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Offenders Princ. & Accessory Present in Law As the characteristic words are adopted at first were
commonly too narrow to embrace the mischief the remedy
was to change those words of their own authority which
they dared not do or any thought of doing since the
matter originated with the parties nor by the authority
of Parliament which they found is too much trouble to
attempt; but to sqeeze within them a meaning of the most
different & sometimes opposite nature [to the miserable
torture of language, & the great scandal to common
sense] — thus in heinous Crimes it was early perceived
that there was much the same reason for punishing a
man who was present to give assistance to another
employed immediately about the obnoxious act, as
that other: presence then created the guilt: but it
never occurred to them the assistance of the first man
might be just or useful & necessary tho' he was not
within sight or hearing, & so was not present: as if
he was placed at a distance but upon the watch —
by and by a case of this sort happens — they now
perceive it's identity in point of guilt with the other
what then is to be done? presence they have been accustomed
to require. Present the man must be to be convicted
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but he is not present no matter — he is present in the
eye of the Law P. Law 215 the Law presumes
him present — it implies his presence: it implies what
it is accessary to his being guilty should be true &
is not so — As the Law stands, the man is not
quilty, but he is a troublesome fellow presume him
guilty and there is an end of him.
These gangrenous branches of the Law thus violintly
contorted, are indeed now no longer suffered to take
root, and become the profisic strocks of a new ramification:
they remain tho' detached, but tho' detached
they remain: they disgrace the Law by their deformity,
perplex the eye of the observer spectator by their anomality
and not unfrequently vitiate the growing branches of
it by their bulk
Mischief Consequential Substitution instead of this the case of a Ship obliged to set sail on such a day or lose the Voyage Consequential Naturally Accidentally The Consequential is again either Natural or Accidental
Accidental as if a man be going to a certain place to
receive a certain sum of Money, which he cannot ever
after unless he do it by a certain Hour, & this man
have a carriage; & it be not practicable for him to get to
the place in question by the time in question but by a
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carriage: & there be but that one Carriage; & that carriage
be by somebody destroyed.
Now the loss of the value of the carriage is the direct mischief: the
loss of the money which should have been received is the
consequential:+ +Thus we see the direct & the consequential mischief may have different persons for their objects. but it is accidental; since it will not not
ordinarily happen that a man by the distruction of one
single carriage shall be thus debarred from the receipt
of a sum of money.
Natural as if a Bridge be destroyed now the loss of
the money which it will cost to rebuild such Bridge is
the direct mischief: & the various losses & inconveniences
to which the various persons will be subjected who otherwise
would have passed over that Bridge by being
debarred therefrom while it continues unrepaired form
the consequential: & this may be deemed Natural, as
flowing from the nature of the subject destroy'd: for
though each article of inconvenience sustained by the
respective persons when considered separately may be
termed accidentally, yet that a vast sum of such consequential inconvenience
of much the same nature kind with that which actually happen'd,
should on such an event happen, is natural & in
a manner necessary. The respective qualities & quantities
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of the several articles of mischief which are immaterial, are
consequential accidentally but the total Quantity of all of them taken
together which is the thing material, is consequential naturally.
Now the consequential mischief when it is natural, depending
upon each subject-matter may be anticipated in Idea
from the consideration contemplation of such Subject-matter before it
happens, & a general and average estimation of it's
magnitude may be formed by the Legislature.
But when it is accidental, depending upon circumstances
foreign to such subject-matter no such average estimate
can be formed = but the valuation must be left to
be performed (if it be proper to take it at all into the account+) + for this v. Tit. Mischief
to be formed I say by the Judges of fact for each
particular case after it is incurred.
As the mischief of the 2d order is that which is [copied] reflected
from only just so much of it as is seen all that there
is of it is what results from the direct; not all the 1st which exists. or if any from the
consequential, only from that part which is ordinary &
natural, not from that which is extraordinary & accidental:
except indeed where any part of that which is in its
nature accidental has in on individual case in question
actually happened.
AESTIMATION. Misch. 1st Order - Consequential Naturally Accidentally [BR][ ] Offenders Princip. & Accessory - Present in Law.
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