date

17 Apr 1808 Letter V Ch.
17 Apr 1808

Letter V

Ch. | | Competition

' Proposed [...?...?...?]

1. /Competition the 2?:-/ Competition as between the Court of Session and the Commissioners.

Accuse me not of inconsistency, my Lord, in stating in the outset the distrust I found myself compelled to entertain respecting their learned Lordships, and now finding /[...?]/ a function for them which had not been found for them by any body else and there[?] functions too exactly upon a [...?] with those which are proposed to be committed to the Commissioners, the special depositaries[?] of /so high a measure of//so important a portion of/ the public confidence.

By a [...?] driven /plunged/ about in the whirlpool of personal interests and party politics, it is not often that the same object is held up to view [...?] on the same occasion in from unfavourable and a favourable and an unfavourable light: Too obscure to have any place in that vortex, man has no difficulties to encounter on that score. Without much pain I state in what circumstances evil rather than good may in my honourable view of the matter be reasonably expected at the hands of these illustrious persons: with [...?] pleasure /I state/ in what other circumstances /service really beneficial/ good may be to be expected from the same quarter.

Thus it was in /a case/ an instance already brought to view. What these Judges appeared desirous of is what our own Judges, with or without practice, have so often and so recently exercised - a dispensing power /suspending though not declared as such/ - and this upon their own terms. What I have volunteered in proposing for them is a suspending power, though a condition of its being called by /given for what it is/ its proper name, and being exercised upon my terms.
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  • Title: [[...?] Apr 1808 Letter V Ch]
    Description: [...?] Apr 1808

    Letter V

    Ch. | | Competition

    ' Proposed [...?] degree & [...?]

    ' Ulterior competitions proposed.

    Such are the competitions that in the field in question appear to have already manifested themselves /taken place/: such the good /benefit/ which, in my honourable view of the matter has resulted from them.

    For what purpose is it that they are here brought to view? that from the good effects already produced by this[?] principle an anticipation may be formed of the further good effects that may be expected from such ulterior applications as the [...?] of the case admitts of.

    Two /Three/ have presented themselves in this view -

    1. Competition as between the Court of Session and the intended Commissioners.

    2. Competition as between Commissioners[?] and Commissioners[?].

    3. Competition as between Commissioners and Volunteers.
  • Title: [4 Apr. 1808 Letter V Ch.3.]
    Description: 4 Apr. 1808

    Letter V

    Ch.3. [...?]

    8. In /By/ his first Bill (' 14) the learned scribe would have left in the hands of the Court of Sessions the power of framing the whole system of procedure, of proceding included, without reason: by which mean they would have been enabled to show obstruction without end, and in some places perhaps insuperably in the way of the Commissioners. The course I should have taken would have been to leave the system open in all its [...?] to these [...?] hands of the Commissioners: As the reason /existence/ [...?] of the Faculty of Advocates, this course has in the main been taken by the learned scribe in his [...?] Bill. Whatsoever regulations it may happen to the Court to frame, being now declared to be in effect but provisional subject to eventual alteration by Parliament after the Commissioners have made theor Report or vefore, My approbation of the change /ammount[?]/ is when being grounded on the distrust mentioned above /+see separate Chapter/, my approbation /the [...?] at the prospect of the change/ can not but be legitimate[?].

    9. Leaving and Giving power to the Court for the legislating outright, without waiting for the sanction of Parliaments, it of course it never occurrs to the learned scribe to invest these Judges with any check [...?] as well as subordinate hand in legislation, as that which is given to the Commissioners. And it depend upon me, I should be for giving to the Judges the same authority, stretching our field of exactly the same extent. Of this desperation[?] the principal ground is the contemplation of the benefit of competition. Of This principle [...?] in its application to the subject now in hand, is destined to /will/ form the subject of a Chapter by itself. /+ Ch │ │ Competition its use as applied to to the authors of [...?] law, when[?] in question/.
  • 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.