date

[...?] July 1804 Procedure & Evidence
[...?] 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.
Similar Items
  • Title: [12 July 1807 (11) Letter V]
    Description: 12 July 1807

    (11)

    Letter V

    III. Litigat. prevet.

    III. Directions for the prevention of malâ fide wrongs and eventual malâ fide defence on the part of a defendant combating for success through indigence on the other side.

    Take away all factitious expence and vexation: in case of necessity provide for the defraying of the necessary mass of expence at the charge of some fund other than of the purse of the indigent individual in each case. See below Directions concerning malâ fide Plaintiffs.

    IV. Directions for the prevention of malâ fide wrongs and eventual malâ fide defence on the part of a defendant combating for intermediate profit by delay.

    1. Do away all such factitious delays as you find already established under and by the existing system: to do this you must substitute in every Court of judicature the natural system to the existing modification of the technical.

    2. In regard to such facititious delays as even under the natural system it might be in the power of a defendant, malâ fide or even bonâ fide, to produce, be careful to take away, in every shape, all possible profit from the delay; and in particular so ordering matters, that whatsoever be the loss produced by the delay to the party on the other side, viz. on the plaintiff's, full satisfaction shall be made to him for it at the defendant's expence.
  • Title: [[...?] June 1807 (22) (6) Letter]
    Description: [...?] June 1807

    (22) (6)

    Letter V

    Litigation - Prevent Promot.

    II. Def malâ fide

    [written in columns. column 1]

    II. Arrangements for preventing litigation, by preventing wrongs considered as sources of malâ fide litigation, the malâ fides being on the defendant's side.

    1.2.3.4.5.6.7. Obviating uncertainty, as above, Pt.[?] I[?]: and thereby giving to each individual considered as exposed to the temptation of doing wrong, the fullest assurance, that in case of transgression on his part, the ultimate and preponderant suffering will fall - not on the head of the party wronged, but upon his own.

    8. In case of insolvency on the part of the intended wrongdoer, having in contemplation the commencing malâ fide defendant, making points[?] and in other respects effectual provision, for preventing him from embezzling or dissipating the subject matter in dispute. For particulars respecting such provision, see further on.

    9. In particular, so ordering matters, that, whether the wrongdoer be insolvent or solvent, he shall never in any case, so in such suit[?], take advantage of his own wrong, as to withdraw from execution - either the subject matter in demand or any part of it, in species or in value, or any part of that property which by the judgment, in the character of the matter of satisfaction, is or ought to be, disposed of in reparation of the wrong, preserving thereby, as constantly as possible the public eye, from that spectacle, which to every honest eye is among the most afflictive that can be prescribed to it - the triumph of Jurisprudence over Justice.

    [column2]

    II. Devices for promoting litigation by promoting wrongs antecedent to and productive of litigation to be committed by a wrongdoer, who upon the injured party's seeking redress in the station of plaintiff, will thereupon become a defendant; viz. a malâ fide defendant.}

    1.2.3.4.5.6.7. Fostering uncertainty and uncognoscibility on the part of the law, as above: and thereby rendering it as uncertain as possible to the proposed malâ fide defendant, whether undeer the law the party injured possesses in point of actual law, the right in question, and if he does, whether he has any and what remedy.

    8. In case of insolvency on the part of the proposed malâ fide defendant, securing to him the faculty of embezzling or dissipating destroying or deteriorating, the subject matter in dispute.

    9: Providing a variety of shapes the more the better, in which the property of the defendant, including the subject matter in dispute if pecuniary, or equivalent to pecuniary, may in case of judgment given against him, be secured against execution: (a) viz. either to his own use, or to the use of his offspring and others connected with him by the ties of sympathy.

    (a) Note about Grant[?] &c.
  • Title: [1 June 1807 Letter V III Devices]
    Description: 1 June 1807

    Letter V

    III Devices for promoting litigation by promoting wrongs of which litigation is /shall be/ itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming /rendering himself/ plaintiff: - viz. /and thereby/ malâ fide plaintiff.

    This purpose is answered by the various /divers/ mischiefs the production of which has more commonly some nearer or other /ulterior/ object: viz. /ex. gr./

    1. By the factitious expence attached to litigation, for the sale of the profit extractable from the offence.

    2. By the vexation inflicted on /produced to/ the defendant by the expence and trouble /2.3. By the expence and vexation/ of his defending himself /defence/:

    3. By the uncertainty of the law as above (II 1.2.3.4.5.6.7.) viz. the uncertainty whether even suppose functioning[?] sufficiency not wanting, he may be able, under the law, to defend himself with success: - by this uncertainty, and the vexation attached to it.

    4. By the factitious delay the manufacture of which has its main /principal and more immediate/ objects the profit-yielding expence, be the cause what /which/ it will a bonâ fide or malâ fide cause, and the encouragement it holds out for continuing defence[?], in /commencing and persevering in/ a malâ fide cause in which the malâ fides is on the defendant's side. (as per II.10.)