093-483.xml

Title: [9 Oct r 1807 Lords Delegates]

Description: 9 Oct r 1807

Lords Delegates

Ch. │ │ After Ch. Advantage

Ch. │ │ Hale's Plan

Art. 5. ( Commissionated under the great seal) Of this proposition the object will to a lawyer be as obvious, as to a non-lawyer even after he has read his Blackstone, it may chance to be mysterious. For throughout the religion /philosophy/ of the law there [...?] is an exoteric and there is an esoteric doctrine, of which the former is faithfully delivered /revealed/ by Blackstone, and the latter commonly as faithfully concealed.

In the present instance the use /object/ looked to from the work /motion/ proposed to be given to the great seal is given in plan [...?] by Hale himself. It is - to "preserve the King's right as the fountain of jurisdiction: and lest the business should be done "by a kind of primitive superintendent inherent[?] jurisdiction in the Lords' House: which same (addition) may possibly think savours too much of an aristocracy, giving an appeal from the King to the Lords by an inherent[?] right of a dernier[?] resort," + (continues he) "seems not agreable to the constitution of the English government."

If the persons to /on/ whom on this occasion the powers of judicature were meant to be conferred, had been all of them persons predetermined without the King, as is the case even now with the Members of the House of Lords sitting in their judicial capacity under a commission regularly granted by the Crown the touch of the great seal would not have gone far /done any great matter/ towards the preservation of the Kings right. But though in the former passage it was not said /where[?] selection was spoken of/ by whom it was to be made, the person evidently intended was the King, and accordingly in the 3 rd of the 8 numbered articles annext in the character of reasons to this plan in the character of reasons the observation is made, that the "reversal of judgments in the Lord's House was as hath says he been at large shown, antiently[?] by a select number of Lords thereunto appointed by the King, and no Bill or Writ of Error in parliament, without a previous petition to the King, and a bill signed for its allowance.

+p. 202,203

093-501.xml

Title: [11 Oct r 1807 Lords Delegates]

Description: 11 Oct r 1807

Lords Delegates

after Ch. │ │ Advantages

Ch. │ │ L d Hale's Plan

Another /A/ curious enough circumstance is that against this plan of the learned and venerable Judge, there stands /militates/ an objection brought forward by himself, and which, where it applies in fact /point/ is given by him /himself/ as peremptory and unanswerable.

Not only the supreme legislative power, says he, but the supreme judicial power likewise, is according to a multitude of antient precedents, vested in the hands of the whole Parliament. If then, continues he, you allow /them says he/ a judicial power an appeal to the House of Lords, at any rate you can not disallow the already established and still superior judicial power, on appeal, to the whole Parliament. But after an decree pronounce by the House of Lords, such further appeal to the whole Parliament would by the intervention of the (appeal made to and) decree antecedently pronounced by the House of Lords have been rendered nugatory. For says he, by the whole Parliament nothing can ever be done that has not received the assent of the House of Lords: and can there be any rational ground says he for expecting the assent of the House of Lords to an Act of Parliament having no other object than the removal of their own decree? No, says he, "any such appeal to the high Court of Parliament consisting of King Lords and Commons ... must necessarily be fruitless; because the Lords who as part of the Parliament must have voice in that appeal, are already prejudicated by their own judgment, and anticipated by it."

093-514.xml

Title: [11 Oct r 1807 Lords Delegates]

Description: 11 Oct r 1807

Lords Delegates

After Ch. │ │ Advantages

Ch. │ │ L d Hale's Plan

By the same circumstance we are led to two other lamentable /outrageous/ defects in the plan of the learned and venerable, and even on this occasion indubitably well-meaning Judge. They stand not indeed upon the face of it: but they are not the less irremovably /incurably/ inherent in it.

According to time[?], as we have seen, the constitution goes to wreck and ruin: unless whatsoever other appeals there be, there be one in "dernier resort, to the true supreme Court, the high Court of Parliament, consisting of Kings, Lords and Commons."

But in the belly of this one preposition, and without a speculum ventres[?], may be seen two mischiefs the least of which might of itself be sufficient to oppose to his plan a peremptory negative.

1. One is that this erects an additional stage of appeal: whence it follows that his proposed Court of Appeal, not being competent to put an end to the cause, is useless: and being a mere manufactury of delay, vexation and expence, is by so much worse than useless. Here then (to use his own words) is "it may be a long and expensive suit for the obtaining of a decree or judgment, (and possibly all the substance of a man's self and his family or some purchaser for valuable consideration are laid upon it)" made by so "much the longer and more expensive." By the consideration of this effect, though he would not deny the existence of it his affections, it could not be expected, should be proportionably moved: for the persons produced by it would be his learned and revered brethren sitting with at least as much " regularity" as well as handsome decorum and dignity as in either of the Exchequer Chambers, in either of which does either the delay or the expence or both together appear to have given birth to any troublesome emotions in his learned breast: when by the contemplation of those evils any of the unpleasant symptoms were produced, it was when the whole course of delay and expence represented itself to his fancy as receiving its termination in a Court the population of which was in the greatest part composed of noble indeed as also of right reverend but not the less unlearned Judges.