An Enquiry into the Causes of the late Increase of Robbers/Section 7

by Henry Fielding

SECT. VII.

Of apprehending the Persons of Felons.

I Come now to a third Encouragement which the Thief flatters himself with, viz. in his Hopes of escaping from being apprehended.

Nor is this Hope without Foundation: How long have we known Highwaymen reign in this Kingdom after they have been publicly known for such? Have not some of these committed Robberies in open Daylight, in the Sight of many People, and have afterward rode solemnly and triumphantly through the neighbouring Towns, without any Danger or Molestation. This happens to every Rogue who is become eminent for his Audaciousness, and is thought to be desperate; and is in a more particular Manner the Case of great and numerous Gangs, many of which have for a long Time committed the most open Outrages in Defiance of the Law. Officers of Justice have owned to me, that they have passed by such with Warrants in their Pockets against them, without daring to apprehend them; and indeed they could not be blamed for not exposing themselves to sure Destruction: For it is a melancholy Truth, that, at this very Day, a Rogue no sooner gives the Alarm, within certain Purlieus, than twenty or thirty armed Villains are found ready to come to his Assistance.

On this Head the Law may seem not to have been very defective in its Cautions: First, By vesting not only the Officers of Justice, but every private Man, with Authority for securing these Miscreants, of which Authority it may be of Service to the Officers, as well as to the Public in general, to be more particularly informed.

First, By^[1] Westminster I. Persons of evil Fame are to be imprisoned without Bail. By the Statute of Winchester,^[2] suspicious Night-walkers are to be arrested and detained by the Watch. A Statute made in^[3] 5 Ed. III. reciting that many Manslaughters, Felonies, and Robberies had been done in Times past, enacts, That if any Person have an evil Suspicion of such Offenders, they shall be incontinently arrested by the Constable, and shall be delivered to the Bailiff of the Franchise, or to the Sheriff, to be kept in Prison till the coming of the Justices. The 34^[4] Edw. III. gives Power to the Justices of the Peace, inter alia, to enquire of Wanderers, and such as will not labour, and to arrest and imprison suspicious Persons, and to take Sureties of the good Behaviour of Persons of evil Fame, 'to the Intent, says the Statute, that the People be not by such Rioters, &c. troubled nor endamaged, nor the Peace blemished, nor Merchants nor others passing by the Highways of the Realm disturbed, nor put in Peril by such Offenders.'

Secondly, By the Common Law every Person who hath committed a Felony, may be arrested and secured by any private Man present at the said Fact, though he hath no general nor particular Authority, i.e. tho' he be no Officer of Justice, nor have any Writ or Warrant for so doing; and such private Man may either deliver the Felon to the Constable, secure him in a Goal, or carry him before a Magistrate.^[5] And if he refuses to yield, those who arrest may justify beating^[6] him; or, in case of absolute Necessity, killing him.^[7]

Nor is this Arrest merely allowed; it is enjoined by Law, and the Omission, without some good Excuse is a Misdemeanor punishable by Amercement or Fine and Imprisonment.^[8]

Again every private Man may arrest another on Suspicion of Felony, though he was not present at the Fact.^[9] But then if the Party arrested should prove innocent, two Circumstances are necessary to justify the Arrest. 1st, A Felony must be actually committed; and, 2dly, there must be a reasonable Cause of Suspicion;^[10] and common Fame hath been adjudged to be such Cause.^[11]

But in this latter Case my Lord Hale advises the private Person, if possible, to have recourse to the Magistrate and obtain his Warrant, and the Assistance of the^[12] Constable; for this Arrest is not required by Law, nor is the Party punishable for neglecting it; and should the Person arrested, or endeavoured to be arrested, prove innocent, the Party arresting him, &c. will, in 2 great Measure, be answerable for the ill Consequence; which if it be the Death of the innocent Person occasioned by Force or Resistance, this will, at least, be Manslaughter; and if the other should be killed in the Attempt, this likewise will amount to Manslaughter only.^[13]

Again, any private Person may justify arresting a Felon pursued by Hue and Cry. This, as the Word imports, is a public Alarm raised all over the Country, in which the Constable is first to search his own Vill or Division, and then to raise all the neighbouring Vills about, who are to pursue the Felon with Hose and^[14] Foot. And this Hue and Cry may either be after a Person certain, or on a Robbery committed where the Person is not known; and in the latter case, those who pursue it may take such Persons as they have probably Cause to suspect,^[15] Vagrants, &c.

