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29 Oct r 1807
L d Eldon's Bill
'.14
Sound discretion just regard
Instead of it, had he said, so far forth as shall be necessary for the prevention of irreparable damage, adding or even not adding once for all such further explanation, as might be requisite, here would have been not sham but real instruction - not words only but sense: the end to which it was fit the regulations in question stand tied, that end by the designation of which, the eyes of the suitors, the bar and the public being thus pointed to it as well as those of the Judges, the discretion would thus have been rendered sound, so far at least as it was in the power of words to make it so.
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Title: [29 Oct r 1807 L d Eldon's Bill]Description: 29 Oct r 1807 L d Eldon's Bill '.14 Sound discretion just regard (4) (Sound discretion... just regard to the interests of the parties &c) On this /[...?]/ particular occasion the "discretion" created to be " sound" - the " regard to the interests of the parties" enacted to be "just" - did ever ancient gentlewoman charm more wisely? After an exhortation thus eloquent, (for if the enactment be not an exhortation what is it?) what Judge will ever call up /employ/ for the purpose any other discretion than a sound one /discretion/, bestow upon the interests of the parties any other "regard" than a "just" one? Thus much at least may be affirmed, and with full assurance, that after reading it no Judge will ever on any such occasion be bold enough to say, the discretion which on this occasion I employ is unsound, the "regard" which I bestow "in the interests of the "parties" is unjust. Poor Lord President's Draughtsman! no preachment of this sort could he have ventured upon, had he been ever so well inclined /disposed/ for it: his cathedra was not high enough: but it belongs to superior station to preach and to instruct; to inferior, to listen, and to admire. When Lord Camden was in the Cathedra of the Common Pleas, discretion was a bad thing - a very bad thing indeed, so bad as to be "the law of tyrants. But that was because Lord Mansfield used to talk of discretion and pretend to make use of it; and Mansfield was a bad man, so bad as to sit in a higher seat than Lord Camden's. Now discretion is become a good thing, good enough at least for Scotland /a Scotch Bench/: aye, but then it must be a sound one. In the departed sage, this invective against a necessary word was envy /malice/ and orator-craft: what is it in this living one? Is he conscious of the futility of this verbiage /sham instruction/ which is thus to be [...?] upon men for genuine /real/ sense, or is he himself a dupe to it? did it really appear to him, that by enacting that the " discretion" should be " sound", he could make it be sounder than it would be otherwise? - that by enacting that the " regard" should be " just", he would make it be juster than it would be otherwise?
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Title: [29 Oct r 1807 L d Eldon's Bill]Description: 29 Oct r 1807 L d Eldon's Bill '.18 Enacting that /concerning/ the same enquiries that they shall /it shall be their duty "to/ "state what regulations appear to them proper to be adopted relative to Processes or Causes (neither with " Actions, matters, or complaints, relating to subjects, matters or things" as per '.9 need they on this occasion give themselves any trouble, but only with "processes or causes") "to be brought into the Court of Session by Advocation or suspension, or in the first instance, or before the Circuit Court", for what reason is it that he does so? even for this reason, because "it would also be expedient that regulations should be established relative to" that subject: and here note the diversity between the two subjects, viz. this latter this one and the former one last above mentioned: on that former subject it was expedient that the regulations should be proper: but to this latter subject the same demand dare not extend; wherefore on this latter occasion the requisition of propriety, as being for this particular occasion too rigourous is with great propriety, in the exercise of that sound discretion which never leaves this most learned person, omitted. Lastly being about to enact that "full enquiries" touching those matters ("after choosing a Prices[?] and Clerk" - snug comfortable little places these -) shall be made, for what reason is it that he does so? - even for this reason - because "it is expedient" (" whereas" (says he) assuming it, on well he may; and without fear of contradiction) whereas it is expedient that "due and proper information" (the information would not answer the purpose unless it were proper, nor even then unless it were due) "due and proper information should be obtained touching such matters as aforesaid" - and for what reason? behold now and crown the (pyramid) reason upon reason - "to the intent that the most salutary regulations should be made and established by due authority."
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Title: [28 Oct r 1807 L d Eldon's Bill]Description: 28 Oct r 1807 L d Eldon's Bill '.13 Well may it be said and truly, that no sound judgment can be pronounced, if one side alone is the side looked to for inconvenience. Great no doubt has been the inconvenience produced, in the shape of delay, vexation, and expence, by appeals from interlocutors. But from the proposed utter prohibition such appeals the inconvenience is as hath[?] been seen[?] particularly enormous and without remedy. Against the inconvenience from the admission of such appeals the nature of the case admitts of two remedies, one presidential, the power already proposed to be given to the local judicatory for the provisional prevention of irreparable damage from its own judgments final or interlocutory; (a power loaded at the same time with the appropriate obligation:) the other subsequential; to be applied by the superordinate judicatory - in the present case the House of Lords: viz. costs to be given and the amount of them, governed in their amount by the principle which forbids the leaving a man in possession of any advantage resulting from his own wrongs.
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