Legal Dissertation on the Abstinence of Natural Law from the Fallacious Rules of the Putative Summary Process

§. 14. Another substantial requirement is said to be the litis contestatio formal contestation of the suit, or in a summary process, some kind of response. Even if this is not present, it is said to be an incurable nullity and that it impinges upon principles inculcated by natural law itself. But the arguments brought forward regarding this matter are, we are persuaded, less founded in divine and natural law. For although it can hardly be denied that the state of a controversy cannot be formed in any case before the other party responds, nevertheless, this rather begs the question. For the question is still whether the thing is necessarily always owed with the controversy, or whether it can sometimes be adjudicated without any contention if the plaintiff fully proves the foundation of his petition because of the nature of the business, if the defendant fails to respond, and whether a just petition should not be granted when the defendant does not respond. Surely, if it were to be understood that a response is so essentially required, it would follow that if the defendant does not wish to respond, he could repel the plaintiff solely by not wishing to do so. But the rejection of these arguments seems easy, for compulsory means exist—namely, a stricter citation, and indeed sometimes under penalty, according to the circumstance, of being recognized, confessed, and convicted, and so forth. Or even if the defendant is unwilling to respond, the way of proving is opened for the plaintiff, as is the custom primarily in Lower Saxony, and the suit is held as contested for the negative. But this is what we wanted: if, indeed, proof can be enjoined upon the plaintiff without the controversy of the defendant, and thus the one proving sufficiently can be satisfied, from this it appears sufficiently that the response of the defendant is not always of the essence and thus of the Law of Nature.