The Appeal of Default of JusticeMarch 14, 2020
THE appeal of default of justice was when the court of a particular lord deferred, evaded, or refused to do justice to the parties.
During the time of our princes of the second race, though the count had several offices under him, their person was subordinate, but not their jurisdiction. These officers in their court-days, assizes, or placita, gave judgment in the last resort as the count himself; all the difference consisted in the division of the jurisdiction. For instance, the count had* the power of condemning to death, of judging of liberty, and of the restitution of goods, which the centenarii had not.
For the same reason there were higher causes† reserved to the king; namely, those which directly concerned the political order of the state. Such were the disputes between bishops, abbots, counts, and other grandees, which were determined by the king, together with the great vassals‡.
What some authors have advanced; namely, that an appeal lay from the count to the king’s commissary or missus dominicus, is not well grounded. The count and the missus had an equal jurisdiction∥ independent of each other= The whole difference§ was that the missus held his placita or assizes four months in the year, and the count the other eight.
If a person who had been condemned at an assize**, demanded to have his cause tried over again, and was afterwards cast, he paid a fine of fifteen sous, or received fifteen blows from the judges who had decided the affair.
When the counts or the king’s commissaries did not find themselves able to bring the great lords to reason, they made them give bail or security†, that they would appear in the king’s court= this was to try the cause, and not to rejudge it. I find in the capitulary of Metz‡, a law by which the appeal of false judgment to the king’s court is established, and all other kinds of appeal are proscribed and punished.
If they refused to submit to the judgment of the sheriffs∥, and made no complaint, they were imprisoned till they had submitted= but if they complained, they were conducted under a proper guard before the king, and the affair was examined in his court.
There could be hardly any room then for an appeal of default of justice. For instead of its being usual in those days to complain, that the counts and others who had a right of holding assizes, were not exact in discharging this duty§; it was a general complaint that they were too exact. Hence we find such numbers of ordinances, by which the counts and all other officers of justice are forbid to hold their assizes above thrice a year. It was not so necessary to chastise their indolence, as to check their activity.
But, after an infinite number of petty lordships had been formed, and different degrees of vassalage established, the neglect of certain vassals in holding their courts gave rise to this kind of appeal*; especially as very considerable profits accrued to the lord paramount from the several fines.
As the custom of judicial combats gained every day more ground, there were places, cases, and times,  in which it was difficult to assemble the peers, and consequently in which justice was delayed. The appeal of default of justice was therefore introduced, an appeal that has been often a remarkable æra in our history; because most of the wars of those days were imputed to a violation of the political law; as the cause, or at least the pretence of our modern wars, is the infringement of the law of nations.
Beaumanoir says, that in case of default of justice, battle was not allowed= the reasons are these, 1. they could not challenge the lord, because of the respect due to his person; neither could they challenge the lord’s peers, because the case was clear, and they had only to reckon the days of the summons, or of the other delays; there had been no judgment passed, consequently there could be no appeal of false judgement= in fine, the crime of the peers offended the lord as well as the party, and it was against rule that there should be battle between the lord and his peers.
But‡ as the default was proved by witnesses before the superior court; the witnesses might be challenged, and then neither the lord nor his court were offended.
In case the default was owing to the lord’s tenants or peers by deferring justice or by evading judgment after past delays, then these peers were appealed of default of justice before the paramount; and if they were cast, they∥ paid a fine to their lord. The latter could not give them any assistance; on the contrary, he seized their fief till they had each paid a fine of sixty livres.
- When the default was owing to the lord, which was the case whenever there happened not to be a  sufficient number of peers in his court to pass judgment, or when he had not assembled his tenants or appointed somebody in his room to assemble them, an appeal might be made of the default before the lord paramount; but then the party‡ and not the lord was summoned, because of the respect due to the latter.
The lord demanded to be tried before the paramount, and if he was acquitted of the default, the cause was remanded to him, and he was likewise paid a fine of∥ sixty livres. But if the default was proved, the penalty§ inflicted on him was to lose the trial of the cause, which was to be then determined in the superior court. And indeed, the complaint of default was made with no other view.
- If the lord was sued* in his own court, which never happened but upon disputes relative to the fief; after letting all the delays pass, the lord himself† was summoned before the peers in the sovereign’s name, whose permission was necessary on that occasion. The peers did not make the summons in their own name, because they could not summon their lord, but they could summon** for their lord.
Sometimes, the appeal of default of justice was followed by an appeal of false judgment, when the lord had caused judgment to be passed, notwithstanding the default.
The vassal§ who had wrongfully appealed his lord of default of justice, was sentenced to pay a fine according to his lord’s pleasure.
The inhabitants of Gaunt†† had appealed the earl of Flanders of default of justice before the king, for having delayed to give judgment in his own court. Upon examination it was found, that he had used fewer delays than even the custom of the country allowed. They were therefore remanded to him; upon which their effects to the value of sixty thousand livres were seized. They returned to the king’s court in order to have the fine moderated; but it was decided that the earl might insist upon the fine, and even upon more if he pleased. Beaumanoir was present at those judgments.
- In other disputes which the lord might have with his vassal, in respect to the body or honour of the latter, or to goods that did not belong to the fief, there was no room for an appeal of default of justice; because the cause was not tried in the lord’s court, but in that of the paramount= vassals, says Défontaines*, having no power to give judgment on the body of their lord.
I have been at some trouble to give a clear idea of those things, which are so obscure and confused in ancient authors, that to disentangle them from the chaos in which they were involved, may be reckoned a new discovery.