This is part two of my series on legal history and service of process. You should start by reading Part 1.

I could start the discussion of the Supreme Court’s cases with Pennoyer v. Neff, 95 U.S. 714 (1878), but I think it is better to start with International Shoe Co. v. Washington, 326 U.S. 310 (1945), the first “modern” case on long-arm service, that is, service outside the territory of the state where the court sits. Here is how the Court put things:

Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

Now, we know from part one of this polemic that the Court gets the history a little backwards here. It’s true that in practice actions in the Court of Common Pleas typically began with a capias after a certain date, and that at a later date reforms both in England and in America provided for service by a writ of summons instead. So yes, the summons did replace the capias. But the capias, as we saw, came to replace the summons through the use of fictions, and I suppose that in principle a plaintiff could have begun an action by summons on an original writ even when it was common to use the capias instead. But I think it unlikely that the Court didn’t know this. In a footnote to a dissent in Parker v. Ellis, 362 U.S. 574 (1960), a habeas corpus case fifteen years later, where the Court affirmed a dismissal of the petition after the prisoner was released, Justice Douglas quoted Holdsworth, the author of a famous history of English law:

Of all these methods of beginning an action the most common was a capias ad respondendum, i.e. a writ directing the sheriff to arrest the defendant. This process was possible in all the most usual personal actions; and, where it was possible, it became the practice, in the course of the eighteenth century, to ‘resort to it in the first instance, and to suspend the issuing of the original writ, or even to neglect it altogether, unless its omission should afterwards be objected by the defendant. Thus the usual practical mode of commencing a personal action by original writ is to begin by issuing, not an original, but a capias.’ As the author of the Pleader’s Guide said:—

Still lest the Suit should be delayed,
And Justice at her Fountain stayed,
A Capias is conceived and born
Ere yet th’ ORIGINAL is drawn,
To justify the Court’s proceedings,
Its Forms, its Processes, and Pleadings,
And thus by ways and means unknown
To all but Heroes of the Gown,
A Victory full oft is won
Ere Battle fairly is begun;
‘Tis true, the wisdom of our Laws
Has made Effect precede the Cause,
But let this Solecism pass—
In fictione aequitas.

But the original was always supposed; and the defendant could always object to its absence, and compel the plaintiff to procure it from the office of the cursitor.

The last case I want to note is Murphy Bros v. Michetti Pipe Stringing, 526 U.S. 344 (1999), where the question was whether receipt of a copy of the complaint, unaccompanied by a summons, was sufficient to start the running of a defendant’s time to remove a case from the state court to the federal court. Here is the Court’s discussion:

Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant. At common law, the writ of capias ad respondendum directed the sheriff to secure the defendant’s appearance by taking him into custody. See 1 J. Moore, Moore’s Federal Practice P0.6[2.-2], p. 212 (2d ed. 1996) (“The three royal courts, Exchequer, Common Pleas, and King’s Bench … obtained an in personam jurisdiction over the defendant in the same manner through the writ of capias ad respondendum.”). The requirement that a defendant be brought into litigation by official service is the contemporary counterpart to that writ. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945) (“The capias ad respondendum has given way to personal service of summons or other form of notice.”).

In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant. See Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a … court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-445 (1946) (“Service of summons is the procedure by which a court … asserts jurisdiction over the person of the party served.”). Accordingly, one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend. See Fed. Rule Civ. Proc. 4(a) (“[The summons] shall … state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant.”); Fed. Rule Civ. Proc. 12(a)(1)(A) (a defendant shall serve an answer within 20 days of being served with the summons and complaint). Unless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.

Again we see some problems with the legal history: in the King’s Bench, the usual method of obtaining a defendant’s arrest through the use of legal fictions was called a writ of latitat, not a capias, and in the Exchequer it was a quominus. But the main problem here isn’t just with terminology: it’s with the failure to see that in principle the arrest was not critical to the exercise of jurisdiction: a case could just as well be brought via an original writ and summons, without any arrest.

Stay tuned for Part 3 of this series, where I explain why I think this is important and where I discuss my shortcomings as a legal historian.