This Method of Pursuit lies at the Common Law, and is mentioned by Bracton;^[16] and it is enforced by many Statutes, as by^[17] Westm. 1. 'All are to be ready at the Summons of the Sheriff, and at the Cry of the County, to arrest Felons as well within Franchises as without.' By 4 Edw. I. 'Hue and Cry is ordered to be levied for all Murders, Burglaries, Men slain, or in Peril to be slain, and all are to follow it.' And lastly, the Statute of Winton enacts as we have seen before.

And this Pursuit may be raised, 1. By a private Person. 2. By the Country without an Officer. 3. By an Officer without a Warrant. 4. By the Warrant of a Magistrate. And this last, if it can be obtained, is the safest Way: for then all who assist are enabled by the Statutes 7 and 21 Jac. to plead the general Issue.^[18]

The Common Law so strictly enjoined this Pursuit, that if any Defect in raising it lay in the Lord of the Franchise, the Franchise should be seized into the King's Hands; and if the Neglect lay in the Bailiff, he should have a heavy Fine, and a Year's Imprisonment, or suffer two Years Imprisonment without a Fine.^[19] And now by a very late^[20] Statute, 'if any Constable, Headborough, &c. of the Hundred where any Robberies shall happen, shall refuse or neglect to make Hue and Cry after the Felons with the utmost Expedition, as soon as he shall receive Notice thereof, he shall for every such Refusal and Neglect forfeit 5l. half to the King and half to the Informer.'

Now Hue and Cry is of three different Kinds: 1. Against a Person certain by Name. 2. Against a Person certain by Description. 3. On a Robbery, Burglary, &c. where the Person is neither known, nor capable of being described.

When a Hue and Cry is raised, every private Man is not only justified in pursuing; but may be obliged by Command of the Constable to pursue the Felon, and is punishable, if he disobey, by Fine and Imprisonment.^[21] And in this Case whether a Felony was committed or not, or whether the Person arrested (provided he be the Person named or described by the Hue and Cry) be guilty or innocent, or of evil or good Fame, the Arrest is lawful and justifiable, and he who raised the Hue and Cry is alone to answer for the Justice of it.^[22]

In this Pursuit likewise the Constable may search suspected Houses, if the Doors be open; but breaking the Door will not be justifiable, unless the Felon be actually in the House; nor even then, unless Admittance hath been first demanded and denied.^[23] And what the Constable may do himself will be justifiable by any other in his Assistance, at least, by his Command.^[24] Indeed a private Person may justify the Arrest of an Offender by the Command of a Peace Officer; for he is bound to be aiding and assisting to such Officer, is punishable for his Refusal, and is consequently under the Protection of the Law.^[25]

Lastly, A private Person may arrest a Felon by Virtue of a Warrant directed to him: for though he is not bound to execute such Warrant, yet if he doth, it is good and justifiable.^[26]

Thirdly, Officers of public Justice may justify the Arrest of a Felon by Virtue of their Office, without any Warrant. Whatever therefore a private Person may do as above, will certainly be justifiable in them.

