JB_094_159v.xml

Title: [[094-159v] 21 Jan y 1808 L]

Description: [094-159v]

21 Jan y 1808

L d Eldons Bill

3. To another set of Commissioners is attributed /committed/ the doings of enquiring into and reporting upon the expediency, and eventually the mode, of engrafting Jury Trial onto the Scottish system of procedure in civil: Then I call the Great Seat Commissioners.

The part which stands first is that which occupies itself in the establishment of regulations outright: regulations to take effect immediately by authority of Parliament.

But observing that the effect of it is liable to be modified, and the design in an word[?] counteracted, by the regulations which the Court of Session are [...?] to make, I shall take the liberty of so far changing the order of the matters as to take first into consideration the part which occupies itself in buying[?] a foundation as above for regulations to be framed in future.

The whole number of Judges, at present 15 to be divided into two sections eight in one, seven in the other: in the eight-seated section the Lord President of the whole Court to preside; in the seven-seated, the Lord Justice Clerk: each section to contain an equal number of the Judges of the Court of Justitiary, reckoning the Lord Justice Clerk as two. This forms the principal matter of the [...?] first section of the Bill. Section 6 th gives to each of those two sections, except as excepted the powers, duties and functions of the whole: section 7 th undertakes to appoint for each section a quorum number, two finding the task not quite so easy perhaps as at first [...?],

JB_094_330.xml

Title: [17 Apr 1808 Letter V Ch. Competition]

Description: 17 Apr 1808

Letter V

Ch. Competition

'. Proposed aims[?]

1. Session & Commrs.[?]

The functions intended for the Commissioners are two[?]: 1. suggestion or say initiation in regard to regulations: 2. enquiry or in the language of any person who may be disposed to make a strong argument against it with little expence of thought or labour, inquisition: 1. enquiry or inquisition; 2. suggestion or say initiation, in regard to regulations.

As to regulations, what there is new /the only quarter/ in regard to which the function here proposed for them /has anything new in it, is that of/ is nothing more than extent. In the hands of the Commissioners this initiative function at length seems to have no other limits than those of the system of procedure, throughout Scotland, the judicial establishment and system of pleading included: what I propose is that in this field /on this ground/ in the hands of the Court of Session the same function should have no other limits.

Why should it? The function coupled with strong power. the function of making laws outright, they have all along possessed: exercisable provisionally, it is by those by whom they are viewed with most distrust, proposed to be continued to a very considerable extent in their hands: and accordingly in /by/ the same eyes regarded /viewed/ as not likely to be abused. But the function of suggesting regulation the function of bare suggestion is a function scarce capable of being abused in any hands.

Your Lordship will have recognised, if I do not too highly flatter myself, the utility as well as importance of several suggestions that have already issued from that quarter. My wish /and my hope/ is to see from, the same quarter, more of the same sort /last/ tendency/: the more the better and under the spur of competition, my hope.

JB_094_427.xml

Title: [[...?] 18 1808 on L d Eldons Bill]

Description: [...?] 18 1808

on L d Eldons Bill

Letter V

Eldon's & J.B's course

I [...?] now to submitt to Your Lordship that course which had any such [...?] befallen be as that of holding the pen for the noble and learned Lords, would have presented itself to me as preferable: together with the considerations which, in the character of reasons , would have given birth to such preference.

1. In the first place I should have placed[?] all together such regulations, if any, on the expediency of which I had made up my mind, or such sort as to be decisions of seeing them established in the usual mode, and as it were outright, by one direct immediate /and in point of time immediately/ exercise of the authority of Parliament.

Here there would have been a first basis, and to the extent of the field occupied by them, a line /boundary/ of marked out humility the exercise of the functions committed /authorities entrusted/ to the subordinate classes of functionaries.

2. In the [...?] place would have come the description of the /delineation of the body of/ authority intended to be given to Commissioners for proposing regulations, [...?] if in a word so nearly attend[?] to innovation be endurable, a plan of reform, together with powers of inquiry adequate to the collection of the body of information necessary. /(for authority unprovided with power it would not have occurred to me to think of bestowing.