Judicial Combats and Appeal of false Judgment

March 15, 2020

Judicial combats ended the affair forever. It was incompatible with a new judgment, and new prosecutions. This made appeals unknown in France. Appeals were established by the Roman and Canon laws to a superior court, in order to re-judge the proceedings of an inferior court.

Appeals were strange to a warlike nation entirely governed by honour.

An appeal among the Franks was a challenge to fight with arms, a challenge decided by blood, and not by an invitation to a paper quarrel.

Thus, St. Lewis in his Institutions 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, he was first obliged to denounce that he quitted his fief. After which, he appealed to his lord paramount, and offered pledges of battle. Similarly, the lord renounced the homage of his vassal, if he appealed him before the count.

A vassal to appeal his lord of false judgment, was telling 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 an appeal of false judgment against the lord, who appointed and directed the court, they appealed 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 appeal the peers of false judgment. If the party waited till judgment was pronounced, he was obliged to fight them all, when they offered to make good their judgment. 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 out loud; 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.

Défontaines would have it, that before an appeal was made of false judgment, it was customary to let three judges pronounce;

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 arise from this, that there are few usages exactly in all parts the same; Beaumanoir gives an account of what passed in the county of Clermont; and Défontaines of what was practised in Vermandois.

When one of the peers had declared that he would maintain the judgment, the judge ordered pledges of battle to be given, and likewise took security of the appellant, that he would maintain his appeal.

But the peer who was appealed gave no security, because he was the lord’s vassal, and was obliged to defend the appeal, or to pay the lord a fine of 60 livres.

If the appellant did not prove that the judgment was false, he paid the lord a fine of sixty livres, the same fine to the peer whom he had appealed, and as much to every one of those who had openly consented to the judgment.

When a person violently suspected of a capital crime, had been taken and condemned, he could make no appeal of false judgment= 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 make his words good, that is to fight, he was condemned to a fine of six sous, if a gentleman, and to five sous, if a bondman, for the injurious expressions he had uttered.

The judges or peers who were overcome, forfeited neither life nor limbs; but the person who appealed them was punished with death, if it happened to be a capital crime.

This manner of appealing the peers of false judgment, was to avoid appealing to the lord himself. If the lord had no peers, or had not a sufficient number, he might, at his own expence, hire peers of his lord paramount; 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 pronounced sentence as judge; and if an appeal of false judgment was made against him, it was his business to stand the appeal.

If the lord happened* to be so very poor as not to be able to hire peers of his paramount, or if he neglected to ask for them, or the paramount refused to give them, then 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, from whence arose that maxim of the French lawyers, “The fief is one thing, and the jurisdiction another.”

For as there was 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 peers who had agreed to the judgment, were obliged to be present when it was pronounced, that they might follow one another, and sayYes to the person who, wanting to make an appeal of false judgment, asked them whether they followed; for Défontaines says, “that it is an affair of courtesy and loyalty, and there is no such thing as evasion or delay.” From 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=

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.

Défontaines observes, that a peer could not excuse himself by saying that he would not sit in court if there were only four, 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 chuse the bravest and most knowing of his tenants. This I mention in order to shew the duty of vassals, which was to fight and to give judgment; 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 appeal one of his tenants of 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, and imputing personal prevarications to his tenant. 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 tranquility.

This distinction, which was necessary in that particular case, had afterwards a greater extent. Beaumanoir says, that when the appellant of false judgment attacked one of the peers by personal imputation, battle ensued;

but if he attacked only the judgment, the peer appealed was at liberty to determine the dispute either by battle, or by law. But as the prevailing spirit in Beaumanoir’s time was to restrain the usage of judicial combats as this liberty which had been granted to the peer appealed, 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 owing to a new regulation among the French.

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 appeal 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 appealed of false judgment, or perceived that they were determined to appeal; if justice required there should be no appeal, he might petition for peers from the king’s court, who could not be appealed of false judgment. Thus king Philip, says Défontaines, sent his whole council to judge an affair in the court of the Abbot of Corbey.

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=

But if there were intermediate lords, he had recourse to his paramount, removing from one lord to another, till he came to the sovereign.

Thus, notwithstanding they had not in those days neither the practice or even the idea of our modern appeals, yet they had recourse to the king, who was the source from whence all those rivers flowed, and the sea into which they returned.


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