date

12 June 1807 (13) (1) Letter
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.
Similar Items
  • Title: [12 June 1807 5 12 Letter V]
    Description: 12 June 1807

    5 12

    Letter V

    II. Litigation

    General line of policy on the part of Judge and C o and of counterpolicies of the legislator and policy of Judge and C o in regard to the production of wrongs and litigation considered as producible by the operation of the above four[?]/five[?] instruments

    [written in columns. column 1]

    1. So far as concerns the production of bonâ fide suits, the policy of the legislator consists or ought to consist principally in the reduction of that uncertainty in which they take their rise.

    2. So far as concerns the sum[?] production of malâ fide suits of both sorts considered together, in so ordering matters that it shall not be either for the interest or in the power, or at any rate that it shall not be at the same time for the interest and in the power of the individual in question to take a malâ fide part on the occasion in question, on either side of the cause.

    [column2]

    1. So far as concerns the production of bonâ fide suits, the policy of Judge and C o has consisted principally in the giving birth and encrease to that uncertainty in which they take their rise.

    2. So far as concerns the production of malâ fide suits of both sorts considered together, the policy of Judge and C o has consisted principally in so ordering matters that it shall at once be for the interest and in the power - or at any rate that being already in the power, it shall be the interest, or being already the interest it shall be in the power of the individual in question to take a malâ fide part on the occasion in question, on one side or other of the cause.

    In a malâ fide cause, in which, if instituted, the malâ fide will be on the defendant's side, the power existing already; what will be left to do on that side by Judge and C o will be the creation of interest; the interest in community or persevering in the unjust defence, and the instrument by which that interest could most effectually and with least danger to the reputation of Judge and C o be created to him was the delay.
  • Title: [[094-161v] 3 July 1807 Scotch]
    Description: [094-161v]

    3 July 1807

    Scotch Reform

    Letter V

    Letter V

    Litigant permitted[?]

    Policy of Judge and C o in regard to wrongs /civil wrongs/ and litigation: increasing /promoting/ litigation for the sake of the profit: increasing /promoting/ wrongs for the purpose of increasing litigation: wrongs in general: but more especially the wwrongs called civil, as being bad[?] dangerous and most productive: the wrongs created into criminal wrongs, having mostly for their actors the indigent, out of whom little profit is to be made.

    The Devices[?] mentioned in Letter 1 were therein[?] /no otherwise[?]/ considered then as employed in /having for their object the/ making the most of litigation when it takes place: but the same devices[?] have many of them been applied to the causes of litigation; be[?] not either immediately, or through exercise of wrongs

    Litigation its three modes or branches 1. bonâ fide litigation: (it being such on both sides); 2. litigation malâ fide in the plaintiffs side; of litigation malâ fide on the defendants side.

    I.Of Malâ fide Plaintiffs the same attentive observers could have discriminated three species:

    1. Malâ fide Plaintiff, combating for faculty of extortion, through indigence, (relative and comparative) on the other side.

    2. Malâ fide Plaintiff combating for the faculty of simple[?] oppressions through indigence on the other side; i.e. for gratification of enmity /the irrascible appetite/.

    3. Malâ fide Plaintiff combating for the faculty of oppression /for profit by oppression/, for[?] gratification of the concupiscible appetite, i.e. for consequential advantage to be derived from the mine[?] of oppression of the other side.

    4. When the malâ fide is on the plaintiffs side litigation is itself the instrument - the side instrument - of the wrong /wrong/: when the malâ fide is on the defendants side, the wrong comes first the litigation afterwards and in consequence: wrong, the seed; litigation the harvest: wrong, the flower; litigation, the fruit.
  • Title: [29 June 1807 *1 Note Judge]
    Description: 29 June 1807

    *1

    Note Judge

    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.