PRIVATE

29 June 1807

Note

Letter V

II. Litigation

It is not always enough to keep down satisfaction unless every thing else to which it can happen to operate as a check to the commission of wrong be kept down with it. It is only by the prospect of the evil attached to the obligation of rendering the satisfaction that it is in the power of satisfaction to have that effect: and in any other shape, such as that of punishment or that of costs, a quantity of evil in appearance the same will by the view taken of it in prospect be productive of the same effect.

In every dimension of its value, in magnitude, in certainty, in proximity you must therefore remember to keep down value, that is apparent value, value as it appears to the eye of the proposed wrongdoer, as well in the instance of punishment and costs, as in the instance of satisfaction, as above.

Observe how well this has been done in regard to costs. In a multitude of instances the legislature considering that under the name of damages, the operation of fixing the magnitude of the satisfaction was always performed by Juries, of whose practice nothing could be foreknown, employed upon costs, as a sort of burthen the quantity of which was not thus exposed to uncertainty, and to make the check the stronger imposed in some instances death costs, in other truth[?] costs.

Thus was an injury done to the partnership, and was not to be considered. Where the legislature has said give twice the amount of the costs we give but one and a half as much: where the legislature says give treble costs, we give less than double.

Besides counteracting the wicked designs of the legislature in these particular instances, this example does a world of good in other ways.