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CHAPTER II.: TECHNICAL OR FEE-GATHERING, AND NATURAL OR DOMESTIC, SYSTEMS OF PROCEDURE, WHAT? - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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TECHNICAL OR FEE-GATHERING, AND NATURAL OR DOMESTIC, SYSTEMS OF PROCEDURE, WHAT?
In consequence of the infirmities attached by nature to the infancy of society, the formation of the system of judicial procedure has nowhere (except here and there by bits and patches) been the work of the legislator; it has fallen everywhere to the share of the judge.
In consequence of the same infirmities, the judge received everywhere (or found means to make for himself,) in the shape of fees* extracted from the suitors, a retribution, necessary or unnecessary, for his trouble, and the use of his power—for the service rendered or supposed to be rendered to them by the exercise of it.
The mode in which the will of a legislator (acting as such) is expressed, is by rules; mostly general, and at any rate laid down beforehand: the sort of law thus produced is called statute law. Very different was the mode in which the will of judges was expressed—of judges acting as such, and, by the exercise of that will, developing the course of procedure, and collecting fees. No rules were laid down beforehand: as occasion called, what was thought right, or pretended to be thought right, upon each occasion, was done: and as to rules, it was left to suitors to collect or rather frame them for themselves as they could, from the observation of what had been done. Law produced in this mode of generation has been called common law; and sometimes jurisprudence, or jurisprudential law.
Rules which are laid down in determinate words, may (in so far as these words are well chosen—adapted to the habits and capacities of those for whose use they are intended,) be understood without art. Rules which, not being laid down in determinate words, can scarcely with propriety be said to exist, cannot be understood,—or rather (since, where nothing exists, there is nothing to understand) guessed at,—without art. The system constructed by such hands, and constructed or left to be constructed in such a mode, may accordingly be termed the technical system of procedure.†
When a man, empowered to pursue a public object, is by the same means empowered to pursue a personal one, it is not in human nature that this private object should be a matter of indifference to him. It will naturally and unavoidably exert an influence over the course taken by him in the pursuit of the public object. In consideration of this influence, the system here denominated the technical system may further be characterized by the name of the fee-gathering or fee-collecting system. The occasions of bringing it into view under this character will be but too numerous. The courts of justice in which the system or mode of procedure chalked out as above, and under such influence as above, is in force, may be termed, by one common appellation, courts of technical procedure. Everywhere they may be seen to be characterized by a common set of features.‡
Before states existed, at least in any of the forms now in existence in civilized nations, families existed. Justice is not less necessary to the existence of families than of states. The mode in which, in those domestic tribunals, created by nature at the instance of necessity, justice was administered, and, for that purpose, facts were inquired into, may for distinction’s sake be termed the natural or domestic mode of judicature.
It is among the characteristics of the natural or domestic mode of judicature, to be exercised (if not absolutely, at least comparatively speaking) without forms—without rules. A man judges, as Monsieur Jourdan talked prose, unconscious of any science displayed—of any art exercised. One of your two sons leaves his task undone, and tears his brother’s clothes: both brothers claim the same plaything: two of your servants dispute to whose place it belongs to do a given piece of work. You animadvert upon these delinquencies, you settle these disputes: it scarce occurs to you that the study in which you have been sitting to hear this is a tribunal, a court—your elbow-chair a bench—yourself a judge. Yet you could no more perform these several operations without performing the task of judicature,—without exercising the functions of a judge, without hearing evidence, without making inquiry,—than if the subject of inquiry had been the Hastings cause, the Douglas cause, or the Literary-property cause.
It is among the characteristics of technical procedure, all over the world, to abound in rules and formalities. In process of time—as occasion presented itself, and irresistible necessity urged inquiry—spite of all prejudices, a discovery was made, that, with little or no exception, these rules and formalities, instead of being necessary, were repugnant to the ends of justice: that an option was to be made between the sacrifice of these rules and formalities, and the sacrifice of certain portions of substantive law, necessary to the existence of the state. Accordingly, certain portions of the field of judicature were marked out, and a course prescribed for the appointment of judges, with authority to proceed and inquire, to hear and determine, as they would do in the bosom of their respective families, paying no sort of regard to any of these rules and formalities. For distinction’s sake, the courts thus constituted may be termed courts of natural procedure or judicature: of natural procedure restored, or (if, in any odd nooks of the field of judicature, discovery should in any instance be made of any little spot which happened to have escaped the fangs of the technical system) natural procedure preserved.
The character of the natural system of procedure (it may already be perceived) is little more than negative. Health is the absence of disease. Liberty, in its original sense, is the absence of coercion. Natural procedure is the absence of those rules and formalities of which technical procedure is composed. But for verse, prose would not have had a name: but for technical, natural procedure would not have had, would not have needed one.
