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.