Front Page Titles (by Subject) CHAPTER IX.: PROXIES. - The Works of Jeremy Bentham, vol. 2
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CHAPTER IX.: PROXIES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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Proxies, when and who.
Exceptions excepted, no suit can be commenced but by application of the individual who demands to be received as pursuer.
The reasons are given in another place, where it is shown what the services are which are rendered to justice, by the attendance paid, and examination taken, of the proposed pursuer; and that without such his attendance, cannot be rendered with anything near to equal benefit.
Exceptions are the following:—
1. Temporary infirmity of body. Where the health of the party will not admit of his quitting his own residence, and the commencement of the suit cannot, without danger or non-execution on the part of the law, await his recovery.
2. Party’s infirmity, by temporary or permanent mental derangement.
3. Party’s infirmity, by caducity.
4. Party’s infirmity, by nonage.
5. The party being temporarily absent, and the efficient cause of the demand has taken place since his departure: nor is his residence in the territory of any judicatory in which the suit could be commenced with equal advantage to justice.
In cases 1, 2, 3, or 4: Although, in any one of the above cases, the judge may receive a proxy, instead of a party, and, upon the evidence exhibited by the proxy, order the reception of the principal, in the capacity of the pursuer, the judge may, at the first hearing as above, or at any time thereafter, require, by appropriate mandate, the attendance of the party, either with or without the co-attendance of the proxy—to wit, by an attendance-requiring mandate, directed to the proxy and the party jointly.
In case 5, he will, if he sees reason, direct an appropriate suit-transmitting mandate, and have the option following:—
1. To dismiss the suit simply.
2. To retain it, advising, at the same time, the pursuer to carry his demand before another judicatory, that, to wit, within the territory of which the residence of the proposed defendant happens to be at the time.
3. Constitute the applicant the party’s proxy, and, from the evidence adduced by him, in conjunction with the demand paper, commence the examination of co-pursuer’s or defendant’s evidence-holders, in the epistolary mode.
A litigational proxy is a person who, on the occasion of a suit, acts in the service of a party litigant, on either side of the suit; the party in whose service he acts not being present.
Such proxy is either a professional proxy, or a non-professional proxy: professional, serving for pay.
As a professional proxy, no person can be admitted to serve, who has not been duly located in the situation of professional lawyer, or, for shortness, say lawyer: as per Constitutional Code.
So likewise in cases inculpative or not, but not criminative.
So likewise in a suit criminative and purely public, to the purpose of subjecting the principal to a punishment no other than pecuniary.
So likewise in a suit criminative and publico-private, to the purpose of subjecting the principal to the burthen of compensation, with or without pecuniary punishment; but not to punishment other than pecuniary.
So likewise as to consent given by the proxy, on behalf of the principal, to any operation on the part of the judge, by him proposed.
So likewise in a simply requisitive case.
So likewise in a suit criminative and publico-private. But in this case, the government advocate, or public pursuer, will have care, lest by this means, of the suffering proper to be inflicted on the score of punishment, undue diminution have place: and may propose to the judge to make addition, in a pecuniary shape, to the punishment, in lieu of any pecuniary compensation, the remission of which may have been produced by such admission or consent on the part of the proxy.
A party defendant may apply for relief against an admission alleged by him to have been unwarrantably made, to his prejudice, by his proxy: to wit, for the purpose of being put (in so far as without preponderant inconvenience may be) in the same state as that in which he would have been, if no such admission had been made.
But then, except in case of valid excuse for non-attendance, he cannot do so otherwise than by repairing himself to the judicatory, and submitting himself to confrontation with the proxy, at the justice-chamber, for the purpose of their being interrogated by each other, and by the judge.
It will be among the cares of the judge, that from such disavowal on the part of the principal, damage in any shape shall not be made to fall upon a party on the opposite side of the suit; and that whatever expense may have been produced by it shall fall upon the principal, the proxy, or both, rather than upon any party on the other side; and in this view, he will be on his guard against collusion between them, for the purpose of addition intended to be made to delay, expense, or vexation, at the charge of the other side.
In a simply requisitive case and suit, the principal is provisionally bound by the admission of a professional proxy.
So by the admission of a non-professional proxy.
In either case, the judge, in case of apprehension on his part, lest by an admission made by the proxy, the interest of justice, as well as that of the principal, has been disserved, will state such apprehension, with liberty to the proxy to retract or modify such admissions, if he can consistently do so without prejudice to truth.
So, if he sees necessary, the judge, for reason assigned, may suspend any such operation as, on the supposition of the propriety of the admission, he would have performed, until information of the objection made to the admission has been transmitted to the principal, and response has been received from him in consequence, or time sufficient for the reception of such response has elapsed.
To hired lawyers, in the character of litigational proxies, shall admittance be given or denied? Given, of necessity, and beyond doubt. Preferable on several accounts, under certain conditions, are gratuitous proxies.—But among would-be pursuers, many there will always be, to whom the finding any person, at the same time able and willing to give commencement and conclusion to a species of service capable of becoming so toilsome, would be utterly impossible. If, then, proxies in adequate numbers could not be found, who, for such remuneration as they found obtainable, were willing to furnish, for the purpose in question, the sort of service in question—the whole class of persons above mentioned would be exposed to wrong in all shapes at the hands of every evil doer by whom, according to his calculation, the profit extracted from the wrong would afford him a sufficient remuneration for his trouble. Thereupon comes another question: A man by whom the service in question has on this or that occasion been rendered, upon a gratuitous footing, to this or that individual,—shall it be allowed to him to receive payment for it in the case of this or that other? Here the proper answer presents itself on the negative side.
