How the Proceedings at Law Became Secret and Incur Costs

DUELS had introduced a public form of proceeding. Beaumanoir says:

Boutillier’s commentator says that he had learned of ancient practitioners and from some old manuscript law books that criminal processes were anciently done in public similar to the public judgments of the Romans.

This was because they did not know how to write. Writing fixes the ideas, and preserves the secret.

Without writing, uncertainty might easily arise in what had been tried by vassals. They could therefore refresh their memory everytime they held a court through ‘proceedings on record’. In that case, it was not allowed to challenge the witnesses to combat for then there would be no end of disputes.

In time, a secret form of proceeding was introduced. 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 says this change to the ordinance happened in 1539.

I 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. Lewis was improved.

Beaumanoir says 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.

Chapter 35: Costs

In the past, no one was condemned in the temporal courts of France to the payment of costs

The party cast was 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 expence, either to assemble his peers, or to enable them to proceed to judgment.

Besides, as disputes were generally determined on the spot, and 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 Défontaines says, that when they appealed by written law, that is when they followed the new laws of St. Lewis, they gave costs; but that in the usual custom, 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.

The number of suits increased from the new facility of appealing in different courts. These caused the parties to continually move from the place of their residence.

When the new method of proceeding multiplied and perpetuated the suits; when

The art of eluding the very justest demands was refined when:

• the parties at law knew how to fly only in order to be followed
• actions proved destructive, and pleas easy
• the arguments were lost in whole volumes of writings
• the kingdom was filled with members of the law, who were strangers to justice; when knavery found encouragement from mean practitioners, though discountenanced by the law; then it was necessary to deter litigious people by the fear of costs.

They were obliged to pay costs for:

• the judgment
• the means used to elude it.

Charles the Fair made a general ordinance on that subject.