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.