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.