date

PRIVATE June 1807 (1)
PRIVATE

June 1807

(1)

Letter V

II. Litigation

Concluding Observations

Where to insert this? at the end of Letter V §.2. Litigation Ch. or earlier?

Judges share with the malâ fide suitor

never too small to engage the Judge in the promotion of litigation:- in the Judge's situation it could not be greater.

An observation likely enough to be made, is that taking each job separately, instances will be found in which the share pocketed by the managing partners will be, or will appear to be, extremely small: too small to be capable of constituting in such a situation an adequately efficient motive:- and in particular that compared with the profit drawn in the same individual case by the partner, in that branch of the trade which requires the assistance of such a partner, without doors - the malâ fide litigant, it amounts to so little, that no connection in trade was ever formed upon terms affording so inconsiderable an advantage.

But on the other hand the following considerations will require to be taken into the account.

1. The neat amount of the aggregate mass of the profit being given the smallness of the component parcels, be they ever so minute, makes no sort of difference (as is already observed in Letter I).

2. The partner without doors, the malâ fide litigant, bears all the risk: what Judge and C o receive, and in particular what the Judges, the managing partners receive is clear of all risk.

3. The nature of the trade does not admitt of any express convention or agreement, nor consequently of any regular proportion, such as a per centage, between the profit on one part and that on the other.

4. Much less can there be any of that bargaining and haggling which has so free a course in ordinary trades.

5. Whatever is taken must be taken as matter of right; and therefore from every one from whom it is made due, and in the same proportion from one as from another: on which account, at the time of the original fixation, it was necessary that in each instance what is taken should be so small, that at least the majority of litigants should be considered as able to pay it.
Similar Items
  • Title: [PRIVATE 17 June 1807 B 7]
    Description: PRIVATE

    17 June 1807

    B 7

    1 o

    Letter V

    II. Litigation

    In so far as the civil i.e. non-criminal quarter of the field of law is concerned, the policy of Judge and C o may be comprehended by this general expression - promotion of wrongs and litigation: litigation for the sake of the lawyer's-profit of which it has been made the source; wrongs (in the present case civil wrongs) as being, in two of the three modes of litigation the sources of the litigation, and thence of its lawyers'-profit in a less immediate way; in the third mode, themselves the immediate source of that profit, litigation being the instrument employed at one and the same time for the working of the wrong, and the extraction of the profit: for the working of the wrong for the benefit of the outdoor partner, the malâ fide plaintiff and wrongdoer; for the extraction of the lawyers' profit, by and for the benefit of the indoor partners, Judge and C o.

    Howsoever it may be regarded as a sort of metaphysical abstraction, it may however throw some light upon the subject to observe, that as it is only in virtue of the connection thus intimately established between wrongs and litigation, as well as between litigation and lawyers profit, that, under the fee-gathering system Judge and C o possess the interest they have in the promotion and multiplication of wrongs, it follows, that, were it at the same time true, and to their observation clear, that wrongs were not a source of litigation: insomuch that in that ideal state of things, no greater exertions of industry and genius would on their part be directed to the promotion of wrongs than to the prevention of them:- and so in regard to litigation.
  • Title: [30 May 1807 Letter V II. Litig]
    Description: 30 May 1807

    Letter V

    II. Litig. prevent. & promot.

    The malâ fide Appellant is the malâ fide suitor or litigant, arrived at that stage of his career at which judgment having been pronounced in a subordinate Court, the prosecution of his design requires that appeal, (i.e. complaint of injustice supposed to have been done in respect of such judgment by such subordinate Court, accompanied of course with a prayer for relief) be presented to a superordinate Court.

    The malâ fide suitor is in any suitor who is conscious of not having right on his side.

    Except in the comparatively rare case in which the hope of success is founded on the hope of a successful misrepresentation of the matter of fact - and that without any of that assistance which has been provided for him in so many shapes by means of the law of evidence. - the malâ fide suitor (your Lordship will see presently) is the mere creature of the law: the agent raised up and employed under the fee-gathering system by Judge and C o, as a necessary instrument for the gathering in their profits. What the Procuress and the Bully are to the Prostitute, the malâ fide Suitor is to the trading company, which has for its principal managing partner the fee-fed Judge.
  • Title: [7 Feb y 1808 on L d Eldons Bill]
    Description: 7 Feb y 1808

    on L d Eldons Bill

    Appeal

    Appeal List defective

    In the annext Tables I have submitted to Your Lordship divers particulars relative to the branch here in question of the factitious-delay trade: and amongst them the neat profit made by two of the managing partners: and thus far from the most authentic source.

    In the course of these pages I have also stated the nature of the profit made by the outdoor partner, the malâ fide suitor and in particular the defendant, with money of the plaintiff's in his hands: the nature of the profit, and the circumstances in which the ballance between profit and loss, and thence the prudentiality of a man's betaking himself to the officia justitae, and becoming a customer for the article depends.

    In addition to the above particulars, it may be matter of curiosity at least, (but whether of use or no will depend upon Your Lordship and other Members, Right Reverend, Noble and Honourable, learned and non-learned of the Houses of Parliament) to see a calculation howsoever rough and imperfect, of the average annual amount of the neat profit reaped by the Indoor branch of the partnership in its several submissions official and professional taken together, from this same twig of that flourishing and ever encreasing branch of trade.

    Then as before, I have to regret that deficiency of appropriate power, for which no strength of will, no labour, how hard soever can compensate.

    The information the authentic information furnished by the Finance Committee not furnishing any other materials than what have been employed in the Tables, I find myself in the present occasion reduced to the stock furnished by M r. Palmer[?] in the collection he has published of Bills of Costs.