Front Page Titles (by Subject) SECTION VII.: PREHENSORS AND MESSENGERS. - The Works of Jeremy Bentham, vol. 3
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SECTION VII.: PREHENSORS AND MESSENGERS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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PREHENSORS AND MESSENGERS.
Art. I.—i. Prehensors,* —Messengers,—Consignees. Of the three different classes of functionaries so denominated, conjunct consideration will be seen to be necessary. They are, all three, so many channels through which is, and cannot but be, carried on between the Judge on the one part, and things and persons on the other part, that intercourse which is so indispensably and continually necessary to all exercise of his authority in relation to these its subject-matters. Presenting to view the mutual relations between all these several functionaries is the purpose of the following observations:—
ii. In an immediate way, with neither of these two subject-matters can any such intercourse be carried on otherwise than to a comparatively very narrow extent: more especially with things: for the remainder, necessary therefore is the intervention of intermediate functionaries. Under one or other of the following denominations will all these functionaries be found comprised.
iii. Of the intercourse of the Judge with a thing, the sole purpose in view is its forthcomingness: namely, for one or more of the purposes in Section VI. Judge’s Powers, art. 26, mentioned: of his intercourse with a person, an additional purpose is—information:—obtainment of evidence, or say information, without need of forthcomingness, either at the judgment-seat or anywhere else: information, at the hands of a person, who in this case is considered, and dealt with, in the character of an evidence-holder, or say, eventual informant.
iv. Necessary, in addition to the intervention of the Prehensor, becomes thus that of the secondly-mentioned sort of functionary—the Messenger.
v. So likewise, for producing, on the part of the person, without prehension, locomotion: namely, for the purpose of forthcomingness, whether at the Judgment-seat, or at any other place.
vi. If, for any one of the three purposes, for which, as per Section VI. Judge’s Powers, art. 26, prehension may require to be made—namely, the execution-effecting, the execution-securing, or the evidence-securing,—continuance in the possession of any functionary acting under the orders of the Judge, is necessary,—thereupon comes the demand for the thirdly-mentioned sort of functionary—the Consignee, or say In-trust-holder, as per Section VIII. art. 1.
vii. If it be to the class of things moveable that the subject-matter to be placed in the possession of the Consignee belongs,—an intermediate functionary whose service is necessary, is—a Prehensor: locomotion being in this case requisite.
viii. So likewise, if it be to the class of persons. If to the class of things immoveable, not:—locomotion being in this case impossible.
ix. So likewise, if to the class of things incorporeal: and for that same reason.
x. As to fitness:—for the three species of service in question, materially different for the most part are the sets of qualifications requisite: hence the need of functionaries in a corresponding degree different.
xi. On the part of a Prehensor,—qualifications requisite are,—in company with the appropriate instruction, strength of body and mind over and above the ordinary degree. True it is—that, for the prehension of a thing, were persons out of the question, for no such extraordinary qualifications would ever need have place: but, forasmuch as, for prehension of a thing, removal of obstruction opposed by persons may eventually be necessary,—hence, for the prehension of things, qualifications the same as for the prehension of persons will be necessary.
xii. On the part of a Messenger, no qualifications of any sort, in a degree above the most ordinary, are necessary.
xiii. But, for this branch of service, apt, in an extraordinary and peculiar degree, is the whole machinery of the Letter-post:—trustworthiness, punctuality, and cheapness being, as per art. 14, the attributes in a peculiar degree belonging to it.
xiv. On the part of a consignee, if the subject-matter of the consignment be a person, qualifications necessary will be those of a jailor: if a thing immoveable, or an aggregate of things moveable, the qualifications will be those requisite for custody and management, and will accordingly vary according to the nature of the things in relation to which the exercise of those two functions, or one of them, is necessary for the purpose in question, whether it be execution-effecting or execution-securing.
xv. Accordingly, any person who is fit to be a Prehensor is fit to be a Messenger. Not true, however, is it that every person who is fit to be a Prehensor is fit to be a Consignee, or say an In-trust-holder, to whose management or custody, things immoveable, or aggregates of things moveable, are consigned, or say confided.
