date

19 Feb 1808 on L d Eldons Bill
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.
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  • 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: [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: [[...?] 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.