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

Default and Modern Process 129
aside. 14 Worse, from the plaintiffs standpoint, by the sixteenth century the
outlawed defendant could purchase a pardon for a few pounds - leaving him
in possession of his lands and goods and the plaintiff still unsatisfied. And, like
attachment and arrest, outlawry involved another set of officials and of fees;
the clerk of the outlawries was an appointive office for which incumbents paid
in the expectation of recouping their expenses in fees.
Understanding this array of drastic yet often futile efforts to compel
defendant's answer requires us to understand why appearance was so
important. In part the desire for appearance responded to practicalities:
uncertainty of life and dreadful transportation remained constant facts of
medieval English life. People did get sick, roads were often impassable. Any
legal system that ignored these circumstances made unnecessary trouble for
itself and compromised its fairness into the bargain.
Yet one can also perhaps see a theory lurking behind these practicalities. 15
A society that employed default judgements in its most solemn and final
process had some use for the idea. One must account both for its presence
in the real actions and for its absence in the personal actions. The key
to both lies in understanding the position of the medieval English state.
Though powerful by contemporary standards, English goverment was weak
by modern standards. Its resources were spread thin and expending them
required a strong justification. Controlling the primary form of wealth -
land - supplied one such justification. To resort to default in real actions
was no more than to accept necessity. On land rested not only the
king's finances but also his sovereignty: 'All land whatsoever [was] held,
mediately or immediately, of the Crown'. 16 Not just what we might now
call dispute settlement but government itself would cease if a recalcitrant
litigant were able to block adjudication of claims to the most significant
form of wealth. 17
Although necessity and political theory combined to make default acceptable
in actions to recover title or seisin, extending default to other
areas was another matter. It is a cliche to point out that modern English
14 As one seventeenth-century manual put it, 'Outlawries are but meer scare crowes, to disable both
the Plaintiff and Defendant, in putting them to unnecessary Charge . . .', The Practick Part of Law:
Shewing the Office of a Compleat Attorney (1653), 288.
15 The insistence on appearance tempts one to describe medieval justice as voluntary, a weak state
offering justice as a service rather than as a command. Yet this explanation seems inadequate on a pair of
grounds. First, the writs themselves take the form of commands, either to the sheriff or to the defendant;
it is hard to fit a voluntarist notion of justice with the language of the writs. Moreover, attachment,
distress, arrest and outlawry are not the stuff of gentle persuasion: they aimed at forcing the defendant
to appear. That they often failed to accomplish their goal does not mean that they aimed at less than
compulsion. Second, default did exist for those most solemn medieval proceedings - the real actions.
16 A.W.B. Simpson, An Introduction to the History of Land Law (Oxford, 1961; rptd. 1979), 1.
17 'Seisin was the cardinal point of land law. It was the basis of economic life. Land was everything to
everybody. To lose one's land, or in other words, to be disseised of one's tenement, was as fatal a blow
as losing one's job in a society which knows no unemployment insurance. It was, economically speaking,
the worst thing that could happen to anybody', R.C. van Caenegem, op. cit. n.7 above, 262.