12 June 1807

(3) 10

Letter V

II. Litigation

3. Of expence, considered independently of the portion of lawyers' profit extractible from it, the principal use and application consists, in the encouragement it gives to such malâ fides causes, in which the suit being the instrument looked to and employed for the commission of the wrong, the malâ fides is on the plaintiff's side: his object being either to extort something from the defendant by means of his inability to bear the expence, or simply to oppress him by the burthen of the expence.

In both these cases expence is not only the instrument most immediately applicable, but almost the only instrument applicable to the purpose with any certainty of success.

But expence, the burthen of it being considered as attaching itself alike to both sides of the cause, operates accordingly as an encouragement to wrongs and to litigation on the defendant's side, in as far as it affords a prospect of inability on the plaintiff's part to obtain redress, viz. by his inability whether to begin, or to continue in the character of plaintiff. A striking enough instance of this inability, and of the advantage made of if may be seen in the Defence of Usury.

4. Vexation is an inseparable concomitant of each of these three other evils: of uncertainty, or at least of the sense of it on the part of him, whose wish it is alike to avoid committing and suffering wrong, but who knows not how:- of delay, more particularly on the part of the plaintiff against whom, while it lasts, it operates as a denial of justice; but also on the part of a defendant whose, being in bonâ fide, objects in the suit naturally are to escape from the wrong he is ensnared with by the suit, and to effect such escape as soon as possible:- of expence of course in every case.