Page images

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 Procés des F emmes et des Pulces—already mentioned——into a poem of 4,315 verses, and made thejudicial authority different. In the French poem the judge was a minorite friar, in the German it was the Chancelier des Pucestt Engl1'sh.—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 LI 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 many others. 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). 1- Floh Hatz, Weiher Tratz (I573). 1 Courthope, Hist. of Eng. Poetry, i., r36.

marriage of Falsehood and Lady Mede (Bribery), on the ground of her pre-contract to Truth." Meed is arrested by beadles and bailiffs and brought before the King's Court at Westminster. The King summons Reason as an assessor. He advises the King to do justice, and Meed has to become mainpernor for future good behaviour.t. In Chaucer the Court of Love and the Cuckoo and the Nightingale have something of a legal aspect, but in the Assembly of Fowles the actual procedure of the King's Court seems to be the principle on which the poem is framed. The plot, probably derived from a French fabliau, is as follows:—The poet dreams that he comes on St. Valentine's Day into a garden where sits the Goddess of Nature, and to her presence came | all fowls “to take her doom.” A formel eagle is set for a prize as mate to the most worthy fowl. Three tercel eagles

|| || state their pretensions. Certain birds give what may be | | called a verdict. Nature calls on the formel eagle for | judgment. She says Curia advisari vult, and asks for a year to prepare judgment, which is conceded. Dunbar's Golden Targe deals with the Courts of Venus and of Cupid, but there seems to be a confusion-intentional or not—between the two meanings of the word Court, just as in curia regis.

* At that time pre-contract was an impediment to marriage. The disability | | | || of pre-contract was abolished by 32 Hen. VIII., c. 38, then revived and re| || || enacted, finally abolished by Lord Hardwicke's Act, 26 Geo. II., c. 33, s. 13, | | || | re-enacted by 4 Geo. IV., c. 76, s. 27. Not only was it an impediment to

marriage, but either party to the pre-contract might, until Lord Hardwicke's || || || Act, sue in the Court Christian for specific performance of the contract. See Baxter v. Buckley, I Lee 42,

# This is perhaps not very correct law. The mainpernor seems to have been a person other than the accused. “The writ de manucaptione (of mainprise) was appropriated to cases in which a person had been taken on suspicion of felony and had tendered manucaptors or mainpernors who had been refused ” (Stephen, Hist, of the Crim. Law, i., 240). Further, Meed does not seem to have been in contempt, and the fact of an alleged pre-contract was scarcely ground for arrest. But Langland was not writing a work on


Gavin Douglas’ Palace of Honour is more distinctly legal. The poet is put on his trial before the Court of Venus for writing a libellous ballad against the goddess. He pleads to the jurisdiction, not the very good plea that the goddess was judge in her own cause, but (1) that ladies may not be judges; (2) that the writer, as a spiritual man, is not amenable to a lay court, but ought “to be remit to my judge ordinair.” He is granted a conditional pardon, the condition being the writing of a ballad in praise of love. The rest of the poem is a fulfilment of the condition. In the Elizabethan period several instances occur. Among others may be mentioned His Heart arraigned of Theft and acquitted,* and Sidney’s Astrophel and Stella, Sonnet 52. The type of poem continues as a living thing through the centuries. It passes down through Cowper’s Report of an adjudged Casel“ to the present year, in which the following

‘verses by the writer appeared in a periodical. They are

not claimed to be particularly good as verse, but they are an illustration of the type.


With ice and snow his hoary haired assessors
Sits winter on his throne thatis a tomb,
Accounting bright and happy things transgressors

Meet for severest doom.

" Fair flowers, ye smile, blithe birds, ye sing together,
Swift streams ye hasten onward to the sea,
Delight have ye of sun and summer weather
In high contempt of me.

“Wherefore my sentence is that ye be taken,
Birds, flowers, and streams, and each be made my thrall,
Till hearts of men shall be by hope forsaken,
And I be lord of all.”

" Davison’s Poetical Rhapsody, (ed. by Bullen, 1891), i., 37. The, poem is by A. W. 1- The well-known “ Between nose and eyes a strange contest arose."

[ocr errors]

The flowers appeal, and ready for revision
sits Spring in Council, June is there and May,
And all aggrieved by Winter's dire decision:
Then gravely Spring doth say:
“This court whereof I am presiding member
Affirms the judgment, varying it thus,
Appellants are from March until September
To be demised to us.”

A few cases of poems dealing with procedure not in the tenso form are worth a short notice. In them all the poet is more or less under the influence of legal ideas, and in the first case, that of the will, there is almost as long and complete a continuity as in the tenso.

Wills.—At what time or in what language the poetic will began cannot be said, but examples occur certainly as early as the fifteenth century in the famous Grand and Petit Testaments of Villon. In the Cancionero of Hernando de Castillo already mentioned there are two, El Testamento de Amores and a similar one supposed to have been made by a Portuguese.f. Among later romances in imitation of the older Romancero poems the testament of Don Quixote became a commonplace, and appears in several forms. Sanchez de Badajoz went rather farther, and wrote his own will in poetry, beginning in proper form and proceeding at great length in nine leciones or lessons. Numerous French verse wills occur in the Bibliothèque Elzevirienne, already mentioned. In England there is Gascoigne's Last Will and Testament, and there have been many real wills which the eccentricity of testators has led them to clothe in rhyme. Many of them will be found in books dealing with the curiosities of law.

* Edition of 1882, No. 154. + Id., No. 207.
# Pues que yo en tiempo tan fuerte
Quiero ordenar mi postrema


Trial by Battle.—In addition to the case in Reynard the Fox (above) in which was enacted the dramatic scene which we did not finally lose sight of in England till I8I9,* both Icelandic and French literature supply further instances. Thor’s wager of battle with Rungai was versified by Thiodwolf, though it is only fair to say that the wager is not prominent, as it is in Snorri’s prose versionfi‘ In Huon de Meri’s Tournoyement de'l’Antechrist, the virtues under Christ engage and defeat the vices under Antichrist. This is only one out of many examples of the idea of the judicium Dei in medieval romances, both prose and verse. The idea may be derived partly from the tournament, partly from the judicial combat.I

Citati0n.—The familiar lines of Shakespeare’s sonnet,
“When to the sessions of sweet silent thought
I summon up remembrance of things past,"

suggest the consideration of poems in the form of citation or summons. ' The troubadour poetry, full of legal phrases as it was,§ had more than one attempt of this kind. A citation

* 1 B. & A. 405; 59 Geo. III., c. 46.

1' Corpus Poeticum Boreale, ii., 16. The ordeal also occurs in Icelandic verse in the vigorous description of the ordeal of Gudona, id., i., 322.

I For the importance of the idea in the De Monarchia of Dante see the February number of this Magazine.

§ As in Peire Rogier:

Mon Tort n’avelz pres, s’a leis platz,
Qu’n15renda la vars si es bos,

E si vol que sia trames

Mon Droit n’a-leis lai au ill es ;
Deus sal e guart lo cars de leis.

Bartsch, 82.

In modern French law it is thought necessary to give the president of the Court in a criminal trial power qu’il pent inlurdire :2 an accusé de présenler sa défense en 11ers, Hélie, Pratique Criminelle, i., 421. Such a rule of law is hardly necessary in England. The writer, however, well remembers a prisoner at assizes handing to the Court a written defence concluding with the

pathetic lines:
I didn't go for to do it,

But I’m here through it.

« PreviousContinue »