date

12 Oct r 1807 Lords Delegates
12 Oct r 1807

Lords Delegates

After Ch. ││ Hale's Plan

Ch. ││ Hale's objections

5. Towards the effecting /establishment/ of any such usurpation no considerable advance could be made by individual decisions; unaccompanied by any of those general propositions, of which the matter of law, whether in the form of statutory law or jurisprudential, real law or factitious, must be composed.

Supposing /Yet,/ /But,/ the conquest projected, these individual decisions were all that the House of Lords could have to make it with. No general body of doctrine had never been, or, under the eye of the other House was at all likely to be, framed for their use, adapted to this their supposed intended purpose. The Lord had no institutional writers among them, no Reporters.

The King, and his instruments the Judges, had their prerogative lawyers: for in those days what lawyer was there that was not a prerogative lawyer? Zealots for /idolaters of/ the prerogative, in fighting up with indefatigable zeal and industry, the two inseparable blessings, King's power, and Judges profit. A Lords-privilege lawyer was a sort of animal that had never been monster exemplified. In Prynne[?] indeed, the ever changing ever-voluminous, and ever violent Prynne[?] they had found indeed a hot defender of this power, so far as concerned right of possession, but not any instructor /instruction/ for this abuse, or for any use, of it.

6. The Lords, a comparatively numerous and scattered, and, in respect of the distinction between Temporal and Spiritual, a naturally divided body, as well as in respect of hereditary dignity and opulence an indolent one - had no such necessary occasions and opportunities for apocuilation[?] and concert not to say cabal, as the 12 Judges. No common cant or slang, serving alike for a bond of fraternity, and an instrument of depredation. No common Inn to dine at: No common Hall, with a central fire in it to dance around. to hear and give lectures in: - to confer degrees: to concert measures in, against the common prey and the common enemy.
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  • Title: [10 Oct r 1807 Lords Delegates]
    Description: 10 Oct r 1807

    Lords Delegates

    after Ch. │ │ advantages

    Ch. │ │ L d Hale's Plan

    i.e. because the King is the person from whom the appeal is made, therefore also the King is the person to whom it is right and proper it should be made.

    Turn to pp. 207, 208, and you will find that the arrangement there spoken of - viz. that if an appeal first to the Lords House, and from there to the whole parliament, (an arrangement which according to his own information was at one time in use, +) was a bad arrangement:- Why? - "because the Lords who as part of the Parliament must have voice in that appeal are already prejudiced by their own judgment and anticipated by it." Good in the case of the Lords, how comes it to be bad /otherwise/ in the case of the King? Answer in the lawyer's stile - because in the single person of the King are constantly found united more goodness as well as wisdom than in all the members of the House of Lords put together.

    Be it never out of mind, that in Hale's time /when this was written/ and in all times antecedent to the Revolution, the Common Law Judges were not only as now appointed by the King but removeable by him at pleasure as the Chancellor is now /still/: and that therefore the decision that was always the King's wish in name was so in reality as often as he pleased. And this is the arrangement which Lord Hale though in his own conduct honest and upright towards the King was then fighting up against the Lords.

    2. (Superintendent inherent jurisdiction) As to the word inherent it is an article /among the instruments/ of lawyers' jargon, covering /employed to cover/ a petitio principii, and to exhibit the shew[?] of an argument where in reality there is none. If prerogative be inherent, why not privilege? Not but that to this there was an answer, at that time of day and that but too good an one. The King is inherent in the constitution: for no time has there been in which there has not been a King. The Lords House is not inherent in the constitution: for taken together, longer much longer has been the time when there has been no Lords House than when there has been one: and as one ended, at no time could any man be sure that there would ever have been another. Never, had the King been rich enough.
  • 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?
  • Title: [12 Oct r 1807 Lords Delegates]
    Description: 12 Oct r 1807

    Lords Delegates

    After Ch.│ │ Hale's Plan

    Ch.│ │ Hale's Objections

    2. Except what was given them by /they might have derived from/ that appetite for power which is common to all men, especially men in office, the Lords had no sinister interest to serve by the abuse /ill use/ of this ultimately appellate judicature. By them jurisdiction never had been, never could be looked to, as a source of mere pecuniary inducement /lucre/.

    The Judges had this sinister interest to serve, and were in the habit of being governed by it. In their eyes judicature had no other use than the abuse of it. Multiplying occasions for receiving fees, and to that purpose giving the utmost possible encrease to the evils of uncertainty, complication[?], delay complication and expence, were the objects to which all their learning and all their ingenuity /industry and exertions/ had, with unrelenting constancy been /all along been/ directed. + To them jurisdiction was a source of profit /inducement/, and almost the only one they had. With the privity of the venerable Judge, and not altogether without his participation, while his pen was running on it had been /at that very time/ the subject and the object of a scramble among themselves: - a battle royal, in which the weapons on both /all/ sides, offensive as well as defensive, were composed of lies.

    Even to this day, and notwithstanding the confirmation of that appellate judicatory of the Lords, which prevents theirs from being ultimately appellate, their intermediately appellate judicature, that judicature which the venerable Judge was thus anxious to exempt from all controul - even from that so unhappily insufficient controul - continues to be what, even in his time, it was in the nature of it to be, an open shop /a market overt/ and manufactory of delay, in which the commodity is sold, together with the faculties of depredation oppression and extortion attached to it, + sold in pieces[?] of a year's length, at so many pounds per piece, for the account /by and for the benefit/ of the makers.

    + Scotch Reform. Lett. I. V.

    + Lett. V.