date

12 Oct r 1807 Lords Delegates
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.
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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

    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: [15 Oct r 1807 Lords Delegates]
    Description: 15 Oct r 1807

    Lords Delegates

    After Ch. │ │ Advantages

    Ch. │ │ Hale's Plan

    In the first of these three following /consecutive/ pages he had already given us another per saltum case. Judgment being given the Common law side of the Court of the Chancery, error lies in the King's Bench, and therefore (concludes he) a writ of error lies not in the Lord's House in Parliament for them it would proceed per saltum. Whether it was that the learned Judge did not very well know what he was writing, or whether it was that a temptation presented itself for stealing in the appearance of an argument in favour of the main position, one sees how much broader the consequent conclusion is than the antecedent: therefore a writ of error lies not in that case in the Lords House till after a judgment has been given in the Kings Bench, and then the appeal must be from the judgment in the King's Bench. This is the conclusion that would have been consistent with reason, and with the authority which in this book written for the purpose of contesting it, he is continually proving /shewing/ was for ages after ages exercised without dispute by the House of Lords: this would have been consistent with the more accurate /compleat and thence more correct/ statement given by them as abovementioned, in the next page but one.

    To have done with per saltum - In /To/ the eye of an English learned Judge - of a fee-gathering Judge - of the Chief Justice of the King's Bench - though that justice were a Lord Hale, we have /it has been/ some how impossible it is that any such dancing should have been agreable. To the eye of the legislator how would it have shewn? - if a legislator placing before him the welfare of the community, to the ends of justice the prompt and undeviating fulfilment of the declared will of the legislator? So far from condemning this step, he would have allowed no other. The ultimately appellate judicatory that that branch of the legislature which the whole body, not having time for judicature, has rendered the depository of its will, let this alternately[?] appellate (he would say) be the only appellate judicatory: it is thus that conformity to the assumed standard of rectitude the will of supreme powers[?] is most assuredly and constantly provided for: and that with the least delay, vexation and expence.
  • Title: [12 Oct r 1807 Lords Delegates]
    Description: 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.