date

4 July 1807 10 Letter V
4 July 1807

10

Letter V

II. Litigation promoted

Never object to this: say it makes no difference: the more[?] of this [...?] the better the more injustice the more[?] capital punishments the better: it makes [...?] [...?] to learning[?] and to reasonable men[?] [...?].

Referring to the party wronged, satisfaction for the intermediate damage, you thereby compliment the wrongdoer with correspondent intermediate profit /postium connetande[?]/. Do so to as great an extent as possible.

2. In the article of certainty you may keep down satisfaction, that is the value of it, with less resource[?].

Take any casualties choosing them of that sort which are sure to happen at some time or other, take of such casualties the more the better, and give to each of these the effect of putting an end to the plaintiff's right to satisfaction: death of the wrongdoer, and death of the party wronged may serve for example. The sort of persons fit for your purpose will note all these chances, calculate upon them, and committ the wrong as often as the calculation turns out favourable: the individuals marked out for victim will think no more of them, than hitherto the legislature has done. Burying the right to satisfaction for the wrong in the same grave with the author secures the profit of it to those who are most dear to them. When thinking whether to sue or no, the injured plaintiff will never suspect that his right may be thus killed; and his lawyers know better than to put any such notions into his head. Burying it in the same grave with the party wronged, and adds to the account of the murders not often suspected scarce ever discovered, never punished, and in the profit of which you enjoy your share, without any of the reproach.

In deposition of necessary evidence, you have an event by which as often as it takes place, whatever right depended on it is destroyed of course and without any thing done by you to kill it. What you have to do is to throw obstructions in the way of the collection of the evidence, make it as uncertain as possible when the production of it can be enforced and when not. For every thing else so the directions for the production of uncertainty in general, and of delay in general:- the longer the definitive productive[?] of the evidence can be staved off, the longer the time given to it to die in.
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  • Title: [9 July 1807 + D Scotch Reform]
    Description: 9 July 1807

    + D

    Scotch Reform

    18

    2 o

    Letter V

    II. Litig. promot

    v. Particular Directions concerning the species of Stellio stiled fortunicola: composed of malâ fide defendants, solvent or insolvent, combating for ultimate success through delay, by means of title-destruction casualties.

    1. In regard to such casualties as naturally and of themselves possess this property, such as deposition of evidence, do what you can to favour their taking effect: concerning which see above, p. │ │.

    2. These not being of themselves sufficient, take any casualties whatever, the more numerous and diversified the better, and bestow upon them this force and virtue - for examples, see above p. │ │.

    3. To make room for casualties of both sorts to take place, as well as for so many other good purposes, remember to have ready for the market, in addition to the minimum which you provide and establish gratis, as large an assortment of delays, and in pieces of the greatest length, as possible: besides those which the customers on both sides are forced to buy, whether they will or no.

    VI. Particular Directions concerning solvent Defendants combating for gratification of enmity:

    Whether in the Station of defendant or plaintiff, wrongdoer before or without litigation, defendant upon and in consequence of litigation, i.e. of a demand made in the quality of plaintiff claiming satisfaction for the wrong, plaintiff not having sustained any wrong, but claiming satisfaction on that pretence, on the pretence of having ascertained it, the more mischief you put it in the power of a man to do to another, the more extensive and prosperous this branch of your trade. This faculty, the jus urandi[?], you will take care to put in every man's power to purchase, and to the largest amount possible, in either capacity, and so leave it to his choice. The best choice he can take is certainly to become suited, viz. Plaintiff in the first instance, because in this case your profit is if any thing more certain than his, though both go hand in hand: whereas in the other case viz. when he committs the wrong in the first instance, and without coming to your shop for tools, if the party wronged is to such a degree helpless or timorous or well informed and prudent as not to take any legal steps to right himself the wrongdoer gains his ends without you and robs you of your due: but as to this you must take your chances.
  • Title: [July 1807 11 Letter V]
    Description: July 1807

    11

    Letter V

    II. Litigation promoted

    3. Under the article of proximity, that is by delay, you may keep down the value of satisfaction, if possible with still less reserve than under the article of certainty. As to the making of delay for this purpose, see the directions given as above for the making it for all purposes.

    As to the chances of the injured party's right to satisfaction being destroyed by this engine, they are still more numerous and unscrutable than in the case of uncertainty, produced as above. Then comes the intermediate possession which produces a sure profit to the wrongdoer (the intermediate possessor) and to the party wronged a sure damage and deduction from the value of his claim for receiving the satisfaction. Even to his lawyers the task of comprehending them would be difficult, in that of making him comprehend them an impossible one. That some delays, and even to an indefinite length, may happen in here and there an instance to be necessary, is what every man knows or ought to know: and under favour of these unavoidable ones, the legislature and the people not knowing when to draw the line, have allowed you to make as long and as many delays as you have a mind, for your own use.
  • 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.