date

18 March 1807 8 But in this
18 March 1807

8

But in this case if it be temerity that is meant to be imputed to the appellant, temerity as conveying a distinct idea, and presenting in a direct manner the ground of the arrangement taken to his prejudice, temerity I say is the word that ought to be employed: temerity, as being susceptible of but one [...?], and that a proper one, as being applied directly to the conduct of him who in consideration of such conduct is to be taken in hand and burthened; not frivolousness as being applicable to either of divers subjects it is difficult to say to what, and at any rate not directly to human conduct, the subject for which an attribute is required.

Tinctured or not with temerity, and so again with malâ fides the conduct of the Appellant in preferring the Appeal wil have been productive of vexation. Has the production of that vexation his sole or principal object in view? the pleasure of contemplating that vexation the motive by which he was actuated? Here is the modification of malâ fides. But to keep clear of ambiguity, and lest a man whose object was no other than to gain /the benefit on/ a [...?] what he looked upon as his rights /due/ may not under the name of costs or any other name be punished or otherwise afflicted for it, malâ fides and not vexation is the mask on which the affliction ought to be stamped.
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  • Title: [18 March 1807 3 To apply the]
    Description: 18 March 1807

    3

    To apply the distinction to the case in hand - that of appeals /appeal/.

    The malâ fide appellant /the malâ fide suitor/ is that species of man most of whose existence I have been employing[?] so much and I fear such fruitless labour to impress the conviction upon Your Lordship's learned Reformer's mind. He himself is as well satisfied as any body /one/ else can be of his having no rights to the sort of service which by the appeal he prays /demands/ for, but forasmuch as under the protection afforded to him under the name of law by learned Lords and Gentlemen he finds it or renders it his interest to persevere in such demand, to persevere accordingly.

    The appellant who though by the supposition he is in the wrong, is not conscious of his being so, and therefore is not a malâ fide appellant, may according to analogy, reference being had to the above cardinal distinction, be termed though a bonâ fide a temerarious appellant - his conduct in respect of his preferring such appeal may be said to be coupled or tinctured with temerity - and so forth.
  • Title: [18 March 1807 7 Is it then]
    Description: 18 March 1807

    7

    Is it then The word frivolous being thus employed in /to form //to express/ the character of an attribute, to the word /of instead/ appeal the grounds and reason of the appeal be considered as designated /the object/ in the character of the correspondent subject, compared with /the expression when/ the same /above/ standard, will appear equally incompetent /ill qualified/ to lead to useful practice.

    These grounds and reasons may be ever so frivolous ever so insifficient in point of reason to warrant the conclusion built upon them /drawn from them/, and on the part of the suitor on whose behalf they are employed yet be unaccompanied

    with malâ fide. It may even happen that they are not so much as accompanied with temerity. For be they ever so frivolous what may happen is that they are the fruit of the majority of th suitors lawyers, and forasmuch as it not endurable where law is concerned that non-lawyers in general should hold themselves wise than the laws that is than the lawyers by whom a pretence of being declared they were made, or at least without imputation of rashness may a suitor be allowed to regard the wisdom of his own lawyer /of thre lawyer of his choice/ as superior to his own. On the other hand true it is, that the more frivolous the grounds, produced in appeal of an Appeal or any other legal application, appear in the eyes of him to whom it belongs to judge of them, the stronger will be his reason for regarding the application as accompanied /tinctured/ either with temerity or even with malâ fides.
  • Title: [8 July 1807 (4) 15 Letter V]
    Description: 8 July 1807

    (4) 15

    Letter V

    III Litigat. prevented

    Insolvency

    As an instrument of extortion, from the defendant himself, he having nothing, being, by the supposition, in a state of insolvency, his imprisonment can not extract any thing: whatever effect it has, where it has any, is by its action in that character upon some third person or persons, connected with him by some tie of interest or sympathy. But here, as before, nothing is gained to justice. On the contrary whatever effect is produced is prejudicial to justice. With or without collusion with one another, it enables two dishonest individuals (the future plaintiff and the future defendant) to practice successful extortion upon the friend of one of them.

    Whether accompanied with malâ fides, or with nothing worse than temerity and that whether[?] antecedently

    or subsequently to the contracting of the debt, it is altogether fitting that insolvency should be subjected to punishment. Precedent to the contraction of the debt and accompanied with malâ fides, it is neither more nor less than what is called swindling. Tainted with malâ fides, tainted with temerity, or tainted with neither, and therefore pure from blame, in which of these three predicaments stands the conduct of the insolvent? Such are the points which ought to be ascertained in every case: malâ fides and temerity where they exist respectively, viz. with a view to punishment, for the purpose of example, for the sake of the public at large: blamelessness, as in the case of an unsuccessful military commander, for the sake of the afflicted individual, that uncensurable misfortune may not be aggravated by unmerited disrepute.

    What justice requires is that all these points should be ascertained in every case. In England under the system contrived by Judge and C o, none of them are ever ascertained in any case. That the innocent and the guilty with their respective connections to the greatest extent possible, should be confounded to one common pillage has been the result aimed at and produced in pursuit of the ends of judicature.