28.35. 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.
The custom of appeals naturally introduced that of giving costs.
Thus Dfontaines says,
[258]
that when they appealed by written law, that
is, when they followed the new laws of St. Louis, they gave costs; but
that in the ordinary practice, which did not permit them to appeal
without falsifying the judgment, no costs were allowed. They obtained
only a fine, and the possession for a year and a day of the thing
contested, if the cause was remanded to the lord.
But when the number of appeals increased from the new facility of
appealing;
[259]
when by the frequent usage of those appeals from one
court to another, the parties were continually removed from the place of
their residence; when the new method of procedure multiplied and
prolonged the suits; when the art of eluding the very justest demands
became refined; when the parties at law knew how to fly only in order to
be followed; when plaints were ruinous and defence easy; when the
arguments were lost in whole volumes of words and writings; when the
kingdom was filled with limbs of the law, who were strangers to justice;
when knavery found encouragement at the very place where it did not find
protection; then it was necessary to deter litigious people by the fear
of costs. They were obliged to pay costs for the judgment and for the
means they had employed to elude it. Charles the Fair made a general
ordinance on that subject.
[260]
Footnotes
[257]
Defontaines in his counsel, chapter 22, arts. 3, 8; and
Beaumanoir, 33. "Institutions," i. 90.
[258]
Chapter 22, art. 8.
[259]
At present when they are so inclined to appeal, says Boutillier
-- "Somme Rurale," book i, tit. 3, p. 16, Paris, 1621.
