date

5 Feb y 1808 on L d Eldons Bill
5 Feb y 1808

on L d Eldons Bill

Appeals

Principles

Principles to be persued and points to be attende to for the purposes of suppressing malâ fide and timerarious[?] legislation, on both sides of the course, but even particularly on the defendant's side, and that not only on the stage of Appeal, but in the antecedent stage or stages.

1. Principles and Points belonging to the main body or substantive portion of the law.

1. Observe that, in each case of wrong, satisfaction, of which compensation (kuglo-jarganci damage) is but one branch, thought the principal one /+[...?]/, be provided.

2. Observe that in each case it be compleat

3. Observe that in each case, all profit from the wrong in[?] whatsoever shape received, be either in kind or in value, taken away from the wrong doer, whether /whenever/ the whole amount so taken is not and even though it be, too much to be given in the [...?] of staisfaction to the party wronged. In every instance in which it is seen that this profit will not be compleately taken away, there will remain a [...?] adequate to the production of it, and the wrong, according to all rational expectation will be committed.

4. Although all profit in the ordinary sense of the wrod profit ever pecuniary of other profit belonging to what has been called the concupiscible appetite, i.e. the self-regarding affections be taken away from the wrongdoer, yet unless the satisfaction adminstered is the purely wronged naturally at the expense of the wrongdoer be also compleat, profit in the shape in which the seat and receptacle and seat of it is in the irascible appetite i.e. in the dissocial affections, will frequently not have been compleatly taken away. As often as any such deficiency has place, the operation will, to the [...?] of delimiting[?] the conduct of the eventual wrongdoer by its preventive efficiency, be incompleat; and the wrong will take place, as if nothing had been done by the legislator for the prevention of it.
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  • Title: [4 July 1807 9 Letter V]
    Description: 4 July 1807

    9

    Letter V

    II. Litigation promoted

    Satisfaction on the score of wrong is never adequate, unless by the receipt of the satisfaction the party wronged is put at least into as good a plight as if no wrong had been committed. It will be your business to keep it as far short of being adequate as the impertinence of non lawyers will admitt.

    Profit may be natural or conventional: natural, by simple use or possession, as by living in the house riding on the horse, or by gathering fruits, as by gathering the herbage or fruit from the land, milking the cow or eating her calf: conventional, viz. by means of earnings, as by lending money, and receiving back the principal with interest or share of neat profit in trade. Profit, call it profit or interest, may be non-commercial say 5 cent, or commercial say 12 or 15 per cent: in both cases ordinary or extraordinary: direct or consequential.

    Damage, which may be either positive, or as consisting but of loss of profit, negative, is susceptible of the same distinctions. Note well these distinctions, that satisfaction may be kept down as far below adequate as possible.

    In respect of damage, if adequate satisfaction must in the case of a commercial man, must cover not merely loss of interest but loss of commercial profit for the time.

    In case of a wrong, call it of commission or omission, consisting in the withholding of an individual thing, which ought to have been delivered up before or ought never to have been taken in hand, satisfaction if adequate, includes identical delivery or restitution, if possible: but without satisfaction for intermediate damage, viz. for example from non-possession, this though good as far as it goes is never adequate.

    Damage and so profit may be either to the concupiscible appetite, the only branch usually noted, or to the irascible party wronged and wrongdoer, both having been tormented into a sufficient degree of irritation, damage or loss to either appetite of each becomes profit to the irascible appetite of the other. But for the effect of this irritation added to that of the above deception, of the suits at present defended, the greater part would have had no existence.
  • Title: [28 June 1807 Note Letter V]
    Description: 28 June 1807

    Note

    Letter V

    Every evil regarded by the proposed wrongdoer as liable to attach upon him in the character of a burthen in the commission of the meditated wrong, operates on him por tanto (i.e. according to its value, its apparent value, in his eyes) in the character of a check, tending to restrain him from and thereby to prevent the commission of it: every evil, whatsoever name regarded as so attached; for example under the name of satisfaction (burthen of satisfaction) punishment, or costs.

    But so long as satisfaction (full and compleat satisfaction) remains in any part unrendered, no burthen to an equal amount in any other shape, constitutes in an equal degree to the purposes of the law: viz. to that of making satisfaction for the evil of such wrongs as the law has not succeeded in the prevention of: nor yet to the purpose of doing what is capable of being done towards the prevention of the like wrongs in future.

    For it may be that the benefit looked for by the wrongdoer in the commission of the wrong consists in part or altogether of the view of the evil or burthen intended thereby to be imposed upon the party wronged: (as in the case where satisfaction of the vindictive hand is reaped by the party wronged at the charge of the wrongdoer:) and in this case it will be generally impossible to say what degree of burthen falling upon himself may not be regarded by the proposed wrongdoer as compensated for and outweighed by the pleasure attendant on the prospect of seeing a burthen even of less real value, imposed upon and borne by the object of his ill-will.
  • Title: [5 Feb y 1808 on L d Eldons Bill]
    Description: 5 Feb y 1808

    on L d Eldons Bill

    Appeals

    [...?] [...?] what a man would like to receive[?] the wrong. Provison[?] in case of wrongs for which [...?] will not allow a man to admitt the existence[?] of the equivalent.

    12. The loss of the use of money, in whatsoever of the above ways the loss were produced /occasioned/ a more commercial man can not have /has not/ received adequate compensation, unless he has received over and above the principal, non-commercial interest at the same rate at which, had it not been for [...?] temporary loss be created or if he had pleased might have received it: and so in the case of a commercial man [...?] to non-commercial, commercial interest

    13. So a converse[?], from a non-commercial man the profit to[?] will have derived or may reasonably be supposed to have derived from the temporary use of money which by his own wrong was left to that other will not have been compleatly taken away, unless, being a non-commercial man, he has been made to pay non-commercial interest for and during the rime in question, or if /being/ a commercial man, commercial interest

    14. To save in general / By a general rule/ the delay, vexation and expense attendant on particular investigation, rates of interest corresponding to the different situations in which we may be placed with reference to /in respect of/ the opportunities of profiting by the use of money, should for the purpose of the purpose of the provisional allowance[?] to be made in the sum of interest to a party wronged, od the restitution to be exacted on the like sum from a wrongdoer be fixt by general rules: his rates rates corresponding to the two terms of the main distinction between non-commercial and commercial money at any rate.