So much for principals. Now as to deputes.
Under two former heads,—in the case of two above-mentioned functionaries—namely, the Judge and the Registrar,—mention has been made of the sort of functionaries styled Deputes; and of the sort of functionaries by whom it is fit that they should be located:—namely, their respective principals. But, in the case of a Prehensor, this fitness (it will be seen, as per art. 7*,) has not place.
Art. 2. Power to the Dispatch-Court Judge, to locate Prehensors, one or more, as need may arise. Form of the location instrument, as per Schedule, No. XIII.
Art. 3. Functions of a Prehensor, these:—
i. Of things and persons respectively, to make all such prehension and subsequent disposal, as the Dispatch Court Judge shall, by his appropriate mandates, have directed him to make: as to which, see Section VI. Judge’s Powers, &c. art. 15, 17, 18, 23, 24, 25, 26, 27.
ii. Between the Dispatch Court Judge and any other individual, as also between any one individual and any other,—to make communication by letter, or any other missive,—by his (the Prehensor’s) hands delivered,—in such manner as the Judge shall, by his appropriate mandate, have directed.
Art. 4. Salary of a Prehensor, [NA] a-year: payable in the same manner as (see Section II.) the salary of the Judge.
Art. 5. Dislocable at all times by the Judge will be every Prehensor. Reasons he will be expected to assign. Form of the dislocation instrument, as per Schedule, No. XIV.
Art. 6. So likewise, suspendible. Form of suspension instrument, as per Schedule, No. XV.
Art. 7. Power to the Judge, from time to time, to locate Prehensors occasional; to wit, either by the day, or for the occasion, as need shall arise. Form of the location instrument, as per Schedule, No. XVI.
Art. 7*. Why, in a manner thus indefinite and variable, make provision for the service looked for at the hands of occasional Prehensors?
i. Somewhere or other, power of providing functionaries for the exercise of functions of this description, there must at all times be: and, altogether without limit is the number, the need of which may have place.
ii. To the Prehensor Principal, power thus unlimited cannot safely or consistently, as in the case of the Dispatch Court Registrar, be allotted: too strong to be at all times effectually resisted, would be the temptation to overstock the office with incumbents.
iii. Of the Judge’s mandates the efficiency, and thence in that respect his reputation, will, in the nature of the case, depend in some degree upon the aptitude of the choice in each instance made by him.
iv. Consequence,—in hands other than those of the Judge, power in this shape cannot, it should seem, with propriety be reposed.
Art. 8. Pay of a Prehensor occasional, whatsoever, at the time, or on the occasion in question, the Judge shall think fit to appoint.
Art. 9. Source of such pay, the purse of the party applying for, or having need of, the Prehensor’s appropriate service: in case of inability on his part, source the same as that provided in and by Section VI. Judges’ Powers, &c. art. 66, 67, 68, when the purpose is the obtainment of evidence.
Art. 10. For giving in detail expression to the powers and obligations attached to the situation of Prehensor,—power and obligation to the Judge, to draw up and cause to be printed, and from time to time to amend (causing them each time to be printed), regulations, for directing the exercise given by a Prehensor to such his functions. Name of the paper containing such regulation, the Prehensor’s Code.*
Art. 11. Attached to a printed copy of the Prehensor’s Code, under the signature of the locating Judge, will be the location instrument. At the time of location, delivered will be the paper, in open judicatory, into the hand of the Prehensor, by the locating Judge.
Art. 12. For wrong in any shape alleged to have been committed by a Prehensor as such, to no judicatory, other than that of the Dispatch Court Judge, shall recourse be suffered by him to be made.
Art. 13. Considered as an act of obstruction, as per Section VI. Judge’s Powers, art. 34,—so considered, and accordingly dealt with by the Dispatch Court Judge—will be any act by which such application shall have been made, or entertained and endeavoured to be effectuated.
