Friday, April 07, 2006

Service of notice: from Victor Hugo's wapentake to sliding under tenement door

Typically, to serve process, you need to satisfy some place-requirement (either on-the-person, or at the person's abode), and a reasonably-likely-to-receive requirement. For example, some states say that just touching the person with the process papers, in a way such that he realizes he is being served, is adequate; he can run away, and as long as you can't t touch him, he's still not served. (Unless you can prove, which is usually quite difficult, that he should have known you were attempting to serve.) This was English law for a long time: Patrick O'Brien talks about this in The Mauritius Command, I believe. Jack Aubrey is back temporarily ashore, and heavily in debt: he spends his time dodging bankruptcy agents who, if they touch him with the papers, can seize his goods and send him to debtor's prison. Of course he's successfully smuggled back to his ship by Maturin in a laundry basket. Many states also have abode-requirements. In Connecticut, for example, if you have "pushed two copies of the writ and complaint, one for each defendant, at least half way under the door into the interior of the apartment," the recipient has constructively received process. (See, e.g., Pozzi v. Harney, 24 Conn. Supp. 488.) Some of these requirements have even been constitutionalized at the federal level. In Greene v. Lindsey, 456 U.S. 444, for example, it was held that an eviction notice that was taped to the door was not service, despite a federal statute, because such a vulnerable method of delivery denied the recipient the due process right to be aware of service.

Victor Hugo discusses an ancient method of service, the wapentake, in The Man Who Laughs. (I think this is his second finest novel, after Toilers of the Sea.) A judicial officer, in full robes and with a rod of service, moves slowly towards a frozen victim. The book is here; click here to continue reading an excerpt about the wapentake.
Ursus, we know, lacked apathy, and, like a roebuck on the watch, kept a lookout in every direction. One day, a short time after his sermon to Gwynplaine [about ill-advised remarks], as he was looking out from the window in the wall which commanded the field, he became suddenly pale.





"In the field."


"Do you see that passer-by?"

"The man in black?"


"Who has a kind of mace in his hand?"



"Well, Gwynplaine, that man is a wapentake."

"What is a wapentake?"

"He is the bailiff of the hundred."

"What is the bailiff of the hundred?"

"He is the proepositus hundredi."

"And what is the proepositus hundredi?"

"He is a terrible officer."

"What has he got in his hand?"

"The iron weapon."

"What is the iron weapon?"

"A thing made of iron."

"What does he do with that?"

"First of all, he swears upon it. It is for that reason that he is called the wapentake."

"And then?"

"Then he touches you with it."

"With what?"

"With the iron weapon."

"The wapentake touches you with the iron weapon?"


"What does that mean?"

"That means, follow me."

"And must you follow?"



"How should I know?"

"But he tells you where he is going to take you?"


"How is that?"

"He says nothing, and you say nothing."


"He touches you with the iron weapon. All is over then. You must go."

"But where?"

"After him."

"But where?"

"Wherever he likes, Gwynplaine."

"And if you resist?"

"You are hanged."

Ursus looked out of the window again, and drawing a long breath, said,—

"Thank God! He has passed. He was not coming here."

Ursus was perhaps unreasonably alarmed about the indiscreet remark, and the consequences likely to result from the unconsidered words of Gwynplaine.

Master Nicless, who had heard them, had no interest in compromising the poor inhabitants of the Green Box. He was amassing, at the same time as the Laughing Man, a nice little fortune. [The play] "Chaos Vanquished" had succeeded in two ways. While it made art triumph on the stage, it made drunkenness prosper in the tavern.


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