which the appeal of false judgment to the king's court is e stablished, and all other kinds of appeal proscribed and punished.. If they refused to submit to the judgment of the fheriffs *, and made no complaint, they were imprifoned till they had fubmitted: but if they complained, they were conducted under a proper guard before the king, and the affair was examined in his court. There could be hardly any room then for an appeal of default of justice. For fo far was it from being ufual in thofe days to complain, that the counts and others, who had a right of holding affizes, were not exact in discharging. this duty; that ", on the contrary, it was a general complaint that they were too exact. Hence we find fuch numbers of ordinances, by which the counts and all other officers of juftice whatsoever, are forbid to hold their affizes above thrice a-year. It was not fo neceffary to chastise their indolence, as to check their activity. But, after an innumerable multitude of petty lordships had been formed, and different degrees of vassalage. established, the neglect of certain vaffals in holding their courts gave rife to this kind of appeal †; especially as very confiderable profits accrued to the lord paramount from the feveral fines.. As the cuftom of judicial combats gained every day more. ground, there were places, cafes, and times, in which it was difficult to affemble the peers, and confequently in which justice was delayed. The appeal of default of juftice was therefore introduced, an appeal that has been often a remarkable æra in our hiftory; because most of the wars of thofe days were imputed to a violation of the political law; as the cafe, or at least the pretence of our modern wars, is the infringement of the law of nations. Beaumanoir n fays, that in the case of default of justice, battle was not allowed. The reasons are thefe: 1. They the fynod apud Vernas in the year 755, art. 29. edition of Balufius, p. 175. Thefe two capitularies were made under King Pepin. *The officers under the count. Scabini. †There are inftances of appeals of default of juftice as early as the time of Philip Augustus.. See the law of the Lombards, book 2, tit. 52. art. 22. n Chap. 61. p. 315. could could not challenge the lord, becaufe of the refpe&t due to his perfon; neither could they challenge the lord's peers, because the cafe was clear, and they had only to reckon the days of the fummons, or of the other delays; there had been no judgment paffed, confequently there could be no appeal of falle judgment: in fine, the crime of the peers offended the lord as well as the party, and it was againft rule that there fhould be battle between the lord and his peers. But as the default was proved by witneffes before the fuperior court; the witneffes might be challenged, and then neither the lord nor his court were offended. In cafe the default was owing to the lord's tenants or peers by deferring juftice, or by evading judgment after past delays, then these peers were appealed of default of juftice before the paramount; and if they were caft, they P paid a fine to their lord. The latter could not give them any affistance; on the contrary, he feized their fief till they had each paid a fine of fixty livres. 2. When the default was owing to the lord, which was the cafe whenever there happened not to be a fufficient number of peers in his court to pafs judgment, or when he had not affembled his tenants or appointed fomebody in his room to affemble them, an appeal might be made of the default before the lord paramount; but then the party 2. and not the lord was fummoned, becaufe of the refpect due to the latter. 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 likewife paid a fine of fixty livres. But if the default was proved, the penalty s inflicted on him was to lofe the judgment of the caufe, which was to be then tried in the fuperior court. In fact, the complaint of default was made with no other view. 3. If the lord was fued * in his own court, which never happened but upon difputes relating to the fief; after let ting. *This was the cafe in the famous difference between the lord of • Beaumanoir, chap. 61. p. 315. 9 Ibid. art. 31. P Defontaines, chap. 21, art, 24, 312. Defontaines, chap. 21. art. 29.. ting all the delays pafs, the lord himself was fummoned before the peers in the fovereign's name, whose permiffion was neceffary on that occafion. The peers did not make the fummons in their own name, because they could not fummon their lord, but they could fummon u for their lord. Sometimes the appeal of default of juftice was followed with an appeal of false judgment, when the lord had caused judgment to be passed, notwithstanding the default. The vaffal who had wrongfully appealed his lord of default of justice, was fentenced to pay a fine according to his lord's pleasure. The inhabitants of Gaunty had appealed the Earl of Flanders of default of justice before the king, for having delayed to give judgment in his own court. Upon exami⚫ nation it was found, that he had ufed lefs delays than even the custom of the country allowed. They were therefore remanded to him; upon which their effects to the value of fixty thousand livres were feized. They returned to the king's court in order to have this fine moderated; but it was decided that the Earl might insist upon this fine, and even more if he pleafed. Beaumanoir was prefent at those judgments. 