date

11 Oct r 1807 Lords Delegates
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.
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  • Title: [11 Oct r 1807 Lords Delegates]
    Description: 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
  • Title: [11 Oct r 1807 Lords Delegates]
    Description: 11 Oct r 1807

    Lords Delegates

    Ch. │ │ Hale's Objection

    Had it lain within the reach of fraud and usurpation to establish a /an adequate/ system of taxation in pretence of judicature, the business would long ago have been effected, and by hands much better adapted to /qualified for/ the purpose, in point of sinister interest, and thence in point of astutia[?], than any that could ever be found at that time, and before the theatre of honour was deluged by upstart lawyers, be found in the House of Lords. In /During/ so many centuries /ages/ of supineness on the part of their superiors the Judges /Lawyer-Judges/ of Westminster Hall /and in possession of the undisturbed faculty of making whatsoever law it was possible to make in pretence of judicature/ neither[?] then had nor have since been able to make any greater advances in the plan /scheme/ of establishing a system of taxation for their own benefit any greater advances /progress/ than what has been made /consists/ by the taxes imposed on conveyances by and to the use of the Judges of the Common Pleas, and the taxes imposed on suitors by the Judges of all the Courts under the name of fees. +

    For an example of what may be done indirectly in the way of legislation, by the exercise of judicial power, the field here chosen /taken/ by the learned Judge is the field of statutory law. In the field of jurisprudential law he might have found a soil much more fertile: and to shew the mischiefs /mischief/ that with the power of judicature in their hands might be done by all that was noble in the kingdom, he needed no more than /but/ to have brought to view the mischief actually done with the same instrument in their hands by a few vocal lawyers, seated on three or four benches.

    Happily for his argument, the case of statutory law being /so/ by its simplicity and apprehensibility, so much better adapted to the purpose of illustration, saved him from the necessity of /so [...?] a necessity as that of/ presenting the eye of the reader to the seat of everlasting confusion and imposition.

    + Change the order of the sentence.
  • Title: [11 Oct r 1807 Lords Delegates]
    Description: 11 Oct r 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch. │ │ Hale's Plan

    2. The other is that Parliament, thus occupied in judicature, would have no time for legislation. Thereupon, (one) of two things one: either his plan would destroy the government, or government would destroy his plan. The choice resting with government itself, the aspect under which the danger will be apt to present itself is not a very formidable one. But before he could have said that no mischief would have ensued from his plan /Court/, it would have been necessary for him to admitt two things: that his plan /Court/ would have been destroyed by government, and that it was from the persuasion[?] /[...?]/ entertained by government of the destruction to which the plan would have subjected it, that the plan would accordingly have been destroyed by it.