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Sect. XII. Persons at Large.
Art. II.
Whoso willfully committeth mischief on any Turnpike
road, by defacing damaging or removing any
work of wood stone or other material placed or
thrown up [1] for the security guarding of a causeway, [or|2] for
the fencing off of water any water or hollow place] or [3]
[for the marking of a boundary], or [4]for the direction,
of travellers or [5] [for the lighting of the road] or [6]for the purpose
of a bridge, or [7 for draining off of water, or [8]for any
other purpose of use or ornament, not mentioned
in the Article following, shall forfeit a Sum not less than
10s nor more than £5.
Observations.
Great are the pains taken in this laborious preamble
to persuade men of what nobody ever yet could doubt
of. advanced however to It may be a means perhaps of inducing a compiler to
save himself this trouble, or may to observe to him, that
the mischief he means to guard against is either
possible or not; if it is, one may then venture to say to him forbid it boldly; credit will hardly be refused you for having
supposed as much: if it is not, 'tis not what you say will make it so.
It may be worth while to hear Ld Bacon's sentiments of a clauses thus constructed in this manner. " + +De Augm. Scientim L.8.c.3.Aphor 71. Est vers genus persevibendi
leges valdi vitiosum. Cum sciticet casus ad quem lex collvinat, fute exprimetier in preambulo: deinde ex vi verbi [tulis
aut hujiusmodi relativi, corpus legis retro vertitur in preambulum, unde preambulum inseritur et incorporatur ipse lege:
Quod et obscurum est, & ininus tutum; quia non eadem ad hiberi consuivet diligentia in ponderandis et examinandis
verbis preambuli, qua adhibitior in corpore ipsius legis." One way there is of composing laws that is very virtuous. To
con't. when the case whereat the law is levelled, is diffusely expressed in the preamble; whereupon by force of the word
[such] (or the like relative) the body of the law is turned back onto upon the preamble, which by this means becomes inserted into,
& incorporated with, the law itself. Now this is both unsafe and not less unsafe than it is obscure: obscure and even unsafe: since the words of the preamble are
seldom weighed and examined with that diligence attention which is bestowed upon the [body of the] law itself."
Whether the With what attention with which this law has been weighed and examined is sufficient may be partly seen judged from those the several supplements included in brackets
which I have thought it has appeared necessary to insert in brackets. The variety of work indeed which on some occasion or other
may find a place upon a turnpike-road is such, as I could not see any certainty of being able to cover without
some such general words as those in nor [8]a: which words, indeed were I to my should judge, might serve for
all the rest.
Two questions I must submit before I conclude this Article — one, whither it would might not be better to make the value quantums
of the damage the measure of the punishment, within the limits here prescribed, instead of leaving it thus at large? another, whether a compensation
should not be required from the author to be ascertained and recover'd in the same summary way of a damage that may appear involuntary? If so, then the compensation for
the latter damage would of course be the single value, & the penalty for the mischief might be augmentable at the discretion of the Magistrate as far as to the
Treble. This Idea (if I may to digress a moment) if applied universally 2 with under<add>3</add> certain modifications and restrictions
to the crimes of mischief and of Theft 1 would reduce those unmeasurable inordinate<add>5</add> Titles of our Lsw many 2 hundred-3fold6.
2 Under which of the denominations specified in the original would the Iron-rails come, for example, that are placed
round the obelisk near Black Friers? Or those venerable relicks of antiquity themselves, which under the name of
Crosses, have been erected on some of our Public Roads? or Statues with the fences for their protection? or monuments
like that on Lansdown? And why must the upper parts only of Bridges, &2 not3 the main-work be protected from damage?
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Sect. XXXI.
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