Front Page Titles (by Subject) SECTION VIII.: CONSIGNEES; * OR SAY, IN-TRUST-HOLDERS. - The Works of Jeremy Bentham, vol. 3
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SECTION VIII.: CONSIGNEES; * OR SAY, IN-TRUST-HOLDERS. - 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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CONSIGNEES;* OR SAY, IN-TRUST-HOLDERS.
Art. 1. By an In-trust-holder, understand a functionary, to whose custody and care, with or without management, under the orders of the Judge, a thing or a person has been consigned, or say delivered, and thus confided; namely, by a prehensor, until the arrival—of the thing, in kind or in value, at its ultimate destination,—of the person at his ultimate destination,—on the occasion, and for the purposes, of the suit.
Art. 2. By a confidee, understand—a thing, or a person, so confided.
Art. 3. On the purposes, for which, on the occasion in question, the consignment is made, will depend—the description of the person or persons to whom, as above, in the capacity of In-trust-holders, the confidee is confided, or say intrusted: in this description,—qualifications and number, as in the articles hereinafter following, being included.
Art. 4. Of the ultimate purpose,—or say of the aggregate of all these purposes collectively taken,—the description is, the giving, in the completest manner and degree possible, consistently with the non-production of preponderant evil, execution and effect to such articles or clauses, in virtue of which, for the purpose of giving execution and effect to that part of the substantive law which is in question, termination may, in favour of whichsover side it be, require to be given to the suit.
Art. 5. As to things, of which—they being originally in the custody of the Judges of the existing judicatories in question, as per Section VI. art. 9, the value is purely relative,—either they will not need to be prehended, or if prehended, they will, in an immediate way, be delivered to, and placed in the custody of, the Registrar of the Dispatch Court. In relation to such things,—no demand for the service of an In-trust-holder will have place.
Art. 6. Of the sorts of things intrinsically valuable, by the nature of which a demand for the service of an In-trust-holder may have place,—some there are in relation to which it may happen that no demand for special management has place: nothing beyond safe custody. In the case of things of these sorts, so as the proposed In-trust-holder be in himself sufficiently trustworthy or by collateral security rendered so, what may happen to be the case, and, generally speaking, will be so, is—that, for no special qualification on the part of a proposed In-trust-holder is there any demand;—and that, for the due and adequate exercise of the functions belonging to the trust, a single In-trust-holder will be sufficient. Examples of things thus circumstanced are the following:—
Art. 7. For the due and adequate exercise of the functions of an In-trust-holder—in relation to things or aggregates of things, with relation to which, demand for special and appropriate management has place,—correspondent demand for qualifications, in various groups, corresponding to the respective natures of such things, will in consequence have place. Examples are the following:—
i. Ground-husbandry profit-seeking concerns:
ii. Manufacturing profit-seeking concerns:
iii. Merely distributional profit-seeking concerns:
1. Wholesale trades, home, or say domestic.
2. Wholesale trades, foreign.
3. Retail trades.
4. Trade, ambulatory by water.
iv. A profit-seeking concern, having for its subject-matter a thing incorporeal:—source of profit,—the exclusive right to sell things of the species in question; this right being derived from—
Example of the inventorship,—authorship of a literary or imitative work.*
Art. 8. On the occasion of the location of an In-trust-holder, it will be for the care of the Judge to look out for persons, one or more, possessed of appropriate qualifications, correspondent and adapted, as above, to the nature of the concern, whatsoever it may be:—hearing whatsoever may be learnt, in the shape either of proposal, or argumentation, from all parties interested: that is to say, in so far as distance, and thence danger of preponderant evil by delay, will admit.
Art. 9. So, to take into consideration the number of the In-trust-holders, whether it shall be one or more; and whether in the case of a concern which has divers branches, they shall be intrusted—all of them, to one hand or assemblage of hands, or one to one, another to another, and so on.
Art. 10. So, the exaction of security at the hands of In-trust-holders: in regard to each, whether it shall be exacted; and, if yes, in what shape: and,—whether security from within, or say ab intra, shall suffice,—or security from without, or say collateral, or ab extra, shall be added;—from within, that is to say, by eventual appropriate obligations, submitted to by the In-trust-holder himself: from without, that is to say, by such obligations submitted to by co-obligees, or say, in the present case, co-assecurators.
