date

28 June 1807 Note Letter V
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.
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  • Title: [28 June 1807 (3) Note]
    Description: 28 June 1807

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    Letter V

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    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: [12 July 1807 10 Letter V]
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    Letter V

    III. Litigat prevented 2 o

    II. Directions for the prevention of malâ fide wrongs in general followed or not followed by demand of satisfaction and thence by malâ fide defence.

    In substance as well as in expression study so to organize the body of your laws, that in the event of any transgression, whereby wrong with its correspondent damage may fall upon any other party, the party exposed to temptation to transgress, may behold a more than equivalent burthen as eventually about to fall upon him, in the shape of satisfaction - i.e. the obligation of rendering at his own charge satisfaction to the party specially wronged, where the case affords a party so circumstanced; and failing such satisfaction, in the shape of punishment: taking all possible care that no means of delay, nor chance of ultimate evasion may either exist, or present themselves to his view.

    Whatsoever check, either in the shape of the burthen of satisfaction or in the shape of punishment, either under that name or any other (for example such as Costs), be provided for the purpose of restraining men from the commission of wrong, take care that no defeasances, no opportunities of evasion or delay, be open by which the real value of it or the influence of it in the imagination of a party under temptation can be decreased. Look carefully over the body of existing law, jurisprudential as well as statutory, for the purpose of putting an end to all such chances and expectations. Suffer not any such effect to be given by the Judge to intervening casualties at large. In regard to such casualties as when they take place are unavoidably productive of this effect, (such as casualties productive of deposition of evidence,) observe by the abolition of factitious delay, to render the chance of their intervention as small as possible.
  • Title: [29 June 1807 (1) Note Legislator]
    Description: 29 June 1807

    (1)

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    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.