An Enquiry into the Causes of the late Increase of Robbers/Section 8

by Henry Fielding

SECT. VIII.

Of the Difficulties which attend Prosecutions.

I Now come to a fourth Encouragement which greatly holds up to the Spirits of Robbers, and which they often find to afford no deceitful Consolation; and this is drawn from the Remissness of Prosecutors, who are often,

1. Fearful, and to be intimidated by the Threats of the Gang; or,

2. Delicate, and cannot appear in a public Court; or,

3. Indolent, and will not give themselves the Trouble of a Prosecution; or,

4. Avaricious, and will not undergo the Expence of it; nay perhaps find their Account in compounding the Matter; or,

5. Tender-hearted, and cannot take away the Life of a Man; or,

Lastly, Necessitous, and cannot really afford the Cost, however small, together with the Loss of Time which attends it.

The first and second of these are too absurd, and the third and fourth too infamous to be reasoned with. But the two last deserve more particular Notice, as the fifth is an Error springing originally out of a good Principle in the Mind, and the sixth is a Fault in the Constitution very easily to be remedied.

With Regard to the former of these, it is certain, that a tender-hearted and compassionate Disposition, which inclines Men to pity and feel the Misfortunes of others, and which is, even for its own Sake, incapable of involving any Man in Ruin and Misery, is of all Tempers of Mind the most amiable; and tho' it seldom receives much Honour, is worthy of the highest. The natural Energies of this Temper are indeed the very Virtues principally inculcated in our excellent Religion; and those, who because they are natural, have denied them the Name of Virtues, seem not, I think, to be aware of the direct and impious Tendency of a Doctrine that denies all Merit to a Mind which is naturally, I may say necessarily, good.

Indeed the Passion of Love or Benevolence whence this admirable Disposition arises, seems to be the only human Passion that is in itself simply and absolutely good; and in Plato's Commonwealth or (which is more) in a Society acting up to the Rules of Christianity, no Danger could arise from the highest Excess of this Virtue; nay the more liberally it was indulged, and the more extensively it was expanded, the more would it contribute to the Honour of the Individual, and to the Happiness of the whole.

But as it hath pleased God to permit human Societies to be constituted in a different Manner, and Knaves to form a Part, (a very considerable one, I am afraid) of every Community, who are ever lying in wait to destroy and ensnare the honest Part of Mankind, and to betray them by means of their own Goodness, it becomes the good-natured and tender-hearted Man to be watchful over his own Temper; to restrain the Impetuousity of his Benevolence, carefully to select the Objects of this Passion, and not by too unbounded and indiscriminate an Indulgence to give the Reins to a Courser, which will infallibly carry him into the Ambuscade of the Enemy.

Our Saviour himself inculcates this Prudence among his Disciples, telling them, that he sent them forth like Sheep among Wolves: Be ye therefore, says he, wise as Serpents, but innocent as Doves.

For Want of this Wisdom, a benevolence and tender-hearted Temper very often betrays Men into Errors not only hurtful to themselves, but highly prejudicial to the Society. Hence Men of invincible Courage, and incorruptible Integrity, have sometimes falsified their Trust; and those, whom no other Temptation could sway, have paid too little Regard to the Sanction of an Oath, from this Inducement alone. Hence likewise the Mischief which I here endeavour to obviate, hath often arisen; and notorious Robbers have lived to perpetrate future Acts of Violence, through the ill-judging Tenderness and Compassion of those who could and ought to have prosecuted them.

To such a Person I would suggest these Considerations:

First, As he is a good Man, he should consider, that the principal Duty which every Man owes, is to his Country, for the Safety and Good of which all Laws are established; and therefore his Country requires of him to contribute all that in him lies to the due Execution of those Laws. Robbery is an Offence not only against the Party robbed, but against the Public, who are therefore entitled to Prosecution; and he who prevents or stifles such the Prosecution, is no longer an innocent Man, but guilty of a high Offence against the Public Good.

Secondly, As he is a good-natured Man, he will behold all Injuries done by one Man to another with Indignation. What Cicero says of a Pirate, is as true of a Robber, that he is hostis humani generis; and if so, I am sure every good-natured Man must be an Enemy to him. To desire to save these Wolves in Society, may arise from Benevolence; but it must be the Benevolence of a Child or a Fool, who, from Want of sufficient Reason, mistakes the true Objects of his Passion, as a Child doth when a Bugbear appears to him to be the Object of Fear. Such Tenderheartedness is indeed Barbarity, and resembles the meek Spirit of him who would not assist in blowing up his Neighbour's House, to save a whole City from the Flames. 'It is true,' said a late learned Chief Justice^[1], in a Trial 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 Conveniencies 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 an 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 Horrour (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 Public, to whom the Justice of Peace gives his whole Labour on this Head gratis, was to defray the Cost of such Trials (by a kind of forma pauperis Admission) the Sum would be so trivial, that nothing would be felt but the good Consequences arising from such a Regulation?

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.'

Notes

1. Lord Chief Justice Pratt.