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.