PRIVATE

June 1807

+ Contents p.7

(1)

Note

Letter V

II. Litigation

Def t. malâ fide

Whatsoever benefit, in any shape, be provided by the main body of the law, in case of wrong in any shape in the name of satisfaction for the wrong, such satisfaction being to be administered at the charge of the wrongdoer, and thence involving a correspondent burthen, impending over the head of the wrongdoer, and by the view he has of it, what so impending, in the character of a check, to restrain him from the commission of the wrong, whatsoever diminution in value such impending burthen can be made to sustain, its force and efficiency in the character of a check to wrongdoing, and thence to litigation, will manifestly be diminished.

Supposing it reduced to a certain pitch, it would produce wrongdoing indeed, but it would not produce litigation, without which to the purpose of Judge and C o wrongdoing would be of no use. As often, generally speaking, in the estimation of the plaintiff, at the price of the expence and vexation attached to the suit the wrong might, and frequently would, be as generally committed, but there would be no plaint, nor consequently no[?] defence.

But so long as, according to the estimation, correct or incorrect, formed by the plaintiff of the value of the satisfaction, compared with the value of the burthen attached to the operation of suing for it, the value of the satisfaction (meaning the apparant value as above, taking always into account the gratification of the enmity excited by the wrong) preponderant, though it be by ever so little, this value may still be reduced, and still litigation not be prevented.