JB_092_172.xml

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.

JB_092_081.xml

Title: [6 July 1807 12 Letter V]

Description: 6 July 1807

12

Letter V

II. Litigation promoted

If for example the legislator orders you to give double costs viz. double that part of the adversary's disbursements which you are in the habit of ordering to be reimbursed and which perhaps may not amount to much more than the costs he has been out of pocket, strike off 25 per cent of what you ought to give, giving instead of £100 but £75 where the allowed single costs would have been £50: if treble costs, instead of the £150 give less than double costs, for example £87:10 '.

If any body asks you why you thus break the law, talk of humanity: and remember once for all, that humanity is a limited fund, of which the wrongdoer, your partner for whom your are trustee, is entitled to the whole benefit, and that the party injured has no claim upon it.

[Remember on this as on all other occasions, that] the more openly and the more frequently you disobey the law, the better: it brings the law into contempt, and accustomes the people to look to the proper authority, that is to your undeclared and undiscoverable will, and not to the declared will of the legislature, as the arbiter of their fate.

Let your ears be ever open to receive complaints, and your hands ready to apply relief: for example, upon receipt of £10 grudge not to take off an over charge of £5.

As to certainty and proximity, proceed, as above in the cases of satisfaction and punishment.

JB_095_084_001.xml

Title: [PROCEDURE TURNP Double Costs]

Description: PROCEDURE

TURNP Double Costs

At the time I wrote this I know not (for who could have

imagined) that

in the language of the Law or rather

of as daring abuse which has eaten out the heart of Law, double means only, half as much

again

treble, half & a quarter as much again, & so

on

Thus to use the illustration of the another of an ingenious title tract.

+ which first put me on the enquiry, rr the Masters, Prothonotaries & other

Officers who tax costs, allow, when the single costs amount to £100

for double only £150 for treble, only

£175. I have been assured by Practitioners that nominal costs thus

of good

trebled, frequently come short of those actually incurred. I see no

reason to doubt the rectitude of this whereas there were who

first devised what intentions: they thought to do an act of mercy in

softening a vigorous provision.

Little do The Powers who give Laws unto this this Realm

concern that while and the exercise of this

occupying themselves as they think

that most exalted

privilege there sits that scribbler at his desk who shall turn

what they have written into Waste-paper.

Buen would have called, this construction

A few examples of this flagrancy

would be sufficient to destroy all confidence in the Law from

among

Weak reasons! who knows not, that better it was the arm of Law should

with ten-fold severity, than be loosed by their unhallowed hands

the people — Eyes are not to be trusted: Common Sense is a

deceiver: the most elementary knowledge of the plainest & most

incontestible principles of Arithmetic is an incumbrance

+ Dialogue on the Game Laws Printed for

Wilkins - 1771.

A spectacle it would be to me, I must acknowledge not unpleasing

a one because I think it would be an useful one, to see some

of these [Gentle]men who are wiser than the Laws [brought] on their knees

before an insulted Legislation to own their folly — What I

may

is here complain'd of has no application to these

Gentlemen, unless they are the first Authors who

near

occupy these departments — Custom with the possession

of their

is to them a sole & warrantable guide: & this custom

is inveterate.

[+] Whoever from knowledge of

knowing of ... this deficiency

of the recompence

desists from a prosecution, is an evidence of

a mischief

suffer'd by Public.

in the good faith of the Law engager & Whoever engages

in one

from not knowing if it engages in one, is an individual

injured

& abused.