12 June 1807

(3) 9

Letter V

II. Litigation

In respect of the class of suits principally promoted by it, the effect of uncertainty is different according as the part of the law affected by it is the main body of it, or the branch composed of the law of procedure. If the main body, the class of causes principally promoted by it, is, as above, the class of bonâ fide causes: since in this case neither party knowing what will and what will not be held to be wrong, a man who if he knew what would be held to be wrong would never do wrong, is no less likely to do wrong than he who would be ever so much inclined to do wrong, as often as he saw in so doing a prospect of proponderant advantage.

But if the part affected by the uncertainty be the law of procedure, the causes principally promoted by it are the malâ fide causes, and among them those on which the malâ fides lies on the defendant's side. To render the efficacy of the remedy uncertain, notwithstanding the certainty of the right, is the effect of that uncertainty, the seat of the part which has, affected by it is, as above, in the adjective branch. If, matters can be so ordered (as in fact they are so ordered in cases to a great extent as for instance, as will be seen in the case of malâ fide appeals) that, nothwithstanding the assurance of a final defeat the wrongdoer whose design places him on the defendant's side of the cause shall still find it his interest to engage and persevere in the track of defence, still more certainly efficacious will the temptation be rendered by every additional chance he beholds, of seeing defeat give place to victory.

To the promotion of those malâ fide causes in which the malâ fides lies on the plaintiff's side, that uncertainty which has its seat in the adjective branch of the law is not alike favourable. In these cases the ground on which the plaintiff acts is commonly sure ground, viz. the utter inability of the defendant to bear the expence: and so sure, that any chance of misdecision that might be afforded by any uncertainties affecting the adjective branch of the law, would scarce make any sensible addition to the encouragment held out by the obvious and clearly foreseen effect of the expences in rendering effectual defence impracticable.