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?