date

28 Oct r 1807 L d Eldons Bill
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?
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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: [They make the King of France strain hard]
    Description: They make the King of France strain hard to say that he will have things in

    such a way as he is going to tell them but when it's once said,

    there is an end of it.

    With our Legislators the general pangs come on afresh — every

    minute.

    Thus is the formulary usually met with the Legislative

    Instruments of France.

    "Louis by the Grace of God to all present & to come greeting

    "& [then follows sometimes a preamb ulatory recital] We

    "give to understand, that we for these causes and others as "thereunto

    moving, of our own proper motion full power and "royal authority have said

    established & ordered so say "establish & order by these

    presents signed with our hand "we will & it so pleaseth

    us". Ordonnance de Louis 14 pour les matieres criminelles

    d' l'ar 1670 Paris This is when

    it is an Edict when it is a Declaration it is "Declare" instead of

    "establish" There seems to be about as much real natural

    distinction between Declaration and an Edict, as there is between an

    original —

    1760 24

    .p.176 clause in our Acts of Parliament and a Proviso.

    A General non obstante is nugatory, as being implied in

    the very circumstance of enactment: a non obstante

    clause to a particular Statute certain creating a general rule

    to which in the Statute in question it is meant to create an exception

    may be proper to be required, as a testimony that the Statute referred to

    had been in contemplation.

    By 29 th

    Ed c-5 after 19 Sections By the 19 th of which a temporary continuance

    is given to the several Statutes mentioned in that and the 18 th preceding except to the 2 first which are

    perpetuated. whereby continuance is is given to Statutes therein

    mentioned There comes a 20 th by itself to

    continue so much as was then in force of an Act entitled An Act touching

    certain Polite constitutions [as they were then thought] for the

    maintenance of the Navy [Immediately after this comes a 21 st in these words "Provided allways

    that whereas &."] The Act then goes on & in the next

    Section dispenses with the personal appearance of in penal

    Suits.

    COMPOS. Stat. Singly quâ Statute. Enactment

    Formulary of French BR

    Non- obsturies — Enacting

    X Proviso

    This is intitled an Act for the continuance & perfecting of

    divers Statutes. None of the other Sections have any other —

    affect than that of simply perpetuating or continuing, & in

    that which may be thought to do somewhat towards, "perfecting" there

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    2a. as to this Fact! a Rule in the H: of Commons that no original clause of a

    Bill can be inserted in a partial committee: there is another rule that a

    Proviso may: as the distinction between an original clause & a

    Proviso has not been nor can — well be settled, hence it is that

    as by the former of these— Rules nothing so by the latter any

    thing may be inserted there.

    There was a certain Jew who had a tender affection for—

    Westphalia Hams: under the name of Hams he abhorred them as a true Jew

    ought: but he called them Stock-fish, & with the said Stockfish did

    he fill his Belly.

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    this form shape of an adversary appendage

    forced into a connection with a associate to which it is an utter

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    This in the Turnpike Act 7 G.3.40 by §43. Mortgages of

    Tolls are to be accountable, yet but for all this [by

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    room.

    If both these Rules were to be abolished together, things would be just as

    they are now that both subsist: with this difference that one source of

    continual absurdity would be stopped. What is a Proviso? a clause that

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  • Title: [Marginal Corrections Correct d Oberv]
    Description: Marginal Corrections

    Correct d Oberv d{Compensation} {Suppression}

    Suppression. 1. The difference between mala fide suppression of documents and Forgery lies not in the mischief but in the article of punishment and that of faculty of proof. 2. In the instance of J.B. s supplemental Letter of 20 th June 1800 & Boards Letter of reference between that and the 27 th it would be a point to pronounce upon whether the suppression was bona or mala fide. 3. Proof of mala fidis in ther suppression of J B s supplemental letter of 20 June 1800 (if suppressed) its putting a flat contradiction on the pretended increase of terms. 4. Can put to shew the points of agreement & disagreement between mala fide suppression & forgery. 1. Obliterative forgery - If instead of suppressing the entire letter (20 June 1800) supplemental to the Memorial Long had obliterated the saving Clause to a like effect in the body of the Memorial the effect would have been the same. 5 2 So also by creative Forgery the same effect might have been produced. Think of the materials that mans heart must be made of who being omnipresent when having events at his command - and having the choice of means - chooses in preference a course of eight years perfidy

    Perfidy 1. The ignominy of perfidy is not incurred wantonly nor without a specific motive by any body - nor in particular was on the particular occasion in question by Pitt. 2. He had a particular & cogent reason for it - the fear of putting hs habitual messmate L d Spencer out of humour. - 3. Of L d

    Spence's opposition J.B. has the proof in his Lordship's hand. 4. Had it not been for that cogent reason JB admitts that Pitt would have carried the Establishment into effect. 5 Pitt would no more have broken his word than he would have concurred in the exercise of legislative power if the object of the conspiracy could have been effected otherwise. Perfidy. 6 If a man were uniform in the breach of his promises it would come to the same thing as if he were so in the observance of them. 7. The influence is - not that Pitt breaks promises so often as he keeps them - he break them no oftener than it answers the convenience or fancied interest of the moment. - 8. Had the uneasiness from the shame of having broke his promise ever surmounted that which caused his breaking it - he would have repented & kept it - this was JB s chance.