date

12 June 1807 (3) 10 Letter
12 June 1807

(3) 10

Letter V

II. Litigation

3. Of expence, considered independently of the portion of lawyers' profit extractible from it, the principal use and application consists, in the encouragement it gives to such malâ fides causes, in which the suit being the instrument looked to and employed for the commission of the wrong, the malâ fides is on the plaintiff's side: his object being either to extort something from the defendant by means of his inability to bear the expence, or simply to oppress him by the burthen of the expence.

In both these cases expence is not only the instrument most immediately applicable, but almost the only instrument applicable to the purpose with any certainty of success.

But expence, the burthen of it being considered as attaching itself alike to both sides of the cause, operates accordingly as an encouragement to wrongs and to litigation on the defendant's side, in as far as it affords a prospect of inability on the plaintiff's part to obtain redress, viz. by his inability whether to begin, or to continue in the character of plaintiff. A striking enough instance of this inability, and of the advantage made of if may be seen in the Defence of Usury.

4. Vexation is an inseparable concomitant of each of these three other evils: of uncertainty, or at least of the sense of it on the part of him, whose wish it is alike to avoid committing and suffering wrong, but who knows not how:- of delay, more particularly on the part of the plaintiff against whom, while it lasts, it operates as a denial of justice; but also on the part of a defendant whose, being in bonâ fide, objects in the suit naturally are to escape from the wrong he is ensnared with by the suit, and to effect such escape as soon as possible:- of expence of course in every case.
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  • 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 (3) 9 Letter V]
    Description: 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.
  • 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.)