date

Feb y 1808 on L d Eldon's Bill
Feb y 1808

on L d Eldon's Bill

Letter V

II. Eldons & J.B.'s course

3. In the third place whatsoever authority I had given as above for the proposing of regulations to Commissioners as above, I should have given likewise to the Court of Session: taking care, as of course, that the inquisitorial powers necessary to the due execution of that authority should not be wanting in this case any more than the other: which is all that it is seems necessary at present to say on that head. On the utility of the sort of competition which would thus be instituted something will be said under a separate head.

4. In the fourth place, /After that/ would have come the /such/ powers of subordinate legislation as it would have appeared advisable to give to the Court of Session, or rather to leave them in possession of: taking care at the same time to give notice that they were not designed to be exercised otherwise than provisionally, and to use the Scottish phrase ad interim, and coupling them with instructions the object of which would be to prevent them from making any such regulations as under the notion of being but provisional, would have the effect of setting up an insuperable though silent bar to such definitive regulations as at the suggestion of the Commissioners or otherwise, it might happen to Parliament to see reason to establish.

But to this this power I would /should have/ tacked two obligations: one for obliging /binding/ them to report to Parliament each regulation or string of regulations as soon as settled by the Court: another for subjoining to each such proposed regulation a statement of the considerations on which in the character of reasons they had grounded the expectations entertained by them of its being found subservient to the ends of justice.

This latter obligation I should also have tacked to the initiative authority given to the Commissioners. Of the reasons for thus calling for reasons something will be said under a separate head.
Similar Items
  • Title: [19 Feb 1808 on L d Eldons Bill]
    Description: 19 Feb 1808

    on L d Eldons Bill

    Letter V

    II. Eldons & J.B.'s course

    5/10/. As often as by the exercise of such powers a regulation /or set of regulations//any regulations/ of detail comes to have been made by the Court, I would require that it /they/ be reported forthwith to Parliament.

    6/11/. - and that the Report should in each instance be accompanied with a designation of the considerations which in the character of reasons had served to recommend such regulations to their choice: among which reasons would of course be in every instance on which any such instructions had been given by Parliament, a designation of the mode in which such regulation appeared to be conducive to the particular end marked out by such instructions. Of the reasons for thus requiring reasons, mention /something/ will be made /said/ under a separate head.

    12 In a word I would neither give nor leave to them any power that consistently with the end in view I could avoid giving or leaving to them, nor in regard to any power so given or left to them omitt to apply any check the application of which presented itself to be as promising to be conducive to that end. Of the grounds of this distrust mention will be made under a separate head.
  • Title: [[094-158v] 20 Jan y 1808 L]
    Description: [094-158v]

    20 Jan y 1808

    L d Eldon's Bill

    In the first division I again distinguish two parts of very different complexion /different masses of matter/.

    1. By the first in order regulations are established for the breaking of the existing Court of Session into two new judicatores: regulations to take effect immediatley by authority of Parliament.

    2. By another /the other/, provision is made for the establishment or initiation of future regulations by three different bodies of men to whom powers and funcions are given in that purpose: regulations of which the subject matters only are given and determined by the Bill the particular provisions to be established or proposed in the ground[?] of those several subject matters being left to the several classes of functionaries to whon those powers and fuctions are committed.

    1. To the Court of Session as at present constituted are given powers for establishing outright a new code of procedure

    2. To one set of Commissioners a set of Commissioners of Enquiry is committed the function /[...?] //duty ///business/ of enquiring into the actual state of the system of Scottish procedure in its principal branches at least, and of reporting such ammendments therein as they may see reason to recommend. This set of Commissioners are to receive their authority from Letters patent or the King's Sign manual[?] = for distractions sake I call them the Sign Manual[?] Commissioners.
  • 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.