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before the Queen, whose is the part divine of our nature, and who sits in the highest heaven. The plaintiff began,
Madonna, in my youth I set foot in the defendant's realm and never had anything but anger and disdain, and suffered torments so many that my infinite patience was well-nigh exhausted and I hated life itself. Love took from me all my peace and gave me war instead. I served God too little and my lady too well. Love made me seek desert places, barren thickets, barbarous men and manners. Since I have been his I have lost my peace, sleep is banished from my nights and may not be recovered by simples or magic. Tears, martyrdom, and sighs wear me out.” To whom Love, the defendant, with bitter reproof, 'Lady, hear the other side. The plaintiff in his youth was given to the art of selling words and lies. Raised by me to higher things he shames him not to complain of me-me who kept him free from the evil thoughts that wrought his harm. He knows the story of Atrides, and Alcides, and Hannibal; they loved basely; but as to him, I gave him the heart of the noblest lady that the world hath known since Lucretia, and so sweet a language and so lovely a song did I grant him that before it no base thought might stand. From good seed reap I an evil harvest. I gave him wings to soar to Heaven and he forgat me for the lady whom I gave him for pillar of his weak life.” Then cried I, “ Yea, he gave her, but soon he took her away.” He answered, “Nay, not I, but He who took her to himself.” In the end both turned to the seat of justice, the poet with trembling voice, Love with words high and harsh, and each says, “ Noble lady, I await thy sentence.” She smiled and spake, “ It pleases me to have heard the question mooted, but time is wanted for so great
* In Morte di M. Laura, Canz. vii. The decision is perhaps a reminiscence of Cino's and that again of Virgil's.
Spanish,—In the various Cancioneros there are frequent instances of more or less merit. The peculiarity of one is that in a complaint of a lover against his lady in the Court of Love prose and verse are mixed ; in the end Love gives no decision, but says that he is weary of the whole matter.* The long and notorious Pleyto del. Manto is in full judicial style, with counsel's speeches, evidence of witnesses, judgment, and appeal, but the subject matter is such as can hardly be printed here. In more modern poetry a sonnet of Yriarte's is noticeable. The poet complains to Apollo, the justiciary, I that the God did not allow Yriarte's verse to be richer, Apollo answers the petition in the Court of Parnassus, and says that the reason is obvious, the petitioner had not sung the praises of Orminta.
Portuguese.—One of the longest and most finished pieces of the kind is the tenso known as O Cuydar e Sospirar, Jorge de Silveira and Nuno Pereira contest for the love of Lyanor da Silva. Both present their petitions to the lady and each nominates two procurators (ajudadores). The procurators are heard and argue at great length the respective merits of loving and sighing. Various objections are taken at different points of the argument by the procurators. Finally the lady, after disposing of some minor points, reserves judgment, which is in the end given in favour of sighing on the authority of the text-books.
Que o tem favorecido
Estes livros revolvo. An appeal to the Court of Love is lodged. The court of appeal reverses the lady and advises her to be more discreet in her law (mays discreta em sua ley). The appeal
* Cancionero General of Hernando de Castillo (1511), Madrid (1882),
| Cancionero de Obras de Burlas (1520). Appendix to above edition,
A ti me quexo, Apolo justiciero.
part seems to be by a later hand. The whole process fills 106 pages
of the Cano ioneiro Geral, a compilation of Garcia de Resende in 1516.* Some of the louvores or encomia in the Cancioneiro are in the form of the judgment of a lady in favour of one of the cavaliers who sing her praises in strophes of fixed length.
Flemish.—The great medieval epic of Reinaert de Vos (Reynard the Fox) was probably Flemish or Platt Deutsch in origin. Whether or not its earliest form was verse or prose does not much matter, as verse forms existed very early. A free poetical version, as is well known, was published by Göthe as late as 1792. A short analysis of the satire from the legal point of view may be interesting as it is illustrative of the procedure of the period. Isegrim the wolf, with his kindred and friends, complain at the court of Nobel the lion, at Stade, of trespass and misdeeds by Reinaert. I The defendant should have taken his corporal oath on the Gospels that he was innocent, but he did not do so. Other charges followed, among them that he assaulted Cuwaert the hare, who was in the king's peace. In the end Bruun the bear and Tibeert the cat are sent summoners to Reinaert, but on their failure Grimbeert the badger goes and brings him to the Court. Reinaert says (but apparently only in Caxton's translation) that he had been to school at Oxford and was licensed in both laws (civil and canon). He is
* Edition of Stuttgart, 1846, i., I.
