date

PRIVATE June 1807 + Contents
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.
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    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.
  • Title: [June 1807 Note Letter V]
    Description: June 1807

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    II. Litigation

    II. Def t.

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    A wrong which is either submitted or compensated for without being succeeded by a suit, is a flower without fruit.

    A suit, so long as it continues, requires at least two parties: and both continuing to act, or act at least one to act, the other to be acted upon, during its continuance.

    The wrongdoer who reaps the benefit of the wrong without entering into the service of the partnership in the character of litigant is selfish and careful enough, or fortunate enough, to reap the benefit of the wrong, is a sort of cheat who for that time at least defrauds the partnership of its due. /+not lost altogether: seen by the view of its[?] success, B[?]/23[?] will be encouraged./

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    with this untoward consequence. If in the view to the proposed wrongdoer it were certain that in the case of his committing the wrong, a burthen in any shape the pressure of which would be productive to him of a measure of affliction more than equal in value to the utmost enjoyment which he could hope to reap from it - were such a certainty to present itself, and he at the same time sufficiently master of his own appetites and passions to act accordingly, the wrong would not be committed, and thus no litigation would take place.

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    It is neither practicable nor would it be advisable to you to refuse satisfaction altogether and for wrongs of all sorts or indeed of any sort. Not practicable, because neither the legislator nor the people would endure it: not advisable, because if no satisfaction were ever given and this were universally known, which it could not but be, none would ever be demanded: in a word, there would be no such thing as litigation, which is the very thing you want to encrease. Not to insist on "honourableness and laudableness, which are always in the train of profitableness", Lett. §.534 few things in this world are so profitable as good pleadings, Father Littleton himself has said so: and if there were nothing to plead for, there would be no pleading, good or bad.

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    can be kept the better: because the lower it [is] in point of neat and real value, the greater is the probability that in the eyes of the proposed wrongdoer, the weight of it in the shape of a burthen suspending over himself, will be overballanced by that of the benefit looked for by him as the fruit of the wrong which he has it in contemplation to committ.