In the Constitutional Code, the case of the professional class of lawyers is brought to view, and provision made for securing on their part, by a course of observation and practice, what seemed requisite of appropriate aptitude. If, without distinction, others, by whom no such security had been afforded, are permitted to enter into competition with them, the adequate inducement for engaging in a course of labours of such duration would not be afforded, and the burthen of affording this security would not find any person disposed to take it upon his shoulders.
It may indeed be said, that merit could find its way in the case of this, as well as other arts; the degree of proficiency on the part of each man would be evidenced by his conduct. True: to some it would; but to others it would not. Those to whom it would be evidenced would, with little addition, be the better educated inhabitants of the town, of that town alone, in which the judicatory had its seat. The rest of the inhabitants would, on each occasion, be at a loss to whom to intrust their respective interests, and would be liable to be taken possession of, as it were, by the boldest and most artful intruder.
The function of law practitioner, or say litigant’s proxy, is but one of two functions—nor that the most important one for which the services capable of being rendered by the class of men in question are needed. Besides the case in which it is only to individuals that the service is rendered, there are two official situations in which the need applies: 1. That of judiciary visitors for the three first of the five probative years; 2. That same situation, alternating with that of advocate of the helpless. True it is, that in the first of these characters they will not serve any otherwise than on occasions when waiting in company with their respective clients to be heard: equally true it is, that but for the preference expected to be obtained, after this long term of study and probation, scarce any one of them would be found to subject himself to it.
By what means shall security be given to the exclusive faculty thus proposed to be established? To an extent sufficient for every beneficial purpose, in this there will be no great difficulty. To exclude altogether from the advantage of receiving, in this or that individual shape, a benefit in return for the benefit conferred by this laborious and important service, will neither be possible nor desirable.
Whatsoever had been the value of the contribution received by the contraband trader in judicial service, let him be subjected to the obligation of refunding it, with a certain proportionable addition to it, in the way of penalty. Individually and collectively, the body of professionals would find inducement adequate to the purpose of securing, in the case of each individual, a pursuer able and willing to carry the suit on to its termination. As to evidence, that part which regarded the proof of the services rendered by the interloper would be matter of notoriety: remains the contraventional fact—the act of receiving retribution in some shape or other for the service performed. But under a rational system, in regard to evidence on this score, never would there be any difficulty: without the least reserve (under the universally-applying security against mendacity,) questions would be put to all persons cognizant. Under the check afforded by this security, small does the probability seem of infringements of this prohibitive arrangement, in any such degree of frequency as to frustrate the intended exclusive privilege.
Only in case of a regular and permanent contraband practice, carried on by interlopers in numbers, could the damage done to the licentiates taken in the aggregate be considerable; and under the influence of the here-proposed remedy, any such permanent contraband trade, carried on by any individual, for any considerable length of time, presents itself as impossible.
Of damage-preventive application, by uncommissioned proxies.
An application may be made either with or without authority from the person or persons on whose behalf it is made.
If it be without authority, a self-constituted proxy is the appellation by which, in this case, the applicant is denominated.
A self-constituted benevolent proxy, is the appellation by which he will be designated, if, in the opinion of the judge, the desire of serving the interest of the party, on whose behalf the application is made, constituted the whole or the main part of the inducement by which the application was produced.
Unauthorized proxies receivable, how.
A self-constituted benevolent representative of an unrepresented absentee. By an unrepresented absentee, on this occasion, understand a person by whom an article or mass of his property has been left, or is supposed to have been left, unoccupied: no assignable person being known, or supposed, to have been left in charge of it.
In relation to this case, provision in considerable detail is made in Bonaparte’s Civil Code. In the English system, no notice whatever is anywhere taken of it.
Whatsoever judicial service a person has a right to demand and obtain for himself, or on commission from another, for that other, he has a right to demand and obtain for another, without commission, from that other, on his finding adequate security for appropriate responsibility, for compensation in case of damage.
The parties to whom damage from such benevolent intervention is liable to accrue are—1. The principal, on whose behalf the application is made; 2. Any person, in the character, of defendant, at whose charge the powers, the exercise of which is demanded at the hands of the judge, will have to be exercised.
In the account of this eventual damage will be included any costs with which any proceeding had in consequence, may happen to be attended.
In so far as ascertained, the amount of every such cost may require to be advanced by the applicant, instead of its being imposed on any other person, to whom, in consequence of the application, communication may require to be made; especially if judiciary attendance or transmission of documents to the judicatory may be requisite.
Whatsoever may have been the inducement, it will be among the cares of the judge so to order matters, that to no person, other than the applicant, damages in any shape may ensue.
Accordingly, exceptions excepted, the judge will not subject any person, other than such self-constituted proxy, to any expense of which the application may be productive.
Exception is, when, from the result of the application, benefit in any shape ensues to the party in whose behalf the application is made; while, at the same time, either no benefit at all would have accrued to him, or no benefit so great as that which has accrued to him by this means. In this case, reward in consideration of, and in proportion to the net value of the benefit so reaped from his service, may, in case of a suit instituted for that purpose, be decreed to the applicant by the judge.