And as the arresting Felons, &c. is more particularly their Duty, and their Fine will be heavier for the Neglect, so will their Protection by the Law be the greater: For if, in arresting those that are probably suspected, the Constable should be killed, it is Murder; on the other Hand, if Persons pursued by these Officers for Felony, or justifiable Suspicion thereof, shall resist or fly form them; or being apprehended shall rescue themselves, resist, or fly; so that they cannot otherwise be apprehended or re-apprehended, and are of Necessity slain, it is no Felony in the Officers, or in their Assistants, tho' possibly the Parties killed are innocent; for by resisting the King's Authority in his Officers, they draw their own Blood on themselves.^[27]

Again, To take a Felon or suspected Felon, the Constable without any Warrant may break open the Door. But to justify this, he must shew; 1. That the Felon, &c. was in the House. 2. That his Entry was denied. 3. That it was denied after Demand and Notice that he was Constable.^[28]

Lastly, A Felon may be apprehended by Virtue of a Warrant issuing from a Magistrate lawfully authorized; in the Execution of which the Officer hath the same Power, and will, at least, have the same Protection by Law as in the Arrest Virtute Officii. And this Warrant, if it be specially directed to him, the Constable may execute in any Part within the Jurisdiction of the Magistrate; but he is only obliged to execute it within the Division for which he is Constable, &c.

In the Execution of a Warrant for Felony, the Officer may break open the Doors of the Felon, or of any Person where he is concealed; and the breaking the Doors of the Felon is lawful at all Events, but in breaking those of a Stranger the Officer acts at his Peril: for he will be a Trespasser if the Felon should not be there.^[29]

Such are the Powers which the Law gives for the apprehending Felons (for as to the particular Power of Sheriffs and Coroners, and the Process of superior Courts, they may well be passed by in this Place.) Again, these Powers we see are enforced with Penalties; so that not only every Officer of Justice, but every private Person is obliged to arrest a known Felon, and may be punished for the Omission.

Nor doth the Law stop here. The apprehending such Felons is not only authorized and enjoined, but even encouraged, with Impunity to Persons guilty themselves of Felony, and with Reward to others.

By 3 and 4 of^[30] William and Mary, Persons guilty of Robbery in the Highway, Fields, &c. who, being out of Prison, shall discover any two Offenders to be convicted of such Robbery, are entitled to his Majesty's Pardon of such Robberies, &c. as they shall have then committed.

By 10 and 11 of^[31] William III. this is extended to Burglary, and such Felonies as are mentioned in the Act.

By the same Act all Persons who shall apprehend a Felon for privately stealing Goods to the Value of 5s. out of Shop, Warehouse, Couch-house, or Stable, by Night or by Day (provided the Felon be convicted thereof) shall be entitled to a Certificate which may be assigned once, discharging such Apprehender or in his Assignee from all Parochial Offices in the Parish or Ward where such Felony was committed. This Certificate is to be enrolled by the Clerk of the Peace, and cannot be assigned after it hath been used.

If any Man be killed by such Housebreaker, &c. in the Attempt to apprehend him, his Executors or Administrators shall be entitled to such Certificate.

By the 3 and 4 of^[32] W. and M. whoever shall apprehend and prosecute to Conviction any Robber on the Highway, shall receive of the Sheriff 40l. within a Month after the Conviction for every Offender; and in case of the Death or Removal of the Sheriff, the Money to be paid by the succeeding Sheriff within a Month after the Demand and Certificate brought. The Sheriff on Default forfeits double the Sum, to be recovered of him by the Party, his Executors, &c.

And if the Person be killed in this Attempt by any such Robber, the Executors of such Person, &c. are entitled to the Reward, under the like Penalty.

Again, by the same Act the Horse, Furniture, Arms, Money, or other Goods, taken with such Highwaymen, are given to the Apprehender who shall prosecute to Conviction, notwithstanding the Right or Title of his Majesty, any Body Politic of Lord of Franchise, or of those who lent or let the same to hire such Robber, with a saving only of the Right of such Persons from whom such Horses, &c. were feloniously taken.

By a Statute of Queen Anne, the 40l. Reward is extended to Burglary and Housebreaking.

