date

2 June 1807 Letter V III. Proper
2 June 1807

Letter V

III. Proper Remedies

II. Insolvent

Within the memory of men now living, a loose and almost sham check applied by the legislator under the guidance of Judge and C o as usual: in the shape of affidavit evidence, uncross-examinable and unopposable, a loose assertion of the justness of the demand, but of any necessity for so strong a measure as the infringement made on personal liberty, not any the slightest mention: arrestation performed, the defendant conducted, neither then nor ever after, into the presence of the Judge to be examined, but for the benefit of the Judge to a Jail, or for the benefit of Judge and C o to a spunging-house, to be squeezed: sequestration, or other security for the eventual forthcomingness or preservation of any objects: whether of the class of things or persons, none whatsoever.

Instead of these efficacious and at the same time unvexatious securities, declared by common honesty, and common humanity, at the suggestion of common sense, the security provided by Judge and C o, in addition to the frequently and at any time causeless arrestation of the person of the party - the defendant, consists in the practice of bailing as it is called, or holding to bail, letting out upon bail. In the character of a measure of security as well as in that of a measure of relief, rather better than none at all. But for the inadequacy of it in both characters, together with its subserviency to the ends of judicature will be shown under the appropriated head.
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  • Title: [[094-467v] 17 Apr. 1807 51]
    Description: [094-467v]

    17 Apr. 1807

    51[?]

    Letter V

    II. Proper Remedies

    V. Remedies

    Conscious of the disease created by the industry of their predecessors and kept up by their own - intimately acquainted with the disease, intimately acquainted with its cause - it is equally impossible to those physicians of the body politic to avoid being equally acquainted with the remedy.

    I should have said the remedies; for the disease, according to its symptoms /to the circumstances/, requires two different ones.

    In the case of the solvent - the thrifty and calculating pupil of the partnership - do away his profit: force him to refund, and with an adequate addition whatsoever he has made -  Then shall[?] faciendisa[?] on appeal: stop not execution. This applicable to solvent & insolvent birth[?].

    In the case insolvent - the prodigal pupil of the partnership - at the very outset of the suit, let it be the care /duty/ of the Judge, at the instance of the plaintiff to arrest /stop dissipation[?]/ him[?] in in its course. /In a civil case/ This is a civil case is the use - thus the only use - of provisional arrestation: the prisoner conducted in the first instance /for examination unto/ before the person of the Judge: consigned from thence to a place of provisional

    confinement if necessary for securing to the plaintiff the benefit of the sequestration; beyond the necessity not to [...?].

    By providence thus displayed the purpose of the injured creditor would be served /the ends of justice in a word/ but the purpose of the partnership /Judge and C o/ the ends of judicature marred: accordingly care is taken never to see /face/ or hear the insolvent never either to compel[?] so much as admitt into the presence of the Judge him who is thus on the breach[?], floating or already in the /running down/ in the current of insolvency - near either to see his person or know any thing of his circumstances:

    Instead of this[?] arrangement thus dictated /common honesty[?] the suggestion of/ by common sense, the technical system provides the security afforded by bailing - holding to bail. But the inadequacy of this security will be shewn under the head appropriated to that subject.
  • Title: [2 June 1807 Letter V II. Proper]
    Description: 2 June 1807

    Letter V

    II. Proper Remedies

    To preserve the subject-matter in dispute, according to the nature of it - belonging to the class of things or of persons - from embezzlement, dissipation, destruction, deterioration - measures alike rapid, unavertible, efficient. (See Delay and Complication Tables, Tab.I. Col.II)

    For giving to these measures at the same time the surest efficiency, and the speediest termination, examination of the Defendant by the Judge - according to the exigencies of the case, in public, or at the defendant's own request in private - with or without the presence of the adversary - the plaintiff, unless for special cause his presence be dispensed with, being also present, in order to his being responsible, in case of undue vexation thus caused by him, through malâ fides or even temerity.

    The circumstances of the defendant being thus ascertained, in respect of pecuniary sufficiency and all other needful respects, the arrestation of the person - the sequestration of his effects - either or both precautions - are continued or not, according to the exigency of the case.

    By ordinary procedures thus displayed, the ends of justice would in every point be served; never without cause, nor then but with the least possible vexation and expence to the debtor, the greatest possible security would be afforded to the creditor.

    Given the plan of the North, so is that of the South. Given the course prescribed by the dictates of justice, so is the course observed by Judge an C o in pursuit of the ends of judicature. Arrestation of the person of the supposed debtor or other defendant, yes: and so long as the pursuit of the ends of judicature on this behalf remained as it did for ages without a check from the legislature, without any the slightest security for veracity or bona fides on the part of the plaintiff: the personal liberty of every body an object of sale to every body, by, and for the benefit of, Judge and C o all that time.
  • Title: [2 June 1807 Letter V III. Proper]
    Description: 2 June 1807

    Letter V

    III. Proper Remedies

    II

    In the case of the insolvent knave, if so it has happened, as in fact so it has happened, that Judge and C o have pursued that line of policy which in their position their interest and end in view prescribe, on the part of the legislator, the counter policy, which in the case of the solvent knave we have seen effectual, will not be so now. In the case of the solvent knave, suffering the judgment to receive a provisional execution as if no appeal had been presented was sufficient. But in the case of the insolvent knave supposing no sufficient preventive measures to have been taken at an antecedent period, before the time came for appeal, the property, if in his possession, will of course have been purloined or dissipated.

    What then are these preventive measures? By knowing them, we shall know at once the policy naturally pursued, the policy actually pursued, by Judge and C o, the counter-policy proper to be pursued by the legislator. The policy of Judge and C o will consist in avoiding to take these preventive measures: the policy of the legislator will consist in forcing the Judge to take them.

    So obvious are these remedies, that were it not for their having been put out of sight by the sham remedies that have been made to take their place, a man might be ashamed to mention them.

    At the instance of the plaintiff, he affirming (under the same security against mendacity and temerarious falshood as is exacted in the case of an extraneous witness) not merely the subject, ground and supposed amount of his demand, but his persuasion that by reason of the apprehended insolvency, or meditated non-forthcomingness of the defendant this extraordinary remedy is necessary, take order for the arrestation of his person - to be conducted forthwith not to a Jail, or a Sponging-House, but for immediate examination into the presence of the Judge.