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1980

Lawyers' Merriments

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JAMES MACLEHOSE AND SONS, GLASGOW,
to the

MACMILLAN AND CO., LTD., LONDON.

Nnv York, The Macmillan Co.

Toronto, - - The Mactttilian Co. of Canada.

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Sydney, A ng us and Robertson.

A LAWYER AND HIS CLIENTS, 1572
From Damhoudere, Practiqtie ludiciairt des Causes civile*

sir

Lawyers' Me

David Murray

LL.D., F.S.A.

Glasgow
James MacLehose and Sons

Publishers to the University
1912

ni>ti iu

SE-

.
DF(.

Sinon estimable, au mows curieuse

PREFACE

.AW is a serious matter, but the outside world seems to
ind in it a perpetual source of entertainment. Litigants
and lawyers, courts and judges, and the very law itself,
have furnished topics for scores of amusing volumes.
M orison's Dictionary, with its seventeen thousand pages,
to say nothing of the Appendix and many volumes of
Supplement, is a vast repertory of learning, of much sound
and of some bad law, but the curious reader will find not
a little to amuse him in the situations presented by the
cases reported, by the odd observations of the reporters,
and the naive and pithy remarks of the judges. No one
has attacked it, but any enthusiast who does so will find
material for many gatherings of Curiosities.

This treatment of the law and those who resort to its
aid, or who are engaged in its administration, is perfectly
legitimate, and there is no reason why outsiders should
not laugh at what they find provokes to laughter.

Ill drawn or absurd statutes, muddled or bizarre wills,
may quite well be treated as Curiosities of Legislation, or
as Whims of Testators, and many industrious authors
have employed themselves in searching out and exhibiting
such maladroit performances of legislators and draftsmen
lay or professional and the confusion which they
bring about.

><*< Si

vi PREFACE

Old customs, which seem to be odd, have also provided
a good deal of merriment, but in this case the laugh is
often a mistake. A law may seem to be grotesque, but
this may be only because we do not understand it.

At a graduation ceremony, in the University of Leipzig,
in 1761, Professor Carl Ferdinand Hommel, the ornament
of its law school, made an oration upon the law playing
harlequin (Oratio de jure arlequini'zante). His aim, he
explained, was not to deal with cranky doctors of laws
(delirientes doctores utriusque juris], but with some jocular
laws (jocu/ares leges], such as the Roman jus postlimimi,
and the customs recorded in old German and Anglo-Saxon
codes, in Regiam Majestatem, and the picturesque pages of
Hector Boethius. Before the end of the century these
same customs, and the language in which they are
expressed, had come to be regarded as the most valuable
inheritance of to-day from those far-off times. What
Hommel regarded as subjects to laugh at, Grimm showed
to be the true expression of the life, the thought, the
poetry of the German race. Hommel was an erudite
scholar, an accurate lawyer, and a man of extraordinary
industry : he was deeply read in the history of the law,
but he failed to grasp its continuity, and did not truly
appreciate its development and growth.

While much has been written upon what may be called
the accidental humour of the law, very little has been said
regarding the intentional humour of lawyers, in adapting
their professional pursuits to purposes of amusement.

The history of the law and of its various branches, of
process and forms of procedure, have been treated at
length in many works of authority, but the history of the
practice of the law has been comparatively overlooked.

PREFACE vii

Many years ago I began to collect material bearing upon
this subject, but the active practice of the law prevented
my proceeding further. In 1909 part of this material
formed the substance of a paper, afterwards published, on
Legal Practice in Ayr and the West of Scotland in the
Fifteenth and Sixteenth Centuries : last autumn a further
portion was turned to account for a paper read to the
Incorporated Society of Law Agents, at their meeting in
Dundee. The following pages are an expansion of that
paper. Its object is to indicate some of the ways in
which practising lawyers have used the law and legal
procedure as a means of recreation in their leisure
hours.

DAVID MURRAY.

13 FITZROY PLACE,
GLASGOW, 15 April, 1912.

CONTENTS

PAGE

LAWYERS' MERRIMENTS i

OF A STRANGE CASE (EiN WUNDERLICHER FALL) 3

CURIOSITIES OF THE LAW . 5

THE HUMOUR OF LAWYERS 6

LAW LYRICS 8

EARLY SCOTS MAKERS 17

EARLY LAWS AND CONVEYANCING IN VERSE 19

RHYMING WILLS 31

METRICAL VERSIONS OF CODES AND TEXT- BOOKS 32

COMIC TEXT-BOOKS 39

FACETIOUS PRECEDENTS 42

INSTRUCTION IN LAW BY THE NOVEL 45

PROVERBS 47

MEMORIAL VERSES 59

HUMOUR IN INDEXES AND DICTIONARIES 62

LAW AS THE SUBJECT OF DIDACTIC POETRY 67

x CONTENTS

PAGE

LAW REPORTS IN VERSE 82

PLAIDOYERS BURLESQUES 95

CAUSES GRASSES. SHROVE-TIDE LICENCE 116

ELEGANTE JURISPRUDENZ. WHIMSICAL DISSERTATIONS

AND THESES 121

THE LEGAL PROSECUTION AND EXCOMMUNICATION OF

THE INFERIOR ANIMALS 127

LAW PROCEDURE APPLIED IN ILLUSTRATION OF SERIOUS

SUBJECTS 131

PROCESSUS SATHANJE 134

LlTIGACIO SATHAN-ffi CONTRA GENUS HuMANUM 153

PROCESSUS LUCIFERI 154

HlSTORISCHER PROCESSUS JURIS 158

INFANTIUM IN LIMBO QUERELA 159

ARRETS D' AMOUR DE MARTIAL D'AUVERGNE 160

LAW IN DAILY LIFE 165

THE PSALTER FOR LITIGANTS 168

LAW BOOKS AND THE INDEX EXPURGATORIUS 170

THE WAXEN NOSE OF THE LAW 174

MOUSE TRAPS 179

NEQUITIA ADVOCATORUM 197

CONTENTS xi

PAGE
LlVRES DE LUXE

ILLUSTRATIONS IN LAW BOOKS 206

LAWYERS' LOGIC 225

SEX 237

DOCTORS OF LAWS 244

RECREATIONS OF LAWYERS 255

THE LAWYERS' LIBRARY 262

INDEX 279

ILLUSTRATIONS

A LAWYER AND HIS CLIENTS, 1572 Frontispiece

From Damhoudere, Practique ludiciaire des Causes civiles, c. 27, Anvers,

1572, fol. Infra p. 216.

The reproduction is taken from the Latin version. Ib. 1596, 410.
My copy has the inscription, " Ce lieure appartient au sieur Gobel,

Procureur fiscal de la seigneurie de Thanne."

TRUTH PROCLAIMED TO THE WORLD. Two FIGHTING COCKS

IN FRONT OF THE BOOK OF THE LAW REPRESENT THE
BATTLE OF LIFE, THE CONTEST OF THE LAW COURTS Title-page

From Das A, B. C. cum Notts -variorum, herausgegeben -von einem dessen
Nahmen in A. B. C. stehet. Leipzig und Dresden, 1703, 8vo, 3 parts.
There was an earlier edition. Ib. 1695, 8vo.

PAGE

CITATION 96

From Damhoudere, Practique ludiciaire es Ca-vses criminelles, c. xiii.

D'adjournment.
The reproduction is taken from the German version, Franckfurt a. M.

1565, 410. Infra p. 2 1 6.
The same illustration is given in the Praxis rerun ci-vilium, c. 54,

Antwerpiae, 1596, 410.

APPEAL 160

From Damhoudere, Cavses criminelles, c. 149.

THE WAXEN NOSE OF THE LAW 176

From the Nebula Nebulonum of Johann Flitner, secundo aeditn a Joanne
Coopmans Leowerdiense, 1034. The first edition was Francofurti,
1620, 8vo.
This is from Od. in. at p. 16.

In Procuratores flexiloquos, & rabulas forenses

NVCLEVS
lus cereum, quo volunt, rabulae flectunt.

xiv ILLUSTRATIONS

PAGE

Flitner's work was a translation in Latin verse from Der Schelmen Zunft

of Thomas Murner (i475" I 537)> { h e satirist and opponent of Luther.

This work, which is illustrated with wood-cuts, was first published

at Frankfort, 1512, 410, and was often reprinted.
The inscription over the cut in the Nebula Nebulonum is " Hie garriendo

literas perforat," which corresponds with Murner's "Eyn loeh

(lurch brieff reden."

Der iurist kan appellieren,

Der ander dich bey der nasen fieren :

Der selb frum redlich bider man
Mit gelt eyn brieff durch reden kan,
On pfennig er keyn sprach mer hatt
Der kechen von der neuwen stett.

Murner proposed to teach law by means of playing cards :

Chartiludium Institute summarie doctore Thoma Murner memorante et ludente.

Argent. (Johannes PrOs), 1518, 410, with wood-cuts, 119 leaves.
He had previously applied this method to logic :

Chartiludium logice seu logic a poetica vel memorati-va cumjocundo pictasmatis

exercitamento, published at Cracow, where he was then a professor,

in 1507, 410. Reprinted Argentine, 1509, 410, with wood-cuts,

83 leaves.
Both works are exceedingly scarce. There is a copy of the 1 509 edition

of the logic in the Hamilton collection in Glasgow University Library.

SUICIDE 218

From Nebula Nebulonum, Od. xxxin. p. 177.

Damhoudere has an illustration c. 88, of suicide ; but the above, with the
devil pulling away the footstool, is more dramatic.

RECREATION 256

From Decretum Gratiani, Distinctio 35 f. 56, Venetiis (Lucas Antoninus
de Giunta, Florentinus), 1514, 410. The colophon, which is in red,
bears that the work " figuris adeo exacte lineatio pictum ut nihil in
ipsis propter spiritum videatur desiderari."

BELIAL AND MOSES BEFORE KING SOLOMON AS JUDGE 303

From Belial xu Tcuttch, Strassburg (Johannes Priisz), 1508, 410. Infra
p. 157.

LAWYERS' MERRIMENTS

ALTHOUGH few people nowadays read George Alexander
Stevens' Lecture on Heads, every one is familiar with the
great trial, Bullum v. Eoatum ; * Cowper's poetical report
of the law case between Nose, plaintiff, and Eyes, defend-
ants, is also well known ; while the will of the testator,
who bequeathed to his friend all his black and white
horses, and died leaving six black, six white, and six black
and white horses, is still as great a puzzle as it was to
Martinus Scriblerus. 2 These are examples of a style of
humour still in vogue, and which has at all times been
popular.

Amongst the Greeks, the Sophists and Megaric philo-
sophers distinguished themselves in inventing logical traps

1 It did not appear in the edition of 1770, which, however, is probably
spurious ; but the Lecture grew as time advanced, and it finds a place in
the editions of 1785, Part Fifth, p. 79, and 1788, p. 57. The first
edition of the Lecture seems to have been in folio, without date, illus-
trated with one plate. Thomas Rodd, Catalogue of Tracts, Pamphlets
and unbound Books, No. 6423. London, 1819, 8vo.

2 The case of Stradling v. Stiles is given by Pope as a specimen of
Scriblerus's Reports (Works, vii. p. 187, London, 1757, I2mo), but he
was much assisted in its preparation by his friend, William Fortescue
(1687-1749), Master of the Rolls. See Monk, Life of Richard Bentley,
p. 481, 1830, 410.

A

2 LAWYERS' MERRIMENTS

and puzzles, many of which turned upon legal procedure.
One of the most famous of these is the Litigiosus or Reci-
procus, which retained its popularity in the time of the
Empire. It is told in relation to an action between
Protagoras, the prince of the Sophists, and Euathlus, a
young man, his disciple.

"The disciple had covenanted to give his master a
large sum to accomplish him as a legal rhetorician ; the
one-half of the sum was paid down, and the other was
to be paid on the day when Euathlus should plead and
gain his first cause. But when the scholar, after the
due course of preparatory instruction, was not in the
same hurry to commence pleader as the master to
obtain the remainder of his fee, Protagoras brought
Euathlus into Court, and addressed his opponent in
the following reasoning : Learn, most foolish of young
men, that, however matters may turn up (whether the
decision to-day be in your favour or against you), pay
me my demand you must. For if the judgment be
against you I shall obtain the fee by decree of the
Court, and if in your favour I shall obtain it in terms
of the compact, by which it became due on the very
day you gained your first cause. You thus must fail,
either by judgment or by stipulation. To this Euathlus
rejoined Most sapient of masters, learn from your
own argument that, whatever may be the finding of
the Court, absolved I must be from any claim by you.
For if the decision be favourable I pay nothing by
the sentence of the judges, but if unfavourable I pay
nothing in virtue of the compact, because, though
pleading, I shall not have gained my cause. The
judges, says Aulus Gellius, unable to find a ratio

TRAPS AND PUZZLES 3

decidendi, adjourned the case sine die, and ultimately

left it undetermined." l

Of a like character was the sophism of the Schoolmen,
known as " Pons Asinorum " or " Buridan's Ass," but
it was a metaphysical not a legal conceit. The lower
animals, it is assumed, have no free will. If therefore a
hungry ass were placed between two similar bottles of ; ' ;
hay equally inviting, the beast must stand still and starve
to death, being unable to turn to either, because there are
equal motives to both. 2 Bayle has a long and interesting
disquisition upon the puzzle, and refers to the case of
Gargantua, now old, who did not know whether he
should cry for the loss of his wife Badebec, who died in
childbirth, or laugh for joy of his new-born son. The
good man, says Rabelais, had sophistical arguments on
the one side and the other, which choked him, but he
could not solve them, and so he remained entangled like
a mouse in a trap or a kite in a snare. 3

The case of Bullum v. Boatum was not an invention of
Stevens ; but is found in Martin Luther's Tischreden or
Table-Talk. Stevens used it for the purpose of raising a
laugh at the expense of judges and lawyers. It is intro-
duced into the Table-Talk to show the great Reformer's
good common sense and sound judgment.

"OF A STRANGE CASE (EIN WUNDERLICHER FALL).

"Anno 1546, a Case in Law was related to Luther,
That a Miller had an Ass which ran out of his yard
and came to a River's side, where hee went into a

1 Hamilton, Lectures on Logic, i. p. 467. He also gives, Ib. p. 468, the
Greek version of the story. 2 Reid, Works, ed. Hamilton, i. p. 238.

3 Bayle, Dictionnalre, s.v. " Buridan," note.

4 LAWYERS' MERRIMENTS

Fisher's Boat that stood in the River, and would drink
thereout. But inasmuch as the Boat was not tied fast
by the Fisher, it swam away with the Ass ; insomuch
that the Miller lost his Ass and the Fisher his Boat.
The Miller thereupon complained of the Fisher, in
that he neglected to tie his boat fast ; Again, the
Fisher accused the Miller for not keeping his Ass at
home, and therefore desired satisfaction for his Boat :
Nunc sequitur quid sit juris ? i.e. Now it is a quere
what the law is ? Took the Ass the Boat, or the Boat
the Ass away ? Whereupon Luther said, These are
called Casus in Jure: ambo peccaverunt : i.e. Cases in
Law; they both were in an error \ the Fisher, in that hee
tied his Boat not fast ; the Miller, in not keeping his
Ass at home. Culpa est in utraque parte : est casus
fortuitus, uterque peccavit negligentia : tales casus &f ex-
empla illudunt summum jus Juristarum : non enim practi-
candum est summum Jus, sed ALquitas. Omnia sunt
gubernanda secundum tequitatem. Ita Theologi quoque
pr*edicare debent, ne homines omnino ligent aut solvant :
that is, There is a fault on both sides : it is a chance-
medlie : there was negligence on both sides : such cases and
examples wave the rigor of the Lawyers : for the extreme
rigor is not to bee exercised, but onely Equitie. All things
are to bee governed by Equitie. And so Divines ought to
preach, that they neither bind nor loos men." 1
The case was put to Luther as if it was a novelty, but
it was a catch of time-honoured standing. 2

1 Colloquia oder Tlschreden Doctor Martini Lutheri, c. 66, f. 407, Franck-
furt a. M., 1576, fol., p. 777; Leipzig, 1700, fol. ; translated into
English by Capt. Henrie Bell, c. 66, p. 495, London, 1652, fol.

2 Infra, p. 226.

CURIOSITIES OF THE LAW 5

CURIOSITIES OF THE LAW.

Law, lawyers and legal procedure have been the subject
of innumerable tales, novels and dramas, of satire and
good-humoured fun. Many of the most amusing stories
in such ancient collections as the Gesta Romanorum
and the Facetiae of Poggio Bracciolini (1380-1459)
relate to courts or lawyers, just as in the modern
"Joe Miller." 1

Some rules of law have their humorous side ; certain
steps of legal procedure strike the observer as odd on
account of their quaintness, their formality, or their com-
plexity ; ludicrous situations constantly arise in the course
of actual proceedings ; lawyers, and even judges, are
occasionally facetious. The humour in such cases is the
product of the law itself or of its administration. It is
the humour of real life. M. C. B. Waree, editor of the
Annales du Earreau Franfais, made a collection of such
curiosities under the title Curiosith Judiciaires ; 2 a similar
volume by Justus Abele was published at Augsburg in
the same year; 3 Herr E. O. Hoffhas given us another; 4
and we have like collections in English by Francis Watt ; 5

1 Legal facetice, satirical and humorous, by John Willock, London, 1887,
8vo, is a kind of legal "Joe Miller." It is a farrago of snippets regard-
ing law and lawyers, very amusing, but without any definite aim.

2 Paris, 1859, 8vo.

3 Wohlgelaunter Doctor Juris, das ist : Juristische Kurzweil, Augsburg,
1859, 8vo. Of older date are Juristische Vademecum, 1789; and Der
lustiger Jurist, by Friedrich Julius Rottmann, Frankf., 1716; Brem.,
fifth edition, 1738, 8vo.

* J uristischer Humor, Berlin [1891], 8vo.

5 The Law's Lumber Room, two series, London, 1895, 1898, 8vo.

6 LAWYERS' MERRIMENTS

William Andrews; 1 Croake James (a pseudonym); 2 L. J.
Bigelow ; 3 and others. 4

The late Sheriff Barclay (1799-1884) wrote on the
Curiosities of Legislation 6 and the Curiosities of the Game
Laws-, 6 and Mr. W. B. Dunbar (d. 1887), procurator-
fiscal, Dundee, threw light on the eccentricities of criminal
law in his Escapes of Prisoners on Technical Grounds in
Scottish Practice ; 7 and there are numerous works of a
similar kind. 8

THE HUMOUR OF LAWYERS.

It has been said " that while the husbandman and
mechanic could console their labours with the accompani-
ment of song, and their work be even prospered by some
self-pleasing tune, the law admits of no such assistance or
diversion, but requires application of the whole faculties
both of body and mind, excluding every expression of

1 The Lawyer, in history, literature, and humour, London, 1896, 8vo ;
Legal Lore, Curiosities of Law and Lawyers, Ib. 1897, 8vo.

2 Curiosities of Law and Lawyers, London, 1882, 8vo.

3 Bench and Bar ; Wit, Humour, and Asperities of the Law, New York,
1867, again 1871, 8vo.

4 E.g. Legal Recreations, or Popular Amusements in the Laws of England,
by a Barrister-at-Law, London [i 794], 8vo. The title-page bears volume
i., but, so far as I am aware, a second did not appear. Heard (Franklin
Fiske), Oddities of the Law, Boston, 1881, I2mo ; Curiosities of the Law
Reporters, Ib. 1871, 1881, izmo; Moncrieff (Hon. Frederick Charles),
Wit and Wisdom of the Bench and Bar, London, 1882, 12 mo ; Jeafferson
(J. C.), Book about Lawyers, 1867, 8vo, 2 vols. ; Pleasantries of English
Courts and Lawyers, 1876, 8vo ; Wilcox (H. S.), Foibles of the Bench,
Chicago, 1906, 8vo ; Foibles of the Bar, Ib. 1906, 8vo.

5 Glasgow, 1864, 8vo. *lb. 1864, 8vo. Ub. 1866, 8vo.

8 E.g. Edwards, Collection of remarkable old English customs and curious
Bequests and Charities, London, 1842, 8vo ; [Byrne (Julia Clara), Mrs.]

HUMOUR OF LAWYERS 7

cheerfulness or refreshment." 1 This is hardly correct.
Lawyers have attacked their own profession and pro-
fessional pursuits on their humorous side, and have
produced a vast literature in prose and verse of Legal
Facetiae, or what may be styled Lawyers' Merriments.

M. Robert Pons (1749-1844), known as de Verdun
from the place of his birth, was an eminent advocate, a
revolutionary, and a poet. He collected materials for a
work on curious books in theology, law, arts and science,
literature and history, but he was a busy man, and was
unable to put them into shape. He, however, entrusted
his collections on law books to M. Julien-Michel Dufour
de Saint-Pathus (1757-1828), who published them under
the title Eibliotheque des litres singuliers en Droit, in his
Questions Illustres? with an abstract or precis of their

Curiosities of the Search Room ; Serious and Whimsical Wills, Ib. 1880, 8vo ;
Tegg, Wills of their own ; curious eccentric and benevolent, Ib. 1876, 12 mo ;
Proffatt, Curiosities and law of Wills, San Francisco, 1876, 8vo. One of
the most curious collection of eccentric wills is that of Gabriel Peignot
(1767-1849), the bibliographer: Choix de testamens anciens et modernes,
remarquables par leur importance, leur singularite, ou leur bizzarrerie, avec
des details historiques et des notes, Dijon, 1829, 8vo, 2 vols.

1 Moile, State Trials, Preface, p. vii. Infra, p. 85.

2 Paris, 1813, 8vo. The Catalogue extends to 90 pages; but, long as
it is, it is far from exhaustive. I incline to think that M. Pons took a
large number of the titles from catalogues, and had not seen the actual
volumes. A considerable portion of the more curious was in the library
of Dominique-Martin Meon (1748-1829), editor of the Fabliaux et
Contes des Poetes franfois (Paris, 1808, 8vo, 4 vols.) and other works. He
had to sell his large library to pay his debts. See Catalogue des livres
precieux, singuliers, et rares, . . . qui composaient la Bibliotheque de M. * *,
No. 450-523, Paris, 1803, 8vo. M. Pons seems to have confined his
collections to works in Latin or French.

There is a copy of the Questions Illustres in the admirable library of

8 LAWYERS' MERRIMENTS

general scope. The book also contains a reprint of a
number of curious treatises of the character enumerated in
the catalogue. The collection of books is one of the most
extraordinary that could be imagined ; it might have been
the work of Rabelais, and certainly shows that the human
mind has many freaks, and that human industry takes
strange ways of finding employment. Some of the works
are intended as banter ; but a large proportion are solemn
treatises on absurd subjects, or ridiculous judgments in
actual cases. Some of the books are well known ; others
could only be found after the search of a lifetime. All
are of a somewhat remote period and by foreign authors.
The humour of the law has not, however, been overlooked
in modern times, and has been illustrated by many writers,
both at home and abroad. I propose to deal with some
of their works, and also with some of those of ancient
date.

LAW LYRICS.

One of the best-known collections of legal lyrics in this
part of the world is that of George Outram, advocate, a
Glasgow man by birth, and editor of the Glasgow Herald.
His genius, says Sheriff Bell, " manifested itself chiefly in
the production of songs and other lyrical pieces, mostly in
the Scottish dialect, and exhibiting, without a touch of
bitterness, an amount of humour unsurpassed by any
other national writer." The piece most often quoted is
perhaps " The Annuity." 1

the Society of Writers to the Signet, Edinburgh, and two in the British
Museum.

1 Legal Lyrics : and metrical Illustrations of the Scotch forms of Process,
n.p. 1851, 8vo, pp. 45. Printed for private circulation, and without

LAW LYRICS 9

I gaed to spend a week in Fife
An unco week it proved to me

For there I met a waesome wife
Lamentin' her viduity.

Her grief brak' out sae fierce and fell,

I thought her heart wad burst the shell,

And I was sae left to mysel'
I sell't her an annuity.

The bargain lookit fair eneugh
She just was turned o' saxty-three ;

I couldna guessed she'd prove sae teugh
By human ingenuity.

But years ha'e come, and years ha'e gane,

And there's she yet as stieve's a stane

The limmer's growin' young again
Since she got her annuity.

" The Annuity " does not relate to a purely legal
matter ; but the pieces dealing with forms of process
exhibit the humorous side of our Court procedure, and
will be referred to when we come to that branch of the
subject.

A more modern collection of the same kind is Law
Lyrics, by our friend, Mr. Robert Bird, also a Glasgow
man and a practitioner in Glasgow, enlarged in a second
edition, and added to by More Law Lyrics. *

"The Sheriff and the Cow" is after the style of Bullum
v. Boatum

the author's name. I have his presentation copy to Robert, after-
wards Lord, Handyside. Again Edinburgh, 1874, 8vo ; Glasgow,
1888, 8vo.

Lyrics, Glasgow, 1885, 8vo ; Law Lyrics, second edition, Paisley,
1887, 8vo. More Law Lyrics, Edinburgh, 1898, 8vo.

io LAWYERS' MERRIMENTS

* * *

A cow had been lent out for hire,

Her milk was to stand for her keeping,
But crummie grew tired of her byre,

Of munching cold turnips, and sleeping;
And so she got strangled past hope,

But whether the rope the cow strangled,
Or whether she strangled the rope,

Was ever the point that was mangled.

* * *

At length, with the cow and the kink

To settle, I made avizandum,
But fear, that with bullets of ink,

My shots will be sadly at random ;

! tempers of men are like chaff

Which breath of two lawyers sets prinkling ;
When tossing a groat, with a laugh,
Could end the dispute in a twinkling.

The author has no great respect for law books-
Some curious things I never fail

To find, my shelves among,
A Stair, with neither steps nor rail,

A Bell without a tongue,
An Abbot that no priesthood fills,

A Dove that scares freebooters,
Rob Thomson's bills, Maclaren's wills,

And courtly forms of Soutar's.

1 have no time for further fumes
Regarding such fine persons

As Dicksons, Erskines, Frasers, Humes,

M'Glashans, and M'Phersons.
But take the word of one who smacks

His thigh, as teeth he gnashes;
Let golden calves be on their backs,

Their insides are like ashes.

LAW LYRICS ii

The settling of a draft is very neatly expressed

Take black ink for the virgin draft,

And scarlet to revise it,
Take purple for a hindmost touch,

And blue to emphasise it;
Then of the various stoppered streams,

Yield up the laurels triple
To mildly flowing blue-black ink,

Thou Prince of lawyer's tipple !

They may not always appreciate the serious view of a
case in the Parliament House, but its humorous side is
never overlooked. The division of the fees amongst the
liquidators of the City of Glasgow Bank was much debated
inside and outside the Court, and was thus touched off

Behold how good a thing it was
For James and Jamieson
To hold themselves a unity
And "only count for one."

But lo ! when pay-day has arrived
With money bags in view,
These Siamese soon cut their cord,
And shout, " We count for two." l

Most of these jeux d* esprit did not survive the session ;
but a few of those of the seventeenth and eighteenth
centuries, and a considerable number of later date, have
been preserved, and find a place in the pages of The
Court of Session Garland? They deal to a large extent in

1 See City of Glasgow Bank Liquidators, 2Oth July, 1880, 7 R. 1196.

2 Edinburgh, 1839, 8vo ; Part Second, 11, 1839, 8vo; Supplement to
the Court of Session Garland, Ib. 1839, 8vo ; Appendix to the Court of
Session Garland, Ib. 1 839, 8vo ; Edinburgh, A Poem, by Thornton
Thistle, Gent., London, 1840, 8vo, with Plates; Themifs Cat <? Nine
Tales, by the author of " Hey Jamie Forrest." A Broadside.

12 LAWYERS' MERRIMENTS

personal allusions, and as years roll on the humour is less
pointed, even in the light of Mr. James Maidment's
annotations.

There are a number of respectable parodies. This is
on Scott's Helvellyn

I climb'd the High Street, just as nine was a ringing,

The Macer to three of his roll had got on ;

And eager each Clerk on his Counsel was springing,

Save on thee, luckless lawyer, who fee had got none.

On the right, Nicodemus his leg was extending,

To the stove, J[honn]y W[righ]t his brown visage was bending ;

And a huge brainless Judge 1 the fore bar was ascending,

When I marked thee, poor O[th]o stand briefless alone.

Colin Maclaurin, son of John Maclaurin, Lord Dreg-
horn, wrote a clever parody of Gray's Elegy

The bell now tolls, soon after dawn of day,
The lawyer herd wind slowly up the street,

The macer court-ward plods his weary way,
Anxious, in haste, each learned judge to meet.

Of a later date is " Poor Peter Peebles' Address to the
Faculty of Advocates," delivered by Mackay at the end
of a performance of Redgauntlet in the Edinburgh theatre,
under the patronage of the Dean of Faculty of Advocates,
on 1 6th July, 1842

A final hearing I must now bespeak,

W? protestation though to add and eik,

For since the thing was heard of, I've abhorred

The very notion of a clofd record.

1 This was William Baillie, Lord Polkemmet. He was a poor lawyer
and an indifferent judge. He was a large-bodied, heavy man, and
when he was made a Lord of Session, it was said that " he added weight
to the bench without weakening the bar."

2 Glasgow Constitutional, 22nd June, 1842

LAW LYRICS 13

It's clear the case must now begin ab ovo.
Agents and Counsel must be fee'd de novo ;
We must arrest again on the dependence,
And re-re-re-revise our condescendence.
That's luce clarius ; but where to find
For sic a cause, twa Counsel to my mind.
Twa Counsel, faith ! a body need na fear
To find twa score a wale d* wigs is here.
Seniors and Juniors, Counsel for the Crown,
And, by my certy, mony a braw silk gown.
The Faculty's before me where to choose,
And wha's the man sae daft as to refuse,
For sake o' fame, with or without a fee,
To have his name conjoined wi' Peter's plea.
But I must see my way a little plainer
Before I pay or promise my retainer.
First, let my Junior be some douce young callant,
Modest, yet free, of ready tongue and talent ;
Wi' comely face, quick eye, and colour ruddy,
Soon to be bleached, poor lad, by midnight study.
The man that I must have for the reply
At once must please the ear and fill the eye.
I care na for your slim and slender blades,
Gi' me the chields that thrive upon their trades,
Wi' breadth of humour, and wi' depth o' law,
Such as, since Harry's time the warld ne'er saw ;
Ane that has power and pathos, fun and fury,
To smooth a Judge or tickle up a Jury.
* * *

There are some clever pieces by Lord Neaves (1800-
1876) in his Songs and Verses.* "The Jolly Testator

1 Songs and Verses, Social and Scientific. By an old Contributor to
Maga, Edinburgh, 1868, 8vo; fifth edition, Ib. 1879, 8vo, with
the music of some of the tunes. The book was originally published
anonymously.

i 4 LAWYERS' MERRIMENTS

who makes his own Will," .for example, contains sound
advice, and humorously expresses what often happens

He premises his wish and his purpose to save
All disputes among friends when he's laid in the grave ;
Then he straightway proceeds more disputes to create
Than a long summer's day would give time to relate.
He writes and erases, he blunders and blots,
He produces such puzzles and Gordian knots,
That a lawyer, intending to frame the deed /'//,
Couldn't match the Testator who makes his own Will.

* * *

You had better pay toll when you take to the road,

Than attempt by a byway to reach your abode;

You had better employ a Conveyancer's hand,

Than encounter the risk that your Will shouldn't stand.

From the broad beaten track when the traveller strays,

He may land in a bog, or be lost in a maze ;

And the Law, when defied, will revenge itself still

On the Man and the Woman who make their own Will.

The late Sheriff of Lanarkshire, Henry Glassford Bell
(1803-1874), wrote some very sympathetic verses on
Neaves, who was an intimate friend

* * *

There was a lad, an eager lad, who studied day and night,
Whose spirit, through all realms of thought, pursued a lofty

flight ;

Who walked away with every prize in every class at college.
And left unopened not one gate of all the gates of knowledge.
And yet he was no cold recluse, but d/bonnaire and free,
As one who feels that social ties exalt philosophy ;
Professors, smiling, shake his hand, the Principal believes,
The day may come when that fine lad may live to be Lord

Neaves.

LAW LYRICS 15

There was a man, an earnest man, who took to study law,
He waded through old Morison, he swam ahead of Shaw ;
He took the marrow out of Stair, the entrails out of Bell,
He sucked the egg of Erskine, and left nothing but the shell.
He quoted case and precedent, unravelled every twist,
From darkened legal quiddity he cleared away the mist ;
The judges gaze in wonderment, and whisper in their sleeves,
" That man, whene'er the Whigs go out, is sure to be Lord
Neaves." 1

The Sheriff had a true vein of poetry, and was also a
humorist, but did not find a subject for his humour in the
law.

Some thirty years ago a number of amusing pieces of
more recent date, by various authors, were collected and
published as Ballads of the Bench and Ear or Idle Lays of
the Parliament House?

One of them, written in 1 870, does not get out of date,
" The Rush to the Bar," to be sung to the tune of " The
Low-backed Car"

Now, listen, and I'll sing you

Some light and artless rhymes ;
We need such lays our hearts to raise,

In these distressful times.
The song that I will sing you

Is not of deeds of war,
But about the lads that come in squads,

To join the Scottish Bar.
Chorus To enter the ranks of the Bar,

They are flocking from near and far !
I think they are mad, but still I am glad
That there should be such faith in the Bar.

1 Ballads of the Bench and Bat; p. 96.

2 [Edinburgh.] Privately printed, 1882, 410. Edited by James [now
Sir James] Balfour Paul and John James Reid (1844-89).

1 6 LAWYERS' MERRIMENTS

* .

Then pledge the bold young jurists,

Who have joined our ranks this year,
Their healths we'll drink, whatever we think

Of the folly that brings them here !
I hope they have private fortunes,
To furnish the sinews of war ;
If not, let us pray they never may say,

"We were daft when we thought of the Bar."
Chorus So let them come on to the Bar,

Things can scarcely be worse than they are !
Here's success to the lads,
Who are coming in squads,
To prove that there's life in the Bar !

More recently we had an English contribution to legal
humour in Lays of a Limb of the Law, by Mr. Edmund
B. V. Christian, a London solicitor, and by him ascribed
to an imaginary town-clerk, Mr. John Popplestone. 1

Mr. Christian has likewise published two other instruc-
tive and amusing works relating to the profession A
Short History of Solicitors, London, 1896; and Leaves of
the Lower Branch; The Attorney in Life and Letters, Ib.
1909. He also writes on the game of cricket. 2

Like Mr. Bird, he deals with the Law Library, and
finds very little good to say of the old writers

The law books are standing in dingy array,
They fill every shelf from ceiling to floor,

Old guides to a silent and grass-covered way
Which never a traveller now shall explore,
Save delvers for antiquarian lore,

1 The Lays of a Limb of the Law . . . Edited ... by Edmund B. V.
Christian, London, 1889, 8vo. This has an interesting chapter "On
the Comedy of the Law," that is, on legal humour.

