date

[...?] Feb y 1808 on L d Eldon's Bill
[...?] Feb y 1808

on L d Eldon's Bill

Letter VI

Omissa & Facienda

II. No Inner House[?] Causes[?]

By the last consideration the word[?] is led to

II. [...?] the 2 d. No Inner House Causes.

The consideration which in the character of reasons /a reason/ call for the establishment of this rule, have already /has just/ been brought to view in support of the preceding rule.

In the practice of the Court of Session /in most/ causes have in this point of view /to this purpose/ been distributed into two classes. Class the first - Outer Houses - causes which must in the first instance be presented to a Lord Ordinary sitting in the Outer House or Bill Chamber:[...?] the 2 d Inner House causes: causes which can not in the first instance be presented to a Lord Ordinary, but must be presented in the first instance to the whole Lords sitting in the Inner House. Outer House causes are those which taken in the aggregate cover by far the greater part of the whole extent of the field of judicature: taken in it whole extent Outer House causes form /[...?]/ the class of which the matter /subject/ of the general rule. Inner House causes constitute /stand but as/ so many exceptions to that rule.

By what principle, if by any, has the practice been governed /guided/ in the determination /selection/ of these exceptions? Not improbably /Probably enough/, not by any: like the rest of the system, by fraud and accident, combined in indiscernible proportions. But if by any, by the principle abovementioned, viz. the notion of superior /extraordinary/ difficulty or importance.
Similar Items
  • Title: [28 Oct r 1807 L d Eldon's Bill]
    Description: 28 Oct r 1807

    L d Eldon's Bill

    (│ │) (which have not been reviewed by the ... Division) more concisely and as effectually in the Lord President's 2 d Bill - "nor shall any appeal be allowed from interlocutors as decrees of an Ordinary, which have not been reviewed in the Inner House."

    That any such appeal per saltum[?], as Lord Hale aptly calls it, +jurisdiction of the Lord's House, [...?], should ever have been allowed, seems indeed a most palpable incongruity: but as to the remedy, this assuredly, is no proper plan for it. In the House of Lords the oversight originated: to the House of Lords, if such be the pleasure of the House, to the House, by an /a standing/ Order of its own, its belongs to repair the oversight. This much as to the point of right: and in /as/ regards to practicability, if the House consents to do it by an Act, admitting into a participation of the power the two other branches of the legislature, can there be a doubt of its consenting to produce the same effect without need of any such surrender of existing privilege?

    In speaking of the sort of leap in question in the character of incongruity, I speak merely in the way of relation, relation being had to the existing order of things. Abstraction made of that consideration, in my own view of Scottish judicature the Inner House is a nuisance, the judicatory of the Ordinaries the only judicatory that ought to be perceived /consequently/ the appeal consequently ought to come from them immediately to the House of Lords in every case. +

    Supposing the appellant assured that the judgment of the Ordinary /Outer House/ would be applied[?] in the Inner House, one sees what a saving in the articles of delay and expence it could not but be - and thence what a relief upon the whole, to fly at once into the bosom of the House of Lords: and perhaps in that seat of supreme judicature, a too extensive attention to the relief thus afforded in this or that individual instance, may have been the cause that gave birth to the incongruous general rule.

    +See Lett. i. p.│ │. See Letter v. p.│ │.
  • Title: [[094-160v] 22 Jan y 1808 Transpose]
    Description: [094-160v]

    22 Jan y 1808

    Transpose[?]

    1 [...?] contents[?]

    III Contents of Part III [...?]

    Powers to [...?]

    II. Contents or Topics of Part II. Powers for subordinate legislation, enquiry and Initiation.

    I. Sections 5,4,11 in part, and 9, are the sections occupied in giving powers ofr subordinate legislation to the Court of Session, exercisible by its present Quorum of 9, the Court sitting all together, in its undivided state.

    1. In Section 5 are contained four distinguishable parts /clauses/ In[?] clause 1[?] gives them power/ is given/ to regulate the mode in which the "[...?] of ordinances" shall be performed. 2. In clause 2 power to determine "what number of Judges shall operate either separately or together in the Outer House or Bill Chamber: 3. In clause 3, power is proved "if it shall seem expedient...that some of the said Ordinary Judges shall constantly or usually perform the duties of Ordinances in the Outer House or Bill Chamber":... others ... constantly or usually officials in the Inner House: 4 clause in part 4 th. power to determine the "Rotation" in which in the Outer House and Bill Chamber these Ordinances shall officiate.

    5. In Section 4 th power is given to regulate the days of sitting in the [...?] sections of the Court.

    6. In Section 11 th, power is given to regulate concerning the "forms of proceeding and process and in particular the mode of conducting the pleading, as well in the Outer as of the Inner House, and whether carried on by writing or viva voce. /single-seated judicatores of the Ordinaries as in the many-seated judicatores/

    7. In Section 9 th power is given to regulate concerning the remittal[?] of causes from one division to another, on the ground of a connection between cause and cause.
  • Title: [27 Jan y 1808 on L d Eldons Bill]
    Description: 27 Jan y 1808

    on L d Eldons Bill

    II Appeals

    1. Execution not publication

    I come now to that part of the Bill which appears to include in the /its/ design the reducing the amount /draught/ of the draughts made by Appeals from Scotland upon the time of the House of Lords: including therefore, if the design be compleated, the abolition of the existing arrear, and the prevention of such arrears in future.

    1. Execution below not to be stopped by appeal above - 2. power below to make arrangements relative to the possession of the subject matter pending the Appeal power to the House of Lords for allowing interest for the time during which the party intitled is kept out of possession by the Appeal 3. general power for enabling the House of Lords to reach "the justice of the case" in respect of such "which[?] possession, execution: and...costs" 4. prohibition of appeal to the House of Lords from the Outer House of Session directly /per [...?], that is/ without force carrying the cause through the Inner House - 5. prohibition of appeals from Interlocutary decrees unless when an appeal from the final decree is presented. 6. provisions on these several heads constitutes the matter of the 13th, 14th, 15th and 16th sections.

    This part of the plan agrees in the main /adopts in the main/ with the suggestions contained in the paper intitled a Memorial presented by the Lord President and ten other of the Judges of the Court of Session to the House of Lords, and afterwards in two successive periods /each time/ in the form of a Bill. Coinciding in a considerable degree with the views which the same part of this subject had presented to my own conception, so far of course it commands my approbation: but that approbation can not be bestowed but subject to considerable exceptions /observations/ which proceed[?] state.