date

11 Oct r 1807 Lords Delegates
11 Oct r 1807

Lords Delegates

After Ch. │ │ Advantages

Ch. │ │ Hale's Plan

In the back part of the head, and not /never/ in the front, are stationed /seated/ the eyes of lawyers. To settle with himself what it was fit to be done in 1675, and so on in 1775, and so on in 1875, nothing more was necessary, in the conception of the good Lord Hale than to see what had been donein 1275, or 1375 /1340/, or 1475. Overflowing with that sort of learning, of which parchment source /is the source/, he had found precedent after precedent, in which /according/ in regular and solemn stile; the sovereign, and else[?] the Lords House, and else[?] the Commons, and all on occasion of the same cause, and for the pronunciation of the same decision in that same cause, sat for the purpose of judicature. But, forasmuch as so it had been done, therefore for ever and for ever /everlasting/ so it ought to be done, and of course would be done.

As to the mischiefs inconveniences or any /and every/ thing of this sort or kind either they were not worth a thought or the thought, if it would intrude itself /force itself in/ could not be /either be received too late, or/ dispatched too soon: in a list of reasons eight in number, the 4 th place was (quite) high enough, and the slightest allusion[?] that could be made notice enough. Camilla could not run faster or lighter over a field of corn than a Littleton[?] or a Lord Coke[?] or a Lord Hale does over the topic of inconvenience.

What on this occasion did not occur it should seem to his learned Lordship, impossible as it was that it should not have occurred on other occasions, is that these three estates as some would call them though according to Lord Hale inproperly[?] +, made it in those days, or at least in many of those days, but one judicatory. In Parliament, the Commons, with or without /any such place as/ a House over their heads /to hold them/ was not known but in the character of Petitioners[?]: In the House of Lords, the House which howsoever it may be now, was not regularly put /placed/ there for nothing, and frequently if not constantly to have the King to fill it. Whatsoever therefore was the business, legislature or judicature
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  • Title: [9 Oct r[?] 1807 Lords Delegates]
    Description: 9 Oct r[?] 1807

    Lords Delegates

    After Ch. Advantages

    Ch. L d Hales Plan

    Observations on L d Hale's plan for a supreme appellate judiciary in lieu of that of the House of Lords.

    Among the manuscripts of Lord Hale was found a /were found some/ treatise /papers/ on the judicial function as exercised in Parliament. In 1796 the public became indebted for the publication of them to M r Hargrave, with a preface by way of introduction, historical and critical, still more valuable /of still greater virtue/, especially at this time of day, than the work /principal/ itself.

    At the time when these papers of Lord Hale were written, the appellate jurisdiction of the House was hotly /altogether/ disputed by the House of Commons. Lord Hale's decision concludes against it; and, pronouncing it unconstitutional and untenable, he proposes a judicatory to serve in lieu of it.

    Till the above /foregoing/ plan had been drawn up and compleated, the author was not apprised of the existence of any plan on the subject from Lord Hale. Lord Hale's plan has now /since/ been examined, nothing is found that at this time of day affords any considerable objection, nothing but what may be made to afford /affords/ either confirmation or illustration, to the plan which owing its birth to the present time, was /had been/ adapted to the existing state of things.
  • Title: [11 Oct r 1807 Lords Delegates]
    Description: 11 Oct r 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch. │ │ Hale's Plan

    -cature - two businesses the distinction of /between/ which had little if any place in men's thoughts, one chamber served at the same time for all of it: if judicature was the business though three estates the King being one, or according to Lord Hale three estates with the King over and above as well as over them, yet there were not three judicatories but one judicatory.

    In the most active by far of the two Houses, the judicial business, being comparatively of no importance, would of course be shuffled over and got rid of any how, with very little expence of time. But his supposition which is /being/ the supposition which for the present purpose /purpose of this argument/ must be adopted, assumes the contrary - assumes that each cause will in the Commons as well as the Lords, occupy whatsoever quantity of time is necessary for the giving to each cause /appeal/ a decision sufficiently considered and established /placed/ upon proper grounds. But whatsoever time is thus given to judicature must be taken from legislation. For in[?] even[?] in his day legislation there is scarce ever time enough, for never does a session end, but some part of the legislative business is put off for want of time. From an allowance already but too scanty, the effect then of his plan is to produce a defalcation, and that to an amount altogether indefinite and naturally upon the encrease. It is in his situation that we must place ourselves to Judge of the wisdom of his views. But in all the experience he had ever had, the only real object which the King he ever had in getting together a Parliament was to get money. Till the money was got the Parliament was a nuisance, and as soon as it was got, an intolerable one. Taxation excepted, and whatever other business were necessary to the getting for him the money in legislation, whatever else was done in legislation was done only because he could not help it: it was from this allotment of time which was always as insufficient to the purpose as the King as the King could continue to make it, that the venerable Judge, with his plan of primitive /of government, after the antique/ government, was for drawing for whatsoever might come to be necessary for ultimately appellate judicature.
  • Title: [9 Oct r 1807 Lords Delegates]
    Description: 9 Oct r 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch. │ │ L d Hale's Plan

    At the time when this was written, there prevailed, as may be seen in M r. Hargrave's Preface, a violent suspicion and dread of the power and designs this aristocracy (exercise of aristocratic power) and assuredly not without (ample) cause. For, as hath been seen, not content with appelate jurisdiction, the House of Lords had possessed itself of immediate jurisdiction, of which to any purpose but that of occasional pillage and oppression, an assembly which like Homer's God Rivers and /with their/ River Gods, were sometimes in existence, sometimes not, and never sure to be, and when it existed could not find time but for a small part of the business of that kind that would be presented to it, was essentially unsusceptible.

    But as to the appellate jurisdiction for a century or more, as hath been seen the Lords House have remained in quiet and undisturbed possession of it, and notwithstanding all the imperfection attached, as hath been shewn, all the time to that judicatory, no such inconvenience as that of injustice for the prevalence of aristocratical designs and principles[?] has been experienced.

    Not but that Lord Hale was abundantly justified in his apprehension of it. But it lay not in him to foresee any such increase of general [...?] and general intelligence, as that which has raised the /given to the Lower/ House of Commons so decided an ascendancy over the Upper House as to render any thing of /take every idea of unjust/ encroachment out of the range of hope and thence of inclination on the one part, as well as of fear /apprehension/ on the other. In the blind exercise of a blind deaf and dumb negative, through /under he influence of/ a mixture of ignorance indolence ignorance and corruption, his the only jus nocradi[?], remaining to the House of Lords /and alas it is but too sufficient!/.

     Add here or further on Hales remedy was out of the frying pan into the fire from the independent Lord to the King[?] his dependent Judge. No danger but that in Lords Elections [...?] will have sufficient influence.