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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。
Défontaines 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 judicial combats； 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 judicial proceedings 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 Défontaines；＇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。
28。 Of the Appeal of Default of Justice。 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 officers 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。＇195＇
For the same reason there were greater cases which were reserved to the king； namely； those which directly concerned the political order of the state。＇196＇ Such were the disputes between bishops； abbots； counts； and other grandees； which were determined by the king together with the great vassals。＇197＇
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。＇198＇ The whole difference was that the Missus held his Placita； or assizes； four months in the year；＇199＇ 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。＇200＇
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＇201＇ 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＇202＇ 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＇203＇ 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；＇204＇ 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 forbidden 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；＇205＇ 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 era 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 laws of nations。
Beaumanoir says＇206＇ that； in case of default of justice； battle was not allowed： the reasons are these： 1。 They could not challenge the lord himself； 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 judgment： 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；＇207＇ 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； who had delayed to administer justice； or had avoided giving 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。＇208＇ 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。
2。 When the default was owing to the lord； which was the case whenever there happened not to be a sufficient number of peers in hi