Montesquieu

One appea­led on grounds of default of jus­tice when, in the court of a lord, the dis­pen­sing of jus­tice to the liti­gants was post­po­ned, avoi­ded, or refu­sed.

In the second dynasty, although the count had seve­ral offi­cers under him, their per­son was subor­di­nate, but their juris­dic­tion was not. These offi­cers, in their open courts, assi­zes, or pla­cita, jud­ged in the last resort as the count him­self ; the whole dif­fe­rence lay in the sha­ring of the juris­dic­tion : for exam­ple, the count could sen­tence to death, decide on free­dom or the res­ti­tu­tion of pro­perty,1 and the cen­te­nier could not.

For the same rea­son, there were major cau­ses that were reser­ved to the king2 : they were those that directly concer­ned the poli­ti­cal order. Such were the dis­cus­sions that were bet­ween bishops, abbés, counts and other great lords, which the kings jud­ged with the great vas­sals.3

What some authors have said, that one appea­led from the count to the king’s envoy, or mis­sus dome­ni­cus, is unfoun­ded. The count and the mis­sus had equal juris­dic­tion, inde­pen­dent of each other4 ; the whole dif­fe­rence was that the mis­sus held his pla­cita four months of the year, and the count the eight others.5

If someone sen­ten­ced in an assize6 asked there to be retried, and again lost, he paid a fine of fif­teen sous, or recei­ved fif­teen blows at the hands of the jud­ges who had deci­ded the case.7

When the counts or the king’s envoys did not feel strong enough to bring the great lords to rea­son, they would have them give bail that they would come before the king’s tri­bu­nal, to try the mat­ter, and not to retry it.8 I find in the capi­tu­lary of Metz the appeal for false judg­ment to the esta­bli­shed court of the king, and all other sorts of appeals ban­ned and puni­shed.9

If they did not acquiesce to the judg­ment of the échevins,10 and if they made no pro­test, they were impri­so­ned until they had acquies­ced ; and if they pro­tes­ted, they were conduc­ted under secure guard before the king, and the mat­ter was argued at his court.

It could hardly be a mat­ter of appeal for default of jus­tice. For far from it being the cus­tom in those times of objec­ting that the counts and others who were entit­led to hold assi­zes did not hold their court fai­th­fully, they objec­ted on the contrary that they were too fai­th­ful11 ; and there are ordi­nan­ces eve­ryw­here for­bid­ding the counts and other offi­cers of jus­tice what­soe­ver from hol­ding more than three assi­zes per year. The pro­blem was less to cor­rect their negli­gence than to halt their acti­vity.

But when a count­less num­ber of petty sei­gnio­ries came into being, and dif­fe­rent degrees of vas­sa­lage were ins­ti­tu­ted, the negli­gence of cer­tain vas­sals in hol­ding their court gave birth to these sorts of appeals,12 all the more so that consi­de­ra­ble fines flo­wed from them to the over­lord.

With the prac­tice of judi­cial com­bat exten­ding far­ther and far­ther, there were pla­ces, cases, and times when it was dif­fi­cult to assem­ble the peers, and where conse­quently they neglec­ted to dis­pense jus­tice. The appeal for default of jus­tice was intro­du­ced, and these sorts of appeals have often been nota­ble points in our his­tory, because most of the wars of those times were impu­ted to the vio­la­tion of poli­ti­cal law, as the cause or pre­text of our wars today is usually the vio­la­tion of the law of nations.

Beaumanoir says that in the case of default of jus­tice, there was never a bat­tle13 : here are the rea­sons. The lord him­self could not be chal­len­ged to com­bat because of the res­pect due to his per­son ; the lord’s peers could not be chal­len­ged, because the thing was clear, and you could just count the days of the sum­mon­ses or other delays : there was no ver­dict and one could belie only a ver­dict ; finally, the crime of the peers offen­ded the lord as well as the plain­tiff, and it was contrary to order that there should be a com­bat bet­ween the lord and his peers.

But since before the suze­rain tri­bu­nal the default was pro­ven by wit­nes­ses, it was pos­si­ble to chal­lenge the wit­nes­ses to com­bat, and the­reby offend either the lord or his tri­bu­nal.14

In cases where the default was due to the vas­sals or peers of the lord who had defer­red the dis­pen­sing of jus­tice or avoi­ded hol­ding the trial after the dead­li­nes were past, it was the lord’s peers who were chal­len­ged before the over­lord for default of jus­tice ; and if they were defea­ted, they paid a fine to their lord.15 He could do nothing to help his men ; on the contrary, he would seize their fief until each of them had paid him a fine of sixty livres.

