date

28 June 1807 (3) Note
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.
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  • 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.
  • Title: [29 June 1807 (1) Note Legislator]
    Description: 29 June 1807

    (1)

    Note Legislator

    Letter V

    II. Litigation

    Of the object or policy of the legislator in regard to wrongs - civil (i.e. non-criminal) wrongs, a general indication is given in two words - prevention, satisfaction: prevention in so far as they can be prevented, satisfaction, to be applied in the several individual instances in which the general arrangments directed to the object of prevention happen to have failed.

    Satisfaction may be burthen, or say, damage without wrong. Satisfaction for wrong, is benefit bestowed and received, in consideration of wrong done and suffered.

    Synonymous to satisfaction are compensation, indemnification, retribution: reparation, redress, relief.

    Satisfaction, as far as it operates, is the instrument which, where administered as it naturally will be at the charge, or say the expence, of the author of the wrong, is the instrument operating to the best advantage to the purpose of prevention; and this for two reasons. 1. Whatever burthen is applied to this or any other purpose in the shape of punishment, or any other shape in which satisfaction is not included, produces suffering merely, without producing enjoyment any where, unless it be the sort of enjoyment in one part the inseparable however collateral and level[?] headed[?] result on one side of punishment applied to the other, viz. gratification of the appetite of enemity on the side of the party wronged: whereas a burthen which operates in the shape of satisfaction, produces along with the suffering enjoyment, which though commonly inferior to the concomitant suffering, is always so much more enjoyment than would have existed otherwise. 2. Whatsoever burthen, on its being applied to the wrongdoer, is at the same time seen or expected by him to be attended with a correspondent benefit in the shape of satisfaction, to his adversary, the party wronged, the apprehension of it is, in the shape of apprehended punishment, more impressive than it would be if unattended with such concomitant effect: the spectacle of the enjoyment on the one side being in prospect so much additional suffering on the other. Satisfaction is therefore in the character of punishment, not only more economical but more impressive, than that infliction which is pure punishment and nothing else itself.
  • Title: [PRIVATE June 1807 + Contents]
    Description: PRIVATE

    June 1807

    + Contents p.7

    (1)

    Note

    Letter V

    II. Litigation

    Def t. malâ fide

    Whatsoever benefit, in any shape, be provided by the main body of the law, in case of wrong in any shape in the name of satisfaction for the wrong, such satisfaction being to be administered at the charge of the wrongdoer, and thence involving a correspondent burthen, impending over the head of the wrongdoer, and by the view he has of it, what so impending, in the character of a check, to restrain him from the commission of the wrong, whatsoever diminution in value such impending burthen can be made to sustain, its force and efficiency in the character of a check to wrongdoing, and thence to litigation, will manifestly be diminished.

    Supposing it reduced to a certain pitch, it would produce wrongdoing indeed, but it would not produce litigation, without which to the purpose of Judge and C o wrongdoing would be of no use. As often, generally speaking, in the estimation of the plaintiff, at the price of the expence and vexation attached to the suit the wrong might, and frequently would, be as generally committed, but there would be no plaint, nor consequently no[?] defence.

    But so long as, according to the estimation, correct or incorrect, formed by the plaintiff of the value of the satisfaction, compared with the value of the burthen attached to the operation of suing for it, the value of the satisfaction (meaning the apparant value as above, taking always into account the gratification of the enmity excited by the wrong) preponderant, though it be by ever so little, this value may still be reduced, and still litigation not be prevented.