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

SECT. V.
Of the Punishment of Receivers of stolen Goods.
Now one great Encouragement to Theft of all Kinds is the Ease and Safety with which stolen Goods may be disposed 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 absolute End of several Kinds of Theft; such as Shop-lifting, Burglary, &c. the Objects of which are generally Goods and not Money. Nay Robberies on the Highway would so seldom answer the Purpose of the Adventurer, that very few would think it worth their while to risque so much with such small Expectations.
But at present, instead of meeting with any such Discouragement, the Thief disposes of his Goods with almost as much Safety as the honestest Tradesman: For first, if he hath made a Booty of any Value, he is almost sure of seeing it advertised 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 Questions asked. This Method of recovering stolen Goods by the Owner, a very learned Judge formerly declared to have been, in his Opinion, a Composition of Felony. And surely if this be proved to be carried into Execution, I think it must amount to a full Conviction of that Crime. But, indeed, such Advertisements are in themselves so very scandalous, and of such pernicious Consequence, that if Men are not ashamed to own they prefer an old Watch or a Diamond Ring to the Good of the Society, it is pity some effectual Law was not contrived to prevent their giving this publick Countenance to Robbery for the future.
But if the person robbed should prove either too honest, or too obstinate, 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 several are to be found, who are always ready to receive a Gold Watch at an easy Rate, and where no Questions are asked, or, at least, where no Answer is expected but such as the Thief can very readily make.
Besides, the clandestine Dealers this Way who satisfy their Consciences with telling a ragged Fellow, or Wench, that they hope they came honestly by Silver, and Gold, and Diamonds; there are others who scorn such pitiful Subterfuges, who engage openly with the Thieves, and who have Warehouses filled with stolen Goods only. Among the Jews who live in a certain Place in the City, there have been, and still are, some notable Dealers this Way, who in an almost public Manner have carried on a Trade for many Years with Rotterdam, where they have their Warehouses and Factors, and whither they export their Goods with prodigious Profit, and as prodigious Impunity. And all this appeared very plainly last Winter in the Examination of one Cadosa a Jew, in the Presence of the late excellent Duke of Richmond, and many other Noblemen and Magistrates.
What then shall we say? Is not this Mischief worthy of some Remedy, or is it not capable of it? The noble Duke (one of the worthiest of Magistrates as well as of the best of Men) thought otherwise, as would have appeared, had his valuable Life, for the Good of Mankind, been prolonged.
Certain it is, that the Law as it now stands is ineffectual to cure the Evil. Let us see therefore, if possible, where the Defect lies.
At the Common Law, any one might lawfully (says Lord Hale) have received his own Goods from the Felon who stole them. But if he had received them upon Agreement not to prosecute, or to prosecute faintly, this would have been Theftbote punishable by Imprisonment and Ransom.
But in neither of the foregoing Cases would the Receiver of the Goods have become an Accessary to the Felon. So if one Man had bought another's Goods of the Thief, though he had known them to be stolen, if he had given the just Value for them, he would not have become an Accessary. But if he had bought them at an Undervalue, this, Sir Richard Hyde held, would have made him an Accessary. My Lord Hale differs from his Opinion, and his Reason to some Readers may seem a pleasant one; for if there be any odds (says he) he that gives more, benefits the Felon more than he that gives less than Value. However this, his Lordship thinks, may be a Misdemeanor punishable by Fine and Imprisonment; but that the bare receiving of Goods knowing them to be stolen makes not an Accessary.
So says the great Lord Hale, and so indeed was the Law; though the Judges seem not to have been unanimous in their Opinion. In the Book of Assizes, Scrope is said to have held otherwise; and though Shard there quashed an Appeal of Felony for receiving stolen Goods only, yet I cannot help observing, that the Reporter of the Case hath left a Note of Astonishment at the Judgment of the Court. This, says he, was wonderful! and wonderful surely it is, if he who receives, relieves, comforts, or assists a Felon, shall be an Accessary, that he shall not be so, who knowingly buys the Goods of the Felon; which is generally, I believe, the strongest Relief, Comfort and Assistance which can be given him, and without the Hope and Expectation of which, he would never have committed the Theft or Robbery.
It is unnecessary, however, to enter further into this Controversy; since it is now expressly declared by Statute, 'That the Receivers of stolen Goods, knowing them to be stolen, shall be deemed Accessaries after the Fact.'
But this Statute, though it removed the former Absurdity of the Law, was not sufficient to remedy the Evil; there yet remaining many Difficulties in bringing the pernicious Miscreants to Justice, consistent with legal Rules. For,
1. As the Offence of the Accessary is dependant on that of the Principal, he could not be tried our out-lawed, till after the Conviction or Attainder of the Principal; so that however strong Evidence there might be against the Receiver, he was still safe, unless the Thief could be apprehended.
2. If the Thief on his Trial should be acquitted, as often happens through some Defect of Evidence in the most notorious Cases, the Receiver, being only an Accessary, tho' he hath confessed his Crime, or tho' the most undeniable Evidence could be brought against him, must be acquitted likewise.
