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A distinction may be made between Malicious, &
wanton Malicious, which is done out of hatred
or competition [Avarice] or in pursuance of a thievish
design or mixed with Theft [say rather that Mischief
of the Wanton kind when mixed with Theft should
be punished as Malicious.
Wanton which is done out of idleness or sport.
Punishment for Wanton to be always redeemable
by Fine at a according to certain tarif. proportions to the estimated
value.
In either case, it is either 1. of immediate Direct or 2. by Direct
is consequential measured by the value of the thing itself destroyed as of
a at the time Mill.
Consequential is measured by the loss resulting afterwards
in consequence of such distruction: as that of
the profits of the Mill during the time which it will
take to erect a new one.
Mischief, of which the consequential loss is inestimable indefinite
should be punished by Punishment indefinite;
Bridge or Ferry i=e by Imprisonment for life, for example
the destruction of a Bridge or Ferry: these cases should be
collected into an Aphorism.
When a man is plainly proved to have consented some mischief
, the Jury may charge him merely from probable
circumstances with any direct proof with all the mischief
which appears to be then done to the same subject, &
which cannot otherwise be accounted for.
For it can scarcely ever happen, that a man shall
be watched seen through the whole progress of the mischief—
he is at a period earlier or later as it may happen;
and, the instant he is seen, endevors are used to make
him cease.
Malicious Mischief is the destruction of the property
of another on [malicious] purpose by who [doeshas no not conceive
himselfinstance by Law to have a Title by Law] so to do.
It is distinguished from Trespass (such a Trespasses
is the proper subject of a civil Action having the simple
redress for it's object) by 2 circumstances expressed
in the definition — the absence of either of which in the
first place takes away the Terror: & consequently the
greatest part of mischief in the 2. place takes away
the motive of concealment: & consequently the difficulty
of repairing what remain.
I have said "on purpose' rather than wilful which is the word used in for this reason
There are many cases not the proper objects of a criminal
prosecution where the Will certainly concurs in the
destroying Act tho' the destruction was nt the [very]
purpose of that Act — As for instance the treading
down corn or herbage in walking or pursuit of game.
These are not the proper objects of a criminal prosecution
because 1st the motive being a very slight one in —
comparison of that of hatred the slight punishment
inflicted in a civil nation will be sufficient to proceedagainst it
2dly because it is a much or more apt to be committed
by persons responsible to in a civil action than by those
who are not so— 3dly the mischief of it is very slight,
carrying no presumption of repetition, and the damage is trifling: for if it is considerable it will appear to be
the original end & design of the act & not a mere —
collateral event ensuing from the prosecution of another
In all other respects this offence may be healed in every
respect as Spoliationhaving the same aggravations
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Identifier: | JB/070/278/001 "JB/" can not be assigned to a declared number type with value 70.
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070 |
of laws in general |
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278 |
mischief |
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001 |
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