2 Cf. Irving Browne, Law and Lawyers in Literature, Boston, 1883.

SCOTS MAKERS 17

Who painfully search where their treasures lie hid

In pages that else had been closed evermore,
Forgotten for aye like the wonderful Tidd !

This is a view with which, I am afraid, I cannot sym-
pathise. Current text-books are indispensable for the
hand-to-mouth practitioner ; but the older are equally
necessary for the well-instructed lawyer.

EARLY SCOTS MAKERS.

Several of the early Scots " makaris " or poets dealt
with legal matters, and endeavoured by their satire to
direct attention to the abuse of the legal procedure and
the necessity of reform. Master Robert Henryson, who
was incorporated a member of the University of Glasgow
in 1462, was a Bachelor of Decreets or B.D., that is, a
Bachelor of the Canon Law, for it is to be remembered
that B.D. and D.D. are law degrees, not degrees in
theology. 1 He also practised as a notary public, and
was thoroughly versed in legal procedure. His "Taill
of the Scheip and the Dog " gives an admirable
account of the procedure in the Consistorial Courts
of Scotland in the fifteenth century, while the moral
is that the scales of justice were not always evenly
held

1 B.D. is Baccalaureus Decretorum ; and D.D. is Doctor Decretorum,
that is, Bachelor and Doctor of Decreets ; just as B.C.L. is Baccalaureus
Civilis Legis, and D.C.L. is Doctor Civilis Legis. LL.D. or J.U.D. is
Legum Doctor or Juris Utriusque Doctor, that is, Doctor of both laws,
viz. the Canon and the Civil Law. The correct title of a Doctor of
Divinity is Sanctae Theologiae Professor or Sanctae Theologias Doctor,
abbreviated S.T.P. or S.T.D.

B

1 8 LAWYERS' MERRIMENTS

The foxe wes clerk and notare in the cause ;
The gled, the grape, at the bar couth stand ;
As aduocatis expert in the lawis,
The doggies pley to gidder tuke on hand,
Quhilk wer confidderate straitlie in ane band,
Aganis the scheip to procure the sentence ;
Thocht it was fals, they had na conscience.

The clerk callit the scheip, and he wes thair ;

The aduocatis on this wayis couth propone :

" Ane certane breid, worth fyue schillingis or mair,

Thow aw the dog, of quhilk the terme is gone."

Of his awin heid, but aduocate allone,

The scheip auisitlie gaif answer in the cace :

" Heir I decline the iuge, the tyme, the place." l

Sir David Lyndsay, the Lyon King of Arms, describes
the steps of process still more succinctly

Marie ! I lent my gossop my mear, to fetch hame coills,

And he hir drounit into the Querrell hollis :

And I ran to the Consistorie, for to pleinze,

And thair I happinit amang ane greidie meinze.

They gave me first ane thing, they call Citandum,

Within aucht dayis, I gat bot Lybellandum^

Within ane moneth, I gat ad Opponendum,

In half ane yeir, I gat Interloquendum,

And syne, I gat, how call ye it ? ad Replicandum :

Bot, I could never ane word yit understand him ;

And than, thay gart me cast out many plackis,

And gart me pay for four-and-twentie actis :

1 The Poems of Robert Henryson, ii. p. 89 (Scottish Text Society).

An interesting explanation of the procedure detailed in this piece is
given by the Rev. William Ross of Aberdour in Burgh Life in Dunfermllne
in the Olden Time, p. 18 sqq., Edinburgh, 1864, 8vo.

LAWS IN VERSE 19

Bot, or they came half gait to Concludendum,
The Feind ane plack was left for to defend him :
Thus, thay postponit me twa yeir, with thair traine,
Syne, Hodie ad octo^ bad me cum againe :
And than, thir ruiks, thay roupit wonder fast,
For sentence silver, thay cryit at the last.
Of Pronunciandum, they maid me wonder faine ;
Bot I got never my gude gray meir againe. 1

EARLY LAWS AND CONVEYANCING IN VERSE.

In these cases, and in many others of a similar kind,
legal procedure is introduced into the poem merely as an
incident. Verse has, however, been resorted to as the
medium of instruction, and we have metrical versions of
Statutes and Formularies, of Codes and Reports of Cases,
and of text-books on many branches of law.

Bishop Bridges (d. 1618) rendered the New Testament
into Latin hexameters. 2 Christopher Tye (d. 1572), the
musician, versified the first fourteen chapters of the Acts
of the Apostles, 3 with music to the first two stanzas of
each chapter, " to synge and also to play upon the Lute,

1 Lyndsay, Ane Safyre of the Thrle Esfaitis, ii. pp. 249, 250.

There is a good description of Court of Session procedure at the end
of the seventeenth century in " The Poor Client's Complaint," by
Master Andrew Simpsone, Court of Session Garland, p. 24.

2 Sacrosanctum Novum Testamentum . . . in hexametros versus . . . translatum,
Londini, 1604, 8vo.

Gammer Gurton's Needle has been attributed to the Bishop ; and he is
said to have published " a sheet in rime of all the names attributed
to the Lorde in the Bible."

3 The Actes of the Apostles, translated Into Englyshe Metre, London, by
Wyllyam Seres, 1553, 8vo. A specimen will be found in Warton,
History of English Poetry, iv. p. 149, London, 1871, 8vo.

20 LAWYERS' MERRIMENTS

very necessarye for studentes after theyr studye to fyl theyr
wyttes, and also for all Christians that cannot synge, to
reade the good and Godlye storyes of the lyues of Christ
hys Appostles." 1 A Glasgow graduate produced a metrical
abstract of the Decalogue, which is still in use. 2 Mr.
Robert Smith, schoolmaster at Glammis (d. 1729), tackled
the Shorter Catechism, and produced a metrical version of
that excellent compendium of Calvinistic theology, and
also of the Lord's Prayer and the Creed. 3 The book
is exceedingly scarce, and being practically unknown,
Robert Wilson, a century afterwards, produced another

1 Two of these tunes, the one under the name of " Dundee " and the
other of " Winchester," attained great popularity, and have held their
ground ever since. The former has always been a great favourite in
Presbyterian Scotland :

" Perhaps Dundee's wild warbling measures rise,
Or plaintive Martyrs, worthy of the name."

' 2 Josiah Chorley, minister at Norwich, graduated M.A. at Glasgow in
1672 (Munimenta Universitatis Glasguensis, Preface, p. xxvi). His version
of the Ten Commandments

Have thou no other Gods but me,

Unto no image bow thy knee,

Take not the name of God in vain,

Do not the Sabbath day profane.

is in A Metrical Index to the Bible, p. 42, Norwich, 1711, 8vo ; p. 52,
London, 1818, 8vo. It was included in The Mother's Catechism, by John
Willison of Dundee, Edinburgh, 1769 ; Glasgow, 1774 ; in The
Beginner's Scriptural Catechism, by N. Leitch, F.E.I.S., of Glasgow, in use
till a recent date ; and in other Catechisms for young children.

3 The Assembly's Shorter Catechism in Metre, Edinburgh, 1729. Re-
printed Ib. 1872. He styles himself "Schoolmaster at Glammis," but
he is no doubt the same person as " Robert Smith, Schoolmaster at
Glenshee, Perthshire," author of Poems of Controversy, Edinburgh, 1714.
Reprinted Ib, 1853.

LAWS IN VERSE 21

and independent version. 1 About the same time Joseph
Fitch published a Poetical Grammar of the English
Language. 2

A Statute might be thought to be more intractable than
even the Shorter Catechism, but Henry Dod (d. circa 1630),
the versifier of "all the Psalms of David," has left a metrical
version of the Act of Parliament of the third year of King
James for a public thanksgiving upon the fifth of every
November for our deliverance from the powder treason, 3
" a song meete for yong & old." With what success the
following may indicate

Whereas Almighitie God hath in

all ages shew'd his power
And mercie in miraculous

standing our sauiour :
And gracious deliuerer,

of Church & children deare :
Protecting safely Kings & States

who right religious are.
* * *

Be it therefore enacted, by

the royall majestic,
Of our good king, and by his Lords

diuines, and temporalitie.

1 The Shorter Catechism in Vene : with Scriptural References. To which are
added a few Hymns for Children, Edinburgh, 1828, second edition. The
publication is anonymous, but a former owner of my copy has added
to the name, " Ro Wilson," as author.

2 By Joseph Fitch, London [1820], i2mo ; Ib. [1839], second edition.

8 Al the Psalmes of David : with certeine songes 3" canticles of Moses,
Debora, Isaiah, Hezekiah, and others. . . . Notve faithfully reduced into
casie meeter, fitting our common tunes [London], 1620, I2mo. The Act is
at the end of the volume.

22 LAWYERS' MERRIMENTS

And also by authoritie

of this whole parl'ament,
Tha' foresayd powres & Commons all

assembled nowe present.

That all and singuler diuines

in Churches Cathedrall
And ministers in euerie Church

which is parochiall :
Or other place, that is for vse

of prayer knowne by name,
In Englands Realme or within

dominions of the same,

Shall always on the fifth day of

the moneth of each Nouember,
In prayers to Almightie God,

giue praise & thankes foreuer :
For this most wond'rous happienesse,

in our deliuerance :
That so the same may be preseru'd

in due rememberance.

In early times a metrical form was considered the most
appropriate for sacred and solemn utterances. Amongst
the Romans, seers embodied their vaticinations, and
magicians their incantations, in verse. Proverbs, maxims,
rules of conduct, technical directions, all partook the form
of poetry, and were in this way the more easily transmitted
to posterity. The word carmen was applied to the language
of a law expressed in measured and fixed language in an
unalterable text. 1 The laws of the Twelve Tables were
regarded as a carmen necessarium, to be known by all
citizens, to be committed to memory by all children,
" for imagination was sometimes fertile enough to enable

1 See Daremberg et Saglio, Dictionnaire des Antiquites, s.v. " Carmen."

LAWS IN VERSE 23

people to believe that they could recognise a poetical
character in its clauses." 1

Michael Constantine Psellus (b. 1018), the great
Byzantine Scholar, wrote a synopsis of law in Greek
verse. The lines are TroXtrtKol a-rl^oi, or popular verses,
" a mode of writing which, in many instances, had begun
to supersede the more classical structure of Greek as well
as Latin poetry. Accent or emphasis being substituted
for quantity, lines were formed of a number of syllables
corresponding with some particular species of verse ; and
some original defects in this mode of composition might
possibly be supplied by a peculiar adaptation of the voice." 2

The maxim that ignorance of fact, TOV <CMCTOI/, but not
of law, admits of a legal excuse

Tou vofiov fjifv y ayi/oia (rvyyvw/XTjv ou Aa/z/5avet,
Tot; <f>a.KTOv o-vyyivcixTKerai rots vo/zots TrpoenjKoi'TtoS. 3

Parts of the Senchus Mor, a treatise on Irish law, of the
fifth century are in regular verse; not merely in metre,
like blank verse, but in rhyme. 4 Possession was established
according to the old law of Ireland by a statement in the

1 Ortolan, History of Roman Law, by Pritchard and Nasmith, p. 99,
London, 1871, 8vo.

2 Irving, Introduction to the Study of the Civil Law, p. 73, London,
1837, 8vo.

3 Synopsis legum, verses 1134, 1135, Paris, 1632, 8vo. Psellus, it has
been said, was servile and unscrupulous, weak, fond of intrigue, in-
tolerably vain and ambitious. But as a literary man his intellect was of
the highest order. In the extent of his knowledge, in keenness of
observation, in variety of style, in his literary output, he has been
compared to Voltaire ; but it is perhaps as the forerunner of the great
Renaissance Platonists that he will be chiefly remembered.

4 Ancient Laws of Ireland, i. (Senchus Mor), p. xli ; Ginnell, The
Brehon Laws, p. 78, London, 1894, 8vo.

24 LAWYERS' MERRIMENTS

songs of a poet; 1 and even Sir Edward Coke, following
the civilians, appeals to the authority of poets Authoritates
philosophorum medicorum, et poetarum sunt in causis allegand<e
et tenend<e? " Verse always has been, and still is, easily
committed to memory and retained there ; and the more
harmonious it is the more effective and reliable for this
purpose. To give this quality to things of value, as law,
history, and genealogy, not to speak of pure literature, to
which this quality was then natural, was in such a time as
important a service as a bard could render to his nation.
It imprinted those things, not on paper, but on brains ;
fixed them in heads where otherwise they would not abide,
and rendered them capable of being transmitted from
person to person, from clan to clan, from generation to
generation, from times far beyond the reach of history
until well into historic times. This use of poetry was
clearly very important, and hence the originals of almost
all our very early manuscripts, on law as well as on other
subjects, were in verse. It was the duty of the bards to
reduce the laws into rhythmical form, and they retained
that function in their hands for some time after the actual
necessity for it had ceased to exist." 3

1 Ancient Laws of Ireland, i. p. 46, n. ; v. p. 498 ; cf. O'Curry, Manners
and Customs of the Ancient Irish, i. p. clxxxviii, n.

2 Coke, Commentary upon Littleton, 2643. See Francis Grant (Lord
Cullen), Essays, p. 119, Edinburgh, 1715, 8vo.

The same weight, as now, was not always attached to charters and
written deeds. Nicolaus de Tudeschis (d. 1443), generally known as
Abbas Siculus or Archiepiscopus Panormitanus, a famous Canonist, was
such an enemy to parchment that he laughs at the credit paid to
the hide of a dead animal.

3 Ginnell, Op. laud. p. 77. Cf. John Allen (1771-1843), in Edinburgh
Review, xxxi. (1818), p. 99 sqq., as to Gothic Laws of Spain.

CONVEYANCES IN VERSE 25

In ancient Latin deeds it is not uncommon to find
rythmical passages, which has suggested the quaint idea
that they were intended to be chanted by way of recitative ;
but for this there is no foundation. Notaries, however,
often tried their hands at verse, and metrical preambles,
metrical testing clauses, and even whole deeds in metrical
form are not uncommon. 1

Here is an example of a deed of gift which sets out
the cause of granting in verse

Summo factor! totius creature,
Qui regit totum cujuscumque nature,
Quern tripartitum sua laudat factura,
Viventi cuncta per secula futura,
Hie consecratur ecclesia mansura,

and so on. Then comes the executive clause, the grant
itself, in plain prose

Idcirco ego Bonifatius donamus huic ecclesie, cum uxore et
filiis meis, unam modiatam de terra culta in sponsalicio, atque
cedimus. 2

Another notary took the opposite course, put the pre-
amble in prose and the executive clauses in verse. The
clause of anathema, or cursing the executorial clause
of a Scottish deed and the testing clause, are thus
expressed

Si hac donum aliquis infringere voluerit,
imbre sodomistico
consparsus ac Datanico,
penas luat in inferno,

, Manuel de Diplomatique, p. 450, Paris, 1894, 8vo.
- Cartulaire de P Abbaye de Saint-Victor de Marseille^ i. No. 414, p. 419,
Paris, 1857, 410 (Collection des Cartulaires de France).

26 LAWYERS' MERRIMENTS

toto visu obcecato.
Sexto vero decimo
kalendas mensis julii,
ego donum istud sanxi,
Philippe Francorum rege
regnante felicissime,
Lemovicensi cathedre
episcopo superstite
Guidone, certe nomine,
Ademaro vicecomite
in hac carne prevalente,
videntibus his testibus
quos agnosiat ingens coetus. 1

A number of Anglo-Saxon conveyances are in metrical
form. Take, for instance, a grant of liberties, customs,
and privileges by King Adelstan or Athelstane to the
Church and Chapter of Ripon, about A.D. 925

Wyt all that es and es gan

That ik King Adelstan

As gyven all frelich as I may

And to the capitell of seint Wilfrai,

Of my free devotion,

Thair pees at Rippon

On ilke side the kyrke a mile,

For all ill deedes and ylke agyle,

And within thair kirke yate

At the stan that Grithstole hate ;

Within the kirke dore and the quare

Thair have pees for les and mare.

Ilkan of this stedes sal have pees

Of frodmortell and il deedes

That thair don is, tol [and] tern,

With iren and with water deme ;

1 Giry, Op. laud. p. 452.

CONVEYANCES IN VERSE 27

And that the land of seint Wilfrai

Of alkyn geld fre sal be ay.

At na man at langes me to

In thair Herpsac sal have at do ;

And for ik will at tha be save

I will at thai alkyn freedom have ;

And in all thinges be als free

As hert may thynke or eygh may se,

At te power of a kinge

Masts make free any thynge.

And my scale have I sett therto,

For I will at na man it undo. 1

Here is another and shorter example, a metrical grant
by the same king to Paulane of Odiham and Roddam,
in the county of Northumberland, somewhere between
the years 925 and 941

I Konig Athelstane

Giffis heir to Paulane

Odiham and Roddam

Als gude and als fair

Als ever ye mine ware

And yair to witness Maud my wife. 2

Jacob Grimm (1785-1863) found many traces in exist-
ing jurisprudence of the early relation between the poet
and the lawyer, between poetry and law, as disclosed in
words and phrases, in symbolical forms of legal acts ; and
detected the spirit of the old laws in ballads and sagas,

1 Birch, Cartularium Saxonicum, ii. No. 647, p. 325 ; Earle, Land
Charters and Saxonic Documents, p. 438, Oxford, 1888, 8vo. Cf.
Verstegan, Restitution of Decayed Intelligence, p. 146, Antwerp, 1605,
4to.

2 Birch, Op. laud. iii. No. 1342, p. 680.

28 LAWYERS' MERRIMENTS

and in modern colloquialisms. 1 Professor Otto Gierke,
of Berlin a name familiar in this country 2 has worked
upon the humour of the law, as shown in early and still
surviving institutions ; 3 and a century earlier Professor
Dreyer (1723-1802), of Kiel, drew attention to the value
of " Reynard the Fox " for the interpretation of old
German law. 4 The Jocular Customs of Manors of Thomas
Blount (i 6 1 8-1 679) 5 throws much light upon the early

1 " Von der Poesie im Recht," in Zeitschrift fttr geschichtliche Rechts-
wissenschaft, ii. pp. 25-99, Berlin, 1816; and reprinted in his Kleinere
Schriften, vi. p. 152, Ib. 1882, 8vo.

Professor Conrad Borchling treats of Poesie und Humor in friesischen
Recht, 1908, published in Abhandlungen und Vortragen zur Geschichte
Ostfrieslands, Sept. 30, 1908.

2 Through his Political Theories of the Middle Ages, translated by the
late Professor Maitland, Cambridge, 1900, 8vo.

3 Der Humor im deutschen Recht, Berlin, 1871, 8vo.

4 Abha ndlung von dem Nutzen des trefflichen Gedichts Reineke de Voss in
Erklarung der deutschen Rechts-Alterthiimer, insonderheit des ehemaligen
Gerichtswesens, Butzow u. Wismar, 1768, 410 ; also printed in his
Nebenstunden, Ib. 1768, 410.

Johann Carl Heinrich Dreyer was one of the first to draw attention
to the value of the Anglo-Saxon codes as a law source, in his De usu
genuine iuris Ang/o-Saxonici in explicando iure Cimbrico et Saxonico, Liber
singularis, Kiloni, 1747, 4to.

5 Fragmenta Antiquitatis : Ancient Tenures of Land and Jocular Customs
of some Manors, made publick for the diversion of some and instruction of others,
London, 1679, 8vo ; republished in 1784, 1815, and 1874.

Blount was also the author of a Law Dictionary (London, 1670, fol.),
pilfered by Sir Edward Phillips for his New World of Words. Blount
was a barrister of the Inner Temple, but being a Roman Catholic and in
easy circumstances did not practise, which, says Anthony Wood, " led
him to the paths of literature, and made him hunt after the difficult
and uncouth terms of legal and other science, and get nothing but his
own satisfaction."

POETRY OF THE LAW 29

land law of England, and many of the customs recorded
carry us back to the time when the poet was law-giver.
Shelley declared, in a somewhat different sense, but with
the same ultimate idea, that poets are "the unacknow-
ledged legislators of the world."

There is an amusing article, " The Poetry of the Law,"
in The Edinburgh Law Journal?- which professes to be the
report of the conversation of four members of the junior
bar who dined together in celebration of the close of the
summer session of 1832. "And now, my good friends,"
says one of the interlocutors, " when you recollect that
the interest of some of the most popular works of fiction
turns upon a law-suit, and that the tale of the ' Heart of
Midlothian,' which contains in it more true poetry than
many a misnamed 'poem,' is based upon the records of
our criminal Court, you must allow me to draw the con-
clusion, that within the region of the law a mine of
poetical ore exists, which, if wrought, and the metal
transferred to the crucible of the imagination, may be
refined from its dross and converted into pure and virgin
poetry." It was Grimm's ideas, however, which were
evidently in the mind of the writer

" One great characteristic of poetry consists in its
supplying the mind with imagery from the region of
nature, such as may set it to work upon its store of
kindred recollections, and thus give a movement to
the fancy by touching its own strings and principles of
activity. Now, this sort of imagery perpetually occurs
in the collections which have been made of the ancient
laws and customs of the European States. With your

1 The Edinburgh Law Journal, July-December, 1832, p. 254.

30 LAWYERS' MERRIMENTS

permission, I shall quote a few instances from the
Deutsche Rechts-Alterthumer (Law Antiquities) of Jacob
Grimm."

" The constitution of a servitude of fishing is thus
mentioned in another old law 'A citizen, or a citizen's
child, shall have right to fish with a hook on the banks
of the river as far from the town as the chime of the
churchbell shall reach.' There are many single words
in the old German laws which contain in their forma-
tion a poetical analogy: such are Schwert-magen and
S-pindel-magen, relations of the sword and of the distaff,
i.e. relations by the father's and by the mother's side.
From this analogy is derived the maxim in the German
law of succession, ' Haereditas ad fusum a lancea tran-
seat,' which is expressed in the German idiom, ' The
next of blood born of the sword shall be the heir,
but where there is no sword the distaff shall inherit.'
Mantel-kind^ a child of the mantel, i.e. an adopted
child, is so called because the adopting father took the
child in his arms under his cloak, in token of protec-
tion. Amongst the maxims of the German law, there
are several in which the analogy is highly poetical.
Take the following as an example, which are applicable
to the Law of Succession : ' The bloody hand (i.e. the
murderer) takes no inheritance ' ; ' Heritage goes not
away from the parent's breast,' marking the preference
of children ; and, to express the rule of law, that an
illegitimate child should follow the condition of the
mother, and not of the father, it is said, c The natural
child shall return again to its mother's bosom.' How
might this last idea be expended by an active imagina-

RHYMING WILLS 31

tion! It might call up an image of desolation and
maternal love a child cast off by the world, with no
place whereon to lay its head but its mother's breast ;
it might recur to the young Ishmael, driven from his
home and sitting with his mother Hagar in the wilder-
ness by the well of water. From the examples I have
quoted, I think you will be satisfied that Law and
Poetry are not entirely the antipodes of each other."

RHYMING WILLS.

There is no rule against putting a modern deed in
metrical form. A will may be in verse ; and the following
was proved in the Prerogative Court of Canterbury in

1737 *

The fifth day of May,
Being airy and gay,
And to hyp not inclin'd,
But of vigorous mind,

1 [Crisp] The Conveyancer's Guide, p. xiv, second edition, London,
1821, 8vo ; Tegg, Wills of their own, p. 64.

The Laird of Mather's testament is an example of a Scottish metrical
Will. Nisbet, Heraldry, ii. Appendix, p. 239.

"The Children in the Wood" suggests this advice to Executors and
Overseers of Wills

You that Executors be made

And overseers eke
Of children that be fatherless,

And infants mild and meek :
Take you example by this thing,

And yield to each his right,
Lest God with such like miserye

Your wicked minds requite.
Percy, Reliques, iii. p. 224, London, 1839, 8vo.

32 LAWYERS' MERRIMENTS

And my body in health,

I'll dispose of my wealth,

And all I'm to leave

On this side the grave,

To some one or other,

And, I think to my brother ;

Because I foresaw

That my breth'ren in law,

If I did not take care,

Would come in for a share,

Which I no wise intended,

'Till their manners are mended,

And of that, God knows, there's no sign.

I do therefore enjoin,

And do strictly command,

Of which witness my hand,

That nought I have got

Be brought into Hotch-pot;

But I give and devise,

As much as in me lies,

To the son of my mother,

My own dear brother,

To have and to hold,

All my silver and gold,

As th' affectionate pledges

Of his brother, JOHN HEDGES.

METRICAL VERSIONS OF CODES AND TEXT-BOOKS.

Many of the leading text-books have been put into
metrical form for the use of students, but it is doubtful
whether they have made the path of the learner more
easy. The Institutes of Justinian were translated into
French verse by Richard d'Annebaut (otherwise Onebault
or Enebaud), a Norman trouvere, towards the end of the

METRICAL LAW BOOKS 33

thirteenth century, and printed and published about the
year I485. 1

In 1531 Louis Honore Draco, the friend of Alciati and
counsellor in the Parliament of Piedmont, produced a
Latin metrical version of the Institutes, and of the title of
the Digest " De regulis Juris." 2

A hundred and forty years later the Institutes were again
rendered into Latin heroic verse by Giovanni Battista
Pisacane, and published at Naples in i694, 3 adorned with

1 C'est le livre des institutions des drois appette Institute translate de latim
\sic\ en francois f? corrige en diligence p. plusieurs docteurs et souuerains
legistes, s.l. aut a. [but Paris, 1485 ?] fol., goth. type, 108 leaves (the first
blank), in double columns of 49 lines to a full column. There are
copies in the Advocates' Library and in the British Museum. There
was a copy in Heber's library, Bibliotheca Heberiana, Part iv. No. 1838.
This copy came from the Meermann collection. There was also a copy
in the Solar Library. Catalogue de la Bibliotheque de M. Felix So/ar, No.
395, Paris, 1860, 8vo. See Du Verdier in Bibliotheque s Francoises de La
Croix du Maine et de Du Verdier, iv. p. 554, Paris, 1773, 410; The
Abbe Gervais de la Rue, Essais historiques sur les Bardes, . . . Normands et
Anglo-Normands, iii. p. i8o/^., Caen, 1834, 8vo.

2 Elementa Ivris Civilis, seu Institutiones Imperiales in carmen cotracta,
Lugduni, 1531,410; Lovaniae, 1552, 8vo ; Colonise, 1556, 8vo. There
is a copy of the last in the Advocates' Library. Again Lugduni, 1581,
I2mo, from the author's third edition. There is a copy of this edition
in the British Museum. Again edited by J. A. Falkner. Basil., 1784,
8vo.

8 Institutionum divi Justiniani libri quatuor in carmina redacti, Neapoli,
1694, fol. This, like Bishop Bridges' version of the New Testament, is
a rare book.

There is a copy in the Advocates' Library, and another in the
Grenville Library, now in the British Museum. The latter formerly
belonged to Dr. Samuel Parr, who considered it the scarcest book in his
library. Bibliotheca Patriana, pp. v, 489. Mr. James Crossley, of
Manchester, had also a copy, which had been presented by the author

c

34 LAWYERS' MERRIMENTS

a portrait of the author. The edition was either a very
limited one, or some accident overtook the book, as it is
one of extreme rarity.

The commencement of the title " Partnership " may be
taken as an example of the three translations of the
Institutes.

Compaignie peust estre fete

Entre aucuns sil leure hete
De tous lors biens generalement
Qu daucuns especialement
Se il lor plest et con leur semble
Chairs ou vin ou oile ou forment
Si ne fut dit premierement
Au mettre en semble loir auoir
Quel part chacun deuoit auoir
Ou du gaing oil q aduient
Et sil pot conuenant fait
Que lun ou plus ou mains en ait
En ce cas est il menant
Que len gait bien le conuenant
Quar il nest pas doute sans faille
Que tel conuenance ne vaille
Et quelle ne doie estre soufferte
Que du gaing ou de la perte
Lun ait les deux pars quitement
Lautre la tierce seulement. 1

to the Hon. E. Finch, afterwards Finch-Hatton. Catalogue of the . . .
library of the late James Cross&y, Part i. No. 1534, London, 1884, 8vo.

Jo. Anton. Sergius published : De juris studio, poeticte facultati ad-
nectendo, Neapoli, 1742, 410; see infra, p. 45.

Cornelius Van Eck, of Utrecht (d. 1732), was the author of Orationes
bin<s de studio Poetices conjungendo cum studio Juris Romani, Ultrajecti,
1697; Lugd., 1713, 8vo, and later editions.

1 Le liure des Institutions des drois, K. 6, verso.

METRICAL LAW BOOKS 35

Sunt socii quidam cunctorum forte bonorum,
Sunt alii vnius tantum, certique negoci.
Inter quos, si nil de lucri parti bus atque
Damni est conuentum, partes intellige lucri,
Ac damni aequales. Porro conuentio semper
Seruetur, quamuis partes non dixerit aequas.
Quin poterit socius lucri partem capere vnus
Maiorem, damnique nihil sperare. minusve,
Si sic conuentum tamen est. 1 . ,

Totorum fieri sociatio sive bonorum

Est solita, hanc Graeci speciali voce vocarunt :

Sive rei unius; veluti vendendi, et emendi

Servorum, Cererisve, olei grative falerni.

Et nisi de lucro, ac damno convenerit aequse

Et damno, et lucro partes spectantur in omni ;

Si vero expressae fuerint, servarier istse

Debent. Quin habeat validum conventio robur,

Nam dubium fuit haud unquam convenerit inter

Si socios, ut ad unum duplex portio damni,

Et lucri alterum & ad socium pars tertia spectet. 2

The first book of the Institutes of Justinian has been put
into German verse. 3

There was a metrical Index to the Code of Justinian ; 4
and the Disfinctiones, of the third part of the Decretum of
Gratian, were versified, 5 each line embodying one
Gloria pontificis est ut procul ingluvies sit.
Expedit ut non sit percussor quisque sacerdos.

1 Draco, Elementa Ivrif Civilis, p. 74, Lugduni, 1581, 12 mo.
2 Pisacane, Institutiones, p. 155.

3 By J. C. H., Oldenburg, 1842, I2mo.

4 Codicis Justiniani perioehte seu rubricee singulee singulis venibus comfre-
henste, Paris, 1616, 12 mo.

5 Decretum versificatum, 8vo, n.p. n.d. [? Paris I circa 1500], 15 pp.
This forms part of In utriusque Juris libros introductorium. See infra, p. 152.

36 LAWYERS' MERRIMENTS

Respuit haec hominem distinctio litigiosum.
Mittit in interitum cupidos haec foenus abhorrens.

The Distinctiones of the first and second part of the
Decretum, 1 and the Rubrics of the Decretals were treated
in a similar manner ; 2 while Ambrosius de Woestine, a
monk of Tournay, produced a metrical abridgment of the
whole Corpus Juris Canonici?

Scipion Dupleix (1569-1661), the French historian, the
friend of Queen Margaret and councillor of State, wrote
a metrical version of the axioms and rules of law. 4

There is a metrical version of the Coutume de Paris by
Gamier Deschennes ; 5 and the old Customs of the town

1 In various editions of the Decretum, e.g. Decretum Gratiani cum
glossis, Venetiis (Lucas Ant. de Giunta), 1514, 410.

See Summula Pauperum, quam nominant plures iurisperitorum versus
Decretales, Paris, 1493, 1494, 4to, by Master Adam, a Dominican friar.
See Murray, Legal Practice in Ayr and the West of Scotland, p. 81.

2 After giving the rubrics of the first five books of the Decretals, the
little manual mentioned on the preceding page proceeds : " ut eo melius
menti teneantur, sequuntur versus de eisdem secundum ordinem."

z Tractates Fratris Ambrosii de vvoestine, cum commento elusdem : nouiter
emendatus, tnetra slue versus totius corporis iuris canonici continens. Paris
(Nicolaus de Barra), 1 500, 8vo.

4 Axiomata, sententiee et regulee Juris versibus redditee, Paris, 1635, i2mo.
He also published a commentary on the Institutes of Justinian, Ib. 1635,
8vo ; and rendered the somewhat uncouth grammar rules of Despauter
into more fluent verse, Ib. 1644, 410.

6 La Coutume de Paris, mise en vers, avec la texte a. cote, Paris, 1768,
izmo, third edition, Ib. 1787 ; Catalogue . . . de la Bibliotheque de M[eon\,
No. 485, Paris, 1803, 8vo ; Catalogue of Books on Foreign Law presented by
C. P. Cooper to Lincoln's Inn, p. 32, London, 1849, 8vo.

The Coutumes de Normandie were also put into verse, but do not
seem to have been printed. Catalogue de M\eon\, No. 486.

METRICAL LAW BOOKS 37

of Bruges appeared in Flemish verse. 1 The Code Napoleon
has twice been put into French verse first by J. H.
Falcon-Rochelle in 1805, and next by Benoit-Michel
Decomberousse in i8n. 2

The German penal code and the Ordinances relating to
Bills of Exchange and to the German Constitution have
been reduced into memorial verses by Moritz von Rey-
mond, 3 and we have the following from Amtsrichter
Schiller of Gleiwitz, on the new Civil Code 4

Der Sang vom Burgerlichen Gesetzbuch.

Fiinf Bucher, wie der Pentateuch,

Hat's BGB, das merket Euch.

'Nen allgemeinen Teil nicht schlecht

Der Schuldverhaltnisse ihr Recht,

Der Sachen, der Familien Jus ;

Das Erbrecht macht, wie stets, den Schluss.

In Abschnitte teilt man sie ein ;

Hort; 2 mal 7, 9, 3, 9.

Die Zahl der Leges schuf auch Wandel:

Zu 40 Schock fehlt eine Mandel.

1 Published by the Abbe F. van de Putte " Lois anciennes de Bruges" in
Annales de la Societe <f Emulation de Bruges, i. (1859) pp. 211-272. See
Warnkoenig, Histoire de la Ville de Bruges, by Gheldorf, p. 5.

2 Code Civil des Franfais mis en vers avec la texte en regard Liv. ler, par
J. H. F. R. ; Paris, 1805, i8mo ; Code Napoleon mis en v ers franf ais ; par
D * * * ex-legislateur, Paris, 1811, I2mo. The translation has
erroneously been attributed to Count Daru.

8 Strafgesetzbuc h . . . in Ged'dchtnissversen, Bern, 1881, izmo; Allge-
meine deutsche Wechselordnung in Geddchtniswerscn, Leipzig, n.d. I2mo;
Verfassung des deutschen Reiches in Ged'dchtnissversen, Ib. n.d. 12 mo.

