date

16 May 1808 I. Reasons Ch.V
16 May 1808

I. Reasons

Ch.V. Advantages

§.8./7./ Fiction ousted

When the system of Scottish procedure began to develop itself, neither the need of any such instruments presented itself in any thing like equal degree, nor the facilities for using.

1. Not the need of them. For being little embarassed by Parliaments, the Court of Session, the child and instrument of Royal power, found little difficulty in the pursuit of whatever happened to be its own views - that is, the views of the majority of that comparatively numerous judicatory, without recourse to fraud in either of those or in any other shapes.

If a word was wanting, nobile officium served for everything.

5./2./ Not the facility: for by this time, the Common mind had advanced to[?] [...?] too high a state of maturity to afford a prospect of success to frauds of so gross a texture. The dawn of religious liberty had begun to give its vigour to the public mind. No imposture too gross concealed from detection by the combined force of interest and interest-begotten prejudice. The Priests of the Grand Laws[?] proclaim the immortality of their ever changing God. English Lawyers proclaim the innocence and meritoriousness of iniquity under the name of nullification, and of lying under the name of fiction.

6. The Roman Law &c

7. In the case of the Scottish judicatory the populousness of that judicatory, and the parties into which it was in consequence habitually divided, were of themselves circumstances sufficient to throw obstruction in the way of any persevering and consistent system of fraud and artifice. Devised by one party, a law would have been denounced as such and protected against by another.
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  • Title: [16 May 1808 I. Reasons Ch.V]
    Description: 16 May 1808

    I. Reasons

    Ch.V

    §.│ │ Fiction ousted.

    These things are what are known to every body: these things are what every body makes out to use: for when abuse is the object blindness in the eyes of the great vulgar[?] is at once probity and wisdom.

    In the metropolis of Scotland, there never was more than one superior judicatory: and that judicatory, being but one, saw no other which it could fight, or have any need of fighting with.

    In the metropolis of England there were four: and these, till within this last century and a half, were in a state of constant warfare.

    When Greeks and Trojans fought, it was for Helen. When English Judges fought, what they fought for, was what Gregson[?] and Gully fought for - money.

    What they fought with - the grand instrument of warfare on both sides - was fiction. Foul as the weapon was, the foulness opposed neither bar nor difficulty to the use of it. Universal practice had produced universal facility. Universal guilt secured universal connivance. By destroying, had it been possible, this instrument of the adversary's trade - an instrument so necessary to all such trade, by thus destroying the adversary's trade each trader would have destroyed his own.

    To the Scottish judicatory

    For imposing taxation and through taxation prohibition upon justice for dues to the more opulent the property of the indigent, no fiction was necessary. No fiction, nor among rival authorities any connivance: for rival authorities were none. As to connivance it was sufficient that it should be found in the eye of the legislator: and there, for want of personal interest to [...?] it, thus accordingly it was found.

    + So much was rendered necessary to be paid upon every representation: and for adding representation to representation without end the act of doing nothing being abundantly sufficient the act of lying was superfluous.
  • Title: [16 May 1808 I. Reasons Ch.V]
    Description: 16 May 1808

    I. Reasons

    Ch.V. Advantages

    §.9./8./ Fiction ousted

    Into Scottish judicature the English Jury trial as bestowed upon English pleading could not be imported but that fiction - that is if not the practice, the result and produce of the practice, would be imported along with it: imported, and by wholesale; nothing in the whole system of pleading being done without it: for the short but not less true account of the matter, if on such a matter the truth may be spoken, is - the whole system of procedure - of Common Law procedure - is one great lie. But once more, the importation of English pleading into Scotland is impossible.

    On the present occasion this truth may be acknowledged without much difficulty, Scotch lawyers not having been attached to the use of fiction by habit and prejudice, will not naturally be disposed to regard the exclusion put upon it by the proposed plan as a loss. Fictions of English growth nothing hinders them from viewing in a true light: for fictions of Scottish growth, even were[?] the cast[?] favourable to them, which it never has been, the season is too late.
  • Title: [16 May 1808 I. Reasons Ch.V]
    Description: 16 May 1808

    I. Reasons

    Ch.V. Advantages

    §.9./8./ Fiction ousted

     Here or under Language familiarized.

    By the exclusion of these two master instruments of iniquity, nullification and fiction, together with their product, a language in which every imperfection of which language is susceptible - obscurity, ambiguity, and absurdity - have been nursed and matured with equal industry and success, an end would, in Scotland, be put to that degrading bondage, thraldom, in which men of all ranks, the very highest not excepted, are held bound, under a class of men acting under the influence of an interest opposite and irreconcilable to that of the whole nation besides.

    See §. │ │ Language familiarized.