date

25 Oct r 1807 L d Eldon's Bill
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 But suppose that from this full /maximum/ number of seven not one only but two Judges have been withdrawn by a call ab intra owing or not owing, ascribed or not ascribed, to indisposition.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.
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  • Title: [27 Oct 1807 L d Eldon's Bill]
    Description: 27 Oct 1807

    L d Eldon's Bill

    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.

    When interchange of opinions was on the carpet, there, if any where /if at all/, would have been the place, to speak of such interchange of opinions as might come to be called for, by particular order of the House of Lords. No such thing. Between the one case of Remitts and the other two sections are interposed, one of them of the highest and most extensive importance, as widely distant from the subject of remitts, as it was possible for a section in such an Act /a Bill/ to be: and the same irrelevant section is interposed between the two sections in which mention is made of interchange of opinion.

    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

    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.
  • Title: [27 Oct r 1807 L d Eldon's Bill]
    Description: 27 Oct r 1807

    L d Eldon's Bill

    '.11

    assembled by President

    But between the printing of the two Bills, ambition had swelled in the lower /inferior/ regions, the spirit of liberality had taken possession of the upper: what you proposed for your Right Honourable principal, quoth the Lord Chancellor's learned draughtsman to the Lord President's, is a mere trifle: leave the matter to me, and see what care I take of you: every thing may be done with you, nothing at all shall ever be done without you. Thereupon he goes to work, and taking up the section as drawn by his learned co- and sub- operator re-enacts it in substance the first of the two parts which it consists of, with no other alteration than what consists in the stuffing in a quantity of surplusage, as usual from his own kitchen[?] to suit it to his own taste: Between forms and[?] of process he shifts presiding[?] and: taking out in both Chambers, he shifts in here before each of the said Divisions of the Judges respectively and before the Lords Ordinary of each respectively: then come [...?] verbis[?], and without any improvement made by superiority of station and learning, and no alteration thereof shall but by Acts of Sederunt of the whole Court: then immediately thereupon, after stuffing /interpolation/ in /of/ the favourable clause " in a quorum of nine Judges thereof, come the auspicious words copied with the most gracious fidelity, assembled by the Lord President. At the sound of these words as it were by a sudden fit of inspiration, such as genius is subject to, on he rushes giving to the Court or Quorum thus put under the power /guardianship //monarchy/ of the Lord President - the power to do everything that is to be done: "to which Court or Quorum," says he (as if by the bye) "it shall be competent to make such alterations in and regulations concerning such forms of proceeding and process, and particularly concerning the mode of conducting the Pleadings in the said Divisions or Court, and before the Ordinance, by writings or by pleadings caused on" (carried on?) " vivâ voce, as shall appear necessary or expedient ..."