4 Deutsche J uristen-Zeitung, iii. (1898) p. 346.

38 LAWYERS' MERRIMENTS

3. Buch. Im dritten Buch, dem Recht der Sachen,
Wird der Besitz uns Freude machen.
Vom Recht am Grundstiick Allgemeines;
Das Eigentum ist sehr was Feines.
Ein Erbbaurecht kommt vor zu Zeiten,
Viel offer freilich Dienstbarkeiten.
Hab' ich den Vorkauf mir bedungen,
Macht 'ne Reallast Weiterungen.
3 Sorten Pump kann man sich leisten ;
Das Pignus kennen wohl die Meisten.

In English we have the rhymed chronicle of Edward
Manlove, poet and lawyer, The Liberties and Customes of
the Lead-Mines^ . . . composed in Meeter? The law is well
stated, and the metre is respectable.

There is space for but a short specimen.

And two great Courts of Barghmoot ought to be

In every year upon the Minery,

To punish Miners that transgress the Law,

To curb Offenders, and to keep in awe

Such as be Cavers, or do rob Mens Goes ;

Such as be pilferers, or do steal mens stows;

To order grovers, make them pay their part,

Joyn with their fellows, or their groves desert;

To fine such miners, as mens groves abuse,

And such as orders to observe refuse;

-Or work their meers beyond their length and stake;

Or otherwise abuse the Mine and Rake;

Or set their stowes upon their neighbours ground,

Against the Custom, or exceed their bound.

1 London, 1653, 410; Ib. 1851, 8vo, second edition.

COMIC TEXT-BOOKS 39

COMIC TEXT-BOOKS.

Our Scottish and English text-books have not been
reduced to verse ; but the Comic Blackstone^- is a most
amusing presentation of one of the greatest of English
law books. The author was Gilbert Abbot a Beckett
(1811-1856), a sound lawyer and an excellent magistrate.
While the law is stated in a comical and often ludicrous
manner, it is correctly expounded.

" Every Englishman has a right to live in England ;
or at least, if he cannot live, he may have the glorious
privilege of starving there. The Sovereign may not
send a subject even to Scotland, Guernsey, or Sark,
though George the Fourth sent Brummell to Coventry ;
and our present Queen has been heard to tell Sir Robert
Peel to go to Bath when he has proposed measures
contrary to the welfare and happiness of the people.
The third right is the right of property, which the law
peculiarly regards, and will not allow a man to be
deprived of his property except by the law itself, ' which
often,' says Fleta, * hath a happie knacke of stryppinge
him.'

" It is a beautiful fiction of the English law that no
man pays taxes without his own consent ; and, from this
assertion it would naturally be supposed that the tax-
gatherers were the very idols of the people, who flocked
round them, tendering specie and asking receipts for it.

1 The Comic Blacks tone, with illustrations, by George Cruikshank. Lon-
don, 1846, 8vo; a new edition, /. 1856, 8vo. a Beckett also wrote
The Comic History of England and The Comic History of Rome, and in more
pedestrian vein, The Small Debts Act, with annotations and explanations,
critical and analytical, London, 1845, 8vo.

40 LAWYERS' MERRIMENTS

By legal imagery, the people are declared to tax them-
selves ; but Bracton, in a learned note, added * Hookey '
to this assertion ; while Mr. Selden, by way of strength-
ening the comment, has subjoined * Walker ' with his

customary quaintness."

* * *

" It seems that Coke, in his pleasant squib on Littleton
for surely he who throws a light on another may do
so by aiming a squib at him has described an incor-
poreal hereditament as a right issuing out of a thing
corporate, whether real or personal, such as a rent
issuing from land, which is not the same as money got
by raising the wind, though rent is sometimes paid by
resorting to the latter process.

" There are ten sorts of incorporeal hereditaments ;
so that, as we have already said, they must be out of
sorts indeed who have not the enjoyment of any one of

them."

* * *

" Compulsion may also arise from fear ; as, if I kill a
man from fear of his killing me, but my fear must be
reasonable, for I have no right to get myself into such
a nervous state that I am to mistake my valet for an
assassin, and shoot him dead when he enters my room
with my shaving water. If I am told that if I read a
facetious book it will make me die of laughing, I am
not justified in assassinating the author or the publisher,
for my fear must be such, ' qui cadere possit in verum
constantem non timidum et meticulosum*

' Fear that might touch a man with nerves of leather ;
Not one whom you might knock down with a feather.' " *

1 The Comic Blackstone, pp. 25, 97, 200.

COMIC TEXT-BOOKS 41

Sir Charles (now Mr. Justice) Darling, writing in the
guise of a jurisconsulte goguenard^ thus 1 speaks of new
statutes

" As every enactment must, of necessity, be a check
upon some passion, or predilection of human nature, it
is prudent not to attribute much force to a new law, but
to wait until it has been assented to by judicial interpre-
tation before one entertains much respect for it. There
never yet was a tyrant who did not rule by the sub-
mission of his subjects. Majorities can only be enslaved
when they prefer servitude to resistance ; and it is to
no purpose to command that men shall do what they
have not a mind to. Let it be decreed to-day that all
men shall be just, and by to-morrow it will have been
decided that they are so ( within the meaning of the
Act ' ; for, though the contrary would be the truth,
humanity could not bear to pronounce it."
Of hearsay evidence he remarks

" It seems a pity that what is called ' hearsay evidence '
is not allowed to be given in our Courts for what it is
worth ; for, though it may be freely admitted that what
a man hears said of him, without denying it, may be
assumed to be true, it is none the less likely that a
good deal more truth will be spoken of him when he
is away than when he is present to be offended at the
candour of his friends, and, possibly, to vigorously
resent it.

" And, though I am not prepared to say with ' the

Jacobin,'

' Whatever is, in France, is right,'

1 Sctntillte Juris, London, 1889, I2mo, fourth edition. Originally
published anonymously in 1877.

42 LAWYERS' MERRIMENTS

yet there is much more to be said for gossip than that
the French Courts attend to it."

" * Debitores non presumuniur donare? Yet debtors do
make gifts, and large ones, often giving away the whole
of their estates. I have noticed that bankrupts are men
of very tender affections where their relations are con-
cerned ; and they are so far unprejudiced that they often
prefer a creditor."

" The books contain the maxim, ' Via trita^ via tufa.'
I do not know that this has yet been alleged as a reason
for not repairing a highway. But it would make as
good a defence as many I have heard."

FACETIOUS PRECEDENTS.

Benoit du Troncy, comptroller of the royal domain, and
secretary of the town of Lyons, writing under the pseu-
donym of Bredin le Cocu, was the author of " un petit
livre rare et assez curieux," containing a collection of
forms of contracts, donations, wills, codicils, and other
notarial acts, which appeared in Lyons in 1594 and again
in 1603, 1610, 1615, 1618, and i62j. 1

1 Formulaire fort recreatif de tovs contractz, donations, testamens,
codicilles et aultres actes qui sont faicts et passez par devant notaires et
tesmoings, Faict par Bredin le Cocu, notaire rural et contre-rooleur
des Basses-Marches au royaume d'Utopie, par luy depuis nagueres reveu
et accompagne pour 1'edification de tous les bons compagnons d'un
dialogue par luy tire des cevres du philosophe et poete grec Symonides,
de 1'origine et naturel foeminini generis, Lyon, P. Rigaud, 1610, i6mo.

There was a recent reprint of 76 copies of this edition. There was, as
above mentioned, an earlier edition, Lyons, 1594, i6mo; and several
later. There were copies of those of 1618 and 1627 in the Potier
Library, Catalogue, Nos. 1545, 1546; there was a copy of the 1618

FACETIOUS PRECEDENTS 43

The forms of deeds are those in use in the sixteenth
century, and contain all the ordinary clauses, with some
whimsical or ridiculous additions. Facetious deeds were,
however, well known long before that period. There are
two, which are said to belong to the fourth century :
" Testamentum ludicrum Sergii Polensis, parasiti," and
" Testamentum ludicrum Grunnii Corocottae porcelli."
The former has more of the character of an epitaph or an
address to those who passed the author's tomb, than of a
will. It is claimed to date from about the year 300 A.D. ;
but was first published in the early part of the sixteenth
century by Lucio Domizio Brusoni, 1 a Neapolitan lawyer.

The second is a testament, but it is the testament of a
young porker. St. Jerome (331-420) relates that, in his
time, boys in school sang, amidst shouts of laughter,
testamentum autem Grunnii Corocottae porcelli?' There is no

edition in the Meon Library, Catalogue de la Bibliotheque de la M\eon\,
No. 2594. See de Bure, Bibliographie instructive, No. 3618. There
seems also to have been an edition, Paris, 1605, i6mo, Catalogue des livres
de le Marquis de Collande, p. 16, No. 41 [Paris, 1753], 8vo, in which
it is marked " Pas commun." The tract was also reprinted in vol. vi.
of Collection des bibliophiles Lyonnais of Jean Baptiste Monfalcon, Lyons,
1846, 8vo.

The " Dialogue de 1'origine et naturel des femmes " is an appendix.

l Facetiarum exemplorumque libri vii., f. i89 b , Romas, 1518, fol. ; and in
Speculum Mundi, p. 430 ; Lugduni, 1658, 8vo ; Terrasson, Histoire de la
Jurisprudence romaine, Appendix, p. 85, Nos. 101, 102, Paris, 1750, fol.;
Peignot, Testatnens remarquables, ii. p. 239.

Fran9ois Vavasseur, S.J., maintains, De ludicra dictione, Lut. Paris,
1658, 4to, that this kind of burlesque was unknown to the ancients.
As to Vavasseur, see Flogel, Geschichte des Burlesken, p. 60, Leipzig,
1/94, 8vo.

-Opera, iii. p. 307, iv. p. 369, Paris, 1693-1706, fol. 5 vols.

44 LAWYERS' MERRIMENTS

further mention of the piece, however, until the beginning
of the sixteenth century. 1

The pleasantries of the testament of the little pig Coro-
cotta have been much admired, but the modern reader
will find little amusement in it. The butcher resolves to
kill the pig; but it asks respite for an hour to make its
will, and not being able to write dictates it. It bequeaths
a certain quantity of acorns to its father, of wheat to its
mother, and of barley to its sister ; its bristles to the
shoemakers ; its teeth to the brawlers ; its ears to the
deaf; its tongue to the pleaders and the babblers ; and so
on, and in the end requests that a monument be raised to
its memory.

There is a similar but modern French piece, the Testa-
ment of Robin, a noble boar, slain at Liesse, by order of
the god of festivities. A couple of lines will suffice as a
specimen

Item, je laisse encor le tranchant de mes dents
Aux bigots offenses, aux rimeurs imprudens. 2

1 Fani, 1505, 8vo ; and again Venet., 1520, 8vo. See Peignot,
Testament remarquables, ii. p. 248 ; Brunet, Manuel, s.v. Grunnius. It
was published by Ottmar Nachtigall, latinised Luscinius, a German
litterateur, along with Grunnius Sophista, sive Pelagus humance miserice,
Argent., 1522, 8vo. There seems also to have been an edition, Ib. 1521.
It was again published with the Proverbiorum Symmicta of J. A. Brassi-
canus, infra, p. 48. It was also printed by J. J. Grynaeus in his Adagia
[Frankfort], 1643, fol. ; and in two anonymous publications, (i) Pallas;
i.e. Admiranda rerum admirabilia Encomia; sive diserta ... Pallas ... Hoc
est Dissertationum ludicrarum . . . Scriptores varii, Noviomagi Batav., 1666,
and again 1676, I2mo ; and (2) Nug^e venales, Lond., 1741, I2mo.

2 Peignot, Testamens remarquables, ii. p. 255.

As to other uses of the Testament, see Ib. p. 279 ; see also Mein letzter
Wille und Nachlass. Aus den Papieren eines scheintodtbegrabenen Rechtsan-
waltes, Leipzig, 1843, 8vo.

RESPUBLICA JURISCONSULTORUM 45

INSTRUCTION IN LAW BY THE NOVEL.

The novels relating to the law are innumerable ; l but
use, it has been said, has been made of the novel as a
means of teaching the Civil law. 2 The reference is to the
RespubKca Juris consultorum 3 of Giuseppe Aurelio de Jen-
naro, in Latin, Joseph Aurelius de Januario (1701-1761),
an eminent Neapolitan lawyer, but it is not a novel, as
generally understood. The author, following in the foot-
steps of Lucian, feigns that there is an island in the -fligean
sea, in which lawyers assemble after their death and form
themselves into a republic, with three orders, like that
of ancient Rome senators, knights, and people. The
senatorial rank is composed of lawyers from the time of
Sextus Papirius to Modestinus ; the knights are the pro-
fessors of law at Rome, at Constantinople, and Berytus,
and those who, since the time of Alciati, have interpreted
the Roman law by means of the monuments and historical
sources. The glossarists, and the dogmatical and exege-

The Testamentum Lucii Cuspldii (Terrasson, op. laud. Appx. p. 87,
No. 103) and the Contractus venditionis antiquis Romanorum temporibus
initus were forgeries of the Renaissance, and are of interest as having
deceived Rabelais, who edited them, (apud Gryphium) Lugduni, 1532;
R. C. Christie, Essays and Papers, p. 60, London, 1902, 8vo.

1 Mr. Christian deals with three, Bleak House, Ten Thousand a Tear,
and Orley Farm ; see Leaves of the Lower Branch, The Attorney in Life and
Letters, p. 50 sqq., London, 1909, 8vo.

2 Crisp, The Conveyancer's Guide, p. ix. The preface to this volume
has some interesting information regarding the humour of lawyers.

3 Neapoli, 1731, 410 ; Ib. 1752, 8vo ; and edited by F. O. Mencken,
Lipsiae, 1733, 8vo. His life was written by J. A. Sergius, and was pub-
lished in Lamius, Memorabilia Italorum eruditorum, ii. part I, p. 60,
Florent., 1748, 8vo. See also Weidlich, Nachrichten von denen jeztlebenden
Rechtsgelehrten, iii. p. 204, Halle, 1759.

46 LAWYERS' MERRIMENTS

tical exponents of that law, from the time of Accursius
and Bartolus, who the author thought had destroyed its
spirit through their subtleties, compose the populus. Jen-
naro supposes himself to be transported to this island
along with some friends. Ulpian and Papinian are con-
suls; Cujas is praetor; Cato and Irnerius are censors;
Servius Sulpicius presides over the senate. By this
machinery the author is enabled to pass judgment on the
works of the ancient jurists. He examines and criticises
a long list from Alciati, Bartolus, and Baldus, down to
Vinnius, Perezius, and Corvinus. The work concludes
with a poem on the jurisprudence of the Romans and the
Laws of the Twelve Tables. 1

Twenty years later Jennaro published a sequel to this
work. 2 In this the travellers have returned from their
eastern journey, and on their autumn holiday discuss the
title of the Digest, De Regulis Juris, which one of the party
renders into Latin verse

Regula rem breviter narrat ; non nascitur ex hac

Jus ; e jam nato regula jure venit.
Haec quaedam est causae conjectio, teste Sabino ;

Irrita, parte aliqua si vitietur, erit.

He also wrote a work on unfair practices in defending
cases at the bar, which was translated into French. 3

J It was translated into French by the Abbe Dinouart, Paris, 1768,
izmo, but the translation is careless and inaccurate. Dufour, Questions
1 Must res, p. 138.

2 Ferine autumnates, post reditum a Respublica Jurisconsultorum, Neapoli,
1752, 8vo. The complete works of Jennaro, edited by Dominico Torres,
were published at Naples in 1767, 8vo, 4 vols.

8 T^elle viziose maniere del defender le cause nelforo, Neapoli, 1 744, 410 ;
Venezia, 1748; with a history of advocacy by Sergius. The French
version is by Royer-Duval, V Ami du Barreau, Orleans, 1787, izmo.

PROVERBS 47

PROVERBS.

In ancient days, tradition says,

When knowledge much was stinted
When few could teach and fewer preach,

And books were not yet printed
What wise men thought, by prudence taught,

They pithily expounded ;
And proverbs sage, from age to age,

In every mouth abounded.

O blessings on the men of yore,
Who wisdom thus augmented,

And left a store of easy lore
For human use invented. 1

The publication by Erasmus in 1500 of his great collec-
tion of Adagia 2 "the wit and wisdom of the ancient
world" gave an impetus to the collecting of proverbs
and pithy and pregnant sayings ; and the lawyers followed
in the same field. His collection was soon supplemented
by others, but most of the editors lacked his learning and
caustic wit. In the issues of the Adagia of 1574, 1579,

1 Lord Neaves, A Song of Proverbs, see supra, p. 1 3.

2 The first edition contained only 800 proverbs ; the last edition pub-
lished in his lifetime, that of 1536, has more than 4000. Of the Adagia
it has been said, " Liber est, quo nemo carere potest Latinae linguae
paululum studiosior," Morhof, Polyhistor, i. 21, 69.

The copy of the 1612 edition in the Library of the University of
Glasgow was bequeathed to it, with 49 other volumes, by Mr. William
Struthers, the author of Looking-Glasse of Princes and People, Edinburgh,
1632, 410 ; a native of Glasgow, a graduate of the University, for some
time one of the ministers of the city, and latterly one of the ministers of
Edinburgh, where he died on gth November, 1633.

The Adagia selecta of Joannes Antonius Berlucius, Geneuas, 1632, 8vo,
contains the collection of Erasmus, and a large number of others.

48 LAWYERS' MERRIMENTS

and 1612 there are large additions, several ot which have
been treated as collections of law proverbs. These are by
Johann Alexander Kohlburger, latinised Brassicanus (d.
1539), a poet who claimed to be a lawyer, but none of the
proverbs he gives can be said to be in any way profes-
sional; 1 Willelm Canter (1542-1575) of Louvain, a
scholar of great learning and extraordinary diligence ;
Peter Godofredi or Gottfried of Carcason, a lawyer and
procurator of the king ; and Gulielmus Gentius. The
latter took his examples from the Corpus Juris Civi/is and
its commentators. Some of them are pointed and apposite ;
and some of them humorous, as, for instance, the anecdote
of Bulgarus, the most celebrated of the famous " Four
Doctors of Bologna" (d. 1167), who, having married an
elderly woman, reputed not to be a spinster, began his
lecture next morning by reading the constitution, Rem non
novam neque insolutam aggredimus, which so tickled his
students that they roared with laughter and beat the desks
with their note-books ; and the phrase Rem non novam
aggredi passed into a proverb. 2

1 Brassicanus, it is said, was the author of a humorous piece, Testamentum
Huschelini, Argentorati, 1520, 8vo (Catalogus TSibliotheetx Bunavianee, i. part
iii. p. 2102). I have not seen this book, and it may be a mistake for the
Testamentum Porcelli, which was included in the edition of his Proverbiorum
Symmicta, Paris, 1532, 8vo, supra, p. 44, but as the Bttnau Library is now
incorporated in the Royal Public Library at Dresden, this can be ascer-
tained.

2 Erasmi Adagia, Col. Allob., 1612, col. 1541 ; Panzirolus, De claris
legum interpretibus, ed. Hoffmann, p. 104, Lipsiae, 1721 ; Bayle, Diction-
naire, s.v. " Bulgarus," Note B.

The four doctors have been characterised by Irnerius thus
Bulgarus os aureum, Martinus copia legum,
Mens legum est Hugo, Jacobus id quod ego.

PROVERBS 49

A proverb, like a text of Scripture, may be the subject
of a volume. Nothing could be more compact or pithy
than the maxim, Mors omnia solvit, but it was expanded
into a volume by Sebastian Medices, a jurist of Florence,
Knight of the Order of St. Stephen, and Protonotary
apostolic. 1 Professor Johann Georg Fichtner (1673-1729),
of Altorf, set great store on legal proverbs, and devoted
several dissertations to the elucidation of particular ex-
amples, with illustrations drawn from law and literature,
songs and folklore. One of the most noted of these was
on the saying, Parvi fures suspenduntur magni dimittuntur?

The Germans have always been fond of putting their
law into the form of proverbs or striking sentences. There
were early collections by Gaertner, 3 Gilhausen, 4 Wolden-

1 Mors omnia sofoit, Florentiae, 1580, 8vo. His collected works were
published at Venice in 1686, in two volumes folio. He wrote on
Hunting, Fishing, and Hawking, Possession, the Law of Burial, and
other like subjects.

The maxim figures in Judge Jenkins, Eight Centuries of Reports, Fourth
Century, Case 2, p. 160, London, 1734, fol. It is applied to the case of
the death of a party to an action. The maxim is expanded by the
addition Inftnitum injure reprobatur.

2 Dissertatio de trito sermone proverbio : " Parui fures suspenduntur, magni
dimittuntur vel in crumena puniuntur five marsupio reconduntur" Alt., 1726,
410. In German the proverb is " Kleine diebe henckt man, grosse last
man lauffen," and corresponds to the classical " Dat veniam corvis, vexat
censura columbas," or, as otherwise put by Swift, " Laws are like cobwebs
which may catch small flies but let wasps and hornets break through."
Essays on the Faculties of the Mind, Works, ed. Scott, ix. p. 129,
London, 1883, 8vo.

3 Gaertner (Andreas), of Marienberg. Dicteria prouerbiaRa rythmica cum
versione Germanica, Francof., 1 598, 8vo. A compilation from other authors.

4 Gilhausen (Ludovicus), J.U.D., Advocate at Freidberg in Hesse.
Fasciculus Prouerbiorum et sententiarum ex utroque iure, Milhlhaus., 1600, 410.

D

5 o LAWYERS' MERRIMENTS

berg, 1 Hertz, 2 Pistorius or Becker, 3 Scherz, 4 and Weber. 5
By far the most important, however, was that of F. K.
Conradi (1701-48), professor of law at Helmstadt, 6 which
was edited after his death, under a new title, by his pupil,
J. F. Eisenhart (1720-83), also professor at Helmstadt,
and which has held the field to the present time. 7

The recent German civil code has been so treated by
Dr. Georg Cohn, professor in the University of Zurich ; 8

1 Woldenberg (Christian), a lawyer at Rostock, d. 1674. Micarum
iuris manipuli tres, continentes prouerbia, metaphoras, et sententias in lure
extantes, Rostoc., 1665, 410. Born at Crempe in Holstein, he studied
at the Universities of Leipsic, Cologne, Louvain, Leyden, Copenhagen,
Greiffswald, and Rostock.

2 Hertius or Hertz (Johann Nicolaus), Professor at Giessen, 1652, d.
17 10. Paroemiarum iuris Germanicarum Libri tres, included in his Opuscula,
vol. i. part iii. pp. 382-639, Francof., 1700, 410; Saturn paroemiarum
iuris Germanicarum noua, Ib. vol. ii.part iii. pp. 429-488. See J. Franck,
s.v. "Hertius" in Allgemeine deutsche Biographic, xii. p. 239.

8 Pistorius (George Tobias). Thesaurus Paroemiarum Germanico-Juridi-
carum centuria I.-X., Lips., 1714, 8vo ; second edition, Lips., 1716-25,
8vo, 2 vols.

4 Scherz or Schertzius (Johann Georg). Paroemite iuris Germanici,
Argent., 1723,410.

5 Weber (Immanuel), Professor of Law at Giessen, d. 1726. Specimen
Paroemiarum historicarum ad res Germaniae illustrandas comparatum, Giessen,
1715, 410. Weber was a voluminous writer and indulged in poetry.

6 Franz Karl Conradi, Professor at Helmstadt, had an intimate know-
ledge of Roman law.

7 Eisenhart (Johann Friedrich), Professor at Helmstadt. Grundsatze
der deutschen Rechte in Sprichwb'rten, Helmst. 1792, 8vo ; third edition
by C. E. Otto, Leipzig, 1823, 8vo.

8 Das neue deutsche bttrgerliche Recht in Sprtichen.

I. Allgemeiner Teil, Berlin, 1896, 8vo.
II. Recht der Schuldverhaltnisse, Ib. \ 897, 8vo.

III. Sachenrecht, Familienrecht, Ib. 1899, 8vo.

IV. Erbrecht, Ib. 1900, 8vo.

PROVERBS 51

and there are many volumes of the same description by
Graf and Dietherr, Hillebrand and others. 1
Here are a few examples from Dr. Cohn

Nur der Lebende hat Recht.

Jeder Lebende hat Recht.

Bab oder Madel tertium non datur.

Der Narr ist krank im Geiste oder schwach am Geist.

Deutsche Gesandte wohnen im Ausland und sitzen in

der Heimat.

Die Uniform macht nicht das Militar.
Kinder und Narren machen keine Geschafte.

Mediaeval lawyers had a pocket manual something of
the same kind, Flores Legum, 2 an arrangement of the
maxims and aphorisms of the law, in alphabetical order,
which has been ascribed to Nicolaus de Tudeschis 3

Ad presens ova eras pullis sunt meliora.

Artifex commendat opus suum.

Brevitate gaudent moderni.

Dat Galenus opes ; dat sanctio Justiniana ;
Ex aliis paleas ; ex istis collige grana.

Debitor est servus feneratoris.

De duobus malis minus est eligendum.

Quod meum est amplius meum fieri non potest.

Simplicitas legibus est arnica.

1 Graf (Eduard) und Dietherr (Mathias), Deutsche Rechtssprichworter,
second edition, Nordlingen, 1864, 8vo. The list of authors cited forms
a good bibliography of Legal Proverbs. Hillebrand (Julius Hubert),
Deutsche Rechtssprichworter, Zurich, 1858, 8vo.

2 1 have two editions, Colonise (Cornelius Zyryck), 1507, I2mo;
Lugduni (Joannes Flaiollet), 1545. There are many more earlier and later.

8 Col. Agripp. (Peter de Olpe), 1477, fol. ; but the attribution of
authorship is doubtful. Stintzing, Geschichte des popularen Literatur des
, . . Rechts, p. 125, Leipzig, 1867, 8vo.

52 LAWYERS' MERRIMENTS

In his Institutes coutumieres, Antoine Loisel (1536-1617),
the pupil of Cujas, a great lawyer and a scholar of
profound erudition, collected the rules, sentences, and
proverbs, ancient and modern, of the Customary law of
France, many of them in short rhymes. 1 M. Alexandre
Bouthors, of Amiens, edited the Local Customs of the
bailiwick of Amiens as arranged in 1 507 ; and has pub-
lished a collection of proverbs, sayings, and maxims of
the traditional rural law of France. 2 Victor Fons, an
advocate at Toulouse, and judge of the civil Court of
Muret, made a collection of aphorisms arranged according
to the order of the Codes. 3

The Roman law has also been reduced to paroemiacal
form in recent times by Leopold Volkmar ; 4 and

1 Paris, 1646, I2mo; again in 1665, 1679, 1688. Edited by Eusebe
Jacob de Lauriere (1650-1728), Paris, 1765, i2mo, 2 vols. There is
a later edition by Dupin and Laboulaye, 1846, I2mo, 2 vols. De
Lauriere's edition first appeared in 1710, and there were other editions
in 1758, 1774, and 1783.

Loisel's work was first printed as a supplement to the Institution au
droit des Franfois, of the broad-minded Gui Coquille, 1607, 410.

Loisel had amongst his clients many of the most distinguished persons
of his time ; and was consulted as to the projected marriage between
Queen Elizabeth and the Due d'Anjou, which he did not favour, because
he considered the Articles which were drawn up as being unfavourable
to France.

2 Coutumes locales du ballliage d'dmiens, redigees en 1507, Amiens,
1843-53,410, 2 vols.; Les Proverbes, dictom et maximes du Droit rural
traditionnel, Paris, 1858, I2mo.

3 Aphonsmes de Droit, classes suivant Fordre des matieres des nouveaux
Codes, Paris, 1846, I2mo, second edition.

4 Paraemia et Regulte juris Romanorum, Germanorum, Franco-Gallorum,
Britannorum, Berolini, 1854, I2mo.

PROVERBS 53

there is a library of older works of the same descrip-
tion.

A number of the more usual proverbs in use amongst
the lawyers of Holland were explained by an eminent
jurist, the second Anton Matthai (1601-1654), the author
of De Criminibus which was republished in Italy in the
nineteenth century and of a treatise on Sales by Auction
which may still be read with profit. He deals with only
nine proverbs which are expressed in Dutch, and on these
he gives an ample commentary in Latin, explaining the Civil
law, and elucidating the local law of Utrecht. 1 Some fifty
years later, Dutch legal proverbs were again discussed by
Alexander Arnold Pagenstecher (1659-1716), professor of
law at Groningen, a noted civilian, who had so tenacious a
memory that it was said that, if the whole Corpus Juris Civilis
had been lost, he could have restored it from memory. 2

A Proverb is not humour. It is a terse, pithy state-
ment in common use and familiar to every one, and, when
aptly applied, often decides an argument, as an appeal to
common sense and accepted reason. " Freight is the
mother of wages," is a current maxim of maritime law

1 Paroemia Belgarum Jurisconsults usitatissimte, Ultrajecti, 1667, I2mo ;
again, Brux., 1721, 410. This was a posthumous publication, edited by
the author's son, the third Anton Matthai (1635-1710). The second
Anton, he of the text, was a voluminous writer, and had a gift of 600
gulden from the States of Utrecht for having dedicated to them his
treatise De Criminibus. He adopted the saying of Seneca Multi ad
eruditionem venissent, nisi, se eo jam pervenisse putassent, and used to inscribe
it in his friends' albums. He married Anna, daughter of the celebrated
Johann Isaac Pontan, Professor of Physics and Mathematics at Harder-
wyk (1571-1639).

* Dissertatio ad paroemias Belgicas included in his Sylloge Dissertationum,
pp. 483-522, Bremae, 1713, I2mo.

54 LAWYERS' MERRIMENTS

familiar to seamen and to shipowners. 1 " What is a
proverb," says Dr. South, " but the experience and obser-
vation of several ages, gathered and summed up into an
expression " ; or, as more shortly put by Lord John
Russell, a proverb is " the wit of one man, the wisdom
of many." Some proverbs and many legal maxims owe
much to their form, as acute dicta. To Sir William
Hamilton " the interest of a thought was greatly enhanced
if it were embodied in a terse, lucid, and pointed form.
This arose from his appreciation of force in thought and
word, his very remarkable sense of harmony between a
thought and its expression, and his love of symmetry in
style." 2 It is these qualities which give point and weight
to the maxims most frequently quoted.

There are many collections of English and Scottish
proverbs, but the law proverbs have not been taken out
separately. The Principia legis f? aequitatis of Thomas
Branch, published in 1753, is, however, something of this
description. It is, as explained, " an alphabetical collec-
tion of maxims, principles or rules, definitions and
memorable sayings in Law and Equity." 3 Most of the
maxims are in Latin ; some are in English ; and a few
in Norman-French. Some are aphorisms in the ordinary
sense of the word

1 Lord Kames refers to it, Principles of Equity, p. 162, Edinburgh,
1767, fol.

2 Veitch, Memoir of Sir William Hamilton, Bart., p. 399.

3 The preface is dated Gray's Inn, Easter-Term, 1753, and is signed
T. B., the initials of Thomas Branch or Branche. A second edition was
published in 1810 ; a third in 1818; and a fifth with additions, and
the Latin maxims and notes translated by John Richardson, Ib. 1822,
I2mo. There is an American edition by W. W. Hening, Richmond,
1824, 8vo.

PROVERBS 55

" Law is the perfection of reason."

" One should be just before he is generous."

" Every man's house is his castle,"

an ancient and traditional saying. 1

The greater part of the collection consists of neat, short
sentences embodying a rule of law in crisp and apposite
terms. The object of the author was to provide a Vade
mecum " useful and entertaining," that might " accompany
the Common Lawyer when absent from his Books," and
in this he was, to a large extent, successful. The collec-
tion differs from the German ones, which have been
referred to, in providing no commentary.

The everyday proverb which warns us against Buying a
Pig in a Poke is sound law, and as old as the Roman
jurists. In folk merces non emendae, says Alciati, 2 who
adopts the language of Callistratus in the Pandects as
regards accounting. A cashier cannot close his accounts
by merely handing over the balance in a bag, in folk
reliqua obtulere\ he must first submit his completed
accounts for examination and audit ; and when the balance
has been ascertained he is to count it over. Many other
proverbial sayings which appear in a Scottish or English
dress are translations of old Latin maxims.

1 Sir Edward Coke puts it (Reports, part xi. fol. 82), A man's house is
his castle, et domus sua at unicuique tutissimum refugium. The idea occurs
in other proverbs, e.g. Testudo intra tegumen tuta; Domi suae quilibet rex,
a maxim as old as Homer, Od. i. 397, " Specimen quoddam Adagio-
rum," in Appendix to Erasmus, Adagio, Col., 1545, Col. Allob., 1612,
fol.

2 Alciatus, Comtnentaria in "De Verborum Significations " p. 189. See
Straccha, De Contractibus Mercatorum, Nos. n, 12.

The proverb is included by Erasmus in his Adagia, Chil. 4, Cent. 9,
No. 37.

56 LAWYERS' MERRIMENTS

English lawyers were quite as ready as their Continental
brethren to rely on the established wisdom of aphorisms.
Littleton, for instance, quotes the verses

Quaeras de dubiis, legem bene discere si vis :
Quaerere dat sapere, quae sunt legitima vere.

And Coke, commenting on it, says, " Here Littleton
expresseth an excellent meanes to attaine to the reason
of the law, by enquiring of, and conference with learned
men, of doubtfull cases " ; and then himself quotes
Horace

Inter cuncta leges et percuntabere doctos,

and two proverbial sayings. 1

In pleading, Coke was fond of a poetical quotation.
" Jeo aie oie mon Seigneur Coke a citer 2. verses pur ceo
hors de Sir Thomas Moore

Three things are to be helpt in Conscience,
Fraud, accident, and things of Confidence." 2

Legal maxims have been commented on by Lord Bacon
and by Attorney-General Noy ; and in modern times by
Broom, Wharton, and others; but these are serious ex-
positions of the principles of the law, and have no
reference to their humour, either in form or application.
Bacon's Aphorisms are singularly concise and lucid state-
ments of the principles of law. They have been styled

1 Coke, Commentary on Littleton, 2643. The quotation from Horace
is Epist. i, 1 8, 96. Johann Heinrich Schlegel, of Wittenberg, wrote,
Disiertatio de poetarum, singulatimque Homeri, auctoritate apud Jurisconsultos,
Viteb., 1717, 410.

2 Roll e, Abridgment, vol. i. Tit. Chancerie (N), p. 374, London,
1668, folio.

PROVERBS 57

legum leges by M. Dupin, and form part of his Manuel des
JEtudiants et des jeunes Avocats. 1

Peter Halkerston, S.S.C., bailie of Holyrood, published
A Collection of Latin Maxims and Rules in Law and
Equity? which was the subject of a good deal of criticism.
It is not a Scottish collection, but is gathered from all
sources. Lord Bankton treated Maxims in a very learned
and philosophical manner; 3 Lord Kames discoursed on a
few ; 4 and Lord Trayner published a collection of Latin
Phrases and Maxims from the Institutional writers on
the law of Scotland, which has passed through several

1 Paris, 1861, 8vo, pp. 219-270.

2 Edinburgh, 1823, 8vo. He also published Translation and Ex-
planation of the principal technical terms and phrases used in Mr. Er shine's
Institute of the Law of Scotland, Edinburgh, 1820, 8vo ; again, 1829,
8vo.

