The Supreme Court, Service of Process, and Legal History: Part 1 of a Letters Blogatory Polemic
Posted on April 14, 2017
How was process served at common law in England? I’m not asking just for the heck of it: next week I hope to have a post that makes some points about the Supreme Court’s reliance on legal history in its explanations for the modern doctrines of service of process and personal jurisdiction. But first things first: how was process served?
The answer depends on the court you were in. Let’s look just at the Court of Common Pleas, which I think is the most relevant for our purposes. If you were the plaintiff in an action in that court, where (in theory) all claims between private parties in which the crown had no interest were heard, then after you obtained your original writ from the Chancery, the sheriff’s messengers, known as summoners, would deliver a summons to the defendant, either in person or by leaving it at his home or on his land. The summons would give the defendant notice requiring him to appear in court on the return day, i.e., the day when the sheriff was supposed to inform the court about how he had executed the original writ. If the defendant failed to appear, there were a series of additional forms of process that would be served: first, a writ of attachment, then a writ of distringas, both of which resulted in a seizure of property if the defendant would not appear. In cases of injury involving force, and later, by statute, in other cases, there was a final form of process, the writ of capias ad respondendum, which resulted in the arrest and imprisonment of the defendant. If the sheriff can’t find the defendant in his county, then a writ of testatum capias issues to the sheriff in the county where the defendant is believed to live. (All of this, by the way, comes from Blackstone).
However, over time, as the common law courts competed for litigants’ business, they sought to provide more effective procedures for plaintiffs. So legal fictions developed that allowed the use of a capias as the first process, based on a fictitious return of the sheriff to a fictitious writ. And even further, it became usual to start with a testatum capias, based on a fictitious capias ad respondendum and a fictitious return by the sheriff indicating that he couldn’t find the defendant in his county.
So to summarize, the sequence was as follows: (1) an original writ followed by a summons; (2) if the defendant disobeyed the summons, writs to attach and then to seize his property; (3) if that didn’t work, a writ to arrest him in the county to which the original writ had been directed; and (4) if the defendant couldn’t be found there, a writ to arrest him in the county where he could be found. But in practice, due to the use of fictions, actions began to use step (4) as the first and only step of the process.
The reason I point all this out is just to say that it’s a mistake to say that, in principle, a civil action at common law began with the defendant’s arrest. In principle, it began with an original writ and a summons, and an arrest was necessary only if the defendant failed to appear, though through the use of fictions an initial arrest at some point became routine. Next week, I want to take this little bit of legal history and look at the Supreme Court’s use of the capias ad respondendum to explain service of process and personal jurisdiction in modern times.