Art 13*. Reasons:—
i. Only for the purpose of obstruction—only with evil consciousness for its accompaniment—could any application to a Court acting under the regular system have place.
ii. In the Dispatch Court, heard and delivered it would be, at next to no expense.
iii. In a Westminster Hall Court,—not, but at an expense, having on each side, for its limit downwards, not so little as £20: upwards, how many hundreds it is impossible to say: expense in special pleading and appeal included, as they cannot but be.
Art. 14.—i. Eminently apt for the purpose of Messenger’s service, is the class of functionaries employed by government in the conveyance of letters: styled in the aggregate the Letter-Post. Trustworthiness, punctuality, cheapness,—in a degree of perfection, absolute as well as comparative,—are all these desirable qualities possessed by the system carried on by it.
ii. Thus seated, not only would the weight of the burthen be in a prodigious degree lessened, but the whole of it would be taken off from the so-grievously-galled shoulders of the afflicted suitors.
iii. Were it not for the danger of abuse—of abuse, of which in such magnitude, and such multitude and variety of shapes, the regular system of procedure affords examples,—the party on whose account the missive requires to be delivered,—and by whom the mission of it will, in natural course, have been applied for,—might for this purpose be, as at present to so large an extent, his professional assistant is, the functionary on this ocsion employed.
iv. Though, to entrust to a person so circumstanced the execution of this trust, to the exclusion of all other persons, would, as above, be to expose the service to too great a danger,—yet, to no objection seems exposed the giving permission to the party, in person or by proxy, to accompany the government functionary: a course which in some cases, for securing the appropriate delivery, he will naturally be disposed to take.
Art. 15. To every Prehensor, whether permanent or occasional, belongs the aid-compelling function.†
Art. 16. By the Prehensor’s aid-compelling function, understand that, by the exercise of which, if need be, he calls for, and, by the fear of eventual punishment in case of noncompliance, uses his endeavour to obtain,—active assistance at the hands of each person so called upon, towards the enabling him to give execution and effect to the mandate, whatever it be, issued and directed to him, in such his capacity, by the Judge; or, to any general regulation, when any such there is, by which he is required to render his official service, in any shape, on any occasion, without waiting for any mandate, to be, on the individual occasion in question, issued by the Judge.
Art. 17. To the end that, with all requisitions, made by a person lawfully exercising the authority of a Prehensor, compliance may at all times be given,—and, that to no requisitions, made by any person falsely pretending to be possessed of such authority, compliance may at any time be given—provided with an appropriate badge of office will be every Prehensor, whether permanent or occasional. By the choice, and under the direction, of the Judge of the Dispatch Court, will this symbolical instrument or apparatus, with any such component parts as shall have been deemed requisite to it, be at all times provided.
Art. 18. In respect of the description of the persons, on or over whom it shall be exercisable, to this authority there is no certain limit: on all persons whatsoever,—at his discretion, on his responsibility,—exercise will, on each occasion, be given to it.
Art. 19. For the guidance of such his discretion, rules prescribed to him are these which follow:
i. Only in case of need will any such aid be ever called for by him.
ii. Only to the extent of the need, will the call for it be made, or continued.
iii. In so far as, by the circumstances of the case, a choice of persons is afforded,—choice will in preference be made, of those, whose aid,—relation had to the public purpose in question,—promises to be most effectual: and, among them, of those to whom the assistance thus given promises to be least dangerous, and in other respects least burthensome; at the same time,—with reference to the evildoers, against whose unlawful opposition the aid is requisite,—least in danger of being productive of suffering, in quantity beyond what is needed.
Art. 20. Where the quantity of force needed is to such a degree considerable,—a party of regular military men promises to be in general preferable to any other: namely, as being more effectually under command, and on that account less in danger of producing evil beyond necessity, as well as of failing to fulfil the purpose. True it is—the smaller the quantity of such force necessary, and accordingly kept up, the better: but, the quantity of it being given,—the more extensive the application made of it to all useful purposes the better.