With regard to the translation, he says, in the preface to the Maxims,
" it does not become me to say much. It has cost me some labour and
I trust will be found useful." Latinity was not, however, the worthy
bailie's strong point, and some of his renderings are sadly out of joint,
e.g. Actor sequitur forum rei = the agent attends the court where the
business is carried on : Catella juste possessa amitti non possunt=A little
whelp (perhaps cattle), lawfully possessed, cannot be lost : Messis sementem
sequitur = the harvest follows the seed-time. It is said that these blunders
were detected before the book was put into circulation and corrected,
and that " copies of the book containing these gems are exceedingly
rare." Burton, The Book-hunter, p. 136, second edition. This, how-
ever, must be a joke on the part of the " Book-hunter." The editio
repetita I have never seen, and must be a rarity. The original with
its "gems" is common.

3 Institute of the Law of Scotland, vol. iii. p. 44 sq q .

*E.g. The Brocard, Vinco vincentem, vinco te, in Essays upon several
subjects in Law, p. 61, Edinburgh, 1732, 8vo ; Elucidations, p. 201,
Ib. 1800, 8vo. See Angelus de Baldis, Consilia, 252, No. i.

5 8 LAWYERS' MERRIMENTS

editions. 1 They are viewed entirely from the legal side,
and nothing humorous is introduced, except, perhaps, the
unconscious touch of including id est, solemnly translating
it, and adding that it is " usually written i.e."

Many proverbs current in Scotland in the seventeenth
and eighteenth centuries occur in the Covenanting and other
popular theological literature of the period, 2 but, although
quaint, they cannot be claimed as exclusively legal. 3

While a proverb or a maxim, as being the essence of a
practice or of a rule of law, is now used as a convenient
method of capping an argument or of pressing a point

1 Edinburgh, 1861, 8vo ; again, 1876, 1883, 1894.
Lord Kames' explanations have reference to Scots law and are very
technical, but he can put a point pithily. The plea of jus tertii, he says,
" comes in plain English to this, ' Sir, you are not pleading for yourself,
but for another.' And this is the true touch-stone to discover when the
jus tertii is well or ill founded," Essays, p. i.
2 " Fast bind, fast find,

Too sure, too loose."

Anderson, Second Letter on the Overtures, p. 21, [Glasgow] 1720, i2mo.
He probably had Shakespeare in view
Fast bind, fast find ;
A proverb never stale in thrifty mind.

Merchant of Venice, n. v.
It occurs in Heywood, Proverbs (circa 1565), part i. c. 3.

" Dat Deus immiti cornua curta bovi, an ill-willy cow may have short
horns," Observations on a Wolf in Sheepskin, p. 37, 1753, I2mo.

" Albeit the sun shine clearly on a midding, yet it remains a midding
when all is done," Memoirs of James Mitchell of Dykes, p. 4, Glasgow,
1759, I2mo.

3 A good legal proverb is quoted by Eustace Budgell (1686-1737)
lawyer and litterateur, a cousin of Joseph Addison, the friend and relative
of William Fortescue, M.R. (supra, p. i) "Losers ought to have leave
to speak," A Letter to a Friend in the Country [on the South Sea
Scheme], p. 47, London, 1721, 8vo.

MEMORIAL VERSES 59

upon the attention of a reader, they were introduced by
the early notaries into their deeds to lend them grace and
literary style. 1

MEMORIAL VERSES.

We have rhymes for telling us the days in the months,
for calculating Easter, for remembering the rules of the
road on land and at sea, and the like. So, too, many
rules of law and of practice have been thrown into
rhythmical form. One such rhyme is to be found in a
Scottish Act of Parliament.

The oath of calumny is the oath taken by a pursuer in
an action, if present, that the cause is good and leal ; if
absent, by his advocate or forspeaker on the soul of his
client. By an Act of James I. (1429) it was enacted that
this should be "in thir meteris "

Illud iuretur quod lis sibi iusta videtur
Et si queretur verum non inficietur
Nil promittetur nee falsa probacio detur
Vt Us tardetur dilacio nulla petetur. 2

This was not a poetical essay of Parliament, but an adap-
tation by Parliament of a well-known and common formula.
As Englished it runs thus

You this shall Swear that this your Suit doth seem
Right Just to be ; at least in your Esteem,
That you (when ask'd) the Truth will not deny ;
Nor Promise ought ; Neither that knowingly
You any false Proofs will imploy,
Nor urge Delays, the Cause to 'noy. 3

1 Giry, Manuel de Diplomatique, p. 480.

2 1429, c. 16, Acts of the Parliaments of Scotland, ii. p. 19.

3 H. C. [i.e. Henry Consett], The Practice of the Spiritual or Ecclesiastical
Courts, p. 92, London, 1708, third edition.

60 LAWYERS' MERRIMENTS

The points of a well-drawn libel are embodied by
Hostiensis in the following verses

Quis, quid, coram quo, quo iure petatur, et a quo,
Recte compositus quisque Libellus habet.

Or, in English

Each Plaintiff and Defendant's name,
And eke the Judge who tries the same,
The thing demanded, and the right whereby,
You urge to have it granted instantly,
He doth a libel right and well compose,
Who forms the same, omitting none of those.

The forbidden degrees in marriage have been put into
hexameters

Nata, soror, neptis, matertera, fratris et uxor
Et patrui conjux, mater, privigna, noverca,
Uxorisque soror, privigni nata, nurusque
Atque soror patris, conjungi lege vetantur.

The parcels of land, the parts and pertinents in a con-
veyance, must be named in a certain order. " There is
an order set in the Register, when a man demandeth divers
parcels of Land in his Writ, which are of divers natures,
which parcel shall be first specified in the Writ, and what
parcel shall be next unto that, and then what parcel shall
be next to that, and so of all the parcels, and that appeareth
by the two verses following " l

1 Fitz-Herbert, New Natura Brevium, s.v. "Writ of Right Patent,"
p. 4, London, 1687, 8vo.

The same verses are given in the Arcana Clericalia or Mysteries of
Clerkship, c. vi. p. 17, London, 1674, 8vo.

The rules for arranging the parcels are given in the preceding
chapter, c. v.

The Arcana Clericalia is at the end of a treatise bearing the same title
by George Billinghurst, but is by the editor W. B.

MEMORIAL VERSES 61

suagium, um, lendinum, lumbare, dinum, ra, turn, tura, cus, ra,
Mess, toft mo co gar ter pra pass bos brue mora,

ria, cus, turn, caria, ditus,
Junca mar is alne pis red sectare priora.

Similar memorial verses are given to indicate " for what
an Assise of Nusance lieth " 1

satum, num, s, a,
Fos stag sepe vi diversi cursus aquarum,

i. terminari coram Justic. assissar. i. placitari in Banco
Poscunt assisam : mercatum, feria, bancum.

For the convenience of forgetful lawyers, the proper
apportionment of their time has been committed to
verse

Sex horas somno, totidem des legibus aequis

Quatuor orabis, des epulisque duas,
Quod super est ultra sacris largire Camenis.

or as rendered by Matthew Hawke

To sleep six hours allot, to the Laws twice three,
Four to your prayers, two to your Feasts may be,
And what remains give to the Muse Divine. 2

1 Fitz-Herbert, New Nafura Brevium, s.v. "Writ of Assise of Nusance,"
p. 409.

2 The Grounds of the Lawes of England, p. 7, London, 1657, 8vo. See
infra, p. 69 n.

He attributes the authorship of the Latin verses to Sir Edward Coke,
but this is a mistake. Coke was fond of repeating them, but they are
older than his time. See Campbell, Lives of the Chief Justices of England,
i. p. 343.

62 LAWYERS' MERRIMENTS

HUMOUR IN INDEXES AND DICTIONARIES.

We know what mischief an Index can effect. William
Prynne was fined, pilloried, and imprisoned on account of
an unfortunate reference in the Index to Histriomastix? a
book, says Carlyle, "still extant, but never more to be
read by mortal." An industrious Scottish text-writer,
under the word " Vagabonds " in his Index, adds, " See
Sheriffs"; 2 similarly, for "Clergy" we are referred to
" Pirates " ; s and we all know the unfortunate reference to
Mr. Justice Best's "great mind." Tisserand's Plaidoyer
pour ma maison, an apology for the theatre, has been
catalogued under " Jurisprudence," and Guarini's // Pastor
fido under " Pastoral Theology."

A Dictionary may be turned into a political weapon, as
we know from Dr. Johnson's definition of " Excise " and
" Pensioner," or a medium of slander, as when he defined
" Oats " as " a grain which in England is generally
given to horses, but in Scotland supports the people."*
The Doctor escaped scatheless, but it was not so with a
predecessor in the same field. In 1607 John Cowell,
LL.D. (1554-1611), published at Cambridge The Inter-
preter^ a booke containing the signification of words, dedicated
to Bancroft, Archbishop of Canterbury. His interpre-
tation of certain terms, e.g. " King," " Parliament," " Pre-

1 See Disraeli, Calamities of Authors, p. 152, London, 1867, 8vo ;
Curiosities of Literature, iii. p. 315.

2 Duncan, Parochial Ecclesiastical Law, p. 864, Edinburgh, 1864, 8vo.

3 Molloy, De Jure Maritime, Index, London, 1764, 8vo, 2 vols.

4 The same thing used to be said of the French. The prejudice
against oatmeal is an old one. Burton, Anatomy of Melancholy, part i.
sec. 2, mem. 2, sub-sec, i.

HUMOUR IN INDEXES 63

rogative," were far from the liking of the House of Com-
mons, who summoned the author before them, committed
him to the custody of an alderman, and ordered the book
to be suppressed and burned by the common hangman. 1

There is a curious little tract of the Commonwealth
period, A new Modell or the Con-version of the Infidell Terms
of the Law, for the better promoting of mis-understanding
according to Common Sense. 2 It contains a list of 100 law
terms, with a whimsical and sometimes satirical version in
English

Law Terms. Englished,

1. Breve Originale, Originall Sinne.

2. Capias, A Catch to a sad tune.

6. Proclamatio, O Yes !

7. Supersedeas, Unsaddle the horse.
13. Breve de errore, A Sectary.

1 6. Latitat, Bo peep.

27. Capias in withernam, A Leveller.

34. Scandalum Magnat, Down with the Lords.

1 See Disraeli, Calamities of Authors, p. 193. The prosecution, it is
said, was prompted by Coke, who was jealous of Cowell as being a
better civilian than himself. The only joke which the Chief-Justice
is known to have made was at the expense of the doctor, whom he
called Dr. Cowheel. Campbell, Lives of the Chief Justices of England,
i. p. 338.

2 Printed Anno Dom. 1652 (a mistake for 1659), 6 pp. 410.

There is no place of publication, and no author's name. The title-
page bears the words " First Century." So far as I can ascertain another
century was not published.

I have a copy bound along with A Record, in Rithme, infra, p. 105.
The author may have been the same Alexander Brome.

Johann Nicolas Weislinger (b. 1691), in his Friss Vogel, gives an absurd
vocabulary of Lutheran theological terms. FlOgel, Geschichte des Burlesken,
p. 245.

64 LAWYERS' MERRIMENTS

37. Ut Laico amovend, A Presbyter.

43. Breve de Convencione, A Blew Bonnet.

47. Breve de dote, Give the Devil her due.

53. Identitate nominis, Y'ar mistaken, Sir.

56. Nisi Prius, First come first serv'd.

60. Quo minus, He would if he had it.

63. Breve de recto, A Case of Pistols.

69. Abridgment del plaint, Short-hand.

8 1. Breve de vasto, The Prodigall Child.

83. Quam impedit, Want of money.

90. Difeazance, A Cheat.

92. lusticies, Right or wrong.

93. Homicide, Run him through.
96. loynt Tenants, Fellow Saints.

99. Decimae, A Parson's piggs or tyth hemp.

The wit in these translations is in some cases obvious ;
but in most it depends upon an accurate acquaintance with
old English forms of pleading. Many of them occur in
The Pleader s Guide? and are there explained. Thus

Thrice honour'd be that Lawyer's Shade
Who Truth with Nonsense first combin'd,
And Equity with Fiction join'd,
And had the Goodness to assign us
Latitat, Capias, and Quo Minus.

The writ known as Latitat proceeds upon a fiction in
law " that the Defendant is not to be found in the County
of Middlesex to be taken by Bill of Middlesex, as it is
called, but lurks and lies hid, or, as it is expressed, runs up
and down secreting himself within the Bailiwick of the
Sheriff, to whom the writ is directed. 2 It is in practice
the first process in order to compel an appearance in the
King's Bench, in the like manner as the Capias is in the

1 Part i. Lecture v., Infra, p. 71. Z F.N.B. 78.

HUMOUR IN INDEXES 65

Common Pleas: the Capias proceeds upon a Fiction, that
the Original had been previously sued out, and the Latitat
issues in the King's Bench upon the like Fiction, that the
Bill, which is called the Bill of Middlesex in that Court,
has actually issued to the sheriff of that County, and been
returned as ineffectual."

" Quo Minus is the first Process in the Exchequer, as the
Latitat is in the King's Bench ; it issues upon a surmise
that the Plaintiff is the King's Debtor, which serves to
give the Court a Jurisdiction. It is called Quo Minus,
because the Plaintiff being, for this reason, supposed to
be the King's Debtor, it is suggested as of course, that
he is the less able to pay the Debt by reason of the Injury
complained of in the Action."

Several of the phrases are aimed at the Presbyterians,
"A Presbyter," "A Blew Bonnet," and so on. The
" Blue Cap Reformation " was a contemptuous name given
by the English to the efforts of the Scottish Covenant. 1

1 Law, Memorials, p. 221, note by C. K. Sharpe.

" The Cavaliers hate a Round-Head. He cannot lightly love a Blew-
cap," The Joviatt Tinker of England, p. 2, London, 1648, 410.

The Covenanters assumed the blue colour as denoting Christianity
and constancy. C. K. Sharpe, ut supra. See Dauney, Ancient Scottish
Melodies, pp. 258, 275 ; Dalzell, Darker Superstitions of Scotland, p. 120.
Blue and orange became the Whig colours after the Revolution of
1688. Blue and buff were the colours of the American revolutionary
army, borrowed from the English Whigs. May, Constitutional History,
ii. p. 151 n., fourth edition.

It's guid to be merry and wise,

It's guid to be honest and true ;
It's guid to support Caledonia's cause,
And bide by the buff and the blue.

Burns, " Here's a health to them that's awa'."

Camille Desmoulins, the revolutionary, in a speech at the Caf6 Foy on

E

66 LAWYERS' MERRIMENTS

In 1856 a Laconic Law Dictionary appeared, 1 which,
while explaining certain terms correctly and succinctly,
makes others the subject of jocular or satirical definition

Absurd, a conclusion contrary to common law, which is, of
course, the reverse of absurd in all its parts, generalities
and details, forms and pleadings.

Affidavit is a statement in writing sworn to on oath. The form
of oath is this " You do swear that the contents of this
your affidavit is true : so help you God one shilling "
meaning that you may swear what you like for a shilling. 2

Bail) an unlucky wight who becomes surety for the debt and
costs of another, or for his being forthcoming on a certain
day which never arrives.

Barrister^ a well-known person in Westminster Hall and the Old
Bailey ; wears a wig and gown, talks for a certain sum,
fee, or price de omnibus rebus et quibusdam a/iis, to twelve
men called a Jury ; examines witnesses, bullies and bothers
them, especially females, against whom he lets fly all his
collected facetiae.

Bill of Exchange is a document I give you in exchange for your
cash ; it is a case of exchange, no robbery, and though I
am sure to see my bill again, it is doubtful whether you
will ever see your cash.

Coat of Arms were formerly used by persons of distinction; now
you are taxed for it.

1 2th July, 1789, the day on which he gave the signal for insurrection,
said that Blue was the emblem of democracy ; and Green the emblem of
hope.

1 A Laconic Law Dictionary with notes ; By William Corfield, Gent"-
One, &c., London, 1856, 8vo, p. 44.

2 Samuel Warren draws attention to the solemnity of the words " so
help me God," and the thoughtless way in which they are repeated.
The moral, social, and professional duties of Attornies and Solicitors, p. 372.

HUMOUR IN INDEXES 67

Degradation, as of a Parson or a Knight the former has his
gown pulled off him, the latter his spurs ; so that this can't
ride and that can't preach.

Examination of Witnesses, from whom it seems the practice to
get as much as you want, regardless of the quantum of
truth.

Highwayman extinguished by railroads.

Jews are allowed to be attornies and sheriff's officers (which they
should not be) and not members of Parliament (which they
should be).

Land signifies all sorts of things, as water and houses, woods
and moors.

Mysterize, special pleading.

Ousted, ejected, turned-out like Louis Philipe and his sons out

of La Belle France.
Precedents are cases in point, without which lawyers are at

sea.
Sinecure, a good berth, and nothing to do.

Taxes, money to be paid by the unfortunate people of England
to the Government, before they can eat, drink, smell,
smoke, hear, see, or lodge, sign a deed, receive a legacy,
insure their property, advertise, 1 or practice their profes-
sion, or, in short, do anything.

LAW AS THE SUBJECT OF DIDACTIC POETRY.

Poetry has been largely employed on didactic subjects,
and we have poems on agriculture and horticulture, on
hunting and hawking, on the art of shooting-flying, 2 on

1 This refers to the tax on Advertisements, now abolished.

2 Pteryplegia , or the art of Shooting Flying: a Poem, London, 1727, 8vo.
The author was Dr. Abraham Markland (1645-1728), prebendary of
Winchester. It was reprinted in 1735 and 1767.

68 LAWYERS' MERRIMENTS

geography and meteorology, on the management of silk-
worms, and the game of chess. Pope refers to the author
of the last in the warmest terms of appreciation

Immortal Vida : on whose honour'd brow
The Poets' bays and Critics' ivy grow ;
Cremona now shall ever boast thy name,
As next in place to Mantua, next in fame. 1

A still more intractable subject was skilfully handled by
Fracastorius (1483-1553), an Italian physician, in what has
been described as a " divine poem."

Lawyers have not been so successful in treating legal
subjects.

Carl Bomers, Landrichter in Biickeburg, attempted to
teach legal science in verse, and published two small
metrical histories, the one of Roman law and the other
of German law. 2 They are not humorous, but, although
metrical in form, are very prosaic statements of fact

LEGES.

Aus dem comitium flattert wie einst die lex curiata,
Perfect, imperfect, minus und plusquamperfectae
Sind, das merke Du Dir, vom Volk gegebene Leges.

Sebastian SchefFer, of Altenburg, a German poet of the
sixteenth century, devoted a poem to the law of legal
procedure. 3

English law has been celebrated in a poem, but I am

1 Essay on Criticism, 705.

2 Repetitorium der ausseren romischen Rechtsgeschichte, Ein didactlsches
Gedicht, Leipzig, 1874, 8vo, second edition ; Repetitorium des ausseren
deutschen Rechtsgeschichte, In rasselnden Monchsversen, Ib. 1872, 8vo.

3 Processus Juris brevissimis versibus redditus, Francof., 1572, 8vo. His
Carmina are in Delitee poetarutn Germanorum, v. p. 1 199.

DIDACTIC POETRY 69

able only to refer to what is said of the custom of Gavel-
kind, in the county of Kent

Custom in Kent encouraging the Brave,
Distinguished well the Brother from the Slave ;
And to each Son an equal Fortune gave.

* * *

The generous Youth, pleas'd with such equal Laws,
Fought for their Honour, and their Country's Cause,
With such Resistance that the French Brigade
Which conquer'd Harold, durst not Kent invade. 1

In 1821 there was published at London the second
edition of The Conveyancer s Guide, a Poem in two Books.
It bears to be " by a Gentleman of Gray's Inn." In a
third edition, which appeared in 1832, the author's name
is given as "John Crisp, Esq., of Furnival's Inn," 2 and
the title is slightly altered The Conveyancer's Guide; or,
The Law Student's Recreation, a Poem. The author's law
is no doubt excellent, but his poetry is at the opposite
pole. Fracastorius says " omnis materia poetae convenit,

1 Quoted by Dr. John Harris, History of Kent, i. p. 460, London,
1719, fol. Gavelkind, he says, "is thus celebrated by Hawke, in his
Poem on the Law." Inquiry as to the authorship was made in the
Gentleman's Magazine, xlviii. (1778), p. 123, but without eliciting
information.

Michael Hawke, who wrote The Grounds of the Laws of England, London,
1657, 8vo, and other legal works, may have been the author. He quotes
Latin poetry, and often translates it into English verse.

This book is a curious one. The author desires to place the law upon
a logical basis and runs nimbly through his predicables, predicaments,
and post-predicaments, but, nevertheless, this does not tend to lucidity.

As to the Customs of Lead Mines, see supra, p. 38.

2 He also edited the seventh edition of Frederick Coningesby Jones,
The Attorney's New Pocket Book and Conveyancer's Assistant, London, 1 841,
1 2 mo, 2 vols.

70 LAWYERS' MERRIMENTS

dummodo exornari possit," which is no doubt true, but
John Crisp had none of the divine afflatus by which he
could embellish his matter.

The law against perpetuities, for instance, is clearly
stated, but there is little to commend in its metrical

dress

But as you cannot, even by

A common law conveyance^ tie

Up land from alienation,

By any kind of limitation,

Beyond a life or lives in esse, \

And whilst a son then born shall be j-

Impeded by his infancy ; J

So in a will, the rule applies,

Restraining perpetuities :

For a devise of land unto,

An unborn son of Roe or Doe,

At twenty-one, is good, we see ; ^

But if it be at twenty-three,

It is a perpetuity, J

And too remote ; and therefore void ;

The gift is utterly destroy 'd. 1

Here is another example, after the style of Hudibras

At first, a grant and feoffment too

Were made as well by an old shoe

As by a deed, wrote in a hand

Which very few can understand.

But when men learnt to read and write,

Lawyers soon found the way t' indite :

Sheepskins no longer serv'd for breeches,

But evidences were of riches.

Thus deeds began and this their size,

Which now must need excite surprise. 2

1 Book First, 608 $qq. 2 Book Second, i sqq .

DIDACTIC POETRY 71

Mr. James Glen, of Greenock, is the author of Con-
veyancing for the Nursery?

John Crisp was stimulated by a predecessor in the
same field

Shall special pleading sound the lyre,
Touched by poetic Anstey's fire,

* * *

And we not rise on fancy's wing,
A nobler subject try to sing,
The Science of Conveyancing ?

The reference is to The Pleaders Guide* of John Anstey
(d. 1819), a son of Christopher Anstey (1724-1805), the
rhymster and humorist, author of the famous New Bath
Guide?

Anstey writes with great ease and fluency, and his verse
is much superior to that of The Conveyancer's Guide.
His poem has also humour, although not of a side-splitting
quality. It is quoted with appreciation by Lord Campbell, 4

1 1903, 8vo.

2 The Pleader i Guide, a didactic poem in two books ; Containing the conduct
of a suit at Law, with the arguments of Counsellor Bother* urn and Counsellor
Bore'um in an action betwixt John- A -Gull and J ohn-A-Gudgeon for assault
and battery at a late contested election. By the late John Surrebutter, Esq.,
special pleader and barrister-at-law, London, 1796, 8vo ; Book ii. Ib.
1 802, 8vo. The two books were subsequently combined, and the title
page slightly altered. The poem passed through numerous editions.
The fifth was published in 1808 and the seventh in 1815. Specimens
of Book i. appeared in the Scots Magazine, November, 1796, Iviii.
p. 771.

8 Horace Walpole described it as "a set of letters in verse, in all kinds
of verses, describing the life at Bath, and incidentally everything else ;
but so much wit, so much humour, fun, and poetry, so much originality,
never met together before," Letter to Montagu, 2Oth June, 1766.

*Lives of the Chief Justices of England, iii. p. 271, London, 1857, 8vo.

72 LAWYERS' MERRIMENTS

who mentions that he had heard Professor Person, at the
Cider Cellars, in Maiden Lane, recite the whole from
memory ; and he concluded by relating that, when buying
a copy of it and complaining that the price was very high,
the bookseller said, " Yes, Sir, but you know Law-Books
are always very dear."

It opens in accepted style

Of legal Fictions, Quirks, and Glosses,
Attorney's gains, and Client's losses,
Of Suits created, lost, and won,
How to undo and be undone ;
Whether by Common Law, or Civil,
A man goes sooner to the Devil,
Things which few mortals can disclose
In Verse, or comprehend in Prose,
I sing do thou, bright Phoebus, deign
To shine for once in Chanc'ry-Lane ;
And, Clio, if your pipe you'll lend
To Mercury, the Lawyer's friend,
That Usher of the golden rod,
Of gain and Eloquence the God,
Shall lead my steps with guidance sure,
Safe through the palpable obscure,
And take my parchments for his labour
To cover your harmonious tabour.

He thus invokes the Goddess of Contention

Come then, thou Goddess of Contention,
Genius of Craft and Circumvention,
You, who in parchment Robes array'd
And tape-tied vest of vellum made,
With ink stain'd lips, and eyeballs blear'd,
And thumbs with wax and rosin smear'd,
The baleful bitter draughts prepare
Of Poverty, Revenge, and Care,

DIDACTIC POETRY 73

And every tender tie remove

Of Amity and Social Love ;

Where'er you wield the Law's machine,

Whether at Lincoln's Inn you're seen,

Or those fam'd walls where Sergeants sleep,

And plodding Clerks their vigils keep,

Or at the Temple, as thy trust is,

Open the sacred mint of Justice,

Whate'er the learned haunt you love,

Where'er thy busy footsteps move,

Say, if some dire occasion leads

Two simple wights to loggerheads,

Such as of late bred doleful dudgeon

'Twixt John-A-Gull and John-A-Gudgeon

(Those ill-starr'd Chiefs whose wrath to sing,

'Vent'rous I 'wake the trembling string),

What instrument of dread import

Must bring the parties into Court,

From Juries to obtain relief,

And Justice from a Counsel's brief?

He condemns the spirit of compromise

Then woe to him who would devise

Pacific schemes of compromise ;

Perish the man who dares control

That generous ardour of the soul,

That noble, that ingenuous heat

Which prompts the truly brave and great,

To seek an adversary's ruin,

Though purchas'd by his own undoing.

May the fat weed of Lethe shed

Its dullness o'er His recreant head,

Whoe'er has wilfully supprest

That passion in his Client's breast !

May he, in self-condemning mood,

For lack of more substantial food,

74 LAWYERS' MERRIMENTS

Eat his own soul', as erst we find
Th' ill-fated Son of Glaucus din'd ;
Give him of Hellebore to drink ;
Wash him in steep-down Gulfs of Ink ;
Immerge him till he cries for quarter,
And pound him in a Turkish mortar !

Of Mr. Shark, a special pleader, he says

He set together by the ears

Squires, Parsons, Baronets, and Peers ;

And once he made twa Scottish Lairds

Quarrel and pull each other's beards,

Tho' twa such Lairds were seldom found

To quarrel much on English ground,

Still did he fan the vengeful fire,

Urge and exasperate their Ire j

With Writs of Error and Appeals

He goaded these relentless Chiels,

And made each Combatant sustain

The conflict like a valiant Thane,

Gave each his Parchment shield "then on, M l Duff y

And damrfd be he who first cries, Hold Enough ! "

The shortcomings of the Court of Chancery had long
been a national grievance, and were exposed in 1705 in
The Locusts l

How this sad Change of State Apollo tell,

Our Laws like Lucifer from Heav'n fell,

To raise a Chancery here, as he from Heav'n made Hell.J

Aid me, all ye Infernal Pow'rs to draw

This huge, fell monstrous Hydra of the Law ;

Who Prince of this Land Pow'r securely Reigns,

And Law and Reason Tyrant-like Disdains :

1 The Locusts : or Chancery painted to the Life ; and the Laws of England
try'J in forma pauperif : A Poem, London, 1704-05, two parts, 410. I
have a copy. There is one in the Grenville Library, British Museum.

DIDACTIC POETRY 75

Plac'd at the Helm of State, to Rule and Guide,
This horrid Fiend elates its Head with Pride. 1

* * *

Enough of Law, my Muse, now Satyr rise,

And show how Chantry's stock'd with Villanies ;

Let bitter'st Gall for Ink supply thy Pen,

Spare not their Crimes, but lash the worst of Men. 2

* * *

Oh Chancery ! Chanfry ! How thy Fame is fled,
And all thy Honours buried with the Dead ;
Yet still thy preying Cormorants survive,
And make thee seem, tho' in Disgrace, to live. 3

The lapse of a century brought no improvement, and
the Court, as it then existed, was dealt with by Reginald
James Blewitt in The Court of Chancery : A Satirical Poem*
who speaks of it as a " shame to the country, that suffers
such a stain upon its system of equitable jurisprudence,"
but his work was an attack upon individuals rather than
upon the institution. Of Lord Eldon, who could not
endure Brougham because he criticised him, or the Vice-
Chancellor, Sir John Leach, because he was as expeditious
as he himself was slow, it is said 5

Well could he coin a doubt, or problem make
But slow to solve, and there was his mistake.
His brains were sound ; but little good they did,
Like some rich jewel in dark cavern hid.

J Part i. p. i. 2 Part i. p. 21. 3 Part ii. p. 9.

4 London, 1827, ^ vo > PP- IO - The preface is dated, Paris, ist
October, 1827.

The poem is dedicated to Major Edward Blewitt, of Llantarnam
Abbey, in the county of Monmouth, the author's father.

6 16. pp. 25, 26.

76 LAWYERS' MERRIMENTS

* * *

He bore no rival in his high career,

As Leach can tell, at whom he lov'd to sneer :

To Flattery he yielded blind assent ;

On those who blam'd him hate itself was spent ;

This Brougham 1 has felt tho' all his merit own,

Deprived by malice of a silken gown.

The reform of Chancery was a matter which long
exercised the public mind. Lord Brougham declaimed
against the shortcomings of the Court ; and Dickens
exposed its delays in Bleak House. Extensive reforms
were effected, and in 1850 an anonymous author writing
under the pseudonym Terentius Carrighan, solicitor
published The Chancery Student's Guide, in the form of a
didactic poem, setting forth in metrical verse, the outline and
leading features of a Chancery Suit, from beginning to end*
The author felt that the obloquy which had formerly
fallen upon the Court was no longer deserved, and set
himself to prepare an outline of a suit in Chancery
"to impress upon the Student's mind, through the
interesting instrumentality of verse and rhyme, and
the licence and concentration of subject ... a perfect
outline and idea of a Chancery Suit, embodying and
accurately detailing the various Times allowed, according
to the authorities, for the different steps and proceedings
therein."

1 A footnote explains that the name is pronounced " Broom."
2 London, 1850, 8vo. The author had long been interested in the
reform of Chancery procedure. In 1826 he published A Letter to the
Right Hon. Sir Robert Peel . . . concerning the doctrines and practice of the
Court of Chancery ; and in 1850, Observations upon the effect of the Resolu-
tions lately promulgated by . . . the Masters of Chancery . . . and suggesting
a modification of the existing mode of proceeding.

DIDACTIC POETRY 77

He thus explains the purpose of his poem

Of Bills and Answers, and of Fees,

Demurrers filed, and also Pleas,

Of Issue join'd and Evidence,

Of Scandal and Impertinence,

Of Notices and Motions made,

Of Costs and Charges, tax'd and paid,

Injunctions and Contempts of Court,

Of Orders to confirm Report,

Of Bills confess'd, Revivor Suit,

Decrees and Orders absolute,

Of Orders made on long Petitions,

Exceptions follow'd by Submissions,

Of Country Causes, and of Town,

Of Registrars in Wig and Gown,

Of Infants lacking friends to right 'em,

Of Guardians in the Suit ad litem,

Of Causes heard and then appeal'd,

Of Fi. Fa. Writs and others seal'd,

Of Chancellor's and other Courts,

Where Judges do review Reports,

Of strife and litigation dire

In lower Courts, and those up higher,

I sing; do thou, Apollo, guide

My Pen, while Pegasus I stride

And bold essay the lofty theme

Of Chanc'ry Suit, and steps between ;

and, finally, his muse describes her object thus

To teach the Young Idea to shoot,
In what concerns a Chancery Suit,
Is all her aim, and object true,
And saying this, she bids Adieu !

The author's method of explaining procedure and the

78 LAWYERS' MERRIMENTS

times allowed for each step, as to which he was so
particular, are exemplified in the following lines

Now let's suppose relief be sought
By some one i' the Chanc'ry Court,
The Plaintiff, much against his will,
Both straightway file a Chanc'ry JjJill,
And pray ^tibpxena Writ (his right),
A process which begins the fight
Writ serv'd, Defendant should, it's clear,
Within eight days in Court Jtppear ;
Excluding, be 't well observ'd,
The day on which the Writ is serv'd
But should Defendant not appear,
Attachment goes, to bring him near
Or Plaintiff may, an't please his whim,
Within three weeks appear for him ;
From thence to ^nstoer Bill in time
Six weeks he hath, believe my rhyme;
But should he wish a further space,
And Master ask with brazen face,
He'll give him surely three weeks more,
Or e'en a month, if him he bore.

The author, it will be observed, styles himself
" solicitor." Nowadays every limb of the law, other
than advocates or barristers that is, a member of the
" short robe " as distinguished from members of the
"long robe," 1 styles himself a "solicitor," but that is
a misnomer. A " solicitor " is one who conducts pro-
ceedings in Courts of Equity ; an " Attorney " is one

1 The short robe, " la courte robe," " la basse robe," refers to what
is inappropriately termed " the lower branch of the profession " ; the
" long robe " refers to an advocate or counsellor, the English barrister.
The robe of the procurator of Paris was of wool (robe de laine), a
stuff gown, as we would say, and his hood (chaperon) had no fur.
The robe of the advocate was of silk, and his hood was furred.

DIDACTIC POETRY 79

who conducts such proceedings in the Courts of Law; 1
while a Proctor the Scottish Procurator was one who
conducted such proceedings in the Ecclesiastical Courts. 2
When in England law and equity were merged, "solicitor"
was made the official title ; although Samuel Warren
deprecated the use of the word as if it were more honour-
able or preferable to that of " Attorney," the far more
ancient of the two. 3 Scotch practitioners have followed

1 A Solicitor is defined in Johnson's Dictionary as "one who does in
Chancery the business which is done by Attorneys in other Courts."

