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of the land tax, have been stripped of much of their substance and resources, chiefly for defraying unprovoked and unsuccessful wars carried on beyond the boundaries of their country; and now they are overtaken by a famine of unprecedented extent, the attacks of which the masses, in their impoverished condition, are helpless to resist.

J. DACOSTA.

IN

III.-PROCEDURE IN POETRY.

N an article in the February number of the Law Magazine and Review the present writer expressed his intention of attempting to elaborate in greater detail the subject which was then only hinted at in a note. The subject is an extensive one, and to be completely treated needs a knowledge of European literature greater than is at the disposal of most members of the Bar. For the present article, researches have been made in the literatures, ancient and modern, of the most important European languages. As might perhaps have been expected, there is little or nothing bearing on the question to be found in the literature of countries in which Chivalry and Roman law had little influence, and the Anglo-Saxon, modern Greek, Scandinavian, and Russian literatures have been drawn blank. Where instances do occur, the main difficulty has been to determine what to accept and what to reject amid so rich a mass of material. Anything dramatic has been excluded. The numerous "" trial scenes which occur in Shakespeare and in dramas like Les Plaideurs and the Nise Lastimosa of Bermudez are not dealt with. Excluded also are (1) records in verse of actual trials such as the "State Trials in Verse,"*

*

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By N. T. Moile (1842), more curious than interesting. The verse is of the flattest and most conventional type.

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 Anthology† and Martial,‡ 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.||

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 Grágás Gridamál in Icelandic, &c., or of those poets who, like Horace,¶ Prudentius,** Adam of St. Victor,++ as well as more modern

*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 Archangelis is Pauperum Procurator, Juris Doctor Johannes Baptista Bottinius is Fisci et Rev. Cam. Apostol. Advocatus.

† E.g., xi., 141, 251.

§ Earle, Anglo-Saxon Land Charters, p. 435.

E.g., vi., 19.

|| The following among numerous examples will suffice. The Canonists put the canonical impediments to matrimony into hexameters ;

Error, conditio, votum, cognatio, crimen,

Cultus disparitas, vis, ordo, ligamen, honestas,
Si sis affinis, si forte coire nequibis.

The Termes de la Ley said in English

In such lines as

Whatever moved to kill the dead
Is deodand and forfeited.

Quædam, si credis consultis, mancipat usus.

** E.g., Jus civile bonis reddidimus (Preface 18).

++ E.g., Curam agens sui gregis

Pastor bonus, auctor legis,

Quatuor instituit

Quadri orbis ad medelam,

Formam juris et cautelam (=cautionem).

Per quos scribi voluit.

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.1

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 was not the first precedent. The form of the contentio, 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.

+ Poeta 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.† 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 cœur.‡

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., 1, 12, 5. The Gospels were by a Constitution of Justinian always to be present in Court during judicial proceedings, Cod. iii., 1, 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.

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