date

23 June 1807 (8) Note continued
23 June 1807

(8)

Note continued

Letter V

II. Litigation

II. Def t.

malâ fide

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.
Similar Items
  • Title: [PRIVATE 29 June 1807 Note]
    Description: 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.
  • Title: [22 June 1807 (7) Letter V]
    Description: 22 June 1807

    (7)

    Letter V

    II. Litig.

    II. Def t malâ fide

    These phenomen...[?] no serent[?]. Judge & Co: they have invested themselves of them accordingly.

    The less the check applying itself in restraint of litigation, under whatsoever name - burthen of satisfaction, burthen of costs or any other on either side (on the present occasion the defendant's side) is in value, meaning apparent value as it appears in the eyes of the litigant - in value, magnitude, certainty or uncertainty, proximity or remoteness, being taken into the account, the less its force and efficiency in such its character of a check: the greater, the greater.

    Whatsoever be the value which an object viewed from the Defendant's side of the suit possesses in the eyes of the Defendant (value being composed as above, of magnitude, certainty and proximity, multiplied into each other) that value will be different in the eyes of the plaintiff, the object being viewed from the plaintiff's side.

    If the given sum considered as about to come into the Plaintiff's pocket in the shape of gain the value will in the eyes of the Plaintiff, be greater than the real: and so in the case of the Defendant.

    If the same object considered as about to go out of the Plff.'s pocket in the shape of loss the apparent value will in the eyes of the Plaintiff, be less than the real: and so in the case of the Defendant.

    Such happily on the hole[?] for mankind is the constitution of human nature: hope is predominant over fear: the phenomenon has been noticed by Adam Smith and others.
  • 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.