date

7 June 1807 11 Letter V
7 June 1807

11

Letter V

Litigation - Prevent. Promot.

Letter V

II. Litigation

A case that will sometimes happen is that in which the ruin of one man is pregnant with prosperity to another. In this case the oppression is of the nature of simple oppression upon the face of it, with a secret effect of oppression in the way of extortion in the back ground: the simple oppression constitutes the direct; the advantage similar in nature thought not exactly in the mode of manufacture to extortion constitutes a consequential damage.

Plaintiff and Defendant are rivals embarked in the same trade or love/line[?] or any thing else. Defendant is then rendered at once to the Plaintiff an object of jealousy and enmity. In the ruin of the Defendant the Plaintiff beholds a double gratification: one to the irascible appetite, another to the concupiscible. David reaps from the ruin of Uriah a double satisfaction: of punishing him for having had in his arms a wife so beautiful, and then taking her unto his own.
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  • Title: [7 June 1807 + Superseded? 6]
    Description: 7 June 1807

    + Superseded?

    6

    1 o

    Letter V

    Litigation - Prevent. Promot.

    Letter V

    II. Litigation

    2. Plff. malâ fide

    II. The next grand division of the case is - that of simple oppression.

    In this case either the Defendant has nothing worth conquering by any one else, or nothing that in the eye of David is worth getting, or that he can hope to get. But somehow or other the defendant, Uriah, has incurred the displeasure of David: the effect being thus established no matter what the cause, whether by having given a vote on the wrong side, or by having too beautiful a wife, or any other such offence, sufficiently [...?] pregnant with provocation. The ratio of Defendant to Plaintiff is now rather that of Uriah to David; than that of Naboth to the same potentate[?]; and lest the two parables be confounded, let not any thing about Bathsheba or any thing belonging to her be here likened to a vinyard.

    The form assumed now by the destroying Angel, to whom all forms in or by which equal gains are to be made are equally agreeable is now that of Joab the captain[?] of the host: the Hittite is now set in his proper place at the front of the battle; what follows is of course: his fall is like that of Charles the 12 th between friends and enemies.

    So far as material plundeer is concerned the labour, if denoted by Mahar-shalal-hash-baz, is here saved: the destroying Angel carries it off entire.

    The case of simple oppression is therefore, in his opinion, a still better one than that of extorsion in the way of oppression. By simple oppression, he gets all that is to be got, and never misses[?] it: in the complicated case of oppression in the way of extortion he can never triumph but the plaintiff must triumph with time: and a worse thing still as we have seen that may happen is that plaintiff David triumphs alone: while no part of the plunder falls to the share of the destroying Angel but for the terror of whose sword the conquest made by David could never have been atchieved[?]. In the eyes of Law or Equity inequality of this sort can never be any thing better than the summitt of injustice.
  • 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: [6 July 1807 Scotch Reform 26]
    Description: 6 July 1807

    Scotch Reform

    26

    Letter V

    II. Litigat. promot.

    III. Plff. malâ fide

    If that support which comes from the surest source, self-regarding interest, be cut off, you lose the benefit of all such suits, as, on the weaker side, can not be carried on without it: the oppressor gaining his ends without you, defrauds you of your due. Here then is so much loss upon that species of wrongdoer, who if resisted would have been a malâ fide plaintiff, or a d o defendant, in possession, combating for the faculty of extortion. /From p.25/ On the other hand, if all support from without could be cut off compleatly, there would be a gain upon the members of that species of wrongdoer, who combat for the faculty of simple oppression, or for the faculty of oppression with consequential profit: for when a man who could be sure of gaining his end were the adversary without support, sees, or thinks he sees, adequate support at hand, he gives up the project as not feasible. /Back to p. 25/

    Profit and loss being so near alike on each side, or rather so difficult to calculate on both sides, you can scarcely do amiss. One comfort is, that whatever course you may take for depriving the oppressed of the possibility of receiving support on commercial terms, will often be ineffectual: and then comes your chance of a prosecution for maintenance, champerty, or usury. [See Defence of usury.] This chance is particularly valuable to you: for besides the fee, let the suit end as it will, you get the corruption of morals, by the propagation of treachery: an advantage in which as remote as it may seem, you can not set too high a value.