date

12 June 1807 (3) 9 Letter V
12 June 1807

(3) 9

Letter V

II. Litigation

In respect of the class of suits principally promoted by it, the effect of uncertainty is different according as the part of the law affected by it is the main body of it, or the branch composed of the law of procedure. If the main body, the class of causes principally promoted by it, is, as above, the class of bonâ fide causes: since in this case neither party knowing what will and what will not be held to be wrong, a man who if he knew what would be held to be wrong would never do wrong, is no less likely to do wrong than he who would be ever so much inclined to do wrong, as often as he saw in so doing a prospect of proponderant advantage.

But if the part affected by the uncertainty be the law of procedure, the causes principally promoted by it are the malâ fide causes, and among them those on which the malâ fides lies on the defendant's side. To render the efficacy of the remedy uncertain, notwithstanding the certainty of the right, is the effect of that uncertainty, the seat of the part which has, affected by it is, as above, in the adjective branch. If, matters can be so ordered (as in fact they are so ordered in cases to a great extent as for instance, as will be seen in the case of malâ fide appeals) that, nothwithstanding the assurance of a final defeat the wrongdoer whose design places him on the defendant's side of the cause shall still find it his interest to engage and persevere in the track of defence, still more certainly efficacious will the temptation be rendered by every additional chance he beholds, of seeing defeat give place to victory.

To the promotion of those malâ fide causes in which the malâ fides lies on the plaintiff's side, that uncertainty which has its seat in the adjective branch of the law is not alike favourable. In these cases the ground on which the plaintiff acts is commonly sure ground, viz. the utter inability of the defendant to bear the expence: and so sure, that any chance of misdecision that might be afforded by any uncertainties affecting the adjective branch of the law, would scarce make any sensible addition to the encouragment held out by the obvious and clearly foreseen effect of the expences in rendering effectual defence impracticable.
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  • Title: [1 June 1807 Letter V III Devices]
    Description: 1 June 1807

    Letter V

    III Devices for promoting litigation by promoting wrongs of which litigation is /shall be/ itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming /rendering himself/ plaintiff: - viz. /and thereby/ malâ fide plaintiff.

    This purpose is answered by the various /divers/ mischiefs the production of which has more commonly some nearer or other /ulterior/ object: viz. /ex. gr./

    1. By the factitious expence attached to litigation, for the sale of the profit extractable from the offence.

    2. By the vexation inflicted on /produced to/ the defendant by the expence and trouble /2.3. By the expence and vexation/ of his defending himself /defence/:

    3. By the uncertainty of the law as above (II 1.2.3.4.5.6.7.) viz. the uncertainty whether even suppose functioning[?] sufficiency not wanting, he may be able, under the law, to defend himself with success: - by this uncertainty, and the vexation attached to it.

    4. By the factitious delay the manufacture of which has its main /principal and more immediate/ objects the profit-yielding expence, be the cause what /which/ it will a bonâ fide or malâ fide cause, and the encouragement it holds out for continuing defence[?], in /commencing and persevering in/ a malâ fide cause in which the malâ fides is on the defendant's side. (as per II.10.)
  • Title: [13 June 1807 A5 4 Letter V]
    Description: 13 June 1807

    A5 4

    Letter V

    II. Litigation

    Where the defendant is in the wrong, litigation is the result of wrong: where the plaintiff is in the wrong, litigation is the instrument of wrong.

    When litigation is either on the one part the result, on the other the instrument of wrong committed bonâ fide - in pure ignorance, the suit may be termed a bonâ fide suit: on each side of the cause, plaintiff's as well as defendant there is nothing but bonâ fides: plaintiff and defendant, are both of them bonâ fide suitors.

    Where both parties are in bonâ fide, the suit or cause may be termed a bonâ fide suit or cause: and here we see in the first class of suits, the first branch of litigation - the litigation as in the first case.

    Where either party is in malâ fide, the suit may be termed a malâ fide suit, or to avoid ambiguity the cause a malâ fide cause.

    Where the malâ fides is on the defendant's side, here we have a second class of suits, a second branch of litigation: the litigation is in the second case. Where the malâ fides is on the plaintiff's side, here we have the third class of suits, the third branch of litigation: the litigation is in the third case.

    Note

    (a) A possible case is - that both parties shall be in malâ fides: the one who is really in the right, not being conscious of his being so, but thinking himself in the wrong. But in a practical point of view this distinction can not often be of use. Whoever supposes a man to be in the right, will seldom see any reason for believing the man not to have supposed himself to be so.

    But a case that too frequently happens, is - that a man who at once is and believes himself to be legally speaking in the right, is and is conscious of being, morally speaking, in the wrong.
  • Title: [12 June 1807 (13) (1) Letter]
    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.