059-366.xml

Title: [[...?] July 1804 Procedure & Evidence]

Description: [...?] July 1804

Procedure & Evidence

8

Enquiry Mode

Ch. Advantages

Under the technical system in general and under the English systm in particular, malâ fides on which ever side it be demandants or defendant's has full swing. To shame it is never exposed /From shame it is effectually protected/ in every case, except on the part of the defendant in the few cases where /in which/ in the character of a prison his presence is indispensable, in most of which he is commonly out of the reach of shame by being beneath it.

As to success, under favour of the factitious delay, vexation and expence attached to the system - provided that on the part of the party injured there be a given deficiency, and in favour of the wrongdoer there be a given superiority in point of opulence, so far from despair, there is on the side of the wrongdoer, a compleat assurance. The malâ fide demandant may say to himself, and with full /the fullest/ assurance my demand though groundless, can not be resisted. The malâ fide defendant - meaning on this occasion him who would have been made defendant had it been in the power of his adversary to have the expence of a demand may say to himself with equal assurance - I will not comply with the demand without law /litigation/, since it will not be made in the way of litigation /by authority of law/, for the man whom I leave injured is not able to bear the expence: or should he be rash enough to engage in the track of litigation, it is in my power and it shall be my care to throw so many thorns in his way, that he will find himself obliged to stop before he has got to the end of it.

In both these cases, the existing /technical/ system shown in all its glory: to the party in the right it provides certain ruin: to the party in the wrong, certain success and triumph.

JB_092_124.xml

Title: [18 June 1807 (4) Letter V]

Description: 18 June 1807

(4)

Letter V

II. Litigation

III. Plff. malâ fide

Def t. malâ fide

Another point of distinction between the situations of the two species of malâ fide litigants acting in the character of conquerors, is - on the part of the intended suitor, the difference in respect of the facility of obtaining supporters, and consequently in respect of the terms on which the assistance of those of the mercenary class, which is the surest dependence, their support may be obtainable.

Correspondent to the advantage which the ambitious malâ fide litigant in possession has over the ambitious malâ fide litigant out of possession - correspondent in possession, but still greater is the disadvantage which attaches to the situations of the individuals marked out for their respective victims: the disadvantage which the rightful owner out of possession, and whose station in the suit if there be one is on the plaintiff's side, labours under, in comparison with that which attaches upon the rightful owner who is as yet in possession and whose station in the suit is accordingly on the defendant's side.

In possession, so as the subject matter in dispute be convertible into money, or in any other way a source of money employable at the will of the possessor, the subject matter in dispute serves to the malâ fide possessor, in the character of a fund for the expences of defence: so is it in the hands of the rightful owner, the bonâ fide litigant.

Destitute of this resource, the disadvantage under which the rightful owner labours, presses with a aggravated force proportioned in magnitude and energy to its depravity of the system of procedure: to its depravity in every shape, uncertainty, dilatoriness, expensiveness and vexatiousness.

JB_092_145.xml

Title: [12 June 1807 (13) (1) Letter]

Description: 12 June 1807

(13) (1)

Letter V

II. Litigation

Concluding Observations?

After this the observation showing that Judge and C o could not have been safely corrupt to more advantage.

They are not [...?] /[...?] [...?]/ to the dishonest suitor[?] the certainty of [...?] for ever, as we[?] shall see them [...?] the certainty of doing so far on [...?] his years, in safety and therefore without remorse - without shame

The nature and mode of operation of the several instruments considered, it will be evident that it was not in every instance in the power of the conductors of the system to promote the design of it in one way without counter acting it in another.

1. In the case of bonâ fide causes, so far as the uncertainty respecting the disposition of the main body of the law, so far as it was rendered matter of doubt whether the plaintiff had or had not under the law a title to the service which in point of natural justice at least be looked upon as his due - this uncertainty which it might tend in the way of encouragment to engage the party at whose charge the service was demanded, to refuse it, and so become defendant, would tend on the other side, in virtue of the difference in point of apparent probability, to discourage and deter him who should have been plaintiff from taking upon him that function: and as in regard to delay, vexation and expence.

But in respect of the prospect of ultimate success in bonâ fide suits this is all that could safely be done for the promotion of unintentional wrongs and litigation: and again in such malâ fide suits in which the malâ fides is on the defendant's side, this is all that could with like safety be done for the promotion of dishonesty, intentional wrongs, and litigation malâ fide on that side: a certainty of ultimate success in every case in favour of every individual who, whether in the right or in the wrong, and indiscrimately in the station of plaintiff or that of defendant at pleasure, would at the price of the attendant expence and delay be content to purchase it, and that without exposing the Judge to danger in any shape whether in the shape of legal or moral censure, was found to exceed the power of the mot consummate astutia on the part of the Judge, even when seconded by the most consummate blindness or patience on the part of sovereign and people.