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Click Here To Edit SECT XII. PERSONS at Large
ART. III
Whoso maliciously committed mischief by removing plucking
up, pulling down or destroying [in whole or in part,]
[finished or unfinished,] any of the works following:
viz.[1] any Turnpike Weighing - Engine; or [2] any Turnpike
Toll-gate or other fence set up to prevent persons
from passing without paying Toll; or [3] any Turnpike
Toll-House; shall be deemed guilty of Felony, and
shall suffer death as a Felon without benefit of Clergy.
Observations
[And to prevent & c. .....O.] Another Preamble for the
instruction of those who might not otherwise have found
out that the punishing of an offence with death, was
meant for its' prevention.
If there be one case more than another in which
we are entitled to expect precision it is where as here, the
thread of life hangs upon a word. Pleonasms
accordingly (which are the Statute currency for precision)
are accordingly got together with in more than ordinary
quantity, and with the ordinary effect.
[... Willfully or maliciously ...O.] In the 1st place
"willfully" is included in "maliciously": therefore it
is of no use. In the 2nd place, the "or" is either
disjunctive making the passage to man "whether willfully or maliciously " as if they were different: subdisjunctive, making
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it to signify "wilfully i.e. maliciously; as if they were the same. Now neither is "willfully" the same as "maliciously"
nor will it do instead of it. We have already Frequently have we seen these pleonastic exerescencies, in a variety of instances , a desease: we
may now behold them a deadly poison. The workman who removes then several erections here specified in order to put
up new, does it "willfully" unless he does it in his sleep.
[... By day or night ... O.] At one 1 o'clock and or two 2 o'clock: at 1/2 an hour after 5, 3 or at 3/4 of an hour after] ...
In hot weather and in cold: in wet weather and in dry ... I know how this came to be just here, but it is so plain
that it has no business here, that the reason is not worth mentioning.
It were uncandid in me to insinuate, (for assuredly I do not believe) that the life of any man innocent in the eyes of
the framers of this clause stands by virtue in consequence of it in any real danger: but the very appearance, tho' it be but an
appearance of a danger of this sort impending over the innocent, is alarming and unseemly. To see a man hung
out in a cage from the top of a precapeice high tower could not but cause make a man of a sensible frame of mind to shudder; not
And who can answer for the effect of such a clause upon an ignorant mechanic under the propensity so common and so fashionable in the lower rank of man to make a bugbear of the law? withstanding any security the strength of the tackle might afford his judgment against any probability of a fall.
[.... By authority of Parliament...O.] Weighing-Engines it seems that are on a road, must have been erected n by authority
of Parliament: as for "Turnpike-gates", it's no matter how they come there.
[...or shall forcibly rescue any person or persons, being lawfully in custody of any officer or other person for any
of the offences beforementioned ... O.] All this, as to any good purpose it can have, is just as much as comes to nothing;
the same provision having been made of old in all cases of felony by the Common Law + + See the authorities cited in Burn's Just. Tit. RESCUE. unless it meant in this oblique
manner to make this accessory offence triable independently of the principal: which effect, whether it were designed,
or whether it would take place if it was designed, is more than I would venture to affirm or prophecy.
[...Beforementioned....O.] Where beforementioned ? 'In this Section'- it will readily be answered. But unhappily
there is no such thing as this Section or as any Section in a Statute, as we have before observed. Under this disadvantage,
the word [such] would have been preferable to [beforementioned]: because the application of the former is naturally
confined to the last subject matter assumed; whereas the latter stretches over the whole Instrument.
[...Shall be deemed & c.... N.]
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Penalty of destroying, & c. any Toll-gate or Bar,
And, to prevent the malicious destroying of any Turnpike
gate or Houses which have been, or shall hereafter
be, erected, be in further enacted, That if any Person
or Persons whatsoever shall, either by Day or Night,
[wilfully or] maliciously pull down, pluck up, throw down,
level, or otherwise destroy, any Turnpike-gate or
Turnpike-gates, or any Post or Posts, Rail or Rails,
Wall or Walls, or any Chain, Bar, or other Fence or
Fences, belonging to any Turnpike-gate or Turnpike-gates
or any other Chain, Bar or Fence, or any kind
whatsoever, set up or erected, or hereafter to be set up or
erected, to prevent Passengers from passing by without
paying any Toll laid and directed to be paid by any Act
or Acts of Parliament already made, or hereafter to be
Toll-house or Weighing Enginemade, for that Purpose; or any House or Houses erected,
or to be erected, for the Use of any such Turnpike-gate
or Turnpike-gates; or any Crane, Machine, or Engine,
made or erected, or to be made or erected, on
any Turnpike Road, by Authority of Parliament, for
or rescuing Offenders;weighing Waggons, Carts, or Carriages; or shall forcibly
rescue any Person or Persons, being lawfully in
Custody of any Officer or other Person, for any of the
is felony, without Benefit of Clergy, Offences before mentioned; that then, and in any of the
said Cases, every Person so offending, being thereof lawfully
convicted, shall be adjudged guilty of Felony, and
shall suffer Death as in Cases of Felony, without Benefit
of Clergy: And any Indictment for such Offences shall
and may be inquired of, examined, tried, and determined,
in any adjacent County within that Part of Great
Britain called England, in such Manner and Form as if
the Facts had been therein committed.
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