date

9 Oct r[?] 1807 Lords Delegates
9 Oct r[?] 1807

Lords Delegates

After Ch. Advantages

Ch. L d Hales Plan

Observations on L d Hale's plan for a supreme appellate judiciary in lieu of that of the House of Lords.

Among the manuscripts of Lord Hale was found a /were found some/ treatise /papers/ on the judicial function as exercised in Parliament. In 1796 the public became indebted for the publication of them to M r Hargrave, with a preface by way of introduction, historical and critical, still more valuable /of still greater virtue/, especially at this time of day, than the work /principal/ itself.

At the time when these papers of Lord Hale were written, the appellate jurisdiction of the House was hotly /altogether/ disputed by the House of Commons. Lord Hale's decision concludes against it; and, pronouncing it unconstitutional and untenable, he proposes a judicatory to serve in lieu of it.

Till the above /foregoing/ plan had been drawn up and compleated, the author was not apprised of the existence of any plan on the subject from Lord Hale. Lord Hale's plan has now /since/ been examined, nothing is found that at this time of day affords any considerable objection, nothing but what may be made to afford /affords/ either confirmation or illustration, to the plan which owing its birth to the present time, was /had been/ adapted to the existing state of things.
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  • Title: [9 Oct r 1807 Lords Delegates]
    Description: 9 Oct r 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch. │ │ L d Hale's Plan

    At the time when this was written, there prevailed, as may be seen in M r. Hargrave's Preface, a violent suspicion and dread of the power and designs this aristocracy (exercise of aristocratic power) and assuredly not without (ample) cause. For, as hath been seen, not content with appelate jurisdiction, the House of Lords had possessed itself of immediate jurisdiction, of which to any purpose but that of occasional pillage and oppression, an assembly which like Homer's God Rivers and /with their/ River Gods, were sometimes in existence, sometimes not, and never sure to be, and when it existed could not find time but for a small part of the business of that kind that would be presented to it, was essentially unsusceptible.

    But as to the appellate jurisdiction for a century or more, as hath been seen the Lords House have remained in quiet and undisturbed possession of it, and notwithstanding all the imperfection attached, as hath been shewn, all the time to that judicatory, no such inconvenience as that of injustice for the prevalence of aristocratical designs and principles[?] has been experienced.

    Not but that Lord Hale was abundantly justified in his apprehension of it. But it lay not in him to foresee any such increase of general [...?] and general intelligence, as that which has raised the /given to the Lower/ House of Commons so decided an ascendancy over the Upper House as to render any thing of /take every idea of unjust/ encroachment out of the range of hope and thence of inclination on the one part, as well as of fear /apprehension/ on the other. In the blind exercise of a blind deaf and dumb negative, through /under he influence of/ a mixture of ignorance indolence ignorance and corruption, his the only jus nocradi[?], remaining to the House of Lords /and alas it is but too sufficient!/.

     Add here or further on Hales remedy was out of the frying pan into the fire from the independent Lord to the King[?] his dependent Judge. No danger but that in Lords Elections [...?] will have sufficient influence.
  • Title: [13 Oct r 1807 Lords Delegates]
    Description: 13 Oct r 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch. │ │ L d Hale's Plan

    which by means of this his plan, the venerable Judge is bent upon the prevention of /so determined to prevent/. But how prevent it? but how? - One means there is and but one: viz. by so ordering matters, that the number /multitude/ of unlearned and thence "not so competent" Judges, shall in such sort and degree be kept from being " too excessive," as to be always outnumbered by the /exceeded by the number of/ learned ones.

    In Lord Hale's time sollicitations, as he himself tells /informs/ us, + were in practice in the House of Lords. At that same time the King, as we learn from other sources, ║ was /used to be/ of the number of the sollicitations. Here would have been an article to have placed in the list, if not at the head of the list, of the " mischiefs and inconveniences", to which, and by the bare mention of those words, he was contented /he deemed it sufficient/ to allude. Why not /For what/ reason not put it there? For decorum? - for prudence? - not so since in the same work he has brought it /stated it/ to view without disguise.

    A capital objection to that judicatory in its present form it can not be decried[?] to be, and as such has been already noticed. But Lord Hale? did it lie in his mouth to urge it in that character? was it in the power of his plan to be served by it? The King's influence might in this way have been exhausted (on behalf of the defendant in Error suppose the gainer by the judgment below) and in that judicatory not improbably was every now and then exhausted, and his point not gained. But in Lord Hales judicatory how would it have been? To gain his point without more ado, the King had nothing to do but /more to do than/ to do nothing. The trouble of sollicitation with the shame /odium/ of the attempt, and the modification attached to a fruitless one, would have been saved to him altogether.

    + Hale p.204

    ║ Burnet /[...?]/ in Barrington's Observat s. on the Statutes p.23
  • Title: [11 Oct r 1807 Lords Delegates]
    Description: 11 Oct r 1807

    Lords Delegates

    after Ch. Advantages

    Ch. L d Hale's Plan

    Now then, to apply this position of his to his own plan. At the time when he was penning this treatise, and while /when/ the House of Lords were occupied in exercising and defending /supporting/ that appellate judicature, and the House of Commons in contesting and attacking it, had any Writs of Error been brought into the House of Lords from either of the two Exchequer Chambers? I speak of the Exchequer Chamber which then as now must occasionally have been sitting to determine on writs of Error brought to it out of the Kings Bench, and the other differently composed Court of the same name sitting to determine on writs of Error brought to it out of the Court of Exchequer.

    I content myself with putting the question, not being competent, nor very ambitious of being competent, to say yes or no to it: either will equally serve the purpose of this argument. If no /as yet no/ such Writ of Error had been brought to the House of Lords, they would not naturally have had long to wait for one: their competence to take cognizance of it was included in their claims, and the /their/ assumption if not affirmed by Lord Hales argument against those claims.

    Well then - a writ of Error is brought into one of these Exchequer Chambers for the reversal of a judgment pronounced in the King's Bench: the Judges of whom then Exchequer Chamber is now composed are the Judges of the Common Pleas and the Barons of the Exchequer. By the Exchequer-Chamber the judgment of the King's Bench is reversed or affirmed: thereupon for reversal of the judgment of the Exchequer Chamber a Writ of Error is brought into the House of lords. Hereupon, according to the plan of the venerable Judge, "the Judge of that Court, out of which the record is removed ..." they and they " only", are "to be omitted in that commission."