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

SECT. IX.
Of the Trial and Conviction of Felons.
But if, notwithstanding all the Rubs which we have seen to lie in the Way, the Indictment is found, and the Thief brought to his Trial, still he hath sufficient Hopes of escaping, either from the Caution of the Prosecutor's Evidence, or from the Hardiness of his own.
In Street Robberies the Difficulty of convicting a Criminal is extremely great. The Method of discovering these is generally by means of one of the Gang, who being taken up, perhaps for some other Offence, and, thinking himself in Danger of Punishment, chooses 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 Justice? for though the Evidence of the Accomplice be ever so positive and explicite, nay ever so connected and probable, still, unless it be corroborated by some other Evidence, it is not sufficient.
Now how is this corroborating Evidence to be obtained in this Case? Street Robberies are generally committed in the dark, the Persons on whom they are committed are often in Chairs and Coaches, and if on Foot, the Attack is usually begun by knocking the Party down, and for the Time depriving him of his Senses. But if the Thief should be less barbarous, he is seldom so 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 Discovery.
But indeed any such Methods are hardly necessary: for when we consider the Circumstance of Darkness, mentioned before, the extreme Hurry of the Action, and the Terror and Consternation in which most Persons are in at such a Time, how shall we imagine it possible, that they should afterwards be able, with any (the least) Degree of Certainty, to swear to the Identity of the Thief, whose Countenance is, perhaps, not a little altered by his subsequent Situation, and who takes care as much as possible he can, by every Alteration of Dress, and otherwise, to disguise himself.
And if the Evidence of the Accomplice be so unlikely to be confirmed by the Oath of the Prosecutor, what other Means of Confirmation can be found? for as to his Character, if he himself doth not call Witnesses to support it (which in this Instance is not incumbent on him to do) youa re not at Liberty to impeach it. The greatest and most known Villain in England, standing at the Bar equally rectus in curia with the Man of the highest Estimation, if they should be both accused of the same Crime.
Unless therefore the Robbers should be so unfortunate as to be apprehended in the Fact, (a Circumstance which their Numbers, Arms, &c. renders ordinarily impossible) no such Corroboration can possibly be had; but the Evidence of the Accomplice standing alone and unsupported, the Villain, contrary to the Opinion, and almost direct Knowledge of all present, is triumphantly acquitted, laughs at the Court, scorns the Law, vows Revenge against his Prosecutors, and returns to his Trade with a great Increase of Confidence, and commonly of Cruelty.
In a Matter therefore of so much Concern to the Public, I shall be forgiven, if I venture to offer my Sentiments.
The Words of my Lord Hale are these: 'Tho' a particeps criminis be admissible as a Witness in Law, yet the Credibility of his Testimony is to be left to the Jury; and truly it would be hard to take away the Life of any Person upon such a Witness that swears to save his own, and yet confesseth himself guilty of so great a Crime, unless there be also very considerable Circumstances, which may give the greater Credit to what he swear.'
Here I must observe, that this great Man seems rather to complain of the hardship of the Law, in taking away the Life of a Criminal on the Testimony of an Accomplice, than to deny that the Law was so. This indeed he could not well do; for not only the Case of an Approver, as he himself seems to acknowledge, but many later Resolutions would have contradicted that Opinion.
2dly, He allows that the Credibility of his Testimony is to be left to the Jury: and so is the Credibility of all other Testimonies. They are absolute Judges of the Fact; and God forbid that they should in all Cases be tied down by positive Evidence against a Prisoner, though it was not delivered by an Accomplice.
But surely, if the Evidence of an Accomplice be not sufficient to put the Prisoner on his Defence, though he can produce no Evidence on his Behalf, either to prove an Alibi, or to his Character, the Credibility of such Testimony cannot well be said to be left to a Jury. This is virtually to reject the Competency of the Witness: For to say the Law allows him to be sworn, 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 asserts the Hardship of such Conviction—Now if the Evidence of a supposed Accomplice should convict a Man of fair and honest Character: It would, I confess, be hard; and it is a Hardship of which, I believe, no Experience can produce any Instance. But if on the other Hand, the Testimony of an Accomplice with every Circumstance of Probability attending it against a Vagabond of the vilest Character, and who can produce no single Person to his Reputation, is to be absolutely rejected, because there is no positive Proof to support it; this, I think, is in the highest Degree hard (I think I have proved how hard) to the Society.
