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ourts of their lords； and the villains should not； hence the parliament received their appeals all the same as those of freemen。
32。 The same Subject continued。 When a challenge of false judgment was brought against the lord's court； the lord appeared in person before his paramount to defend the judgment of his court。 In like manner； in the appeal of default of justice； the party summoned before the lord paramount brought his lord along with him； to the end that if the default was not proved； he might recover his jurisdiction。＇245＇
In process of time as the practice observed in these two particular cases became general； by the introduction of all sorts of appeals； it seemed very extraordinary that the lord should be obliged to spend his whole life in strange tribunals； and for other people's affairs。 Philip of Valois ordained＇246＇ that none but the bailiffs should be summoned； and when the usage of appeals became still more frequent； the parties were obliged to defend the appeal： the deed of the judge became that of the party。＇247＇
I took notice that in the appeal of default of justice；＇248＇ the lord lost only the privilege of having the cause tried in his own court。 But if the lord himself was sued as party；＇249＇ which became a very common practice；＇250＇ he paid a fine of sixty livres to the king； or to the paramount； before whom the appeal was brought。 Thence arose the usage； after appeals had been generally received； of making the fine payable to the lord upon the reversal of the sentence of his judge； a usage which lasted a long time； and was confirmed by the ordinance of Rousillon； but fell； at length； to the ground through its own absurdity。
33。 The same Subject continued。 In the practice of judicial combats； the person who had challenged one of the judges of false judgment might lose his cause by the combat； but could not possibly gain it。＇251＇ And； indeed； the party who had a judgment in his favour ought not to have been deprived of it by another man's act。 The appellant； therefore； who had gained the battle was obliged to fight likewise against the adverse party： not in order to know whether the judgment was good or bad （for this judgment was out of the case； being reversed by the combat）； but to determine whether the demand was just or not； and it was on this new point they fought。 Thence proceeds our manner of pronouncing decrees； 〃The court annuls the appeal； the court annuls the appeal and the judgment against which the appeal was brought。〃 In effect； when the person who had made the challenge of false judgment happened to be overcome； the appeal was reversed： when he proved victorious； both the judgment and the appeal were reversed； then they were obliged to proceed to a new judgment。
This is so far true that； when the cause was tried by inquests； this manner of pronouncing did not take place： witness what M。 de la Roche Flavin says；＇252＇ namely； that the chamber of inquiry could not use this form at the beginning of its existence。
34。 In what Manner the Proceedings at Law became secret。 Duels had introduced a public form of proceeding； so that both the attack and the defence were equally known。 〃The witnesses；〃 says Beaumanoir；＇253＇ 〃ought to give their testimony in open court。〃
Boutillier's commentator says he had learned of ancient practitioners； and from some old manuscript law books； that criminal processes were anciently carried on in public； and in a form not very different from the public judgments of the Romans。 This was owing to their not knowing how to write； a thing in those days very common。 The usage of writing fixes the ideas； and keeps the secret； but when this usage is laid aside； nothing but the notoriety of the proceeding is capable of fixing those ideas。
And as uncertainty might easily arise in respect to what had been adjudicated by vassals； or pleaded before them； they could； therefore； refresh their memory＇254＇ every time they held a court by what were called proceedings on record。＇255＇ In that case； it was not allowed to challenge the witnesses to combat； for then there would be no end of disputes。
In process of time a private form of proceeding was introduced。 Everything before had been public； everything now became secret； the interrogatories； the informations； the re…examinations； the confronting of witnesses； the opinion of the attorney…general； and this is the present practice。 The first form of proceeding was suitable to the government of that time； as the new form was proper to the government since established。
Boutillier's commentator fixes the epoch of this change to the ordinance in the year 1539。 I am apt to believe that the change was made insensibly； and passed from one lordship to another； in proportion as the lords renounced the ancient form of judging； and that derived from the Institutions of St。 Louis was improved。 And indeed； Beaumanoir says＇256＇ that witnesses were publicly heard only in cases in which it was allowed to give pledges of battle： in others they were heard in secret； and their depositions were reduced to writing。 The proceedings became； therefore； secret； when they ceased to give pledges of battle。
35。 Of the Costs。 In former times no one was condemned in the lay courts of France to the payment of costs。＇257＇ The party cast was sufficiently punished by pecuniary fines to the lord and his peers。 From the manner of proceeding by judicial combat it followed； that the party condemned and deprived of life and fortune was punished as much as he could be： and in the other cases of the judicial combat； there were fines sometimes fixed； and sometimes dependent on the disposition of the lord； which were sufficient to make people dread the consequences of suits。 The same may be said of causes that were not decided by combat。 As the lord had the chief profits； so he was also at the chief expense； either to assemble his peers； or to enable them to proceed to judgment。 Besides； as disputes were generally determined at the same place； and almost always at the same time； without that infinite multitude of writings which afterwards followed； there was no necessity of allowing costs to the parties。
The custom of appeals naturally introduced that of giving costs。 Thus Défontaines says；＇258＇ that when they appealed by written law； that is； when they followed the new laws of St。 Louis； they gave costs； but that in the ordinary practice； which did not permit them to appeal without falsifying the judgment； no costs were allowed。 They obtained only a fine； and the possession for a year and a day of the thing contested； if the cause was remanded to the lord。
But when the number of appeals increased from the new facility of appealing；＇259＇ when by the frequent usage of those appeals from one court to another； the parties were continually removed from the place of their residence； when the new method of procedure multiplied and prolonged the suits； when the art of eluding the very justest demands became refined； when the parties at law knew how to fly only in order to be followed； when plaints were ruinous and defence easy； when the arguments were lost in whole volumes of words and writings； when the kingdom was filled with limbs of the law； who were strangers to justice； when knavery found encouragement at the very place where it did not find protection； then it was necessary to deter litigious people by the fear of costs。 They were obliged to pay costs for the judgment and for the means they had employed to elude it。 Charles the Fair made a general ordinance on that subject。＇260＇
36。 Of the public Prosecutor。 As by the Salic； Ripuarian； and other barbarous laws； crimes were punished with pecuniary fines； they had not in those days； as we have at present； a public officer who had the care of criminal prosecutions。 And； indeed； the issue of all causes being reduced to the reparation of injuries； every prosecution was in some measure civil； and might be managed by any one。 On the other hand； the Roman law had popular forms for the prosecution of crimes which were inconsistent with the functions of a public prosecutor。
The custom of judicial combats was no less opposite to this idea； for who is it that would choose to be a public prosecutor and to make himself every man's champion against all the world？
I find in the collection of formulas； inserted by Muratori in the laws of the Lombards； that under our princes of the second race there was an advocate for the public prosecutor。＇261＇ But whoever pleases to read the entire collection of these formulas will find that there was a total difference between such officers and those we now call the public prosecutor； our attorneys…general； our king's solicitors； or our solicitors for the nobility。 The former were rather agents to the public for the management of political and domestic affairs； than for the civil。 And； indeed； we did not find in those formulas that they were entrusted with criminal prosecutions； or with causes relating to minors； to churches； or to the condition of any one。
I said that the establishment of a public prosecutor was repugnant to the usage of judicial combats。 I find； notwithstanding； in one of those formulas； an advocate for the public prosecutor； who had the liberty to figh