? They pleaded in Latin : " Thence to Bow Church, to the Court of
Arches, where a judge sits, and his proctors about him in their habits,
and their pleadings all in Latin," Pepys' Diary, 4th February, 1662-3.
The Judge and Advocates of the Court of Arches wore scarlet robes with
hoods lined with taffety (if bred at Oxford), or white miniver fur (if at
Cambridge), and round black velvet caps. The Proctors wore prunella
gowns with hoods lined with fur. In other ecclesiastical courts the
doctors and others wore only black gowns. Floyer, The Proctors Practice,
p. 6, London, 1746, 8vo, second edition. As to the dress of Attorneys,
see note by Sir John Hawkins, Ignoramus, Gomcedia, pp. 57, 58, London,
1787, 8vo. He points out that the gowns now worn by English
barristers are in accordance with ancient custom. See "Legal Costume"
in the Journal of Jurisprudence, xxviii. (1884), pp. 62, 124; and Report of
the Committee [of the Faculty of Advocates] on Silk Gowns and Pleading
within the Bar, 1859, drawn up by Patrick [afterwards Lord] Fraser.
" Der Schwarze Mantel " in Weissler, Geschichte der Rechtsanzvaltschaft,
p. 310, Leipzig, 1905, 8vo. Towards the middle of the seven-
teenth century, Attorneys began to wear swords as part of their
ordinary costume. Campbell, Lives of the Chief Justices of England,
i. p. 585.

3 The moral, social and professional duties of Attornies and Solicitors, p. 345.

"A gentleman pressing into a crowded court, complained that he
could not get to his counsel. Lord Tenterden : * What are you, sir I '
Gentleman : ' My Lord, I am the plaintiff's solicitor." Lord Tenterden :
* We know nothing of Solicitors here, sir. Had you been in the respect-

8o LAWYERS' MERRIMENTS

suit, and designate themselves " solicitors," which is
absurd, as the word has no place and no meaning in
Scotland as applied to a law agent. 1

able rank of an Attorney, I should have ordered room to be made for
you,'" Campbell, Lives of the Chief Justices of England, iii. p. 293.

Till late in the eighteenth century, Solicitors were looked upon by
Attorneys as an inferior class. See the definition of " Solicitor " in
Cowell, Law Dictionary, 1728 ; N. and Q. 6th S. i. p. 409.

"To our age are stepped up a new set of people called Solicitors,
unknown to the records of the law, who, like the grasshoppers in Egypt,
devour the whole land," Michael Hudson, The Divine Right of
Government, 1647.

Chief Baron Gilbert complains of the inferiority of the Solicitors of
his day, as compared with the Attorn eys-at-Law. Fleet and Wapping,
Solicitors, was the synonym for those of the lowest type. Every broken
tradesman, he said, turned solicitor. History and Practice of the Court of
Chancery, quoted as Forum Romanorum, c. xi. p. 2 1 2 ; Reprint, Washington,
1874, 8vo.

The old usage was to speak of " a Solicitor in Chancery."

1 " The party was augmented by a man of law, Nichil Novit, writing
himself procurator before the Sheriff-Court, for in those days [circa
1730], there were no Solicitors," Scott, The Heart of Midlothian, c. 8.

There is, however, later authority for the use of the word ; A.S. loth
August, 1754, " Concerning the Admission of Agents and Solicitors";
Cf. A.S. 1 7th January, 1756; and Lord Dun, Friendly and Familiar
Advices, pp. 28, 42, Edinburgh, 1754, I2mo. The Small Debt Act of
1825 (6 Geo. IV. c. 48) refers to "Solicitor or Procurator in any
inferior Court in Scotland," but this was probably introduced by an
English draftsman. So too in the Charter of the Faculty of Procurators
of Glasgow in 1796 it is recited that members "have been in the use of
enjoying the exclusive privilege of acting as Solicitors before every Court
in Glasgow," an expression no doubt inserted in the Privy Council
Office in London. The familiar initials W.S. have been expanded
" Wise Solicitor," Scottish Journal of Topography, ii. p. 269 : although
rendered more correctly in French " Un Greffier au sceau," VHermite en
Ecosse, i. pp. 21, 25, Paris, 1825.

DIDACTIC POETRY 81

Attorneys have had their poet as well as the solicitors.
The Law Scrutiny ; or, Attornies' Guide, is a Dublin publica-
tion, and, although it refers to abuses in procedure in the
Courts of Common Law, it is largely a vituperative attack
on Irish practitioners of the day. 1

The versification is easy and fluent and well turned

What mis'ries spring from Law's perverted source,
What wrongs arise from knav'ry, what from force,
I sing : oh ! Thou, who seest the wretch's tears,
And from his cell the pris'ner's sorrow hears !
Thou know'st no fancy'd tales of woe I feign,
But for thy noblest work, for man complain.
When Israel's sons for cruel masters wrought,
The more they labour'd, still the more they sought :
Thus, with a barb'rous cruelty, no less
Our Law task masters, free-born men oppress,
And the small debt the wretch could not discharge
When, bless'd with Liberty, he rang'd at large;
While yet his mind, and best exertions free,
Could scarcely save from sinking poverty.
Ere yet his friends, scar'd at Misfortune's look,
His ruin'd fortunes, and himself forsook;
Ere yet a wife, with grief and anguish pale,
Conducts his trembling offspring to a gaol ;
The harden'd fiend would from a prison draw,
Swell'd up with fines, and multiply'd by Law.
* # *

Between th' Attornies' and a Tinker's trade,
The following just comparison is made :
For every hole which Tinkers mend, they make
Another hole or two for mending sake ;
Whate'er to them is for improvement brought,
They leave, before they're done, not worth a groat.

1 Dublin, 1807, izmo.
F

82 LAWYERS' MERRIMENTS

A Tinker, like the Law, on breaches thrives;
Unless well watched, some roguery contrives;
Th' employer's eager expectation buoys
By hammering on, and keeping up a noise,
But seldom what he promises performs,
And quells your anger with superior storms;
His work still dirty, and his hands still black,
Surly if near, abusive at your back;
While he's at work, the fuel you supply,
When done, no recompense can satisfy.

The invective is too personal to have much interest at
the present day, except to those at home in the local
history of the time ; and the satire has not sufficient point
to make it live.

LAW REPORTS IN VERSE.

Legal procedure has stimulated legal humour; and
some lawyers have thought that their genius for poetry
might be usefully employed in providing metrical versions
of the Law Reports.

Turning to the latter subject first. Cowper remarks
that " poetical reports of law cases are not very common ;
yet it appears to me desirable that they should be so.
Many advantages would accrue from such a measure.
They would, in the first place, be more commonly
deposited in the memory, just as linen, grocery, and
other matters, when neatly packed, are known to occupy
less room, and to lie more conveniently in any trunk,
chest, or box to which they may be committed. In the
next place, being divested of that infinite circumlocution,
and the endless embarrassment in which they are involved,
by it, they would become surprisingly intelligible, in com-

LAW REPORTS IN VERSE 83

parison with their present obscurity. And, lastly, they
would by that means be rendered susceptible of musical
embellishment ; and instead of being quoted in the Courts
with that dull monotony which is so wearisome to by-
standers, and frequently lulls even the judges themselves
to sleep, might be rehearsed in recitation, which would
have an admirable effect in keeping the attention fixed and
lively, and could not fail to disperse that heavy atmosphere
of sadness and gravity, which hangs over the jurisprudence
of our country. I remember, many years ago, being
informed of a relation of mine, who in his youth had
applied himself to the study of the law, that one of his
fellow-students, a gentleman of sprightly parts, and very
respectable talents of the poetical kind, did actually engage
in the prosecution of such a design, for reasons, I suppose,
somewhat similar to, if not the same, with those I have
now suggested. He- began with Coke's Institutes : a book so
rugged in its style, that an attempt to polish it seemed an
Herculean labour, and not less arduous and difficult than
it would be to give the smoothness of a rabbit's fur to the
prickly back of a hedge-hog. But he succeeded to admira-
tion, as you will perceive by the following specimen,
which is all that my said relation could recollect of the
performance

Tenant in fee

Simple, is he,
And need neither quake nor quiver,

Who hath his lands

Free from all demands
To him and his heirs for ever. 1

1 Letter to the Rev. William Unwin, December, 1780 ; The Life and
Letters of William Cowper. By William Hayley, i. p. 194, London,

84 LAWYERS' MERRIMENTS

How far the poet was serious in this disquisition may
be a question. The letter from which the passage is taken
concludes with his own report of the leading case, Nose v.
Eyes, above referred to. 1

Cowper refers to Coke's Institutes ; but apparently in
ignorance that the Reports had actually been put into verse,
as far back as I742. 2 Their popularity, it is said, was
much increased by their publication in this form. 3

The subject of the Reports is so foreign to any save
English lawyers, that it is difficult to find illustrations
that are intelligible. The Post nati or Calvin's case which
affected Scotsmen is thus expressed

Calvin : Scotch ante nati aliens were,
But post nati in England subjects were.

The law as to swans is summed up thus

Swans, white, not marked, their native freedom gain
In common river, and to King pertain.

The rule in Shelley's case is shortly stated

Shelley : Where ancestors a freehold take,
The words (His heirs) a limitation make.

1824, 8vo ; Correspondence of William Cowper, ed. Wright, i. p. 253, Ib.
1904, 8vo. Cowper, it will be remembered, was not wholly an outsider.
He spent three years as an articled clerk in a solicitor's office.

1 It is also added to a letter to Joseph Hill, December 25, 1780. Life
and Letters, i. p. 191 ; Correspondence, i. p. 252 ; supra, p. i.

2 The Reports of Sir Edward Coke, Knt., inverse. In the Savoy, 1742,
8vo. They were edited by John Warrell, the law-bookseller of Bell's
Yard. A second edition was published, London, 1825, I2mo ; and a
third, Ib. 1826, 8vo.

3 Campbell, Lives of the Chief Justices of England, i. p. 340.

LAW REPORTS IN VERSE 85

The gist of Hubbard's case is given thus

Hubbard : If lord impose excessive fine,
The tenant safely payment may decline.

Here is a warning to parsons

Caudry : 'Gainst common prayer if parson say
In sermon aught, bishop deprive him may.

The maxim, " An Englishman's house is his castle,"
appears thus

Semayne : Upon extent by subject, house
To break, the law not to the shrieve allows.

The English State Trials have also been attempted in
verse, by Nicholas Thirning Moile, a barrister of the
Inner Temple : 1 but his work is of a different character
from those we have been dealing with. He makes no
attempt to put the substance of a trial into a couple of
lines, as in the case of Coke's Reports. He selects three
trials those of Anne Ayliffe, for heresy ; Sir William
Stanley, for high treason ; and that of Mary Queen of
Scots and treats them as dramatic poems. His work is
introduced by a long and amusing preface " to prove that
the work is poetry, and ought to please."

In recent years the task of compressing the report of a
law case into short compass and presenting it in metrical
form has been attempted by several authors. The most
notable and the most successful is Sir Frederick Pollock,

1 State Trials : Specimen of a new Edition, London, 1838, 8vo; again,
1842, I2mo. William Howitt speaks of the book as one of singular
beauty, and says that his review of it (Eclectic Review, 1839, p. 385),
brought it into notice.

Moile was also the author of Cicero, a Drama, London, 1847, 8vo ;
and of Philip the Second, a Tragedy, Ib. 1849, 8vo.

86

LAWYERS' MERRIMENTS

Corpus Professor of Jurisprudence in the University of
Oxford, and editor of the Law Reports. 1

Most of the pieces are too long for quotation ; but
" The Wisdom of the law concerning Married Women "
is summed up in the reports of five cases

MANBY v. SCOTT, &c.
Herkneth this time and learn of me
How this our law and mystery
In ruling all men's property,
And most of folk that wedded be,

Of wisdom is fulfilled well.
All ye wives whose hap thus was
To show this marvel of our laws,

This tale is yours to tell.

The wisdom of the
law concerning
married women.

Manby -u. Scott (z
Smith L. C. 466).

DAME SCOTT.

I am the wife of Edward Scott,
That walked full daintily I wot,

With silk and samite clothed upon.
The worth of it by ells was told

To forty pounds of the fine gold,

All in my lord's derision.
By mighty argument was found
His credit might not so be bound,

The mercer had confusion.

COUNTESS OF STRATHMORE.
I am the Countess of Strathmore.
Countess of Strath- I married Bowes and rued it sore,
Yet spoiled his uttermost intent.
By cozenage and false championry

more i/. Bowes ( i Ves.
Jr. 22 ; i R. R. 76).

1 Leading Cases done into English, by an Apprentice of Lincoln's Inn,.
London, 1876, 1877 ; and again, 1892, 8vo. The last edition includes
some other " Diversions."

LAW REPORTS IN VERSE 87

Him seemed he had my wealth in fee,

And it was all in settlement.
Great words he spake in this despite
Of fraud and his marital right,

In vanity his words were spent.

MRS. GALLAGHER.

The mystery of wives' separate trade
Johnson v. Gallagher By me Jane Gallagher was made

In latter days elucubrate.
Thing -Fait deed ; I writ no writing, sealed no thing,

"Indite and make a T , , c ' , , ,.

thing." 1 dealt after a man s dealing,

Until my debt was heavy and great.

Judgment of Turner, By rede of the one Lord Justice,

Li^Kdi, Albeit it was newfangledness,

seeL. R.,4P.C.S9o- This will bind separate estate.

To tell now in what wise was meant

Married Women's This law should have additament

Property Acts 1870, B w j sc [om of the Parliament,

and 1874. Their '

general utility. Whereof our scriveners, as men seen,

Reck no more than an old bean,
As now it is not mine intent,

The tale were too long,
By these ensamples ye may find
What power han wives to loose and bind ;

This ends my little song.

Sir Frederick Pollock's volume was followed in a few
years by Legends of the Leading Cases; or, Law and Laughter,
by Touchstone 1 (a pseudonym for John William Brodie
Innes, barrister), written, as a reviewer in the Spectator
says, " with a certain Ingoldsby smartness."

A considerable number of Reports of cases are included

1 London, 1881, 8vo.

88 LAWYERS' MERRIMENTS

in the Lays of the " Town Clerk of Stourmouth," most of
which are very successful.

As an example take one of the shorter

PATERSON v. GANDASEQUI.

Should you ask me whence these stories,

Whence these tales of Gandasequi,

I should answer, I should tell you,

" From Smith's well-known Leading Cases,

Smith, J. W., the learned ;

Volume two, the ninth edition."

Gandasequi, wealthy merchant,

In Madrid the splendid dwelling,

Came to England, came to London,

Came and called on Larrazabal,

Menojo, and Trotiaga,

London merchants, they, his agents :

Said, " I'll give you two per centum

For commission on your purchase,

Purchases for Gandasequi."

Then to Paterson a message

They despatched, and he upon them

Called, and with him brought his samples.

In the counting-house he showed them,

Counting-house of Larrazabal.

Gandasequi looked upon them

And debated of their prices ;

Then he ordered many stockings,

Ordered several hundred dozens.

Gladly Paterson despatched them

Invoiced all to Larrazabal,

Till the news upon the market

Spread among the frighted merchants

" Larrazabal and Menojo,

And their partner Trotiaga,

LAW REPORTS IN VERSE 89

All are bankrupt banco rupto \ "
Then did Paterson for payment
Gandasequi press, and sue him.
Ellenborough, Lord Chief Justice,
Tried the case in London City.
" No," said he, " for Larrazabal
To your knowledge was an agent.
You to him the goods have invoiced,
Knowing well for whom he acted ;
You elected Larrazabal
For your debtor." And, so saying,
Straight a non-suit he directed. 1

The late Mr. William Galbraith Miller (1848-1904),
advocate, Lecturer on Comparative Jurisprudence and
International Law in the University of Glasgow, published
anonymously The Points of Leading Cases in Private Inter-
national Law done into Doggerel?

The author's anxiety to be concise occasionally makes
the meaning obscure, but on the whole the cases are well
stated

STAVERT v. STAVERT.

There once was a lady called Stavert ;

With divorce she her husband would have at :

But his domicil

Was an English one still,
And so the Scotch Courts he did laugh at.

1 Lays of a Limb of the Law, p. 24.

2 Edinburgh, 1896, 8vo. Mr. Miller was fond of verse-making, and
wrote many humorous pieces on legal subjects. See William Galbraith
Miller, by H. C. Miller, Glasgow, 1904, 8vo.

90 LAWYERS' MERRIMENTS

EWING v. ORR-EWING.

A furious battle once was fought,

In Ewing v. Orr-Ewing ;
For when there's money to be got,

Then Chancery's up and doing.

The House of Lords at first declared

That Chancery was in order ;
The Lion Rampant then was heard

On both sides of the Border.

The House of Lords as Scots affirmed

Appointment of a factor ;
But Justice need not feel alarmed,

For no one had attacked her.

STUDD v. COOK.

The testator in Studd v. Cook
Made his will by an English Book :

The phrases were queer,

But his meaning was clear,
So the heir-at-law nothing took.

There are some excellent poetical versions of reported
cases in Ballads of the Bench and Bar. Lord Deas'
(1804-87) opinion in the case of Baird v. Baird's
'Trustees 1 is admirably summed up in some verses ascribed
to William Watson (1827-99), afterwards Lord Watson.

BAIRD v. BAIRD'S TRUSTEES.

LORD D AS.

What has fallen from your Lordships I consider perfect stuff,
For a child like that, however rich, fifteen hundred's quite enough,
That the Trustees have been liberal to me is very clear,
Besides, with their discretion you've no right to interfere.

1 24th February, 1872, 10 M. 482 ; and Ib. p. 946. Mrs. Baird
presented a petition to the court for an increased allowance from the
trustees of her late husband in order to bring up their son in a manner
suited to his station. In after life he was known as " Mr. Abington."

LAW REPORTS IN VERSE 91

If your Lordships owned a million, and a heap of other pelf,
You might give your wives a larger sum I might do so myself;
But I see no reason why you treat these Trustees with such scorn,
Unless it be that cocks make free with other people's corn.

Here we have Lord Deas' sound common sense and
brusque manner. In this instance, after-events showed
that he was right ; and the course taken by the majority
of the Court is not likely to be again followed.

He had a singularly firm grasp of the principles of law,
and a thorough knowledge of practice in every depart-
ment. He could not be put off with a specious argument,
or an ingeniously contrived tale. No judge had ever a
greater capacity for getting at the merits of a case and
putting law and facts in their true light. 1 He sometimes

1 The audacious story concocted by Jessie M'Lachlan (Irvine, Reports
of Cases before the . . . Court of Justiciary, iv. pp. 220, 587) to clear herself
at the expense of an innocent old man an unscrupulous attempt to
commit a second murder fell to pieces under his analysis, and she was
convicted. The Morning Journal collapsed in its efforts to back the
romance ; but, a commission of inquiry was appointed, the death sentence
was commuted, and Lord Deas when examined as a witness, in reference
to the Courts of Law in Scotland, very much resented such interference
with the administration of justice. This is his evidence :

" The only thing that weakens to some extent the beneficial effect of
our criminal system is, that, of late years at all events, it has been within
the power of any individual, or set of individuals, by merely writing a
letter to the Home Office, to obtain what cannot be designated otherwise
than as a very irregular review, both of the verdict of the jury and of the
sentence of the judge. I think that is calculated to weaken the hands of
justice, and to mislead the criminal [pron. creemenal] classes, particularly
in capital cases, because men and women, who to all human appearance
ought to share the same fate, don't share the same fate. People are led
more readily to give way to their passions, or to their avarice, and to
sacrifice the lives of others, the more they are led to think that there are
chances of escape, especially when there is always a last chance, which

92 LAWYERS' MERRIMENTS

differed, as in the above case, from his brethren, but when
he did so he was generally right. 1 With all his ability he

must seem to them to operate apart from all law : and if in place of so
escaping they find themselves on the gallows, from which others in the
same position have been relieved, 1 call that unfair to the criminal classes.
For instance, I tried at Dumfries a woman for what was certainly an
atrocious murder ; she was condemned to death ; great efforts were made
to get that sentence commuted ; but they did not succeed, and she was
executed. After that I tried a woman at Glasgow for a still more
atrocious murder ; she was convicted, and the usual sentence pro-
nounced ; and the reflection that passed through my mind was, that
surely here, at length, was a criminal for whom nobody would intercede.
It turned out that the interference was beyond all precedent great. Both
culprits accused innocent third parties. The difference between the
cases was, that the Dumfries murder was induced by spite and hostility,
while the Glasgow woman murdered her best friend in cold blood, for
gain that was the main difference : but the Glasgow one was not
executed." Third Report on the Courts of Law in Scotland, Evidence,
Qu. 17, 549, Parliamentary Papers, 1870, vol. xviii.

There is a grim humour in his lordship's recital of his feats as Advocate-
Depute. His point was to show that under Scottish procedure, none
except the really guilty were brought to trial. Here is his experience :
"At Stirling, I brought to trial on the same circuit (1847), 22 prisoners,
of whom 1 1 were imprisoned, 1 1 transported acquitted none.
Then take the first circuit of 1848 ; at Glasgow I brought to trial
besides fugitations 93 prisoners. Of these 34 were imprisoned, 57
were transported, I was sentenced to death acquitted none. At
Inveraray, on the same circuit, there were tried 8, imprisoned 6, trans-
ported 2 acquitted none. At Stirling, at the same circuit, there were
tried, besides fugitations, 21, imprisoned 12, transported 9 acquitted
none." Ib.

Very different this from later times when we are told that an Advocate-
Depute on circuit got only one conviction, and in that case the prisoner
pleaded Guilty.

Lord Deas never pressed the law against a prisoner see e.g. case of
Davidson and Francis, Irvine, Reports, et supra, p. 9 1 .

1 E.g. his opinion in Wjper v. Harveys, 27th February, 1861, 23 D

LAW REPORTS IN VERSE 93

verified, in his own person, the truth of the saying that
no man should be his own lawyer. He insisted on
preparing his own claim to be placed on the electoral
roll, bungled it, and was rejected in the Registration
Court.

Another form of humour is to give a feigned account
of a trial which actually took place. Between eighty and
ninety years ago Glasgow and London were greatly
excited over the case of Dick v. Fletcher. The defender
was the Rev. Alexander Fletcher (1787-1860), a well-
known member of the United Associate Church, and at
that time minister of Albion Chapel, Moorfields, London.
The pursuer was Miss Eliza Dick, daughter of the Rev.
Dr. John Dick, of Glasgow ; the subject of the action was
breach of promise of marriage. The case came on for
trial in the Court of King's Bench, London, on I4th April,
1824, when the counsel for the defender admitted that
the action was well founded, and made an apology to
the pursuer. The counsel for the pursuer did not press
for damages; a juror was withdrawn, and the defender
undertook to pay all costs. The matter was then taken
up by the Presbytery, and afterwards by the Synod ;
when it was ultimately decided that Mr. Fletcher had been
guilty of breach of promise of marriage, that he had acted
with duplicity and had made calumnious charges against
the pursuer's family, and accordingly suspended him from
the exercise of his office for a certain time. A report of

606, dissenting from the other members of the Court, was ultimately-
proved to be right. Lord Deas once remarked that, when he died, it
would be found that he had left more poetry than law behind him. The
poetry has not been found : the law still stands a monument to his
learning and capacity.

94 LAWYERS' MERRIMENTS

this trial was published by a " Member of Synod," l and
was replied to in a bulky pamphlet by Mr. Fletcher. 2
These publications embody all the proceedings and all the
correspondence. When the ferment was at its height
there was published Trial of the Rev. Alexander Fletcher^
A.M., before the Lord Chief Justice of the Court of Common
Sense and a Special Jury? In this production the trial is
represented as having gone on. A jury consisting of Sir
Walter Scott, Sir James Mackintosh, Kirkman Finlay,
Thomas Campbell, Thomas Moore, John Gait, William
Blackwood, and others was empanelled : Speeches by
Counsel are given, witnesses examined and letters read :
the judge charges the jury ; they find the defendant
guilty. The author, judging from internal evidence, was
not a professional lawyer, and, it is said, was no other
than John Gait, the novelist, who is made to figure as
one of the jury, but as to the authorship there is some
uncertainty. 4 The object of the work was by setting out
the facts as known, and using the documents which had

1 Trial of the Rev. Alexander Fletcher . . . before the United Associate Synod,
London, 1824, 8vo.

2 An Appeal to the Public Opinion against the Associate Synod of Scotland,
arising out of a case brought into the Court of King's Bench, which was there
amicably settled, by Alexander Fletcher, London, 1824, 8vo. The author
gives a long biographical account of himself, in which he claims to be a
descendant of Andrew Fletcher of Salton, and of the royal family of
Bruce.

8 London, 1825, 8vo.

4 The author wrote Trial of the Rev. Edward Irving, A.M., London,
1823, in similar style.

In connection with Fletcher and his brother there also appeared The
lives of the Saints ; or, the diverting history of Sandy and Bobby [i.e. R. and
A. Fletcher : A satire in verse], 1825, 8vo.

LAW REPORTS IN VERSE 95

been made public, to place the affair in a ludicrous light
and to hold up the reverend defender to ridicule, which
was materially assisted by two coloured plates, in one of
which he is represented as standing on the cutty stool, in
a white linen sheet, with a candle in his hand, while he is
being rebuked by the minister from the pulpit in presence
of the congregation.

PLAIDOYERS BURLESQUES.

In the works which have just been referred to the
reports, which appear in metrical guise, are those of actual
cases.

Legal humour has, at all times, found scope in the
preparation, both in prose and verse, of imaginary cases in
a whimsical form.

As far back as I56I, 1 there was published the Plaidoyers
burlesques of M. Jacques Capel (1525-86), a notable
French protestant lawyer. 2 Then in 1570 we had Deux

1 Perhaps we may take as a still earlier example Altricatw [sic] rusti-
corum et ckricorum mota per eos coram domino papa tanquam iudice assumpto,
a metrical tract of four leaves, published in the fifteenth century without
the name of author or printer, the year or place of printing. There is a
copy in the British Museum. It is in Latin rhyming verses ; and is an
impeachment of the clergy by the laity.

Ad ma iudicia primo nos citantet
Iniuste pro lib'ito dictorum uexantes
Comparentes graulter et ibi nos mulctantes
Nullamque legitimam causam assignantes.
Etsi nos contingeret forum declinare
Casu nos deproperant excommumcare,

2 Capel or Cappell belonged to a family of lawyers. In 1565 he
became counsellor of the parliament of Rennes, but had to retire five
years later on account of his religious opinions. He had repeatedly to

96 LAWYERS' MERRIMENTS

plaidoieries d'entre M. Proces, appelant . . . d'unepart et honor-
able homme et M. de Eon Accord inthyme d'autre ; x and in
1608, Plaidoye sur la principaute des Sofs, avec F arrest de la
cour intervenu sur iceluy d 1 autre? a pleading of the advocate
Julien Peleus in favour of Nicolas Joubert, named Angou-
levent, the prince of fools, concerning his principality.

The Metamorphosis telte judiciarite* as explained in its
title, is a collection of odd lawsuits and singular decisions,
made by Matthias Abele von Lilienberg, J.U.D., Count
Palatine, and chief secretary of mines in Styria. 4

take refuge in Sedan from his persecutors. His son Louis was a dis-
tinguished theologian and Hebraist.

1 In the Meon Library. Catalogue de la Bibliotheque de M[eon~\, No.
2512.

Inthyme = Intime = the respondent in an appeal case. L'Intime is one
of the characters in Racine's comedy Les Plaideurs.

2 Cf. Legat testamentaire du Prince des Sots a M. C. d'Acreigne Tullois,
advocat en parlement, n.p. n.d. 8vo. There were copies of the first and
third in the Potier Library, No. 251, 252, Paris, 1870, 8vo. Followed
by Plaidoye pour la defence du Prince des Sots, par L. V., Paris, 1617, 8vo.
See Brunei, Manuel, s.v. " Prince des Sots."

There was also Les Controverses des sexes masculins et feminins ; Requete
baillee a dame Raison, Play day ers des parties et arrets, Tolose, 1534, fol. ;
Paris, 1536, i6mo ; again, Ib. 1539, 1541. In the Meon Library there
was an edi tion, Paris, 1 5 40. Catalogue de la Bibliotheque de M\eori\, No 1535.
This is a poem in three books said to be composed by Gratien du Pont,
Seigneur de Drussac. De Bure, Bibllographie instructive, No. 3061-3063.

3 Metamorphosis telee judiciariee. das ist : Seltzame Gerichts-H'dndel, samt
denen hierauj gleichfaUs seltzam erfolgten Gerichts-Aussprtichen zusammen
getragen, mit lustigen Anmerkungen erlautet, Linz, 1651-52, izmo, 3 parts;
Ntlrnberg, 1655-58, 8vo, 2 parts; Ib. 1684, 8vo, 2 parts; Ib. 1712
8vo, 2 parts. The last is the seventh edition.

The edition of 1651 has a curious engraved frontispiece " Balbier
Miihl des papirenen Streitt Kunst."

4 As more fully expressed in the dedication of the edition of Metamor-
phosis of 1667, and on the title pages of another of his works, he was

THE CITATION
From Damhoudere, Practique ludiciaire es Cavses criminellcs

PLAIDOYERS BURLESQUES 97

The author's object was the amusement of his readers.
All law pleas do not taste of gall, he remarks.

The cases are taken from a great variety of sources, the
Bible, history, travels, and miscellaneous literature, and
include a good number of the catches and puzzles current
in the middle of the seventeenth century. The cases are
very fully stated, and it is difficult to find one, within
moderate compass, for illustration.

Case No. I. is the judgment of Solomon, as recorded in
the first book of The Kings, c. 3, thrown into legal shape.
After a statement of the facts, the Klag or Complaint is
set out ; then follow the Answer, the Replication, with the
inevitable Duplies, Triplies, and Quadruplies, the Judg-
ment, the defender's representation (Eeglaktin-Antwori]^ as
we would say, and the final Decision (super-Bescheid}}

Case No. XXV. is after the style of Bullum v. Boatum :
a mill-ass drank a bowl of malmsey, belonging to an
apothecary, and the question of the miller's liability fell to
be decided. Here, again, we have the Complaint, the
Answer, Duplies, Triplies, and Quadruplies, an Interrogatory
by the judge, and the Decision. It ends with the lines

Gedenck du lieber Esel frey

1st das nicht Schad Ey, Ey, Ey, Ey.

In Case XXX. a burgess purchased a score of pigs,
which he entrusted to a peasant to pasture in the forest.
When the peasant was driving them out a wolf seized one

" einer Ittblichen Innerbergerischen Haupt-Gewerckschaft der Stahl- und
Eisen-Handlung in Oesterreich und Land Steyr, ober-Secretarius."

1 In the Causes celtbres of Fran9ois Gayot de Pitaval, Infra, p. 100,
there is a case in 1727 (vol. i. No. 5; Abrtge ii. part 6) of a child
claimed by two mothers.

G

98 LAWYERS' MERRIMENTS

of them and carried it off to its den. A hunter, who was
passing, saw this, set his dog at the wolf, recovered the
pig, and walked away with it. The peasant met him,
recognised the pig and claimed it, but the hunter declined
to give it up, and so the burgess and the hunter went to
law. The procedure is somewhat more elaborate. After
the Quadruplies, come Bey-Abschied, apparently some-
thing akin to our Interlocutor on relevancy, Rechtliche-
Probation or judicial proof, Impugnation, challenge of
evidence, and lastly End-Abschied, judgment on the
completed proof.

Case XXXI. relates to a cock, two hens, and a chicken,
something like the case put by an old Scots lawyer to his
apprentice Three neighbours had each a hen, only one
egg was found, but no one could say which hen had laid
it, but each made claim to it. How were the claims to be
disposed of? By an action of multiplepoinding, said the
sapient youth.

Case XXXVIII. has reference to a rich father who,
wishing to disappoint his worthless son, ordered in his
last will that all his property should be buried with him.
No sooner was the breath out of his father than the son
consulted a smart lawyer (ein hirnschleifferisch Advocai),
and on his advice took possession of all the property.
The situation thus brought about is discussed through
half a dozen pages.

Case XLI. is a version of Susanna and the elders. 1

l Abele also wrote, Kiinstluhe Unordnung, Das ist : Wunder-Seltiame,
n'temah in offentlichen Druck gekommene Gerichts und ausser Gerichts, dock
warhaffie Begebenheiten . . . zusammen-getragen, Nurnberg, 1670-75, 5 parts,
I2mo. The title page of parts 2-5 begins Vivat, and differs in some other
particulars from that of part i.

PLAIDOYERS BURLESQUES 99

Things quite as absurd occur in real life. Here is a
Glasgow summons of the eighteenth century

" William Honeyman, Esquire, Advocate, Sheriff-depute

of Lanark, to

" My officers, executors hereof, jointly and severally,
specially constituted : It is my will ye summon'd John
M'Indoe, journeyman white-iron smith, in Glasgow, to
compear before me, or my substitute, within the Court-
hall of the Tolbooth of Glasgow, upon the
day of , in the hour of cause, to answer at

the instance of James Fergus, leather-cutter in Glasgow :
That where, about six weeks ago, at least within these
last six months, the complainer, James Fergus, had a
pair of fine Canary birds : That the hen of this pair had
four fine eggs : and, after laying of them, the hen
turned sickly : That the complainer communicated this
circumstance to John M'Indoe, defender, who at this
time had a pair of Canary birds, and his hen had three
eggs : That the said defender bargained and agreed with
the complainer to take his four eggs and lay them below
his the defender's hen, and she would bring out the
whole seven eggs; and whatever young ones were pro-
duced from the whole seven eggs the complainer was
to have the half thereof: That five birds were brought
out from the seven eggs, but one of them died, and
there still remains four birds, said to be fine cocks, in
perfect good health, and able to pick seed for their own
preservation : That the said defender now refuses to
give the complainer any of the said four birds : Where-
fore the said defender should be decerned, either to
deliver to the complainer the one just and equal half of
the said four birds, after drawing cuts for the first

ioo LAWYERS' MERRIMENTS

choice; or to make payment to him of the sum of One
pound one shilling sterling, as the value thereof, or the
value of his four eggs; together with fifteen shillings
sterling of expenses of process ; or such other sum, less
or more, as shall be modified at sentence : And there-
fore the said defender to hear and see the premises
verified and proven ; which being done, to hear and see
himself decerned ut supra ; the which to do, or else to
shew cause, &c. By this my precept, given at Glasgow
this twenty-first day of July, seventeen hundred and
eighty-six years." 1

Francois Gayot de Pitaval (1673-1743), a French lawyer
and miscellaneous writer, published a long series of Causes
celebres? some of which are of a ludicrous character, as,

1 The Edinburgh Law Journal, July-December, 1832, p. 253. The late
Gabriel Neil was, I believe, in possession of the original; but the case
was one before the Commissary, and not the Sheriff Court, which is
borne out by an explanatory note in the Journal, that the Summons was
found amongst the records of the Commissary Court at the Cathedral,
and it is there that Mr. Neil is said to have got it. [Sheriff Barclay]
Rambling Recollections, p. 74, Glasgow, 1880.

My informant was the late Mr. Stephen Williamson (d. i6th May,
1865), an intimate friend of Gabriel Neil, and a notable book-collector
in his day. Catalogue of the . . . library of the late Stephen Williamson, Esq.,
Merchant, Glasgow, Glasgow, 1865, 8vo. Five days' sale.

