before the judge, the reader (if he is not somewhat initiated in these subterranean mysteries) will suppose that it is intended he should appear before the judge, that the judge should take cognizance of the affair, and there an end. He will suppose so, because this is the course which reason would prescribe.

Very different is the course which common law prescribes. On the day on which the person sued is ordered to appear before the judge, it is not intended that he should see the judge, or that the judge should know any thing about him. It is only intended that he should give bail, that is, tender security that he will appear on some other day. But why this double operation about appearance, when one would suffice? It is of no use. It only complicates the business, and increases delay, vexation, and expense.

If the sum for which a man is sued is less than 157. (less than 10. it was till the year 1811) he is not required to give any real security, that is, he is not required to give security at all. He is, however, made to act as if he did. He gives two fictitious names, John Doe and Richard Roe. What is the use of this? Evidently no use at all. Why then is it done? Oh,—for that, ask them under whose authority it is done. One thing we can

tell you, which is, that the doing of it produces fees,-adds to the system of expense by which the suitors are oppressed; and the whole tribe of law officers, from the lord chief justice to the bailiff's follower, are enriched.

If the sum is not less than 157., the party sued is required to give real security, that is, to find real persons to be responsible for his appearance. If these are not found, his appearance is to be secured by imprisonment of his person. This is called holdingto-bail, or arrest upon mesne process.

It has now at last become the practice of the courts to omit all the former parts of the business, and to begin with the arrest, leaving the party to liberate himself, by giving bail afterwards, if he can. This, it may appear, is somewhat sudden ; a warning to pay, or to give reasons for not paying, may, upon the obvious principles of justice, be thought to be adviseable in the first instance: because, peradventure, the claim is unjust; and to be liable to be arrested at the will of every man who chooses to advance an unjust claim, is a satire upon government.

No matter, with this evil it may be supposed that some good is attained. If men are exposed to the hardship of sudden and unjust imprisonment; the preceding process being cut off, the expense of it is also cut off. Oh, reader, no!-you little understand, it seems, with whom you have to deal. Though not

one of the preceding operations is performed, it is affirmed that they are all performed; it is entered in the judicial record that they are all performed; and suitors are made to pay for them as if they were all performed!

This topic of holding to bail is as much of the subject handled by Mr. Pearce as we shall be able to overtake in a single article. We shall in the first place inquire of what use it is; what good consequences it produces; an inquiry which will not detain us long. We shall next consider what bad consequences it produces; and here we shall enter upon a field which is equally extensive and important.

1. USE OF HOLDING TO BAIL, OR OF ARREST ON MESNE PROCESS.-The end to which it professes to be directed is to give security to the party suing, that the party sued shall not run away from the suit. Here the questions are-Whether this end requires the use of such costly means?-and 2ndly, Whether it is worth the use of such costly means: that is to say, whether the end is not sufficiently attained without any such costly means?— and 3dly, Whether, if it is not, the evil produced by such costly means is not greater than the advantage gained? This last question will be answered best when the amount of the evil is ascertained.

With regard to the first question, experience appears most amply to have confirmed, what reason would have previously suggested, that the end requires no such oppressive means; that in a state of society, such as that in which we live, there are motives abundant and to spare, to prevent men from running away, upon the prospect of a law-suit. Where men have sufficient motives to run away, holding to bail can be of no service, because such men will take care to anticipate process, and be gone before it arrives. If they have sufficient motives to wait the arrest, they can hardly fail to have motives sufficient to make them wait all the other consequences of the suit. In fact, by running away, a man must incur what, in almost all cases, is a much greater evil than any consequences of an action for debt; he must incur a perpetual exile.—To create a great mass of evil, for the sake of securing an end, which is of such a nature as sufficiently to secure itself, is a policy in the maintaining of which legislative reason appears to very little advantage.

We call Mr. Pearce to speak to the facts to establish the matter of experience.

"There are," says he, page 13, "such abuses daily practised, in consequence of the power vested in individuals, of arresting each other, and the intentions of the law of arrest have been so

completely perverted, that I shall here, notice a few of the consequences. For instance, when a man arrests another, the object of the plaintiff, in general, is-not the obtaining of two good bail for the defendant's forthcoming, (which it would appear by the recognizance is the only benefit intended,) for he is not afraid of his running away: on the contrary, a man's being enabled to get bail is the daily reason why the plaintiff will not arrest him." In another passage, p. 17, he says: "Notwithstanding the fact, that the bail are daily saddled with the payment of the debt and costs, yet out of 5000 arrests, not one defendant runs away from his bail."

The truth of the proposition, then, is notorious. For the purpose for which the law allows the holding to bail, and imprisonment on default of it, bail is altogether unnecessary. The evil which it produces, therefore, evil the deplorable magnitude of which we shall presently perceive, is evil for its own sake, evil without any good. Surely reason cries aloud, that evil of this description cannot too speedily be removed.

2. BAD CONSEQUENCES OF HOLDING TO BAIL, AND ARREST

ON MESNE PROCESS.

