23 June 1805

Evidence

Introd

Ch Non-Notoriety

''.2. General Mischief

2. Take the case of a non-penal law, conferring upon a man a right: and suppose the right of that sort which may be called consummate in the first instance, not requiring the authority of a Judge to put him in possession of it.

Take the right of self-defence consisting in the right of using mortal weapons (fire-arms suppose) for the defence of person, property and residence - against the attacks of nocturnal depredators directed against /made upon/ the dwelling house.

A depredator of this description attacks a house for the purpose of breaking into it. The owner, who is alarmed at /in/ him before the depredator has got in, has a loaded gun within his reach: with which, such is the relative situation of the parties he might have made sure of shooting the assailant: but not knowing /supposing or not being sufficiently assured/ that the law has given him this power /right/, by exempting him who exercises it from the punishment attached to homicide, and in the hope that the depredator after having satisfied his rapacity on the property in the house will leave the persons unmolested, hesitates /fears/ to employ this instrument of defence, whereupon the depredator enters and fulfills /accomplishes/ his criminal purpose.

Here then loss of property perhaps of life, and the successful consummation of a crime attended by wide-spreading alarm is the consequence of the non-notoriety of the law. But no mischief, such as that of punishment, being in this case inflicted on the sufferer by the hand of the law itself /himself/, the consequence is an ex post facto law.