date

25 June 1807 (3) Letter V
25 June 1807

(3)

Letter V

II. Litigation

Concluding Observations

3. In the case where the Plff. is in malâ fide (his reliance being on the engines of iniquity made for him by Judge and C o and not upon false evidence) the tendency of the factitious expence upon the number of suits acts purely on the side of increase.

The intended wrongdoer is able to bear the expence of litigation, the intended sufferer by the intended wrong is seen or supposed to be unable, or so nearly unable as to be determinately unwilling to defend himself.

Here then he commences the suit at any rate according to the nature of his object and the success that attends him in the pursuit of it, he suffers it to terminate at an earlier stage or carries it on to the farthest possible. If his object be extortion, and that will content him, as soon as the Defendant consents to yield up the object of the Plaintiff's concupiscence, a period is put to the suit. But if the object be simple oppression for gratification of enmity, the suit runs on its course till the gratification be consummated.
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  • Title: [25 June 1807 (2) Letter V]
    Description: 25 June 1807

    (2)

    Letter V

    II. Litigation

    Concluding observations

    Where the circumstances of the would be wrongdoer are relatively indigent, especially if those of the intended sufferer by the wrong be relatively affluent, the expence by the prospect of it tends to prevent the commission of the wrong, and where the wrong happens to have been committed notwithstanding, the expence partly by the experience of what is already incurred partly by the apprehension of what may remain to be incurred, tends to prevent the continuance of the suit, by preventing the continuance of the malâ fide defence, and thence the continuance of the suit.

    But where the circumstances of the would be wrongdoer are relatively affluent, those of the intended sufferer by the wrong being relatively indigent, the expence by the prospect of its effect on the intended sufferer tends to promote the commission of the wrong, but again when the wrong having been committed accordingly, the party wronged notwithstanding has indigence ventures to such redress and so commences a suit, the tendency of the expence is, as before partly by the experience of what is past, partly by the apprehension of what may be to come, partly by the utter inability to continue the pursuit, to put an end to the pursuit, and so in that way to the continuance of the suit. However, though under the pressure of the expence many of the wrongs produced by the prospect of impunity there will be some that will not be productive of juridicial[?] complaint, yet forasmuch as of the many wrongs which but for this encouragment would not have been committed there will be some that will produce each of them a suit, thus it is that in this case the effect of the expence will be upon the whole to give encrease to the number of suits.
  • Title: [PRIVATE 7 June 1807 Superseded]
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    Letter V

    II. Litigation Prevent. & Promot.

    2. Plff. malâ fide

    In the station in which they are placed it is impossible for them to avoid checking oppressors in a considerable degree. But the check they apply to it is of course on every occasion as weak and inefficient as they can succeed in rendering it.

    The principal distinction is that which respects the shape in which the advantage is reaped by the wrongdoer, the wrongdoer whose station is on the plaintiff's side. I speak of the distinction between oppression in the way of extortion, and simple oppression.

    Oppression in the way of extortion demands the first consideration, as being the original and basis of the other. The intended victim - the intended defendant - the Naboth - is in possession of some estate, or other article of value - some vinyard which is become an object of concupiscence to the oppressor - the David in this history. In every such David Judge and C o behold the man after their own heart. Costs to be advanced for the purpose of defence, so much; costs of suit to be advanced on the plaintiff's side, so much: if Naboth is either unable, or through terror unwilling to make the advances necessary on his side, while David is both able and willing to make those which are necessary on his, the conquest of the vinyard is assured.

    If Naboth be to such a degree destitute of all support, from without as well as from within, as to stand disabled or deterred from taking so much as the first steps in the track of defence, the destroying Angels - Judge and C o - get nothing for their share.

    To a man whose intrinsic means of defence are deficient or inadequate, it will sometimes happen to obtain support from without - that support will be either mercenary or gratuitous.

    In either case the expectation of David is pro tanto disappointed: in either case the work of destruction is entered upon, and the destroying Angels get their share.
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    Letter V

    II. Litigation

    Directions and Instructions from Lord Coke to his disciples, shewing how to give existence and encrease to litigation viz. to profitable litigation: serving at the same time for the retrenchment of that which is unprofitable: communicated to the editor in a vision, by the patriarch and taken down from his own mouth.

    For giving encrease to litigation, and more especially to civil litigation being that which is most profitable, it is before all things necessary to give birth and encrease to wrongs, viz. to civil wrongs: as litigation is the source of profit, so are wrongs the source of litigation: no litigation no profit; no wrongs, no litigation. Wrongs ( civil wrongs) are twofold: bonâ fide wrongs and malâ fide wrongs again are twofold: 1. those which precede and lead to litigation: and those which accompany or follow litigation: litigation itself being the very instruments by which they are produced.

    For the accomplishment of this good and pious work, in all its branches, providence offers to put into your hands four main engines or instruments: 1. uncertainty, delay, expence and vexation. Concerning each of these supports to our veritable[?] profession, I will give you instructions, my disciples not only for the using it, but for the making it.