date

12 June 1807 + 9 1 o
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.
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  • Title: [PRIVATE [...?] 1807 + D]
    Description: PRIVATE

    [...?] 1807

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    (7) 14

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    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: [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.
  • 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.