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[094-185]
20 Jan y 1808
Scotch Reform
Letter V
Ch 5. Malâ fide Appeal
how prevented
For where is that instance, that individual instance, in which it can be for the advantage to the community, in point of justice, in point of security, that the wrongdoer should reap, should be seen to reap or be suspected of having reaped a profit from his own wrong?
But since the calculation made in the way of judicature can seldom be exactly and to a [...?] [...?] commensurable with the trouble, since in other words, error on our side as[?] other, must be a frequent result, on which side ought it to be guarded against with the greatest /superior/ care? Unquestionably, on that side which would have the wrongdoer in possession of any part of the fruit of his own wrong. If assurances be [...?] that the sum he can be adjudged to pay exactly equal to the sum due, better he should pay too much than pay too little. That by which he was made to pay too little would operate in the way of encouragement to evildoers /wrongdoers/: that by which he were made to pay too much, [...?] so much more than was requested for the purpose of compensation, of satisfaction, will not be bad[?], the [...?] attached to the forced payment of it will not be thrown away: it will operate, and operate with useful effect in the character of punishment: its effects of the second order will to all on the side of good.+
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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.
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Title: [[...?] Jan y 1808 [...?] Appeals]Description: [...?] Jan y 1808 [...?] Appeals 3. In the 16 th section is continued what regards the allowance of interest. To enable the wrongdoer to reap a profit from his own wrong has been already stated being under the fee-gathering system as the natural interest and real object of the Judge. For a whole /an entire/ century in Scotch causes, and /is[?]/ for several centuries on English causes /ones/, the profit from this arrangment had been shared without disturbance and without reduction between the co-partners, the wrongdoer and the his protectors. The such[?] money of the season had at length raise a storm, in the course of which prudence had supported the necessity of throwing[?] ones[/] board a part of the cargo /profit/, in order to save /for the preservation of/ the rot[?]. What remained was to render the sacrifice as small / in reality/ in reality, and at the same time for the satisfaction of the crew, in appearance as considerable/ great/ as possible. The first of these objects was provided for /In perseverance of the first of these objects //first of these designs/, a [...?] ways to try[?] confusing the allowance in all cases to the utmost rate that could be understood to be comprized under the term interest viz. 5 per cent: 2. by requiring a pristine[?] execution in the point of the [...?] as a condition sin quâ non, to the [...?] of even the inadequate allowance.
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Title: [20 Jan y 1808 Scotch Reform]Description: 20 Jan y 1808 Scotch Reform Letter V Ch 5. Malâ fide Appeal how prevented Truths thus obvious to common sense - to the very plainest common sense - are they perceived by these sages, or not perceived? if not perceived, what are we to do think /shall we say/ of their discernment? if perceived, what are we to think of their honesty. In many instances, probably enough they are not perceived: such is the terms[?] of the affection over the understanding /intellectual part of mans frame/. There stands the trouble in full radiance before their eyes: but the radiance /its light/ is painful to them: they shut their eyes against it, or turn aside from it: By the force of interest and passion[?], what is there so obvious that a man may not be made not to see /kept from seeing/. he has but to turn aside, or shut his eyes - What so absurd and monstruous, that by the same force he may not be made to believe? he has but to turn his eyes /keep his eyes wide open/ and turned towards the arguments that plead in favour /consideration that operate in support/ of it: to shut his eyes against or turn them aside from those /the arguments //the considerations/ that plead against it, Classes of judications in this country, as in most other European countries (I have already said it) two[?]:+ Courts of Natural procedure, and Courts of technical calling itself as if exclusively, regular procedure. Object of the Courts of Natural procedure works created by the fruit of the wisdom and beneficence of the legislators, their object to prevent a man from taking advantage of his own wrong. In this their pursuit they for the most part operate /act/ with success: with success not in making compensation for the wrong, but because by the dispatch they give, by the success which attends them and curious[?] to avoid the production of all superfluous expence vexation and delay, they reap the wrong with the bad.
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