2 Causes celebres et interessantes, avec les jugements des cours souveraines
qui les ont dedde'es, Paris, 1734-1743, i2mo, 20 vols., and 1738-1750,
I2mo, 20 vols. There was a continuation by de la Ville, Ib. 1769,
I2mo, 4 vols. A new edition of the whole was published at Amsterdam,
1764-75, izmo, 26 vols.; re-edited by Richter, Ib, 1772-88, 22 vols.

There is an abstract of the contents of the collection in Catalogue of Books
in Foreign Law . . . presented by C. P. Cooper to . . . Lincoln's Inn, p. 108 sqq.

There is a convenient selection of the most interesting pieces by
P. F. Besdel, a French refugee, Abrege des Causes celebres et interessantes,
London, 1777, J2mo; Bath, 1793, I2mo, 3 vols.

PLAIDOYERS BURLESQUES 101

for instance, that of the Advocates and Physicians of Lyons,
who claimed to be exempt from taxation on the ground
that they were noble in virtue of their profession. 1 But
the most curious is La cause de Dieu, ou Societt qu'un
marchand contracta avec Dieu* A jeweller, named Duhalde,
having been unsuccessful in his efforts to make a business,
resolved to enter into a partnership with God, thinking
that his partner would assist him and help his enter-
prises. He prepared a formal deed of partnership, for
the period of five years from ist October, 1719, to ist
October, 1724, brought in a capital of 15,000 livres, and
left to his partner the work of getting business. The
plan was a success ; his trade began to flourish, and at the
end of the five years he had realised substantial profits.
He proceeded to liquidate the business, and to the poor
he made over the share of profits falling to his partner.
There were, however, some valuable gems belonging to
the partnership which he was unable to realise. Mean-
while he died, in March, 1725, but each of the stones was
found to be labelled with the words, " Moitid pour les
pauvres " ; and in his will he threatened his heirs with the
Divine wrath if they did not carry out in all points the
contract he had made with the Almighty. The heirs did
not regard the direction seriously, and looked upon the
contract as void ; the widow maintained that it was a
fraud upon the goods in community (un vol quonfait a sa
communaute}. But the administrators of the hospital who
were present at the taking of the inventory, claimed the
share destined for the poor, and the Parliament decided
in their favour, and thus confirmed the validity of the
partnership made with God.

1 Vol. xvi. No. 91 ; Abrtge, vol. i. p. 168. 2 Vol. iv. No. 18.

102 LAWYERS' MERRIMENTS

The Causes amusantes et connues l is a collection of droll
memoires or arguments for parties, edited, it is said, by
M. Louis-Theodore Herissant, advocate. 2 Many of them
are accompanied by a statement of facts (le fait) ; and the
reasons of appeal (les moyens} ; all are written in a light
and pleasant style, and some are very amusing.

A few of the titles will be sufficient as a sample

" La Communaute des Chaircuitiers, centre celle des Patissiers ;"

"Les Charbonniers centre les Savetiers;"

"Pour payement d'un Portrait;"

" Pour les Coeffeurs des Dames de Paris ; "

and so on.

The Ignoramus of George Ruggles (1575-1622), acted
before King James VI., when he visited Cambridge, on
8th March, 1615, is a clever burlesque of English law
proceedings of the period, and of the Norman-French in
which they were carried on. It is also an excellent speci-
men of macaronic composition. 3

Intrant IGNORAMUS, DULMAN, PECUS, Mus^us.

IGNO. Phi, phi : tanta pressa, tan turn croudum, ut fui pene
trusus ad mortem. Habebo aCtiOttem &C

1 Berlin, 1769-70, I2mo, 2 vols.

2 A Catalogue of Books on Foreign Law founded on the Collection ofC.P. Cooper
in Lincoln's Inn (Jurisprudence of France), p. 114 ; Dupin (A. M. J. J.),
Bibliotheque choisie, des livres de droit, No. 1304, Bruxelles, 1833, 8vo.
The British Museum Catalogue, following Barbier, Dictionnaire des
Outrages anonymes, s.v., gives Robert Estienne (1723-94), a Paris book-
seller and author, as the collector. He was the publisher in Paris.
Herissant (1743-1811) was called to the bar in 1765, but latterly
devoted himself to literature.

3 Ignoramus, Comtzdia, ed. Hawkins, Londini, 1787, 8vo; see Dele-
pierre, Macaroneana, pp. 198, 321, Paris, 1852, 8vo.

PLAIDOYERS BURLESQUES 103

contra OmitCS & SiltQUlOS. Aha Mounsieurs, voulez
voz intruder par jOtllt tenant ? il est playne case, il est
point dro'ite de le bien seance. O valde caleor : O chattel,
chaud, chaud : precor Deum non meltavi meum pingue.
Phi, phi. In nomine Dei, ubi sunt clerici mei jam ?
Dulman, Dulman.

DUL. Hie, magister Ignoramus, vous avez Dulman.

IGNO. Meltor, Dulman, meltor. Rubba me cum towallio
rubba. Ubi est Pecus?

PEC. Hie, Sir.

IGNO. Fac ventum, Pecus. Ita, sic, sic. Ubi est Fledwit?

DUL. IRon est inventus.

Here is the settlement which Ignoramus proposed to
make upon Rosabella

IGNO. Ais ? dabo tibi bonam f UttCtUrattt ; faciam ames me
plus & plus. Audi jUUCtUram tuam. Ego Ambi-
dexter Ignoramus itlfCOtfO te uxorem meam Rosa-
bellam in tafle Special de SttU tttanerit le Tongue-
well, cum capital! messuaaio; & do tibi mnia <5l
sinaula messuagia, tofta, crofta, cottagia,
X columbaria, molinoina fullonica, aquatica,
ventritica, aart)ina, tenements boscos, sub*
boscos, jampna, brueria, moras, mariscos
salsos, mariscos trescbos, juncaria, turbaria,
alneta, moscbeta, communia pasture, liberam
warrennam, piscariam, faloaoium; <R oecimas
oarbarum blaoorum granorum, aanellorum,
foeni, lini, cannabis: & tallaaium, stallaaium,
pontagium, picaaium, escbeta, catalla felonum,
waviata, extraburas, wrecca maris.

The performance lasted six hours, but King James
enjoyed it immensely, as being accustomed to the simple

io 4 LAWYERS' MERRIMENTS

procedure of his Scotch Courts, he was not averse to have
a laugh at some of the absurdities of English procedure.

We have an early Scottish example of this species of
humour in The Baron s Court, by Dr. Patrick Anderson, of
Edinburgh, physician to King Charles I. The poem is
dramatic in form ; and the " Rent Court " may be taken
as an example

BARON, LADY, BAILLIE, OFFICER, and TENANTS.
Off. Sir Baillie, all the tenants are conveen'd.
Bail. Clerk, fence the Court. Ten. The great God be our

friend ;

For any thing that we can see or say,
No mercy is for none of us this day.
Clerk. Silence ; I fence, and I forbid in plain,
In the behalf of our dread sovereign,
And in the name of the right honourable
The Laird and Baillie, sitting at this table :
That none presume to speak, tho' for a friend,
Unless that leave be asked and obteen'd.
Bail. Go forward quickly, and read on the rolls,
That we may know the rest of farn years bolls.
Clerk. John Paterson, John Paterson,
John Dunkison, John Davison,
Tom Taylor and his Brother,
Will Walker and his Mother,
The old Gudewife and her son Gibbie,
John Jamieson and stinking Tibbie,
The Over Town and Nether Town,
The Wester Town and Cottar Town,
The Foul Foord, and the Miln Town,
Brank Foment him, and the Hill Town,
The Mutton Hole, and Reek thou there,
The Windy Walls, and Whissell Bare.
Off. They are all present.

PLAIDOYERS BURLESQUES 105

Ten. Here, Sir Baillie, here,

We cannot run no faster to appeer.

Bail. John Davison, come tell me what's your rest,

For you are one I know can pay it best.

J. Davison. Rest, said you, Baillie, marry God be lo'ed,

My neighbours kens I get but little o'et.

Bail. Behold, that villain rightly understands^

And yet unrightly answers my demands;

I must speak Scots, Swinger, let it be shawen

Unto the Court, what thou art justly awen. [owing]

J. Davison. My awen, I thank you, little or nothing, [my own]

Was ever mine since you began to reign.

Bail. God's pity, how can flesh and blood abide him,

The rascal has so many holes to hide him. 1

Another English example is, A Record in Rithme, being
an Essay towards the Reformation of the Law, offer d to the
Consideration of the Committee appointed for that purpose.
Written by some men of law, at a time when they had little
else to doe

London ff

Be it remembered now that formerly,
To witt last Term o' th' holy Trinitie,
Before the Keepers of the Liberty
Of England, by the full authority
Of the long Parliament, at Westminster,
Priscilla Morecrave widow came, by her
Atturney M. B. and preferrs,

1 The Copie of a Baron's Court, newly translated by What 1 s-you-call-
him, Clerk to the same, printed at Helicon besides Parnassus, and are
to be sold in Caledonia, n.d. pp. 24 [? Edinburgh, 1686], sm. 410.
Reprinted, Edinburgh, 1821, 8vo. There was a copy of the original
edition in the library of William Stewart, of Spoutwells, Catalogue
No. 1148 ; see also Maggs Brothers, Old Time Literature, part i.
No. 54, London, 1912, 8vo.

106 LAWYERS' MERRIMENTS

I'th Court of upper bench, a bill of hers,
Against one Roger Pricklove, who doth lye
A prisoner in the Marshalls Custody
Et cetera, and 'tis upon a plea
Of trespass on the Case, Pledges there be
To prosecute the suit, to witt John Doe
And Richard Roe. And the said bill also
Doth follow in these very words, to wit
In legal manner, London, Scilicet.

The Record was published anonymously, but the author-
ship was claimed by Alexander Brome (1620-1666), a
noted royalist, and the author of many songs and
epigrams in ridicule of the Rump. 1 He was an attorney
in the Lord Mayor's court, and therefore well acquainted
with legal procedure.

The object of this production was political; but there
are may pieces both in prose and verse having mere
amusement for their end.

As an example of the plaidoyer burlesque we may
take

The Defences stated by an Edinburgh Advocate, sued
by his barber for flour and labour bestowed on his wig 2

1 The Record is included in his Songs and other Poems, p. 306, London,
1668, third edition, enlarged.

There is an appreciative notice of Brome, as attorney and poet, by
Edmund B. V. Christian, in Leaves of the Lower Branch, The Attorney in
Life and Letters, p. 128 sqq.

2 The present horse-hair wig worn by advocates is comparatively
recent. The old wigs had to be dressed every morning, and grease
entered largely into the dressing, so as to cause the powder or flour to
adhere more readily to the wig. "I ... regularly attended the different
courts . . . without having earned sufficient even to pay for the powder
of my wig," The Life and Adventures of a Limb of the Law, by Michael
Fagg [pseud.~\, p. 242, London, 1836, 8vo.

PLAIDOYERS BURLESQUES 107

DEFENCES for Joseph Proser, Esq., Advocate; to the
Action at the Instance of Peter Duffy, of Over
Wiggle, lately Hairdresser in Edinburgh.

The summons concludes for a sum of money for flour
and labour bestowed by the pursuer on the defender's
wig, to which the following defences are humbly
submitted :

Preliminary. The present action is of an alimentary
nature, and is not competent before the Supreme
Court.

Peremptory. i. The builder of a wig, like the
builder of a bridge, not by estimate, but for a full
and adequate consideration, is bound, in warrandice, to
uphold the wig for the period of three years certain.
During this period, the pursuer was, therefore, in the
eye of law, curator bonis, to the defender's wig.

2. While the wig in question was under the legal
guardianship of the pursuer, he allowed it to decay culpa
sua, and it is no longer grease- full and judicial, but beast-
full and pernicious. Inde, pent suo domino.

3. The pursuer did not dress the wig with hair-
powder, but with barley meal, which not only made it
less attractive, but absolutely repulsive to clients, infer-
ring poverty on the part of the wearer. This fact the
defender offers to prove, comparatione wigarum. Farther,
the meal generated vermin, and, for the injury he has
thereby sustained, he claims damages.

4. Wigs being valuable, solely for the wisdom that is
in them, the one which contained the head of the said
Joseph Proser ought to have been known to the pursuer
not to have been worth the powder, and therefore he
was, in mala fide ', to apply it.

io8 LAWYERS' MERRIMENTS

Plea in Law. In turpe causa melior est conditio pos-
sidentis. Pandects, lib. XXII. de aedificandis wiggibus.

Under protestation to add and eik. 1
We have a Dundee case in " Bill of Suspension Johnnie
Gow, merchant in Montrose, against Johnnie Bell, merchant
in Dundee "

Party Agent.

My Lords, unto your Lordships now,
Most humbly means and shews

Your present suitor Johnnie Gow,
A merchant in Montrose,

That I am charged by Johnnie Bell,

A merchant in Dundee,
To pay the contents of a bill,

For twenty-one pound three.

The foresaid bill was drawn by me,

As an accommodation
To a poor deevil, Jamie Lee,

Wha is by trade a mason.

# * *

May it, your Lordships, therefore please,

To grant to me a sist,
Until EeWs oath upon the case

Shall come to be discust.

INTERLOCUTORS.

The Ordinary has advised the bill,

Together with the oath,
Finds Jamie Lee and Johnnie Bell

Consummate blackguards both.

1 The Day, p. 352, i2th April, 1832, Glasgow, 1832, folio.

The reference to the Digest is like L'Intime's in Lei Plaideurs, Ac. 3, Sc. 3.

PLAIDOYERS BURLESQUES 109

He passes then, of course, the bill,

Continuing the sist ;
No caution here, can be required,

The charge was so unjust. 1

The " Notes taken at advising the action of defamation
and damages, Alexander Cuningham, jeweller, Edinburgh,
against Mr. James Russell, surgeon, there," is most
amusing, but is too long for quotation. The defamation
was calling the petitioner's Diamond Beetle an Egyptian
Louse. 2

Probably the lightest and most sparkling of these jeux
d' esprit are " The Songs in the Justiciary Opera," by John
Maclaurin, afterwards Lord Dreghorn (1734-96), and
James Boswell, the biographer of Johnson, with large
interpolations by the unfortunate Sir Alexander Boswell. 3

Here is the indictment

AIR Grimaldi's Jig in Mother Goose.
Whereas by the laws o' this realm,
And o' ev'ry well governed land,

1 Supplement to the Court of Session Garland, p. 27.

2 Court of Session Garland, p. 70.

3 Songs in the Justiciary Opera, Auchinleck, 1816, 410; reprinted in
The Poetical Works of Sir Alexander Boswell of Auchinleck, Glasgow, 1871,
8vo. They are also printed in The Court of Session Garland, p. 31.
Another similar piece by the same authors was The Justiciary Garland,
which appeared in Carminum rariorum macaronicorum Delectus, p. 140,
ed. altera, Edinburgh, 1813, 8vo ; and in The Court of Session Garland,

P- 3>-

There is also a curious piece, in Italian and English, La festa
d'Overgroghi. Operetta Seria-Comica in due A ttl, ,.. parole Inglesi-
Italiane dal Sig. Coccaliccki, which was reprinted by Maidment and
published as "A Parliament-House Garland" under the title "Nugte
If gales" [Edinburgh] circa 1840, in an edition of twelve copies 8vo.

no LAWYERS' MERRIMENTS

To seize on anither man's geer,

(As the tangs ance a Highlandman fand),

And whether the thief he be caught
In the fact, or be gruppit out-fang,
The law says expressly, and wisely,
That chiel by the thrapple shall hang.

And you John Black, there, the panel,
Ye robbit, assaulted, and a',
And sae, gang till an assize, Sir,
And underlie pains o' the law.

Take the evidence of a couple of the witnesses

Enter PEPPERTAIL.
AIR Braw Lads o' Gala Water.

Comin' frae the toun o' Straiven,

On my poor mare that had the spavin,

I met the pannel near the Kirk o' Shotts,
Like ony madman he was raivin.

Black his hair and blue his coat,
Tightly he did the gauger han'le,

The mair he shuck the fallow by the throat,
The steadier still I e'ed the pannel.

Enter MATHEW MUTCHKIN.
AIR Calder Fair.

As I cam' hame frae Ruglin fair

At e'en, whan it was dusky,
I had enough and may-be mair,

A drap oure muckle whisky.

I saw twa fallows yoke thegither,
Wha they war, the taen or tither,

I ken na mair nor Abram's mither,
I was blin' wi' whisky.

PLAIDOYERS BURLESQUES in

Lowrie Macwill o' Powmuddle, the chancellor of the
Jury, thus announces their verdict

AIR Ailly Croaker.

In this case there's nae argument,
Nae minor and nae major ;
A chield had taen a glass, and had
A towzle wi' a gauger.

That there's nae proof o' robbery,
To see, I think, ye canna miss;
Sae we the pannel man acquit,
No guilty, Sirs, Unanimous.

Outram's pieces, " The Multiplepoinding," " The Pro-
cess of Augmentation," " The Process of Wakening,"
" Cessio Bonorum," " Soumin an' Roumin," and "An
Appeal from the Sheriff," are all excellent, and appeal
irresistibly to the Scotch practitioner familiar with the
procedure so humorously played with. " His legal
lyrics," says an old friend and competent authority,
" introduce us to some of the peculiarities of Scoth law,
and show us their comic side with a rare and genial power
scarcely ever attempted before, and certainly never at any
time surpassed." l

The most popular is " Soumin an' Roumin," but rather
because of the name than for the account of the procedure.
" The Multiplepoinding " is perhaps the most successful.
We know, upon the authority of a notable litigant Poor
Peter Peebles that " a multiplepoinding is the safest
remedium juris in the whole form of process. I have
known it," he says, " conjoined with a declarator of

1 Henry Glassford Bell, in Lyrics legal and miscellaneous, p. 10, Edin-
burgh, 1874, 8vo.

ii2 LAWYERS' MERRIMENTS

marriage." 1 This is how Outram pokes fun at this
somewhat complicated but useful process

Hurrah for the Multiplepoinding ! hurrah !
What land but our own such a gem ever saw ?
'Tis Process of Processes Pride of the law

Hurrah for the Multiplepoinding !

The Multiplepoinding, hurrah !

To the rich, to the poor, to the high, to the low,

'Tis open to all who a title can show

It combines every comfort that litigants know

Hurrah for the Multiplepoinding !

The Multiplepoinding, hurrah !

No matter in what shape your claim may emerge,
By Petition or Summons, Suspension or Charge,
Reduction, Declarator, all may converge

And conjoin in the Multiplepoinding

The Multiplepoinding, hurrah !
# * #

The Process of Wakening is now out of date, but when
I became an apprentice in 1858 we had a process in the
office which had begun in 1817, and had by due wakening
been kept going for the intervening forty-one years. It
was an action of damages, and finally died a natural death
some time in the sixties.

The immortality of law suits has been a favourite theme
of many satirists. Jean Passerat (1534-1602), the suc-
cessor of Ramus in the chair of Eloquence at Paris, a
jurist, and one of the authors of the Satyre

1 Scott, Redgauntlet, c. 13.

2 He is the author of the famous lines Sur lajournee de Senlis in which
the Due d'Aumale's ability in running away is commended one of the
most celebrated political songs in French.

PLAIDOYERS BURLESQUES 113

the great manifesto of the politique or moderate Royalist
party, when it had declared itself for Henry of Navarre
having become involved in a tedious plea gave expression
to his feelings in La Divinite des Proces, which concludes
with a parallel between a woman and a process

La femme et le proems sont deux semblables.
L'une parle toujours, 1'autre n'est sans propos;
L'une aime a tracasser, 1'autre hait le repos:
Tous deux sont de'guise's, tous deux impitoyables.

* # *

Tous deux sans rien donner, prennent a tous mains.
Tous deux en peu de terns ruinent les humains:
L'une attize le feu, 1'autre allume les flammes.

L'une aime le debat, et 1'autre les discords :

Si Dieu doncques vouloit faire de beaux accords,

II faudroit qu'aux proces il mariast les femmes. 1

Lord Neaves very neatly points out the pitfall that
there is in a clause cum decimis inclusis when it is not
followed by the essential condition et nunquam antea
separatist

1 Les Poesies fratif aises de Jean Passer at, ed. P. Blanchemain, i. p. 71,
Paris, 1880, I2mo, 2 vols. With the view of obtaining a more thorough
mastery of Latin, Passerat studied law at Bourges, under Cujas, and
lectured at Paris on the title De Verborum Significatione.

There is a Complaint against protracted law suits addressed to James VI.
in Pinkerton, Ancient Scottish Poems, ii. p. 335. John March (1612-
57), one of the commissioners for the administration of justice to the
people, sent to Scotland by the Protector, made proposals for preventing
tedious lawsuits, Amicus Re'ipubllcee, 1651, 8vo.

A Spanish proverb says Pleyto en Huete, y vino a Cuenca : A law
suit at Huete, and a vineyard at Cuenca. These they reckon trouble-
some things, because they say law suits at Huete are tedious, and the
vines at Cuenca are not good.

2 "Decimis Inclusis," Songs and Verses, p. 103.

H

n 4 LAWYERS' MERRIMENTS

One of Mr. Bird's most happy efforts is " A Collision
at Sea "

The Welsh brig Susan Sly one day

Was tacking out from Dover,
When, cruising right upon her way,

She spied the s.s. Rover.
And strange to tell, like butting cows,

As though some power had bid it,
They tucked into each other's bows,

And this is how they did it.

The brig, upon the larboard tack,

Was chopping brine like thunder,
And Rover made a screwnail track,

To pass her stern close under.
The brig grew timid, luffed a bit,

Then on again went thrashing ;
The steamer ported in a fit,

And figure-heads met crashing.

Then, in the Admiralty Court,

They sought the law's resources,
And with worse actions, tried in port

To mend their sad sea courses ;
While genial, jovial Justice Butt,

Exclaimed at the first hearing,
"Another Gordian knot to cut,

Of bad luck and bad steering."

He seemed to see the whole affair

As in a mermaid's mirror,
And gave his judgment then and there,

That both ships were in error ;
Which meant that each their suit had lost,

And bit were both the biters,
While all the damage and law cost

Fell on the Underwriters.

PLAIDOYERS BURLESQUES 115

And now, such humbling scenes to save,

What think you of this notion ?
That ships should not each other shave

Like barbers, in mid-ocean.
For what is wrong can't be made right

By heaping oaths on curses ;
Though 'tis an easy thing to fight

With other people's purses. 1

Legal humour is plentiful in Germany ; some examples
have already been referred to, and others will be given
later on. Der lachende Jurist? by Dr. Jacob Katzenstein,
Rechtsanwalt in Munchen, that is, Fritz Rhoner, falls
under the class of merriments we are now considering. Its
point is the caricature of legal procedure, something after
the fashion of The Court of Session Garland. One is Die
Flohjagd (Strafprocess), in which there is a great deal about
the Blutrttuber Pukx in the manner of " The Diamond
Beetle " case.

It is impossible at present to do more than mention
Von Ihering's Scherz und Ernst in der Jurisprudent, which
passed through ten editions between 1885 and 1909, and
other works; 3 and Bekker's Ernst und Scherz ueber unsere
Wissemchaft ; 4 and other similar works.

Lyrics, p. 131, second edition.

2 Dresden, 8vo, n.d.

3 Civilrechtsfdlle ohne Entsche'idungen, Leipzig, 1847, 8vo; again, Ib.
1870; Das Trinkgeldj Braunschweig, 1882, 8vo, second edition. Die
Jurlsprudenz des t'dgllchen Lebens will be referred to subsequently.

4 Leipzig, 1892, 8vo.

n6 LAWYERS' MERRIMENTS

CAUSES GRASSES.
SHROVE-TIDE LICENCE.

Most people have a general acquaintance with the
peculiar ways in which our ancestors used to celebrate
Shrovetide or Fastingtide. Pancake Tuesday and Collop
Monday are still remembered, while cock-fighting, cock-
throwing, and football playing were for long favourite
amusements at this season in Scotland as well as in
England.

In France the legal fraternity, in most of the tribunals
of the country, celebrated Shrove Tuesday by arguing
fictitious causes, by way of recreation and merriment. The
subjects of mirth were hardly such as would be selected
nowadays marital infidelity, questions of legitimacy, pay-
ment of a midwife's bill, and so on. The utmost licence
was permitted on the day, of which the advocates fully
availed themselves, and great crowds attended, more eager
to hear these ridiculous pleasantries than solemn and
modest discourses. 1

Claude d'Expilly (1561-1636), who was successively
Advocate-General and President of the Parliament of
Dauphine, appeared as Advocate-General in one of these
causes grasses on Shrove Tuesday (mardi-gras) of 1605,
and the argument he submitted is included amongst his

1 Boucher d'Argis, in Camus, Lettres sur la profession tTavocat, ed.
Dupin aine, c. xiii. p. 46, Bruxelles, 1833, 8vo ; Dupin aine, Biblio-
theque choisie des livres de droit, p. 340 ; Catalogue of Books on Foreign Law in
the Collection of C. P. Cooper, in Lincoln's Inn (Jurisprudence of France ),
p. 115; Catalogue of the Hibbert Library, No. 6225, London, 1829,
8vo.

CAUSES GRASSES 117

published plaidoyers. 1 Another case of the kind is to be
found in the plaidoyers of the celebrated Claude Henrys
(b. 1615), in which he took part while holding the office
of King's Advocate in the bailiwick of Forez. 2

It does not appear that this practice ever prevailed
amongst the bar of the Parliament of Paris, but it
flourished in the Basoche^ that curious tribunal of the
clerks of that Parliament, which disposed of all differences
amongst themselves. They also held mock trials and
moot courts, to train themselves in the art of advocacy ;
and Shrove Tuesday was annually devoted to trials of this
kind. 3

1 Oeuv res a"ExpUly, Lyon, 1636, 410. This is the fifth edition ; again,
Ib. 1657, 1663. The plaidoyer in question is No. viii. entitled Cause
Grasse. After the taking of Chambery in 1630, Expilly became first
president of the senate ; and when Chambery was surrendered to the
Duke of Savoy, he returned to practice at the bar. He was an orator,
lawyer, historian, and poet. His poems were published at Paris in 1596,
and again at Grenoble in 1624, 1650, and 1651. His life was written
by his nephew, Ant. Boniel de Cathillon, and published at Grenoble in
1660, 410.

2 Les Oeuvres de M. Claude Henrys, Paris, 1708, fol. 2 vols. ; again, Ib.
1738, 1772, fol. 4 vols. 'The plaidoyer in question is No. 6 of vol. iv. of
the edition of 1772.

3 Boucher D'Argis, ut supra, p. 1 1 6 ; Genty, La Basoche Notariale, pp. 73,
85, 112, 114, 131, 132, and 147, Paris, 1888, 8vo ; Flogel, Geschlchte
des Groteskekomischen, p. 304; Geschichte der komischen Litteratur, iv. pp. 245,
253 ; Saint-Edme, Dictionnaire de la Penallte, ii. p. 338. The custom
still prevails at Amiens, Genty, p. 148. The Basoche d? Auxerre cele-
brated the Feast of Fools on xoth July, Ib. p. 149. There is a note on
the Basoche in Catalogue of Books on foreign Law, p. 234, supra, p. 116,
note 2.

The institution was known as the Kingdom of Basoche. Les complaintes
et Epitaphes du roy de la Bazoche [? 1520], 8vo. A copy is in the British
Museum ; Arret du royaume de la Bazoche donne au profit du sieur

n8 LAWYERS' MERRIMENTS

Trials of this description have never been in vogue in
this country, but in recent times the Judge and Jury
Society of Renton Nicholson (1809-61), established 8th
March, 1844, over which he presided as "Lord Chief
Baron," afforded much amusement for several years by
its travesty of law proceedings. Members of both Houses
of Parliament, statesmen, poets, actors, and others visited
the Garrick's Head, and it was not an uncommon occur-
rence to see the jury composed of peers and members of
the lower House. The trials were humorous, and gave
occasion for much real eloquence, brilliant repartee, fluent
satire, and not unfrequently for indecent witticisms.
Nicholson's position as a mock judge was one of the
sternest realities of eccentric history. Attorneys when
suing him addressed him as "my lord." Sheriff's officers,
when executing a writ, apologised for the disagreeable
duty they were compelled to perform " on the Court."
Nicholson was called as a witness in a case in the Common
Pleas, Bickley, an attorney, v. Tasker, a wine merchant

Sergeant Byles " I believe, sir, you are at the Garrick's Head

Chief Baron of the Exchequer ? "
Witness " Very barren of the exchequer, sir, I am sorry to

say." (Roars of laughter, in which the Chief Baron, Sir

John Jervis, joined.)

Dangoulevent, . . . contre les pretendus maitres et officiers dudit hotel contre leur
prince, Paris, 1607; Recuell des 'statuts, ordonnances . . . et preeminences de
royaume de la Bazoche, Paris, 1654, 8vo. See Catalogue de M[e'on\, No. 492.
La Misere des Clercs deprocureurs, Poeme, Paris, 1628 ; Le Miroir de patience,
Potme ; Adieu a met confreres les Clercs ; Les Amours de Grapignan, 1698,
izmo ; De la Noblesse des Clercs, Ib. No. 491 ; a collection of these and
four other pieces. See also Catalogue de la Bibliotheque de M. Felix Solar,
No. 2176, Paris, 1860, 8vo.
i D. N. B. s.v.

CAUSES GRASSES 119

Sir John Jervis " I don't know if Mr. Nicholson has arrived

at that dignity, but he is a very old client of mine."
Witness "I feel greatly honoured by your Lordship's kind

recognition."
Sergeant Byles " Well, sir, you are termed the Lord Chief

Baron of your mimic Court."
Witness " I have that honour, sir."
Sergeant Byles " Did the plaintiff ever bring an action against

you for the defendant ? "
Witness " Yes, sir."

Sergeant Byles " Did he serve you with the writ himself ? "
Witness " He did so, just as I was entering the Court."
Sir John Jervis " Your own Court ? "
Witness 11 Yes, my lord."
Sir John Jervis " Did you not commit him ? "
Witness " I regret exceedingly that I had not the power, my

lord."
Sir John Jervis " Surely you have the power of committing

for contempt."
Witness " If I had possessed it, my lord, I should in my

time have incarcerated every officer of your lordship's

Court."
Sir John Jervis " They have all been anxious to serve you,

then ? "

Witness " Yes, my lord."
Sir John Jervis " Mr. Nicholson, I sincerely hope you will

avoid such difficulties for the future." 1

Nicholson "went circuit," and held his Court in various
provincial towns. Amongst others he visited Glasgow,
and was particularly patronised by Mr. Robert Baird, one
of the " Black Knights of Gartsherrie," dean of guild of
Glasgow at the time of his death, and originally a practising

1 The Lord Chief Baron Nicholson, an Autobiography [edited by Harry
Brooks], p. 295, London [1860], 8vo.

120 LAWYERS' MERRIMENTS

lawyer in the city, to whom he dedicated a valedictory
address

Farewell, thou land of industry !

I shall remember long
Thy valleys low, thy mountains high,

Thy chivalry and song.

* * *

And when I view the flames at night

Which round thy city flare,
Thy genius with the eagle's flight

I'm tempted to compare.

Blaze on, thou night-fed glaring links,

Thou eagle-hearted fires !
Thou hast an eye which never winks,

A wing that never tires.

So may thy labour prosperous prove,

By night as well as day ;
Thy minstrels tell their tales of love,

In Roby Burns's way ! l

While the Judge and Jury Court caricatured legal pro-
cedure, it was not properly a Lawyer's Merriment ; the
proceedings were not conducted by lawyers, and their
humour did not consist in a close but ludicrous representa-
tion of the various steps in an actual suit. The sham suit
was merely used as a vehicle for introducing jokes and
witticisms for the amusement of the spectators. 2

1 lb. p. 340.

2 Bannister's Reports ; or, a series of adjudications before Lord Chief Justice
Joker, in His Majesty's High Court of Fun, London, 1785, izmo, second
edition, has very little to do with the law, but is merely a collection of
anecdotes not specially amusing and not in particularly good taste.

WHIMSICAL DISSERTATIONS 121

ELEGANTE JURISPRUDENZ.
WHIMSICAL DISSERTATIONS AND THESES.

There is a large literature of Theses, Disputations, and
Dissertations of the sixteenth, seventeenth, and eighteenth
centuries upon particular points of law, mostly prepared
for graduation purposes. Many of these are upon out-of-
the-way subjects which, for this very reason, are invested
with a certain grotesqueness, although the dissertation
itself is perfectly serious. There are others in which the
subject itself is absurd, and is treated with the seriousness
befitting a grave academic discourse. 1 These in Germany
pass under the title Elegante Jurisprudenz.

One of the most notable of these is the Dissertatio de
PulidbuSy by OPiZius Jocoserius, 2 that is Ordinarius
Professor Zaunschliffer, Otto Phillipp Zaunschliffer
(1653-1729), professor of law in the University of

1 Paradoxes : ce sont propos contre la commune opinion, debatus en forme de
Declamations forenses, pour exerciter les jeunes advocats en causes difficile;,
Paris, 1553; Caen, 1554, 8vo ; Rouen, 1638, 12010; Argumentorum
ludicrorum Scriptores, Lugd. Bat., 1623, izmo : enlarged and re-issued as
Dissertationum ludicrorum et amoenitatum Scriptores varii, Lugd. Bat., 1638,
izmo, 1644, I2r no.

2 OPiZii Jocoserii . . . Dissertatio jvridica de eo quod jvstum est circa
spiritus familiares Feminarum, hoc est Pulices, Marpvrgi, 1613, fol. ; Ib.
1684, izmo, and often afterwards; Heilbronn, 1879, izmo, with
introduction, bibliography, and notes by Dr. Sabellicus, pseudonym of
Eduard Wilhelm Sabell, of Berlin. The dedication bears the initials
E. W. S. Zaunschliffer used the initials O. P. Z. elsewhere : Exercitatio

juridica de privilegiis Professorum . . . quam . . . subjicit O. P. Z. Resp.
J. J. a Dohren, Marburgi Cattorum, 1685, 410. He was the author of
a dissertation : Vindiciae vindiciorum triti illius ; Kauf geht vor Miethe,
1691, 410.

122 LAWYERS' MERRIMENTS

Marburg. 1 In the dress of an academic dissertation treated
humorously, it is, says its latest editor, "a Corpus Juris
in miniature, a compendium of practical law, civil and
criminal, canon and feudal. Science and romance go
hand in hand ; life and poetry, the grave and gay, are
united. The little work is an admirable handbook of
jurisprudence, a kind of text from which a young lawyer
may learn much, and it is at the same time an agreeable
book for a leisure hour. Ridendo discimus.

