16 June 1804

Procedure and Evidence

Evils - Causes

Ch. Undue Decis n. Causes Factitious

Thus stands the case where the authority by which the purpose of the law is defeated is the same as that from whence it issued. It is much worse /the iniquity receives again a prodigious aggravation/ where the provision of substantive law being the work of the legislator - the legitimate legislator the decision - and at length the rule of law by which it is thus defeated, is the work of him who in duty ought to be but the agent the servant of the legislator. I mean the Judge.

In every such decision two enormities are involved - 1. a /the/ breach of constitutional subordination /obedience/: the work of the /a/ superior authority /magistrate/ overthrown by the inferior /his own subordinate/: the law of the genuine legitimate legislator repealed /over-ruled/ in effect by a spurious one - by a magistrate who not only has not the legal /lawful/ power to make that law but has not the power so much as to make any law: who pretends himself to no more than the jus dicere - who disclaims and professes to regard with abhorrence the jus dare: an act of usurpation committed by one whose business it is to repress and punish it in others whose hourly /daily/ function and prime glory is obedience.

2. And in what sort of law does the authority thus usurped display itself? - in the acknowledged quintessence of iniquity - an ex post facto law. The decision by which the punishment thus unjustly inflicted is produced is a decision the pronouncing of which he /a man/ had no means of foreseeing: a decision produced itself by a conception which not only was /had/ never been communicated in time to the party whose fate depended upon it - in time for him to regulate his own conduct accordingly - but had not till that moment presented itself to any human breast: a punishment without cause - and fruitful as it is in evil effects, productive of no good effect other than what might as effectively have been produced without it.