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.