3. In Petit Larceny there can be no such Accessary: for tho' the Statute says that a Receiver of stolen Goods, knowing, &c. shall be an Accessary after the Fact, that is, legally understood to mean only in Cases where such Accessary may be by Law; and that is confined to such 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 less Value than a Shilling, the Punishment at common Law is Whipping; and this was properly enough considered as too trifling an Offence to extend the Guilt to Criminals in a second Degree. But since Juries have taken upon them to consider the Value of Goods as immaterial, and to find upon their Oaths, that what is proved to be worth several Shillings, and sometimes several Pounds, is of the Value of Tenpence, this is become a Matter of more Consequence. For Instance: If a Pickpocket steal several Handkerchiefs, or other Things, to the Value of Twenty Shillings, and the Receiver of these, knowing them to be stolen, is discovered, and both are indicted, the one as Principal, the other as Accessary, as they must be; if the Jury convict the Principal and find the Goods to be of as high Value as a Shilling, he must 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 sentenced to be whipt, and returns immediately to his Trade of picking Pockets, and the Accessary is of course discharged, and of course 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 Miscreants may laugh at their Prosecutors, and at the Law.
The two former Defects are indeed remedied by a later Statute, which enacts, 'That the Buyers and Receivers of stolen Goods, knowing them to be stolen, may be prosecuted for a Misdemeanour, and punished by Fine and Imprisonment, though the principal Felon be not before convicted of Felony.'
This last Statute is again repeated in the 5th of Queen Anne; and there the Power of the Court to punish in the Case of Misdemeanour, is farther encreased to any other corporal Punishment, which the Court shall think fit to inflict, instead of Fine and Imprisonment; and, in the Case of the Felony, the Accessary is to receive Judgment of Death; but the Benefit of Clergy is not taken away. Lastly, By the Statute of George II. the Receivers of stolen Goods, knowing &c. are to be transported for 14 Years. And by the same Statute, every Person taking Money or Reward, directly or indirectly, under Pretence or upon Account of helping any to stolen Goods, unless such Person apprehend and bring to his Trial the Felon, and give Evidence against him, is made guilty of Felon without Benefit of Clergy.
And thus stands the Law at this Day; which, notwithstanding the repeated Endeavours of the Legislature, Experience shews us, is incapable of removing this deplorable Evil from the Society.
The principal Defect seems, 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 prosecute for the Misdemeanour.
2. The Thief himself, who must be convicted before the Accessary is to be tried, cannot be a Witness.
3. Without such Evidence it is very difficult to convict of the Knowledge, that the Goods were stolen; which, in this Case, can appear from Circumstances only. Such are principally, 1. Buying Goods of Value, of Persons very unlikely to be the lawful Proprietors. 2dly, Buying them for much less than their real Value. 3dly, Buying them, or selling them again, in a clandestine Manner, concealing them, &c. None of these are commonly liable to be proved; and I have known a Man acquitted, where most of these Circumstances have appeared against him.
What then is to be done, to extirpate this stubborn Mischief? to prove the pernicious Consequence of which, I need, I think, only appeal to the Sense of Parliament, testified in so many repeated Acts, and very strongly expressed in their Preambles.
First, Might it not be proper to put an effectual Stop to the present scandalous Method of compounding Felony, by public Advertisements in the News Papers? Might not the inserting such Advertisements be rendered highly criminal in the Authors of them, and in the Printers themselves, unless they discover such Authors?
2dly, Is it impossible to find any Means of regulating Brokers and Pawnbrokers? If so, What Arguments are there against extirpating entirely a Set of Miscreants, which, like other Vermin, harbour only about the Poor, and grow fat by sucking their Blood?
3dly, Why should not the receiving stolen Goods, knowing them to be stolen, be made an original Offence? by which Means the Thief, who is often a paultry Offender in Comparison of the Receiver, and sometimes his Pupil, might, in little Felonies, be made a Witness against him: for thus the Trial of the Receiver would in no Case depend on the Trial or Conviction of the Thief.
4thly, Why may not the bare buying or taking to Pawn stolen Goods, above a certain Value, be made Evidence of receiving with Knowledge, &c. unless the Goods were bought in Market overt, (no Broker's or Pawnbroker's Shop to be reputed such Market overt) or unless the Defendant could prove, by a credible Witness to the Transaction, that he had good Cause to regard the Seller or Pawner of the Goods to be the real Owner. If 20s. was the Value limited, it would answer all the Purposes contended for; and would in nowise interfere with the honest Trade (if indeed it ever be so) between the Pawnbroker and the Poor.
If none of these Methods be thought possible or proper, I hope better will be found out. Something ought to be done, to put an End to the present Practice, of which I see daily the most pernicious Consequences; many of the younger Thieves appearing plainly to be taught, encouraged and employed by the Receivers.

### Notes

* ↑ Hist. P. C. vol. 1. p. 546. 619. ib.
* ↑ Hist. P. C. ubi supra.
* ↑ 27 Assiz. 69.
* ↑ 3 & 4 W. and M. c. 9.
* ↑ Cro. Eliz. 750. Hale, Hist. Vol. 1. p. 530, 618.
* ↑ 3 and 4 W. and M. c. 9.
* ↑ Chap. 31
* ↑ Chap. 11