" The legal relations of fleas to men, and more par-
ticularly to women, are discussed and settled on the basis
of legal principles. The acuteness with which this is done,
the legal and philosophic learning with which it is worked
out, render it a most useful manual ; the wit, the roguish
humour, which sparkle in the gravest expositions, along
with the object of the dissertation, give us a very bright
Vade mecum."

Notwithstanding this glowing encomium, one is com-
pelled to say that the Dissertation is but a dull affair, and
is not nearly so bright, humorous, or learned as many
others which are less known. Qu. vi. is " De pulice nobili
ac plebeio." Is the flea of a lady of rank more noble and
of better condition than that of a plebeian woman ? On
this the author quotes the German custom, dass des Schult-
heissen Kuh vorgehe the provost's cow takes the lead
and appeals to the rule, Accessorium suum principals sequitur.
Qu. xii. "Actio Injuriarum" is illustrated by the question
whether one who has addressed a young woman as a
Flohsack, Flohpek, Fltih-Beutel, Flsk-Thiergarten, or the like
is liable to be sued in an action for damages. Qu. xiii.

1 See Sabellicus, supra ; Hugo, Lehrbuch der Geschichtc des rotnischen
Rechts, seit Justinian, iii. p. 521, Berlin, 1830, 8vo.

WHIMSICAL DISSERTATIONS 123

"An Deus sciat omnes pulices?" is irreverent, but not
witty. Qu. xxiii. " Quaestio elegantissima " turns out
to be "Anne pulex inter res mobiles an immobiles sit
referendus?" Again resort is made to the doctrine of
accessory and principal, and also to the rule that fructus
pendentes pars suntfundi. Almost the only ray of humour
is in Qu. v., whether a monk's flea in matters criminal is
to be convened before the secular or the ecclesiastical
Court?

Zaunschliffer's dissertation gained some adventitious
notoriety, about eighty years ago, in connection with
Goethe. In 1824 a book was published at Halberstadt
under the title " Goethe als Mensch und Schriftsteller,"
which professed to be a translation from the English of
Frederick Glover, an English naval officer. There was
no such original, and the book seems to have been the
work of Professor Christian Heinrich Gottlob Koechy
(1769-1828). Its professed object was to publish Goethe's
dissertation for his doctor's degree, which was effected by
printing the Dissertatio de Pulicibus, and attributing it to
the poet. It has been repeatedly reprinted as Goethe's
work, although it was generally known that it was not.
Writing in 1830, Hugo says that "recently the work of
Zaunschliffer has for some inconceivable reason been pub-
lished as the work of a very late and very celebrated
writer." That this was done to annoy there is no doubt,
but what Koechy's grievance was does not appear. There
was some mystery as to Goethe's degree of doctor. He
graduated as licentiate at Strassburg in 1771 ; he certainly
had the doctorate, but when or how obtained is not known. 1
It was to give this information that the work in question
1 Lewes, Life of Goethe, p. 87, London, 1864, 8vo.

i2 4 LAWYERS' MERRIMENTS

was published, and the contents show that the object must
have been pure mischief.

Fleas have a considerable literature, of which there is a
bibliography by Eduard Wilhelm Sabell, or, as he styles
himself, Dr. Sabellicus. 1

In 1710 a volume of tracts was published at Nuremberg,
Tractatus varii de Pulicibus? containing the Dissertatio
juridica Opizii, that is, Zaunschliffer's Dissertatio > two by
Jacobus Masenius, the one in praise and the other in
blame of fleas, and the fourth piece, the Floia of Knick-
nakkius.

The Floia is a macaronic poem, but has nothing to do
with the law. The name of the author is evidently
onomatopoetic, and is a pseudonym for Janus Caecilius
Frey (1580-1631), a German by birth, a doctor of medi-
cine of Paris, and physician to Queen Mary de Medici. 3
It was first published in 1594, and passed through
numerous editions. 4

1 In his edition of Floia, Cortum venicale de Flohis, Autore Griffbldo
Knickknackio ex Flo'ilandia, Heilbronn, 1879, 8vo. See also Dornavius,
Amphitheatrum Sapientite, i. p. 21, Hanoviae, 1619, fol.

2 Tractatus varii de Ptilicibus, Utopiae [Nuremberg, 1710?] I2mo;
again, Ib. [1715 ?], I2mo. A book of extreme rarity. Both editions are
in the British Museum. One was in the Meon library ; Bibliotheque de
M[/on~\, No. 2872. Brunet apparently had not seen the book.

3 There were editions in 1614, 1627, and 1635 ; and it also appeared
in the numerous editions of the Nugte Venales, 1632, 1635, 1642, 1662,
1689, 1720, 1741, and of the Facetiee Facetiarum, e.g. Francof. 1615 ;
Pathopoli [FLeyden], 1645, 1657. The latest edition is that of 1879
mentioned above. Frey addressed a poem to Queen Mary, Maria
Medices Augusta regina Elogia, Paris, 1628, 410, in which each word
begins with the letter M. Notwithstanding, he was left to die in the
hospital.

4 Fl5gel, Geschichte des Burlesken, p. 228.

WHIMSICAL DISSERTATIONS 125

Angla Floosque canam, qui waffunt, pulvere swarto,

Ex wateroque simul fleitenti, et blaside dicko,

Mullipedes deiri, qui possunt hiippere longe

Non aliter, quamsi floglos natura dedisset,

Illis sunt equidem, sunt inquam, corpora Kleina,

Sed mille erregunt menschis martrasque plagasque

Cum steckunt snaflum in livum, blantumque rubentem

Exsugant.

* * *

M. Octave Delepierre remarks that the bad taste in the
selection of the subject is not redeemed by verve and
spirit. 1

Another famous dissertation is Quod Mulieres non sunt
Homines, 2 which, although referred to as a legal work, is
not so, but is in reality a parody of the Socinian argument
against the Godhead of Christ. It was taken as a serious
composition by Simon Gedik, pastor at Merseburg, who
replied to it in I595 3 and hurled all sorts of abusive
epithets at the head of the unknown author Satan, beast,
ass, blasphemous devil, and so on.

The right of a testator to give directions regarding the
disposal of his own body after death arose in England a

1 Macaroneana, p. 316, Brighton [Paris printed], 1852, 8vo.

z Dissertatio quod Mulieres non sunt Homines, Lips. 1595, 4to. Replied
to by F. H. Hoeltich, Disputa tio fcemina non est homo, Viteb., 1688, 410 ;
Hag. Com., 1744 ; Dufour, Questions lllustres, p. 103 ; see also Paradoxes
sur les femmes ou I* on tache de prouver qtfelks ne sont pas de Fespece humaine,
Cracovie, 1766, I2mo.

3 Disputatio perjucunda qua Anonymus probare nititur Mulieres homines non
esse ; cut opposita est Simonis Gedicci defensio sexus muliebris, Hag. Com.,
1638, 8vo, second edition; Ib. 1641, 1644, 24010 ; Paris, 1693, I2mo,
n.p. 1695, 410.

FlSgel, Geschichte des Burlesken, p. 259 ; Journal filr Deutschland, ed.
Buchholz, xiii. p. 113 ; De Bure, Bibliographic Instructive, No. 4000.

126 LAWYERS' MERRIMENTS

few years ago, 1 but, like most questions, was not new, having
been discussed by Jakob Heinrich Kurella (1713-64), pro-
fessor and criminal magistrate at Konigsberg, in 1 740. 2

Testamentum omne morte consummatum is a well-known
maxim, but how is it to be applied in the case of a revenant,
such as Lazarus ? Could Lazarus after his resurrection
have reclaimed his property from those to whom he had
granted a disposition of it to take effect after his death ?
The question was mentioned by Sir Thomas Browne ; 3 and
was subsequently discussed with much learning by Verduyn,
a doctor both of laws and of medicine. 4 Puffendorf took
it up and decided in favour of Lazarus, 5 and it was touched
upon by John Maclaurin, afterwards Lord Dreghorn. 6

1 Williams v. Williams (1882), L.R. 20 Q.B.D. 659 ; see also Reg. v.
Sharpe, Dearsly and Bell, Crown Cases Reserved, 160 ; The Queen v. Price,
L.R. 12, Q.B.D. 247.

The result flows from the rule that there is no property in a dead
body. A question regarding a human body arose in the Sheriff Court at
Glasgow in the case of a poinding. A creditor having poinded the
effects of a showman, a suspension was brought upon the ground that the
principal exhibit was a dried body, which had been found in one of the
guano pits of Peru, and that it was not a subject of diligence because corpus
humanum non recipit eestimationem. This, however, was set aside. The
mummy was a source of considerable profit, and it was held that there was
property in it which could be attached and made available to the creditor.

2 De testamentaria circa Corpus dispositione, Regiomonti, 1740, 410.

z Re/igio Medici, Sect. xxi. Works, ed. Wilkin, ii. p. 350, London,
1883, 8vo.

4 Henricus Verduyn, Disquisitio juridica de testamento et heereditate Lazari
bis mortui, aliorumque bis mortuorum, ed. Boel, Amstelodami, 1705, izmo;
see also Johann Friederich Loesoler, De mortuis redivivis, Lipsiae, 1732, 4to.

5 Droit de Nature et des Gens, iii. c. 6, and Barbeyrac's Note.

6 Observations on some Points of Law, p. 162, Edinburgh, 1759, 8vo.
This work was published anonymously, but there is no question as to the
authorship.

WHIMSICAL DISSERTATIONS 127

The latter states a fresh case : A married person dies
and is subsequently restored to life by a miracle, but in
the meantime the surviving spouse re-marries. Would
the second marriage be a lawful one ? He answers in the
affirmative, upon the ground that the first marriage was
dissolved by death. He mentions the case of a woman
who was condemned to be executed for murder, and was
hanged accordingly. When she was cut down from the
gibbet she was, to all appearance, dead, and her body
was handed over to her friends, who took it away in a
cart. On the journey, she began to show symptoms of
life, and ultimately recovered. The woman's husband,
notwithstanding all that had happened, desired to take her
home again, but consulted the parish minister as to whether
she was still his lawful wife. The reverend gentleman
insisted on their being re-married, but Maclaurin considers
that he was over scrupulous, " for the resolutive condition
in the marriage contract //'// death shall part you, had not
existed."

THE LEGAL PROSECUTION AND EXCOMMUNICATION
OF THE INFERIOR ANIMALS.

This was a curious vagary of lawyers, but it is im-
possible to do more than refer to the subject at the present
time. On the Continent, down to a comparatively late
period, the lower animals were, in all respects, considered
amenable to the laws. Domestic animals were tried in the
common criminal Courts, and their punishment on convic-
tion was death; wild animals fell under the jurisdiction
of the Ecclesiastical Courts, and their punishment was
banishment and death by exorcism and excommunication.

128 LAWYERS' MERRIMENTS

Signer Carlo d'Addosio, an advocate of Naples, records
one hundred and forty-four processes against animals tried
in courts between the years 824 and I845. 1

Between the years 1522 and 1530 rats had multiplied
in the country of the Beaune to an alarming extent, and
their depredations were so great that a famine seemed
imminent; when, all human efforts having failed to
exterminate the pest, the Beaunois prayed the Official of
the diocese of Autun to excommunicate them. A formal
complaint against the rats described as dirty animals in
the form of rats living in holes was accordingly laid in the
court of the Official. The rats were formally cited to
compear, but, not having done so, they were adjudged to
be in contumacia, that is, in contempt of court. The pro-
moter of the suit then prayed for definitive sentence ; but
at this stage Barthelemy Chasseneux (1480-1531), a staid
and learned lawyer, was appointed counsel (patronus) for
the rats. He stated the dilatory plea that the rats, being

1 Bestie delinquent, with an appendix of documents, Napoli, 1892, 8vo.

See Chambers, Book of Days, i. p. 126; limile Agnel, Curiosites
judiciaires et historiques du may en age. Proces contre animaux, 1858, 8vo ;
Berriat-Saint-Prix, " Rapport et Recherches sur le proces et jugemens
relatifs aux animaux " in Memoires de la Societe royale des Antiquaires de
France, viii. (1829), p. 403 ; Saint-Edme, Dictionnaire de la Penalite, s.v.
"Animaux," i. p. 337, Paris, 1824, 8vo ; Zaunschliffer, Dissertatio juridica
de pulicibus, see 46, Heilbronn, 1879, i2mo; H. White in Student and
Intellectual Observer, iii. (1869), p. 210; W. Jones in Popular Science
Monthly, xvii. (1880), p. 619 ; G. P. Marsh in The Nation, ii. (1865),
p. 763 ; cf. Dublin University Magazine, xlvi. (1855), p. 281.

Cf. [Long (Edward)], The Trial of Farmer Carter's dog Porter, for murder.
Taken down verbatim et literatim in shorthand, and now published by authority
from the corrected manuscript of Counsellor Clear-Point, 1871, 8vo. A satire on
the game laws, reprinted nearly entire in Hone, Every-day Book, ii. p. 198,
London, 1827, and in Browne, Law and Lawyers in Literature, p. 371.

LEGAL PROSECUTION OF ANIMALS 129

scattered throughout a great number of villages, a single
citation was not sufficient to warn them all, and he
accordingly obtained an order for a second citation to be
made at time of sermon in each parish church. This
proved no more effectual than the first ; still the rats did
not come. To excuse this fresh default the advocate
dwelt upon the length and difficulty of the journey and
on the dangers to which the rats were exposed from cats
and the like, and maintained that the rats were entitled
to protection on their way to the court and on their
return home. The court was inclined to give effect to
this plea, but the promoters of the suit were not prepared
to give the necessary security. On the merits of the case
the advocate's pleading was divided into five parts, very
logical, but very prolix. He adduced ten arguments that
the rats ought not to be excommunicated, and a dozen
that they might, however, be anathematised. As the
promoters failed to find security for the protection of
the rats on their way to court, the proceedings ultimately
collapsed.

Chasseneux gained great credit by the manner in which
he conducted the case on behalf of the rats, and it was the
starting-point of a most successful career at the bar an
encouragement for those who now act as agents or advo-
cates for the poor he became King's Advocate for the
bailiwick of Autun, a Councillor of the Parliament of
Paris, and President of Aix. 1

1 Thuanus, Historia sui temf>oris,\\b. vi. 1 6, vol. i. p. 223, London, 1733,
fol. ; Saint-Edme, op. laud. ; Refertorium Consiliorum domini Bartholomcei
de Chassaneo, i. No. 124, Lugduni, 1531, 1588, fol. It is also referred
to in his Catalogus gloria Muncti, Lugd., 1529, 1546, fol.

Chasseneux was at the head of the parliament of Provence when the

1

130 LAWYERS' MERRIMENTS

Rats had another advocate in no less a person than
Hieronymus Rorarius, the nuncio of Pope Clement VII.,
at the court of Ferdinand of Hungary, 1 and who is famous
for having maintained that the lower animals have reason,
and employ it better than men. 2

In the Dissertatio de Pulicibus, above referred to, the
concluding query is, " De remedio pontificio exorcismi in
specie." The author refers to the pleading of Chasseneux,
and quotes the form of expulsion

" Adjuro vos mures, limaces, vermes, pulices & omnia
animalia immunda, alimenta hominum dissipantia

notorious judgment of i8th November, 1540, was rendered, by which a
certain number of the inhabitants of Cabrieres, Merindol, and other
places were condemned to death for contumacy, that is, for non-appear-
ance to answer to a summons, and their dwellings to be levelled with the
ground, their caves and hiding-places destroyed, and the trees in their
gardens cut down. These people were a remnant of the ancient Vaudois,
who had become suspect on account of the new teaching of Luther.
Chasseneux suspended the execution of this judgment on a petition to
the King that the people should be heard, which was granted. Chasse-
neux died a year later at Aix. His successor, President Meinier, Baron
d'Oppede, caused the judgment to be carried out in all its rigour.

Chasseneux edited the Customs of Burgundy, Consuetudines ducatus
Burgundiae, Lugd., 1 523, fol., which passed through many editions. His
Life, by President Bouhier (1673-1746) is prefixed to the edition, Dijon,
1717, 410.

1 Murium . . . adversus Nicolaii Bestii edictum, Oratio. August. Rhet.,
1663, 410 ; see Draudius, Bibliotheca Classica, p. 1093, Francof., 1625,
4to, 2 vols. ; and J. G. Estor, Amerlesene kleine Sckriften, vol. i. Marburg,
1786, 8vo, third edition ; Lemgo, 1768, 8vo.

2 Quod Ammalia Bruta taepe ratione utantur melius Homine, libri duo,
Paris, 1648, 8vo, edited by Gabriel Naud ; " Petit ouvrage singulier et
peu commun," Catalogue de la Bibliotheque de M\eon\, No. 66 1. There
were several other editions. Bayle has a long article on Rorarius,
Dictiottnairf, s.v.

LAW PROCEDURE 131

& corrodentia hoc in territorio & parochia natu exis-
tentia ut a dicto territorio & parochia discedatis
& ad loca accedatis in quibus nulli nocere possitis.
In nomine Patris, Filii, & Spiritus Sancti, Amen.
Zaunschliffer adds from St. Augustine, " Quisquis hodie
adhuc quaerit miraculum, quaerit prodigium."

LAW PROCEDURE APPLIED IN ILLUSTRATION OF
SERIOUS SUBJECTS.

The forms of legal proceedings have been turned to
account not merely for the purpose of raising a laugh, or
for drawing attention to necessary reforms, but also for
serious instruction.

Professor Simon Greenleaf (1783-1853), the author of
the standard work upon the law of Evidence, has examined
the testimony of the four Evangelists according to the
ordinary rules of evidence. 1 His object was to ascertain
what degree of credit the narratives of these witnesses,
when so tested, would be entitled to receive in human
tribunals. In a similar manner Mr. Taylor Innes has
dealt with the trial of Jesus Christ. 2

This method of using legal forms is, however, very
ancient, and was much in vogue in the Middle Ages.
There were two processes in which Our Lord is intro-
duced as the chief person, the one known as

Processus Sathanae contra D. Virginem
coram ludice lesu,

1 The Testimony of the Four Evangelists, examined by the rules of evidence
administered in Courts of Justice, with an account of the Trial of Jesus, Boston,
1846, 8vo ; London, 1847, 8vo, second edition.

2 The Trial of Jesus Christ a Legal Monograph, Edinburgh, 1899, 8vo.
See also, Willem Goes, Pilatus Judex, Hag. Com., 1677, 410.

132 LAWYERS' MERRIMENTS

the other as

Processus Luciferi contra lesum
coram ludice Salomone,

or, more shortly, the former is referred to Processus
Sathanae, the other as Processus Luciferi, or Belial v. Christ. 1
The enmity of Satan to man, and the story of our
Redemption, are taken as being subjects the most familiar
to every reader, and are employed for the purpose of
illustrating legal procedure. Such a theme is startling to
us, but no irreverence was intended. 2 It was probably
thought that a familiar subject was the most suitable
illustration, and that by using it in this way it would be
brought more closely home to the people, or, in other
words, that the plan of salvation would be made plain and
more readily received by faith. Passion and Miracle Plays
were much used in instructing the people in the contents
of Scripture ; and the same idea probably underlay these

1 See Stintzing " Satans-Prozesse," in his Geschichte der popularen
Literatur , , . da Rechts, pp. 259-279, Leipzig, 1867, 8vo. Unfortu-
nately, I did not see this until my chapter was printed.

2 Savigny treats it as a trifling with sacred things ; a pedantic, broad,
long-drawn-out farce : Gesckickte des romischen Rechts im Mittelalter, vi.
p. 1 60, Heidelberg, 1831, 8vo. Gottlieb Stolle was much of the same
mind ; Ankitung zur Historic der juristischen Gelahrheit, p. 486, Jena,
1745, 4to. Denis, on the other hand, styles it a juridical-theological
allegory : Die Merktvilrdigkeiten der garellischen Bibliothek, p. 237, Wien,
1780, 410. Bayle was of opinion that no impiety was intended :
Dictionnaire, s.v. " Wechel," note B.

Richard Hollinworth (1607-1656) wrote The Holy Ghost on the Bench,
other Spirits at the Bar : or, The Judgment of the Holy Spirit of God upon the
Spirits of the Times ; recorded in Holy Writ, and Reported by Richard Hollin-
worth, Mancuniens, London, 1656, izmo ; but the subject is not treated
in any way as a legal process.

LAW PROCEDURE 133

curious pleadings. The aim of Bunyan in The Pilgrim s
Progress was to teach how man is to get quit of the burden
of sin which he bears ; to picture his journey through life
and his triumph in death. We see nothing incongruous
in the story, we are conscious of nothing but piety, but in
form and substance there is little difference between it
and the works in question. It is more artistic ; the charm
of the narrative, the simplicity and beauty of the language
carry the reader along, and he forgets that the Divine is
being treated as human.

Men were ignorant, the clergy were indolent, Merus
Canonista^ merus asinista, says the proverb. The authors
of these tracts, filled with compassion for their fellows
sitting in darkness, endeavoured in this way to teach them
the scheme of Christianity and at the same time to remove
the reproach of the other proverb, which says, Bonus
Jurista, malus Christista. 1

The belief in the devil, his personality, power, and
works had been developed to an extraordinary extent. 2
It was prominent in men's minds, and was no doubt one
of the inducing causes of the production of this work.
Passion and Miracle Plays were in great favour, and, by
painting the devil in his true character, it was hoped that
men might be led to what was good and right. 3

1 Melchior Goldast, Processus luris loco-serius, " Ad Lectorem,"
Hanoviae, 1611, 8vo. Infra, p. 201, n. 2.

2 Josef Kaufmann of Magdeburg, " Die Vorgeschichte der Zauber- und
Hexenprozesse im Mittelalter " in Neue JahrbUcher fiir das Klassisches
Altertum, vii. (1901) at p. 292.

3 Ebert, Bibliographical Dictionary, No. 22,705, gives a long list of works
dealing with the devil from this practical point of view.

134 LAWYERS' MERRIMENTS

PROCESSUS SATHAN^E.

The Processus Sathan<e is generally ascribed to Bartolus
of Saxoferrato (1313-1357)? the creator of the law school
of Perugia, the foremost jurist of his age " The Mirror
and Lamp of the Civil Law," " The Monarch of Law," as
he was styled, 1 the author of valuable treatises on Pro-
cedure and on Evidence, and whose Commentary on the
Code of Justinian was at one time regarded as of equal
value with the code itself.

Satan is the speaker. The human race was damned
from the creation of the world by reason of the dis-
obedience of mother Eve ; and was afterwards redeemed
through the Blessed Virgin Mary. Woman brought con-
demnation ; woman brought salvation. How then can
humanity be reduced to its primitive stage of bondage ?
Satan, taking advantage of the weakness of woman, by
means of Pilate's wife, endeavoured to prevent the death
of Christ ; but, urged on by the Jews, 2 Pilate adhered to
his judgment, and Jesus was crucified, died, and was
buried. In this position the Powers of Darkness, after
full consideration, resolved to despatch a duly authorised
procurator on their behalf to Jesus Christ himself to crave

1 It is included in his Works, vol. v. p. 349, Basileae, 1588, fol.
The volumes are not numbered ; this contains " Consilia, Quaestiones
et Tractatus," and is counted as vol. v. It is in volume x. of the
edition, Venetiis, 1590, fol. There are a great number of early
editions.

2 The Jews, it is said, desiring that the whole Christian people should
perish, were like the dog which lay upon the straw whilst the ass stood
by, and, though he did not eat the straw himself, he prevented the ass
from doing so.

PROCESSUS SATHAN^E 135

that mankind should be brought back to their original
condition of bondage. 1

The procurator arrives, and thus speaks " Creator of
heaven and earth, I am damned, and am the procurator
of the wickedness of hell, and I pray that thou willst hear
me for a short space while I briefly explain certain things."
The Lord replies " You are aware that the merits of
causes are disclosed by the statement of parties," and
duly supports the maxim by a reference to the Code of
Justinian and the Decretals of Pope Gregory. 2 We do
not desire to be informed by you, for we remember that
whilst we were yet upon earth in what manner of way
you informed us. You said, " Command that these
stones be made bread " ; and, again, " All these notable

1 The idea of the appointment of a procurator was a familiar one in
the Mystery Plays of the Middle Ages. Thus in the Mystery of the
Assumption :

A tous ceux, &c.
Lucifer, Prince general,
De 1'horrible gouffre infernal,
Pour salutation nouvelle,
Malediction eternelle ;
Savoir faisons, qu'en notre hotel,
Ou il y a maint tourment cruel,
En personne sont comparus
Un grand tas de diables plus drus,
Que moucherons en air volant
Devant nous; en constituant
Leur Procureur irrevocable
Fonde en puissance de diable
Satan, notre conseil feal,
Lui donnant pouvoir general.
Flogel, Geschichte da Groteskekomischen, p. 93, Liegnitz, 1788, 8vo.

2 The references are Cod. viii. 8, Decretalia Gregorii, v. i, 17, which
<lo not seem very apposite.

136 LAWYERS' MERRIMENTS

things will I give thee if thou wilt fall down and worship
me." The procurator then appealed to the Lord, as
justice and a just judge, and prayed that the human race
be cited to compear, on an induct* of three lawful days
(ad tertium diem utilem\ to make answer to him as pro-
curator of the wickedness of hell. He next produced
his procuratory and mandate, which was duly examined.
A question arose as to the day of compearance. The
procurator proposed the following day ; but it was
answered that this was too short, that the way from earth
to heaven is long (longa via esf a terra usque ad coelum} y
and that he had already suggested the third lawful day.
This was fixed. It was then pointed out that the time
would expire upon Good Friday (dies Veneris sancte}.
The procurator objected that being a holiday it was
incompetent ; but the objection was overruled. Jesus
then ordered the angel Gabriel, as messenger of courtj
to give the summons by a trumpet of iron (cum tuba
f erred].

The procurator then returned to his own place, a
council was held, when it was resolved to appoint the
same procurator to attend on their behalf at the appointed
time. He accordingly presented himself early on the
day of compearance and pointed out that the human
race was not present. It was explained that they had the
whole of the day for entering appearance. 1 He therefore
waited until evening, when he produced the citation, and
the angel Gabriel, as crier of court, asked whether any
one appeared for the human race. There was no reply.

1 The rule of law was totus dies debetur delinquenti ; it was enough
that he appeared at any hour of the day, provided it was a court
hour.

PROCESSUS SATHAN^E 137

The devil then stated that the human race were in
contempt (in contumacid]^ that is, disobedient to the orders
of court ; and that, whilst he did not move for excom-
munication, he asked for a certificate of his own appearance
and of the non-appearance of the human race. 1

The judge, however, continued the case until the next
day. The procurator protested that this was unjust, but
the judge stated he must act equitably. On the morrow
the devil again presented himself betimes. Alarm spread
throughout heaven that the human race was in contempt
of court. The Choir of the Saints approached the Lord
and said that it was not well that the human race should
perish. Their shout reached the ears of the Blessed
Virgin, who expressed her intention of being advocate
(advocata)* for mankind.

Then the advocate of the human race approached the
tribunal, accompanied by a multitude of angels singing
Hail ! Queen of Heaven (Ave Keglna coe/orum'), and took
her seat on the right hand of the Son of God, the Father
Almighty, and said that, if any one had a complaint
against the human race, she was there to answer it.

The Lord then, addressing the devil, said that he was
at liberty to prefer any charge he had against the human
race.

1 If the party cited did not appear, it was prayed on pain of his con-
tempt, that a citation issue, summoning him to show cause why he should
not be excommunicated. He must be vere contumax ; he could not be
excommunicated until after three notices.

2 The shade of meaning in advocata, a woman advocate, which is used
throughout, is slightly lost in the English word, which is of the common
gender. In German she appears as " Maria Sachwalterinn des Menschen-
geschlechtes," and also as " Ftirsprecherinn." In French we have now
the term " La Femme-avocat."

138 LAWYERS' MERRIMENTS

The Devil 1 replied flesh and blood and a mother's love
will not influence you ; you are just ; you are charity,
equity, and truth ; you have said of yourself " I am the
way, the truth, and the life."

I shall state my cause, but I do not see with whom I
contend ; judicial procedure requires three persons. 2 I
see not the accused or the person cited here ; how shall
I state my case when I have no proper respondent ? Who
is my lawful contradictor ?

The Blessed Virgin made answer. The speech of the
demon is what I would submit, for he says judicial
procedure consists of three persons, the judge, the pursuer
(actor), and the defender (reus). 3 I do not observe any
pursuer. The devil ought not to be allowed to be heard ;
he cannot speak for others, as he and they are not on the
same footing, a proposition which is established by a
constitution of the Emperor Alexander Severus (in Cod.
3. 28. n, last clause). The character of pursuer, it was
answered, rests upon the procuration already produced,
under the hand of a Notary Public in the year of our
Lord 1354, the 5th Indiction, and witnessed by Raphin
de Machomet and Cerberus.

The advocate said that she did not wish to waste time,
and asked for a copy of the citation. The devil again
urged the plea that the human race were not represented.

1 The word " daemon," properly a minor evil spirit, is generally used,
but diabolus, the slanderer or accuser, properly the chief evil spirit,
and Satanas, the adversary, are occasionally used in the same sense.

2 Judicium est in quallbet actlone trlnus actus trlum personarum ; Judicis,
viz., actoris et ret, Bracton, De legibus, io6a ; cf. Ib. 4313.

8 In the English and Irish ecclesiastical courts they were styled the
promovent and the impugnant.

PROCESSUS SATHAN.E 139

The advocate replied that she represented them ; but the
devil (diabolus) objected that a woman is excluded from
the office of advocacy, because women are prohibited
from appearing in court, that being the province of a
man. " Besides, she is thy mother, whence I hold her
suspect." l

Take heed, my Son, says the advocate, that the guile
of the crafty one does not get the better of thee. He
asserts that I cannot be allowed as advocate of the human
race. In this he lies, for he speaks both against the truth
and against the law, and in his mouth the truth is never
found. .

Know then, my Lord judge, my Son, that although
women are not admitted to the office of pleading, they
are regularly allowed in the case of the poor, of pupils,
and of widows. In support of this she quotes several
texts of the law. In the next place, it is said that I am
the mother of the judge, and, being so, I am suspect, and
not to be permitted to act. Now, if I were a Jew or
excommunicated I would be heard, much more so ought
I to be heard when I am not in any way tainted with
infamy. 2

1 A common objection.

The law sayis, it is richt perrillous

Till enter in pley before an Juge suspect.

Henryson, The Sheep and the Dog.

2 As to the position of women, see Bronchorst, In titulum Digestorum
de diversis Regulis Juris antiqui Enarrationes, on 1. 2, p. 6 sqq . ; Signorel
(J.) La Femme-avocat, Toulouse, 1894, 8vo ; Frank (L.) En cause de Mile.
Chauvin. La Femme-avocat, Paris, 1898, 8vo ; Santoni de Sio (F.) La
Donna e I'avvocatura, Roma, 1884, 8vo ; Vidari (E.) La Donna pub far
ravvocato? Ivrea, 1884, 8vo.

According to the commentators on the civil law, when Offices and

i 4 o LAWYERS' MERRIMENTS

The devil asked for an interlocutor finding that the parties
duly appeared. The Lord thereupon pronounced an inter-
locutor finding that the Virgin Mary is a lawful advocate
and ought to be allowed and heard, and that the demon
should be allowed as procurator of the wickedness of hell. 1

A copy of the devil's procuration and of the citation
were then exhibited to the Virgin, who suggested that
the other side should open.

The procurator explained that the ordinary course was
to ask for a restitutory interdict, seeing that melior est
conditio possidentis. I therefore pray that the former state
of possession be restored, and I am ready to prove that
Satan was formerly in the quiet and peaceable possession
of the human race, and is and has been violently dis-
possessed ; and the rule of law is that redinlegranda sunt
omnia spoliato antequam procedatur uherius.

The advocate answered that the maxim applied only
when the possession had not arisen vi, clam, aut precario,
but depended on a just title and good faith. Now, the
devils never had such possession, they merely kept the
gates of hell, and were deputes only.

Further, it is established by many texts in the law that

Jurisdictions are granted to heirs they may descend to women : " Etsi
officium virile quatenus fasmina hasres id per substitutum administrari
gerique curare poterit," Voet, Ad Pandectus, " De usufructu," 27 ;
" De muneribus et honoribus," 2 ; Vinnius, In Institutions, " De
usufructu," in princip. and 2. See The King v. Showlers and others,
Sir William Blackstone, Reports, i. p. 419 note, second edition ; Rex v. Alice
Stubbi and others, 2 T.R. p. 395.

1 A procurator was not allowed to appear without Letters of Procura-
tion under the hand and seal of the pursuer or defender, as the case
might be, authorising him to act for him in the case. He is still, in our
practice, required to produce a mandate, when asked for.

PROCESSUS SATHAN^E 141

they possess in whose name possession is held. Thou,
O Lord judge, created men, consequently they are thine.
The devil therefore could not have bona fide possession.
Length of time could give him no title, seeing that pre-
scription does not run in favour of a male fide possessor.
It is one thing to possess ; it is another to detain. There
is therefore no room for restitution, and I crave that this
point be decided in my favour. What more would you
say to me, you damned, you reprobate, you accursed ?

The Judge thereupon pronounced an interlocutory
judgment rinding that the devil cannot have restitution.

The devil (d<mon\ gnashing his teeth, took a little
book from his bag (marsupium\ and began to read in
Genesis, where the Lord said to Adam and Eve " Of
every tree of the garden thou mayest eat freely : But
of the tree of the knowledge of good and evil, thou shall
not eat of it ; for on the day that thou eatest thereof thou
shalt surely die." Arguing upon this he claimed restitu-
tion, and that the interlocutory judgment did not apply,
as it proceeded upon the ground that man fell de facto
and not de jure. If thou doest otherwise, O Lord judge,
thou art not the truth, and art not a fair judge.

The advocate, in reply, said That crafty one put
before thee only the beginning of this quotation, and
omitted the end, which is contrary to the law incivik in
the title of the Pandects, " De Legibus" (Dig. i. 3. 24).
He omitted the succeeding passage in Genesis, which
shows that the devil caused Adam and Eve to sin. He
has been guilty of fraud and dole ; and dole must not be
supported, as is shown by a reference to authorities. The
devil therefore is incapable of entering on the suit, and
his whole action should fall.

142 LAWYERS' MERRIMENTS

The devil was very angry, and contended that this
proposal was contrary to law and practice, and that it
was the duty of a good judge to see that crime did not
go unpunished.

The advocate argued that, where there are two or more
remedies available, the pursuer must elect which he is to
found upon, and the devil from the beginning elected
one. He brought but one person into judgment, as
clearly appears from the process in the Acts of your
court under the hand of John the Evangelist, notary of
court and public writer (scriba). Having elected one
remedy, he cannot claim another, for circuity is to be
avoided, as says the law (Dig. 12. 6. 53).