In current nomenclature, the distinction nearest to a coincidence with that between technical procedure and natural, as here explained, is that between regular and summary; but the coincidence is far short of being complete. Thus far, it is true, they agree,—that, in comparison with all technical procedure, all natural is always summary. But technical procedure has its branches which are called summary, as well as its branches which are called regular: for designating that which is not technical, the word summary has therefore been unfitted. Moreover, summary means short: and wherever one course is shorter than another, it may, in comparison with that other, be termed summary. But, in a series of infinite length, the number of degrees is infinite: and in all that number there is no one that can have any exclusive pretension to the epithet of summary.
The final cause of this article of jurisprudential nomenclature, is not difficult to divine. The use of regularity is recognised by everybody: the term regular is eulogistic. Get people to believe that summary procedure is something opposite to regular procedure, you may prevail with them and accustom them to regard the more expeditious procedure with a jealous eye. In an underhand way, you may thus insinuate and get them to believe (what you durst not assert) that there is a sort of incompatibility between the superior dispatch observable in the summary mode, and the superior regularity observable in the regular (that is, in the technical) mode. The utility of dispatch—its title to be regarded as one of the ends of justice—is too plain to be denied: in the technical mode, as compared with the natural, the want of dispatch is also too plain to be denied. To reconcile men, as well as may be, to the repugnancy of the technical system in relation to this end of justice, you thus take the best chance that in so few words can be taken, for getting them to fancy, on the part of the natural course, a repugnancy to the direct and ultimate ends of justice: a conception, the exact reverse of which is the true one.
In every country (so I imagine it would be found,) men of law, unable to find the shadow of an argument, have trusted to the power of this prejudice, preserving a prudent or rather necessary silence. Blackstone, in the fertile soil of England, has been fortunate enough to find another and a still stronger prejudice, applicable to the same purpose. Summary procedure is a mode of procedure to be regarded with jealousy, and with such a degree of jealousy as shall prevent as much as possible the extension of it. With jealousy? Why? Because in summary procedure there is no jury. No jury?—and what then? Is the use of trial by jury to be regarded as an end, or only as a means? Taken altogether, are the ends of justice more completely fulfilled by regular procedure with its jury, than by summary procedure without a jury?—another inquiry in which no lawyer ever ventured to engage, and on which Blackstone knew better than to start. No: where prejudice reigns, everything is to be lost by inquiry, nothing to be gained: by prejudice the same business is done (when it is done) upon much easier terms.
But, in the very word summary, may be seen an indication which, if it does not of itself afford, at least points out the path to, a complete demonstration of the incongruity of that mode to which it stands opposed. What is a summary mode? It is a mode, in and by which an efficient decision is obtained, with a less quantity of delay, expense, and vexation, than that which is attached to the other mode, termed the regular. To the use, then, of the regular mode, a quantity of collateral inconvenience attaches, which does not attach upon the summary mode. From this single statement, admitting it to be true, follows a necessary consequence: viz. that,—unless under the summary there be some deficiency in respect of the security against misdecision, and that deficiency such that the mischief of it is of a magnitude to outweigh the advantage obtained by the defalcation from the mass of collateral inconvenience in the shape of delay, expense, and vexation,—the existence of the regular mode, be it what it will, is an enormous nuisance. Is the summary mode, then, attended with any such disadvantage? Is the regular mode attended with any such disadvantage? If so, in what particular respect? What are the arrangements which, being necessary to the giving the completest security that can be given against misdecision, are to be found in the regular, and not to be found in the summary, mode? The question is a conclusive one: no answer has ever been, none ever will be, given to it. All the wits of all the lawyers by whom civilized society is intested, would sink under the task.
[* ]Definition of a fee:—Money or money’s worth received at the expense of the suitors in a cause (all or any of them) on the occasion of a mass of writing written or supposed to be written, or other act done or supposed to be done, in the course or on the occasion of it.
[† ]The word technical is not unknown to jurisprudence. You may find it there in company with the word reasons. Technical is from the Greek, and scarce yet made English. If you have a mind to do it into English,—instead of it, put absurd: fear not the finding yourself mistaken in any one single instance. The mental endowment displayed in the manufacture of these reasons, is, in the same dialect, called astutia: to render this into English, say folly, or knavery, or both together: the connexion is closer than men are apt to imagine—closer everywhere, but nowhere perhaps so close as in jurisprudence. In Folly, Knavery sees one of her most useful instruments and best friends.
[‡ ]—Facies non omnibus una,