date

29 June 1807 *2 Note Judge
29 June 1807

*2

Note Judge

Letter V

II. Litigation

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.

But so long as satisfaction is provided - i.e. so long as in each case the party wronged can be brought to suppose that satisfaction in that case has been provided, so long as the value of it in his eyes be not brought down so low, as to appear not worth suing for, regard being had to vexation as well as expence, the lower the real value of it

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.
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  • 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.
  • Title: [29 June 1807 *5[?] Note Judge]
    Description: 29 June 1807

    *5[?]

    Note Judge

    Letter V

    II. Litigation

    Another emblem which it may be of use to you to bear in mind is that of the perspective tube. Viewed with one of the two ends next to the eye the object appears greater than it is: viewed with the other end next tot he eye the same object apears less than it is. In viewing the benefit from the wrong, the proposed wrongdoer holds the tube with the magnifying end next to his eye: in viewing the satisfaction provided for the wrong, with the appendant burthen suspending over his own head, he holds the tube with the diminishing end next to his eye. Then again when the wrong has been committed, the party wronged, in viewing the satisfaction provided or supposed to be provided for the wrong the party wronged holds the tube with the magnifying end next to his eye: in viewing the expence and vexation attached to the pursuit of the satisfaction, and waiting to rain down upon him as long as he continues the pursuit, he holds the tube with the diminishing end next to his eye.

    To favour the deception on both sides, you will do your utmost and keep up throughout the whole of the course to raise every where a dust of uncertainty, through which as through a cloud every obejct shall be viewed by both parties, on the several occasions on which it is proper that they should respectively be deceived: 1. nature of the satisfaction supposed to be provided, 2. existence of the law by which it is supposed to be provided.
  • Title: [June 1807 Note Letter V]
    Description: June 1807

    Note

    Letter V

    II. Litigation

    II. Def t.

    malâ fide

    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./

    Except in the particular case where simple oppression is the object, and litigation the indispensible instrument of it.

    On either side of the cause certainty would be attended

    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.

    If, on the other hand, were it certain that in the commission of the wrong no relief would be obtained, nothing at all given at the expence of the wrongdoer or any one else in the way of satisfaction for the wrong, not so much as in the way of vindictive satisfaction, or nothing that was worth suing for, the wrong would as often as committed be submitted to, and in this case too, and thus in every case no litigation would take place.