The Constitution of England

Chapter X1

89 u c h a p t e r x 1 u On the Law in regard to Civil matters, that is observed in England. Concerning the manner in which Justice is administered, in civil matters, in England, and the kind of law that obtains in that respect, the following observations may be made. In the first place, it is to be observed, that the beginning of a civilprocess in England, and the first step usually taken in bringing an action, is the seizing by public authority the person against whom that action is brought. This is done with a view to secure such person’s appearance before a Judge, or at least make him give sureties for that purpose. In most of theCountries of Europe, where the forms introduced in the Roman Civil Law, in the reigns of the latter Emperors, have been imitated, a different method has been adopted to procure a man’s appearance before a Court of Justice. The usual practice is to have the person sued, summoned to appear before the Court, by a public officer belonging to it, a week before-hand: if no regard is paid to such summons twice repeated, the Plaintiff, or his Attorney, is admitted to make before the Court a formal reading of his demand, which is then granted him, and he may proceed to execution (a). In this mode of proceeding, it is taken for granted, that a person who declines to appear before a Judge, to answer the demand of another, after 1. This chapter first appeared in the 1781 edition. (a) A person against whom a judgment of this kind has been passed (which they call in France un jugement par défaut) [[“a judgment by default”]] may easily obtain relief: but as he now in his turn becomes in a manner the Plaintiff, his deserting the cause, in this second stage of it, would leave him without remedy. 90 book i being properly summoned, acknowledges the justice of such demand; and this supposition is very just and rational. However, the above mentioned practice of securing before-hand the body of a person sued, though not so mild in its execution as that just now described, nor even more effectual, appears more obvious, and is more readily adopted, in those times when Courts of Law begin to be formed in a Nation, and rules of distributive justice to be established; and it is, very likely, followed in England as a continuation of the methods that were adopted when the English laws were as yet in their infancy. In the times we mention, when laws begin to be formed in a Country, the administration of justice between individuals is commonly lodged in the same hands which are intrusted with the public and military authority in the State. Judges invested with a power of this kind, like to carry on their operations with a high hand: they consider the refusal of a Man to appear before them, not as being barely an expedient to avoid doing that which is just, but as a contempt of their authority: they of course look upon themselves as being bound to vindicate it; and a writ of Capias is speedily issued to apprehend the refractory Defendant. A preliminary Writ, or order, of this kind, becomes in time to be used of course, and as the first regular step of a law-suit; and thus, it is likely enough, has it happened that in the English Courts of law, if I am rightly informed, a Writ of Capias is either issued before the original Writ itself (which contains the summons of the plaintiff, and a formal delineation of his case), or is joined to such Writ, by means of an ac etiam capias, and is served along with it.2 It may be remembered that, in England, the Aula Regis, at the head of which the King himself presided, was originally the common Court of Justice for the whole Kingdom, in civil as well as criminal matters, and continued so till the Court of Common-pleas was in time separated from it. In Rome, where the distribution of civil Justice was at first lodged in the hands of the Kings, and afterwards of the Consuls, the method of seizing the person of a Man against whom a demand of any kind was preferred, 2. Capias was a judicial writ that authorized the arrest of the defendant. It differed from “the original Writ” in...