date

17 June 1807 8 Letter V
17 June 1807

8

Letter V

II. Litigation

To assist conception, the policy of Judge and C o directed as above to the promotion of wrongs and litigation, may be seen dividing itself into three branches: viz. 1. devising apt means for the fabrication of the evils capable of being converted into instruments in a mode more or less immediate to the extraction of lawyers'-profit: 2. fabrication of these instruments, or in other words, generation of these evils: 3. employing and applying them to the best advantage to that their intended purpose.

Shew where the North is, you shew where the South is at the same time: seeing the policy of Judge and C o, you see the counterpolicy of the legislator. 1. Devising, the work of the inventive faculty, not all the power upon earth could in this instance have prevented: 2. to prevent or obstruct the generation of these evils, the fabrication of these instruments, and if fabricated their application to such their sinister purpose, in these you see the correspondent branches of the counterpolicy of the legislator.
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  • Title: [12 June 1807 + 9 1 o]
    Description: 12 June 1807

    + 9

    1 o

    Letter V

    II. Litigation

    The master engines or instruments with which the technical system has been used to operate in the prosecution of its objects as above described, may be comprehended as under the general description of 1. uncertainty; 2. delay; 3. expence; 4. vexation.

    In this respect

    [written in columns: column 1]

    The counterpolicy of the legislator is or ought to be to reduce to their lowest possible quantity, the respective mass or degrees of uncertainty, delay, expence and vexation incident to litigation - i.e. to the application made by which the subject in his character of plaintiff, calls upon the hand of the Judge, to give execution in his, the plaintiff's, favour to this or that article in the main body of the law: he, at whose charge such service is demanded, resisting it, if the litigation goes on, in the character of defendant.

    [column 2]

    The policy of Judge and C o under the technical system has been to give incrase and employment to the utmost to the evils of uncertainty, delay, expence and vexation, in the character of instruments, whereby litigation, the source of lawyers' profit, and wrongs in some cases the source, in others the product of litigation are brought into existence: to expence more particularly, inasmuch as besides its other uses as above, it is in respect of that part which in the shape of lawyers' profit goes into the pocket of the partnership the still more direct object of such their policy.
  • Title: [PRIVATE [...?] 1807 + D]
    Description: PRIVATE

    [...?] 1807

    + D

    (7) 14

    1 o

    Letter V

    II. Litigation

    Thus much as to the capital instruments particularly adapted to the production of wrongs and litigation, and the general line of policy observed by Judge and C o in promoting, and the general line of policies or counter policy observable on the part of the legislator, in preventing the application of them to their respective sinister purposes.

    We come now to the plan of policy pursued by Judge and C o for the creation, and the plan of policy or counter policy pursuable on the part of the legislator, for preventing the creation and in every way preventing the existence of those same instruments.

    On the part of Judge and C o the policy in relation to this head will be found reducible to the organization and application of the several contrivances brought to view in the first of these Letters under the name of devices; among which, though all of them, by their ultimate effects, contributory in various ways to the ends of judicature, and among them to the promotion of litigation with its profits, will be found contributory in a more direct way, some of them to uncertainty, others to delay, with the expence and vexation that so generally and almost inseparably are found adherent to it.

    If on the present occasion any devices present themselves of which no express mention is made in that catalogue, it will be because a nearer view of the subject presented details not called for in that place.

    The corresponding observation applies of course to the antagonizing arrangements adapted to the policy or counterpolicy of the legislator.
  • Title: [19 June 1807 (19) (2) Letter]
    Description: 19 June 1807

    (19) (2)

    Letter V

    II. Litigation

    II. Defend t malâ fide

    Solvent malâ fide defendant combats for ultimate success and for [...?] profits [[...?] 3. for gratification of enmity]. In the first [and 3 d] comes[?] his plan of operation coincides with that of the malâ fide plff, and the counterpolicy for the rendering it [...?] in the same.

    In the case where the malâ fide defendant is in solvent circumstances, the design which places him in that situation admitts of differences, by which though the policy of Judge and C o for the promotion of his views is not varied, the counterpolicy necessary on the part of legislator is rendered altogether different.

    I. In the case of the malâ fide plaintiff the number of species which it will be necessary to distinguish is not so great, and his description is much more simple.

    1. Malâ fide plaintiff, combating for the faculty of extortion; i.e. in general for ultimate success, through /trusting to/ the medium of indigence, and thence exhaustion of purse or perseverance on the defendants side.

    2. Malâ fide plaintiff combating for the faculty of oppression, or say for the gratification of enmity: viz. by means of the expence and vexation imposed at his instance upon the Defendant by the Judge.

    In regard to the case of the solvent malâ fide defendant combating for ultimate success, through indigence on the other side, the policy of the Judge and C o, the contrivances employed for his encouragement coincide pretty exactly with their policy in the case of the malâ fide plaintiff, combating for the faculty of extortion: so therefore does the counterpolicy of the legislator in the one case coincide with his counterpolicy in the other: the circumstances of the malâ fide litigants being in or out of possession of the subject matter in dispute making the only difference. The policy and counter policy applying to this species of malâ fide defendant will be placed in the clearer light by being postponed till after the policy and counterpolicy in the case of the corresponding species of malâ fide plaintiff has been brought to view. In like manner the policy and counterpolicy in the case of the species of malâ fide Defendant combating for gratification of enmity will be seen to coincide with the policy and counterpolicy in the case of the species of malâ fide plaintiff combating for the faculty of oppression: for the same reason will be postponed in like manner.