date

25 Oct r 1807 L d Eldon's Bill
25 Oct r 1807

L d Eldon's Bill

'.8.

Senior Judge

So far so good. But the misfortune is, happy as the solution is, it can not have place in every case, and the case that does not admitt of it, is among the five or six modifications all equally possible, the most natural. Suppose that upon the absence of the regular President, the election under '.2 had turned out in favour of the Senior Judge, his brethren having agreed that no such affront should be put upon him as the learned penman had designed for him. Here then though under '.2 there is no Judge to preside in the Division, there is a Judge, viz. this Senior Judge to sit at the head of it. But now then, unfortunately comes the call, and out /off/ goes the Senior Judge upon his visit. But observe /what is/ the consequence? In the division which under '.8. that has parted with its senior Judge, after having by spontaneous absentation parted with its President, its sole possible as well as sole actual President - in this division there remains no Judge to preside in it, no Judge so much as to sit at the head of it. Now then what is to be done? Is the business of it to remain at a stand all the /the whole/ timethat the visit lasts - a time to which there are no definite limits? or under and by virtue of '.8. is a fresh election to take place?
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  • Title: [25 Oct r 1807 L d Eldon's Bill]
    Description: 25 Oct r 1807

    L d Eldon's Bill

    '.8.

    Senior Judge

    Because, upon and in consequence of the temporary absence of the regular President, the Election ordained in '.2 had taken place, and after the intrigues of the conclave had run their length, the absolute majority of the votes had been found conclusion to have ranged themselves in favour of a Judge other than the Senior Judge, say the Judge second in Seniority. This Judge second in Seniority, though he could not be admitted to preside in the division, there being no provision to the effect in '.2. or elsewhere, was however in terms of that same section admitted to sit at the head of it, whereupon in some way or other the business went on or did not go on according as it happened to the learned company to agree or disagree: and so it being at being the Judge next in Seniority that instead of presiding in /in lieu of a President/ the division sat /was sitting/ at the head of it, there was /the left[?]/ the senior Judge to who though Senior Judge in the Division neither presided in it nor sat at the head of it - there was he free and ready to obey the summons from the other Division, and pay the appointed visit to it.
  • Title: [25 Oct r 1807 L d Eldon's Bill]
    Description: 25 Oct r 1807

    L d Eldon's Bill

    '.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.

    Thus stands the case if to preside in a division and to sit at the head of it /one/ are precisely the same function. Give to the clause in '.2 that construction, there can never be a case in which the presiding Judge can be absent, never be a case in which in the words of '.8. the Senior Judge of the other Division can be to be called in.

    Give now to the clause of '.2. the other construction let presiding in the Division be one function, and sitting at the head of it another, in these terms and those above the clause in '.8 acquires a meaning. By the Judge presiding in the division is to be understood the permanent President, the President in titre, to whom it may happen to be absent /whose absence is one event capable of taking place/ without difficulty . He being absent, in[?] comes the clause in '.8. acquires a meaning and receives its execution and intended effect accordingly. The Senior Judge of this Division, obeys the call, and pays his visit to the other /gives to it from the other/: By /From/ this migration of the Senior Judge no interruption is given to the business of the Court that parts with him? Why no interruption? Because
  • Title: [25 Oct r 1807 L d Eldon's Bill]
    Description: 25 Oct r 1807

    L d Eldon's Bill

    '.8.

    Senior Judges

    Another incident, nor that altogether an improbable one. In this unfortunate division, which has no Judge either to preside in it, or to sit at the head of it, some how or other by agreement among the Judges, whether by a regular election as under '.2. or by acknowledgement of the Jure divino right of succession claimed by the next in seniority go on with the business of their office. But now in its turn the seeds of dissention spread themselves through the diminished /reduced/ population of this Division (i.e. Court) and a division /takes place/ with equal numbers on both sides takes place. What now is to be done? To terminate the division the same process that was carried on /took place/ before requires to be repeated, though in the contrary direction. A cross-call requires now to be made. Shall it be obeyed or not /be obeyed/? If obeyed to whom shall it be made and by whom shall it be obeyed? Shall this diminished Division take back its own Judge again, or receive one of the Judges that belong to the other? Dire must be the distress, endless the doubts and difficulties: and while the unhappy divisions between which an interminable division has thus been excited /stirred up/ are distracting /tormenting/ themselves to find or rather make a sense for an Act which has none of its own, the business of justice is at a stand: and the great misfortune is that unless for clearing up all these difficulties of which the two Inner Houses are the scene /theatre/ the learned Judges can find a decent reason /ground/ for ordering pleadings scriptural or oral by Advocates of the parties, at the expence of the parties, notwithstanding the vast [...?] thus given to the business, nobody is the better for it.