093-487.xml

Title: [10 Oct r 1807 Lords Delegates]

Description: 10 Oct r 1807

Lords Delegates

after Ch. │ │ advantages

Ch. │ │ L d Hales Plan

But though so plainly true, or rather because so plainly true, an answer to this effect would never have been endurable /endured/. Not by the people: because the reminding them of their helplessness would be threatening them with the continuance of it. Not by the King: because of such a threat if made, exasperation on the part of the people, and thence fear and uneasiness on the part of the King under the apprehension of the consequence /effects/ /result/ of such exasperation would have been the obvious consequence.

Reason 2. ( may easily observe) That statute has been read by me not without attention, and no sufficient ground for acceding to that observation has been found. 1. In regard to choice the method proposed by Lord Hale is that the Lords who are to sit as Judges of Appeal should be chosen all of them by the King. The method chalked out in that statute is that they be chosen, all of them (5 in number) by the Lords House: I say the Lords House: for they are to be [...?]: and the election is to be performed in Parliament: for forasmuch as difficulties that arise in too great force to be removed at the time are to be cleared away [...?] [...?] next Parliament the time of their sitting is to be out of Parliament: in which case had they been to be nominated by the King, the nomination might just as well have been performed out of Parliament. They were, it is true[?] to receive "commission and power" from the King, out of Parliament, and at a time when perhaps there might never be another, the King's Judges who were to be called before the Committee of Lords would not have come: but that such his commission he stands engaged to give to the Lords' Committee, and the use of this Statute was to bind him to it.

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?

093-488.xml

Title: [10 Oct r 1807 Lords Delegates]

Description: 10 Oct r 1807

Lords Delegates

after Ch. │ │ advantages

Ch. │ │ L d Hales Plan

2. as to the composition of the Court. On L d Hales plan the Judges eight of them not[] all of them to have voices i.e. votes, and all his care to prevent those eight voices from being drowned in "too excessive a number" of Lords' voices. On the plan of Edward the third's Parliament no Judge is to have a voice. The Judges indeed of both Benches are to be taken into consultation by the committee along with the Chancellor, Treasurer and such others of the King's Council as they shall choose to hear; but it is by the Committee alone that every thing is to be done.

The confidence of the learned Judge was in his learned brethren Edward the 3, a vigourous King then in the vigour of his age, Edward the third and his Parliament had no such confidence. They were (all) merciless fee-gatherers: manufacturers of delay for sale. for the delay, to which it was the object of this law to provide a remedy, were recognised as being their work. They were all faithless to both King and people: for though, as is observed there was not one of them that at his entrance into office had not taken his oath of fidelity to both yet such was their propensity to forget /disregard/ it, that one of the things which the Committee was to do, was to administer it to them anew. In the statute they are called servants /called Members/ les Ministres: but who are these unfaithful servants? Treasurer and Privy Seal excepted, they are all Judges, and they are all the Judges: all the Lawyer-Judges, all to a man, by whatsoever names denominated.