27. Of the judicial Combat between one of the Parties and one of the Lords' Peers. Appeal of false Judgment. As the nature of judicialcombats 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.



　　D嶨ontaines[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 D嶨ontaines 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 subordinatevassals 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 D嶨ontaines 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.



　　D嶨ontaines 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 judicialcombats, 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 judicialproceedings 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 D嶨ontaines,[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.

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