date

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

L d Eldon's Bill

But suppose that in regard /on the subject/ to this or that particular portion of the practice of the Court doubts of /as to/ its legality have ben entertained, are these doubts never to receive a solution? - Oh yes: and the sooner the better. But as often as this is the case, and Statute law is called in to remove the doubts, say that there have been doubts /state the existence of such doubts/: by this means, and no otherwise /on these terms, and on these terms only/ where this or that part of the fabric appears to be in want of a steadiment, the steadiment may be applied to it without endangering the stability of the whole.

Accordingly in the last clause /section/ of this Bill in /of/ which last clause the business amongst other things is the establishment of a Commission for the initiation of new regulations in the /a/ preambular part of it the Lord President has /had/ (with perfect propriety) inserted a recital that "it has been doubted whether the said Court (the Court of Session) by virtue of its general powers, can make all the necessary regulations." And this last section being taken by the Lord Chancellors learned penman as the basis of his own last section directed to the same object, this recital is employed in it, and with no other alteration than an immaterial one or two, the fruit of the habitual /result of the constitutional/ recklessness, and the ambition of shewing the constancy with which /how constantly //how constant a companion/ with which superiority of station is /has [...?]/ accompanied with superiority of intelligence: instead of " its general powers", " its present general powers", and instead of "can make all the necessary regulations" "can make the necessary regulations."
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  • Title: [[094-158v] 20 Jan y 1808 L]
    Description: [094-158v]

    20 Jan y 1808

    L d Eldon's Bill

    In the first division I again distinguish two parts of very different complexion /different masses of matter/.

    1. By the first in order regulations are established for the breaking of the existing Court of Session into two new judicatores: regulations to take effect immediatley by authority of Parliament.

    2. By another /the other/, provision is made for the establishment or initiation of future regulations by three different bodies of men to whom powers and funcions are given in that purpose: regulations of which the subject matters only are given and determined by the Bill the particular provisions to be established or proposed in the ground[?] of those several subject matters being left to the several classes of functionaries to whon those powers and fuctions are committed.

    1. To the Court of Session as at present constituted are given powers for establishing outright a new code of procedure

    2. To one set of Commissioners a set of Commissioners of Enquiry is committed the function /[...?] //duty ///business/ of enquiring into the actual state of the system of Scottish procedure in its principal branches at least, and of reporting such ammendments therein as they may see reason to recommend. This set of Commissioners are to receive their authority from Letters patent or the King's Sign manual[?] = for distractions sake I call them the Sign Manual[?] Commissioners.
  • 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.
  • Title: [27 Oct r 1807 L d Eldon's Bill]
    Description: 27 Oct r 1807

    L d Eldon's Bill

    '.11

    assembled by President?

    As to the 6 months consecrated to repose, if any part of it could be spared, to which of two purposes could it be most advantageously spared - to the judicature which is their duty - or rather would be /if so exalted a subject admitted of any such attribute/ or to the legislation, which in their /that/ station is but right and power, uncharged with duty? to the immediate discharge of that arrear which were not the discharge of it inconsistent with the absolutely requisite periodical repose, could be discharged at any time "without any change at all", or to the devising systems of regulations for the prevention of its encrease or for the discharge of it at some future contingent portion /point/ of time.

    As to regulations; tending in any the smallest degree to the putting an end to that universal denial of justice, or to the furtherance /more effectual attainment/ in any other way of any of the ends of justice, had there been the smallest stomach /in that seat of power any the slightest real inclination/ for any such operation /business/, what should have hindered it /the inclination/ from coming into act and producing its effect?

    But there were /had been/ doubts (Presidents Bill '.13) about the extent of such their power - whether it were really adequate to the attainment of the ends of justice - doubts? where /what/ were those doubts, and by whom raised? if by any body /any where/ among and by themselves, for by no one else have they /any such doubts/ ever been expressed. But suppose the doubts existing, has there ever been a time, in which the removal of them has not been in their hands? Suppose a regulation suggested, of which the utility was out of doubt, the legality alone subject to doubt. Could not they at any rate have enacted it, leaving the doubters to deny /contest/ the legality of it if they were able?

    Or if that course were not approved of, was not Parliament always open to them? In some way or other, through some channel or other could not they have proposed the regulation to Parliament? Memorializing as they have done to deprecate changes, would there have been any more difficulty, had inclination[?] been present, in memorializing[?] for the purpose of bringing a change? Or if they thought not fit thus to present themselves directly in their own person and character to Parliament, has there never been in either House any one Member, with whom they had credit enough to make a motion for the change?