date

15 July 1805 Evidence Introd
15 July 1805

Evidence

Introd. Jurisprud

Ch. II. Vices

''.2. Ex post facto

In what /Wherein/ consists the accusation /the characteristic/ or at least the mischief of an ex post facto law? - that it is so much sheer vexation; vexation without fruit. Is mischief, the care or prevention of mischief in any shape the object of law? what /whatever/ mischief is past, is beyond the reach of none: what ever mischief is regarded as future may be as effectually prevented by a prohibition without the punishment, as by the punishment without the punishment, as by the punishment without that prohibition. Is the case a present one? It is only by an act of punishment, of punishment unpredicted and unexpected, and because unforseeable and invisible that the law such as it is, the law thus made against the offence is made.

Is the case a non-penal one? The burthen imposed by the loss of cause be it whether the loss be on the demandant's side or on that defendant's, is to the extent of it so much punishment in effect.
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    Description: 17 July 1805

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    ''.2. Ex post facto

    In proportion as jurisprudence, like a [...?] /vengeance/ creeps in and overspreads the body /field/ of the law; the frequency of those decisions, which by their unexpectedness produce the effect of an ex post-facto law, can not find (it may be said) to abate: insomuch that, sooner or later a point of time can not but be arrived, in which this reproach to jurisprudential law will be at an end. In the character of theoretical /a theoretical character/ proposition the truth of this proposition can not be denied: but apply it to practice the value of the advantage announced by it, with reference to the present generation will be found to be small indeed. The distance of this point of time has at least been never regarded as any thing less than infinite by any professional /technical/ eye. What ever limit /limits/ may have been opposed by the nature of things, to the progress of this disastrous vegetation /work/, is no more apparent to the faculties /sense/ of the [...?] /workman/ by which it is carried on than the brick wall at the end of the garden is to the ends[?] while she is working in the ground in the middle of it.

    To this we are assured /it is certified to us/ /Take the Equity branch for example/ we are offered by the most approve authors /authorities/ that the power /jurisdiction, and functions of/ of a Court of Equity has no determinate limits, or what comes to the same thing, none that any body knows of. This is /if it be not/ one of the tricks of lawyercraft, In appearance an exemplification of industry a confession of ignorance: an effect not to say in design, an assumption or collection of arbitrary powers. It answers to the their character power of good order /[...?]/ of the Court of the King's Bench in matters of English penal[?] law, and to the Scotch office of the court of [...?] in Scotch law. On ne te jamais [...?] /à plus/ haut que quand on ne peut pas on l'a vu. A man never climbs so high as when he knows not where he is going to, says an observation attributed to Cromwell by I forget what French writer.

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    Of the power which is unforeseen /invisible to/ by the present Government, what ever is exercised by any future one, can it be so exercised any otherwise than in the way of ex post facto law?
  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

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    '.2. General Mischief

    5. The existence of a law to any effect being supposed, the compleat non-notoriety of that same law can not consistently be supposed.

    This being promised, in the instance of every /a/ law, of which the preponderant utility is supposed, being supposed to be in any degree unnotorious two distinguishable mischiefs will be to be considered as flowing from its want of notoriety: viz: the mischief consisting in the absence of the good that would have resulted form the observance of it, in the instances in which it would have been observed, but was not observed:

    2. the mischief consisting in the evil which in the case where not being generally known it comes in a particular instance to be observed, accrues to those on whom the observance of it imposes some powerful obligation for the endurance of which they were not prepared.

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  • Title: [14[?] July 1805 Evidence Ch]
    Description: 14[?] July 1805

    Evidence

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    2 or 3. Arbitrariness, considered as among the vices of jurisprudential law, may at first sight be regarded as already brought to account under the last preceding head of ex post facto tyranny [...?]. Both effects it is true have their root in this same cause: but in the effects themselves there is this difference. It is bad enough for a man to find himself unexpected [...?] by a loss of other misfortune, which, at the moment at which he is stricken with it /concerning which the moment it falls upon him/, he perceives that it never would have fallen upon him, had the law that is the conductors of the law put it into his power to avoid it. It is bad enough to a man to find that his condition under the law is made sport of chance and that safety or sufferance is matter of cross and pile. But it is still worse to a man and a great deal worse when instead depending on fluid and impartial fortune, he beholds in this or that individual or small knot of individuals, and those too, acting habitually on principles opposite to reason, the uncontested arbiter /master/ o his fate.

    How bitter so ever the draught may be in itself, the cup of misfortune never fails to receive bitterness, as often as the hand of man is seen employed in mixing it.