29 Oct r 1807

L d Eldon's Bill

'.14

Sound discretion just regard

(4) (Sound discretion... just regard to the interests of the parties &c)

On this /[...?]/ particular occasion the "discretion" created to be " sound" - the " regard to the interests of the parties" enacted to be "just" - did ever ancient gentlewoman charm more wisely? After an exhortation thus eloquent, (for if the enactment be not an exhortation what is it?) what Judge will ever call up /employ/ for the purpose any other discretion than a sound one /discretion/, bestow upon the interests of the parties any other "regard" than a "just" one? Thus much at least may be affirmed, and with full assurance, that after reading it no Judge will ever on any such occasion be bold enough to say, the discretion which on this occasion I employ is unsound, the "regard" which I bestow "in the interests of the "parties" is unjust.

Poor Lord President's Draughtsman! no preachment of this sort could he have ventured upon, had he been ever so well inclined /disposed/ for it: his cathedra was not high enough: but it belongs to superior station to preach and to instruct; to inferior, to listen, and to admire.

When Lord Camden was in the Cathedra of the Common Pleas, discretion was a bad thing - a very bad thing indeed, so bad as to be "the law of tyrants. But that was because Lord Mansfield used to talk of discretion and pretend to make use of it; and Mansfield was a bad man, so bad as to sit in a higher seat than Lord Camden's. Now discretion is become a good thing, good enough at least for Scotland /a Scotch Bench/: aye, but then it must be a sound one.

In the departed sage, this invective against a necessary word was envy /malice/ and orator-craft: what is it in this living one? Is he conscious of the futility of this verbiage /sham instruction/ which is thus to be [...?] upon men for genuine /real/ sense, or is he himself a dupe to it? did it really appear to him, that by enacting that the " discretion" should be " sound", he could make it be sounder than it would be otherwise? - that by enacting that the " regard" should be " just", he would make it be juster than it would be otherwise?