27 June 1807

(4) (2)

Note continued

Letter V

II. Litigation

II. Def t. malâ fide

What, to a man juding the principles of common honesty and common sense would be apt to appear still more difficult to establish, has actually been established: viz. that he who is entitled to the horse, viz. the whole horse, shall never from law receive any part of it: but that instead of the horse what he receives, if any thing, shall be a sum of money: viz. so much money, as in the judgment of twelve men, who never see the horse, the animal may have been worth.

This substitution has many /divers/ uses, one of them will be seen immediately /presently/.

What is thus true of a horse is equally true of every thing else that does not belong to the class of things immoveable: it being among the peculiarities, which is as much as to say among the excellencies of the English Common Law, that, under it, except what can not be carried away, no one individual person sees any one individual thing that he can call his own. Equity, a monstrous execresence grown, comparatively of late years, out of Common Law, varies the matter indeed, but without mending it. To Property of[?] so paltry a value as £10 (equal at the time of the fixation to at least two years of an average individual taken from the class composed of the majority of the people) it was "beneath the dignity" of a Dealer in Equity to bestow his protection. Fortunate insolence! Happy the party wronged, to whom justice was thus flatly denied at once. Two years subsistence or thereabouts formed the maximum of his loss. Whether he loses the cause or gains it, he to whom the protection is pretended to be afforded never finds his affliction bounded by any such narrow limits.