date

11 Oct r 1807 Lords Delegates
11 Oct r 1807

Lords Delegates

after Ch. │ │ Advantages

Ch. │ │ L d Hale's Plan

Another /A/ curious enough circumstance is that against this plan of the learned and venerable Judge, there stands /militates/ an objection brought forward by himself, and which, where it applies in fact /point/ is given by him /himself/ as peremptory and unanswerable.

Not only the supreme legislative power, says he, but the supreme judicial power likewise, is according to a multitude of antient precedents, vested in the hands of the whole Parliament. If then, continues he, you allow /them says he/ a judicial power an appeal to the House of Lords, at any rate you can not disallow the already established and still superior judicial power, on appeal, to the whole Parliament. But after an decree pronounce by the House of Lords, such further appeal to the whole Parliament would by the intervention of the (appeal made to and) decree antecedently pronounced by the House of Lords have been rendered nugatory. For says he, by the whole Parliament nothing can ever be done that has not received the assent of the House of Lords: and can there be any rational ground says he for expecting the assent of the House of Lords to an Act of Parliament having no other object than the removal of their own decree? No, says he, "any such appeal to the high Court of Parliament consisting of King Lords and Commons ... must necessarily be fruitless; because the Lords who as part of the Parliament must have voice in that appeal, are already prejudicated by their own judgment, and anticipated by it."
Similar Items
  • Title: [11 Oct r 1807 Lords Delegates]
    Description: 11 Oct r 1807

    Lords Delegates

    After Ch.│ │ Hale's Plan

    Ch.│ │ Hale's Objections

    Reasons grounded in the principle of utility; that is in the consideration of the welfare of the whole community are learned down /occupy as of course/ the part of least distinction in a lawyer's mind. It is not till[?] after the delineation given as above of his plan for a tribunal of appeal to serve instead of the House of Lords, that it occurs to his learned Lordship to state, what the mischief is, by the danger of which the demand for any such or other succedaneum is produced. (When stated it is presented /introduced/ in the form of an answer to objections advanced (" extravagant" he hears them) advanced in support of the jurisdiction of the Lords.)

    This mischief is indeed of the most serious complexion: and though his apprehensions of the danger have been most compleatly disproved by the event, yet the objective argument grounded on it was such as /that/ /to which/ without the Gift of prophecy it would have been difficult /was scarcely within the reach of human sagacity/ without the gift of prophecy to remove.

    The substance of the argument being in substance sound and rational, but while the wording is diffuse[?] and desultory +, it will be shorter to give the substance of it than the words. Whoever says he has /possesses/ the supreme judicial power, possesses in effect the supreme legislature: allow the supreme judicial power to be in the Lords, then the aggregate of the power of the state is not divided between the King, the Lords and the Commons, but belongs, that is can at the pleasure of the Lords be made to belong, exclusively to the Lords: though /hitherto in its exercise /in action// at present a limited Monarchy, it may in potentiâ[?], and at the pleasure of the Lords /it may/ be converted into a pure aristocracy.

    "For" (says he) "what if the Lords will give judgment against an Act of Parliament or declare it null and void?" It is on this consideration that he grounds his position - I speak of the position advanced by him in the first instance - viz. that "if the supreme jurisdiction without appeal the dernier resort, were to the House of Lords, then is "the legislative power virtually and consequentially there also."

    +pp. 206, 207, 208
  • 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: [12 Oct r 1807 Lords Delegates]
    Description: 12 Oct r 1807

    Lords Delegates

    After Ch. ││ Hale's Plan

    Ch. ││ Hale's objections

    8. the Lords could never stir a step, but under the eye of an apparently co-ordinate or inferior, but with the power of the purse in their hands and the power of the people at their back, in effect superior power, elbowing them under the same roof, and while this treatise of the venerable author was writing /penning/ already in open conflict with them.

    The Judges, look where they could, saw /could behold/ no rivals; except the King, no superiors; in the muck out of which they had risen, none but obsequious instruments /no adverse watchmen/, aspiring junior partners, indefatigable panegyrists and adorers.

    9. Distinct in some measure[?] /sort/ from the argument of /grounded on/ utility or inconvenience, though of no proper weight but in so far as reducible to it, is the argument from supposed inconsistency and self-repugnance. "Inconsistent" (says he) would be the state of things, which, dividing the supreme legislative power among three authorities, should give the supreme judicature to one of them alone: + inconsistent therefore the state of things which, dividing the supreme legislative power among King, Lords, and Commons, should give the supreme judicative power exclusively to the Lords. But, by ridding the government /constitution/ of this inconsistency, (and, comparatively speaking, we have seen how innocent a one) how much inconsistency would he upon the whole rid it of? - Not an atom. For, supposing the supreme judicature not to belong to the Lords, we have seen what becomes of it. It rests with the King himself, exercised without any responsibilities on his part, legal in as much as moral; perfect or so much as imperfect: exercised by those his instruments created, removable and removable again, by him (for so they were then) at pleasure.

    + p. 207