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A Priviligiam and an ex post facto Law
are not the same thing: they are very different
care must be taken not to confound them
Cicero who had sufferd by an ex post-facto
Law, declared against a priviligiam, without
knowing what it meant
The Waltham Black Act was a priviligiam:
but it was not an ex post facto Law. Our All
Acts of Attainder are strictly Privilegia.
To speak the truth a very great the greatest part of the
in the manner legislation has been conducted hitherto
Laws we make, are in a manner Priviligia.
For an Ex post-facto Law Priviligium to be justifiable, it
must appear that the mischief of the act made
penal by it is greater than the mischief of the
example of the Law.
The mischief of the example of the Law consists
in the idea of insecurity the pain of apprehension which it
serves to spread among the people. For that
pain not to be a pure? evil, for it to operate
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only as a restriction of greater evil, for it
to rest only on those few from whom a
greater evil was otherwise to be apprehended
+ attended to the following conditions must be observed.+
It must be made in founded another contemplation
of some mischief. It is in fact always professed
to be made in contemplation of some
mischief: For Legislator be he who he
may is neither so weak nor so shamefaced
to. .
That Mischief is the product of an Act [+] either
[+] of the same
kind as performed already or only apprehended.
If of an act performed already, there it is either become either become
the on account of a deficiency of that not an was not a crime before, or
an act of the description
of that in
question tho a crime not sufficiently penal: or that
a crime and sufficiently penal, those the act
in question was done under circumstances that
left not sufficient evidence of its having been
committed.
An Ex-post-facto Law is therefore made
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to supply a supposed defect either in the
legislative department or the Judiciary.
If an Ex post-facto Law is justifiable at all
under any of the foregoing circumstances
it is on this ground that the impunity
of the offender viz., such a degree of
impunity as would subsist were it not for
the Law is an encouragement to others
to committ all such other mischievous acts
whatever they may be as are not yet
provided with the proper sufficient punishment:
and it must appear that the probable evil
of such undetermined acts is greater than
the probable evil consisting in the danger
of the abuse of Laws of this stamp; that
is the applying them to Law persons not guilty
of mischievous acts at all, or not guilty otherwise
those of acts which being already for which they
are already liable to suffer an adequate punishment
by the Laws subsisting.
—
INTROD> PRIVILEGIA X Export-facto Laws X Recog[BR]|[ ]nizances.
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In these cases one sees of such a the Law is justifiable
it is justifiable on the score of its'
producing pain in the party against whom
it is levelled: because it is the observation
of that pain in that person that is to produce it's effect
in others.
If the obnoxious act be not yet done but
only apprehended the Law is not justifiable
on the sense of it's producing pain: the
purpose of the Law business is to prevent a person's doing a
mischief, and that person's only: for as to
other persons that may in whom the propensity
and opportunities are not as yet found the
purpose may be answer'd as well by a
Law in the common way.
A certain pain is necessary to prod for restraint
produces pain; but all pain besides what is
necessary to produce the kind of disablement restraint
deemed sufficient in the case in question
is beside the purpose. It is as much misery in waste
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