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