date

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

on L d Eldon's Bill

Letter V

vii Competition desirable

Further on, when in a list of some of the most prominent of the abuses of which the system is composed, I come to mark out those which might be given up, and the predominant /fundamental/ principles of the technical system with their baneful influence on the welfare of the people /suitor//community/ and their beneficial influence on the prosperity of the man of law still retained, I shall turn to shew /bring to view/ a variety of biddings made by different individuals in this competition, professional as well as official, unincorporate as well as corporated[?]. In a word without /but for/ this principles, nothing has been done, nothing would or could have been done: under the [...?] of it, and with the benefit of it, no assignable bounds can be set to the good which may /come to have been/ be done:

And let it not pass unobserved, that of reasons[?] as have proposed[?] or[?] called for, the subject of the competition will include not merely the arrangements themselves that are to be proposed, but the reasons of them, the reasons trusted to /brought forward/ for their support: so that the promises offered will be /a[?] promise/ not only for law but for the use of reason (a sort of unpleasant /faculty/ the use of which has [...?] been so strange /unknown/ to the field of law).
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  • Title: [Feb 1808 D + B on L d Eldon]
    Description: Feb 1808

    D + B

    on L d Eldon's Bill

    Reasons necessary

    I. Principles

    After these exceptions, capable of being peremptory where they apply, but in reality seldom applicable, reason in matters of law, it may be safely said, can never be out of season.

    But though useful at all times, time is a circumstance that will give to the utility of this decoration /ornament//accompaniment/ a different shape, according as the times /season/ prepared for the application of it is anterior or posterior to the establishment of the law. proposed law or article of law.

    The practice of annexing reasons to a proposed mass of new law, annexing reasons in this way to a proposed law, as regularly as in the House of Lords they are annext to an appeal, and that, at a period antecedent to the exhibition of it in the form of a Bill, conceived in terminus requiring nothing but the legislative sanction /force/ to render it with the properties of a law - this practice I conceive /let us suppose to have been//let it for arguments sake/ be supposed to have been actually established: - in the practice thus established may be observed /discovered/ the following distinguishable uses -
  • Title: [19 Feb y 1808 on L d Eldon's Bill]
    Description: 19 Feb y 1808

    on L d Eldon's Bill

    Letter VII

    v. Reasons proper here

    '.5. Propriety of requiring Reasons in the present case

    In the case of the proposed Commissioners, whose proposed authority will come afterwards to be considered even in this case then, if in the observations /reasons/ just given there be any truths[?] /propriety/ reasons in support of whatever regulations they come to report, ought to be required. That in its existing state the Scottish system of procedure is compleately ill adapted to the fulfilment of the several ends of justice - in that may be seen a proposition which has no need of proof: but that the system proposed instead of it /whatever it be that[?] may come to be/ - that in its several parts such new proposed system is well adapted to those ends - better than any other if any other there be that comes /stands/ in competition with it - then /in this/ it is that we say remaining the demand for reasons.

    But whatsoever in the instance of these non-judicial functionaries, whosoever they may be, is the demand for reasons, that demand will be found not to have lost any of its strength, but to have acquired an additional strength when applied to the dignitaries in question - the members of that supreme natural judicatory /Court Of Justice/.

    Practice of this body of men in respect of sinister interest - conduct of the same body throughout the whole period of its existence - declarations /avowals/ recently made by a great majority /more than a quorum/ of the present members - all these presumptions applying in general /operating in the lump/ in disfavour of whatsoever regulations may come to be proposed from a quarter /be seen to issue from such a source/ so situated /circumstanced. Your Bill has it the approbation of the gentleman of the long robe? has it the sanction of the learned Judges? Such is the question one hears as often as a [...?] aiming at the correction of any of the abuses in which these learned and venerable persons falter[?] is proposed, your plan of national defence has it the approbation of Bonaparte? would he behold in there[?] that a question no less reasonable.
  • Title: [Feb y 1808 G + on L d Eldon]
    Description: Feb y 1808

    G +

    on L d Eldon's Bill

    Letter V

    VII. Competition desirable

     To come after Rationalization Ends of Justice Distrust Causes

    '.7. Competition - desirable as between Session and Commissioners.

    By giving to these Judges /the operators[?]/ and to the proposed Commissioners a field of operation /exercise/ the same in situation /position/ and extent, I should give to the service that advantage, of which we have heard /celebrated/ so much of, under the name of the benefit of competition.

     Insert here what has been said of the inutility[?] of it in the English Courts?

    Where the competition is real and open, no secret community of interest strong enough to damp[?], and taint with collusion, the exertion of the competitors, the force and utility of this principle is beyond dispute. Let the [...?] be but a fair one, the [...?] becomes liberal, the strings of the closest purse relax themselves.

    When the race is a fair one none of the racers playing body[?], every nerve is upon the stretch.

    Where as between shop and shop, every penny of profit gained by one is a penny lost to the other neither linked to the other, as in the English delay and oppression - shops by the ties of a secret partnership, neither severed[?] in the possession of a large portion of custom by the necessities and distress of customers, each without intending it, serves the customers interest as well as its own each sends out its wares as good and as cheap as it can afford to make them.

    In the present instance its salutary /beneficial/ influence has already been certified /attested/ by experience. /+2 The abuses of the system are the patrimony of the profession./ Never, as I have already had occasion to shew - never[?] did any set of men, /not even among lawyers/ stand clearer of all suspicion of giving up an /one/ atom of abuse that could by possibility be retained. Well, my Lord: a little while, and I shall have /the occasion will present itself for shewing/ bring to Your Lordship's view one instance in which alterations /amendments/ of real utility, of some variety, and to no inconsiderable extent /good, real good/, have actually come out of this /so unpromising a/ Nazareth.

    /Under Your Lordships stewardship/ The race was begun by Your Lordships learned adviser: the few and short steps taken by his reluctant feet in the career of reform put /were sufficient/ the old stagers upon their mettle: left to themselves they never had stirred, never would have stirred, an inch. Bot to be left behind, the Commissioners, /the as yet unborn competitors/ will find it necessary to make a farther start: and which soever be the emblem, an auction, a foot or horse race, or a game of leap-frog the force and benefit of this principle will stand confessed.

    /+ 3 but the state of things expressed by the homily proverb, beginning with needs must, was realized./

    /+4 or a set of sealed essays written or tenders[?] and sent in for [...?], question or advertisement for contractors.