But tho' the Law seems to have been sufficiently provident on this Head; there is still great Difficulty in carrying its Purpose into Execution, arising from the following Causes.

First, With Regard to private Persons, there is no Country, I believe, in the World, where that vulgar Maxim so generally prevails, that what is the Business of every Man is the Business of no Man; and for this plain Reason, that there is no Country in which less Honour is gained by serving the Public. He therefore who commits no Crime against the Public, is very well satisfied with his own Virtue; far from thinking himself obliged to undergo any Labour, expend any Money, or encounter any Danger on such Account.

2dly, The People are not entirely without Excuse from their Ignorance of the Law: For so far is the Power of apprehending Felons, which I have above set forth, from being universally known, that many of the Peace Officers themselves do not know that they have any such Power, and often from Ignorance refuse to arrest a known Felon 'till they are authorized by a Warrant from a Justice of Peace. Much less then can the compulsory Part to the private Persons carry any Terror of a Penalty of which the Generality of Mankind are totally ignorant; and of inflicting which they see no Example.

Thirdly, So far are Men from being animated with the Hopes of public Praise to apprehend a Felon, that they are even discouraged by the Fear of Shame. The Person of the Informer is in Fact more odious than that of the Felon himself; and the Thief-catcher is in Danger of worse Treatment from the Populace than the Thief.

Lastly, As to the Reward, I am afraid that the Intention of the Legislature is very little answered: For not to mention that the Prosecutor's Title to it is too often defeated by the foolish Lenity of Juries, who by acquitting the Prisoner of the Burglary and finding him guilty of the simple Felony only, or by finding the Goods to be less than the Value of 5s. both often directly contrary to Evidence, take the Case entirely out of the Act of Parliament; and sometimes even when the Felon is properly convicted, I have been told that the Money does not come so easily and fully to the Pockets of those who are entitled to it as it ought.

With Regard to the first and fourth of these Objections, I chuse to be silent: To prescribe any Cure for the former, I must enter into Disquisitions very foreign to my present Purpose; and for the Cure of the latter, when I consider in whose Power it is to remedy it, a bare Hint will, I doubt not, suffice.

The second Objection, namely, the Excuse of Ignorance, I have here endeavoured to remove by setting forth the Law at large.

The third therefore only remains, and to that I shall speak more fully, as the Opinion on which it is founded is of the most pernicious Consequence to the Society; for what avail the best of Laws, if it be a Matter of Infamy to contribute towards their Execution? The Force of this Opinion may be seen in the following Instance. We have a Law by which every Person who drives more than six Horses in a Wagon forfeits as many Horses as are found to exceed that Number. This Law is broken every Day, and generally with Impunity: For though many Men yearly venture and lose their Lives by stealing Horses, yet there are very few who dare seize a Horse, where the Law allows and encourages it, when by such Seizure he is to acquire the Name of an Informer: So much worse is this Appellation in the Opinion of Vulgar than that of Thief; and so much more prevalent is the Fear of popular Shame than of Death.

This absurd Opinion seems to have first arisen from the Statute of 18^[33] Eliz. entitled, An Act to redress Disorders in common Informers. By this Statute it appears, that very wicked Uses had been made of penal Statutes by these Informers, whom my Lord Coke calls^[34] Turbidum Hominum Genus; 'Laws which were obsolete, and in time grown impossible or inconvenient to be performed, into Snares to vex and intangle the Subject.'

By the Statute itself it appears, that it was usual at that Time among these Persons to extort Money of ignorant and fearful People by the Terror of some penal Law; for the Breach of which the Informer either instituted a Process, or pretended to institute a Process, and then brought the timorous Party to a Composition.

This Offence therefore was by this Act made a high Misdemeanor, and punished with the Pillory.

Now who that knows any thing of the Nature or History of Mankind, doth not easily perceive here a sufficient Foundation for that Odium to all Informers which hath since become so general: For what is more common than from the Abuse of any thing to argue against the Use of it, or to extend Obloquy from Particulars to Universals?

