date

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

L d Eldon's Bill

'.10

Stating questions of law

Order Confused

(1) (to state questions of law)

Between the case provided for in this 10 th Section, and the case undertaken, (with what sort of success has been seen) to be provided for in the 8 th Section there exists a close analogy: there was a case of equiprized[?] disagreement; here we see /this is a case of/ general doubt. This peace should naturally have been together, viz. in two contiguous Sections: instead of that (we see /comes/ interposed) between them the case of Remitt.

Again. The 9 th is the Section occupied by the case of Remitt; viz. from one Court to another of the two Courts into which the Court of Session is to be divided. In another section more is said about Remitt: viz., such as may come to be must[?] to either branch of the Court of Session from the House of Lords. For the same reason these two sections would naturally, one should expect, be placed together. No: between there come, not only the section about reference for speaking on question of law, but the important and comprehensive section for giving power to the Court of Session, in its undivided state for new-modelling in the way of legislation the whole system of procedure.

As to the particular business of the present section, viz. "stating questions of law", this is a sort of business that appears[?] and requires some sort of agreement. Expedients for the termination of disagreements otherwise interminable being a last resource, the place in which one should expect to find them would naturally be the last place. In case of doubt, state your questions, if you can agree about stating them, to the other Court: if you can't agree about this any more than about the main part, then call in a Judge from the other Court to turn the scale.

Even were the operation of stating these questions exempt from all danger of disagreement, this expedient it must be acknowledged would not be so surely effectual, as to supersede the necessity of the others, for the disagreement, the interminable disagreement, is no less liable to arise out of the question of fact, than out of the question of law: the [...?] here for producing unanimously on questions of fact and law together by means of torture not having as yet been adopted in Scotland to any considerable extent.
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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: [[094-160v] 22 Jan y 1808 Transpose]
    Description: [094-160v]

    22 Jan y 1808

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    1 [...?] contents[?]

    III Contents of Part III [...?]

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    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: [26 Oct r 1807 L d Eldon's Bill]
    Description: 26 Oct r 1807

    L d Eldon's Bill

    '.11 (│ │) (Forms of Proceeding ... before ... the Divisions ... the same)

    In this section is introduced cursorily and en passant /in a sort of parenthesis/, a power to the Court of Session to establish from beginning to end a new system of Procedure. Of this more extensive /all-comprehensive/ provision the consideration will be here postponed to the period at which that operation is placed expressedly on the carpet, viz. to the two last sections.

    To the present place belongs the (consideration of the) question whether as between /in regard to/ the "forms of proceeding and process" as /which/ between two or more Courts having the same jurisdiction, as in the case of the two Courts here made out of one, those forms should be preserved in a state of inviolable identity, or whether difference shall in any respects be admitted, as will naturally be the case where each Court has the power of making its own regulations for itself. Allowance of diversity was the principle pursued /adopted/ in the Bill introduced by Lord Grenville: preservation of identity is the principle preferred in the present Bill.

    Which of the two is most conformable to the ends of justice in general, but more particularly under a system of that technical cast which both Bills found established, and to which it was /appears/ not in the contemplation of either to replace by any system approaching in a material degree nearer to the natural one.

    (Under the existing circumstances /Rebus[?] sec startibus[?]/ the principle of inviolable identity seems the preferable /most eligible/ one. /Leave[?]/ I mean upon the whole for there are arguments on both sides /neither side is without its reasons/.)