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2. When the default was owing to the lord, which was the case whenever there happened not to be a sufficient number of peers in his court to pass judgment, or when he had not assembled his tenants or appointed somebody in his place to assemble them, an appeal might be made of the default before the lord paramount; but then the party and not the lord was summoned, because of the respect due to the latter.[209]

The lord demanded to be tried before the paramount, and if he was acquitted of the default, the cause was remanded to him, and he was likewise paid a fine of sixty livres.[210] But if the default was proved, the penalty inflicted on him was to lose the trial of the cause,[211] which was to be then determined in the superior court. And, indeed, the complaint of default was made with no other view.

3. If the lord was sued in his own court,[212] which never happened but upon disputes in relation to the fief, after letting all the delays pass, the lord himself was summoned before the peers in the sovereign's name,[213] whose permission was necessary on that occasion. The peers did not make the summons in their own name, because they could not summon their lord, but they could summon for their lord.[214]

Sometimes the appeal of default of justice was followed by an appeal of false judgment, when the lord had caused judgment to be passed, notwithstanding the default.[215]

The vassal who had wrongfully challenged his lord of default of justice was sentenced to pay a fine according to his lord's pleasure.[216]

The inhabitants of Gaunt had challenged the Earl of Flanders of default of justice before the king, for having delayed to give judgment in his own court.[217] Upon examination it was found that he had used fewer delays than even the custom of the country allowed. They were therefore remanded to him; upon which their effects to the value of sixty thousand livres were seized. They returned to the king's court in order to have the fine moderated; but it was decided that the earl might insist upon the fine, and even upon more if he pleased. Beaumanoir was present at those judgments.

4. In other disputes which the lord might have with his vassal, in respect to the person or honour of the latter, or to property that did not belong to the fief, there was no room for a challenge of default of justice; because the cause was not tried in the lord's court, but in that of the paramount: vassals, says Défontaines,[218] having no power to give judgment on the person of their lord.

I have been at some trouble to give a clear idea of those things, which are so obscure and confused in ancient authors that to disentangle them from the chaos in which they were involved may be reckoned a new discovery.

29. Epoch of the Reign of St. Louis. St. Louis abolished the judicial combats in all the courts of his demesne, as appears by the ordinance he published thereupon,[219] and by the Institutions.[220]

But he did not suppress them in the courts of his barons, except in the case of challenge of false judgment.[221]

A vassal could not challenge the court of his lord of false judgment, without demanding a judicial combat against the judges who pronounced sentence. But St. Louis introduced the practice of challenging of false judgment without fighting, a change that may be reckoned a kind of revolution.[222]

He declared[223] that there should be no challenge of false judgment in the lordships of his demesnes, because it was a crime of felony. In reality, if it was a kind of felony against the lord, by a much stronger reason it was felony against the king. But he consented that they might demand an amendment[224] of the judgments passed in his courts; not because they were false or iniquitous, but because they did some prejudice.[225] On the contrary, he ordained that they should be obliged to make a challenge of false judgment against the courts of the barons,[226] in case of any complaint.

It was not allowed by the Institutions, as we have already observed, to bring a challenge of false judgment against the courts in the king's demesnes. They were obliged to demand an amendment before the same court; and in case the bailiff refused the amendment demanded, the king gave leave to make an appeal to his court;[227] or rather, interpreting the Institutions by themselves, to present him a request or petition.[228]

With regard to the courts of the lords, St. Louis, by permitting them to be challenged of false judgment, would have the cause brought before the royal tribunal,[229] or that of the lord paramount, not to be decided by duel[230] but by witnesses, pursuant to a certain form of proceeding, the rules of which he laid down in the Institutions.[231]

Thus, whether they could falsify the judgment, as in the court of the barons; or whether they could not falsify, as in the court of his demesnes, he ordained that they might appeal without the hazard of a duel.

