Appeal of false Judgment. As the nature of judicial
combats was to terminate the affair for ever, and was incompatible with
a new judgment and new prosecutions,
[167]
an appeal, such as is
established by the Roman and Canon laws, that is, to a superior court in
order to rejudge the proceedings of an inferior, was a thing unknown in
France.
This is a form of proceeding to which a warlike nation, governed
solely by the point of honour, was quite a stranger; and agreeably to
this very spirit, the same methods were used against the judges as were
allowed against the parties.
[168]
An appeal among the people of this nation was a challenge to fight
with arms, a challenge to be decided by blood; and not that invitation
to a paper quarrel, the knowledge of which was reserved for succeeding
ages.
Thus St. Louis, in his Institutions,
[169]
says that an appeal
includes both felony and iniquity. Thus Beaumanoir tells us that if a
vassal wanted to make his complaint of an outrage committed against him
by his lord,
[170]
he was first obliged to announce that he quitted his
fief; after which he appealed to his lord paramount, and offered pledges
of battle, In like manner the lord renounced the homage of his vassal,
if he challenged him before the count.
For a vassal to challenge his lord of false judgment was as much as
to say to him that his sentence was unjust and malicious; now to utter
such words against his lord was in some measure committing the crime of
felony.
Hence, instead of bringing a challenge of false judgment against the
lord who appointed and directed the court, they challenged the peers of
whom the court itself was formed, by which means they avoided the crime
of felony, for they insulted only their peers, with whom they could
always account for the affront.
It was a very dangerous thing to challenge the peers of false
judgment.
[171]
If the party waited till judgment was pronounced, he was
obliged to fight them all when they offered to make good their
judgment.
[172]
If the appeal was made before all the judges had given
their opinion, he was obliged to fight all who had agreed in their
judgment. To avoid this danger, it was usual to petition the lord to
direct that each peer should give his opinion aloud;
[173]
and when the
first had pronounced, and the second was going to do the same, the party
told him that he was a liar, a knave and a slanderer, and then he had to
fight only with that peer.
Dfontaines
[174]
would have it that, before a challenge was made of
false judgment, it was customary to let three judges pronounce; and he
does not say that it was necessary to fight them all three; much less
that there was any obligation to fight all those who had declared
themselves of the same opinion. These differences arose from this, that
in those times there were few usages exactly in all parts the same;
Beaumanoir gives an account of what passed in the county of Clermont;
and Dfontaines of what was practised in Vermandois.
When one of the peers or a vassal had declared that he would
maintain the judgment, the judge ordered pledges of battle to be given,
and likewise took security of the challenger that he would maintain his
case.
[175]
But the peer who was challenged gave no security, because he
was the lord's vasal, and was obliged to defend the challenge, or to pay
the lord a fine of sixty livres.
If he who challenged did not prove that the judgment was bad,
[176]
he paid the lord a fine of sixty livres, the same fine to the peer whom
he had challenged, and as much to every one of those who had openly
consented to the judgment.
[177]
When a person, strongly suspected of a capital crime, had been taken
and condemned, he could make no appeal of false judgment:
[178]
for he
would always appeal either to prolong his life, or to get an absolute
discharge.
If a person said that the judgment was false and bad and did not
offer to prove it so, that is, to fight, he was condemned to a fine of
ten sous if a gentleman, and to five sous if a bondman, for the
injurious expressions he had uttered.
[179]
The judges or peers who were overcome forfeited neither life nor
limbs,
[180]
but the person who challenged them was punished with death,
if it happened to be a capital crime.
[181]
This manner of challenging the vassals with false judgment was to
avoid challenging the lord himself. But if the lord had no peers,
[182]
or had not a sufficient number, he might at his own expense borrow peers
of his lord paramount;
[183]
but these peers were not obliged to
pronounce judgment if they did not like it; they might declare that they
were come only to give their opinion: in that particular case, the lord
himself judged and pronounced sentence as judge;
[184]
and if an appeal
of false judgment was made against him, it was his business to answer to
the challenge.
If the lord happened to be so very poor as not to be able to hire
peers of his paramount,
[185]
or if he neglected to ask for them, or the
paramount refused to give them, then, as the lord could not judge by
himself, and as nobody was obliged to plead before a tribunal where
judgment could not be given, the affair was brought before the lord
paramount.