2nd. When the default was due to the lord, which hap­pe­ned when there were not enough men in his court to hold a trial, or when he had not assem­bled his men or put someone in his place to assem­ble them, one peti­tio­ned for default before the over­lord ; but because of the res­pect due to the lord, it was the plain­tiff who was sum­mo­ned, and not the lord.16

The lord would demand his court before the suze­rain tri­bu­nal, and if he won the appeal, the case was sent back to him, and he was paid a fine of sixty livres17 ; but if the default was pro­ven, the penalty against him was to lose the judg­ment of the thing contes­ted18 ; the sub­stance was jud­ged in the suze­rain tri­bu­nal ; indeed, that was the whole rea­son for peti­tio­ning for the default.

3rd. If one plea­ded against one’s lord in his court,19 which hap­pe­ned only for mat­ters that concer­ned the fief, after allo­wing all the delays to pass, one sub­poe­naed the lord him­self before good per­sons, and had him sub­poe­naed by the sove­reign, which requi­red per­mis­sion.20 The sum­mons was not made by peers, because peers could not sum­mon their lord ; but they could sum­mon21 for their lord.

Sometimes22 the appeal for default of jus­tice was fol­lo­wed by an appeal of false judg­ment when the lord, des­pite the default, had had the ver­dict pro­noun­ced.

The vas­sal who wron­gly chal­len­ged his lord for default of jus­tice was sen­ten­ced to pay him a fine at his plea­sure.23

The peo­ple of Ghent had chal­len­ged the count of Flanders before the king for default of jus­tice, because he had put off hol­ding the trial in his court.24 As it hap­pe­ned, he had taken fewer delays than the cus­tom of the coun­try allo­wed. The dele­ga­tes from Ghent were sent back to him ; he had as much as sixty thou­sand livres’ worth of their pro­per­ties sei­zed. They retur­ned to the king’s court to have this fine mode­ra­ted ; it was deci­ded that the count could take this fine, and even more, if he wished. Beaumanoir had atten­ded these hea­rings.

4th. In the dis­pu­tes which the lord could have against the vas­sal for rea­son of his body or honor, or the pro­perty which did not belong to the fief, there was no pos­si­bi­lity of appeal for default of jus­tice, since they did not judge at the lord’s court but at the court of the man from whom he held it, men accor­ding to Défontaines having no right to make a jud­ge­ment on the body of their lord.25

I have stri­ven to give a clear notion of these things, which in the wri­ters of those times are so confu­sed and so obs­cure that in truth to extract them from the chaos they are in is to dis­co­ver them.

Capitulary III of the year 812, art. 3, ed. Baluze, p. 497, and of Charles the Bald, appended to the Leges Langobardoroum, book II, art. 3.

Capitulary III of the year 812, art. 2, ed. Baluze, p. 497.

Cum fidelibus : capitulary of Louis the Debonaire, Baluze ed., p. 667.

See capitulary of Charles the Bald appended to Leges Langobardoroum, book II, art. 3.

Capitulary III of the year 812, art. 8.

Placitum.

Capitulary appended to Leges Langobardoroum, book II, tit. 59.

That appears from the formulas, charters and capitularies.

Of the year 757, ed. Baluze, p. 180, art. 9 and 10, and the Synode apud Vernas, of year 755, art. 29, ed. Baluze, p. 175. These two capitularies were made under king Pépin.

Officiers under count Scabini.

See Leges Langobardoroum, book II, tit. 52, art. 22.

Appeals for default of justice are seen as early as the time of Philip Augustus.

Ch. lxi, p. 315.

Beaumanoir, ch. lxi, p. 315.

Défontaines, ch. xxi, art. 24.

Défontaines, ch. xxi, art. 32.

Beaumanoir, ch. lxi, p. 312.

Défontaines, ch. xxi, art. 29.

This was the case of the famous quarrel between Sir de Nelle and Jeanne, countess of Flanders, in the reign of Louis VIII. He sued her in her court in Flanders ; he summoned her to hold a trial in forty days, and then appealed for default of justice to the king’s court. She replied that she would have him judged by the peers in Flanders. The king’s court pronounced that he would not be sent back, and that the countess would be summoned.

Défontaines, ch. xxi, art. 34.

Ibid., art. 9.

Beaumanoir, ch. lxi, p. 311.

Ibid., p. 312. But he who was neither a man nor a tenant of the lord paid him only a fine of 60 livres (ibid.).

Ibid., p. 318.

Ch. xxi, art. 35.