date

25 June 1807 (2) Letter V
25 June 1807

(2)

Letter V

II. Litigation

Concluding observations

Where the circumstances of the would be wrongdoer are relatively indigent, especially if those of the intended sufferer by the wrong be relatively affluent, the expence by the prospect of it tends to prevent the commission of the wrong, and where the wrong happens to have been committed notwithstanding, the expence partly by the experience of what is already incurred partly by the apprehension of what may remain to be incurred, tends to prevent the continuance of the suit, by preventing the continuance of the malâ fide defence, and thence the continuance of the suit.

But where the circumstances of the would be wrongdoer are relatively affluent, those of the intended sufferer by the wrong being relatively indigent, the expence by the prospect of its effect on the intended sufferer tends to promote the commission of the wrong, but again when the wrong having been committed accordingly, the party wronged notwithstanding has indigence ventures to such redress and so commences a suit, the tendency of the expence is, as before partly by the experience of what is past, partly by the apprehension of what may be to come, partly by the utter inability to continue the pursuit, to put an end to the pursuit, and so in that way to the continuance of the suit. However, though under the pressure of the expence many of the wrongs produced by the prospect of impunity there will be some that will not be productive of juridicial[?] complaint, yet forasmuch as of the many wrongs which but for this encouragment would not have been committed there will be some that will produce each of them a suit, thus it is that in this case the effect of the expence will be upon the whole to give encrease to the number of suits.
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  • Title: [25 June 1807 (3) Letter V]
    Description: 25 June 1807

    (3)

    Letter V

    II. Litigation

    Concluding Observations

    3. In the case where the Plff. is in malâ fide (his reliance being on the engines of iniquity made for him by Judge and C o and not upon false evidence) the tendency of the factitious expence upon the number of suits acts purely on the side of increase.

    The intended wrongdoer is able to bear the expence of litigation, the intended sufferer by the intended wrong is seen or supposed to be unable, or so nearly unable as to be determinately unwilling to defend himself.

    Here then he commences the suit at any rate according to the nature of his object and the success that attends him in the pursuit of it, he suffers it to terminate at an earlier stage or carries it on to the farthest possible. If his object be extortion, and that will content him, as soon as the Defendant consents to yield up the object of the Plaintiff's concupiscence, a period is put to the suit. But if the object be simple oppression for gratification of enmity, the suit runs on its course till the gratification be consummated.
  • Title: [28 June 1807 (3) Note]
    Description: 28 June 1807

    (3)

    Note

    Letter V

    II. Litigation

    Whereas a Service which before the commencement of the suit ought by law to have been rendered by the defendant to the plaintiff has not been rendered by him, a wrong has been committed by him to the prejudice of the plaintiff's side.

    Benefit bestowed and received, in consideration of wrong seen and sustained, is termed satisfaction.

    Of the civil (non-criminal) branch of law a main object real or professed is the prevention, as far as may be, of civil (non-criminal) wrongs.

    This burthen of satisfaction (i.e. viz. the apprehension of the unpleasant sensation produced by the obligation of rendering the correspondent burthensome service) operated pro tanto (to the extent of it) to this effect.

    In no individual instance can a provision made by the law and by the Judge have the effect of preventing a meditated wrong, unless in that same instance in the view of the proposed wrongdoer (the person acting under the temptation to committ the wrong) the whole value of the benefit expected from the commission of the wrong is outweighed or at least equi-ponderated by the whole value of whatever burthen if any is apprehended by him, as likely by appointment of law or otherwise to attach upon him in the event of his committing it.

    As often as in his view of it such benefit, either stands single, or being preponderant over the attendant burthen, he committs the wrong accordingly, and such preponderance, for want of something that might have been done by the law or the Judge for the prevention of it takes place also in effect, the wrongdoer takes advantage of profits by his own wrong, and it is by the law or by the Judge that he is enabled so to do.
  • Title: [28 June 1807 Note Letter V]
    Description: 28 June 1807

    Note

    Letter V

    Every evil regarded by the proposed wrongdoer as liable to attach upon him in the character of a burthen in the commission of the meditated wrong, operates on him por tanto (i.e. according to its value, its apparent value, in his eyes) in the character of a check, tending to restrain him from and thereby to prevent the commission of it: every evil, whatsoever name regarded as so attached; for example under the name of satisfaction (burthen of satisfaction) punishment, or costs.

    But so long as satisfaction (full and compleat satisfaction) remains in any part unrendered, no burthen to an equal amount in any other shape, constitutes in an equal degree to the purposes of the law: viz. to that of making satisfaction for the evil of such wrongs as the law has not succeeded in the prevention of: nor yet to the purpose of doing what is capable of being done towards the prevention of the like wrongs in future.

    For it may be that the benefit looked for by the wrongdoer in the commission of the wrong consists in part or altogether of the view of the evil or burthen intended thereby to be imposed upon the party wronged: (as in the case where satisfaction of the vindictive hand is reaped by the party wronged at the charge of the wrongdoer:) and in this case it will be generally impossible to say what degree of burthen falling upon himself may not be regarded by the proposed wrongdoer as compensated for and outweighed by the pleasure attendant on the prospect of seeing a burthen even of less real value, imposed upon and borne by the object of his ill-will.