for treason,

here is the life of a man in the case, but then you (speaking to the jury) must consider likewise the misery and desolation, the blood and 'confusion, that must have happened had this taken effect; and put one against the other, I believe that consideration which is on behalf of the king 'will be much the stronger.' Here likewise is the life of a man concerned; but of what man? Why, of one who, being too lazy to get his bread by labour, or too voluptuous to content himself with the produce of that labour, declares war against the properties, and often against the persons, of his fellow-subjects; who deprives his countrymen of the pleasure of travelling with safety, and of the liberty of carrying their money or their ordinary conveniences with them; by whom the innocent are put in terror, affronted and alarmed with threats and execrations, endangered with loaded pistols, beat with bludgeons, and hacked with cutlasses, of which the loss of health, of limbs, and often of life, is the consequence; and all this without any respect to age, or dignity, or sex. Let the good-natured man, who hath any understanding, place this picture before his eyes, and then see what figure in it will be the object of his compassion.

I come now to the last difficulty which obstructs the prosecution of offenders; namely, the extreme poverty of the prosecutor. This I have known to be so absolutely the case, that the poor wretch who hath been bound to prosecute was under more concern than the prisoner himself. It is true that the necessary cost on these occasions is extremely small; two shillings, which are appointed by act of parliament for drawing the indictment, being, I think, the whole which the law requires; but when the expence of attendance, generally with several witnesses, sometimes during several days together, and often at a great distance from the prosecutor's home; I say, when these articles are summed up, and the loss of

time added to the account, the whole amounts to an expence which a very poor person, already plundered by the thief, must look on with such horror (if he should not be absolutely incapable of the expence) that he must be a miracle of public spirit if he doth not rather choose to conceal the felony, and sit down satisfied with his present loss; but what shall we say when (as is very common in this town) he may not only receive his own again, but be farther rewarded, if he will agree to compound it?

Now, how very inconsiderable would be the whole cost of this suit, either to the county or the nation, if the publick, to whom the justice of peace gives his whole labour on this head gratis, was to defray the cost of such trial (by a kind of formá pauperis admission) the sum would be so trivial that nothing would be felt but the good consequences arising from such a regulation.

6

I shall conclude this head with the words of my lord Hale: It is,' says he, a great defect in the law, to give courts of justice no power to allow 'witnesses against criminals their charges; whereby,' says he, many poor persons grow weary of their 'attendance, or bear their own charges therein, to • their great hindrance and loss.'

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 dis

covering 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 this 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 explicit, nay, even so con→ nected 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 wę 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 prose

cutor, 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), you are 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 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 publick I shall be forgiven if I venture to offer my sentiments.

The words of my lord Hale are these: Though 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 swears *.'

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

*Hale's Hist. vol. I. 305,

case of an approver, as he himself seems to acknow ledge, 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, but the jury are directed to acquit him, 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