4. In other difputes which the lord might have with his vaffal, in respect to the body or honour of the latter, or to goods that did not belong to the fief, there was no room for an appeal of default of justice; because the cause was not tried in the lord's court, but in that of the paramount; Nelle and Joan Countess of Flanders, under the reign of Lewis VIII. He fued her in her own court of Flanders, and fummoned her to give judgment within forty days, and afterwards appealed in default of juftice to the king's court. She answered, he should be judged by his peers in Flanders. The king's court determined that he should not be remanded, and that the countefs fhould be fummoned. *Beaumanoir, chap. 61. p. 312. But he that was neither tenant nor vaffal to the lord, paid only a fine of fixty livres. Ibid. t Ibid. chap. 34. Defontaines, chap. 21. art. 9. * Beaumanoir, chap. 61. p. 34. y Beaumanoir, chap. 61. p. 318. vaffals, vaffals, fays Defontaines z, having no power to give judgment on the body of their lord. I have been at fome trouble to give a clear idea of those things, which are fo obfcure and confufed in old authors, that to draw them from the chaos in which they were involved, may be reckoned a new discovery. Epoch of the reign of St Lewis. ST Lewis abolished the judicial combats in ea te publi of his demefne, as appears by the ordinance a he published on that account, and b by the inftitutions. But he did not fupprefs them in the courts of his barons, except in the cafe of appeal of false judgment. A vaffal could not appeal the court of his lord of falfe judgment, without demanding a judicial combat against the judges who had pronounced fentence. But St Lewis c introduced the practice of appealing of falfe judgment without fighting, a change that may be reckoned a kind of revoJution. He declared a that there fhould be no appeal of falfe judgment in the lordships of his demefne, because it was a crime of felony. In fact, if it was a kind of felony against the lord, by a much stronger reafon it was felony against the king. But he confented they might demand an amendment e of the judgments paffed in his courts; not because they were falfe or iniquitous, but because they did fome prejudice. On the contrary, he ordained, that they should be obliged to make an appeal of falfe judgment against the courts of the barons g, in cafe of any complaint. * As appears every where in the inftitutions, &c. and Beaumanoir, chap. 61. p. 309. z Chap. 21. art. 35. a In the year 1260. b Book 1. chap. 2. & 7. & book 2. chap. 10. & II. c Inftitutions, book 1, chap. 6. & book 2. chap. 15. d Ibid. book 2. chap. 15. e Ibid. book 1. chap. 78. & book 2. chap. 15. ibid, book 1. chap. 78. g lbid, book 2, chap. 15. It It was allowed by the inftitutions, as we have already obferved, to bring an appeal of false judgment against the courts in the king's demesnes. They were obliged to demand an amendment before the fame court; and in cafe the bailiff refused the amendment demanded, the king gave. leave to make an appeal to his court, or rather, interpreting the inftitutions by themfelves, to prefent him a request or petition. With regard to the courts of the lords, St Lewis, by permitting them to be appealed of falfe judgment, would have the cause brought before the royal tribunal, or that of the lord paramount, not to be decided by duel,' but by witnesses, pursuant to a form of proceeding, the rules of which he laid down in the inftitutions '. Thus, whether they could falfify the judgment, as in the courts of the barons, or whether they could not falfify,' as in the courts of his demefne, he ordained that they might appeal without running the hazard of a duel. Defontaines m gives us the two first examples he ever faw, in which they proceeded thus without a legal duel ; one in a caufe tried at the court of St Quintin, which belonged to the king's demefne; and the other in the court of Ponthieu, where the count who was prefent opposed the ancient jurisprudence: but these two caufes were de→ cided by law. Here perhaps it will be afked, why St Lewis ordained for the courts of his barons a different form of proceeding from that which he had established in the courts of his demefne? The reafon is this: When St Lewis made the regulations for the courts of his demefnes, he was not checked or confined in his views but he had measures to keep with the lords who enjoyed this ancient prerogative, that cau fes fhould not be removed from their courts, unless the party was willing to expofe himself to the dangers of an appeal. of falfe judgment. St Lewis preferved the ufage of this But if they wanted to appeal without falfifying the judgment, the appeal was not admitted. Inftitutions, book 2. chap. 15. Inftitutions, book 2. chap. 78. Ibid. chap. 15. *Book. 1. chap. 6. & 47. & book 2. chap. 15. & Beaumanoir, 1 Book 1. chap. 1. 2. & 3. apreal; |