date

12 Oct r 1807 Lords Delegates
12 Oct r 1807

Lords Delegates

After Ch. ││ Hale's Plan

Ch. ││ Hale's Objections

As to the case of a supreme judicatory /judicial power/, independent of the supreme legislative and by a system of unconfirmable decisions, capable of frustrating its laws, doubtless /no doubt but/, supposing it /that, supposing the capacity running into not/ realized, it is an inconsistent state of things. Under every government, the will of the supreme legislative power, is the actual, and assumed proper, standard of rectitude. The use and the only use /The express and indubitable duty/ of the supreme judicial power - of the judicial power in all its branches is to maintain the conduct of all men /the whole community/, in their character of subjects a constant conformity to this standard.

In a pure monarchy it would be a solecism /a plain inconsistency/, if the supreme legislative power being in the hands of the monarch, the supreme judicial were not there likewise /in the same hands/: a solecism, and /but/ one which in such[?] a state of things is but little in danger of being realized. Suppose under a monarch a judicial power ultimately independent of his will, there the case is that this the impure legislature is not in him alone, but in a certain manner shared between him and the possessor or possessors of the judicial.

In France the Parliaments also claimed[?], though unofficially a sort of supreme judicial power independent of the King to whom they did contest the supreme legislature, not only [...?], but by the power of substituting representations to registration, not only claimed, but exercised /for a time exercised/, though with the rod all the while over their heads, a negative upon his laws.
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  • Title: [12 Oct r 1807 Lords Delegates]
    Description: 12 Oct r 1807

    Lords Delegates

    After Ch. ││ Hale's Plan

    Ch. ││ Hale's objections

    Under the mixt constitution of the British Isles this identity this compleat junction between the supreme legislative power and the supreme judicial, is not practicable. With difficulty the united /co-ordinate/ authorities find time for legislature: for judicature they could find none without abandonment of that duty which to judicature is in importance as infinity to one.

    The expedient which the three united authorities have found themselves reduced to by necessity; is the confiding to one of them /abandoning this charge/: that one is the House of Lords, [...?] the inconsistent and anomalous but happily not widely-extending exceptions formed by the Ecclesiastical Courts, the Admiralty Courts, and the Colonial Courts, to the House of Lords and to that authority alone belongs the charge and care of securing in the divisions on the part of the several judicatories an undeviating conformity to the will, declared and presumed, statutory and jurisprudential, of that supreme legislature, in which of itself it proposes but a third share.

     proceed to show the reasonableness of the expectation of fidelity on the part of the Lords then go on as per next page.
  • Title: [12 Oct r 1807 Lords Delegates]
    Description: 12 Oct r 1807

    Lords Delegates

    After Ch. ││ Hale's Plan

    Ch. ││ Hale's objections

    8. the Lords could never stir a step, but under the eye of an apparently co-ordinate or inferior, but with the power of the purse in their hands and the power of the people at their back, in effect superior power, elbowing them under the same roof, and while this treatise of the venerable author was writing /penning/ already in open conflict with them.

    The Judges, look where they could, saw /could behold/ no rivals; except the King, no superiors; in the muck out of which they had risen, none but obsequious instruments /no adverse watchmen/, aspiring junior partners, indefatigable panegyrists and adorers.

    9. Distinct in some measure[?] /sort/ from the argument of /grounded on/ utility or inconvenience, though of no proper weight but in so far as reducible to it, is the argument from supposed inconsistency and self-repugnance. "Inconsistent" (says he) would be the state of things, which, dividing the supreme legislative power among three authorities, should give the supreme judicature to one of them alone: + inconsistent therefore the state of things which, dividing the supreme legislative power among King, Lords, and Commons, should give the supreme judicative power exclusively to the Lords. But, by ridding the government /constitution/ of this inconsistency, (and, comparatively speaking, we have seen how innocent a one) how much inconsistency would he upon the whole rid it of? - Not an atom. For, supposing the supreme judicature not to belong to the Lords, we have seen what becomes of it. It rests with the King himself, exercised without any responsibilities on his part, legal in as much as moral; perfect or so much as imperfect: exercised by those his instruments created, removable and removable again, by him (for so they were then) at pleasure.

    + p. 207
  • 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