An Enquiry into the Causes of the late Increase of Robbers/Section 9

SECT. IX.

Of the and of.

But if, notwithtanding all the Rubs which we have een to lie in the Way, the Indictment is found, and the Thief brought to his Trial, till he hath ufficient Hopes of ecaping, either from the Caution of the Proecutor's Evidence, or from the Hardines of his own.

In Street Robberies the Difficulty of convicting a Criminal is extremely great. The Method of dicovering thee is generally by means of one of the Gang, who being taken up, perhaps for ome other Offence, and, thinking himelf in Danger of Punihment, chooes to make his Peace at the Expence of his Companions.

But when, by means of his Information, you are made acquainted with the whole Gang, and have, with great Trouble, and often with great Danger, apprehended them, how are you to bring them to Jutice? for though the Evidence of the Accomplice be ever o poitive and explicite, nay ever o connected and probable, till, unles it be corroborated by ome other Evidence, it is not ufficient.

Now how is this corroborating Evidence to be obtained in this Cae? Street Robberies are generally committed in the dark, the Perons on whom they are committed are often in Chairs and Coaches, and if on Foot, the Attack is uually begun by knocking the Party down, and for the Time depriving him of his Senes. But if the Thief hould be les barbarous, he is eldom o incautious as to omit taking every Method to prevent his being known, by flapping the Party's Hat over his Face, and by every other Method which he can invent to avoid Dicovery.

But indeed any uch Methods are hardly necesary: for when we conider the Circumtance of Darknes, mentioned before, the extreme Hurry of the Action, and the Terror and Conternation in which mot Perons are in at uch a Time, how hall we imagine it posible, that they hould afterwards be able, with any (the leat) Degree of Certainty, to wear to the Identity of the Thief, whoe Countenance is, perhaps, not a little altered by his ubequent Situation, and who takes care as much as posible he can, by every Alteration of Dres, and otherwie, to diguie himelf.

And if the Evidence of the Accomplice be o unlikely to be confirmed by the Oath of the Proecutor, what other Means of Confirmation can be found? for as to his Character, if he himelf doth not call Witneses to upport it (which in this Intance is not incumbent on him to do) youa re not at Liberty to impeach it. The greatet and mot known Villain in England, tanding at the Bar equally rectus in curia with the Man of the highet Etimation, if they hould be both accued of the ame Crime.

Unles therefore the Robbers hould be o unfortunate as to be apprehended in the Fact, (a Circumtance which their Numbers, Arms, &c. renders ordinarily imposible) no uch Corroboration can posibly be had; but the Evidence of the Accomplice tanding alone and unupported, the Villain, contrary to the Opinion, and almot direct Knowledge of all preent, is triumphantly acquitted, laughs at the Court, corns the Law, vows Revenge againt his Proecutors, and returns to his Trade with a great Increae of Confidence, and commonly of Cruelty.

In a Matter therefore of o much Concern to the Public, I hall be forgiven, if I venture to offer my Sentiments.

The Words of my Lord Hale are thee: 'Tho' a particeps criminis be admisible as a Witnes in Law, yet the Credibility of his Tetimony is to be left to the Jury; and truly it would be hard to take away the Life of any Peron upon uch a Witnes that wears to ave his own, and yet confeseth himelf guilty of o great a Crime, unles there be alo very coniderable Circumtances, which may give the greater Credit to what he wear .'

Here I mut oberve, that this great Man eems rather to complain of the hardhip of the Law, in taking away the Life of a Criminal on the Tetimony of an Accomplice, than to deny that the Law was o. This indeed he could not well do; for not only the Cae of an Approver, as he himelf eems to acknowledge, but many later Reolutions would have contradicted that Opinion.

2dly, He allows that the Credibility of his Tetimony is to be left to the Jury: and o is the Credibility of all other Tetimonies. They are abolute Judges of the Fact; and God forbid that they hould in all Caes be tied down by poitive Evidence againt a Prioner, though it was not delivered by an Accomplice.

But urely, if the Evidence of an Accomplice be not ufficient to put the Prioner on his Defence, though he can produce no Evidence on his Behalf, either to prove an Alibi, or to his Character, the Credibility of uch Tetimony cannot well be aid to be left to a Jury. This is virtually to reject the Competency of the Witnes: For to ay the Law allows him to be worn, and yet gives no Weight to his Evidence is, I apprehend, a mere Play of Words, and conveys no Idea.

In the third Place, This great Man aserts the Hardhip of uch Conviction—Now if the Evidence of a uppoed Accomplice hould convict a Man of fair and honet Character: It would, I confes, be hard; and it is a Hardhip of which, I believe, no Experience can produce any Intance. But if on the other Hand, the Tetimony of an Accomplice with every Circumtance of Probability attending it againt a Vagabond of the vilet Character, and who can produce no ingle Peron to his Reputation, is to be abolutely rejected, becaue there is no poitive Proof to upport it; this, I think, is in the highet Degree hard (I think I have proved how hard) to the Society.

