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or Browning’s “ The Ring and the Book” ; * (2) episodes in longer poems, such as that in Iliad xviii., where one of the compartments of the shield of Achilles represented what was probably a normal trial of an action in pre-historic Hellas; (3) versifications of actual practice, such as epigrams in the Greek Anthologyi" and Martial,I the “ Pleader’s Guide,” or Outram’s “ Process of Soumin, ‘ and Roumin’ ” ; (4) actual legal documents, such as some of the pre-Conquest charters, which were sometimes cast into the form of popular rime ;§ (5) doggerel mnemonics, both in Latin and English. i
Again, no account will be taken of law-books in verse, such as the poetical paraphrases of the Institutes of justinian by Grotius and others, and various works on Hindu and Mohammedan law, the Grégas Gridamal in Icelandic, &c., or of those poets who, like Horace,1l
* For readers who may not have ready access to this work, it may be stated that it is a very long and detailed description in blank verse of the trial of Count Guido Franceschini and his accomplices for murder. The trial took place at Rome in 1698. Benefit of clergy was pleaded, but in vain. The names of some curious legal officials of the period appear; Dominus Hyacinthus de Archzmgelis is Pauperum Procumtor, Yuri: Doctor _‘¥ohmmes Baptism Bottinius is Fisci at Rev. Cam. Apostol. Advacatus.
’[E.g., xi., 141, 251. I E.g., vi., rg.
§ Earle, Anglo-Saxon Land Charters, p. 435.
1| The following among numerous examples will suffice. The Canonists put the canonical impediments to matrimony into hexameters;
Error, conditio, votum, cognatio, crimen,
writers, are fond of bringing law into their verses. Equally removed from the present point of view is the position of those legal writers,* or of the law itself,1' who treat poets and poetry for other reasons than the present. The affinity of poetry and law is no new thing; Cino da Pistoia is not least among sonnet-composers ; Sir John Davies was Chief ]ustice of Ireland, and Donne proved that an epithalamium could be written even at Lincoln’s Inn.I
The most frequent form taken by procedure in poetry is that of a dispute between litigants. Disputes and decisions are as old as the human race, and the judgment of the Lord out of the whirlwind (the Bath-Kol) in the book of job was not the first precedent.§ The form of the contentio,|I or tenson or tenso, its abbreviation in Provencal, has been a commonplace in poetry since at least Theocritus. It will be the aim of the writer to give instances of what may be called the legal tenso through literary history, and afterwards to subjoin various poems or parts of poems which do not fall quite under that head.
* Different views as to the effect of the study of verse on lawyers are taken by Wynne, Eunomus (5th ed., 1824), and by Henriot, Moeurs Juridiques, iii., 199 (Paris, 1865), who has for the title of one of his chapters the antipathy of poets for the profession of advocate. The effect has been considered at length in such works as Braga, Poesia do Direito (Oporto, 1865), Costa, Concepto del Derecho en la Poesia popular Espafiol (Madrid, 1884), and J. Grimm, Von der Poesie im Recht.
1-Poetzz nulla immunitatis pnzrogativa juoantur, Cod. x., 52, 3. The Icelandic Vigslossi (Gragzis, ii., §Io7) deals with skaldskap at siikia (actio in poetam) for scurrilous verse.
1' The troubadours were often lawyers. Thus Peire de Vilamur, Bachelier en Leys, won the gauch (prize) at the floral games in 1465 for his Dansa d’Amors am Refranb, the refrain being De la flor qucm fay pensar. See Las ]oyas del Gay Saber, p. 214.
§ In one of the Bentley cases in 1723, Mr. justice Fortescue relied on a still earlier precedent: “God himself,” said the learned judge, “did not pass sentence on Adam before the latter was called upon for his defence ” (Re: v. Cambridge University, 2 Strange, I157).
1| The word occurs in the classical jurists. Instances are Gaius iv., 60; Dig. xii., 6, 43.
Vi/hether Theocritus were the original inventor of the poem in amoebean verse with the decision of a third person, it is impossible to say. Possibly it may have been a reminiscence of the stichomuthia of the dramatists. It is sufficient for the purpose of the present article that he is for us the father of the tenso. The form appears in Idyll v., where Morson decides between Lakon and Komatas and Idyll viii., where a goat-herd does the same between Daphnis and Menalcas. Virgil’s Eclogues iii. and vii. are of similar structure; in both eclogues there is an umpire ; but in the latter he decides in favour of one of the competitors, while in the former he declines jurisdiction in technical terms:
Non nostrum inter vos tantas componere lites.
