JB_092_227.xml

Title: [June 1807 + 8 Letter V]

Description: June 1807

+ 8

Letter V

II. Litigation prevet. & promot.

[written in columns. column 1]

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III. Arrangements for preventing litigation, by preventing wrongs, of which litigation would be itself the instrument: the wrongdoer, for the purpose of doing the wrong, becoming himself plaintiff:- and thereby malâ fide plaintiff.

1. By every particle of money the disbursement of which is exacted of a defendant in the first instance, wrong is due to him in case of his not being bound in law and justice to render up the subject matter in demand, and loss of time is in itself, in particular in the case of all those whose subsistence or income is in any part of it derived from the employment given to that time, equivalent to disbursement of money, taking effectual care that no such obligation to any amount shall be imposed on any person in quality of defendant, untill in some shape or other, real, corporal or extraneous be given by the plaintiff, according to his circumstances for the eventual reimbursement or other adequate satisfaction to be made for such disbursement or other loss.

and that by [...?] examination of the parties, or otherwise sufficient assurance shall be obtained by the Judge, that the defendant, having good means of defence, i.e. evidence competent to the proof of facts alledged by him in that view, shall never find himself compelled to render up any subject matter in dispute, by any such cause as that of the mere inability to defray the expence necessary to the production of such evidence.

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

1. In the direct ratio of its own magnitude, and in the inverse ratio of a man's pecuniary sufficiency, a mass of forced expence with its attendant vexation operates at the same time upon his passive[?], and, upon his active faculties: upon his passive faculties, as an instrument of sufferance in all cases; upon his active faculties, as an instrument of restraint, causing or tending to cause him to abstain or desist from acting in the character of defendant, and thus to abandon to his adversary the plaintiff, the subject-matter of demand, whatever it may be.

The faculty or power of punishing his adversary, in the character of Defendant with a pecuniary punishment to the amount of the pecuniary expence thus capable of being imposed, with the vexation attached to it in other shapes, as also in case of any relative pecuniary unsufficiency on his part forcing him to abandon (viz. to his adversary) any object in the defendant's possession which to him the plaintiff may happen to be an object of desire, is the commodity which Judge and C o have to sell, and are constantly offering to sale to every man whom they find, or when by this temptation they can succeed in rendering dishonest: viz. such sort and to such a degree as to accept of it.

JB_094_161v.xml

Title: [[094-161v] 3 July 1807 Scotch]

Description: [094-161v]

3 July 1807

Scotch Reform

Letter V

Letter V

Litigant permitted[?]

Policy of Judge and C o in regard to wrongs /civil wrongs/ and litigation: increasing /promoting/ litigation for the sake of the profit: increasing /promoting/ wrongs for the purpose of increasing litigation: wrongs in general: but more especially the wwrongs called civil, as being bad[?] dangerous and most productive: the wrongs created into criminal wrongs, having mostly for their actors the indigent, out of whom little profit is to be made.

The Devices[?] mentioned in Letter 1 were therein[?] /no otherwise[?]/ considered then as employed in /having for their object the/ making the most of litigation when it takes place: but the same devices[?] have many of them been applied to the causes of litigation; be[?] not either immediately, or through exercise of wrongs

Litigation its three modes or branches 1. bonâ fide litigation: (it being such on both sides); 2. litigation malâ fide in the plaintiffs side; of litigation malâ fide on the defendants side.

I.Of Malâ fide Plaintiffs the same attentive observers could have discriminated three species:

1. Malâ fide Plaintiff, combating for faculty of extortion, through indigence, (relative and comparative) on the other side.

2. Malâ fide Plaintiff combating for the faculty of simple[?] oppressions through indigence on the other side; i.e. for gratification of enmity /the irrascible appetite/.

3. Malâ fide Plaintiff combating for the faculty of oppression /for profit by oppression/, for[?] gratification of the concupiscible appetite, i.e. for consequential advantage to be derived from the mine[?] of oppression of the other side.

4. When the malâ fide is on the plaintiffs side litigation is itself the instrument - the side instrument - of the wrong /wrong/: when the malâ fide is on the defendants side, the wrong comes first the litigation afterwards and in consequence: wrong, the seed; litigation the harvest: wrong, the flower; litigation, the fruit.

JB_092_232.xml

Title: [21 June 1807 (2) Letter V]

Description: 21 June 1807

(2)

Letter V

II. Litigation

III. Def t.

malâ fide

To the three of the principal shapes which property can assume Estates called freehold estates in land, houses and other immoveables. Estates called copyhold estates, having also land houses and other immoveables for their subject matter - to these and to the recently created and unhappily increasing species of property called government annuities, not to mention others of inferior account, Judge and C o have succeeded in imparting this useful property.

True it is that an investment or use transformation of this kind may have been effected, and no litigation, thence no lawyers-profit, be the consequence. But in this uncertainty there is nothing by which the contrivance in question is distinguished from the other devices having the promotion of litigation for their end in view: none but what produce chance of a few, if any, that can be said to produce a certainty of it.

If before any litigation commenced, it be matter of notoriety to the plaintiff that the whole of the defendant's property has already been made to assume one or more of those shapes in which it is secured against justice, and if at the same time, from the badness of the defendant's character, it be clear to the plaintiff that the Defendant will in the event of a judgment in his favour be dishonest enought to profit by the invitation thus held out to him by the well paid guardian of the public morals, in such case the plaintiff, if well advised, will submitt to the denial of justice and not make affliction more afflicting by the expence and vexation of hopeless litigation.

But there are two cases in each of which litigation may take place and the chance which Judge and C o have thus given themselves converted into certainty.

1. Before litigation the swindler's property is not in any one of these shapes: but pending litigation he takes the opportunity of putting it into one or more of them. Here then comes the advantage of delay, factitious delay: the greater the quantity he can succeed in purchasing it of those who have it to sell, the more time he has for looking out for the most favourable opportunities, and going through the operations necessary in each case.