I shall not enter here into a Disquisition concerning the Nature of Evidence in general; this being much too large a Field; nor shall I examine the Utility of those Rules which our Law prescribes on this Head. Some of these Rules might perhaps be opened a little wider than they are, without either Mischief or Inconvenience; and I am the bolder in the Assertion, as I know a very learned Judge who concurs with this Opinion. There is no Branch of the Law more bulky, more full of Confusion and Contradiction, I had almost said of Absurdity, than the Law of Evidence as it now stands.
One Rule of this Law is, that no Man interested shall be sworn as a Witness. By this is meant pecuniary Interest; but are Mankind governed by no other Passion than Avarice? Is not Revenge the sweetest Morsel, as a Divine calls it, which the Devil ever dropped into the Mouth of a Sinner? Are not Pride, Hatred, and the other Passions, as powerful Tyrants in the Mind of Man; and is not the Interest which these Passions propose to themselves by the Enjoyment of their Object, as prevalent a Motive to Evil as the Hope of any pecuniary Interest whatever.
But to keep more closely to the Point—Why shall 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 restored; a more miraculous Power of Fire than any which the Royal Society can produce. The same happens, if he be pardoned.
Again, says Lord Hale, he swears to save his own Life. This is not altogether so: For when once a Felon hath impeached his Companions, and is admitted an Evidence against them, whatever be the Fate of his Evidence, the Impeacher always goes free. To this, it is true, he hath no positive Title, no more hath he, if a single Felon be convicted on his Oath. But the Practice is as I mention, and I do not remember any Instance to the contrary.
But what Inducement hath the Accomplice to perjure himself, or what Reason can be assigned why he should be suspected of it? That he himself was one of the Robbers appears to a Demonstration; that he had Accomplices in the Robbery is as certain. Why then should he be induced to impeach A and B, who are innocent, and not C and D, who are guilty? Must he not think that he hath a better Chance of convicting the Guilty than the Innocent? Is he not liable, if he gives a false Information, to be detected in it? One of his Companions may be discovered and give a true Information, what will then become of him and his Evidence? And why should he do this? From a Motive of Friendship? Do the worst of Men carry this Passion so much higher than is common with the best? But he must not only run the Risk of his Life, but of his Soul too. The very Mention of this latter Risque may appear ridiculous, when it is considered what Sort of Persons I am talking. But even these Persons can scarce be thought so very void of Understanding as to lose their Souls for nothing, and to commit the horrid Sins of Perjury and Murder without any Temptation, or Prospect of Interest, nay even against their Interest. Such Characters are not to be found in History, nor do they exist any where but in distempered Brains, and are always rejected as Monsters, when they are produced in Works of Fiction: for surely we spoil the Verse rather than the Sense by saying, Nemo gratis suit Turpissimus. Under such Circumstances, and under the Caution of a good Judge, and the Tenderness of an English Jury, it will be the highest Improbability that any Man should be wrongfully convicted; and utterly impossible to convict an honest Man: For I intend no more than that such Evidence shall put the Prisoner on his Defence, and oblige him either to controvert the Fact by proving an Alibi, or by some other Circumstance; or to produce some reputable Person to his Character. And this brings me to consider the second Fortress of the Criminal in the Hardiness of his own Evidence.
The usual Defence of a Thief, especially at the Old Bailey, is an Alibi: To prove this by Perjury is a common Act of Newgate Friendship; and there seldom is any Difficulty in procuring such Witnesses. I remember a Felon within this Twelvemonth to have been proved to be in Ireland at the Time when the Robbery was sworn to have been done in London, and acquitted; but he was scarce gone from the Bar, when the Witness was himself arrested for a Robbery committed in London at that very Time when he swore 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 Measure defeated by the late Baron Thompson, when he was Recorder of London, whose Memory deserves great Honour for the Services he did the Public in that Post. These Witnesses should always be examined with the utmost Care and Strictness, by which Means the Truth (especially if there be more Witnesses than one to the pretended Fact) will generally be found out. And as to Character, tho' I allow it to have great Weight, if opposed to the single Evidence of an Accomplice, it should surely have but little where there is good and strong Proof of the Fact; and none at all, unless it comes from the Mouths of Persons who have themselves some Reputation and Credit.

### Notes

* ↑ Hale's Hist. v. 1. 305.
* ↑ i.e. That he was at another Place at the Time.