date

[...?] 18 1808 on L d Eldons Bill
[...?] 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.
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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: [18 Feb. 1808 on L d Eldons Bill]
    Description: 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.
  • Title: [[094-159v] 21 Jan y 1808 L]
    Description: [094-159v]

    21 Jan y 1808

    L d Eldons Bill

    3. To another set of Commissioners is attributed /committed/ the doings of enquiring into and reporting upon the expediency, and eventually the mode, of engrafting Jury Trial onto the Scottish system of procedure in civil: Then I call the Great Seat Commissioners.

    The part which stands first is that which occupies itself in the establishment of regulations outright: regulations to take effect immediately by authority of Parliament.

    But observing that the effect of it is liable to be modified, and the design in an word[?] counteracted, by the regulations which the Court of Session are [...?] to make, I shall take the liberty of so far changing the order of the matters as to take first into consideration the part which occupies itself in buying[?] a foundation as above for regulations to be framed in future.

    The whole number of Judges, at present 15 to be divided into two sections eight in one, seven in the other: in the eight-seated section the Lord President of the whole Court to preside; in the seven-seated, the Lord Justice Clerk: each section to contain an equal number of the Judges of the Court of Justitiary, reckoning the Lord Justice Clerk as two. This forms the principal matter of the [...?] first section of the Bill. Section 6 th gives to each of those two sections, except as excepted the powers, duties and functions of the whole: section 7 th undertakes to appoint for each section a quorum number, two finding the task not quite so easy perhaps as at first [...?],