date

26 May 1805 Evidence Introd
26 May 1805

Evidence

Introd.

ch. Evils causes - non demand

(2 '1

Stet?

But the argument is not yet put to s-----. Looking a little deeper into the subject it reproduces itself in this form.

Suppose (according to what appears to be your wish) suppose the whole burthen of factitious expence taken off at once. An addition, and that a very great and sudden one to the number of suits to the number of suits defended as well as suits instituted is no more than what you would expect to take place. Among these will be many that will be well-grounded: on the score of these carry so much (your right is admitted) to the account of good. But along with these will be others that will be ill-grounded: on this score of these you can not refuse to carry a proportionable /-----/ amount to the account of evil. But these evil-producing suits are as truly the product of your supposed reform as the good-producing ones: can you take upon you to say that the good of the one is preponderant over the evil of the other.

I answer /My answer is/ - I think I might. But with respect to the /for deciding a/ practical question, another question presents itself as the satisfactory and ------ heading to the most satisfactory solution by the shortest road.

The evil attending the ill-grounded part of this mass of new-produced suits is admitted. But still the question recurrs whether a burthen confined to such litigants on the part of whom the litigation is forced(?) to be ill-grounded would not have a stronger tendency to diminish the proportionable number of ill-grounded suits thence a burthen of the same weight thrown alike upon those on whose part the litigation is well-grounded as upon those on whose part it is ill-grounded?
Similar Items
  • Title: [26 May 1805 Evidence Introd]
    Description: 26 May 1805

    Evidence

    Introd.

    ch. Evils causes - non demand

    (2 '1

    Stet?

    By another question the matter may perhaps be still more clear. Whatever expence is at present thrown indiscriminately upon those on whose part the litigation is ill-grounded and upon those on whose part it is well-grounded, suppose the expense were to be taken off /removed/ altogether from those on whose part it is well-grounded, and /but/ at the same time preserved to press with the same force as at present, of such an arrangement would not the effect be to render the number (the proportionable number at least)of ill-grounded suits less than it is at present?

    That the purpose of justice and the interest of the public would be better served by such a state of things than by the existing state of things, seems hardly to be doubted, is a proposition the denial of which seems not quite so easy /practicable/ as if practicable it would /might/ to some ----- descriptions of men be desirable.

    The result is that litigation being an evil, the less is the quantity to which it is reduced the better, so it be without ------ to the fulfilment of the direct and ultimately collateral ends of justice.

    That, in so far as it has for its cause the uncertainty of the law, the proper, effectual and only proper effectual ends of labouring in the ridicule of it is by

    Criteria of the utility of the reform. The reform useful 1. if cause of small value -----

    2. if causes of great value are not increased or diminished.
  • Title: [26 May 1805 Evidence Introd]
    Description: 26 May 1805

    Evidence

    Introd.

    ch. Evils causes - non demand

    (2 '1

    Stet?

    The argument thence runs thus - Litigation is an evil. Whatever tends to diminish the number of suits tends to diminish litigation: vexation and expence to /imposed on/ litigants tend to diminish the number of suits, therefore vexation and expence to litigants diminish evil, and in that respect are a good.

    By itself the proposition is true enough: but in the character of a justification of the arrangements in question it amounts to nothing. Good and evil together are produced by almost every measure of government that can be named: upon the proportion between the two depends the eligibility of the measure.

    The question as rightly and usefully stated, will stand thus. In as far as litigation is attended with pure or preponderant evil, which is the most eligible (i.e. the cheapest as well as most efficient) remedy for the suppression /repression/ of it, burthen of expence thrown indiscriminately without regard to right or wrong, or burthen of expence confined to misconduct and measured out according to the degree?

    In many cases, when a question is properly /clearly and -------/ stated, the answer follows of course: the present seems to be /presents itself as being/ of the number of those cases.
  • Title: [4 July 1807 + 7 2 o]
    Description: 4 July 1807

    + 7

    2 o

    Letter V

    Ch.4. Litigation promoted

    §.4

    21 Jan y 1808 Omitt this or preserve as being applicable chiefly to Bonâ fide Litigants?

    Special Instructions for the application of the principle of uncertainty to the promotion of malâ fide litigation, the fruit of dishonesty on the defendants side.

    Your business is to make as many suits as possible, each to lasting as long as possible, a suit ends as soon as either party thinks it more for his advantage to give it up than to go on with it. The thing to be aimed at is that whatever be the real chance of success on the plaintiff's side, it may appear to the plaintiff greater than it is, to the defendant less. Remember the tube which looked through with one end next to the eye makes the object greater than it is; with the other less. On the plaintiff's side his chance must never appear to him so small in value as not to be worth taking: this point secured, the less it is worth the better: because the less the real value of the plaintiff's chance, the less the difficulty of making it look below nothing on the defendant's side. In every case therefore it is necessary that a deception should press upon one side at least if not upon both. This deception is favoured by two principles in human nature, of which it will be your care to turn to the best account, the predominance of hope over fear. (called by A. Smith a man's confidence in his own good fortune) and the passion of revenge by which for the pleasure of subjecting the adversary to a loss a man is frequently induced to take a still greater loss upon himself.

    The wrong will not be committed, nor consequently the suit for obtaining satisfaction commenced, unless in his own estimate the proposed wrongdoer has less to fear than to hope from the commission of it. What he has to fear consists of the consequences of ill success in case of litigation: these consequences will consist of an eventual burthen which in different shapes one or more of them - such as satisfaction, punishment, and costs. [Since for some, the check applied by the fear of a charge on the score of satisfaction is stronger than that imposed by the fear of a charge on the score of punishment: because to the mortification of being so much as added that of seeing the party injured gain it.] But an alleviation of the aggregate burthen in any one part, of the aggregate restraining burthen, might be made up by an equivalent aggravation of excess in any other. Your care must therefore extend to the whole.