date

12 June 1807 (15) (4) Letter
12 June 1807

(15) (4)

Letter V

II. Litigation

As to certainty and uncertainty in each instance the real certainty or uncertainty respecting the issue of the suit is what it is. But it is by the apparent certainty or uncertainty, that the conduct of the suitor, in the situation of plaintiff or in that of defendant, is determined. Real certinaty can be only on one side. But apparent certainty, may be, and too often is, on both sides at once. For producing these opposite appearances, one of which may in each instance be false and deceptitious nothing is wanting that could be done by Judge and C o /the partnership/[?]

In regard to this point the ingenuity of the artist sees itself powerfully assisted by divers principles of human nature.

1. One is the general propensity in man to set an over value on any object presented to him by his hopes: or in the word of Adam Smith the overweaning confidence that in general a man is apt to have in his own fortune.

2. Another is the aid which the love of money is wont in all cases of contention, and especially as this vexatious shape, is wont to occasion from the enmity so apt to be excited in the course of it. A new object is started, viz. the pleasure of revenge. In point of pecuniary advantage the utmost that could be expected from the suit - from success on the plaintiffs side or even on the defendant's would not perhaps be worth the purchase viz. the vexation and the expence. But what is wanting to render the bargain a good one in appearance is supplied by - the gratification expected for the appetite/ the pleasure of revenge/[?]. The suit that a man would not engage in to gain £10, he will perhaps be contented to engage in for the chance of subjecting the adversary to a burthen of expence a little greater, or even less when the smallness of the absolute amount of the expence is made up for[?] the magnitude of its relative amount, relation being had to the pecuniary ability of the adversary on whom it is to be imposed.
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    Description: 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.
  • Title: [12 June 1807 (3) Conclusion]
    Description: 12 June 1807

    (3)

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    Letter V

    II. Litigation

    [...?] in which it manufactures /manufacturing/ uncertainty, astutia produces the effect of certainty on both sides.

    But in such malâ fide suits in which malâ fides is on the plaintiff's side and the object of the suit is extortion or oppression, there, in cases where the pecuniary circumstances, absolute and relative, of the parties are favourable to the design, though misdecision is not sold, yet all the success that could be afforded by common[?] misdecision is sold by means of the inability of resistance produced on the other side by the expence of litigation, as well as for the profit extractable out of that expence.
  • Title: [20 Jan y 1808 Letter V Ch 5]
    Description: 20 Jan y 1808

    Letter V

    Ch 5 malâ fide Appeal

    how prevented

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    Though the [...?] of [...?] /pecuniary/ or exemplum from meaning[?] loss is on both sides of the suit the most frequent cause of litigation, yet the [...?] of gratifying enmity at the expence of the adversary is unhappily by no means an unfrequent one: and in this case, in so far as the suffering [...?] to be inflicted on the adversary assumes a pecuniary shape, the calculation /account/ is no less simple in this than in the one above mentioned /former instance/. In this case the the loss to the adversary viz as before the plaintiff, becomes to the malâ fide litigant, the defendant so much advantage: not necessarily indeed so much profit, meaning pecuniary profit, but shall so much advantage in smaller shapes, [...?] that a shape in which it rises and falls with the amount of the sum of money in question, exactly as in the other case.

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