date

PRIVATE 29 June 1807 Note
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.
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    Under whatever name, satisfaction, costs, punishment or any other in case of judgment against the wrongdoer who in case of litigation ripens into a malâ fide defendant, a burthen has been made to fall on him, this burthen, as above observed will by its apparent value, operate as a check.

    Notwithstanding whatsoever diminution its value has experienced as above in the articles of certainty and proximity its real value, and thence to a certain if not equal degree its apparent value even in the eyes of the wrongdoer, whose appetites and passions dispose him to undervalue it, still if by any means such as the unrestrainable indignation of the legislator, it has happened to it in any instance to be raised in magnitude to a certain pitch, the addition made to the extent of its value in this dimension may still enable it to operate with success in the character of a check to the commission of the wrong, countervailing and overpowering the effect of the utmost defalcation that can have been made from the extent of its value in its two other dimensions, one or both of them.
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    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.

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    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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    II. Proper Remedies

    The importance of this object in the eyes of Judge and C o may be judged of by the risk they were content to run rather than give up the pursuit of it.

    By Acts of Parliament in great number and variety, under the notion of preventing malâ fide defence, and thereby removing the obstacle to bonâ fide pursuit, in the event of judgment in favour of the plaintiff, the burthen of extra costs have been imposed, that is endeavoured to be imposed on the Defendant: in some instances, the allowance to be made under the name of costs has been directed to be doubled; in others, trebled.

    By Judge and C o how has this engagement been fulfilled? how has this direction been fulfilled? When the order is to give double costs what they give or profess to give is single costs, with half single costs, and no more: where the order is to give treble costs, what they give or profess to give is single costs, with half single costs, and a quarter of single costs, and no more:- not so much as double costs.