date

26 Oct r 1807 L d Eldon's Bill
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
Similar Items
  • Title: [26 Oct r 1807 Eldon's Bill]
    Description: 26 Oct r 1807

    Eldon's Bill

    '.11

    Procedure the same

    Thus inconsiderable being the benefit which it is in the power of the principle of competition to render to the interests of justice on one hand /side/, on the supposition that the two supposed competing Courts are at liberty each of them to frame for itself its own rules, it remains to form an estimate of the benefit of uniformity, that benefit of which to obtain the benefit of competition it would be necessary to make /give up/ a sacrifice.

    For forming any conception of the value of the benefit of uniformity, there is no other mode /resource //method/ than to look for a case in which the opposite disadvantage has been exemplified. In Scotland the unity of the supreme Court being an effectual bar to every such exemplification, England is the country, Westminster Hall the place from which alone any apposite instruction of this kind can be derived unless the eye were to travel as far as France .

    In Westminster Hall, and all-providing though fantastic[?], besides the radical distinction between /Equity and/ Common Law and Equity by which the Court of Chancery is divided /separated/ from the King's Bench and Common Pleas and the Court of Exchequer from itself, the Court of Chancery as compared with the Equity side of the Exchequer, and the Courts of King's Bench and Common Pleas as compared with one another, and with the Common Law side of the Exchequer afford examples /so many exemplifications/ of the existence of diversiformity and of the prejudice /injury/ resulting from it to the interests of justice. The greater /more extensive/ this diversity, the more extensive the empire /demesne/ /field / of [...?] sincere: and the more extensive that demesne /field/, the more grievous the uncognosibility and uncertainty of the law, with the whole mass of fraud /all the frauds/ and oppression that grow out of it.
  • 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/.)
  • Title: [26 Octr 1807 Eldon's Bill]
    Description: 26 Octr 1807

    Eldon's Bill

    '.11

    Procedure the same

    Instead of presenting a friendly competition /contention/ in that straight and simple course, what is it they have done?

    Travelling hand in hand in pursuit of those sinister ends which have already been /in the course of this work have/ so often been pointed out the maximum of profit combined with the maximum of care, they have by their harmonious exertions given birth to that system of elaborate /well-elaborated/ and but too successful iniquity of which the principal features have also been delineated /sketched out/. +See Lett. V under the head of Devices

    Not that of competition there has been any want /deficiency/: but to what object has it been directed? Preserving each of the Courts in its own system those features by which the sinister ends common to them all were /are/ served, the subject of the competition which of them by unnecessary encroachments upon the liberty of the subject in the station[?] of the Defendant, shall /should/ offer the most tempting advantages to instances in the character of plaintiff /station of Plaintiff/.

    By (faithful argument and) unbroken agreement and confederacy and uninterrupted co-operation a system having been thus formed corrupt in all its parts corrupt from beginning to end, disastrous to the people in the character of suitors, favourable only to that omnipotent brotherhood /fraternity/ by whom and consequently for whom it was organised, the field of competition has been scanty in the extreme and the utmost advantages ever derived or derivable from it by /to/ the suitors, proportionately minute.

    Not only has so far as system is concerned - not only has it in that quarter been unable to render any effectual service to the interests of justice, but even as between individuals and individuals acting under the same system its inefficacy has been in many instances as conspicuous, as its efficacy has in the aggregate of all instances been dubious

     Point to Eldon delays notwithstanding the competition of the Exchequer.