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3
Panopticon Bill
XI
Escape
Observations with Answers.
Observations.
Art. 6. This will certainly be objected to as a very dangerous precedent of giving a legislative power
of interpreting the laws to the King's Bench. It is true they exercise this power already: but it is
always under the Controul of a Jury, and many people will be shocked at it when presented to
them under a new form, who now see it every day without observation.
The King's Bench will think you very impertinent in presuming to give them a form for
making their rules.
Answer.
According to my apprehension there was no danger in the case. The declared object, and if I am not
very much mistaken, the effect, of this provision, is not to enlarge legislative power in judicial hands, but to
narrow it. The reasons why the tendency of it appeared to me in that light, are stated in the preamble.
If in any of these reasons there be any thing of mistake, wither in point of fact or in point of inference, I
should be glad to see it pointed out, and ready to correct it: but till that be done, I must conclude the
provision an unexceptionable one, and while I continue to deem it so, I can not assume, as a matter
of course, that it will be excepted to and disapproved by those who are to judge.
In what instance is it that I give a legislative power to the King's Bench? In an instance in
which it is impossible for Parliament to exercise it, and it is for that reason and no other that I transfer
it to the King's Bench from Parliament. As often as I set up a fence, I can shew the plan of it
to the Court of King's Bench, or the fence itself if they think it worth while to look at it. Could
I do this to Parliament? Would it be endurable that every time I set up a few stakes or a few
bars, I should be coming to Parliament for a fresh law? In how many instances do not the
Court exercise such a power already? In a thousand instances in which it is just as possible for Parliament
itself to make the law as to leave it to be made by the judicial Power. What power but the
judicial, has made the law in the cases of Libel, Sedition, Unlawful Assembly &c &c in short all offences
which are such only at Common Law? to say nothing of Larceny, Arson &c where if the Statute Law
has interfered more or less in the appointment of the punishment, the definition of the offence has been
made out purely by Common Law? In short what is the whole system of the Common Law, especially
in the penal branch of it, but a system of ex-post-facto legislation? — Driven by necessity,
I enable the judicial power to do by express commission from the legislature, in a case no ways open
to abuse, what without any such commission it has been in use to do, time out of mind, in a thousand
instances, in cases open to abuse in the highest degree that can be conceived.
As to the controul of a Jury, it is the same, in the one case as in the other. My object is to enable
the Jury to exercise it, with as little difficulty and danger of mistake, as possible. When a
sufficient ground for a verdict can be made by the representation of a matter of fact cognizable by
the senses, I choose rather to give them the plain fact to judge of, than to send them a hunting
after intentions, a chace in which they are but too apt to be bewildered by false lights.
There
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