be heavier for the Neglect, o will their Protection by the Law be the greater: For if, in arreting thoe that are probably uspected, the Contable hould be killed, it is Murder; on the other Hand, if Perons purued by thee Officers for Felony, or jutifiable Supicion thereof, hall reist or fly form them; or being apprehended hall recue themelves, reist, or fly; o that they cannot otherwie be apprehended or re-apprehended, and are of Necesity lain, it is no Felony in the Officers, or in their Asitants, tho' posibly the Parties killed are innocent; for by reisting the King's Authority in his Officers, they draw their own Blood on themelves.

Again, To take a Felon or uspected Felon, the Contable without any Warrant may break open the Door. But to jutify this, he mut hew; 1. That the Felon, &c. was in the Houe. 2. That his Entry was denied. 3. That it was denied after Demand and Notice that he was Contable.

Latly, A Felon may be apprehended by Virtue of a Warrant isuing from a Magitrate lawfully authorized; in the Execution of which the Officer hath the ame Power, and will, at leat, have the ame Protection by Law as in the Arret Virtute Officii. And this Warrant, if it be pecially directed to him, the Contable may execute in any Part within the Juridiction of the Magitrate; but he is only obliged to execute it within the Diviion for which he is Contable, &c.

In the Execution of a Warrant for Felony, the Officer may break open the Doors of the Felon, or of any Peron where he is concealed; and the breaking the Doors of the Felon is lawful at all Events, but in breaking thoe of a Stranger the Officer acts at his Peril: for he will be a Trepaser if the Felon hould not be there.

Such are the Powers which the Law gives for the apprehending Felons (for as to the particular Power of Sheriffs and Coroners, and the Proces of uperior Courts, they may well be pased by in this Place.) Again, thee Powers we ee are enforced with Penalties; o that not only every Officer of Jutice, but every private Peron is obliged to arret a known Felon, and may be punihed for the Omision.

Nor doth the Law top here. The apprehending uch Felons is not only authorized and enjoined, but even encouraged, with Impunity to Perons guilty themelves of Felony, and with Reward to others.

By 3 and 4 of William and Mary, Perons guilty of Robbery in the Highway, Fields, &c. who, being out of Prion, hall dicover any two Offenders to be convicted of uch Robbery, are entitled to his Majety's Pardon of uch Robberies, &c. as they hall have then committed.

By 10 and 11 of William III. this is extended to Burglary, and uch Felonies as are mentioned in the Act.

By the ame Act all Perons who hall apprehend a Felon for privately tealing Goods to the Value of 5s. out of Shop, Warehoue, Couch-houe, or Stable, by Night or by Day (provided the Felon be convicted thereof) hall be entitled to a Certificate which may be asigned once, dicharging uch Apprehender or in his Asignee from all Parochial Offices in the Parih or Ward where uch Felony was committed. This Certificate is to be enrolled by the Clerk of the Peace, and cannot be asigned after it hath been ued.

If any Man be killed by uch Houebreaker, &c. in the Attempt to apprehend him, his Executors or Adminitrators hall be entitled to uch Certificate.

By the 3 and 4 of W. and M. whoever hall apprehend and proecute to Conviction any Robber on the Highway, hall receive of the Sheriff 40l. within a Month after the Conviction for every Offender; and in cae of the Death or Removal of the Sheriff, the Money to be paid by the ucceeding Sheriff within a Month after the Demand and Certificate brought. The Sheriff on Default forfeits double the Sum, to be recovered of him by the Party, his Executors, &c.

And if the Peron be killed in this Attempt by any uch Robber, the Executors of uch Peron, &c. are entitled to the Reward, under the like Penalty.

Again, by the ame Act the Hore, Furniture, Arms, Money, or other Goods, taken with uch Highwaymen, are given to the Apprehender who hall proecute to Conviction, notwithtanding the Right or Title of his Majety, any Body Politic of Lord of Franchie, or of thoe who lent or let the ame to hire uch Robber, with a aving only of the Right of uch Perons from whom uch Hores, &c. were feloniouly taken.

By a Statute of Queen Anne, the 40l. Reward is extended to Burglary and Houebreaking.

But tho' the Law eems to have been ufficiently provident on this Head; there is till great Difficulty in carrying its Purpoe into Execution, ariing from the following Caues.

Firt, With Regard to private Perons, there is no Country, I believe, in the World, where that vulgar Maxim o generally prevails, that what is the Buines of every Man is the Buines of no Man; and for this plain Reaon, that there is no Country in which les Honour is gained by erving the Public. He therefore who commits no Crime againt the Public, is very well atified with his own Virtue; far from thinking himelf obliged to undergo any Labour, expend any Money, or encounter any Danger on uch Account.

2dly, The People are not entirely without Excue from their Ignorance of the Law: For o far is the Power of apprehending Felons, which I have above et forth, from being univerally known, that many of the Peace Officers themelves do not know that they have any uch Power, and often from Ignorance refue to arret a known Felon 'till they are authorized by a Warrant from a Jutice of Peace. Much les then can the compulory Part to the private Perons carry any Terror of a Penalty of which the Generality of Mankind are totally ignorant; and of inflicting which they ee no Example.

