JB_092_135.xml

Title: [PRIVATE June 1807 (1)]

Description: PRIVATE

June 1807

(1)

Letter V

II. Litigation

Concluding Observations

Where to insert this? at the end of Letter V §.2. Litigation Ch. or earlier?

Judges share with the malâ fide suitor

never too small to engage the Judge in the promotion of litigation:- in the Judge's situation it could not be greater.

An observation likely enough to be made, is that taking each job separately, instances will be found in which the share pocketed by the managing partners will be, or will appear to be, extremely small: too small to be capable of constituting in such a situation an adequately efficient motive:- and in particular that compared with the profit drawn in the same individual case by the partner, in that branch of the trade which requires the assistance of such a partner, without doors - the malâ fide litigant, it amounts to so little, that no connection in trade was ever formed upon terms affording so inconsiderable an advantage.

But on the other hand the following considerations will require to be taken into the account.

1. The neat amount of the aggregate mass of the profit being given the smallness of the component parcels, be they ever so minute, makes no sort of difference (as is already observed in Letter I).

2. The partner without doors, the malâ fide litigant, bears all the risk: what Judge and C o receive, and in particular what the Judges, the managing partners receive is clear of all risk.

3. The nature of the trade does not admitt of any express convention or agreement, nor consequently of any regular proportion, such as a per centage, between the profit on one part and that on the other.

4. Much less can there be any of that bargaining and haggling which has so free a course in ordinary trades.

5. Whatever is taken must be taken as matter of right; and therefore from every one from whom it is made due, and in the same proportion from one as from another: on which account, at the time of the original fixation, it was necessary that in each instance what is taken should be so small, that at least the majority of litigants should be considered as able to pay it.

JB_092_348.xml

Title: [31 May 1807 Letter V II. Proper]

Description: 31 May 1807

Letter V

II. Proper Remedies

1. Solvent knave[?]

To observe the shape given by the man of law to the bounty thus offered for an instrument of malâ fide suitors was matter of indispensable necessity: such as hath been the shapes given to the bounty thus given by the Judge for the enlistment of these the instruments of his power and opulence, such is the shape that must be given by the legislator to the only instrument which with any rational prospect of success, he can hope to effect the extirpation of them.

We have seen the chief resources, the whole force of the artists genius expended in the production of factitious delay, (clear, of course, as far as might be, of all visible reproach to the manufacturer) as on all occasions and in all stages of the cause, so in particular on the occasion of appeal.

The whole secret, if it be one, is declared by this one simple though comprehensive expression - making it the interest of dishonest men to become and continue litigants, i.e. suitors, on which-ever side of the suit their position in relation to the matter in dispute calls them to.

On the particular occasion here in question, making it the interest of the malâ fide suitor to become appellant. Such under the reign of jurisprudential law, and under the impulse, given by the fee-gathering system - such, and with but too much success, has been the study of the Judge.

Corresponding to the cause of the disease, must on this, as on other occasions, be the nature of the remedy. Take away the interest, in pursuit of which the dishonest man becomes and continues malâ fide suitor - most commonly malâ fide defendant - the malâ fide defendant, malâ fide appellant.

Such, by the arm of statute law - such, if really it be his wish to extirpate the disease, must and will be, the operation of the legislator.

JB_092_352.xml

Title: [1 June 1807 Letter V II. Proper]

Description: 1 June 1807

Letter V

II. Proper Remedies

Applied to damage, the distinction between direct and consequential is not unknown to Technical Justice in our English dress, than it is to Natural Justice: consequential may be considered as corresponding so far as it extends, to extraordinary interest, as above described.

Such being the position of the solvent knave, the line of necessary policy to be pursued by Judge and C o for converting him in the station of defendant into a malâ fide litigant, and at the stage of appeal into a malâ fide appellant was plain and obvious. So long as he can contrive to stave off judgment and execution on the appeal, suffer him to extract from the delay whatsoever profit his situation enables him to make, non-commercial or commercial, ordinary or extraordinary - and that without reimbursement - if according to his calculation the profit thus extractable from the delay be superior to the expence necessary to the purchase of it - superior to his share of the expence of litigation, his enlistment in the service of Judge and C o in the character of malâ fide appellant is a matter of course.

Thus obvious being the policy of Judge and C o, the counter-policy of the legislator is little less so. 1. Take away from him all such profit by delay: and, in the particular case of malâ fide appeal, to effect this object by the surest as well as most simple means, when a man appeals from a judgment, suffer not the appeal to be productive of any such effect as that of stopping execution on the judgment appealed from: except in the particular sort of case that will be mentioned presently, cause execution to take place, as if no appeal had been made.