date

13 Oct r 1807 Lords Delegates
13 Oct r 1807

Lords Delegates

After Ch. │ │ Advantages

Ch. │ │ L d Hale's Plan

which by means of this his plan, the venerable Judge is bent upon the prevention of /so determined to prevent/. But how prevent it? but how? - One means there is and but one: viz. by so ordering matters, that the number /multitude/ of unlearned and thence "not so competent" Judges, shall in such sort and degree be kept from being " too excessive," as to be always outnumbered by the /exceeded by the number of/ learned ones.

In Lord Hale's time sollicitations, as he himself tells /informs/ us, + were in practice in the House of Lords. At that same time the King, as we learn from other sources, ║ was /used to be/ of the number of the sollicitations. Here would have been an article to have placed in the list, if not at the head of the list, of the " mischiefs and inconveniences", to which, and by the bare mention of those words, he was contented /he deemed it sufficient/ to allude. Why not /For what/ reason not put it there? For decorum? - for prudence? - not so since in the same work he has brought it /stated it/ to view without disguise.

A capital objection to that judicatory in its present form it can not be decried[?] to be, and as such has been already noticed. But Lord Hale? did it lie in his mouth to urge it in that character? was it in the power of his plan to be served by it? The King's influence might in this way have been exhausted (on behalf of the defendant in Error suppose the gainer by the judgment below) and in that judicatory not improbably was every now and then exhausted, and his point not gained. But in Lord Hales judicatory how would it have been? To gain his point without more ado, the King had nothing to do but /more to do than/ to do nothing. The trouble of sollicitation with the shame /odium/ of the attempt, and the modification attached to a fruitless one, would have been saved to him altogether.

+ Hale p.204

║ Burnet /[...?]/ in Barrington's Observat s. on the Statutes p.23
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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: [11 Oct r 1807 Lords Delegates]
    Description: 11 Oct r 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch. │ │ Hale's Plan

    In the back part of the head, and not /never/ in the front, are stationed /seated/ the eyes of lawyers. To settle with himself what it was fit to be done in 1675, and so on in 1775, and so on in 1875, nothing more was necessary, in the conception of the good Lord Hale than to see what had been donein 1275, or 1375 /1340/, or 1475. Overflowing with that sort of learning, of which parchment source /is the source/, he had found precedent after precedent, in which /according/ in regular and solemn stile; the sovereign, and else[?] the Lords House, and else[?] the Commons, and all on occasion of the same cause, and for the pronunciation of the same decision in that same cause, sat for the purpose of judicature. But, forasmuch as so it had been done, therefore for ever and for ever /everlasting/ so it ought to be done, and of course would be done.

    As to the mischiefs inconveniences or any /and every/ thing of this sort or kind either they were not worth a thought or the thought, if it would intrude itself /force itself in/ could not be /either be received too late, or/ dispatched too soon: in a list of reasons eight in number, the 4 th place was (quite) high enough, and the slightest allusion[?] that could be made notice enough. Camilla could not run faster or lighter over a field of corn than a Littleton[?] or a Lord Coke[?] or a Lord Hale does over the topic of inconvenience.

    What on this occasion did not occur it should seem to his learned Lordship, impossible as it was that it should not have occurred on other occasions, is that these three estates as some would call them though according to Lord Hale inproperly[?] +, made it in those days, or at least in many of those days, but one judicatory. In Parliament, the Commons, with or without /any such place as/ a House over their heads /to hold them/ was not known but in the character of Petitioners[?]: In the House of Lords, the House which howsoever it may be now, was not regularly put /placed/ there for nothing, and frequently if not constantly to have the King to fill it. Whatsoever therefore was the business, legislature or judicature
  • Title: [10 Oct r 1807 Lords Delegates]
    Description: 10 Oct r 1807

    Lords Delegates

    after Ch. │ │ advantages

    Ch. │ │ L d Hale's Plan

    i.e. because the King is the person from whom the appeal is made, therefore also the King is the person to whom it is right and proper it should be made.

    Turn to pp. 207, 208, and you will find that the arrangement there spoken of - viz. that if an appeal first to the Lords House, and from there to the whole parliament, (an arrangement which according to his own information was at one time in use, +) was a bad arrangement:- Why? - "because the Lords who as part of the Parliament must have voice in that appeal are already prejudiced by their own judgment and anticipated by it." Good in the case of the Lords, how comes it to be bad /otherwise/ in the case of the King? Answer in the lawyer's stile - because in the single person of the King are constantly found united more goodness as well as wisdom than in all the members of the House of Lords put together.

    Be it never out of mind, that in Hale's time /when this was written/ and in all times antecedent to the Revolution, the Common Law Judges were not only as now appointed by the King but removeable by him at pleasure as the Chancellor is now /still/: and that therefore the decision that was always the King's wish in name was so in reality as often as he pleased. And this is the arrangement which Lord Hale though in his own conduct honest and upright towards the King was then fighting up against the Lords.

    2. (Superintendent inherent jurisdiction) As to the word inherent it is an article /among the instruments/ of lawyers' jargon, covering /employed to cover/ a petitio principii, and to exhibit the shew[?] of an argument where in reality there is none. If prerogative be inherent, why not privilege? Not but that to this there was an answer, at that time of day and that but too good an one. The King is inherent in the constitution: for no time has there been in which there has not been a King. The Lords House is not inherent in the constitution: for taken together, longer much longer has been the time when there has been no Lords House than when there has been one: and as one ended, at no time could any man be sure that there would ever have been another. Never, had the King been rich enough.