date

26 Oct r 1807 L d Eldon's Bill
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/.)
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  • Title: [26 Oct r 1807 L d Eldon's Bill]
    Description: 26 Oct r 1807

    L d Eldon's Bill

    '.10?

    Order confused

    The business of making provision for an improved system of procedure being thus taken in hand, another natural expectation is to see it /would be the seeing/ forthwith /thereupon/ gone on with and concluded. No: this is '.11. the sections in which it is resumed and concluded are '.18 and 19; by which 19 th the Bill itself is concluded: between them stand '.12 for the distributing between the two individual Courts the existing arrear of causes: '.13, 14, 15 and 16, about Appeals to the House of Lords, and '.17 about the form according to which new Judges are to be admitted when the division of the Court of Session into those two individual chambers has taken place.
  • 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 the two learned draughtsmen are upon the best terms - fratres egregior[?] concordes[?]: the production of the Scottish legislator is taken as /for/ the basis of that of the English one: and after those alterations in respect of forms and accessories which were necessary to attest the recognition of that superiority of talent, which is the faithful accompaniment /companion/ of superiority of office, as to all essentials, such is the favour shewn to /by/ the legislator paravail /paramount/ by the legislator paramount /paravail/ that with him it is but ask and have.

    In the present instance, in the interval between the two Bills, to such a degree had favour ripened (in the interval between the two Bills), that the modesty /moderation/ of the subordinate legislator is rewarded with a power extending far beyond his claims /own demands //any thing that he had proposed for himself/, what it had proposed for itself. In both the Lord President's Bills the identity of the "forms of process" as[?] between Chamber and Chamber being supposed to have been already established /pre-established/ provision is made that "no alteration thereof shall take place but by Acts of Sederunt of the whole Court assembled by the Lord President. Thus far it seemed to be tacitly assumed that (no other) alteration was in question other than those /except those alone/ which would be necessitated from the division of the Court into two Courts. The necessity of the concurrence /presence/ of the Lord President is accordingly in those Bills of the Lord Presidents carried no further: for immediately after comes the clause in which it is said that "occasional meetings of the whole Court may be held as at present for making Acts of Sederunt, or exercising the other functions of the Court distinct from deciding causes, the Quorum at such meetings being nine, as at present."
  • Title: [26 Oct r 1807 L d Eldon's Bill]
    Description: 26 Oct r 1807

    L d Eldon's Bill

    Procedure the same[?]

    1. In favour of the allowance of diversity pleads the benefit of competition.

    Upon competition, upon the force /power/ of emulation[?] you depend for that superior regard for the ends of justice which you expect to find in three or even in your two Courts which by division you have made into one +. This you look for in the course taken by them respectively in relation to each individual cause separately considered. But in [...?] either Court in any individual instance would attempt to pay any higher regard than had been before paid to those sacred ends, if the system under which it acted did not admitt of the innovation. Small indeed can be the effect of any emulation[?] /competition/ in regard /conformed/ to the mode of acting under the rules, if in regard to the rules themselves each Court were put under a yoke not of its own framing, and each under the same yoke.

    Supposing on both sides or on either side /or at least supposing on one side only/ a sincere regard for justice, accompanied with a clear view of the most effectual /straightest/ course to be taken for the attainment of those ends the argument seems weighty strong, and indeed so strong /weighty/ that it seems difficult to conceive how on the other side there should be any argument or arguments, capable separately or collectively to outweigh it.

    The misfortune is, that the position which the argument finds it necessary to assume is a proposition standing in contradiction to all history as well as to the very nature of things /most indubitably prevalent principles of human nature/.

    + Consult what has been written on this head