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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, 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 Justice 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,ll or tenson or tenso, its abbreviation in Provençal, 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, Mours 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 Poesía popular Español (Madrid, 1884), and J. Grimm, Von der Poesie im Recht. + Poetæ nulla immunitatis prærogativa juvantur, Cod. X., 52, 3.
The Icelandic Vigslossi (Grágás, ii., $107) deals with skaldskap at sökia (actio in poetam) for scurrilous verse.
| 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 quem fay pensar. See Las Joyas 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” (Rex v. Cambridge University, 2 Strange, 1157).
|| The word occurs in the classical jurists. Instances are Gaius iv., 60; Dig. xii., 6, 43.
Whether 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 Spenser'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 Provençal 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.
Provençal.—The poetry of procedure was of several kinds, the tenso, the partimen or jeu parti, 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 Jeu 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.t Very often the Divisional Court is composed of ladies, as in the Arresta Amorum of Martial d'Auvergne (15th century), where the lady judges were
Toutes légistes et clergesses,
Qui sçavoyent le décret par coeur. I Sometimes there is no final judgment, as in a tenso of Aimeri Peguilhan. The poet complains of his lady to
* Bartsch, Chrestomathie Provençale, 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 scripturis tactis, Cod. iv., I, 12, 5. The Gospels were by a Constitution of Justinian always to be present in Court during judicial proceedings, Cod. iii., I, 14. + Bartsch, 71.
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 onestamente lasse.
(Sonnets in Vita di M. Laura, clxx.) 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.
'Love, who in the end advises a 'settlement and defers judgment. This is not the place to discuss the question of the real existence of Courts of Love; it is sufficient for the present purpose that the Provençal poets treated them as existent and as bound by principles to guide their judgment-as the reader of Chaucer will remember-and even by rules of procedure.* The latter, however, seem to exist only in prose, and so do not fall within the scope of the' present article.
French.—Among numerous examples one of the best is a poem of Jean le Houx, or of Olivier Basselin, whichever was the real author of the Vaux de Vie, published in the 16th century. It is given here
It is given here in the admirable translation of Mr. J. P. Muithead, published in 1875.
If thirst must indicted be,
Then I never wish to raise
Upon which I found my case.
Then I always would dispense
If they pay me my expense.
Thirst and heat I mean to keep;
Though the cup be ne'er so deep.
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 Cours d'Amour, as actually constituted,” Courthope, Hist of Eng. : Poetry, i., 354.
Then the poet says in effect in the remaining stanzas, "If I have to decide between law and drink, away with lawsuits, say I, and let us drink!” *
Probably in his sober moments Jean reversed himself on appeal, for was he not an advocate of Caen ?
In the Bibliothèque Elzevirienne several examples occur; Le Procès des Femmes et des Pulces (written about 1520) is hardly quotable. Of about the same period is Le Procès des Deux Amans plaidyant en la Court de Cupido la Grâce de leur Dame. I The preference expressed by Louis XII. for Parisiennes over Rouenniennes was the ground of a Débat des Dames de Paris et de Rouen, related by the supposed advocate of the Parisiennes and ending in their favour.§ A peculiarity of French literature is the occurrence of an allegorical prose tenso in Gerson's Traité contre le Roumant de la Rose (written in 1402). There the author feigns that he is in the Court Christian, presided over by Lady Canonical Justice and her assessors Mercy and Truth, who received the complaint of Chastity against the intolerable forfeitures which one named le Fol Amoureux had caused her.||
Italian.-The sonnet of Cino da Pistoia, a translation of which appeared in the February number, is one of the most finished and artistic of the kind. There are tendencies towards the tenso in some of Dante's sonnets, I but the style was not fully worked out by him. A very interesting one is Petrarch's canzone Quell'antico mio dolce empio signore, in which the severe brevity of Cino's sonnet is expanded into a long poem by a master hand. Baldly analysed it runs thus. My old adversary (i.e., Love) was cited by me
* S'il faut procéder pur le boire, p. 179.
Recueil de Poésies Françaises des xve. et xvie. Siècles, x., 61 (Paris, 1875). I Id., 170.
§ Id., xi., 1. || See Courthope, Hist. of Eng. Poetry, i., 185. As in the sonnet
Due donne in cima della mente mia ; Canzionere, iv., sonnet 26, of Dr. Moore's edition.