Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

Chapter 9
Default and Modem Process
Stephen C. Yeazell
Medieval and early modern English law lacked a procedural mechanism
that modern legal process takes for granted: the default judgement. 1 Until
1725 a plaintiff could not secure a judgement in a personal action unless
the defendant chose to appear in court and answer the charges. Only by
the enactment of 12 George I c. 29 did it become possible to secure the
entry of such a judgement in a personal action against a defendant who,
properly summoned, nevertheless failed to appear. To untutored modern
eyes the absence until modern times of a default mechanism seems puzzling.
In modern English and American procedure the threat of a default judgement
is the quiet hinge on which much adversarial process turns. Default compels
the defendant to answer and keeps him in the game after it has started.
Default enables modern process to place enormous burdens on adversarial
shoulders in the confidence that they will not simply shrug them off. We think
of medieval and early modern process as adversarial to a fault, yet it lacked
this mechanism we regard as basic. The emergence of a default mechanism in
eighteenth century England raises a question that can take two forms. One can
ask why default emerged so late: how could medieval process function without
a mechanism that seems to moderns so central? Alternatively, one can ask
why default emerged at all: if English law functioned adequately without
default for five hundred years, what changed? Both forms of the question
yield insights into the development of a modern conception of legal process
in early modern times.
Medieval law could function without default in personal actions because
it did have default in real actions and because it had a variety of devices
that compelled defendants to appear and answer in personal actions. Each
of these devices yielded fees to the officials who administered them. One
can understand the late adoption of default in personal actions as a tribute
to the success of these compensating mechanisms, to the late development of a
sharp distinction between civil and criminal processes, and to the hardiness of
belief that office-holders held property in their fees. As wealth began to move
from land to intangibles, personal actions (which dealt with such intangibles)
1 I am grateful for the thoughtful comments of Paul Brand, Kenneth Graham, William
McGovern, Mark Ramseyer, David Seipp and John S. Wiley.