So we should say, "a judge will not proceed to try a criminal, without his being present." But would it be correct to say, without him being present? This mode of speaking will not, I am confident, be advocated: But unless I am mistaken, this last expression stands on a footing with the example cited, without the statute being pleaded. Numberless similar examples occur in those modern writers who aim at refinement of language. "If we can admit the doctrine of the stomach having a general consent with the whole system."—"On account of the system being too highly toned," &c. It is strange the writers of such language do not see that there are in fact two possessives in such phrases—"on account of the too high toning of the system," and that both should be expressed; thus, "on account of the system's being too high toned."
It may be questioned whether the verb need may not with propriety be used in the third person singular of the indicative, present, without the usual termination of that person. Practice will at least warrant it.
"But tho the principle is to be applauded, the error cannot, and, in this enlightened age, happily need not be defended."——Erskine, Orat. Temp. vol. 1. p. 95.
"Now a person need but enter into himself and reflect on the operations of his own mind."——Nugent's Burlamaqui, 1. I. 9.
"Hence it was adjudged, that the use need not always be executed the instant the conveyance is made."——Blackstone, Com. b. 2. chap. 20.
Numberless authorities of this kind may be produced; but we may spare the trouble, and only advert to the constant practice of speakers of every class; "he need not;" "it need not." Indeed, he needs not, altho grammatically correct, is so offensive to most ears, that we have little reason to expect people will be persuaded to use it.
The same may be said of dare; "he dare not."
I am mistaken, Lowth reprobates as bad English; asserting that the phrase is equivalent to I am misunderstood. In this criticism the Bishop is mistaken most grossly. Whether the phrase is a corruption of am mistaking or not, is wholly immaterial; in the sense the English have used it from time immemorial and universally, mistaken is a mere adjective, signifying that one is in an error; and this sense the Bishop should have explained, and not rejected the phrase.