date

10 Oct r 1807 Lords Delegates
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.
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  • Title: [10 Oct r 1807 Lords Delegates]
    Description: 10 Oct r 1807

    Lords Delegates

    after Ch. │ │ advantages

    Ch. │ │ L d Hale's Plan

    Who the physicians are, on whom and whom alone, the confidence of their learned Brother has fixt itself is no secret. For here again he comes back to /repeats/ and grounds every thing upon the mistaken conception taken up in Reason the 2 d. The Judges are to be "not only assistants to advise but Commissioners to assent or disassent, as they are (continued [...?]) by the Statute of Ed.3.c.5. But this conception is in the very teeth of the express /particular/ words as well of the whole context and letter of the Statute. The Lords in question are to act indeed by good advice par bon avis i.e. with the benefit of consideration had of what occurs to themselves viz. the very Judges by whom the delay was created (unless it means that the Lords Commissioners are to take their own advice for the grammatical structure of the nature admitts of either interpretation) par bon avis the [...?] measures[?], and if the Judges &c and such others of the King's Council as they the Lords may think /see/ occasion to consider[?] /hear/ with heure[?] et heux[?] come its[?] verraint[?] ye bizroiyables[?] serroint[?]: but it is to the Lords alone that the Commission is to be granted, for it is not till they have received their commission that any thing is to be done. There it is that those Commissioners having first by election made of them by the House become /been rendered/ Committee-men are to do abundance of things before any mention is made of the Judges - they are to receive the petition in which the delays made by any of the Judges are complained of: they are now to cause the records of the proceedings to be brought before them: and then it is that they are if they please to call before them the Judges by whom the delays were /had been/ respectively created, which on each occasion would be some four of the twelve Judges and on three occasions taken /added/ together would amount to all twelve. That[?] this is to be done by the noble Commissioners before they take advice of any /of the Judges or any other/ of the persons pointed out for them to advise with: and when these and other questions[?] at the choice[?] of the noble Commissioners are taken by them into consultation need assuredly no mention does the Act contain of any fresh[?] commissioners to be given to any part or person so called into consultation by the noble Commissioners.
  • Title: [10 Oct r 1807 Lords Delegates]
    Description: 10 Oct r 1807

    Lords Delegates

    after Ch. │ │ advantages

    Ch. │ │ L d Hale's Plan

    On the present occasion, the mention of this statute may serve more purposes than one -

    1. It may serve to shew how compleat a misrepresentation may be given of a law, by a lawyer-Judge, though one of the least dishonest of lawyers, and the most reasonable of Judges, the law being an article not of imaginary but of real law: that law lying before him, and he in the cool of his closet reading it, and not, being by any fee, lured to misrepresent it.

    2. At the same time that it shews how compleatly unsuitable the "method" proposed by the learned Judge is to the "method chalked out by parliament in the statute referred to, to impress the belief of its being "suitable", it shews how near the now proposed method which it is the object of those pages to recommend happens to be the method really chalked out by that antient statute.

    I say happens. For though, under the erroneous conception formed of it by the reasonable Judge the argument drawn from this source is placed by him at the head of his eight reasons, having the precedence near[?] the first that gives any the slightest glance towards the principle of utility and the ends of justice, it is in those pages /in its relation to the present plan, the coincidence/ is pointed out as matter of curiosity, and nothing more. Since the passing of this statute about 330 years had elapsed, at the time when in the eyes of the venerable Judge, it presented in the form in which it had presented itself to his conception, the very best or at least second best argument he could find in favour of the plan proposed by him for /in supreme[?]/ appellate judicatory: 447 years have elapsed, the constitution in the meantime fixed, and by being fixed, changed in the interval between that same statute and the present time. Had this antiquated statute been as repugnant, as it happens to prove accordant with the plan here submitted, neither that plan not have undergone the smallest /slightest/ change, nor the author's conceptions in regard to the utility of it would have undergone the smallest changes.
  • Title: [15 Oct r 1807 Lords Delegates]
    Description: 15 Oct r 1807

    Lords Delegates

    After Ch.│ │ Advantages

    Hales Plan

    14 E.3.C.5 Delinquent Judges

    In this same statute, and indeed in this same machine, may be seen the first parliamentary notion taken of the principle of nullification

    ║ one of the most efficient of the may engines invented by the Genius of the Technical System, the dæmon of iniquity, and which to this day is in perfect order, and in full work.

    It is by means /the help/ of these engines added to so may others lodged in the same repository, that in a countless multitude of cases /cases to a vast and unmeasurable extent/, no sooner does a man feel the ermine[?] on his back, than he finds himself invested with power compleatly arbitrary, to be exercised without any other expense than that of a cloak of hypocrisy to cover it.

    (To return to the Statute)

    This sense of wickedness being brought to the view of the legislature /towards parliament/ - what did they? Turn out the wicked Judges, and consign them to one of those parts[?] to which they had consigned so many honest men? Alas no! the Realm of this wickedness was in one of those spots which are too high ever to be reached by punishment /to be within the reach of punishment/. The Judges were to do so no more: the process /instrument/ in which the pretended error had been found was not to be annulled: the error was to be amended, oh yes! - " hâtivement"[?] in a trice: the other party was to derive no advantage from it: - all this was commanded, nothing of it done.

    Such was the statute /provision/ which Lord Hale, had he looked at the other, would not have failed to see, and which could he have borne to look at it, would have contributed to some line from the error of supposing that a set of Judges, whose practices even then standing in full view of Parliament, were put by that same Parliament into the same commission with those their noble superior by whom their enormities were to be repressed, put into it for the purpose of enabling them to outvote the real commissioner and render the commission negative.

    ║ ibid.