date

11 Oct r 1807 Lords Delegates
11 Oct r 1807

Lords Delegates

After Ch. │ │ Hale's Plan

Ch. │ │ Hale's Objection

In this argument the consequent, it will easily be observed, has considerably outstretched the antecedent: of this the learned Judge /author/ was himself sensible: for no sooner has it escaped him, than the inaccuracy /extravagance/ of it striking /extravasation striking/ his eye he sets himself to correct it: "or at least" says he "that power lodged in the King and both Houses were insignificant."

The correction /limitation/ was altogether necessary: a power of repeal, and that in general no otherwise than at the expence of a palpable /manifest/ act of falshood and usurpation - a [...?] power of repeal, under favour of which a power of adulteration, convertible in some cases then into a sort of virtual power of enactment, falls a good way short of a direct power of repeal and enactment combined. Take, for instance at once the most important branch of legislative power, that which acts /has acted/ as a root to every other. By proposed misconstruction it might be in the power of the Lords, in judging /sitting in judgment on the import/ of a revenue-act - it might be in their power, at the expence of their reputation, to defeat the purpose of that act, and so /thus/ render a tax unproductive. But with the most absolute power of judicature, and that exercised with the most corrupt intentions possible, it would never in any such way be in their power to impose a new tax. In what preexisting document, whether of statute law or even of jurisprudential law, with the end of all the frauds which are of the opinion[?] of that sham law, would a House of Lords have found pretences corresponding to the several regulations of detail that were found necessary for the collecting of the Income Tax?
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  • Title: [11 Oct r 1807 Lords Delegates]
    Description: 11 Oct r 1807

    Lords Delegates

    After Ch.│ │ Hale's Plan

    Ch.│ │ Hale's Objections

    Reasons grounded in the principle of utility; that is in the consideration of the welfare of the whole community are learned down /occupy as of course/ the part of least distinction in a lawyer's mind. It is not till[?] after the delineation given as above of his plan for a tribunal of appeal to serve instead of the House of Lords, that it occurs to his learned Lordship to state, what the mischief is, by the danger of which the demand for any such or other succedaneum is produced. (When stated it is presented /introduced/ in the form of an answer to objections advanced (" extravagant" he hears them) advanced in support of the jurisdiction of the Lords.)

    This mischief is indeed of the most serious complexion: and though his apprehensions of the danger have been most compleatly disproved by the event, yet the objective argument grounded on it was such as /that/ /to which/ without the Gift of prophecy it would have been difficult /was scarcely within the reach of human sagacity/ without the gift of prophecy to remove.

    The substance of the argument being in substance sound and rational, but while the wording is diffuse[?] and desultory +, it will be shorter to give the substance of it than the words. Whoever says he has /possesses/ the supreme judicial power, possesses in effect the supreme legislature: allow the supreme judicial power to be in the Lords, then the aggregate of the power of the state is not divided between the King, the Lords and the Commons, but belongs, that is can at the pleasure of the Lords be made to belong, exclusively to the Lords: though /hitherto in its exercise /in action// at present a limited Monarchy, it may in potentiâ[?], and at the pleasure of the Lords /it may/ be converted into a pure aristocracy.

    "For" (says he) "what if the Lords will give judgment against an Act of Parliament or declare it null and void?" It is on this consideration that he grounds his position - I speak of the position advanced by him in the first instance - viz. that "if the supreme jurisdiction without appeal the dernier resort, were to the House of Lords, then is "the legislative power virtually and consequentially there also."

    +pp. 206, 207, 208
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    In conclusion, my Lord, I am inclined to think Your Lordship will find the

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    enactment of a positive imperative law, as well as to the repeal of a

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    3. That, in another instance, he has assumed at any

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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

    Another /A/ curious enough circumstance is that against this plan of the learned and venerable Judge, there stands /militates/ an objection brought forward by himself, and which, where it applies in fact /point/ is given by him /himself/ as peremptory and unanswerable.

    Not only the supreme legislative power, says he, but the supreme judicial power likewise, is according to a multitude of antient precedents, vested in the hands of the whole Parliament. If then, continues he, you allow /them says he/ a judicial power an appeal to the House of Lords, at any rate you can not disallow the already established and still superior judicial power, on appeal, to the whole Parliament. But after an decree pronounce by the House of Lords, such further appeal to the whole Parliament would by the intervention of the (appeal made to and) decree antecedently pronounced by the House of Lords have been rendered nugatory. For says he, by the whole Parliament nothing can ever be done that has not received the assent of the House of Lords: and can there be any rational ground says he for expecting the assent of the House of Lords to an Act of Parliament having no other object than the removal of their own decree? No, says he, "any such appeal to the high Court of Parliament consisting of King Lords and Commons ... must necessarily be fruitless; because the Lords who as part of the Parliament must have voice in that appeal, are already prejudicated by their own judgment, and anticipated by it."