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Default and Modern Process 143
plaintiff's claim. Modern process, by contrast, shows no doubts about its own
right to exist. The court's power is assumed. Armed with this self-confidence,
modern process declares victory without firing a shot in the battle for its
own jurisdiction, moving directly to the second confrontation, that between
plaintiff and defendant. Default also shifts the focus both of litigants' strategy
and of the lawsuit. Before default, the defendant's best delaying strategy was
typically a prolonged effort to avoid appearance and the necessity to answer.
It may not be too strong to say that the major suspense in a medieval lawsuit
was whether the defendant could be made to appear and answer: the merits
became anticlimactic. By contrast, default causes defendants to conceive of
delaying tactics more closely approaching the merits. Modern process is not
less prone to delay than medieval: prolonged discovery (in the United States),
flurries of procedural arguments, motions for summary judgement are all
used by defendants fighting off the inevitable day of judgement. But these
delaying tactics have a different focus: even procedural motions often have
some reference to the merits of the claim (forum non conveniens arguments
are a good example), and discovery and summary judgement approach the
merits much more directly. In consequence even the defendant acting in bad
faith must do so by immersing himself in the merits of the plaintiff's claim.
It is commonplace to mark the beginning of modern substantive law as
coming in the early seventeenth century, as two of the three great medieval
contractual writs collapsed into one another. Procedural change opened the
way for the creation of a coherent idea of informal contract. If one turns to
procedure, the historiographical tradition is different. The standard accounts
suggest that process dwelt in a lingering medieval haze for another hundred
and fifty years until the combined effects of Bentham, a reformed parliament,
the transatlantic efforts of David Dudley Field and, perhaps, the muckraking
of Charles Dickens wrenched it into modernity. Whatever the causes of
change, however, the movement toward a recognizably modern procedure
is generally thought to have come only in the mid nineteenth century, with
the merger of law and equity and the abolition of the forms of action. I have
offered a mild revision of this understanding. It is possible to see a glimmer of
a modern idea of process emerging in 1725, the date of the enactment of the
first default judgement statute. After that date, defendants in personal actions
did not have to appear to have enforceable judgements entered against them.
No longer did the plaintiff have to seek distress, capias or outlawry in order
to compel the defendant to answer him in court. Delay was, as always in law,
still possible, but the primary tactic of delay was no longer an effort to avoid
or evade a defence on the merits. Instead a defence on the merits became the
chief method of delaying what would otherwise be an immediately entered
adverse judgement. The burden of litigation had shifted from the plaintiff
to the defendant. The plaintiff still had to prove his case, but now the chief
difficulties became those of proving the merits, not those of compelling the
defendant to answer. The focus of attention comes closer to the merits of
the claim. The movement to default suggests another change in the medieval