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

132 Legal History in the Making
that the plaintiff was required to serve the defendant with process. If he
failed to appear on the date specified by that process, the plaintiff, having
sworn that the defendant was properly served, could then make a common
appearance for defendant - that is, the plaintiff could have his attorney
appear instead of the defendant's and proceed to take judgement against
the absent defendant. To be sure, the Act permitted civil arrest to continue
to exist in larger cases if the plaintiff made a special affidavit of the amount
owed. Nevertheless the adoption of this legislation marks a small turning in
the procedural road; no longer did English courts have to have the defendant
before them to enter judgement: 22 an opportunity to appear substituted for
an actual appearance. 23
If one accepts the argument so far, this development poses a problem the
obverse of the one with which we started. Default's absence seems explicable,
but its advent remains unaccounted for. In a system that attached so much
importance to the defendant's appearance, why did Parliament in 1725
abandon the requirement of appearance in personal actions? I believe the
answer has several parts, some broadly social and economic, others narrowly
doctrinal and circumstantial.
To examine broader aspects, one has to go no further than the pair of
seventeenth-century revolutions, which overthrew two kings, executing one
in the process. These events made a difference in the fabric of political life
and in political assumptions. The execution of Charles I and the expulsion
of James II bespoke rejection of important aspects of royal policy. William
and Mary, Anne and the Hanoverians accepted their subjects' conviction
that there were unacceptable paths, particularly those of religion, into which
a monarch could stray. The Act of Settlement testified to a general will to
which even monarchs had to pay heed. The existence of that will had led
to the rejection of a king and the resettlement of the crown on Protestant
heads. Although it was not yet established that parliament was that sovereign
(Blackstone assiduously denied it in 1775), 24 it could escape no one that the
king was not all-powerful. The political revolution that followed the Glorious
Revolution was carefully ambiguous about the exact location of sovereignty
but the Commons were now among the king's rivals for power.
Drawing a direct line between these grand political themes and the
development of a default remedy approaches the absurd. Nevertheless
relationships can be suggested. For much of the seventeenth century the
political classes of England had continually appealed to the common law as
a bulwark against feared royal despotism. The common law usually failed
them in the event, but it was a powerful rhetorical source. This rhetoric had
procedural implications. If liberty lay in the scrupulous adherence to every
22 The Act did not apply to Scotland.
23 The 1725 legislation was renewed and amended in 1732. The amendments extended the time for
defendant's answer to eight days and required the summons to be in English - it having been discovered
that many small debtors could not understand the Latin summons, 5 Geo. II c. 27 (1732).
24 W. Blackstone, Commentaries on the Laws of England, 7th ed. (1775), i, 154-55.