date

25 Oct r 1807 L d Eldon's Bill
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.
Similar Items
  • Title: [25 Oct r 1807 L d Eldon's Bill]
    Description: 25 Oct r 1807

    L d Eldon's Bill

    '.8.

    Senior Judge

    Difficulties are not yet at an end. Of these two Courts called Divisions are it must some how or other be remembered, whether on this occasion it did or did not happen to our learned draughtsmen /pair of learned legislators/ respectively to remember it contains 8 Judges indeed, but the other but 7. To difference of opinion such is the general lot of mankind, and more especially of the learned and fee-fed part of it, all times[?] are[?] alas! but too liable: the one Division as well as the other. Now then, as before the regular President is absent, whether by the operation of a cause ab intra, such as sickness and so forth, or by a cause ab extra - viz. the visit to which at the call of the other division he is subject. The number left now is six: and in case of [...?] this number is one that admitts of an equality between the individual[?] numbers. But suppose that from this full /maximum/ number of seven not one only but two Judges have been withdrawn by a call ab intra owing or not owing, ascribed or not ascribed, to indisposition. The number is thus reduced to five. Five is the minimum number allowed /permitted/ by the Lord Presidents learned Draughtsman to make a Quorum. In this case true it is that the superiorly learned Draughtsman of the Lord Chancellor has in lieu of the Quorum put a doubt. But for as much as the vibration of dubitation if it stops at any point must stop at some point, suppose it to stop at the point antecedently marked out for it by the learned Draughtsman of the Lord President: and that in conclusion five is the minimum number fixt upon for that purpose. Five being the minimum number comes now a call from the other Division, demanding a Judge from the impoverished Division that has not one to spare. Shall the call be obeyed, the business of the /this/ division thus called upon is put to stand: shall the call be disobeyed, the business of the division that made the call remains at a stand. It must be confessed however that in this case the difficulty produced by the inconvenience is not equal to the inconvenience that produced it: for by paying obedience to the call the business of the Division called upon is at a stand only for a time: whereas if the call be destroyed, the cessation of business may continue till the division receives its termination from the hand of death, the sovereign terminator of all divisions and remover of all difficulties.
  • 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: [17 Feb y 1808 on L d Eldon's Bill]
    Description: 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.