For this the common Aptitude of Men to Scandal will sufficiently account; but there is still another and stronger Motive in this Case, and that is the Interest of all those who have broken or who intend to break the Laws. Thus the general Cry being once raised against Prosecutors on penal Laws, the Thieves themselves have had the Art and Impudence to join it, and have put their Prosecutors on the Footing of all others: Nay I much question whether in the Acceptation of the Vulgar, a Thief-catcher be not a more odious and contemptible Name than even that of Informer.

Nothing, I am sensible, is more vain than to encounter popular Opinion with Reason; nor more liable to Ridicule than to oppose general Contempt, and yet I will venture to say, that if to do Good to Society be laudable, so is the Office of a Thief-catcher; and if to do this Good at the extreme Hazard of your Life be honourable, then is this Office honourable. True, it may be said; but he doth this with a View to a Reward. And doth not the Soldier and the Sailor venture his Life with the same View? For who, as a Great Man lately said, serves the Public for nothing?

I know what is to be my Fate in this Place, or what would happen to one who should endeavour to prove that the Hangman was a great and an honourable Employment. And yet I have read in Tournefort, of an Island in the Archipelago, where the Hangman is the first and highest Officer in the State. Nay in this Kingdom the Sheriff himself (who was one of the most considerable Persons in his County) is in Law the Hangman, and Mr. Ketch is only his Deputy.

If to bring Thieves to Justice be a scandalous Office, what becomes of all those who are concerned in this Business, some of whom are rightly thought to be among the most honourable Officers in Government? If on the contrary this be, as it surely is, very truly honourable, why should the Post of Danger in this Warfare alone be excluded from all Share of Honour?

To conclude a Matter, in which tho' serious, I will not be too tedious: What was the great Pompey in the Piratic War?^[35] What were Hercules, Theseus, and other the Heroes of old, Deorum in Templa recepti—Were they not the most eminent of Thief-catchers?

Notes

1. Westm. I. chap. xv.
2. Winton. chap. iv.
3. 5 Edw. III. c. xiv.
4. 34 Edw. III. c. i.
5. Hale's Hist. P. C. vol. I. 586. vol. II. 77.
6. Pult. 10. a.
7. Hale's Hist. vol. I. 588.
8. Hale, vol. I. 588. v. II. 77, 76.
9. Lamb. l. 2. c. 3.
10. Hale's Hist. v. 2. 80.
11. Dalt. 407. 5 H. VII. 4, 5.
12. Hale's Hist. v. 2. 76.
13. Hale's Hist. v. 2. 82.—3—4.
14. Hale's Hist. v. 2. 101.
15. Hale's Hist. v. 2. 103.
16. Lib. 3. c. 1
17. Cap. 9.
18. Hale's Hist. v. I. 465. v. II. 99, 100.
19. Fleta, l. 1. c. 24. ad Init.
20. 8 Geo. II. c. 16
21. Hale's Hist. vol. I. 588. vol. II. 104.
22. 29 Ed. III. 39. 35 Hen. IV. Pl. 24. Hale's Hist. v. II. 101—2.
23. Ib. 102, 103.
24. Ib. 104.
25. Pult. 6. 15. Hale's Hist. v. II. 86.
26. Dalt. 408. Hale's Hist. v. II. 86.
27. Dalt. 409. 13 Edw. IV. 4, & 9. 5 to 92. Hale's Hist. v. II. 86. 90, 91.
28. Ib. v. I. 581. v. II. 10.
29. Hale's Hist. v. I. 582. v. II. 117. 5 Co. 91 b.
30. Chap. 8.
31. Chap. 23.
32. Chap. 8. ubi supra.
33. Chap. 5.
34. 3 Inst. c. 87.
35. Cicero, in his Oration pro Lege Manilia, calls this, if I remember rightly, Bellum Turpe; but speaks of the Extirpation of these Robbers as of the greatest of all Pompey's Exploits.