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.