date

17 Feb y 1808 on L d Eldon's Bill
17 Feb y 1808

on L d Eldon's Bill

Letter VI

Omissa & Facienda

I. [...?] or [...?] of [...?]. Parliamentary Regulations reflecting the Judicial Establishment.

1. Sections 1, 2, 3. The whole Court of Session to be to most purposes broken /separated/ into two " Divisions": in Division the first, the Lord President and some other Judges: in Division the 2 d, the Lord Justice Clerk, and the six remaining Judges: in each division an equal number of Lords of Justiciary, [...?] the Lord Justice-Clerk for one.

In section 2 d, respecting precedence, a provision /[...?]/ which, not comprehending it clearly, especially when compared with subsequent sections, I dare not take upon me[?] a report.

2. Section 6 gives /for him to take a [...?]/ except his [...?] gives to each of those divisions, the Duties, Powers and Functions as are now exercised by /in/ the whole.

3. Sect. 7. undertakes to give to each Division its [...?] number: but notwithstanding the success obtained on other occasions, finding on this occasion the subject beset /infected/ with doubts and difficulties, instead of a number given as [...?]. Not having any thing rational to adduce in the character of a reason, should it happen to his observations to

Unprovided with that cloak which ordinary prudence presents to incapacity, should it happen to him to have let drop from that commanding station the effusions of ignorance or imbecillity, the damage will not be great: for lest now and then it should happen to incapacity to have let drop that necessary cloak, care has been taken, care as effectual as it has been anxious, that reasons. good or bad, flowing from that high source, shall not, by publication, be rendered risible[?] to unlearned eyes.
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    The part which stands first is that which occupies itself in the establishment of regulations outright: regulations to take effect immediately by authority of Parliament.

    But observing that the effect of it is liable to be modified, and the design in an word[?] counteracted, by the regulations which the Court of Session are [...?] to make, I shall take the liberty of so far changing the order of the matters as to take first into consideration the part which occupies itself in buying[?] a foundation as above for regulations to be framed in future.

    The whole number of Judges, at present 15 to be divided into two sections eight in one, seven in the other: in the eight-seated section the Lord President of the whole Court to preside; in the seven-seated, the Lord Justice Clerk: each section to contain an equal number of the Judges of the Court of Justitiary, reckoning the Lord Justice Clerk as two. This forms the principal matter of the [...?] first section of the Bill. Section 6 th gives to each of those two sections, except as excepted the powers, duties and functions of the whole: section 7 th undertakes to appoint for each section a quorum number, two finding the task not quite so easy perhaps as at first [...?],
  • Title: [27 Oct 1807 L d Eldon's Bill]
    Description: 27 Oct 1807

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    First[?]or L d President

    Provided nevertheless

    (4) (First of the said divisions ... the division in which the Lord President ... presides) both descriptions designed to designate the same division - another instance of flowry inconsistency - [...?] diversification - in an Act of Parliament. See '.│ │. Suppose the Lord President absent, the election over, and the successful candidate either presiding in the division in his Lordship's stead or sitting at the head of it, as per '.2: in that case shall the cause in question belong to that division, the Lord President not presiding in it, as required by this 12 th section. Laur[?] ceo[?]. Such is one of the consequences of such flowers.

    (5) (Provided nevertheless &c) In a Bill brought in to the House of Lords, a proviso inserted, a long and formal proviso to enact that in a particular instance, in a field of jurisdiction incontestably belonging to them /that branch of the legislature/ without dispute, Orders given by the House in the exercise of their /such/ jurisdiction shall be obeyed! What? is it only in a particular case that obedience is to be paid a judicial Order of the House of Lords? in a particular case only, and when it is the pleasure of the learned draughtsman to allow of such obedience? But to that branch of the legislature it belongs to say what sort of reception ought to be /shall be/ given to such a clause.

    In the instance of the Quorum sections '.6 and 7. we saw an extremely simple business split between two sections and after all left unfinished. In the present section we see two businesses as wide of each other as possible, crowded /forced together/ into one. Section the [...?] th had for its subject, remitts /the case of causes remitted/ from Division to Division of the Court of Session. Section 10 th, the case of an interchange of opinions as between Division and Division of /in/ the same Court /in the instance of each other/. When remitts were on the carpet, remitts as between the one and the other of the two co-ordinate courts, then /there/ one should have thought would have been the place to go on and speak of remitts made to either of them from the common superordinate the House of Lords.

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    In '.12 in which the topic of remitts and the topic of interchange of opinions, are both of them introduced, mention being in both instances made of the authority of the House of Lords, here as between those two topics a principle of connexion exists /does exist/: but then these two clauses which in this way have a connection are both of them stuck on to the tail of another clause relative to the distribution of causes as between division and division, a clause having nothing to do with the judicature of the House of Lords.
  • Title: [25 Oct r 1807 L d Eldon's Bill]
    Description: 25 Oct r 1807

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    '.8.

    Senior Judge

    (│ │) (The Judge presiding in, or in his absence the senior Judge of, the other division)

    In '.2 when the phrase "shall sit at the head of each[?] division was under /among the/ consideration, inconveniences resulting from that rhetorical flourish put instead of shall preside, - its tendency to breed confusion and perplexity was observed. In the present section may be seen a proof. Had the word presiding been there employed, whatsoever were the divisions the absence of a Judge presiding in it was a case that could not here have been to be provided for, being a case that could never[?] happen. To the permanent President absence might happen: but if as often as it happened to the permanent President to be absent a temporary President was to be present, one of the other Judges taking on him /himself/ the character of presiding Judge: the case of the absence of a presiding Judge was a case which could never have place.

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