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)