date

15 Oct. 1807 after Ch. │ │ advantages
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.
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  • 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.
  • Title: [11 Oct r 1807 Lords Delegates]
    Description: 11 Oct r 1807

    Lords Delegates

    after Ch. Advantages

    Ch. L d Hale's Plan

    Now then, to apply this position of his to his own plan. At the time when he was penning this treatise, and while /when/ the House of Lords were occupied in exercising and defending /supporting/ that appellate judicature, and the House of Commons in contesting and attacking it, had any Writs of Error been brought into the House of Lords from either of the two Exchequer Chambers? I speak of the Exchequer Chamber which then as now must occasionally have been sitting to determine on writs of Error brought to it out of the Kings Bench, and the other differently composed Court of the same name sitting to determine on writs of Error brought to it out of the Court of Exchequer.

    I content myself with putting the question, not being competent, nor very ambitious of being competent, to say yes or no to it: either will equally serve the purpose of this argument. If no /as yet no/ such Writ of Error had been brought to the House of Lords, they would not naturally have had long to wait for one: their competence to take cognizance of it was included in their claims, and the /their/ assumption if not affirmed by Lord Hales argument against those claims.

    Well then - a writ of Error is brought into one of these Exchequer Chambers for the reversal of a judgment pronounced in the King's Bench: the Judges of whom then Exchequer Chamber is now composed are the Judges of the Common Pleas and the Barons of the Exchequer. By the Exchequer-Chamber the judgment of the King's Bench is reversed or affirmed: thereupon for reversal of the judgment of the Exchequer Chamber a Writ of Error is brought into the House of lords. Hereupon, according to the plan of the venerable Judge, "the Judge of that Court, out of which the record is removed ..." they and they " only", are "to be omitted in that commission."
  • Title: [15 Oct. 1807 After Ch. │ │ dvantages]
    Description: 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.