093-421.xml

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

Description: 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.

093-345.xml

Title: [19 Oct r 1807 Lords Delegates]

Description: 19 Oct r 1807

Lords Delegates

Letter VII

Letter VII Eldon's Bill

Along with the Bill which, under /in/ I know not what hand comes endorsed to me with the words L

d

Eldon's, come two others endorsed respectively in the same hand. L d President's Bill and L d President's 2 d Bill, both without any other date endorsed than the year, neither of them having any intimation of an Order for printing (made by) the House.

Comparing the Lord Chancellor's Bill such henceforward I shall venture to call it with the two Bills of the Lord President, I find to so considerable an extent a coincidence, as shews the Lord Presidents plan to have been taken as a basis by the Lord Chancellor.

In my last Letter which was honestly written before this /the present one/, written indeed in the main several months before any one of these three Bills came into my hands, I was exulting at the auspicious coincidence in so many essential points between the ideas of the learned Lord at the head of Scottish Law, and those of the adventurous and unlearned as well as untitled individual who has not the honour to be /no such honour as that of being/ at the head or so much as the tail of any thing that ever went by the name of law.

(Taking up his Lordship's two Bills for the purpose of the present Letter (I have at the outset the mortification to find alas! find at the outset all that exaltation at an end.) at the very first glance all that exultation stops, and the repose of despondency takes its place.

(Great however as is my concern, my disappointment is not equal to it.)

093-424.xml

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/.)