PRIVATE

June 1807

(1)

Letter V

II. Litigation

Concluding Observations

Where to insert this? at the end of Letter V §.2. Litigation Ch. or earlier?

Judges share with the malâ fide suitor

never too small to engage the Judge in the promotion of litigation:- in the Judge's situation it could not be greater.

An observation likely enough to be made, is that taking each job separately, instances will be found in which the share pocketed by the managing partners will be, or will appear to be, extremely small: too small to be capable of constituting in such a situation an adequately efficient motive:- and in particular that compared with the profit drawn in the same individual case by the partner, in that branch of the trade which requires the assistance of such a partner, without doors - the malâ fide litigant, it amounts to so little, that no connection in trade was ever formed upon terms affording so inconsiderable an advantage.

But on the other hand the following considerations will require to be taken into the account.

1. The neat amount of the aggregate mass of the profit being given the smallness of the component parcels, be they ever so minute, makes no sort of difference (as is already observed in Letter I).

2. The partner without doors, the malâ fide litigant, bears all the risk: what Judge and C o receive, and in particular what the Judges, the managing partners receive is clear of all risk.

3. The nature of the trade does not admitt of any express convention or agreement, nor consequently of any regular proportion, such as a per centage, between the profit on one part and that on the other.

4. Much less can there be any of that bargaining and haggling which has so free a course in ordinary trades.

5. Whatever is taken must be taken as matter of right; and therefore from every one from whom it is made due, and in the same proportion from one as from another: on which account, at the time of the original fixation, it was necessary that in each instance what is taken should be so small, that at least the majority of litigants should be considered as able to pay it.