date

27 Oct 1807 L d Eldon's Bill
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.
Similar Items
  • Title: [28 Oct r 1807 L d Eldons Bill]
    Description: 28 Oct r 1807

    L d Eldons Bill

    Provides nevertheless

    (│ │) (Provided nevertheless) Of the adverb nevertheless, the effect is to give intimation of an opposition /a repugnancy/, either apparent only, or real but partial between the clause which it introduces, and that which it immediately follows. The clause last preceding having appointed /been occupied in appointing/ an order of distribution as between cause and cause remitted to the Court or Courts of Session from the House of Lords, and in so doing having left no discretionary power to that highest seat of appellate judicature, the conception immediately presented by the word nevertheless was that that omission /which neither and nor ought for a moment to be made, was about to be thus awkwardly required. - No such thing: no repugnancy, no opposition in the case. The hands of the House remain tied up - uselessly, wantonly, disrespectfully and perhaps perniciously tied up - when a word or two, (such as in course, or regularly, or unless in so far as Order may be made by the House to the contrary) would have been sufficient to keep them loose.

    Hereupon two observations present themselves as being called for by this proviso clause. 1. That it ought not to have been inserted at all: as being altogether useless, (of a tendency /character/ disrespectful to the House, and) tending to beget doubts derogatory to the discretionary power actually belonging to the House, and necessary to the due discharge of its /the/ judicial function in conformity to the ends of justice. 2. That if it were fit /proper/ to be inserted it could not with any propriety be inserted in the character of a proviso: not having /standing/ /being/ either in reality or in appearance, in any respect in opposition to the last preceding or to any other preceding clause. Can any thing be more favourable to confusion, than a certificate of repugnancy where there is none?
  • Title: [25 Oct r 1807 L d Eldon's Bill]
    Description: 25 Oct r 1807

    L d Eldon's Bill

    '.8.

    Senior Judge

    (│ │) (The Judge presiding in, or in his absence the senior Judge of, the other division)

    In '.2 when the phrase "shall sit at the head of each[?] division was under /among the/ consideration, inconveniences resulting from that rhetorical flourish put instead of shall preside, - its tendency to breed confusion and perplexity was observed. In the present section may be seen a proof. Had the word presiding been there employed, whatsoever were the divisions the absence of a Judge presiding in it was a case that could not here have been to be provided for, being a case that could never[?] happen. To the permanent President absence might happen: but if as often as it happened to the permanent President to be absent a temporary President was to be present, one of the other Judges taking on him /himself/ the character of presiding Judge: the case of the absence of a presiding Judge was a case which could never have place.

    Thus stands the case if to preside in a division and to sit at the head of it /one/ are precisely the same function. Give to the clause in '.2 that construction, there can never be a case in which the presiding Judge can be absent, never be a case in which in the words of '.8. the Senior Judge of the other Division can be to be called in.

    Give now to the clause of '.2. the other construction let presiding in the Division be one function, and sitting at the head of it another, in these terms and those above the clause in '.8 acquires a meaning. By the Judge presiding in the division is to be understood the permanent President, the President in titre, to whom it may happen to be absent /whose absence is one event capable of taking place/ without difficulty . He being absent, in[?] comes the clause in '.8. acquires a meaning and receives its execution and intended effect accordingly. The Senior Judge of this Division, obeys the call, and pays his visit to the other /gives to it from the other/: By /From/ this migration of the Senior Judge no interruption is given to the business of the Court that parts with him? Why no interruption? Because
  • Title: [[094-160v] 22 Jan y 1808 Transpose]
    Description: [094-160v]

    22 Jan y 1808

    Transpose[?]

    1 [...?] contents[?]

    III Contents of Part III [...?]

    Powers to [...?]

    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.