093-503.xml

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?

093-525.xml

Title: [11 Oct r 1807 Lords Delegates]

Description: 11 Oct r 1807

Lords Delegates

After Ch.│ │ Hale's Plan

Ch.│ │ Hale's Objection

Here however, and without it being necessary for him any more than prudent and consistent to travel any further, here was at any rate a manifest and apparently formidable danger attached to /mischief liable to result from/ the ultimately appellate jurisdiction of /of possessed by/ the House of Lords. Almost a century and a half has elapsed, and not a particle of the mischief which to his eyes appeared so formidable, has ever taken place.

From this experience however, so great have been the intervening changes - changes which at the time of day it lay not in human sagacity to foresee - no just conclusion can be drawn in[?] the prejudice of the evidence /justness/ of his views /fears/. To judge of /From a just judgment on/ the soundness of his /this/ argument we must once more put ourselves in his place.

Immediate jurisdiction as well as ultimately appellate were at the time at /in/ which he wrote, both of them excused as well as claimed by the House of Lords. So different from each other were the two species of jurisdiction - so different as well in respect of present /immediate/ effects as in respect of future /distant/ danger that on this occasion his first operation should have been the pointing out the distinctions and drawing a clear and strong line accordingly. This /But this is what/ he has not done. True it is that in speaking of the danger the appellate jurisdiction is the only one of the two he touches upon. But of the other which was equally claimed and exercised, he says nothing: and yet it was beyond comparison more formidable. To the ultimately appellate judicatory of the House of Lords no other causes could be brought /presented/, than the comparatively few that had then already travelled through the antecedent stage or stages: to the immediate judicatory as many causes might be brought except in so far as prevented by expence as were it not for this all-terminating as well as all-accepting judicatory would have gone except in so far as prevented by expence to all the other inferior Courts put together.

093-502.xml

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."