date

9 Oct r 1807 Lords Delegates
9 Oct r 1807

Lords Delegates

After Ch. Advantage

Ch. L d Hale's Plan

Lord Hales Plan is in these words /to this effect, and marks/: for the purpose of reference they are here broken down into articles.

Art. 1. That for receiving reference of "petition for reversals[?] of decrees[?] and for examining of judgments in writs of error, a select number of the most judicious Lords, spiritual and temporal, and that not in too excessive a number, be appointed.

Art. 2. "Together with the Judges"... except "the judges of that Court, out of which the Record is removed."

Art. 3. That these be not " present", unless "occasion require to hear the reasons of their judgments: as in error addition out of the Exchequer Chamber before the Treasurer and Chancellor."

Art. 4. That, (in pursuance of a formality even then already antiquated) the collective name of Tryers of petitions be given to the judicatory so composed.

Art. 5. That they be all "commissionated under the Great Seal for that purpose."

Art. 6. That "because it may not be determined in that session, then a special commission to the Tryers, where of some of the quorum to examine and determine.

Art. 7. To the above is added a quantity of complication pregnant with useless or sinecure offices, and of course with their fees, and for no other declared purpose than the removal of the aforesaid already antiquated formalities.
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  • Title: [9 Oct. 1807 Lords Delegates]
    Description: 9 Oct. 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch. │ │ L d Hales Plan

    Art. 2 As to the judges, that by this learned person the necessity of the presence of these his learned brethren should be assumed, is not to be wondered at. In the [...?] plan, there is no room for any such personages: the addition of so much as a single one of them would for the reasons already given, render the number "too excessive." Moreover this time is at present pretty well filled: an objection which did not apply in equal degree, or indeed in any degree, in Lord Hales time. +

    In this same article is contained the other proposition /his limitation[?]/, inserted for the purpose of excluding learned persons howsoever learned and more than judicious, from the faculty of acting as Judges over themselves. Let learned and noble Lords in whose learned eyes reason is so little, authority so great, especially the authority of Lord Hale, let all these learned and noble persons, Chancellor of both kingdoms - always ennobled, chief Justice of the English King's Bench - Chief Justices (when ennobled) of the English Common Pleas - let them as often as the temptation may occurr to them of sitting in judgment over themselves, especially the Lord Chancellor of England, sole effective Judge over himself, read their own condemnation in the words of the good and unennobled[?] Lord Hale.

    + See Norths life of L d Keeper North.
  • Title: [9 Oct r 1807 Lords Delegates]
    Description: 9 Oct r 1807

    Lords Delegates

    After Ch. │ │ Advantages

    But here by the supposition what authority the cognizance of the Petition belonged /belongs/ to, is already by the supposition, fore-determined and foreknown: so that of all this formality /solemnity/ the use of it had any, would have been to pick mens pockets, first and for that purpose, imposing upon their understandings.

    Lord Hale was in truth one of the best, if not the very best, of lawyers: But his Lordship was a lawyer, and as such, enamoured of formalities particularly /in?/ of useless ones, and not averse to fees.
  • 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."