date

14 May 1808 Ch.V. §.8. I. Reasons
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.
Similar Items
  • 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

    In no one instance has a fiction ever been broached, but that in the conduct of the Judge who broached it, two species of guilt have been combined, the political guilt of usurpation, and the moral guilt of wilful falshood: always accompanied with usurpation, so far from operating as an extenuation of that offence, it has in every instance been a feature of aggravation added to it: it has been a species of swindling not commissible[?] in any other than that high station: obtaining power on false pretences: power in the foreground with money behind it in the back ground.

    The mischievous consequences have not been confined to those produced by the usurpators[?]. Of the falshood by which the seat of judicature has been polluted the influence has been of the most disastrous kind as well to the public understanding as to the public morals.

    To the public morals, by recommending from the highest authority, as a practice worthy of imitation, recommending by open practice, a mode of recommendation universally acknowledged to be so much more forcible and impressible and efficient than simple precept, the vice recommending and from this exalted station, and as it were sanctifying and canonizing the vice of lying, urging men thereby to the commission of all those wrongs for which by those to whom they have thus been instigated to the commission of them they are afterwards punished.

    2. To the public understanding, by inculcating and causing so many gross and most pernicious errors, and this too on the part of a Judge, has been not only subservient, conducive, beneficial but for this length has imposture on the one side and infatuation on the other been carried but even necessary to justice.
  • 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.