Art.11. So, the several appropriate functions, which, in relation to the things in question, may require to be exercised by such In-trust-holders respectively:—functions, namely,
i. As to things:—1. The procurative; 2. The conservative; 3. The applicative; 4. The reparative; 5. The eliminative.
ii. As to money:—1. The procurative; 2. The custoditive; 3. The applicative.
iii. As to things, money, persons, and occurrences:—1. The statistic; 2. The minutative and recordative.
iv. As to states of things, arrangements, and ordinances: the melioration-suggestive.*
Art. 12. So in regard to remuneration: namely, in the instance of each such In-trust-holder, whether any shall be received by him; and if yes, its quantity and its quality; or say how much, and in what shape.
Art. 13. In regard to the shape, it will be the Judge’s care, that in no instance it shall be such as to place his interest in a state of opposition to his duty. Examples of such opposition, these—
1. In In-trust-holder’s hands, money continuing in such quantity as to be capable of affording profit in the shape of interest.
Art. 14. So in regard to stock, in all shapes, as per art. 7: the Judge giving admission, and having, at all times, regard to suggestions by interessee, as per art. 8.
Art. 15. In and by the instrument of consignment, or say the consignment-effecting mandate, the Dispatch Court Judge will make mention of the purpose for which the transfer is made. As for instance,—
1. Purpose, management. Name of the instrument, the management-prescribing—or say directing—mandate. Form, as per Schedule No. XVIII.
2. Purpose, sale. Name of this his instrument, the sale-directing—or say prescribing—mandate. Form, as per Schedule No. XIX.
So, if for any other purpose.
Art. 16. Now, as to the case where the confidee is a person.—General heads under which the purposes, as per art. 4, may be ranked in this case, these:—
1. Remedial:—functions of the In-trust-holder in this case, those of a keeper.
2. Tutelary:—functions, those of a guardian.
3. Evidence-securing:—functions, those of a keeper.
Art. 17. General purpose remedial,—specific purposes, in this case, may be—
1. Prevention of acts of force, having for their object obstruction to the exercise of any power belonging to the Dispatch Court Judge.
2. Prevention of evasion, from consignment made of the confidee to any In-trust-holder, for the purpose of confinement: restrictive the purpose may, in this respect, be termed.
ii.Suppressive: to wit, of negative delinquency in the shape of non-compliance with a mandate of the Judge:—ordering, for example, the transference—or say extradition—of a thing, as per articles following, in the character of a source of evidence, written or real;—or of a person in the character of an evidence-holder:—and, in each case, for the purpose of prehension, and delivery to an In-trust-holder; or, ordering indication to be made of a matter of fact, for the purpose of its being employed in evidence: in this case, compulsive is the denomination of the remedy: compulsion being the means by which, or say the mode in which it operates.
iii.Satisfactive: including the compensative. Applied to a thing, the remedy in this shape may be administered by extradition as above: applied to a person, it cannot be administered otherwise than by effecting extradition of a thing or things—valuable, as above—and delivery thereof, in kind or in value, as above.
iv.Punitive, or say subsequentially preventive: In-trust-holder, in this case,—keeper of a place of confinement: the confidee being placed under the care and custody of the In-trust-holder: namely, whether for the purpose of punishment thereby to be suffered, or for prevention of evasion of ulterior punishment in that or any other shape.
Art. 18. Subject-matters for the consideration of the Judge are in this case the following; namely—
i. The quantity of the suffering to be applied.
ii. The place, within which, or at which, by the In-trust-holder, the confidee shall be kept, or say confined.
iii. The time during which such confinement shall continue.
Art. 19. Of the suffering applied, the Judge will of course keep the quantity reduced to the smallest amount, consistent with the fulfilment of the special purpose, as per art. 17, with a view to which it is inflicted,—and with the non-production of preponderant evil in any shape.
Art. 20. As to the place, it may be either stationary or ambulatory.
Examples of the places when stationary, these:—
i. The house of the confidee himself.
ii. The house of a friend of the confidee: the occupier of the house praying for, or consenting to, the application thus made of it.
iii.A lock-up-house: that is to say—a house, in which, by an In-trust-holder, by whom such his business is carried on—professionally and for profit, confidees are lodged with or without board, in a state of confinement.*
iv. Failing the above places, in case of necessity, a prison.
