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Observations and
Answers.
I pass over the cases where
There are other cases, where the Court of King's
Bench (to say nothing of other Courts) exercise legislative
power, not in the ex-post-facto way, but before
the fact, just as Parliament does: for instance
Rules and Orders relative to Procedure, and relative to
the management of the King's Bench Prison. In
the former the exp ex-post-facto cases, necessity there is, or at least there
was, the plea of necessity: since the demand for
security in society was constant, while at a time that the existence
of a legislative power was but occasional, and
even rare. In those latter cases of preventive legislation there may be convenience
for aught I know, and at any rate under
the lex gravier gravior of Parliament no inconvenience:
but as to necessity, what is it when
compared to the present case? singular case in which
I give it by auth express authority of Parliament?
As to impertinence and presumption, I might
be taxed with it, and perhaps with justice enough,
if it were a form Form that I gave the Court; but
what I gave them is, not a Form but an example.
As such it was meant, and such accordingly it is
called. Why give the an example? — 1. That it
might be seen that the sort of laws I wanted to get
made by the King's Bench, were what such as Parliament
could not make. 2. That the Court being seen to have
a pattern before them, which so long as it was at all
regarded would be sufficient to guard the power from
abuse, it might be seen that the power given to them the Court
was not of the number of those which are open to abuse.
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