date

10 Oct r 1807 Lords Delegates
10 Oct r 1807

Lords Delegates

after Ch. │ │ advantages

Ch. │ │ L d Hales Plan

2. as to the composition of the Court. On L d Hales plan the Judges eight of them not[] all of them to have voices i.e. votes, and all his care to prevent those eight voices from being drowned in "too excessive a number" of Lords' voices. On the plan of Edward the third's Parliament no Judge is to have a voice. The Judges indeed of both Benches are to be taken into consultation by the committee along with the Chancellor, Treasurer and such others of the King's Council as they shall choose to hear; but it is by the Committee alone that every thing is to be done.

The confidence of the learned Judge was in his learned brethren Edward the 3, a vigourous King then in the vigour of his age, Edward the third and his Parliament had no such confidence. They were (all) merciless fee-gatherers: manufacturers of delay for sale. for the delay, to which it was the object of this law to provide a remedy, were recognised as being their work. They were all faithless to both King and people: for though, as is observed there was not one of them that at his entrance into office had not taken his oath of fidelity to both yet such was their propensity to forget /disregard/ it, that one of the things which the Committee was to do, was to administer it to them anew. In the statute they are called servants /called Members/ les Ministres: but who are these unfaithful servants? Treasurer and Privy Seal excepted, they are all Judges, and they are all the Judges: all the Lawyer-Judges, all to a man, by whatsoever names denominated.
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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. 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.
  • 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.