date

9 Oct r 1807 Lords Delegates
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.
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  • Title: [9 Oct r[?] 1807 Lords Delegates]
    Description: 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.
  • Title: [9 June 1807 C1 Letter V]
    Description: 9 June 1807

    C1

    Letter V

    No Appeals

    II. Irrep. Injury

    II. Delay. - It is in the character of a source of delay - endless and irremedial delay - capable of having, to the prejudice of the plaintiff's side the effect of a final judgment on the main question the mischief threatened by the proposed arrangement seems most obvious and incontestable.

    In the case of the malâ fide defendant, the postponement or even the mere negation, (whether produced by or without interlocutors) of a final judgment in favour of the plaintiff to whom it is due may have the effect of a final judgment in favour of the other side. In the sense, in situation of defendant whatever a man has in his hands remains there, so long as nothing, by which it can be taken of out them is done. And, supposing unjust partiality on the part of the Judge, such partiality might in this way find its gratificaion without risk of legal, or perhaps even moral, censure.

    An interlocutor is pronounced, the only mischief of which, and perhaps the only end in view in it consists in delay. The prohibition of Appeals against Interlocutors, was it intended to operate as a remedy against delay? Here then as we have a remedy, consisting in the denial of all remedy.

    But, delay, while it lasts, is denial of justice: and, forasmuch as the duration of the delay, thus producible without remedy is without limit, so is the denial of justice.

    Will it be said that appeal against delay from the Court of Session to the House of Lords is appeal from the frying-pan to the fire! Whatsoever it may be at present, it is not proposed even by Your Lordship's learned Reformer, that the fire of the Lords should for ever be an everlasting one. But such might be the case with the torment if the frying pan in the Court of Session were the proposed arrangement to take place.
  • Title: [10 Oct r 1807 Lords Delegates]
    Description: 10 Oct r 1807

    Lords Delegates

    after Ch. │ │ advantages

    Ch. │ │ L d Hales Plan

    But though so plainly true, or rather because so plainly true, an answer to this effect would never have been endurable /endured/. Not by the people: because the reminding them of their helplessness would be threatening them with the continuance of it. Not by the King: because of such a threat if made, exasperation on the part of the people, and thence fear and uneasiness on the part of the King under the apprehension of the consequence /effects/ /result/ of such exasperation would have been the obvious consequence.

    Reason 2. ( may easily observe) That statute has been read by me not without attention, and no sufficient ground for acceding to that observation has been found. 1. In regard to choice the method proposed by Lord Hale is that the Lords who are to sit as Judges of Appeal should be chosen all of them by the King. The method chalked out in that statute is that they be chosen, all of them (5 in number) by the Lords House: I say the Lords House: for they are to be [...?]: and the election is to be performed in Parliament: for forasmuch as difficulties that arise in too great force to be removed at the time are to be cleared away [...?] [...?] next Parliament the time of their sitting is to be out of Parliament: in which case had they been to be nominated by the King, the nomination might just as well have been performed out of Parliament. They were, it is true[?] to receive "commission and power" from the King, out of Parliament, and at a time when perhaps there might never be another, the King's Judges who were to be called before the Committee of Lords would not have come: but that such his commission he stands engaged to give to the Lords' Committee, and the use of this Statute was to bind him to it.