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

130 Legal History in the Making
law grows out of a series of efforts to create truncated, simpler and
therefore quicker forms of action. But speed in law is as dangerous
as it is desirable: it enables error to infect the judgement, for wrong
to triumph over right. In an adversarial system the chance for error
will always be greatest when one side does not even appear to state
its case. Moreover, the failure to appear makes more likely an error
of special concern to a court - the possibility that it lacks power to
hear and decide this case. Requiring such an appearance in the personal
actions, though not in the real actions, reflects political theory. None
seriously challenged the king's power to hear suits involving freehold:
a series of solemn charters not only recognized but insisted on this
jurisdiction. Beyond freehold, however, the royal power was less clear
because less pressing. Was there another court that should hear the case?
Was the controversy properly a matter for royal concern? Requirements
that minimum amounts be at stake to invoke royal jurisdiction and the
requirement that plaintiffs allege some royal concern (captured in vi et
armis allegations that invoked the king's peacekeeping functions) attest
to the proposition that all recognized royal jurisdiction was limited. To
insist on appearance is to require submission to - or challenge of - the
court's jurisdiction. A party who has argued his cause to the court has
been forced either to consent to its power to judge the controversy or
to challenge that power. A process that prevented the state from wasting
efforts in producing a decree which would only prove the starting point
for litigation challenging its efficacy may have seemed both a sensible
way of allocating scarce bureaucratic resources and a politically wise
precaution.
The character of the writs in personal actions offered another reason for
caution. Medieval law, in some respects far more flexible than ours, drew
no sharp distinctions between what we would now call civil and criminal
matters. Not only dramatic examples like 'private' criminal prosecutions,
but also the common 'civil' writs testify to the interpenetration of what
have become separate legal and intellectual spheres. Many of the writs
in personal actions grew from trespass, and their allegations spoke of a
wrong to the king's peace. Even after no one took literally the allegations
that bordered on felony, an air of seriousness clung to these writs. Indeed
it was just this air of seriousness that made capias and distringas available
as mesne process: the sheriff, a royal officer, ought to bestir himself to
force these malefactors to answer. Yet this stance had an inherent limiting
principle. If shrieval vigour in pursuing these complaints rested on their
similarity to crimes, the same restraints limiting criminal process ought to
apply to analogous civil actions, to use a pair of anachronistic categories. One
such constraint involved the necessity of a defendant's appearing to answer
charges. A criminal defendant could not be tried in absentia', indeed, even if
present, he could not be convicted if he refused to plead. If a trespass was a
serious wrong, though not so serious as a felony, could it be appropriate to