date

10 Oct r 1807 Lords Delegates
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.
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  • Title: [11 Oct r 1807 Lords Delegates]
    Description: 11 Oct r 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch. │ │ L d Hale's Plan

    (commission: his proposed commission comprized of the 12 Judges with the exception "in question, and a select number of the most judicious Lords, not being too excessive"). Now in this case who are the Judges on whom it would fall to be omitted? not the eight Judges of the Exchequer Chamber - (the Judges, by whom the judgment, the reversal of which is new prayed for by the Writ of error, was pronounced on) for then /in that case/ there would be no Judges at all to put into it: the Judges, if any who on this occasion are omitted must be the same Judges as in the composition of the Exchequer Chamber were omitted, viz. the Judges of the King's Bench for the reversal of whose judgment the Writ of Error was presented to the Exchequer Chamber. Here then is his Court of dernier resort composed, and we see how: if judicious lords /Lord-Judges/ of whose number care is to be taken that it do not exceed, or if I understand his meaning right, that it fall short of, the number of the learned lawyer-Judges, and his eight lawyer-Judges, all of them, by his own shewing /every man of them, in his own opinion/, altogether unfit for the purpose. Here then is his "last appeal, his dernier resort" made according to his plan /by his contrivance/, in a mode in which it "must necessarily be fruitless": "because the" Judges "who as part of the" Court "must have voice in that appeal, are already prejudicated by their own judgment and anticipated by it."

    This same objection, should in his mind have been an /is in its nature/ equally peremptory /an almost equally formidable/ one to the construction put by him on the old statute abovementioned. For in speaking of the Judges whose advice or say opinion the Lord Commissioners are to hear, no distinction is made between the Judges of the particular Court where delays whether from differences of opinion or other "causes" are supposed, on the individual occasion in question to have become the subject of the complaint, and the others whose conduct is not comprized in it. To be heard? yes:- it is what even[?] a charge avowedly criminal[?] a defendant is as fully entitled, as on any occasion a Judge can be. But even on the occasion of a charge thus gentle[?] and oblique, is it supposable that a Parliament in the very act of reform would have seated defendants amongst Judges?
  • 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.
  • Title: [10 Oct r 1807 Lords Delegates]
    Description: 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.