First reflect upon the cruelty of imprisonment itself. Let the imagination trace the miseries which it implies; and then let the judgment pronounce what is to be said of that policy which inflicts it for no end. To be debarred of freedom, that sweet enjoyment without which nothing else that life affords is sweet; to be shut up within four walls; to cease to be the master of our own actions; to become so dependent upon the tools and instruments of incarceration that the dependence of the slave upon his master is liberty in the comparison; is all this misery fit to be inflicted for nothing? In a country so fond of boasting of the liberty of its people, is this the care which is taken of the liberty of the individual? Is this the manner in which that exquisite blessing is respected by the laws? On some occasions the law (but it is all over inconsistency) would seem to establish it as a rule, that individual liberty is of inestimable value, by inflicting a severe punishment on what it is pleased to call false imprisonment. But what imprisonment can be more false, than that which the law allows for no good end? All other false imprisonment is a trifle in comparison of this. This is heightened. by the cruelty of the reflection that it is done by law, and that there is no remedy.

But the pains inseparable from the loss of liberty are not all, A man is torn from his family-from his business, the very existence of which, perhaps, depends upon his personal presence.

He sustains a species of disgrace, which, to a man who has been accustomed to feel in a particular way, may be cruel in the highest degree. Add to all this, that his credit as a man of business must always suffer severely; must generally be altogether destroyed; and with it a business in which he might have maintained himself and his family with credit, or perhaps have risen to affluence.

Consider that as all this is done for no end but to ensure the man's forthcomingness, of which not once in ten thousand times there is any doubt,-so all this may be done, all this evil may be inflicted upon any man whatsoever, by any who chooses-by a man to whom not a farthing is due, to a man by whom not a farthing is owing.

To this purpose hear the testimony of Mr. Pearce: "The foregoing remarks" (says he, p. 17) "are grounded on the supposition that the debt for which the defendant is arrested is a just one: but how much stronger will they apply against the policy of arresting upon mesne process, when the demand is an unjust one, and the arrest is made use of for the purposes of injustice and oppression-which daily happens as to all or a part of the debt, and can be proved beyond a possibility of doubt!"

How dreadful to think that any man-that ourselves—that the most respectable man we know, is liable to be arrested upon the simple affidavit of any man (however rascally) that such an one owes him a debt!

It is feeble consolation to say that a man may quickly procure his liberty by giving two respectable persons for his bail. A man may be a very good member of society, and have no such intimate connection with others as to know of a single man from whom he could expect such a favour. Cases of this sort are innumerable. Among the men who are the most liable to arrest,--among the men who form by far the largest class of those upon whom this operation of the law presses,--the smaller tradesmen,-and those sued for petty sums, the difficulty of giving bail is prodigious. So ensnaring and oppressive is the operation of the law upon the persons who become bail, (as we shall explain more fully here after,) that there is a general horror at the thought of it. this subject Mr. Pearce is good evidence. "Of finding bail," says he, no one knows the trouble, but he who has felt it. A defendant is more likely to succeed in obtaining the loan of the money three times over.-It is very common for a man to refuse his nearest relative."

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Such is a general view of the case. But to have any thing like

an adequate conception of it, the reader must understand a little of the particulars.

The ruinous expense which this process engenders, is the principal head of detail. But before proceeding to this we shall give a specimen of the evils of another sort, of which it is the fruitful parent.

"The defendant," says Mr. Pearce, "being carried to the spunging-house, with his total ruin, perhaps, staring him in the face, frequently moves heaven and earth, either by making a sacrifice of his property to enable him to pay the debt, or procuring some friend either to pay it for him, or give some security.And this no doubt is occasionally done; and the surety pays the debt, and perhaps never gets a shilling. It also often occurs that men in this distressed situation, who have other persons' moneys in their possession, will, on the impulse of the moment to obtain their liberation, break into and apply a part of it to their own purposes-and from which circumstance their utter ruin may follow. The money having been once broken into, though intended to be replaced, it is perhaps never done, at least till too late to prevent the mischief.-The reader may not know that it is fourteen years transportation for any person employed by another, in the capacity of a servant or clerk, to misapply money of his master's in this manner. I have known more than one in my practice brought up to Bow-street for it."

This is dreadful. The desperate courses to which men are driven in this extremity not only hurry them to ruinous sacrifices of their own property, extinguishing perhaps the well grounded hopes of a happy life; but to hazardous experiments upon other men's property, which swell the list of victims to the most penal operations of the law. If we reckon up the number of these unhappy victims, with the number of those whose minds become reckless and depraved after disgrace, and of those on whom the education of a prison takes effect, we may safely assign to arrest on mesne process no small portion of the crimes with which the law and morals of the country are disgraced, and the people are infested.--Alas! this evil is incurred for no purpose at all; for an end which is sufficiently secured of itself, without so many deplorable sacrifices.

Mr. Pearce goes on: "Another of the hardships of this system is, that the little tradesman is frequently arrested on a Saturday night, and taken out of his business; and, in preference to stopping in a spunging-house till the Monday, will even send and pawn his property-a thing, perhaps, to which he had never before been compelled to resort.