4 July 1807

+ 7

2 o

Letter V

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.