22 June 1807

(6)

Letter V

II. Litigation

II. Def t malâ fide

The bonâ fides of the defendant standing clear of suspicion, and the question, how far this or that article of profit made by him may have owed its existence to the money or money's worth wrongfully retained by him, being exposed to doubt, a case will now and then present itself in which it may be proper, consideration had of pecuniary circumstances on both sides, for the Judge to forbear exacting from the defendant the utmost possible amount of the consequential benefit of which the delay that has taken place is suspected or even ascertained to have been the cause.

But setting aside the latitude thus proper to be left to the discretion of the Judge, unless in the character of a general rule the force of the maxim be maintained, that no man shall profit by his own delay, just so often as it is departed from, just so often is a bounty given, given by the Judge, to injustice in this shape.

To search out extra profit under its various modifications, non-commercial and commercial, ordinary and extraordinary, direct and consequential as above marked out - to drag it to light, and strip it of the various disguises under which it will so naturally seek to cloak itself, is a process that in some instances will be found to involve more or less of difficulty: but to the investigation of latent profit or loss no greater difficulties oppose themselves than what frequently oppose themselves (as per Letter 4 th) to the investigation of latent evidence: and cases will arise in which in both of these lines investigation is alike necessary to justice.

By a chain of whatsoever length drawn up, and by whatsoever disguises masked, will profit, even in value, abate any thing of its influence in the hand or in the heart?