date

23 June 1805 Evidence Introd
23 June 1805

Evidence

Introd

Ch. Non-Notoriety

'.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.

It is this latter mischief which in the chapter on Irrelevant decisions has been described as attached to the nature of an ex-post-facto law. It is to the circumstance of a man not being apprised of the existence of the law under which he suffers + that an ex post facto law is indebted for /derives/ all its mischievousness and injustice.

+ (possessed of the information of its existence time enough to enable him to escape from the punishment or other vexation threatened by it)
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  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

    Evidence

    Introd

    Ch. Non-Notoriety

    ''.2. General Mischief

    To render it in every instance clear as well as conformable to the truth of things, the general conception above given requires to be /in several points to be/ analyzed and particularized.

    The prime distinction is that between a penal and a non-penal law.

    1. Take the case of a penal law. The mischief resulting from the non-notoriety of a law of this class is distinguishable into two very different lots.

    1. First comes the mischief of the offence. This is measured by the number of times at which by the individual in question or in the community in question the offence comes to be committed, for want of their being apprized of the existence of the law whereby the commission of it was /stood/ prohibited: First lot of mischief flowing from the non-notoriety of a penal law, mischief of delinquency /offence/.

    2. Next comes the mischief of the punishment. The sort of offence in question being for want of the requisite notice committed by the individual in question or in the community in question in a certain number of instances, comes an instance, in which being detected is a suspected of the offence a delinquent comes to be prosecuted and punished /the punishment denounced by the law inflicted on him/. Second lot of mischief flowing from the non-notoriety of a penal law mischief of the punishment.

    In this case, merely for want of notoriety, the law in virtue of which he is punished, this law however useful and even necessary in other respects, is in the instance of every individual on whose head it brings down punishment, stained by the mischief and injustice of an ex-post-facto law.
  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

    Evidence

    Introd

    Ch Non-Notoriety

    ''.2. General Mischief

    2. Take the case of a non-penal law, conferring upon a man a right: and suppose the right of that sort which may be called consummate in the first instance, not requiring the authority of a Judge to put him in possession of it.

    Take the right of self-defence consisting in the right of using mortal weapons (fire-arms suppose) for the defence of person, property and residence - against the attacks of nocturnal depredators directed against /made upon/ the dwelling house.

    A depredator of this description attacks a house for the purpose of breaking into it. The owner, who is alarmed at /in/ him before the depredator has got in, has a loaded gun within his reach: with which, such is the relative situation of the parties he might have made sure of shooting the assailant: but not knowing /supposing or not being sufficiently assured/ that the law has given him this power /right/, by exempting him who exercises it from the punishment attached to homicide, and in the hope that the depredator after having satisfied his rapacity on the property in the house will leave the persons unmolested, hesitates /fears/ to employ this instrument of defence, whereupon the depredator enters and fulfills /accomplishes/ his criminal purpose.

    Here then loss of property perhaps of life, and the successful consummation of a crime attended by wide-spreading alarm is the consequence of the non-notoriety of the law. But no mischief, such as that of punishment, being in this case inflicted on the sufferer by the hand of the law itself /himself/, the consequence is an ex post facto law.
  • Title: [15 July 1805 Evidence Introd]
    Description: 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.