JB_094_193.xml

Title: [Feb y 1808 on L d Eldon's Bill]

Description: 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.

JB_094_194.xml

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.

JB_094_196.xml

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.