date

1819 Aug. 26 Fallacies 2 Ch
1819 Aug. 26

Fallacies 2

Ch | | Logical High

| | King can do no wrong

Absurd as it is the first mentioned import is that which at the time the maxim was first broached was attached to it by the venal and servile crew who were the founders of that fictitious system so miscalled by the name of law - the perpetually removable instruments of his despotism - the lawyers /Judges and other Crown-lawyers. (a)

Under the Stuarts, when under a prospect of support from a large portion of the people whose patience had at length been wearied by misrule some eminent lawyers headed by Lord Coke the displaced /a disgraced/ and malecontent Chief Justice, had engaged in opposition lawyercraft and[?] and employed itself in counteracting as above the effect of this maxim by one of an opposite tendency drawn /spun/ out of its own bowels. A ground for it in precedent was found for it in the case of several Court favouriates and other instruments who in different parts of the history and perished on the scaffold.

In doing this, they did all that in the then existing state of the public mind was capable of being done, towards opposing any barrier whatsoever has soever feeble to monarchical despotism /tyranny/.

Note (a)

(a) Note on Droit[?] le Roi. Thinking probably to obtain Court favour at the time of the contest between John Wilkes and the King's Ministers a man of Licoln's Inn of the name of Brichnock[?], a lawyer who then was or had been an Attorney, published a book under the law french title of Droit le Roi - Rights of the King. Without the selection made of them and the varnish put upon them by Blackstone, it consisted of extracts fiathfully made /compiled/ from the books of the old lawyers. As faithful as any icture can be of that which has no existence, it was a picture of /such part of the/ the Common Law as relates

to

to the powers of the Monarch It was such a picture as no Sophy[?] of Persia, no Czar of Muscovy, could have complained of as falling short of his rights, that is of his desires. Apprehencion of being looked upon as being at the bottom of it, the mininsterial party in the House proposed, and the opposition acceded to, the burning of it by the hands of the Common hangman; and burnt it was. Some years after, the compiler in Ireland was hanged for murder.
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    In French law, it should seem, after the recent improvements /legislative labours/ of so many years, this innovation is yet to make. Summoned by the defendant in a criminal cause, or at any rate a capital one, a witness is at perfect liberty. Friendly to the summoner he obeys the summons: adverse, or indifferent, he takes no notice of it. The case in which this was pronounced to be law, and by the first /highest/ person /authority/ in the law, was the case of treason committed against the person of the first Magistrate. +

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    Ce principe est faux. Le témoin sommè par l'accusé ne doit point avoir le droit de se refuser: il ne peut point savoir davance sur quoi l'accusé peut s'appelles en témpoignage - ce peut être sur un fait essentiel que lui seul peut prouver - accorder ce droit aux témoins à decharge, ce seroit mettre un accusé dans le cas de ne pouvoir faire aucune de ses preuves justificatives - c'est donner libre carriere à l'homme puissant contre tout le monde - c'est exposer les témoins à dècharge qui compaivissent, au lieu que leur propre sûreté demande qu'ils soient sous la constrainte de la loi et sous celle du serment.

    Le refus de compaioître ne signifie point qu'on n'a n'en à declarer en faveur de l'accusé - il signifie qu'on craint de se compromettre en parlant pour un homme accussé par une partie redoutable - qu'on est indolent qu'on n'aime pas l'accusé - qu'on ne se soncie pas de lui -

    Le témoin sommé peut-il decider davance sur quel point de fait l'accusé a besoin de son témoignage -

    Ce principe me paroit si horrible que je crains de ne pas comprendre le vrai sens du President de ce tribunal cependant, je ne puis en trouver aucun autre. Témoin à decharge, e'est un témoin que l'accusè rèclame en sa faveur. Les laisser libres de paroître ou de ne pas comparaître, c'est les laisser libres de refuser le premire service qu'on doit à un citoyen et[?] à un malheureux.

    (Translation)

    In the criminal process against those who have attempted to assassinate Bonaparte, Demerville one of the accused complained of the absence of the Consul Carabarerès[?] whom he asked to be [a] witness for the defence. - I ask, he says, that the tribunal call upon him to appear - The tribunal is not entitled to replied the President. The appearance of witnesses of the defence is voluntary for them. Not to appear at all, is to reply, is to say that they do not declare (themselves) in favour of the accused - Paris[?]-by [...?] n.220 February yr.1808.

    This principle is false. The witnes summoned by the accused does not at all have the right to refuse: he could not at all know in advance on what the accused would be called upon to give evidence - this perhaps on an essential fact that he alone could prove to accord the right to the witness of the defence, would be to put an accussed in the place to not be able to do anything with his relevant evidence - it is to give a free hand to the powerful man against the whole world - it is to expose the witnesses of the defence who testify, wheras their own security demands that they should be under the constraint of the law and under that of oath.

    The refusal to testify does not at all signify that one does not declare oneself in favour of the accused - it signifies that one fears to compromise oneself by talking for an accused man by a redoubtable party - that one is indolent - that one does not like the accused - that one does not concern oneself about him -

    Should the summoned witness decide in advance on whichpoint of fact the accused has need of his testimony -

    This principle appears to me so horrible that I fear not to have understood the true sense of the President or this tribunal however, I can not think of any other. Witness of the defence, it is a witness that the accused calls for in his favour. To let them free to appear or not to testify, its to let them free to refuse the first duty that one owes to a citizen and [?] to an unfortunate.