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Intention which is matter of Fact
To count [it into] a matter of Law within the direction of Judges of Fact [and intention]
that is to say to appoint a circumstance in which all cases of that kind like nature shall peremptorily
govern the judgement of the Jury + + or whosoever is to pronounce it concerning the [fact of the] intention must
be of evil consequence: because this proceeds upon the supposition of a strictly necessary connexion
between certain facts & certain intentions, whereas there is in truth no such
connexion, at least in the instances in which the Law has been held & now as
I shall proceed to shew; but which if there be not, the consequent declaration of innocence
or guilt must be erroneous.
][ ][ Insert this in title "Law )( Fact. [Now I say the question [ with respect to the absence or presence] of intention wheresoever
the division of it is made decisive between Guilt & innocence, is the limit of
the Law in that quarter, and the proper boundary line between the provision of the
Judges & that of the Jury]
the limit beyond where which the business
of axiomatizing & generalization
ought not to be pushed [no further]
A Man Stranger comes in to an Inn at Guildford and hires a Horse & Chaise to
go to Farnham: when he has gotten it, he never goes to Farnham, or any p
of the way to Farnham, but drives off immediately to London, and makes away with
the Horse & Chaise taking no further notice of the Lender & for this he is had
for of Larceny.
I know not whether I have made succeeded
in making my track sufficiently conspicuous
and apprehensible in such
delicate obscure & untrodden ground.
Upon the Trial, as I am informed (whether truly or not is not very material
in either case it will serve as I mean it in this way for the sake of argument) the Judge + + Mr Mr Bown Ld. Stafford Smythe who sat on the Crown <add> Criminal side on that Assize very properly directs the Jury
that if they believe the Intention of the man at the time of larceny it was to do
as he did, they should find him guilty; & they did accordingly.
properly I mean as to as far as regards the derivation
of the Law & Fact, whether
the matter of Law in itself was
right or no not being here the
Question
Thus far was enforceable to the Idea here explained of what was right; but
previous to this direction given, on a consultation (the nicety of the matter determining
the learned Judge to call in his colleague # # Ld Mansfield then sitting on the
Civil side to his assistance) it was observed any matter as
of Law, that if the Man had gone to Farnham according to his declaration or
but a part of the way, and then gone off had done what he did, the Law is was or would be or
ought to be, that he was not guilty of Larceny. *
* This however is directly contrary to
the Doctrine laid down in Stamford.25.
+ Op Mod. 76. I beg pardon of those respectable
Magistrates if any I have misrepresented
them in any thing here said
but such is the danger misfortune to which
every one who meddles with Law
is exposed, & must be continue exposed, so
long as no step is taken to give any
authoritative account of the transactions
of Courts of Justice [so long as the
History of the most important intersting transactions
of Court of Justice is trusted to vague
whisper & report.]
Now this I say would have evil consequences — far from the moment that it should
be known that the Law was so fixed, a way would be pointed out whereby a man
might steal Horses with impunity — he would hire a Horse to go to a place
mentioned, he would go to that place or a part of the way towards it & then he might with impunity make
off with the Beast and sell him — The error lies in pronouncing as if there be conn
between such fact and such intention (or non-intention if the reader) pleases) comes any necessary one
EMBEZZLEMT. Law )( Fact. [BR][5]
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Identifier: | JB/070/226/001 "JB/" can not be assigned to a declared number type with value 70.
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law & fact embezzlement |
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