Défontaines[232] gives us the first two examples he ever saw, in which they proceeded thus without a legal duel: one, in a cause tried at the court of St. Quentin, which belonged to the king's demesne; and the other, in the court of Ponthieu, where the count, who was present, opposed the ancient jurisprudence: but these two causes were decided by law.

Here, perhaps, it will be asked why St. Louis ordained for the courts of his barons a different form of proceeding from that which he had established in the courts of his demesne? The reason is this: when St. Louis made the regulation for the courts of his demesnes, he was not checked or limited in his views: but he had measures to keep with the lords who enjoyed this ancient prerogative, that causes should not be removed from their courts, unless the party was willing to expose himself to the dangers of an appeal of false judgment. St. Louis preserved the usage of this appeal; but he ordained that it should be made without a judicial combat; that is, in order to make the change less felt, he suppressed the thing, and continued the terms.

This regulation was not universally received in the courts of the lords. Beaumanoir says[233] that in his time there were two ways of trying causes; one according to the king's establishment, and the other pursuant to the ancient practice; that the lords were at liberty to follow which way they pleased; but when they had pitched upon one in any cause, they could not afterwards have recourse to the other. He adds,[234] that the Count of Clermont followed the new practice, while his vassals kept to the old one; but that it was in his power to reestablish the ancient practice whenever he pleased, otherwise he would have less authority than his vassals.

It is proper here to observe that France was at that time divided into the country of the king's demesne, and that which was called the country of the barons, or the baronies; and, to make use of the terms of St. Louis' Institutions, into the country under obedience to the king, and the country out of his obedience.[235] When the king made ordinances for the country of his demesne, he employed his own single authority. But when he published any ordinances that concerned also the country of his barons, these were made in concert with them,[236] or sealed and subscribed by them: otherwise the barons received or refused them, according as they seemed conducive to the good of their baronies. The rear-vassals were upon the same terms with the great-vassals. Now the Institutions were not made with the consent of the lords, though they regulated matters which to them were of great importance: but they were received only by those who believed they would redound to their advantage. Robert, son of St. Louis, received them in his county of Clermont; yet his vassals did not think proper to conform to this practice.

30. Observation on Appeals. I apprehend that appeals, which were challenges to a combat, must have been made immediately on the spot. "If the party leaves the court without appealing," says Beaumanoir,[237] "he loses his appeal, and the judgment stands good." This continued still in force, even after all the restrictions of judicial combat.[238]

31. The same Subject continued. The villain could not bring a challenge of false judgment against the court of his lord. This we learn from Défontaines,[239] and he is confirmed moreover by the Institutions.[240] Hence Défontaines says,[241] "between the lord and his villain there is no other judge but God."

It was the custom of judicial combats that deprived the villains of the privilege of challenging their lord's court of false judgment. And so true is this, that those villains[242] who by charter or custom had a right to fight had also the privilege of challenging their lord's court of false judgment, even though the peers who tried them were gentlemen;[243] and Défontaines proposes expedients to gentlemen in order to avoid the scandal of fighting with a villain by whom they had been challenged of false judgment.[244]

As the practice of judicial combats began to decline, and the usage of new appeals to be introduced, it was reckoned unfair that freemen should have a remedy against the injustice of the courts of their lords, and the villains should not; hence the parliament received their appeals all the same as those of freemen.

32. The same Subject continued. When a challenge of false judgment was brought against the lord's court, the lord appeared in person before his paramount to defend the judgment of his court. In like manner, in the appeal of default of justice, the party summoned before the lord paramount brought his lord along with him, to the end that if the default was not proved, he might recover his jurisdiction.[245]

In process of time as the practice observed in these two particular cases became general, by the introduction of all sorts of appeals, it seemed very extraordinary that the lord should be obliged to spend his whole life in strange tribunals, and for other people's affairs. Philip of Valois ordained[246] that none but the bailiffs should be summoned; and when the usage of appeals became still more frequent, the parties were obliged to defend the appeal: the deed of the judge became that of the party.[247]

I took notice that in the appeal of default of justice,[248] the lord lost only the privilege of having the cause tried in his own court. But if the lord himself was sued as party,[249] which became a very common practice,[250] he paid a fine of sixty livres to the king, or to the paramount, before whom the appeal was brought. Thence arose the usage, after appeals had been generally received, of making the fine payable to the lord upon the reversal of the sentence of his judge; a usage which lasted a long time, and was confirmed by the ordinance of Rousillon, but fell, at length, to the ground through its own absurdity.

