25 June 1807

+ (1)

Letter V

II. Litigation

Concluding Observations

{Among the evils which constitute at one time the modifications of injustice, at another or the same time the instruments employed for the production of it, there is one, that is more particularly useful in the hand of the Defendant, another to that of the Plff., the party being in malâ fide in both cases.}

The instrument more particularly adapted to the Defendant's (the malâ fide Defendant's) use is delay.

The instrument more particularly adapted to the Plff.'s (the malâ fide Plff.'s) use is expence.

Of expence the most obvious effect in regard to expence litigation is that of restraining it, and rendering to number of suits less than it would be otherwise.

1. Such accordingly it is in fact in regard to those suits in which supposing them to take place the right would be matter of doubt, each party supposing it to be on his side. On the number of suits of this description there can be no doubt of its operating in the character of a restraint thereby producing in the mind of him who, could he have afforded, would have been Plaintiff, besides the damage

directly issuing from the wrong, the opinion and affliction of a denial of justice.

2. Very different is its effect upon the number of suits in which the matter of right is out of doubt. In the case where the Defendant, including him who should have been Defendant, is in malâ fide, if its tendency is on the one hand to lessen the number of suits, on the other hand its tendency is to encrease the number of suits, or if not the number of suits the number of unremedied wrongs, which is still worse.