Where merits are wanting, but there exists no consciousness of the want, taxes on law-proceedings do, it must be confessed, operate as a check to litigation; and that as well on the side where it is groundless as on that where it is well grounded, and in the same degree. Indeed as both of two contending parties cannot in point of law be actually in the right, though either or both may think themselves so, the impediment cannot operate to the denial of justice, but it must operate to the prevention of groundless litigation at the same time. Prevent him who is in the right from instituting a suit, you prevent him who is in the wrong from defending one. But neither is litigation prevented, any further than as justice is denied. So far then as this case extends, it is still but the other side of the same effect, the denial of justice.
Have they then any peculiar tendency to operate as a check to litigation, when it is not only groundless, but accompanied with a consciousness of its being so?—to malicious, or as it might with more propriety be termed, anti-conscientious litigation? On the contrary, their direct tendency and sure effect is to promote it.
They produce it on the part of the plaintiff.—Were proceedings at law attended with no expense nor other inconvenience, till the suit were heard and at an end, a plaintiff who had no merits, could do a defendant man no harm by suing him: he could give him no motive for submitting to an unfounded claim: malice would have no weapons: oppression would have no instrument. When proceedings are attended with expense, the heavier that expense, the greater of course is the mischief which a man who has no merits is enabled to do: the sharper the weapon thus put into the hand of malice, the more coercive the instrument put into the hand of the oppressor.
They produce it on the part of the defendant. Were proceedings at law attended with no expense, a defendant who knew he had no merits, a defendant who was conscious that the demand upon him was a just one, would be deprived of what is in some cases his best chance for eluding justice, in others the absolute certainty of so doing: he would lose the strongest incentive he has to make the attempt. A defendant who means not to do justice unless compelled, and who knows that the plaintiff cannot compel him without having advanced a certain sum; such a defendant, if he thinks his adversary cannot raise that sum, will persevere in refusal till a suit is commenced, and in litigation afterwards.
Whether they make the litigation, or whether they find it ready made, they show most favour to the side on which anti-conscientious litigation is most likely to be found. By attaching on the commencement of the suit, they bear hardest upon the plaintiff, or him who, if they would have suffered him, would have become plaintiff. In so doing they favour in the same degree the defendant, or him who, if the party conceiving himself injured, could have got a hearing, would have been called upon to defend himself. But it is on the defendant's side that anti-conscientious practice is most likely to be found. Setting expense out of the question, an evil of which these laws are thus far the sole cause—setting out of the question the imperfections of the judicial system, and the hope of seeing evidence perish, or the guilty view of fabricating it, a man will find no motive for instituting a suit for an ordinary pecuniary demand, without believing himself to be in the right: for if he is in the wrong, disappointment, waste of time, fruitless trouble, and so much expense as is naturally unavoidable, are by the supposition what he knows must be his fate. Whereas, on the other hand, a man upon whom a demand of that kind is made, may, although he knows himself to be in the wrong, find inducement enough to stand a suit from a thousand other considerations—from the hope of a deficiency in point of evidence on the part of the plaintiff, not to mention, as before, the rare and criminal enterprise of fabricating evidence on his own part—from the hope of tiring the plaintiff out, or taking advantage of casual incidents, such as the death of witnesses or parties: from the temporary difficulty or inconvenience of satisfying the demand, or (to conclude with the case which the weakness of human nature renders by far the most frequent) from the mere unwillingness to satisfy it.
In a word, they give a partial advantage to conscious guilt, on whichever side it is found: and that advantage is most partial to the defendant's side, on which side consciousness of guilt, as we see, is most likely to be found.
Better, says a law maxim subscribed to by every body, better that ten criminals should escape, than one innocent person should suffer: and this in case even of the deepest guilt. For ten, some read a hundred, some a thousand. Whichever reading be the best, an expedient of procedure, the effect of which were to cause ten innocent persons to suffer for every ten guilty ones, would be acknowledged to be no very eligible ingredient in the system. What shall we say of an institution, which for one culpable person whom it causes to suffer, involves in equal suffering perhaps ten blameless ones.
Thus much for groundless suits: there remains the plea of its tendency to check what are deemed trivial suits.
I know what a groundless suit means—I know of no such thing as a frivolous one. No wrong that I know of can be a trivial one, which to him to whom it is done appears
