17 July 1805

Evidence

Introd. Jurisprud

II Vices

''.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.

Note

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?