This, I believe, was one of the principal causes of the separation
between the jurisdiction and the fief, whence arose the maxim of the
French lawyers, "The fief is one thing, and the jurisdiction is
another." For as there were a vast number of peers who had no
subordinate vassals under them, they were incapable of holding their
court; all affairs were then brought before their lord paramount, and
they lost the privilege of pronouncing judgment, because they had
neither power nor will to claim it.
All the judges who had been at the judgment were obliged to be
present when it was pronounced, that they might follow one another, and
say aye to the person who, wanting to make an appeal of false judgment,
asked them whether they followed;
[186]
for Dfontaines says
[187]
that it
is an affair of courtesy and loyalty, and there is no such thing as
evasion or delay. Hence, I imagine, arose the custom still followed in
England of obliging the jury to be all unanimous in their verdict in
cases relating to life and death.
Judgment was therefore given, according to the opinion of the
majority; and if there was an equal division, sentence was pronounced,
in criminal cases, in favour of the accused; in cases of debt, in favour
of the debtor; and in cases of inheritance, in favour of the defendant.
Dfontaines observes
[188]
that a peer could not excuse himself by
saying that he would not sit in court if there were only four,
[189]
or
if the whole number, or at least the wisest part, were not present. This
is just as if he were to say, in the heat of an engagement, that he
would not assist his lord because he had not all his vassals with him.
But it was the lord's business to cause his court to be respected, and
to choose the bravest and most knowing of his tenants. This I mention,
in order to show the duty of vassals, which was to fight, and to give
judgment: and such, indeed, was this duty, that to give judgment was all
the same as to fight.
It was lawful for a lord, who went to law with his vassal in his own
court, and was cast, to challenge one of his tenants with false
judgment. But as the latter owed a respect to his lord for the fealty he
had vowed, and the lord, on the other hand, owed benevolence to his
vassal for the fealty accepted, it was customary to make a distinction
between the lord's affirming in general that the judgment was false and
unjust,
[190]
and imputing personal prevarications to his tenant.
[191]
In
the former case he affronted his own court, and in some measure himself,
so that there was no room for pledges of battle. But there was room in
the latter, because he attacked his vassal's honour; and the person
overcome was deprived of life and property, in order to maintain the
public tranquillity.
This distinction, which was necessary in that particular case, had
afterwards a greater extent. Beaumanoir says that when the challenger of
false judgment attacked one of the peers by personal imputation, battle
ensued; but if he attacked only the judgment, the peer challenged was at
liberty to determine the dispute either by battle or by law.
[192]
But as
the prevailing spirit in Beaumanoir's time was to restrain the usage of
judicial combats, and as this liberty, which had been granted to the
peer challenged, of defending the judgment by combat or not is equally
contrary to the ideas of honour established in those days, and to the
obligation the vassal lay under of defending his lord's jurisdiction, I
am apt to think that this distinction of Beaumanoir's was a novelty in
French jurisprudence.
I would not have it thought that all appeals of false judgment were
decided by battle; it fared with this appeal as with all others. The
reader may recollect the exceptions mentioned in the 25th chapter. Here
it was the business of the superior court to examine whether it was
proper to withdraw the pledges of battle or not.
There could be no appeal of false judgment against the king's court,
because, as there was no one equal to the king, no one could challenge
him; and as the king had no superior, none could appeal from his court.
This fundamental regulation, which was necessary as a political law,
diminished also as a civil law the abuses of the judicial proceedings of
those times. When a lord was afraid that his court would be challenged
with false judgment, or perceived that they were determined to
challenge, if the interests of justice required that it should not be
challenged, he might demand from the king's court men whose judgment
could not be set aside.
[193]
Thus King Philip, says Dfontaines,
[194]
sent his whole council to judge an affair in the court of the Abbot of
Corbey.
But if the lord could not have judges from the king, he might remove
his court into the king's, if he held immediately of him; and if there
were intermediate lords, he had recourse to his suzerain, removing from
one lord to another till he came to the sovereign.
Thus, notwithstanding they had in those days neither the practice
nor even the idea of our modern appeals, yet they had recourse to the
king, who was the source whence all those rivers flowed, and the sea
into which they returned.
