28 June 1807

(3)

Note

Letter V

II. Litigation

Whereas a Service which before the commencement of the suit ought by law to have been rendered by the defendant to the plaintiff has not been rendered by him, a wrong has been committed by him to the prejudice of the plaintiff's side.

Benefit bestowed and received, in consideration of wrong seen and sustained, is termed satisfaction.

Of the civil (non-criminal) branch of law a main object real or professed is the prevention, as far as may be, of civil (non-criminal) wrongs.

This burthen of satisfaction (i.e. viz. the apprehension of the unpleasant sensation produced by the obligation of rendering the correspondent burthensome service) operated pro tanto (to the extent of it) to this effect.

In no individual instance can a provision made by the law and by the Judge have the effect of preventing a meditated wrong, unless in that same instance in the view of the proposed wrongdoer (the person acting under the temptation to committ the wrong) the whole value of the benefit expected from the commission of the wrong is outweighed or at least equi-ponderated by the whole value of whatever burthen if any is apprehended by him, as likely by appointment of law or otherwise to attach upon him in the event of his committing it.

As often as in his view of it such benefit, either stands single, or being preponderant over the attendant burthen, he committs the wrong accordingly, and such preponderance, for want of something that might have been done by the law or the Judge for the prevention of it takes place also in effect, the wrongdoer takes advantage of profits by his own wrong, and it is by the law or by the Judge that he is enabled so to do.