mon 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 ten-pence, the thief is ordinarily sentenced to be whipped, 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 publick highly injured, and two excellent acts of parliament defeated, that two miscreants may laugh at their prosecutors, and at the law.

The two former of these 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 misdemeanor, 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 the misdemeanor, is farther increased to any other corporal punishment, which the court shall think fit to inflict, instead

*

3

and 4 W. and M. c. ix.

+ Chap. xxxi.

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 fourteen 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 felony 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 misdemeanor.

2. The thief himself, who must be convicted before the accessary is to be tried, cannot be a wit

ness.

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, 1st, 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 *Chap. xi.

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 newspapers? 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 paltry 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 daily see the most pernicious consequences; many of the younger thieves appearing plainly to be taught, encouraged, and employed by the receivers.

SECT. VI.

Of Laws relating to Vagabonds.

THE other great encouragement to robbery, beside the certain means of finding a market for the booty, is the probability of escaping punishment.

First, then, The robber hath great hopes of being undiscovered; and this is one principal reason, why robberies are more frequent in this town, and in its neighbourhood, than in the remoter parts of the kingdom.

Whoever indeed considers the cities of London and Westminster, with the late vast addition of their suburbs, the great irregularity of their buildings, the immense number of lanes, alleys, courts, and bye places; must think, that, had they been intended for the very purpose of concealment, they could scarce have been better contrived. Upon such a view the whole appears as a vast wood or forest, in which a thief may harbour with as great security, as wild beasts do in the deserts of Africa or Arabia; for, by wandering from one part to another, and often shifting his quarters, he may almost avoid the possibility of being discovered.

Here, according to the method I have hitherto pursued, I will consider, what remedy our laws have applied to this evil, namely, the wandering of the poor, and whether, and wherein these remedies appear defective.

There is no part of our antient constitution more admirable than that which was calculated to prevent the concealment of thieves and robbers. The ori

f

ginal of this institution is given to Alfred, at the end of his wars with the Danes, when the English were very much debauched by the example of those barbarians, and betook themselves to all manner of licentiousness and rapine. These evils were encouraged, as the historians say, by the vagabond state of the offenders, who, having no settled place of abode, upon committing any offence, shifted their quarters, and went where it was difficult to discover them. To remedy this mischief therefore, Alfred having limited the shires or counties in a better manner than before, divided them into hundreds, and these again into tithings, decennaries, or ten families *.

Over every one of these tithings or decennaries, there was a chief, called the tithingman or burghholder, who had a power to call a court, and to try small offences; the greater being referred to that court, which was in like manner established over every hundred.

Every one of these heads of families were pledges to each other for the behaviour of all their family; and were likewise reciprocally pledges for each other to the hundred.

If any person was suspected of a crime, he was obliged to find security for his good behaviour out of the same hundred and tithing. This if he could not find, he had reason to apprehend being treated with great severity; and if any accused person, either before or after his finding bail, had fled from

By these ten families (says the annotator to Rapin) we are not to understand ten housekeepers, but ten lords of manors, ' with all their vassals, tenants, labourers and slaves; who, though they did not all live under their lord's roof, were all counted part of his family. As there were no little freeholders in those times, nor for long after, ten such families must occupy a large " space of ground, and might well constitute a rural tithing.' But this rural tithing would be larger than the hundred itself; and the very name and office of a tithingman, continued în parishes to this day, shews that lords of manors could not be here meant.