date

8 July 1807 (3) 14 Letter V
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.
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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.

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