date

PRIVATE 4 July 1807 + B
PRIVATE

4 July 1807

+ B

Scotch Reform 8

2 o

Letter V

II. Litigat. promoted

Your object is to encourage litigation: wrongs are of no use any further then as litigation is brought on, and kept up. To keep up litigation you must mind and be careful to keep down as much as possible every thing that can operate as a check to litigation: every sort of burthen or unpleasant obligation that in case of ill success in the suit it can happen to pass on the wrongdoer.

What you have to aim at is that to as great an extent as possible, every man may derive, or what to you comes to the same thing, expect to derive, a neat profit from his own wrong. To the purpose:

Momento the 1 o /Memoranda[?]/. Keep down satisfaction: keep down the value of it in magnitude as far as you can, and where in that line you can go no further, in point of certainty and proximity.

Where the wrong for which the plaintiff demands satisfaction is it a wrong of commission? satisfaction if adequate consists in affording adequate reparation for the damage: is it a wrong of omission? satisfaction, if adequate, consists in doing that which ought to have been done, with reparation for the intermediate damage by the omission reckoning from the moment when the thing ought to have been done to the time when that or what is equivalent is done.

To p. 9

From p. 9

In respect of magnitude untoward circumstances prevent your keeping it down in all cases so much as could be wished.

1. So far indeed as concerns things movable it will be your fault if any man has any thing that he can call his own. What you give him will be not the thing itself, but whatever sum of money a company of 12 men who are in a hurry for their dinner and who never saw the thing, think fit to value it at.

2. Extending this to things unmovable, would neither have been practicable nor perhaps eligible. As often as in this shape one man's property is wanted for the use of another, comes a separate law with its eventual set of suits; and the law itself makes fees.
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  • Title: [4 July 1807 9 Letter V]
    Description: 4 July 1807

    9

    Letter V

    II. Litigation promoted

    Satisfaction on the score of wrong is never adequate, unless by the receipt of the satisfaction the party wronged is put at least into as good a plight as if no wrong had been committed. It will be your business to keep it as far short of being adequate as the impertinence of non lawyers will admitt.

    Profit may be natural or conventional: natural, by simple use or possession, as by living in the house riding on the horse, or by gathering fruits, as by gathering the herbage or fruit from the land, milking the cow or eating her calf: conventional, viz. by means of earnings, as by lending money, and receiving back the principal with interest or share of neat profit in trade. Profit, call it profit or interest, may be non-commercial say 5 cent, or commercial say 12 or 15 per cent: in both cases ordinary or extraordinary: direct or consequential.

    Damage, which may be either positive, or as consisting but of loss of profit, negative, is susceptible of the same distinctions. Note well these distinctions, that satisfaction may be kept down as far below adequate as possible.

    In respect of damage, if adequate satisfaction must in the case of a commercial man, must cover not merely loss of interest but loss of commercial profit for the time.

    In case of a wrong, call it of commission or omission, consisting in the withholding of an individual thing, which ought to have been delivered up before or ought never to have been taken in hand, satisfaction if adequate, includes identical delivery or restitution, if possible: but without satisfaction for intermediate damage, viz. for example from non-possession, this though good as far as it goes is never adequate.

    Damage and so profit may be either to the concupiscible appetite, the only branch usually noted, or to the irascible party wronged and wrongdoer, both having been tormented into a sufficient degree of irritation, damage or loss to either appetite of each becomes profit to the irascible appetite of the other. But for the effect of this irritation added to that of the above deception, of the suits at present defended, the greater part would have had no existence.
  • Title: [PRIVATE 28 June 1807 (*2)]
    Description: PRIVATE

    28 June 1807

    (*2) (9) (1)

    Note

    Letter V

    II. Litigation

    Satisfaction

    6

    Satisfaction (for wrong) [...?]

    Satisfaction may be for damage without wrong. satisfaction for wrong, is benefit bestowed and received, in consideration of wrong and sustained.

    Synonymous to satisfaction: indemnity, identification, retribution, reparation, redress, relief.

    In itself, according to the opinion and feelings of the party wronged, satisfaction is never full and adequate, untill the benefit received is equal, at least equal, in value to the wrong sustained: insomuch that, in a case exactly similar, it would be matter of indifference to him whether to experience the wrong and the satisfaction, both: or to experience neither: the wrong, and with it the damage being supposed to be followed by the satisfaction at the same distance in [...?] and of them[?] in both cases.

    In this as in other respects no man's real feelings being capable of being perfectly and correctly known to any one by himself, a third person who in the character of legislator or that of Judge can no otherwise in any instance form his judgment whether any benefit proposed in the character of satisfaction be or be not full and adequate, than by considering whether it would be so to himself in that same case, making the most correct allowance he is able to make for all differences between the party and himself in respect of circumstances (external circumstances) and disposition (internal disposition).

    By exterior marks, cases may however be sufficiently described in which it will appear to any one that what is given in the name of satisfaction can not be full and adequate.
  • Title: [PRIVATE 29 June 1807 Note]
    Description: PRIVATE

    29 June 1807

    Note

    Letter V

    II. Litigation

    It is not always enough to keep down satisfaction unless every thing else to which it can happen to operate as a check to the commission of wrong be kept down with it. It is only by the prospect of the evil attached to the obligation of rendering the satisfaction that it is in the power of satisfaction to have that effect: and in any other shape, such as that of punishment or that of costs, a quantity of evil in appearance the same will by the view taken of it in prospect be productive of the same effect.

    In every dimension of its value, in magnitude, in certainty, in proximity you must therefore remember to keep down value, that is apparent value, value as it appears to the eye of the proposed wrongdoer, as well in the instance of punishment and costs, as in the instance of satisfaction, as above.

    Observe how well this has been done in regard to costs. In a multitude of instances the legislature considering that under the name of damages, the operation of fixing the magnitude of the satisfaction was always performed by Juries, of whose practice nothing could be foreknown, employed upon costs, as a sort of burthen the quantity of which was not thus exposed to uncertainty, and to make the check the stronger imposed in some instances death costs, in other truth[?] costs.

    Thus was an injury done to the partnership, and was not to be considered. Where the legislature has said give twice the amount of the costs we give but one and a half as much: where the legislature says give treble costs, we give less than double.

    Besides counteracting the wicked designs of the legislature in these particular instances, this example does a world of good in other ways.