date

10 Oct r 1807 Lords Delegates
10 Oct r 1807

Lords Delegates

after Ch. │ │ advantages

Ch. │ │ L d Hale's Plan

Art. 5 ( handsome decorum and dignity) To an unprejudiced eye this reason has /wears/ a good deal of the air[?] of a make-weight: let any one that can find /assign/ a meaning for it. What then was the case that in those days the House of Lords did not know how to preserve a handsome decorum and dignity of themselves? but required some of them to be commissioned by the Crown for this purpose /to receive a commission from the Crown to teach it to them/, and all of them to be outnumbered by a pack of upstart hirelings? If such were the case then let us /that here[?] now/ comfort ourselves with the reflection that such is not the case now. For if so it were that the House of Lords did not understand decorum and dignity, what is it that they would understand? and if ever by a hairs breadth or so, it happens that in that most honourable House the laws of decorum are transgressed, by whom are they transgressed? /is it that the /they most/ transgression is committed/? that the transgression is apt to be broadest? by the unlearned Lords, or by the learned ones whom in the eyes of these[?] their venerable brethren it is so necessary to station there in superior numbers, to serve as instructors and guardians to their noble but unlearned colleagues?
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  • Title: [13 Oct r 1807 Lords Delegates]
    Description: 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
  • 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.
  • Title: [15 Oct. 1807 Lords Delegates]
    Description: 15 Oct. 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch.│ │ Hale's Plan p.125

    What is above, was written before the unlearned annotators perseverance had in a regular course of reading, carried him on to Chapt. XXI. p.125.

    The case of a Writ of Error from the King's Bench into the Exchequer Chamber, and from thence into the House of Lords is there expressly taken into contemplation. The ultimately appellate jurisdiction of the Lords House being contested altogether and that not merely on the ground of expediency but on the ground of actual law (not that in the eye of a lawyer in general or of Lord Hale in particular there is ever any steady line of distinction between the two parts but either they are the same point[?] or each according to the exigence of the argument serves for the proof of the other) the Lords House judicatory being from whose Court soever appealed from a bad judicatory, bad consequently, and indeed worst of all if appealed to from (the best /but one[?]/ of all judicatories, viz.) the judicatory comprized of 8 out the 12 learned Judges, the best of all, except that which is enriched with the power as well as wisdom of all 12.

    If having a judgment against him in the King's Bench, a man wishes to take his chance in another Court, then in a certain description of cases his Writ of Error has[?] from thence into the Exchequer Chamber, composed as above. In this same class of cases, Lord Hale admitts that the man may "bring it in parliament if he please. From the 4 learned Judges of the King's Bench to so many unlearned ones in parliament is bad enough, but from the 8 learned Judges in the Exchequer Chamber to the same unlearned ones is intolerable. A tier[?] must be set up, and it is thus. Bringing the writ of error into the Exchequer Chamber the man has made his election, i.e. whether he will ever bring it into the ultimately appellate judicatory or no: he has elected not to bring it into the Lord's House, and therefore he shan't - Why? - because he shan't.