Art. 20*. Why this power of inflicting punishment on the innocent?
i. In the case here in question, preponderant suffering to the imprisoned individual, none: to parties, one or more, for want of the evidence, suffering in a pecuniary shape to the magnitude of which no limits can be assignable.
ii. Of suppression of true evidence the maleficent effects may be as great as those of falsification of true evidence or fabrication of false: and suppression of evidence is, if wilful, an offence against justice.
iii. Punishment is not, in this case, a proper appellation. For divers purposes other than punishment is suffering in this same shape habitually produced in English law, and in the laws of civilized nations in general: namely, the purpose of prevention and of suppression, as applied to maleficent acts of all sorts. Punishment is one out of the four species of remedies employable in the cure of the disorder called delinquency: the three others are—1. The preventive; 2. The suppressive; 3. The satisfactive; The 4th is the punitive:—the preventive, that is to say, the antecedently preventive; the punitive having for its object the prevention of subsequential offences, and this being the only purpose for which the application of it is justifiable.
iv. Application of imprisonment for this very purpose, is not without example in English practice; nor are the examples rare.
v. This, too, without any of that attention which is here directed to be applied for the purpose of minimizing the suffering: and without either receipt or expectation of such attention, to imprisonment individuals purposely subject themselves—the evils of it being regarded by them as less than those to which, if out of prison, they would be subjected by indigence. See Section VI. Judge’s Powers.
Art. 21. Instead of stationary, as in the above four cases,—power to the Judge—to render the restriction as to place,—and thence the condition of the confidee in respect of rest and motion, ambulatory:† the course of his locomotion being all the while such as is most agreeable to him; the confidee going wheresoever he pleases, so as he be all the while in the custody of the In-trust-holder, or some person employed on the occasion by him, the In-trust-holder being responsible for his forthcomingness:—and subject always to all such mandates, restrictive, or even compulsive, as for any of the above desirable purposes, shall have been delivered by, or by order of, the Judge.
Art. 22. In every one of these cases—for prevention of evasion, security will, if needful, be exacted by the Judge, as per art 10, according to the circumstances of the individuals interested in each individual case:—regard being had to the two antagonizing objects of consideration; namely, the evil producible by evasion, and the good produced by reducing to its minimum the quantity of suffering inflicted for the prevention of that same evil.
Art. 23. Minimized may be by these means the expense and vexation produced under and by the existing system, in the view of providing security for the forthcoming of the persons in question:—extinguished, for example, the abuses following:—
i. The bailing system* with its expense, delay, and vexation, as at present carried on.
ii. For transfer of real property, compulsion† applied to a party, to cause him to do that which, without agency in any shape on his part, might be done by the Judge: in which case, lodged in the same party’s hands, is a sort of negative applicable to the appropriate exercise of the judicial power in question, and capable not only of obstructing, but of frustrating it.
Art. 24.—II. General purpose the second, tutelary. Specific purposes correspond to the several efficient causes of the demand for the service of the In-trust-holder, which are the following:—
i. Intellectual weakness by reason of immaturity of age, or say, in one word, minority. Specific appellative of the In-trust-holder, in this case, guardian: of the confidee, ward.
ii. Intellectual weakness, by reason of mental derangement not referable to age. Specific appellative of the In-trust-holder in this case, committee; of the confidee, idiot, or lunatic: idiot, when the weakness is regarded as having had its commencement at birth, and as being thence incurable: lunatic, when regarded as having had its commencement at some point of time posterior to birth: and thence as curable or incurable as it may happen.
iii. Intellectual weakness, by reason of longevity: in which case it has been denominated caducity.
On this score, under the existing system, no such consignment is known to have had place: no appellative consequently in use, for the designation—either of an In-trust-holder or of a confidee. Appellatives that might here be applied are—to the In-trust-holder, curator; to the confidee, the over-aged.‡
Art. 25. Every minor, if any such there be, who, having father or mother living, is, in contrariety to the declared wishes of such father or mother, in wardship, under the Lord High Chancellor,—under the notion of the relative inaptitude of such his or her parent on the score of persuasion in matters of religion,—the Judge will emancipate from such guardianship; restoring the ward to the guardianship of the father; or, if the father be deceased, to that of the mother, or of any person by him or her appointed guardian, as the case may be.
