date

18 Feb. 1808 on L d Eldons Bill
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.
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  • Title: [18 Feb y 1808 on L d Eldons Bill]
    Description: 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.
  • 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: [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.