Art. 21. In case of non-compliance with an aid-compelling requisition made by a Prehensor, power to the Judge to impose, on each person so offending, a pecuniary mulct. In case of damage, in any shape, sustained in consequence of such non-compliance,—in compensation for such damage will this mulct, or such part of it as shall have been recovered, be applied: if there be no such damage, then will the whole of the mulct be transmitted by the Judge to the receipt of his Majesty’s Exchequer: for a form for the instrument of such transmission, see Schedule No. XVII. So likewise any such ulterior mulct as shall have been deemed fit to be imposed, over and above such sum as shall have been deemed requisite for compensation, as above.
Art. 22. In case of inability on the part of the offender to pay such mulct, or any part thereof,—power to the Judge, to commit him or her to prison for such term as,—by the apprehension of the like offence on the part of other persons exposed to the temptation of becoming offenders,—shall, in his judgment, afford an adequate promise of preventing them from becoming so: that is to say, for such term, the suffering wherefrom, in the breast of the said offender, shall, in the judgment of the Judge, be the equivalent of that which would have been produced in the breast of that same offender, by the forced payment of the sum in question, had he possessed it, or been able to obtain it.
Art. 23. The prison will naturally be—some prison in the metropolis, or within a few miles thereof. But, for reason assigned, any prison within the quondam kingdom of England may be employed by him in preference,—and also, for reason assigned, the prison at any time changed.
Art. 24. On this occasion, the Judge will consider and inquire—whether it was ill will, or timidity, or a mixture of both, that such non-compliance had for its cause: inasmuch as, in the quantum of suffering proper to be inflicted by him, on the score and for the purpose of punishment, the difference may be, in an indefinite degree, considerable. In so far as timidity alone has been the cause,—scarcely on any other account than that of satisfaction in the shape of pecuniary compensation, will be subject the non-complying individual, as above, to pecuniary privation. Why? Because, generally speaking, in such case, suffering will, in the character of punishment, be useless. For the evil, the avoidance of which was sought by the non-compliance, may have been bodily suffering unlimited in magnitude: and that immediate; and in appearance, and perhaps in reality, certain: whereas, generally speaking, the evil apprehended in the shape of punishment for non-compliance will have been, and to the person called upon, have appeared to be, comparatively small, and that remote, and more or less uncertain.
Art. 25. If the individual, at whose hands the aid is required, be of the female sex,—timidity is that, which non-compliance will have for its commonly-probable, and thence, generally speaking, presumable cause. But if, from other circumstances it appears, that not timidity, but ill-will, was the cause,—then, in regard to punishment for non-compliance, small, if any, by the consideration of sex will be the difference to be made.
If, for example, by the purposed closing of a door, a person of the female sex, affords, to one who should have been prehended, the means of escape,—or, by information afforded, delivers into his hands, for the purpose of vengeance, a Prehensor, or any person occupied in lending aid to him.
Art. 26. In case of damage, to person or property, sustained by an individual in consequence of his being, or having been, occupied, in lending aid to a Prehensor, in the exercise of his authority,—power to the Judge, as per art. 21, to administer to the individual so damnified, compensation, at the charge of all persons by whose delinquency such harm was produced. As to this power of awarding compensation, considered in respect of the reasons on which it is grounded. See Section VI. Judge’s Powers, &c. art. 61* .
Art. 27. So likewise, to inflict, on any or every such wrong-doer, punishment,—in every instance, in which, and so far as, the suffering, produced by the obligation of making compensation, as above, would, in his judgment, fall short of being sufficient for punishment in respect of its subsequentially-preventive purpose: always remembering that,—supposing the amount to be in both cases the same,—the suffering produced by the obligation of parting with money or money’s-worth, payable into the purse of an adversary, will naturally be greater than if it were into the public purse.
Art. 28. In default of the obtainability of the matter of compensation from the property of delinquents, as per art. 26,—power to the Judge, to give to parties so damnified, drafts upon the Lords Commissioners of his Majesty’s Treasury: every such draft being accompanied with a brief report, expressive of the state of the case, of the several acts of delinquency committed, and of the damage by them severally or conjunctively produced, and the amount, in respect of which the pecuniary means of the several delinquents were found insufficient for the extraction of the penalties respectively assessed.
