date

29 June 1807 *5[?] Note Judge
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.
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  • Title: [29 June 1807 *4 Note Judge]
    Description: 29 June 1807

    *4

    Note Judge

    Letter V

    II. Litigation

    1

    Directions to Judge and C o in regard to wrongs and litigation. Of the object or policy proper to be pursued by you in regard to wrongs and litigation together, litigation in respect of its lawyers'-profit, wrongs viz. either wrongs already committed or supposed to be committed, or the hope of committing future ones, being the only indispensable causes of litigation - a general indication is given in like manner in one word: promotion, denial of satisfaction: promotion, in so far as they can be promoted: denial of satisfaction in so far as by the denial of satisfaction in one instance the commission of wrongs may be promoted in another.

    On each occasion let it be your care so to order matters, that in the eyes of the proposed wrongdoer i.e. the party under temptation to committ the wrong, the fall of the whole impending counterburden and in particular the burthen of making satisfaction included shall appear less probable than the contrary. This in the first place, before the wrong is committed, to the end that it may be committed: and afterwards, in the case where satisfaction has been demanded at law by the party wronged, that the course of litigation so commenced may be continued as long as possible so far as depends on the defendant's side.

    Remember however that to the commencement and continuance of the litigation, it must be your endeavour when the wrong has actually been committed, it is necessary that so far as he is concerned the same event viz. the receipt of the satisfaction on his part shall appear more probable than the contrary.

    Remember the case of the head, and the dispute about it between the two travellers: one said it was white, the other black; and both said right: the points from which they viewed it were opposite.
  • Title: [PRIVATE 28 June 1807 (*2)]
    Description: PRIVATE

    28 June 1807

    (*2) (9) (1)

    Note

    Letter V

    II. Litigation

    Satisfaction

    6

    Satisfaction (for wrong) [...?]

    Satisfaction may be for damage without wrong. satisfaction for wrong, is benefit bestowed and received, in consideration of wrong and sustained.

    Synonymous to satisfaction: indemnity, identification, retribution, reparation, redress, relief.

    In itself, according to the opinion and feelings of the party wronged, satisfaction is never full and adequate, untill the benefit received is equal, at least equal, in value to the wrong sustained: insomuch that, in a case exactly similar, it would be matter of indifference to him whether to experience the wrong and the satisfaction, both: or to experience neither: the wrong, and with it the damage being supposed to be followed by the satisfaction at the same distance in [...?] and of them[?] in both cases.

    In this as in other respects no man's real feelings being capable of being perfectly and correctly known to any one by himself, a third person who in the character of legislator or that of Judge can no otherwise in any instance form his judgment whether any benefit proposed in the character of satisfaction be or be not full and adequate, than by considering whether it would be so to himself in that same case, making the most correct allowance he is able to make for all differences between the party and himself in respect of circumstances (external circumstances) and disposition (internal disposition).

    By exterior marks, cases may however be sufficiently described in which it will appear to any one that what is given in the name of satisfaction can not be full and adequate.
  • Title: [4 July 1807 + 7 2 o]
    Description: 4 July 1807

    + 7

    2 o

    Letter V

    Ch.4. Litigation promoted

    §.4

    21 Jan y 1808 Omitt this or preserve as being applicable chiefly to Bonâ fide Litigants?

    Special Instructions for the application of the principle of uncertainty to the promotion of malâ fide litigation, the fruit of dishonesty on the defendants side.

    Your business is to make as many suits as possible, each to lasting as long as possible, a suit ends as soon as either party thinks it more for his advantage to give it up than to go on with it. The thing to be aimed at is that whatever be the real chance of success on the plaintiff's side, it may appear to the plaintiff greater than it is, to the defendant less. Remember the tube which looked through with one end next to the eye makes the object greater than it is; with the other less. On the plaintiff's side his chance must never appear to him so small in value as not to be worth taking: this point secured, the less it is worth the better: because the less the real value of the plaintiff's chance, the less the difficulty of making it look below nothing on the defendant's side. In every case therefore it is necessary that a deception should press upon one side at least if not upon both. This deception is favoured by two principles in human nature, of which it will be your care to turn to the best account, the predominance of hope over fear. (called by A. Smith a man's confidence in his own good fortune) and the passion of revenge by which for the pleasure of subjecting the adversary to a loss a man is frequently induced to take a still greater loss upon himself.

    The wrong will not be committed, nor consequently the suit for obtaining satisfaction commenced, unless in his own estimate the proposed wrongdoer has less to fear than to hope from the commission of it. What he has to fear consists of the consequences of ill success in case of litigation: these consequences will consist of an eventual burthen which in different shapes one or more of them - such as satisfaction, punishment, and costs. [Since for some, the check applied by the fear of a charge on the score of satisfaction is stronger than that imposed by the fear of a charge on the score of punishment: because to the mortification of being so much as added that of seeing the party injured gain it.] But an alleviation of the aggregate burthen in any one part, of the aggregate restraining burthen, might be made up by an equivalent aggravation of excess in any other. Your care must therefore extend to the whole.