date

6 Apr. 1808 Letter V Ch.3.
6 Apr. 1808

Letter V

Ch.3. [...?]

5. In the same view (as for conjecture) instead of executions being stopped of course by the Appeal, as at present the learned scribe ('. 14) gives power to the Court appealed from or to replenish "all matters relative to interim possession or execution, and payment of cash and expences already incurred." In my view of the matter the propriety of such a power is out of dispute. But being a boon and an example in [?] calling as much for such /whatsoever/ limitations may without prejudice to the beneficial part of its efficacy be found applicable to it, the course taken by the learned scribe, as it should seem for that purpose, is in speaking of the discretion of the learned Judges in question, to [...?] that it shall be sound, and in speaking of their regar for the interest of the parties that it shall be just.

In my view of the matter, in the character of a guide to the discretion in question and thus in that of a check, a phrase composed of four other words viz. prevention of irreparable damage, promises rather better /seems to promise/ in point of efficacy. Let it be your [...?] so to order matters that matter in case of your judgments being revised or modified, any damage of an irreparable matter shall to the [...?] of the sort of absolute or conditional execution that you give to it, nor in case of your judgments being affirmed, of the limits /limitations/ which you may think fit to apply, or the condition you may think fit to [...?] to such execution of any as in this case you may think fit to give to it. The ulterior development of this idea will afford matter for another head.
Similar Items
  • Title: [20 Oct r 1807 L d Eldons Bill]
    Description: 20 Oct r 1807

    L d Eldons Bill

    '.14

    Interim possessive

    '.14 (1) (When any appeal is lodged &c)

    In both Bills what this provision aims at, so far at least as that which is aimed at was /is/ fit to be aimed at, so that unless /except/ in so far as measures are taken to the contrary by the local judicatory, the effect of the Appeal to the Lords continuing to be as it is at present, the stop to execution, power shall be possessed by the local judicatory sufficient to enable it to prevent such stoppage from producing to the prejudice of the party claiming such execution any such damage as would be irreparable.

    On this occasion what presents itself as the natural and proper course is this - First to state in general terms the prevention of all such irreparable damage as might result from an unqualified stoppage of the execution of that judgment which the local judicatory had thought fit to pronounce - then in general terms to give to that judicatory such power of interim regulation as should be necessary and sufficient for that purpose - and lastly to prescribe if it were thought necessary to the party having interest in calling for the exercise of such discretionary power any such particular steps as might seem requisite.

    Of the end purpose[?] to be aimed at, as above, neither draughtsman /legislator/ appears to have had any clear conception. The President's had not; for if he had, he would have given expression to it, as above. At least for his probity's sake it is to be /let us/ hoped he had not. What at any rate he had a clear conception of was the power he wished to get into his hands - viz. power to do whatever he thought fit - "power ... to regulate all matters relative to interim

    possession or executions, and payments of costs already incurred in the Court of Session.
  • Title: [PRIVATE 18 Apr. 1807 Letter]
    Description: PRIVATE

    18 Apr. 1807

    Letter V

    III. Proper remedies

    Of the precautions taken for the prevention of irreparable damage, by execution not withstanding Appeal, demand for the anxiety would naturally be intense and scrupulous in the inverse ratio of the dignity and responsibility of the Judge. In Scotland it would be stranger when looking to a distant Sheriff's Court than when looking to the High Metropolitan Court at Edinburgh. In England, it would have been stranger in a Sheriff's Court if these seats of undilatory and unvexatious justice had not been destroyed than when looking to the elevated and richly endowed seats of dilatory, ruinous and excruciating justice in the great Hall at Westminster.

    Even in the remotest province of Scotland it is difficult to conceive a case in which the situation of a Judge probationed by a three years perseverance in the education and habits of an Advocate at Edinburgh should afford matter for serious apprehension of his lending his power to a malâ fide plaintiff to enable law to work irreparable damage in contempt or by abuse of any such powers as the providence of a legislator should have committed to him in conjunction with the appropriate obligations to the express end of preventing any such damage.

    But that any such abuse should be likely to find a hand disposed and able to committ it, either in the Court of Justice or in any Court at Westminster Hall - and that the danger of such abuse from such a quarter should be serious enough to warrant the refusing to any of these high Courts the requisite power for giving a provisional execution to their own judgments, while appeals from those judgments were in pending, is a suspicion which even to those whose opinion of them is least favourable, must surely present itself as altogether groundless and extravagant.
  • 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

    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.