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

Default and Modern Process 137
One reason the seventeenth- and eighteenth-century English feared the crown
was that it had become a more effective administrative force. Though a
professional bureaucracy was centuries away, the Tudor and Stuart rnonarchs
ruled the realm with a thoroughness that would have made their medieval
colleagues envious. A sign of this thoroughness was the new apparatus
that came into play for uncovering and prosecuting crime. 37 Although the
instigation of private criminal prosecutions remained a staple, 38 the justices
of the peace began to play a more active role in the interrogation of suspects
and the investigation of crime. 39 High official bodies, the Privy Council and
Star Chamber, began to take responsibility for investigating and prosecuting
cases with political ramifications or those that threatened social order. With
these developments, what we know as criminal law began to distinguish itself
from complaints of subject against subject. As that distinction began to take
hold, it became possible to design civil process with features that would have
been unacceptable in a trial of criminal accusations. Default was one such
change. Once trespass and its progeny were uncoupled from criminal process,
one could consider innovations that would have been barred so long as they
were linked. Such an uncoupling was natural in a world in which officials
were beginning to take major responsibility for investigating and prosecuting
crimes, which thus became distinguished from the causes prosecuted entirely
by private parties.
To claim that change was constitutionally possible and perhaps economically
useful in a small way does not, however, establish that it occurred. For
centuries people had inveighed against the delay and expense of common
law. Today the bar produces most of those costs and most of the impediments
to change. In the seventeenth and eighteenth centuries, court costs were a
larger element. One of the major impediments to any change in the procedures
of common law and chancery were the men who held the offices associated
with the courts: cursitors, filazers, the Six Clerks, the underclerks, clerks of
warrants, clerks of fines, exigenters, prothonotaries and the like. These men
were office holders, not modern bureaucrats. Their pay came, that is, not
from a salary granted by the government, but from fees paid by litigants
for processing routine transactions - so many shillings for an original writ,
so many shillings for a capias and so on. The offices were valuable assets
and their holders had generally purchased them from the patron - often a
judge or similar high official - in whose grant they lay. 40 For example, at
the end of the sixteenth century John Lennard purchased the office of custos
37
J. Langbein, Prosecuting Crime in the Renaissance: England, Germany, and France (Cambridge,
Mass., 1974) elaborates the argument.
38
J. Langbein, Torture and the Law of Proof (Chicago, 1977), 79.
39
'... [T]he Marian statutes both expanded and contracted the magistrates' office. The prosecutorial
role occasioned the decline of the adjudicative', John Langbein, Prosecuting Crime in the Renaissance,
111.
40
W.S. Holdsworth, The History of English Law, i, 7th rev. ed. (1956), 248-55.