I hall not enter here into a Diquiition concerning the Nature of Evidence in general; this being much too large a Field; nor hall I examine the Utility of thoe Rules which our Law precribes on this Head. Some of thee Rules might perhaps be opened a little wider than they are, without either Michief or Inconvenience; and I am the bolder in the Asertion, as I know a very learned Judge who concurs with this Opinion. There is no Branch of the Law more bulky, more full of Confuion and Contradiction, I had almot aid of Aburdity, than the Law of Evidence as it now tands.

One Rule of this Law is, that no Man intereted hall be worn as a Witnes. By this is meant pecuniary Interet; but are Mankind governed by no other Pasion than Avarice? Is not Revenge the weetet Morel, as a Divine calls it, which the Devil ever dropped into the Mouth of a Sinner? Are not Pride, Hatred, and the other Pasions, as powerful Tyrants in the Mind of Man; and is not the Interet which thee Pasions propoe to themelves by the Enjoyment of their Object, as prevalent a Motive to Evil as the Hope of any pecuniary Interet whatever.

But to keep more cloely to the Point—Why hall not any Credit be given to the Evidence of an Accomplice?—My Lord Hale tells us, that he hath been guilty of a great Crime: and yet if he had been the convicted and burnt in the Hand, all the Authorities tell us, that his Credit had been retored; a more miraculous Power of Fire than any which the Royal Society can produce. The ame happens, if he be pardoned.

Again, ays Lord Hale, he wears to ave his own Life. This is not altogether o: For when once a Felon hath impeached his Companions, and is admitted an Evidence againt them, whatever be the Fate of his Evidence, the Impeacher always goes free. To this, it is true, he hath no poitive Title, no more hath he, if a ingle Felon be convicted on his Oath. But the Practice is as I mention, and I do not remember any Intance to the contrary.

But what Inducement hath the Accomplice to perjure himelf, or what Reaon can be asigned why he hould be uspected of it? That he himelf was one of the Robbers appears to a Demontration; that he had Accomplices in the Robbery is as certain. Why then hould he be induced to impeach A and B, who are innocent, and not C and D, who are guilty? Mut he not think that he hath a better Chance of convicting the Guilty than the Innocent? Is he not liable, if he gives a fale Information, to be detected in it? One of his Companions may be dicovered and give a true Information, what will then become of him and his Evidence? And why hould he do this? From a Motive of Friendhip? Do the wort of Men carry this Pasion o much higher than is common with the bet? But he mut not only run the Rik of his Life, but of his Soul too. The very Mention of this latter Rique may appear ridiculous, when it is conidered what Sort of Perons I am talking. But even thee Perons can carce be thought o very void of Undertanding as to loe their Souls for nothing, and to commit the horrid Sins of Perjury and Murder without any Temptation, or Propect of Interet, nay even againt their Interet. Such Characters are not to be found in Hitory, nor do they exit any where but in ditempered Brains, and are always rejected as Monters, when they are produced in Works of Fiction: for urely we poil the Vere rather than the Sene by aying, Nemo gratis uit Turpisimus. Under uch Circumtances, and under the Caution of a good Judge, and the Tendernes of an Englih Jury, it will be the highet Improbability that any Man hould be wrongfully convicted; and utterly imposible to convict an honet Man: For I intend no more than that uch Evidence hall put the Prioner on his Defence, and oblige him either to controvert the Fact by proving an Alibi, or by ome other Circumtance; or to produce ome reputable Peron to his Character. And this brings me to conider the econd Fortres of the Criminal in the Hardines of his own Evidence.

The uual Defence of a Thief, epecially at the Old Bailey, is an Alibi : To prove this by Perjury is a common Act of Newgate Friendhip; and there eldom is any Difficulty in procuring uch Witneses. I remember a Felon within this Twelvemonth to have been proved to be in Ireland at the Time when the Robbery was worn to have been done in London, and acquitted; but he was carce gone from the Bar, when the Witnes was himelf arreted for a Robbery committed in London at that very Time when he wore both he and his Friend were in Dublin: For which Robbery, I think, he was tried and executed. This kind of Defence was in a great Meaure defeated by the late Baron Thompon, when he was Recorder of London, whoe Memory deerves great Honour for the Services he did the Public in that Pot. Thee Witneses hould always be examined with the utmot Care and Strictnes, by which Means the Truth (epecially if there be more Witneses than one to the pretended Fact) will generally be found out. And as to Character, tho' I allow it to have great Weight, if oppoed to the ingle Evidence of an Accomplice, it hould urely have but little where there is good and trong Proof of the Fact; and none at all, unles it comes from the Mouths of Perons who have themelves ome Reputation and Credit.