date

8 May 1805 Evidence Introd
8 May 1805

Evidence

Introd.

Ch 5. Collateral Incidental

'.4. Vexation - Persons

3. Imprisonment (provisional) for the purpose of securing actual justiciability and personal forthcomingness. This branch of juridical vexation is in general confined to the station of defendant, and in that station to those suits for the purpose of which such coercive means of assurances are regarded as indispensable.

In some cases, in the view of diminishing the vexation, an engagement is accepted on the part of third persons, who, through friendship to the defendant, are content to subject themselves to a pecuniary loss in the event of his failing to become personally forthcoming or in some other way actually, justiciable, at the /an/ appointed time. In these cases the personal vexation is taken off /removed/ from the shoulders of the party, and in the shape of eventual expence, and present anxiety, transferred upon those of his friends.

7(a)

In English law in which the use of this accusatory[?] expedient seems more abundant than in any other established System, such persons are called Sureties or Bail: the act of procuring persons subject themselves to this obligation is called finding Bail: on the part of the Bail the act of undergoing examination for the purpose of satisfying the Judge of the sufficiency of the security is afforded by them justifying Bail: and the defendant who is liberated from the imprisonment in consideration of the vicarious security thus afforded, is said to be bailed.
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  • Title: [8 July 1807 (3) 14 Letter V]
    Description: 8 July 1807

    (3) 14

    Letter V

    III. Litigation prevented

    Insolvent

    Where the Bail are insolvent, either the eventual burthen to which they have exposed themselves falls upon them, or it does not. If it does, the proposed remedy fails in every respect of answering its proposed purpose. Relief to no one: upon four persons at least, plaintiff, defendant, and two Bail, an additional and useless burthen, in the shape of expence and vexation, is imposed: three of them at least being in a state inadequate to the endurance of the burthens to which it found them already subjected. The substance that, as far as it would go, ought to have been applied in satisfaction of the respective sets of creditors, is devoured by lawyers.

    If the Bail being insolvent, the burthen to which they had exposed themselves, does not fall upon them, it is a proof that in that instance the imposition of exposing them to it was unnecessary. What they are made to undertake for - in the first instance at least and in ordinary cases, is not the payment of the debt, but the surrendering of the body of the defendant to be subjected to imprisonment.

    The Defendant thus surrendered, is he solvent or insolvent? If solvent, it is a proof that the collateral burthen imposed in the Bail was an unnecessary one. Bail, even if solvent, would have been of no use: much more these insolvent ones.

    If the defendant be insolvent, here again the whole procedure is of no use: {a person is not a gold mine /does not restore a man to solvency/:} by imprisonment, insolvency is aggravated, it can not be alleviated.

    For what purpose is the imprisonment supposed to be needed? for torture or for punishment? To either purpose it might have been applied to more advantage in the first instance, and without the mischief of plaguing third persons in the character of collateral sureties.
  • Title: [8[?] May 1805 Evidence Introd]
    Description: 8[?] May 1805

    Evidence

    Introd.

    Ch.5. Collateral Incidental.

    '.4. Vexation - Persons

    '.4. - Persons liable to be affected by it.

    Of the different actors in /several sorts of actors in/ the juridical drama /theatre/, mention has been already made: Judge and his official subordinates, party or parties, witnesses. For the present purpose say 1. Witnesses. 2. Parties: Party demandant Party defendant and add here[?] 3 Third persons. 4 Judge and his subordinates: 5. Professional assistants of the parties.

    1. In the case /station[?]/ of a witness the following are the /seem the/ principal shapes in which the juridical vexation is apt to show itself: - [...?].

    1. Trouble or Uneasiness and loss of time, by attendance, understand over and above any actual pecuniary expence, which belongs to a separate head: - Loss of time, which according to the situation and prospects[?] in life is as much as to say, loss of /in respect/ present pleasure, of future pleasure, of future security against evil or of the means of subsistence.

    2. Trouble /Uneasiness/ and loss of time by journies, viz: to and from the place of examination: also, over and above any expence.

    3. Disclosure of secrets: i.e. of facts the disclosure of which may in any way be it appear /threaten[?]/ to be injurious or prejudicial, in any particular way, either to the witness himself, or any other person, the object of whose suffering is, by sympathy rendered in a certain degree less[?]. Prejudicial? in what way? The division of offences - offences against individuals - will shew: - person, property, reputation, condition in life.+

    For The vexation to /falling in the first instance upon/ the witness is any pecuniary indemnification /satisfaction/ afforded /administered/ to him by either party? If yes, and so far as the indemnity /satisfaction/ extends, or so far the vexation /burthen/ is taken off from the witness, converted into expence, and in that shape thrown[?] ultimately upon the party. As to what concerns journeys and attendance, this is what may be done and frequently is done: as to what concerns disclosure of secrets, it scarce ever is done, even in any degree, nor in an adequate degree can it easily be done, even where the innocence of the person thus vexed renders it desirable that it should be done. Happily this branch of vexation is but a casual one.

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  • Title: [8 July 1807 (2) 13 Letter V]
    Description: 8 July 1807

    (2) 13

    Letter V

    III. Litigat. prevented

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    Here you have a real remedy, and that without which all others are inadequate.

    In the operation of bailing, the bail examinable, their principal unexamined and unexaminable, behold a sham remedy, having for its effect and its object the aggravation of the disease.

    The defendant is he in a state of solvency? The consequence is (if two being the number of these sureties) vexation and that needless, imposed on three persons instead of one: on the defendant himself an additional and needless burthen imposed either upon his independence, or upon his purse. And by way of indispensable introduction to this needless burthen, comes in the first place the severer burthen of imprisonment.

    If though solvent, he is unable to procure bail, then instead of that needless burthen, comes the severer and again needless burthen of a long and indefinite continuation of the needless imprisonment.

    The Defendant insolvent is he in a state of insolvency? The Bail themselves are either solvent or insolvent. If solvent, these [...?] persons are led, commonly by notions of humanity to take upon themselves a risk, the magnitude of which they have had no sufficient means of estimating. Were the state of the Defendants circumstances previously ascertained and made known to them, then if they chose to subject themselves to the eventual responsibility, there would at any rate be no deceit.

    If from one innocent person, the Plaintiff, the burthen is shifted off upon another insolvent person, the Bail, where is the gain to justice?