Montesquieu

Once there was in France no sen­ten­cing for costs in lay court.1 The party that lost was puni­shed enough by having to pay fines to the lord and his peers. Because of the pro­ce­dure by judi­cial com­bat, in cri­mes the party that suc­cum­bed and lost life and pro­perty was puni­shed as much as he could be ; and in other cases of judi­cial com­bat there were fines, some­ti­mes fixed and some­ti­mes depen­dent on the lord’s will, which made the out­co­mes of trials fea­red enough. This was also true in cases that were deci­ded only by com­bat. As it was the lord who had the prin­ci­pal pro­fits, it was also he who cove­red the prin­ci­pal costs, either to assem­ble his peers, or to put them in a posi­tion to pro­ceed to judg­ment. Besides, with mat­ters ending in the very place and almost always promptly, and without the infi­nite num­ber of wri­tings intro­du­ced later, it was not neces­sary to award costs to the par­ties.

It is the prac­tice of appeals that ought natu­rally to intro­duce that of awar­ding costs. Thus does Défontaines say that, when one appea­led by writ­ten law, in other words when they were fol­lo­wing the new laws of St. Louis, they awar­ded costs2 ; but that in ordi­nary prac­tice, which did not allow one to chal­lenge without impea­ching, there were none ; one obtai­ned only a fine, and the pos­ses­sion for a year and a day of the item contes­ted, if the mat­ter was reman­ded to the lord.

But when new kinds of access to appeal increa­sed the num­ber of appeals3 ; when by the fre­quent prac­tice of these appeals from one tri­bu­nal to ano­ther, the par­ties were cons­tantly trans­por­ted out­side their place of abode ; when the new art of pro­ce­dure mul­ti­plied suits and drag­ged them out ; when the science of elu­ding the most just of demands had been refi­ned ; when a party lear­ned to flee solely in order to be fol­lo­wed ; when the demand was rui­nous and the defense tran­quil ; when the rea­sons got lost in volu­mes of words and wri­tings ; when there were subor­di­na­tes of jus­tice eve­ryw­here who were not there to dis­pense jus­tice ; when bad faith found coun­sel where it did not find sup­port, it was really neces­sary to stop plain­tiffs with the fear of costs. They had to pay them, for the deci­sion and for the means they had used to elude it. Charles the Fair issued a gene­ral ordi­nance on that sub­ject.4

Défontaines in his Conseil, ch. xxii, art. 3 and 8, and Beaumanoir, ch. xxxiii. Establishements, book I, ch. xc.

Ch. xxii, art. 8.

Now that one is so inclined to appeal, says Boutillier, Somme rurale, book I, tit. 3, p. 16.

In 1324.