date

15 Oct r 1807 Lords Delegates
15 Oct r 1807

Lords Delegates

After Ch. │ │ Advantages

Ch. │ │ Hale's Plan

In the first of these three following /consecutive/ pages he had already given us another per saltum case. Judgment being given the Common law side of the Court of the Chancery, error lies in the King's Bench, and therefore (concludes he) a writ of error lies not in the Lord's House in Parliament for them it would proceed per saltum. Whether it was that the learned Judge did not very well know what he was writing, or whether it was that a temptation presented itself for stealing in the appearance of an argument in favour of the main position, one sees how much broader the consequent conclusion is than the antecedent: therefore a writ of error lies not in that case in the Lords House till after a judgment has been given in the Kings Bench, and then the appeal must be from the judgment in the King's Bench. This is the conclusion that would have been consistent with reason, and with the authority which in this book written for the purpose of contesting it, he is continually proving /shewing/ was for ages after ages exercised without dispute by the House of Lords: this would have been consistent with the more accurate /compleat and thence more correct/ statement given by them as abovementioned, in the next page but one.

To have done with per saltum - In /To/ the eye of an English learned Judge - of a fee-gathering Judge - of the Chief Justice of the King's Bench - though that justice were a Lord Hale, we have /it has been/ some how impossible it is that any such dancing should have been agreable. To the eye of the legislator how would it have shewn? - if a legislator placing before him the welfare of the community, to the ends of justice the prompt and undeviating fulfilment of the declared will of the legislator? So far from condemning this step, he would have allowed no other. The ultimately appellate judicatory that that branch of the legislature which the whole body, not having time for judicature, has rendered the depository of its will, let this alternately[?] appellate (he would say) be the only appellate judicatory: it is thus that conformity to the assumed standard of rectitude the will of supreme powers[?] is most assuredly and constantly provided for: and that with the least delay, vexation and expence.
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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

    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 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: [15 Oct. 1807 After Ch. │ │ advantages]
    Description: 15 Oct. 1807

    After Ch. │ │ advantages

    Ch. │ │ Hale's Plan

    Per Saltum

    after this, look for confessions[?] in L d Hale.

    The observation /remark/ has been made, that no sooner was the practice out, than he grew ashamed of it.

    Well might be for it is in the teeth of another position of his own, and for which he quotes authorities upon authorities, and which in its nature was calculated to possess no inconsiderable share in his favour, a position advanced but the page next preceding, and repeated the page next following.

    This is, that in the climax /a ladder/ of appeal, men are not, ought not to be (with him and his lawyers/ it is the same thing) suffered to proceed " per saltum": to step over any of the rounds. The position is intelligible enough: and the reason is not less so: so many rounds skipped over, so many packets of fees lost.

    Judgment being given before Justices of Assize, Justices of Oyer and Terminer, Justices in Eyre, or Justices of the Common Pleas, "no writ of error (says he) lies[?] immediately from there into Parliament, till the judgment so affirmed or reversed in the King's Bench; and then upon that judgment so affirmed or reversed, a writ of error lies[?] in Parliament: for adds he the writ of error must not be brought in parliament per saltum but after it hath passed the ordinary way and method of examination in the King's Bench: and accordingly (concludes he) it has been ruled in Parliament: and for this two authorities are quoted from the Parliament Rolls. - he, no: let us have none of your per saltums: we don't like such dancing: that would be dancing us out of our fees.