33. The same Subject continued. In the practice of judicial combats, the person who had challenged one of the judges of false judgment might lose his cause by the combat, but could not possibly gain it.[251] And, indeed, the party who had a judgment in his favour ought not to have been deprived of it by another man's act. The appellant, therefore, who had gained the battle was obliged to fight likewise against the adverse party: not in order to know whether the judgment was good or bad (for this judgment was out of the case, being reversed by the combat), but to determine whether the demand was just or not; and it was on this new point they fought. Thence proceeds our manner of pronouncing decrees, "The court annuls the appeal; the court annuls the appeal and the judgment against which the appeal was brought." In effect, when the person who had made the challenge of false judgment happened to be overcome, the appeal was reversed: when he proved victorious, both the judgment and the appeal were reversed; then they were obliged to proceed to a new judgment.

This is so far true that, when the cause was tried by inquests, this manner of pronouncing did not take place: witness what M. de la Roche Flavin says,[252] namely, that the chamber of inquiry could not use this form at the beginning of its existence.

34. In what Manner the Proceedings at Law became secret. Duels had introduced a public form of proceeding, so that both the attack and the defence were equally known. "The witnesses," says Beaumanoir,[253] "ought to give their testimony in open court."

Boutillier's commentator says he had learned of ancient practitioners, and from some old manuscript law books, that criminal processes were anciently carried on in public, and in a form not very different from the public judgments of the Romans. This was owing to their not knowing how to write; a thing in those days very common. The usage of writing fixes the ideas, and keeps the secret; but when this usage is laid aside, nothing but the notoriety of the proceeding is capable of fixing those ideas.

And as uncertainty might easily arise in respect to what had been adjudicated by vassals, or pleaded before them, they could, therefore, refresh their memory[254] every time they held a court by what were called proceedings on record.[255] In that case, it was not allowed to challenge the witnesses to combat; for then there would be no end of disputes.

In process of time a private form of proceeding was introduced. Everything before had been public; everything now became secret; the interrogatories, the informations, the re-examinations, the confronting of witnesses, the opinion of the attorney-general; and this is the present practice. The first form of proceeding was suitable to the government of that time, as the new form was proper to the government since established.

Boutillier's commentator fixes the epoch of this change to the ordinance in the year 1539. I am apt to believe that the change was made insensibly, and passed from one lordship to another, in proportion as the lords renounced the ancient form of judging, and that derived from the Institutions of St. Louis was improved. And indeed, Beaumanoir says[256] that witnesses were publicly heard only in cases in which it was allowed to give pledges of battle: in others they were heard in secret, and their depositions were reduced to writing. The proceedings became, therefore, secret, when they ceased to give pledges of battle.

35. Of the Costs. In former times no one was condemned in the lay courts of France to the payment of costs.[257] The party cast was sufficiently punished by pecuniary fines to the lord and his peers. From the manner of proceeding by judicial combat it followed, that the party condemned and deprived of life and fortune was punished as much as he could be: and in the other cases of the judicial combat, there were fines sometimes fixed, and sometimes dependent on the disposition of the lord, which were sufficient to make people dread the consequences of suits. The same may be said of causes that were not decided by combat. As the lord had the chief profits, so he was also at the chief expense, either to assemble his peers, or to enable them to proceed to judgment. Besides, as disputes were generally determined at the same place, and almost always at the same time, without that infinite multitude of writings which afterwards followed, there was no necessity of allowing costs to the parties.