Thirdly, So far are Men from being animated with the Hopes of public Praie to apprehend a Felon, that they are even dicouraged by the Fear of Shame. The Peron of the Informer is in Fact more odious than that of the Felon himelf; and the Thief-catcher is in Danger of wore Treatment from the Populace than the Thief.

Latly, As to the Reward, I am afraid that the Intention of the Legilature is very little anwered: For not to mention that the Proecutor's Title to it is too often defeated by the foolih Lenity of Juries, who by acquitting the Prioner of the Burglary and finding him guilty of the imple Felony only, or by finding the Goods to be les than the Value of 5s. both often directly contrary to Evidence, take the Cae entirely out of the Act of Parliament; and ometimes even when the Felon is properly convicted, I have been told that the Money does not come o eaily and fully to the Pockets of thoe who are entitled to it as it ought.

With Regard to the firt and fourth of thee Objections, I chue to be ilent: To precribe any Cure for the former, I mut enter into Diquiitions very foreign to my preent Purpoe; and for the Cure of the latter, when I conider in whoe Power it is to remedy it, a bare Hint will, I doubt not, uffice.

The econd Objection, namely, the Excue of Ignorance, I have here endeavoured to remove by etting forth the Law at large.

The third therefore only remains, and to that I hall peak more fully, as the Opinion on which it is founded is of the mot pernicious Conequence to the Society; for what avail the bet of Laws, if it be a Matter of Infamy to contribute towards their Execution? The Force of this Opinion may be een in the following Intance. We have a Law by which every Peron who drives more than ix Hores in a Wagon forfeits as many Hores as are found to exceed that Number. This Law is broken every Day, and generally with Impunity: For though many Men yearly venture and loe their Lives by tealing Hores, yet there are very few who dare eize a Hore, where the Law allows and encourages it, when by uch Seizure he is to acquire the Name of an Informer: So much wore is this Appellation in the Opinion of Vulgar than that of Thief; and o much more prevalent is the Fear of popular Shame than of Death.

This aburd Opinion eems to have firt arien from the Statute of 18 Eliz. entitled, An Act to redres Diorders in common Informers. By this Statute it appears, that very wicked Ues had been made of penal Statutes by thee Informers, whom my Lord Coke calls Turbidum Hominum Genus; 'Laws which were obolete, and in time grown imposible or inconvenient to be performed, into Snares to vex and intangle the Subject.'

By the Statute itelf it appears, that it was uual at that Time among thee Perons to extort Money of ignorant and fearful People by the Terror of ome penal Law; for the Breach of which the Informer either intituted a Proces, or pretended to intitute a Proces, and then brought the timorous Party to a Compoition.

This Offence therefore was by this Act made a high Midemeanor, and punihed with the Pillory.

Now who that knows any thing of the Nature or Hitory of Mankind, doth not eaily perceive here a ufficient Foundation for that Odium to all Informers which hath ince become o general: For what is more common than from the Abue of any thing to argue againt the Ue of it, or to extend Obloquy from Particulars to Univerals?

For this the common Aptitude of Men to Scandal will ufficiently account; but there is till another and tronger Motive in this Cae, and that is the Interet of all thoe who have broken or who intend to break the Laws. Thus the general Cry being once raied againt Proecutors on penal Laws, the Thieves themelves have had the Art and Impudence to join it, and have put their Proecutors on the Footing of all others: Nay I much quetion whether in the Acceptation of the Vulgar, a Thief-catcher be not a more odious and contemptible Name than even that of Informer.

Nothing, I am enible, is more vain than to encounter popular Opinion with Reaon; nor more liable to Ridicule than to oppoe general Contempt, and yet I will venture to ay, that if to do Good to Society be laudable, o is the Office of a Thief-catcher; and if to do this Good at the extreme Hazard of your Life be honourable, then is this Office honourable. True, it may be aid; but he doth this with a View to a Reward. And doth not the Soldier and the Sailor venture his Life with the ame View? For who, as a Great Man lately aid, erves the Public for nothing?

I know what is to be my Fate in this Place, or what would happen to one who hould endeavour to prove that the Hangman was a great and an honourable Employment. And yet I have read in Tournefort, of an Iland in the Archipelago, where the Hangman is the firt and highet Officer in the State. Nay in this Kingdom the Sheriff himelf (who was one of the mot coniderable Perons in his County) is in Law the Hangman, and Mr. Ketch is only his Deputy.

If to bring Thieves to Jutice be a candalous Office, what becomes of all thoe who are concerned in this Buines, ome of whom are rightly thought to be among the mot honourable Officers in Government? If on the contrary this be, as it urely is, very truly honourable, why hould the Pot of Danger in this Warfare alone be excluded from all Share of Honour?

To conclude a Matter, in which tho' erious, I will not be too tedious: What was the great Pompey in the Piratic War? What were Hercules, Theeus, and other the Heroes of old, Deorum in Templa recepti—Were they not the mot eminent of Thief-catchers?