Art. 25*.—i. For if, on this score, a public functionary had it in his power to take a child out of the care of his natural guardian, or of any person by him or her appointed as guardian,—a power of persecution would thus be possessed, the peace of families exposed to disturbance, and, by successive Chancellors, so many mutually opposite persuasions might be endeavoured to be implanted in the same infant minds.
ii. So likewise, even if on the score of morals.
iii. If, throughout the whole community, in the case of all minors under natural or naturally appointed guardianship, as above—suits on this ground were liable to be instituted,—no end would there be to the number of such suits, nor to the length of them respectively.
iv. Supposing the institution of guardianship in this case beneficial, no sufficient reason can be assigned why the benefit should, by law, be conceded or denied, according to pecuniary circumstances; conceded to the rich, because rich; denied to the poor, because poor.∥
Art. 26.—III. General purpose the third, evidence-securing.—Case I. Confidee, a thing. Of a thing, considered in the character of a source of evidence,—prehension may require to be made, for either of the three purposes following:—
i. Securing its forthcomingness.
ii. Securing it against changes liable to be made in its appearance for the purpose of deception; or say, against forgery of real evidence.
iii. Securing it against change with the like effect, though without any such sinister purpose; whether such change be the effect of a purely natural cause, or of want of attention to prevent it.
Art. 27. In this case, the Judge will have to consider—whether, of the change of hands,—loss or detriment, in any shape, to any person, will be a consequence: and, if yes, whether to place the thing in the hands of an In-trust-holder (making, at the charge of the party requiring the consignment, compensation for such detriment)—or, in consideration of such detriment, leaving it in the hands in which it was found.
Art. 28.—Case II. Confidee, a person.—For the purpose of evidence,—to prevent the deperition thereof, power is hereby given to the Judge to place, in quality of an Evidence-holder, a person, in case of need, in the condition of a Confidee, in the custody of an In-trust-holder:—that is to say, if in his (the Judge’s) opinion the importance of the suit to the parties, and the importance of the expected evidence in relation to the suit, are such as to afford an adequate compensation for the inconvenience about to result from the restraint.
Art. 29. In this case, of the costs of such consignment, including adequate compensation to the confidee for whatsoever inconvenience has in any shape been produced by the consignment,—that is to say, of the burthen of the cost,—distribution will be made between the parties, regard being had to their respective pecuniary circumstances.
Art. 30. By the Judge, an In-trust-holder of a thing or money may be—1. Located; 2. Suspended; 3. Dislocated; 4. Relocated. This, toties quoties. So, an Intrust-holder of a person.
Art. 31. For vexatious application made against an In-trust-holder, compensation may be made, or punishment inflicted.
[* ]Consignee.] 1. On a preceding occasion, namely, in Sect. VI. art. 29, 44, and 47, in the view of conformity to usage, this word was employed, for the purpose of giving expression to an idea, for the designation of which, it has on closer inspection been found unfit: this, as well as several other words, which, for their termination, have this same syllable ee.
[* ]Of property in this shape, mention may be seen made in Penal Code Table, attached to Constitutional Code.
[* ]See Constitutional Code, Chap. XI. Ministers severally, throughout.
[* ]Under the existing system, the colloquial name for a house of this sort is—a spunging-house. The denomination is of that character, which has been termed dyslogistic. See Table of the Springs of Action. (I. 195.) Neutral name, no other than lock-up-house, as above, hath as yet been found.
[† ]Ambulatory.] Within the memory of the author of these pages, Davy, serjeant-at-law, a man alike conspicuous for his eloquence and the profuseness of his expense, was seen travelling on the circuit in the custody of the sort of sheriff’s officer, termed a Bound-Bailiff, or Bum-Bailiff.
[* ]Bailing system.] Final cause of, and motive to, the abuses in this case—1. Lawyers’ profit on the needless operations on the occasion in question performed, and written instruments framed and issued; 2. Benefit of patronage with relation to the several subordinate judiciary offices, by the possession of which the functions in relation to those same operations and instruments are performed.
[† ]Final cause of, and motives to, this needless compulsion—1. Lawyers’ profit, as above, upon the operations and instruments employed in the endeavour, real or pretended, to effect it; 2. Addition to the value of the offices of all sorts employed in such endeavour, and of the patronage consisting of the power of location to these same offices. See Petitions for Justice, throughout.
[‡ ]Over-aged.] Analogous locutions:—1. Overgrown; 2. Overpaid; 3. Over-loaded; 4. Overworked; 5. Over-taxed.
[∥ ]1. The incident by which a case was made for this provision, is a recent enactment of Judge-made law: an Act, made and passed, as in all other cases of Judge-made law, without any words belonging it, by the Earl of Eldon, when Lord Chancellor:—an arrangement by which, with such brilliant success, a new combination was made between sale and denial of justice: sale, for benefit in the shape of profit; denial, for benefit in the shape of ease: sale, to the comparative few who have wherewithal to pay the price; denial, to the immense many who have not.