+ The earliest appears to be that printed at Lübeck in 1498. The best edition of the verse text appears to be that of Ernst Martin, Willems Gedicht van den Fos Reinaerde (Paderborn, 1874).
$ Compare with this the procedure of the secta in England, in which no doubt kinsmen would often be chosen as oath-helpers for convenience, though not required by law. In Leges Henrici Primi, lxiv., 4, there is a reference to purgation in a charge of homicide by the oath of kinsmen. The importance of the kindred (Mæg, Mægburh) in pre-conquest law is obvious to any reader of the laws of the kings from Alfred downwards.
condemned to be hanged, but on a false tale of a treasure Nobel the King, at the Queen's request, pardons him on condition of a pilgrimage to the Holy Land.* On further complaints against Reinaert (who had not fulfilled the condition),t the King is wroth, but the Queen again intervenes, saying, Audi alteram partem. I Reinaert is cited and produces the opinion of Mertijn the ape (who had been advocate to the Bishop of Cameryk), that the Archdeacon who had put Reinaert under the censure of the Church should be cited and put to his defence, and that the censure should be remitted under pain of papal interdict. The King being against Reinaert on this point, Firapeel the leopard urges that the King cannot go beyond the verdict of his men. Finally, Isegrim challenges Reinaert, who takes up the glove. The King fixed a day and field, and took pledgess of the combatants. Reinaert wins by unfair means, and the King makes him of his Council and one of his Justices. German.—Examples do not
to be frequent. Heinrich von Meissen, known as Frauenlob, had about 1300 a poetical contest with Barthel Regenbogen as to whether frau or weib were the more honourable title of
* Instances of the imposition of such a condition appear in French records, possibly not in English.
+ Conditional pardon is not complete until the condition be fulfilled. For a statutory instance of conditional pardon, see 16 & 17 Vict., c. 99. For conditional pardon of an approver under the older law, see Stephen, Hist. of the Crim. Law, i., 250.
# This maxim does not appear in so many words in Roman law texts, but it has often been assumed by the Courts in all countries as an elementary principle of justice. The nearest approach to it in Roman Law is, perhaps, Ea quæ altera parte absente decernuntur vim rerum judicatarum non obtinent (Paulus, Sent., V., 5A, 6).
§ “Borowes" in Caxton's translation. The term lawburrows is still used in Scotland; the word also occurs in the headborough of the tithing in old law (capitalis plegius), the other nine being handboroughs. They were sureties for the due appearance of the accused.
women. Meissen supported the former-even against the high authority of a previous decision of Walther von der Vogelweide-whence the name by which he is usually known.* In the sixteenth century Johann Fischart expanded the Procès des Femmes et des Pulces-already mentioned-into a poem of 4,315 verses, and made the judicial authority different. In the French poem the judge was a minorite friar, in the German it was the Chancelier des Puces.
English.—There seems to be no contentio in early English poetry, but in the middle English period examples are fairly frequent. One of the earliest is the Hule and the Nightingale, probably written in the reign of Edward 1.I A dispute arising between the owl and the nightingale, both parties agree to refer the question as to which was the better singer to Maister Nichole of Guldeford. The poem ends by both going to look for the arbitrator, but as to the decision the writer gives no information. The Vision of William concerning Piers the Plowman is full of law.
It was written at a time when reform was in the air, and probably both the land law and the procedure were inexhaustible topics of conversation, and not merely confined to lawyers. The period from 1361 to the last years of Richard II. is marked by statutory changes of the law of the highest importance. Purveyance, labourers, escheators, mortmain, prohibition, maintenance, papal provisions, were matters of substantive law falling under the notice of Parliament; and as to adjective law, every year of the period saw amendments, or attempted amendments, of the practice of the Courts in the matters of pleading, arrest, venue, mainpernors, and
As to the procedure part of the poem, in Passus iii., iv. and v., Theology objects to the
* The contest is described in Scherer, Hist. of German Lit., i., 210 (translation by Mrs. Conybeare). + Flöh Hatz, Weiher Tratz (1573).
Courthope, Hist. of Eng. Poetry, i., 136.