18 May 1805

Evidence

Introd.

It is evident that when the suit is thus ill-grounded, whether its groundlessness be or not present to the demandant's mind - in other words whether it be or not on his part a mala fide suit, makes, with reference to the vexation and expence inflicted by it on the defendant, little or no difference. The mischief of the first order is therefore not encreased, not affected, by the absence or presence of this mala fides - of this criminal consciousness, of mala fides. Nor to the mischief of the 2d order: the danger and the alarm liable to issue from that source. That suits accompanied with this circumstance should exist in multitudes is a state of things, which it will be seen can not take place without some flagrant and radical defect in the texture of the law to wit /more especially if not exclusively/ in the system of procedure. In the constitution /-----/ of this system there is a somewhat or other /exists by the supposition --- --------/ which affords to the wrongdoer an assurance of success, even to him who in his own mind is conscious of being so. This is as much as to say which affords to him who has an interest in so doing a means, in appearance at least sufficiently assured, of contravening for his own advantage - of contravening in an indefinite number of instances one or other of the ends /the principal ends/ of justice: the demandant, where the mala fides is on his side, the defendant, where it is /exists/ on the side and part of the defendant.