date

29 June 1807 *4 Note Judge
29 June 1807

*4

Note Judge

Letter V

II. Litigation

1

Directions to Judge and C o in regard to wrongs and litigation. Of the object or policy proper to be pursued by you in regard to wrongs and litigation together, litigation in respect of its lawyers'-profit, wrongs viz. either wrongs already committed or supposed to be committed, or the hope of committing future ones, being the only indispensable causes of litigation - a general indication is given in like manner in one word: promotion, denial of satisfaction: promotion, in so far as they can be promoted: denial of satisfaction in so far as by the denial of satisfaction in one instance the commission of wrongs may be promoted in another.

On each occasion let it be your care so to order matters, that in the eyes of the proposed wrongdoer i.e. the party under temptation to committ the wrong, the fall of the whole impending counterburden and in particular the burthen of making satisfaction included shall appear less probable than the contrary. This in the first place, before the wrong is committed, to the end that it may be committed: and afterwards, in the case where satisfaction has been demanded at law by the party wronged, that the course of litigation so commenced may be continued as long as possible so far as depends on the defendant's side.

Remember however that to the commencement and continuance of the litigation, it must be your endeavour when the wrong has actually been committed, it is necessary that so far as he is concerned the same event viz. the receipt of the satisfaction on his part shall appear more probable than the contrary.

Remember the case of the head, and the dispute about it between the two travellers: one said it was white, the other black; and both said right: the points from which they viewed it were opposite.
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  • Title: [PRIVATE 17 June 1807 B 7]
    Description: PRIVATE

    17 June 1807

    B 7

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    Letter V

    II. Litigation

    In so far as the civil i.e. non-criminal quarter of the field of law is concerned, the policy of Judge and C o may be comprehended by this general expression - promotion of wrongs and litigation: litigation for the sake of the lawyer's-profit of which it has been made the source; wrongs (in the present case civil wrongs) as being, in two of the three modes of litigation the sources of the litigation, and thence of its lawyers'-profit in a less immediate way; in the third mode, themselves the immediate source of that profit, litigation being the instrument employed at one and the same time for the working of the wrong, and the extraction of the profit: for the working of the wrong for the benefit of the outdoor partner, the malâ fide plaintiff and wrongdoer; for the extraction of the lawyers' profit, by and for the benefit of the indoor partners, Judge and C o.

    Howsoever it may be regarded as a sort of metaphysical abstraction, it may however throw some light upon the subject to observe, that as it is only in virtue of the connection thus intimately established between wrongs and litigation, as well as between litigation and lawyers profit, that, under the fee-gathering system Judge and C o possess the interest they have in the promotion and multiplication of wrongs, it follows, that, were it at the same time true, and to their observation clear, that wrongs were not a source of litigation: insomuch that in that ideal state of things, no greater exertions of industry and genius would on their part be directed to the promotion of wrongs than to the prevention of them:- and so in regard to litigation.
  • Title: [6 July 1807 + B Scotch Reform]
    Description: 6 July 1807

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    Note (a) *13

    Note

    Letter V

    II. Litigation promoted

    40 (a)

    (a) The case in which the suit has for its object the obtainment of satisfaction includes by far the greatest part of the civil (non-criminal) branch of law: but not quite the whole of it.

    Of the civil (non-criminal) branch of the main body of the law no part that may not seem to be included in some way, or rather to wrong on one side and satisfaction on the other. The satisfaction demanded may be 1. ob praettum[?] in respect of past wrong as in the common case: or 2. de futuro, as against future contingent wrong, as in a case rarely exemplified, or[?] no wrong as yet committed or so much as supposed to be committed: but the plaintiff apprehends the deposition of some evidence necessary to the support of some right, and on the deposition of which he would be exposed to suffer wrong he therefore prays and demands that such steps may be taken as may be deemed necessary to the preservation of it.

    2. The plaintiff, though his right has been recognized or established by the decisions pronounced in one or more suits, apprehends the seeing it contested and perhaps taken away in the course of an unlimited series of future contingent suits: that it may be established once for all is the service he demands at the hands of the Judge. This example is taken rather from law as it is than from law as it ought to be: whenever a party, plaintiff or defendant, conceives that his right to the subject matter in dispute has been sufficiently established, beyond the possibility of being disproved by ulterior evidence, then is the time for demanding that after sufficient opportunity of contestation on the other side, the right shall be declared to be established for ever. Law as it ought to be would render this provision co-extensive with the whole field of wrongs and satisfaction. Law as it is, applies it to but a small part.
  • Title: [4 July 1807 + 7 2 o]
    Description: 4 July 1807

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    Ch.4. Litigation promoted

    §.4

    21 Jan y 1808 Omitt this or preserve as being applicable chiefly to Bonâ fide Litigants?

    Special Instructions for the application of the principle of uncertainty to the promotion of malâ fide litigation, the fruit of dishonesty on the defendants side.

    Your business is to make as many suits as possible, each to lasting as long as possible, a suit ends as soon as either party thinks it more for his advantage to give it up than to go on with it. The thing to be aimed at is that whatever be the real chance of success on the plaintiff's side, it may appear to the plaintiff greater than it is, to the defendant less. Remember the tube which looked through with one end next to the eye makes the object greater than it is; with the other less. On the plaintiff's side his chance must never appear to him so small in value as not to be worth taking: this point secured, the less it is worth the better: because the less the real value of the plaintiff's chance, the less the difficulty of making it look below nothing on the defendant's side. In every case therefore it is necessary that a deception should press upon one side at least if not upon both. This deception is favoured by two principles in human nature, of which it will be your care to turn to the best account, the predominance of hope over fear. (called by A. Smith a man's confidence in his own good fortune) and the passion of revenge by which for the pleasure of subjecting the adversary to a loss a man is frequently induced to take a still greater loss upon himself.

    The wrong will not be committed, nor consequently the suit for obtaining satisfaction commenced, unless in his own estimate the proposed wrongdoer has less to fear than to hope from the commission of it. What he has to fear consists of the consequences of ill success in case of litigation: these consequences will consist of an eventual burthen which in different shapes one or more of them - such as satisfaction, punishment, and costs. [Since for some, the check applied by the fear of a charge on the score of satisfaction is stronger than that imposed by the fear of a charge on the score of punishment: because to the mortification of being so much as added that of seeing the party injured gain it.] But an alleviation of the aggregate burthen in any one part, of the aggregate restraining burthen, might be made up by an equivalent aggravation of excess in any other. Your care must therefore extend to the whole.