date

18 Feb y 1808 on L d Eldons Bill
18 Feb y 1808

on L d Eldons Bill

Letter V

II. Eldons & J.B.'s course

in a state fit to receive the touch of the legislators sceptre

As to extent, the powers /field/ of subordinate legislation would hardly have gone /stretched/ beyond that of the regulations proposed to receive an immediate sanction from the authority of Parliament: and accordingly in respect of their object and their nature those powers would have been confined to the giving by means of regulations of detail, effect and execution to such general principles and rules as could not at this distance from the scene of action be put into a shape compleatly fitted for practice without the aid of such regulations of an expository nature as the judicial authority would alone be competent to frame /to the framing of/ in terminis: not seeing any sufficient reason why, out of /beyond/ that line, the initiative authority should swell into definitive power in the instance of these judicial hands, any more than in the instance of those of a set of Commissioners selected for the exercise of an authority directed expressly to the purpose of legislation.

Under the same or a separate head would have come in the last place, such powers, if any, as ex majors[?] cantata[?], it might have appeared advisable to invest them with, for suspending the execution of this or that one of the number /set/ of regulations proposed to be established instanter by the immediate authority of Parliament.

The need and demand for these powers would of course depend on the subject matter and nature of such proposed Parliamentary regulations.

But any rate the object they would be directed to and confined to /limited by/ - would be the prevention of irreparable damage: meaning such irreparable damage, if any, as might result from the execution of the regulations so established by the immediate authority of Parliament.
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  • Title: [18 Feb. 1808 on L d Eldons Bill]
    Description: 18 Feb. 1808

    on L d Eldons Bill

    Note ?

    Letter V

    II. Eldon's & J. B.'s course

    Note ( ) or omitt?

    In regard to irreparable damage, the truth is - that an authority for /adequate to/ the prevention of it, though it were by a suspension put pro hâc vice view to the execution of the law even of the statute law, is an authority that I would never wish to see any judicatory, or at any rate any judicatory of so high a class, unprovided with: always understood that on their responsibility, and as a condition to their justification, the damage done /produced/ by the suspension shall not be greater than the damage that would have taken place for want of it.

    Howsoever it may be in regard to regulations already established, in regard to any new ones taking any such extensive scope as that here proposed, the propriety of such a provision does not seem much exposed to dispute.

    Without any public reason /Without authority from the legislature/ and without a thought directed to any other than their own private ends, Judges especially under the fee-gathering system, have ever been ready enough to take every imaginable liberty with the wish of the legislator: but when without any prejudice to those private interests, a rigid adherence to the letter, with or without any regard to the spirit of the laws has been attended with no other inconvenience than the production of some irreparable damage which the exercise of a discretion directed to the ends of justice might have prevented, then it is that judicial obedience puts on /cloaths itself/ all its rigour. and the afflicted individual finds the official ear shut against all complaints.
  • 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

    Thus much as to what I would have done: now as to what I would not have done.

    1/6/. I would not have given or left to the Court of Session any powers - powers of legislation - so ample as those which are given to them by this Bill. I would not have given them any such powers at all without circumscribing them with the strictest limitations I could devise:

    2/7/. I would not give /consign to/ them extend the power /apply this power of subordinate legislation/ to any topic without a previous persuasion that the arrangements proper to be taken /made/ on that topic could not be sufficiently /compleatly/ adapted to the purpose by the immediate exercise of the legislative authority of Parliament.

    3/8/. I would not put into their hands any such power without a designation as particular as could be given of the particular purpose to which the exercise of it should be applied.

    4/9/. I would consider in each instance whether for the application of the power to such its destined purpose an additional security might not be afforded by a clause or two in the way of instruction. I do not mean a volume in the stile of an Act of Parliament drawn up /penned/ by a hand paid at so much for every hundred words /for words by the score/; but a brief designation of the particular end in view - as for instance, prevention of irreparable damage; of which in another place. The utility of such a document will be subject of explanation under a distinct head.
  • Title: [7 Apr 1808 Letter V Ch.3.]
    Description: 7 Apr 1808

    Letter V

    Ch.3. [...?]

    10. A power which the learned scribe has not given to his /those/ learned brethren, and which notwithstanding the [...?] of sympathy for them I should not have /he could not naturally/ be expected to see him give /to him given/ to them, is what on which I, who am not /has not the honour to be/ a partaker in any such sympathy, should notwithstanding be desirous of seeing vested in their hands. Suppose a set of regulations established by Parliament: established in the first instance, or at the suggestion of the proposed Commissioners. In the judgment of the Court of Session, suppose in my instance their regulations about to be production /pregnant/, or actually production of a specific inconvenience, not foreseen by Parliament: In such case I would give to the Court appropriate powers for making representation, or even with the pleasure of Parliament could be taken, suspending execution, according to the nature of the case: making representations supposing the formation of these /such/ apprehensions antecedent on them, suspending exexution, if [...?] in [...?] to any suit at law whereby the execution of the reputation in question even demanded[?]: requiring however at the same time in the case of suits suspension report to be forthwith made to Parliament, stating the case in which the suspension was made, the inconvenience or supposed or inconvenient inconvenience constituting / which operated as/ the grounds and reasons of it, together with their persuasion that the inconvenience were such as had been foreseen by Parliament: and that for /but for/ want of such suspension, damage of irreparable nature /in its nature irreparable or in its greater in quantity more considerable/ (particularising it) would in this question be produced: Putting the course /[...?]/ which for the prevention of such damage they had seen reason to make subject to the pleasure of Parliament: and to give to the Court the benefit of the [...?] [...?] of the scale, and viz [...?] of Parliament, such [...?] should in default of notice taken by Parliament within a certain time, be absolute.