date

15 Oct. 1807 After Ch. │ │ dvantages
15 Oct. 1807

After Ch. │ │ dvantages

Ch. │ │ Hale's Plan p.125

To a more extensive purpose than that of the particular point in question, this point may, if the reader be at once honest and intelligent, not undeserving of his notice: for it is after this fashion, and of such materials, that from beginning to end, if chaos had both or either the jurisprudential alias Common Law, is composed. On the present occasion a story is trumped up, or in plain English, a plump lie, known to be so /for what it is/ by him who utters it. A question was /Questions/ put to the man, here are two Courts of appeal, you may make your appeal to which you please: but observe this that whichever you make it to, you can not afterwards make it to the other. Answer by the man: very well. I consent not to make it to parliament, I make it to the Exchequer Chamber.

Now if any such notice had been given to the man (which to the knowledge of the venerable crime[?] of the lie there had not) then there would have been no lie: nothing worse than usurpation, and contempt of parliament. For who are you, Lord Chief Justice as you are, that have any right to shrut against any man the door of parliament? to assume that right, and upon the strength of it make terms with the man, and force him to give up his right of recourse to parliament /hope of justice at the hands of parliament/? You do not pretend to shut /Your pretensions extend not to the shutting/ the door of parliament against him, in the case of his knocking at that door in the first instance: then what power over that door is it that has been given you by the circumstance of his addressing himself to the Exchequer Chamber in the first instance? By the Statute of the 27 Elizabeth by which the Exchequer Chamber is created - by that Statute it is said that in the class of cases there described appeal application may be made to that Court by any one that will; but does parliament say that after having appealed /made application/ to that Court, a man shall not be admitted to make application to Parliament? - Not it indeed: this is not so much as pretended.
Similar Items
  • Title: [15 Oct. 1807 after Ch. │ │ advantages]
    Description: 15 Oct. 1807

    after Ch. │ │ advantages

    Ch. │ │ Hale's Plan p.125

    What is curious is that here or on another occasion +, no sooner has the venerable Judge come out with his proposition, than perceiving it to be untenable he gives /becomes/ ashamed of it, and explains it away. "If he once[?] (says he) makes his election to bring it into the Exchequer Chamber, it seems he has concluded himself, and shall not waive it and bring a writ of error in parliament, but at best, if he do it, it shall be no supersideas[?]. By this time he had not improbably recollected some case or cases in which a man having brought a Writ of Error from the King's Bench into the Exchequer Chamber, and from the Exchequer Chamber into parliament, parliament had entertained.

    Parliament thus maintaining or not maintaining its authority what was next to be done? To find the answer to this question, observe what at bottom was the English of no supersideas[?]. If you being party bring in that case your writ of Error before Parliament, and Parliament entertains it, I who am not Parliament, can not help it. But though I am not Parliament yet so it is I happen to be Lord Chief Justice of the King's Bench. Being such Lord Chief Justice, if you presume to make any such appeal from any learned Brethren, what I can do to punish and plague for it, that I will do. For notwithstanding the application you will have made to Parliament, the course I take shall be such, as I should have taken had no such application had been made: my judgment being for the plaintiff, and having been affirmed by my learned brethren and adorers /worshippers/, execution shall be taken out accordingly, Plaintiff whom he has thus got the [...?] in his hands, hides it or sends it off, or goes off with it or finds it: - this done, go to Parliament and see what Parliament will do for you.

    This is what the venerable Judge being Chief Justice of the King's Bench was prepared to say to any one who would read him: was prepared, to say to any one who would read him: was prepared to say and would have said, had not death closed his career: for the treatise he says himself (Hargrave cc │ │) though not revered was perfected. Here we see the sheepskin without: but it has the claw of the tiger under it.
  • 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

    Ch. │ │ Hale's Plan

    The catalogue of learned inconsistencies is not yet at an end; (nor would be although a volume were consumed upon them, a volume many times larger than the text.

    It is between the two above mentioned per saltum cases that he brings to view the case of where the judgment a man would appeal from is a judgment in the Court of Exchequer. In this case "it seems" (says he +) that notwithstanding the statute of "Edward the 3 d (31 E.3.c.12.) that gives power to the Lord Chancellor and Treasurer to examine and reform errors in judgment in scaccario[?], a writ of error may lie in parliament, (as well as in the instance above given touching the King's Bench.)" If the praise of consistency can not be here bestowed (on the venerable Judge,) the praise of candour can not, for the moment at least, be refused. For "Quar[?] tumun[?] (he adds) "for" (says he) I have not known[?] it done.

    Would you have the source of so apparently inconsistent a facility? Look to the head, that in this case would be overleaped or not overleaped, and you will hardly be much /not be greatly/ at a loss. They were the heads of the Lord Chancellor and the Lord Treasurer of the cause (a): for to these some how or other, as if in distrust of other heads, the appellate jurisdiction had been given by the still better experienced Parliament of Edward the third: to these arithmetically-learned heads, not to any of the law-learned ones.

    +p.126)

    (a)  The supposition was at first that it was the Chancellor of the Exchequer: but this is perhaps disproved by the Statute of Elizabeth 31 El.c.1. in which the chancellor in question is in the preamble stiled Lord Chancellor: if so, the subsequent epithet[?] arithmetically-learned will not apply to both