8 July 1807

(4) 15

Letter V

III Litigat. prevented

Insolvency

As an instrument of extortion, from the defendant himself, he having nothing, being, by the supposition, in a state of insolvency, his imprisonment can not extract any thing: whatever effect it has, where it has any, is by its action in that character upon some third person or persons, connected with him by some tie of interest or sympathy. But here, as before, nothing is gained to justice. On the contrary whatever effect is produced is prejudicial to justice. With or without collusion with one another, it enables two dishonest individuals (the future plaintiff and the future defendant) to practice successful extortion upon the friend of one of them.

Whether accompanied with malâ fides, or with nothing worse than temerity and that whether[?] antecedently

or subsequently to the contracting of the debt, it is altogether fitting that insolvency should be subjected to punishment. Precedent to the contraction of the debt and accompanied with malâ fides, it is neither more nor less than what is called swindling. Tainted with malâ fides, tainted with temerity, or tainted with neither, and therefore pure from blame, in which of these three predicaments stands the conduct of the insolvent? Such are the points which ought to be ascertained in every case: malâ fides and temerity where they exist respectively, viz. with a view to punishment, for the purpose of example, for the sake of the public at large: blamelessness, as in the case of an unsuccessful military commander, for the sake of the afflicted individual, that uncensurable misfortune may not be aggravated by unmerited disrepute.

What justice requires is that all these points should be ascertained in every case. In England under the system contrived by Judge and C o, none of them are ever ascertained in any case. That the innocent and the guilty with their respective connections to the greatest extent possible, should be confounded to one common pillage has been the result aimed at and produced in pursuit of the ends of judicature.