Art. 29. By their said Lordships,—if they see not any sufficient reason for suspecting excess on the part of the amount so drawn for,—it will accordingly be paid, within [six] days after sight: in the contrary case, their Lordships will, by a minute in the Treasury Book, and a copy thereof sent to the Judge,—express their desire that a copy of the minute of the whole transaction, as entered in the Register of the Dispatch Court, be transmitted to them: which received, they will either make, and communicate to the Registrar, appointment of the time or times on which the amount of such draft, after such deduction, if any, as they shall deem proper,—shall be paid, or give notice of disallowance in the London Gazette. Whatsoever is paid,—without fee at the expense of the individual it will be paid.
Art. 30. So, in case of loss of time to a considerable amount, or extraordinarily meritorious exertion, on the occasion of aid so lent by a person, whose means of subsistence are wholly or principally composed of the price of daily labour,—power to the Judge on special proof made and recorded, to cause reward, to a correspondent amount, to be administered to the individual in question, by order upon the Registrar: by whom it will be paid, and entry thereof made under the head of contingencies.*
Of such order,—copy will, at the requisition of the Registrar (which will accordingly be made,) be printed in the next London Gazette.
Art. 31. On this occasion, the Judge will be on his guard against needless service, rendered or required for the sake of the reward.
Art. 32. Note—that, on the occasion of the provision thus made for rewards, care is taken by the Legislature, not to allot, by a fixed sum, to a service subject to indefinite variation in respect of magnitude and meritoriousness, reward, to an amount which, if so fixt, would in most cases be either insufficient or excessive. In the very nature of the case, a premium on contribution made to the infliction of punishment as for a crime, is, if fixt, a premium on contribution to the commission of that same crime: the more crimes a man produces, the more rewards he receives for causing them to be punished. In the existing state of things, this disastrous tendency is but too extensively seen ripened into act.†
[* ]Prehensors.] 1. Reader, whoever you are, let not the word Prehensor, innovational as it is, startle you: indispensable was the demand for it: and, whatsoever cloud it presents itself as being involved in, a short explanation will blow off. What was wanted is—a word that should signify to lay hold off:—to lay hold of what? Answer—All such objects, whatsoever they may be—as the purpose in question may require to be laid hold of. And these objects—what are they? Answer—things of all sorts, and persons of all sorts: purpose,—that of supplying means of remedy for the wrong complained of, by the demand with which the suit commenced,—or means for the elicitation of the evidence necessary to the proof, or in so far as disprovable, the disproof, of that same wrong.
[* ]Code.] For the purpose of extracting money, to be disposed of in such manner as seems good to them, the constituted authorities find no difficulty, in preparing and causing to be delivered, the appropriate mandates. Witness, for example, the Assessed Tax Notices, by which householders are required to give information of such taxable articles as they have in their occupation. Scarcely of a Prehensor’s Code would the contents be more bulky, than of one of these papers which are twice a-year delivered at every taxed house.
[† ]1. Under the existing system, in the higher class of criminal cases (namely those which from the species of punishment allotted to them are so unappropriately styled felonies),—power of exercising this function is given to the party wronged. So, under the original Roman law in cases called civil.
[* ]In the accounts of public offices, this is a customary head. The fund will be provided, in this as in other cases.
[† ]To a deplorable extent, throughout the whole field of legislation, is exemplified the evil of fixation, where variability in the quantity of the matter in question, whatever it be, and thence applicability of such quantity to the particular circumstances of each individual case, is prescribed by prudence. Instances are—as hereinabove mentioned—1. Fixed premiums; 2. As elsewhere mentioned, fixed penalties; especially when in a pecuniary shape: 3. As per Petitions for Justice, Device VIII. (V. 470) Blind fixation of times for Judicial operations, on the occasion of which, the quantity of time best adapted to the purpose is susceptible of variation to an extent more or less ample.—See also Sect. VI. Judge’s Powers, art. 52 to 55.