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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.
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Title: [16 May 1808 I. Reasons Ch.V]Description: 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: [14 May 1808 Ch.V. §.8. I. Reasons]Description: 14 May 1808 Ch.V. §.8. I. Reasons Ch.V. Advantages §.8. Fiction ousted §.8./7./ Advantage the 7 th. Exclusion of the practice of judicial fiction. Another result which in England a man could not place to the account of advantage with any thing like a firm assurance of seeing its claim to that appellation generally admitted. The fictions that constitute throughout the interspersed mixture with which the defence of English common law procedure has been constructed, have without any exception taken their rise in this mode. Purposing to usurp a power which he was conscious did not belong to him by his constitutional superior to be entrusted to him, the Judge makes use of an untruth, devises some untruth, and employs it as an instrument to disguise the usurpation and give safety and effect to it: stating upon the occasion as having place, some supposed matter of fact which to his knowledge has not place: viz. some imaginary event, or state of things which supposing it to have place, would afford a justification for the act of power exercised, but which not having place, affords in truth no such justification.
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Title: [16 May 1808 I. Reasons Ch.V]Description: 16 May 1808 I. Reasons Ch.V. Advantages §.9./8./ Fiction ousted. to worship vice and absurdity under the name of wisdom[?] To the public understanding again, by contributing its part in the composition of the matter of false science: by contributing its part towards rendering the rule of action unintelligible, and to cause man to acquiesce in its being so, to produce this acquiescence not only on the part of the uninformed and powerless multitude, but on the part even of the select few, to whose office it belongs to concurr in the formation of the laws the extension, correction and improvement of that rule of action which by this and other hundred artifices[?] thus has been rendered unintelligible even to themselves. To the public understanding again, by familiarizing it with absurdity: absurdity of the very grossest kind conceivable, such as if uttered by any man not protected from censure by irresistible power, would expose him to universal scorn, familiarizing men with it, and deluding them so far [as] engaging them to regard it not merely with indifference but with veneration, as part and parcel of the matter of arduous and peculiar science, whereas the science is nothing but what any man of the lowest vulgar[?] may equal and display at pleasure, who without making it the instrument of iniquity, will be satisfied with talking nonsense.
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