Page:The American Cyclopædia (1879) Volume V.djvu/435

Rh other cases, where the seigneur refused to decide, or interfered with the proper administration of right, an appeal was often made to the superior lord; and so also for an unjust judgment, probably, however, only in a case of flagrant violation of right. The former appeal was called en défaut de droit, the latter en faux jugement. In either case, however, the ground of the appeal was some misconduct of the seigneur or his representative, and not strictly for a review of a case fairly conducted. But instead of such appeal, the vassal who thought himself aggrieved by the judgment of his seigneur could challenge him to combat, first renouncing fealty to him. From these seigneurial courts subsequently grew up the parlements. There was at first but one, viz., the court of the king. The first Capetian sovereigns created four grand bailliages to hear appeals from all judgments rendered in the courts of the seigneurs, and to judge in the first instance where there was a conflict of jurisdiction ; but these tribunals were not uniformly acknowledged, and the vassals still resorted to the court of the king. In consequence of the accumulation of business, and the great expense of attending upon that court at various places, Philip the Fair, by an edict in 1302, made the sitting of the court permanent at Paris. He also established a parlement for Languedoc. The exchiquier of Normandy was fixed at Rouen permanently by Louis XII., and was entitled by Francis I. a cour de parlement. Others were afterward established, and these courts continued to be the appellate tribunals until the revolution. Henry II. established presidences (présidiaux) in the principal cities, reserving to the parlements only the more considerable causes and inspection of the inferior courts. The parlements, which originally consisted of the peers of France, were finally composed of lawyers appointed by the king. They were abolished in 1790, and in their place, so far as respected appellate jurisdiction, was substituted the court of cassation. This court was composed of 52 judges, who, by the charte constitutionnelle of 1814, received their appointment from the king, but were not removable. Tribunals of appeal were created a few years after the establishment of the court of cassation (1802), which after the restoration were called cours royales, and under Napoleon III. cours impériales. The exact limits of the jurisdiction of the latter courts and of the court of cassation are not defined with much precision. The court of cassation, which now consists of 45 counsellors, three vice presidents, and a president, is divided into three chambers, viz.: a chamber of requests, a chamber of civil, and a chamber of criminal cassation. Demands in cassation (applications for reversal of judgment) are first heard by the chamber of requests, which either rejects them or sends them to one of the other chambers. The appeal is directly from the tribunals of first instance,

tribunaux civil d'arrondissement, which are the same that were established in 1790 under the name of tribunaux de district.—This brief review of the courts of the two countries of Europe most celebrated for their jurisprudence, will sufficiently illustrate how far they fulfil the conditions of a sound administration of justice in two particulars, viz.: freedom from excessive control, and a due regard to the correction of errors by a review of the first judgment in an appellate court. There are, however, other important considerations to which we may properly advert. Judges should be independent not only of executive influence, but also of all personal responsibility to litigant parties. There is a singular feature in the French law which indicates either a low state of judicial integrity or an entire oversight of an important principle of jurisprudence. By a proceeding called prise à partie, which has been recognized from an early period, a judge is liable to be sued by the party against whom he has rendered judgment. The old rule was, that he could be made responsible only when the judgment was without excuse (doit être affectée et inexcusable); by an ordinance of Francis I. (1540) a judge was not liable except for fraud or extortion (s'il n'y a dol, fraude ou concussion). Still he was subject to a suit for damages, and several old writers commented strongly upon the peril to society in subjecting judges to such a liability, especially for judgments in criminal proceedings. But notwithstanding these remonstrances, the proceeding has always been and still is allowed. Merlin mentions a number of cases in which the judge would be held responsible, among which are: 1, arresting a person without proper complaint, except in case of flagrant crime (hors le cas de flagrant délit); 2, arrest without proof, or for an offence which was not punishable by imprisonment; 3, where the judge has exceeded his power by taking cognizance of a matter without having jurisdiction; 4, evoking a case from an inferior tribunal under pretext of an appeal, and then not disposing of it. The provisions of the code of civil procedure lack precision. The cases of prise à partie are: 1, for fraud or extortion, in the language of the ordinance of Francis I.; 2, where it is expressly prescribed by law; 3, where the law has declared judges liable for damages; 4, if the judge has denied justice. (Code de procédure, § 505.) The English law, on the contrary, affords ample protection to judges. The rule is, that no private suit will lie against judges of a court of general jurisdiction, either for error of judgment or even for misconduct in their judicial functions; and the same protection is extended to judges of courts of inferior jurisdiction when acting within the limit of their authority. For official corruption, or other criminal conduct, a judge may be impeached and removed from office, and is also liable to be proceeded against by indictment; but no other redress is allowed to a suitor who