6 July 1807

13

Letter V

II. Litigation promoted

3. Keep down costs: meaning as usual, reimbursement of costs:- not the money which each or either party has disbursed, but that money which the party against whom the decision passes has the disadvantage in the cause, is obliged to pay to the winner, in reimbursement for the disbursement made on his part:

On the party on whom a burthen in this shape is imposed the recent wrongdoer, the defendant, it operates as so much punishment: which on the other party, the injured plaintiff, though it does not operate as satisfaction viz. as for the damage by the wrong, yet it operates per tanto in alleviation of an additional and collateral burthen, antecedently to the removal of which satisfaction for the wrong can not ever take place. Accordingly you should keep down costs as well as satisfaction and punishment, and for the same reasons.

When the money that had been disbursed on the occasion of the suit by the winning party has been disbursed by him, if under the name of costs he receives any thing more of this surplus or any part of it be given the name of costs such name will evidently [be] fictitious and improper. Considered as going into the pocket of one party, it is so much satisfaction: or, in case of his having no personal interest in the subject matter of the suit, but on the public account, performing the function of prosecutor instead of a public officer, and for a reward, and thence by contract, it forms part of the reward: considered as coming out of the pocket of him who pays the costs, it constitutes so much punishment. But whatever be the name it goes by, it will pro[?] tanto operate in the way of satisfaction or in the way of punishment, or in both at once, and must therefore be kept down for the same reasons.