This form was continually followed in pastoral poetry, e.g., in Barclay’s Eclogues and Spenscr’s Shepherd’s Calendar, besides numerous foreign ones, such as the eclogues of Ronsard, Bocage, and many others. The tenso form occurs occasionally in post—classical Latin poetry, as in the Carmina Burana.*
We next come to the richest field of research, the Romance languages, and space will allow of little more than a brief sketch of certain types. The amount of material is large, for originality of form was not to be looked for. The Provencal poets especially followed one another in blind admiration; lawyers and laymen alike had a loyal regard for precedent. The fact—already mentioned —that many of the troubadours were lawyers may have had some effect on the popularity of the form. It would have been comprehensible even to laymen, for it occurs only in the Court-poetry, which circulated among a class in which the traditions of the Roman law were never wholly lost.
" See, for instance, the Contest of Wine and Water, Symonds, Wine,
Women, and Song, No. 50. In the end the poet as arbitrator awards that wine and water are so litigious that they are never to be mixed.
Proven;al.—The poetry of procedure was of several kinds, the tenso, the partimm or jau pmi, and the guerrier, the differences being very slight. The principle was the same, an argument and a decision. This kind of verse may have been founded on a reminiscence of the disputations in the Universities and of the Greek and Latin pastorals as well as of real proceedings in the Courts. However this may be, the structure of such poems was reduced to an exact science. For instance, it is laid down in Las Leys d’Amors that the judgment ought to follow the form of law and make mention of the Evangelists and other words customary in judgments, though they are not necessary.* The Court is composed sometimes of a single judge, sometimes it is a Divisional Court. An example of the former is the ]eu Parti entre Guilhem Augier et Guilhem. They dispute whether reason (sens) is of more value than wealth (manentia), and call in a palmer (Romeus) who gives judgment in favour of the former.1' Very often the Divisional Court is composed of ladies, as in the Awesta Amorum of Martial d’Auvergne (15th century), where the lady judges were
Toutes légistes et clergesses,
Sometimes there is no final judgment, as in a tenso of Aimeri Peguilhan. The poet complains of his lady to
‘ Bartsch, Chrestomathie Provencale, 375. The allusion to the Evangelists probably refers to the common form of noticing in the judgment that the witnesses had taken the corporal oath on the Evangelists, sacris scrifluris tactis, Cod. iv., 1, 12, 5. The Gospels were by a Constitution of Justinian always to be present in Court during judicial proceedings, Cod. iii., 1, 14.
f Bartsch, 71.
I An allusion to the lady judges of the Court of Love at Avignon is supposed by Fontanini and others to be contained in the line of Petrarch:
Dodici donne anestamente lasso.
If this be the case, it offers a tempting Opportunity for theorising on its connection with the English jury, as far as regards the number.
iLo've, ‘wlfo "in ‘the "end ‘advises 'a 'séttleme‘nt 'an‘d"defers judgrnent. This is"noti the place to discuss the question of th'e’real existence of Courts of Love; it is sufficient ‘for the present purpose that the Provencal I poetsltreated them as existent and as bound by principles to guide ‘their j1udgm‘er'1't—a's the reader of Chaucer will remember—and ‘even byifules of procedure?“ The latter, however, seem to 'e'xist ‘only in prose, and so do not fall within the scope of tlieipresent article.
'Fre'neh'.—'-A*mong numerous examples one" of the best is a poem ‘of ‘Jean ‘le ‘Hodx, or of Olivier B'asseli'rI, whichever 'was't'he' real ‘aiithor of the Vaux de Vie, published’ in the I6fh'€énttfl‘y. It is given here'i’n‘the‘admirable translation of 'Mr. ‘J. “P. M'uirliead,‘publish'ed in I875.
If thirst must indicted be,
As niy mlaln substantial ground
Thirst and"heat I mean t’o keep;
Though the cup be ne'er soldeep.
Might attempt, but all in ‘vain,
When I would its contents drain.
"‘ “ They found that Love resembled a process at law, and more particularly the practice of the Cour: d’Amour, as actually constituted,” Courthope, Hist of Eng.: Poetry, i., 354.