When there is an ordinary remedy, recourse is not to
be had to an extraordinary one. The devil invoked the
ordinary remedy and failed, and should not be heard
further. Restitution is an ordinary remedy. This he has
applied for, and there is an interlocutory judgment re-
fusing it. That judgment cannot be overlooked and is
not appealable, and is therefore res judicata.

At this stage the advocate of the human race was so
affected by the thought of any calamity to them that she
burst into tears and loud sobs, and the heavenly host
wept in sympathy. Falling on her knees and rending
her raiment she addressed her Son. Behold the devil,
who spat upon you, who stoned you, who bound you to
the pillar, who scourged you, who crucified you as if you
had been a thief, and now audaciously begs the benefit of
your office; I, your mother, the advocate of the human
race, pray justice and that you deny your office to that
subtle one ; I am your mother ; he is a devil. I seek the
salvation of mankind ; he seeks their death. I am the

PROCESSUS SATHAN^E 143

friend of my Son ; he is damned and infamous, and cast
out from the glory of heaven. If you favour the plea of
this crafty one, grant that my name be erased from the
Book of Heaven.

Jesus seeing his mother in such grief, and moved by
pity, said Go hence, Satan (Satanas), we refuse the office
you crave.

The devil (d<mori) y moved with anger, said Lord Jesus
Christ, thou art not a just judge. I well see that your
flesh and blood cause you to deviate from the path of
justice. You know that it was contrary to law to allow
your mother to appear against me. I show you the
Gospel, which, if properly read, clearly makes for me.
It plainly says " The Prince of this world cometh." I
am the Prince of this world, and here the Scripture
speaketh of me. I am the Prince of the bad and of
sinners ; you are the Prince of the good and of the just.
It is the part of a good judge to put an end to contro-
versy, and to give to each litigant his own. I therefore
crave the human race, seeing that I am the Prince of this
world ; and how these words are to be understood is, as
you are aware, explained in many texts of the law. You
see that there is daily controversy between you and me.
In order that controversy may cease, make a division
between good and bad. You are the ruler (Nominator}
of the good; I am the condemner (damnator) of the
wicked. And if you do so I promise that your kingdom
will not be greater than one grain of millet seed in regard
to my kingdom.

The Son, addressing his mother, said Reply, O advo-
cate of the world, to the devil, because prima facie he
seems to claim right and justice.

144 LAWYERS' MERRIMENTS

Replying, the advocate said Thou knowest that yester-
day, on Good Friday, he has committed many and great
offences. On his petition thou wert crucified; for the
redemption of the human race thou didst descend from
the highest heavens and became subject to death. This
subtle one with hideous cruelty and detestable cunning
seeks the death of others. Since then, my Son, thou
didst once descend into hell and brought captives thence,
it is not fit, nor is it just, longer to dispute regarding the
bondage of mankind. For the sentence has become res
judicata, and there is no appeal therefrom. There must
therefore be no talk of appeal, lest we be like boys who,
if they are not pleased with what has been done in a book,
say let us do it over again. Whence, my Son, it clearly
appears that that subtle one is altogether a stranger to the
path of justice. Then, looking on the devil, the advocate
said to him Speak, accursed one, and I will see whether
you are thoroughly terrified by such a reply.

Said the devil God dwells in truth and justice; he
ought to punish the great as well as the small ; there is
no respect of persons with him ; he ought to punish the
conjunct as well as the stranger (conjunctum^ sicutextraneum).
I accordingly crave that man may forthwith be damned,
and for this very weighty reason You know that the
angel Lucifer was hurled down from heaven, although no
command was in existence, and he could not therefore be
said to be disobedient; but a command was laid upon
Adam and Eve. I, on whom no command was laid, was
thrown from the face of heaven, and am damned. How
much more should the human race, which contravened

1 Still a well-known word in Scots law in the expression " conjunct
and confident persons," that is, near relations and confidential friends.

PROCESSUS SATHANJE 145

the order of the Lord, be damned. It is a graver offence
to act contrary to a command than to act where there is
no command. The human race ought to be damned, and
I call upon their advocate to show cause why they should
not be so.

The advocate replied Oh, unhappy and wretched one !
the cases are not analogous. The angel who sinned was
deservedly punished, because there was no infirmity in
him which might lead him into sin. He did not sin by
reason of weakness, but from deliberate malignity. Man,
on the other hand, had that which inclined him to sin, a
weak body. The angel sinned more grievously, because
through pride he knowingly rebelled against God, while
man, in his ignorance, sinned by being cunningly
entrapped. What you say of the angel therefore is
not sound.

The devil answered I will not be silent: open your
ears, O advocate of the human race, and hear what I shall
say unto you.

The advocate said Let us make an end of controversy.
You know that you have failed on every point, and you
should not revert to what you have already said. When
you asked for an interlocutory judgment upon the plead-
ings (supra positis), did you delay?

Then replied the devil I am surprised, O advocate !
that you seek to impose a limit not only upon me, but
upon God himself. I press the one point, that man has
sinned.

The advocate, turning to her Son, said You are the
judge of the quick and the dead, and know what the
crafty one would say. He uses sophistical arguments ; he
says man has sinned, and wishes that his reasoning be

146 LAWYERS' MERRIMENTS

accepted, as if it were from a judge. His proposition and
the groundwork of his arguments are false. How is it to
be assumed that he is now speaking the truth ? This
cannot be ; once bad he is assumed to be always bad.
This crafty one speaks so proudly that I do not know
what point to take up. Wherefore I pray that you call
upon him to say, in one word, what text he wishes to speak
to, and I will define it and gloss it according to truth.

The devil said This day I hear of marvellous things in
the sun, in the moon, and in the stars, in that the advocate
of the world is my advocate against my wish. She desires
to be my tutrix and nurse, and to act for me as we do
for lads who know not how to define (punctuari) or to
gloss. 1 I therefore pray that she be not heard, inasmuch
as she desires to sustain the part of pursuer (actor}, which
is mine.

In reply the advocate said I am not disturbed. Seeing
that this crafty one alleges what is false, he ought not to
be heard. If he will speak a lie, let him do so in his own
realm, not in thine.

If you will not hear me, said the devil, I shall retire,
and then I will see clearly whether there is justice in him
who is judging.

Then said the Father Almighty (Pater Omnipotent] to
his mother Let us see whether this crafty one desires to
demand justice. Thou knowest that I am justice, and that
it behoves me to render justice to every one. Let us see
therefore whether the devil supports a just cause.

1 The method of glossing was taught in the law schools. Punctuatio
was a branch of interpretation.

As to the assigning of puncta in the examination of students, see
Savigny, Geschichte des romischen Rechts im Mittelalter, iii. p. 193.

PROCESSUS SATHAN^: 147

His mother in answer said Thy justice is not to permit
him to utter a lie in thy presence.

The Almighty said If that crafty one utters a false-
hood, he shall be most sharply punished. Let him
therefore speak.

Then said the advocate Say, then, O, cursed one, what
you would say.

The devil said Man has sinned ; I crave that he be
suitably punished and condemned.

The advocate said Stop ! for you depart from the path
of law, for you do not state whether he sinned by reason
of his own fault (sua culpa] or of thine. You know that
you were in fault. Be silent therefore, for it is time.

Then said Jesus Mother, permit him to speak. It is
unjust if you do not allow him to argue or to make reply.

The devil said Man sinned against infinite goodness :
I care not by whose fault he sinned, whether it was his
own or another's. Granted that I induced him to sin, it
is written in the law that the actor, and consenter or acces-
sory, that is, our Scottish " art and part," are to be
punished equally. In support of which he quotes a large
number of texts of the Canon and the Civil law.

It is enough then for my case that man has sinned, and
the punishment must be in proportion to the transgression.
I pray further that equality be preserved. As I have been
damned for sin, so man who has sinned should be similarly
damned. Man is guilty of the crime of lese majesty ;
whence he and his heirs must deservedly be damned. For
it is written that sons ought to suffer their parents' punish-
ment.

The advocate replied Thou, my Son, art God and
man ; Thou art infinite goodness ; Man sinned against

i 4 8 LAWYERS' MERRIMENTS

thee. It was to thee that the injury was done, and this
injury thou canst remit. This subtle one would say that
man sinned either through thoughtlessness ; if so, he is
not now to be condemned ; or, through stupidity ; if so,
he is to be commiserated ; or, from evil purpose (ex
injuria) ; if so, it is for thee to forgive the wrong. There
is a very notable text, on this point, in the Code [9. 7 ; a
Constitution of the Emperors Theodosius, Arcadius, and
Honorius, of the year 393]. The conclusion therefore is
that man is not to be punished or condemned.

The devil replied I have previously stated that it is
hard to have the mother of the judge appearing as advocate
against me ; and then addressing the Queen of Heaven
said, You do wrong in that you do not wish that man be
punished for the sin which he has committed which is
contrary to law.

Then spake Jesus to the devil Be silent ; you know
that I hung upon the cross for the redemption of mankind
who had once been condemned by reason of sin. It is not
just therefore that for the same sin sentence should again
be pronounced upon them. You must wait for the day
of judgment, when I will destroy the wicked, and I will
make the good triumph in heavenly joy. 1

The devil said Allow me to interrupt. Man has

1 According to Origen " By his successful temptation the devil
acquired a right over men. This right cannot be destroyed, but only
bought off. God offers the devil Christ's soul in exchange for the souls
of men. This proposal of exchange was, however, insincere, as God
knew that the devil could not keep hold of Christ's soul, because a sinless
soul could not but cause him torture. The devil agreed to the bargain,
and was duped. Christ did not fall into the power of death and the
devil, but overcame both," Harnack, History of Dogma, translated by
Neil Buchanan, ii. p. 367, London, 1896, 8vo.

PROCESSUS SATHAN^E 149

sinned infinitely ; his punishment extends from the past
until now, and must therefore be punished now as laid
down in the law.

The advocate You reason falsely. You are aware
quod non probat hoc esse, quod ab hoc contingit abesse. If
there was fault in man, which I do not admit, it was swept
away by grace and cancelled by mercy. If then there be
no fault, there is no punishment.

The devil again appealed to the Lord to do justice.

The advocate replied You know that God created man
in his own image and in his own likeness, and wished him
to be the heir of eternal life which he long ago promised
to Abraham and his seed. The human race ought not
therefore to be thine, but ought to be placed in the joys of
heaven.

The devil answered You know that God created man ;
but I know one thing, he created him with wisdom ; he
had wisdom, and sinned in his wisdom. He therefore
sinned knowingly and deceitfully. He is liable to punish-
ment, and so I crave.

The advocate replied Silence, O son of iniquity !
Have I not told you that man was induced to sin by
reason of the infirmity of woman ? Verily it is so. Hence
man is not to be punished, but you, O devil, because he
who gives occasion of the loss is treated as having given
the loss. It is unnecessary to enlarge upon this, because
it has been sufficiently discussed, and I have said many
things which it is unnecessary to repeat. I have observed
all your contradictions ; and if one contradiction is known
all the rest are known. I therefore beg Thee, my dearest
Son, King of Glory and Creator of the world, that Thou
wilt give judgment in favour of the human race, and so

150 LAWYERS' MERRIMENTS

absolve the human race from the claim of the procurator
of the wickedness of hell.

Jesus the just judge then commanded the angel Gabriel
to cite with a golden trumpet the Blessed Virgin Mary,
the advocate of the human race, on the one part, and the
procurator of the wickedness of hell, on the other part, to
hear sentence given on the day of Pasch of the Resurrection
of Jesus Christ, and so it was done. Jesus then sitting in
judgment gave sentence as follows : *

In name of the Eternal, Amen. We, Jesus, saviour of
the world, Having considered the citation against the
human race, Having also seen the writing (charta) produced
by the procurator, and the allegations made by the pro-
curator of the wickedness of hell ; Having also seen the
allegations made by the Virgin Mary, the advocate of the
human race ; Having seen the condescendence (positiones),
and answers (responsiones\ the exceptions (exceptioncs) and
replies (replicationes\ and the pleas in law (Jura) of both
parties ; And having seen and considered all things which
in the foregoing and in regard to the foregoing required
to be seen and considered Sitting in judgment on our
accustomed bench of law (ad nostrum solitum banchum juris]
placed above the thrones of the angels in our heavenly
palace in which we make our personal residence,
ABSOLVE the human race by this definitive sentence,
and DECLARE them to be absolved from the claim of
the procurator of the wickedness of hell, inasmuch as this
is in accordance with the Holy Scriptures and with juridical
verity which in this matter we desire to follow ; and,
further, we COMMAND the procurator of the wicked-
ness of hell to go into the everlasting damnation of

1 An ordinary decree of a Scotch court is still in this form.

PROCESSUS SATHAN./E 151

hell, where there is unending weeping and gnashing
of teeth.

And the accursed devil, with his garments rent and
overcome with grief, retired to the infernal regions.

The above sentence was published, given, pro-
nounced, and promulgated in the terms before written
by the before-mentioned Our Lord Jesus Christ sitting
in judgment in the aforesaid place, in presence of the
parties above written.

Read and translated (vtdgarizata) by me, John the
Evangelist, notary of our Lord Jesus Christ and
public writer of the said court ; there being present
John the Baptist, Francis and Dominick confessors,
Peter and Paul, princes of the Apostles, and Michael
the Archangel, with many other saints, in a crowded
assembly, witnesses to these things called, had, and
required. In the year of our Lord 1311, the second
Indiction, and the sixth of April.

Then the angels and the heavenly choir seeing these
things began to address the most glorious Virgin, saying
Hail, Queen, Mother of mercy, our life, our sweetness,
and our hope.

As Bartolus was born in 1314, the above date evidently
suggests a difficulty as to his being the author of this
piece. 1 It has been thought that there was an original
sketch of the earlier date which Bartolus added to and
improved. Be this as it may, the authorship has been

1 Melchior Goldast, followed by Fournel, Histoire det Avocats, i. p. 197,
Paris, 1813, 8vo, suggest Andreas Barbatias as the author ; but he died in
1482, long after the Processus was in circulation. Fournel remarks that
its originality assures it a place in the libraries of the curious.

152 LAWYERS' MERRIMENTS

ascribed to him from an early date, and it is included in
the various collected editions of his works.

The work was a great favourite. It was amongst
the earliest books that were printed ; and I have noted
sixteen editions in the last thirty years of the fifteenth
century. A German translation by Georg Alt, " Losung-
schreiber," of the town of Niirnberg, appeared in 1493. l

That it was popular and considered to be of value is
shown from the fact that it was included in a pocket
volume for law students like the Manuel des Etudiants et
desjeunes Avocats of Dupin, already mentioned which first
appeared at Cologne in the fifteenth, and was repeatedly
printed at Paris in the sixteenth century. 2 This Manual,

1 Eln ntitzlicher Gerichterhandel vor got . . . durch die . . . Jungkfrawen
mariam ftir spree herinn desz menschlichen geschlechtes . . . durch . . . doctorem
Bartholum begriffene [Leipzig, Martin Landsberg, 1493], 4 to > J ^ l eaves >
34 lines to a page. The preface of the translator, Georg Alt, 1493, is
on f. 2b.

2 8vo, A I ?4, in eights, 35 lines to a full page. There were
editions, Paris, 1507, 1515. The contents of this little volume indicate
the nature of what was considered necessary for the outfit of the student
and practitioner of the day. Amongst the other tracts are :

Modus legendi abbreviaturas in utroque jure.

Tituli libri Decretalium ; libri sexti ; libri Clementinarum.

Rubrics Decretorum.

Decretum Versificatum.

Rubricae Institutionum ; Codicis ; librorum Feudorum ; Digest!
veteris ; Infortiati ; Digesti novi ; Autenticorum.

Tractatus ludiciorium per dominum Bartholum de Saxo Ferrato.

Tractatus de renunciationibus Beneficiorum.

Ars Notariatus.

Summa Joannis Andree super secundo Decretalium.

Summa Joannis Andree super quarto Decretalium.

Lectura arboris Consanguinitatis.

Lectura arboris Affinitatis.

LITIGACIO SATHAN.E 153

like that of M. Dupin, contained a number of tracts,
which were intended to meet the requirements of the
student and practitioner ; and the Processus Sathan* was
included as presenting a practical summary of pleading.

LITIGACIO SATHAN.E CONTRA GENUS HUMANUM.

This is a variant of the Processus Safaris contra B. Vir-
ginem, and is attributed to Cardinal Lotario de Conti di
Segni (1160-1216), "the lamp of the law" and "doctor
of doctors," afterwards Pope Innocent III. 1 There are
differences in the text, but they are not substantial. There
are no references, however, to the Civil and Canon law as
authorities, and the name of Bartolus does not appear.
The title, it will be seen, is slightly varied, and in one
edition it becomes

" Placitum habitum inter genus humanum tanquam

reum, et totum genus diabolicum tanquam actorem ;

presidente in consistorio Trinitate benedicta ubi causa

est concussa secundum modum et formam subscriptis." 2

1 There are four copies in the Grenville library and one in the library
of King George III., all now in the British Museum. See Brunei,
Manuel, s.v. " Lotharius."

2 G.L. 410 [? 1480]. Printed by ? Joannes de Westphalia ; 76 leaves,
without pagination : A to K in eights : 30 lines to a full page. This is
the last tract in a volume of Pope Innocent's Tracts Incipit liber miserie
condicionis humanae a Lothario diacono cardinali Sanctorum Sergi et Bachi qui
postea Innocentius papa appellatus est. The Placitum begins on the verso of
Sig. J3 and ends on the verso of K4, occupying 19 pp. There is a
copy of this edition in the British Museum, formerly in Heber's Library ;
Catalogue, part ii. 3481.

Innocent's tract De Miseria was translated into English by G. Gas-
coigne as The Droomme of Doomesday, 1576, 410 ; and his treatise De
Contemptu Mundi, by H. Kerton, as The Mirror of Man's lyfe, 1576, 410.

H*

154 LAWYERS' MERRIMENTS

PROCESSUS LUCIFERI.

The Processus Ludferi is similar in character to the
Processus Sathan<e, but it is more elaborate, and very
much longer. The dramatis person* are different. God
the Father is appealed to as the supreme judge ; King
Solomon is appointed judge delegate. The pursuer is
Lucifer, the respondent is Christ, who appears by Moses
as his procurator.

It was written in 1382 by Jacobus de Ancharano, other-
wise Jacobus de Theramo, that is, Jacobus Palladinus,
successively bishop of Monopoli, archbishop of Taranto,
bishop of Florence and Spoleto (d. i-^iy). 1

The powers of darkness having resolved to make a
charge against the Lord Jesus nominate Lucifer as their
procurator, who appears before God, seated in his con-
sistory surrounded by the four-and-twenty elders and
patriarchs. Commission is granted to King Solomon, as
judge delegate, to try the case. David is appointed clerk
of court. Asail, as messenger, gives the citation. Jesus
appoints Moses as his procurator, with the usual powers,
including power to emit the oath of calumny, a power
which was also in the procuration in favour of Belial.

The first meeting of parties takes place on 3Oth March.
Moses took the preliminary objection that Belial could
not be a lawful procurator because he had been excom-
municated, by having been cast out of heaven. The
retort was that Moses was infamous by reason of his
having slain the Egyptian.

1 There is a long and interesting article on Palladinus and the work in
question, in Prosper Marchand, Dictionnalre Aistorigue, ii. p. 117 sqq.

PROCESSUS LUCIFERI 155

Parties having been brought to accord on these pre-
liminary matters, 1 Belial proffered his libel, and produced
three copies, one for the judge, one for the defender, and
one for himself.

The libel was in strict legal form. The charge was
that the community of hell, being in possession of men
and their souls, Jesus took violent possession and deprived
them thereof or, in Scottish phraseology, spulzied them
and made Satan, their prince, captive. The procurator
therefore asked for restitution.

Belial moved that the case be tried summarily, not
plenarily. In this Moses concurred. 2

The first of April was assigned as the term for the
answer to the libel (terminus ad libello respondenduni).
Moses duly made his reply. As preliminary he took
certain personal objections ; and then answered on the
merits. He first excepted (excipiendo) that Jesus was
justified in taking possession, and emitted the oath of
calumny that this objection was according to law. Belial
replied (replicandd) that no exception is admitted in a case
of spulzie ; but, assuming that Moses was correct, he was
nevertheless himself entitled to have possession restored.
A thief was entitled to restitution.

Solomon called for the books of the law ; and then
pronounced an interlocutor sustaining the exception of
Moses. Belial declared that he was aggrieved. King
Solomon said he was not, but, if he thought he was, he
could appeal.

1 This was an important and necessary step in old procedure.

2 In the ecclesiastical courts, suits were either plenary, that is those in
which the rules of procedure were exactly and scrupulously observed \ or
summary^ that is those in which such procedure was dispensed with.

156 LAWYERS' MERRIMENTS

The judge then granted a term ad ponendum, articulan-
dum^ and for further procedure.

The positions and articles propounded by Moses are
given at length (c. I4). 1 The witnesses he adduced were
Abraham, Isaac, Jacob, David, John the Baptist, Aristotle,
Virgil, and Hippocrates.

Belial declined to put in Answers, but, fearing that he
might be held as confessed, did so on being ordered by
the judge ; the witnesses then severally took their corporal
oaths on the holy gospels. Belial took various objections
to the witnesses, relationship, and so on. These having
been repelled, the witnesses were examined, and the sixth
of April was fixed as a diet for the publication of their
testimony. Belial then returned to his own place to seek
counsel and advice.

It is needless to pursue the various steps. Litiscon-
testation was made, Belial put in his positions and articles.
Moses and his witnesses were cited ; and he ultimately
made a long speech founded upon Scripture, and prayed
for sentence. Both parties were cited to hear definitive
sentence given (c. 35), which was adverse to Satan, who
thereupon (c. 37) appealed to the court above. The
cause was then remitted to Joseph, who issued an inhibi-
tion against Solomon. Sundry procedure followed which
was unfavourable to Belial, who returned to hell, and, on
the advice of Beelzebub, applied to David to intervene
and endeavour to have the cause remitted to arbiters.
This was ultimately agreed to, and Octavian the Roman
Emperor, the prophet Jeremiah, Aristotle, and Isaiah were

1 The Positions were intended to be answered by the respondent ; the
Articles to be proved. What was posited could not be controverted, qui
ponit fatetur.

PROCESSUS LUCIFERI 157

appointed arbiters, 1 and, in the event of their disagreeing,
Joseph, the vicar of Egypt, was appointed oversman
or umpire. They delivered portentously long opinions
(cc. 47-64), and decided against Belial (c. 65).

This treatise was still more popular than the Processus
Sathan<e. Not only were there numerous editions of the
Latin original, but it was translated into French by Pierre
Ferget, doctor in theology of the order of the Augus-
tinians, 2 into German, 3 and Low Saxon, 4 and also into
Dutch, 5 and Flemish, 6 and, it is said, many other
languages. 7

: The old English Moderators. Cf. Webster, The White Demi,
Act iv. Sc. 2.

2 Paris, 1481, fol. Lyons, 1482, fol. with wood engravings; De
Bure, Bibliographic Instructive, Belles-Lettres, ii. No. 3977. There
was a second edition, Lyons, 1484, fol., and it was several times
reprinted. Greswell, Annals of Parisian Typography, p. 80, London,
1818, 8vo.

I have a French translation in MS. Proces Historique Belial contre
Jesus de Nazareth, Anno M.DC.IC., G. de Gland, 410.

3 Bamberg, Albrecht Pfister, fol. n.d. [? 1462] ; Augsburg, Glinther
Zainer, 1472, fol. ; see Murr, Journal zur Kunstgeschichte und zur allge-
melnen Litteratur, ii. p. 380 sqq., Nlirnberg, 1776, 8vo. There are,
however, several editions and other translations not mentioned by Murr.
A copy of the 1487 edition was in the Queensberry sale in 1813. A
note in the catalogue says, " The translation is hardly known to exist
even in Germany, and this copy came from Iceland," Catalogue,
No. 4461, Edinburgh, 1813. I have a copy of the Strassburg edition
of 1508; Belial zu Teutsch (Johannes Priisz), 100 leaves, 410, with 35
woodcuts.

4 Magdborch, dorch Mauricium Brandiss, 1492, fol. with woodcuts.

5 Haerlem, 1484, fol. with woodcuts.

6 Antwerp, 1512, and again 1516, fol. with woodcuts.

7 Goldast adds, Italian, Spanish, English, Danish, Hungarian and

158 LAWYERS' MERRIMENTS

It suited the times

Ou 1'on jouait les Saints et Dieu par piete.

HISTORISCHER PROCESSUS JURIS.

This is an enlarged version of the Processus Luciferi?
partly in German, partly in Latin, by Jacob Ayerer,
J.U.D., an advocate of Nuremberg, and is dedicated to
the Count Palatine, Philipp Ludwig. The author was son
of the poet of the same name, who practised as a pro-
curator and notary in Nuremberg. 2 As we are informed
by the lengthy but informing title-page in which old
authors indulged, clerks of court, procurators, notaries,
and other writers may learn from the book, usefully, con-
veniently, and serviceably, the whole course of an ordinary
process, from its commencement with the citation, until
final judgment inclusive; the form of compromise, and
of all writings used in courts, oaths, commissions, the
examination of witnesses, and all other acts and steps
belonging to a process, arranged under suitable heads,
followed by observations and reminders. The work

Polish. It has certainly not been translated into English, and I can
find no trace of the other translations here mentioned. On this subject
see the article on Palladinus in Prosper Marchand, Dictionnaire historique,
ii. at p. 122.

1 Frankfort, 1597, fol. pp. 739+12 + 32 of Index. The Index was
probably printed after the text had been thrown off, as it bears date
1598. I have a copy of this edition.

2 On the title-page of his posthumous Opus theatricum, Nuremberg,
1618, fol., he is styled Imperial Notary Public and Procurator in the
Courts of Nuremberg. The editions of 1678, 1680, and 1691 were
issued at Frankfort in 410. The editions of 1716, 1717, 1718, and
1737 were published at Nuremberg and Frankfort, also in 410.

HISTORISCHER PROCESSUS JURIS 159

enjoyed an extraordinary popularity, no less than fourteen
editions in folio having been published at Frankfort
between 1600 and 1625, and six in quarto between 1626
and 1657. It was then edited by the staid and pious
Ahasuerus Fritsch, 1 to the disgust of his friends, who
thought it was only fit to be burned by the hangman.
His edition appeared in -1678, and was reprinted six times,
the last edition being in 1737.

The book is full of curious information, but it is spun
out to an inordinate length, and becomes tedious reading.
The various official documents, the pleadings, and the
examination of witnesses are given in full, and are mere
pegs on which to hang observations on pleading and pro-
cedure which would be more suitably embodied in a work
upon these subjects. 2

INFANTIUM IN LIMBO QUERELA.

A tract under this title was published at Paris in I53I- 3
The case against the justice of placing unbaptised infants
in the Limbo of Infants, vulgarly in purgatory, the reply
in its justification, and the answer to the reply were
thrown into the form of legal pleadings, and supported
by reference to texts in the Canon law. The author was

x See Stolle, Anleitung zur Historie der juris tischen Gelahrheit, p. 487.
Ayerer concludes his work with a German poem in its defence.

2 Some remarks on the work will be found in Zedler, Universal Lexicon,
s.v. " Process."

8 Exactissima Infantium in limbo clausorum Querela aduersus diuinum
Judicium apud tequum Judicem proposita. Apologia divini Judicii contra
Querelam Infantium. Infantium ad Apokgiam diuini judicis Responsio, et
equi Judicis super hoc re Sententia, Paris, 1531, 410, 38 leaves.

160 LAWYERS' MERRIMENTS

Antoine Cornelius, of Billi, on the borders of Auvergne, a
licentiate in law, and was dedicated to Antoine du Bourg,
Civil Judge at Paris. It has been suggested that Cornelius
was a pseudonym, and not the true name of the author, 1
but there seems no ground for the doubt. The book has
been denounced by some as impious ; and the ruin of
Chretien Wechel, the celebrated Paris printer, has been
looked upon as a judgment upon him for printing so
scandalous a production. 2 On the other hand, Ebert says,
" It is nothing more than an entirely innocent piece of legal
pedantry, quite resembling the similar works of Bartolus
and Ayerer." 3 Bayle has a long note upon the subject,
and shows that Wechel's misfortunes had nothing to do
with his printing of this work. 4

The Querela never gained popularity ; it has not been
reprinted, and is now very difficult to find. 5

ARRETS D'AMOUR DE MARTIAL D'AUVERGNE.

In 1611 Melchior Goldast, of Haimensfeld (1576-1635),
a Swiss protestant and an eminent publicist, published a

1 Garasse, Somme theologique, p. 19.

~Ib. p. 298. The Council of Trent bids bishops in popular dis-
courses refrain "from those more difficult and subtle questions regarding
the doctrine of purgatory, which do not tend to edification." From
this point of view it is obvious that such a publication could not have
been commended. Stolle, Einleitung zur Historic derjuristischen Gelahrheit,
p. 486, condemns the book on the ground of irreverence.

3 Bibliographical Dictionary, s.v. "Cornelius."

4 Dictionnaire, s.vv. " Cornelius and Wechel " ; Greswell, Early Parisian
Greek Press, i. p. 112, London, 1833, 8vo.

5 There was a copy in the Hibbert Library, Catalogue No. 2258,
London, 1829, 8vo.

THE APPEAL
From Damhoudere, Practiyue Iitdiciaire es Cavses criminelles

ARRETS D'AMOUR 161

small volume containing the Processus Sathan< and the
Processus Luciferi, along with the Aresta Amorum of Martial
d'Auvergne. 1 The publication, in the opinion of Gottlieb
Stolle (1673-1744), professor of morals and politics in the
University of Jena, and the historian of juristical learning,
brought an indelible stain upon the honour of Goldast; 2
and it was quite as badly thought of in other quarters, for
it was placed upon the Spanish Index.

Martial de Paris, known as d'Auvergne (d. 1 508), was a
procurator in the Parliament of Paris, and notary at the
Chatelet. He was in practice in 1460; and was noted for
his uprightness and learning. In the opinion of the Abbe
Goujet, he was the best writer of the French language
of his time. Les cinquante et ung arrestz <T amours* was
printed at Paris, towards the end of the fifteenth or
beginning of the sixteenth century, and passed through

1 Processus luris loco-serius, tarn lectv festivvs et ivcvndvs, quam ad usum
forl y praxeos moralis cognltionem vtilis ac necessarius, Hanoviae, 1611,

8vo, pp. 6 + 964 + 43. His most important work was Monarehia S. Rotnae
Imperil, Hanov. et Francof., 1611-1613, ^- 3 vo ^ s -> a collection of docu-
ments on the civil and ecclesiastical power from the Protestant point of
view.

2 Anleitung zur Historic der juristischen Gelahrheit t p. 487. Goldast got
himself into a scrape by printing an Oration in name of Justus Lipsius,
and passing it off as the work of that scholar, with the object of annoy-
ing him. The story rests on the authority of Scioppius, which is not
unimpeachable. See Bayle, Dictionnaire, s.v. " Goldast."

3 Two more were afterwards added in the editions of 1566 and later.
These were not by Martial d'Auvergne, but by Gilles d'Aurigny, known
as le Pamphile.

Arret is the judgment of a sovereign court against which there is no
appeal, Rondonneau, Vocabulaire dassique des Etudians en droit, s.v., Paris,
1821, 8vo. Dupin adopts the definition and explanation, Manuel des
Etudians en droit, p. 479, Paris, 1851, 8vo.

L

1 62 LAWYERS' MERRIMENTS

several editions. 1 It was then edited with an exhaustive
commentary in Latin by Benoit le Court Benedictus
Curtius and published in 1533 and frequently afterwards.
These fictitious judgments, although concerned wholly
with the tender passion, were intended to explain questions
of law and procedure in an agreeable fashion.

LE III. ARREST.

Vn amoureux demande rescission de certain contract,
faict avec sa dame de plusieurs pactz & conuentions, ou
il auoit est deceu oultre moyti de iuste pris.

LE VII. ARREST.

Sentence sur vne fondation faicte de rente non
amortie, par vn quidam amoureux d'vne religieuse.

LE XII. ARREST.

Vn amoureux, en cas de saisine & nouuellete, se
complaint de sa dame, disant que non obstant les
promesses faictes entres eulx de vivre & mourir en-
semble, & de non iamais se departir de leurs amours,
ce neantmoins, elle ne tient compte de luy, mais faict
meilleur chere a plusieurs autres qu' a luy.

Questions such as these may lead to the discussion of
all sorts of points of law and procedure, and afford ample
room for irrelevancy. The last-mentioned case, says the
author, was tried before the ladies of the Council of Love
in the Chamber of Pleasure: when the commentator
promptly interjects that women cannot be judges as
established by law 2 of the Title of the Digest " De

1 Greswell gives the date of the first edition as after 1500, Annals
of Parisian Typography y p. 315.

ARRETS D'AMOUR 163

diversis regulis Juris," not because they want judgment,
but because they cannot perform civil duties. Women,
however, it is added, filled the office of judges in the
Old Testament; and they may now give judgment by
custom or by delegation from the Prince. 1 The state-
ment that the lovers agreed to live and die together leads
to a disquisition on the law of partnership. A partner-
ship cannot be entered into in perpetuity ; but there may
be a partnership omnium bonorum.

The Arrets d' Amour found numerous readers, and passed
through numerous editions, the latest being that by Lenglet
du Fresnoy, Amsterdam, I73i, 2 with a glossary and notes.
Voyer d'Argenson, speaking of this work, regrets that
no one has published a more recent edition, which, by
rejuvenating the eld language, would, he considers, be
useful to young magistrates and advocates, inasmuch as it
would show them in a few words the differences between
the judicial forms of the present day and those of the
times of Martial d'Auvergne. 3

1 This subject is more fully discussed by Everard Bronchorst (1544-
1627), professor at Leyden, supra y p. 139. His work passed through, at
least, a dozen editions.

There is a Portuguese work upon the subject by Ruy Gon9alves,
licentiate in civil law and professor in the University of Coimbra, Dos
prlvilegios & prerogatives q ho genero feminino fe for dereito comu fcf or denotes
do Reyno mais que ho genero masculine, s.l., 1557, 4to ; Lisboa, 1785, 8vo.

2 Amsterdam, 1731, I2mo, 2 vols. It also contains a Latin translation.

3 Melanges tires d'une grande Bibliothlque, Tom. D. p. 336, Paris,
1779-84, 8vo, 70 parts in 69 vols. 8vo (by the Marquis de Paulmy
and Contant d'Orville. The Grande Bibliothequt was the property of
the Marquis de Paulmy, the purchaser of the second part of the Valliere
Library. In 1785 the Marquis sold his library to the Comte d'Artois,
reserving, however, the use of the books for his life. He died in 1787,

164 LAWYERS' MERRIMENTS

Times are changed. The humour of the Arrets cT Amour,
of the Processus Sathan<e, and of Belial is out of date, and
the books are forgotten. What convulsed one generation
with laughter does not provoke a smile in the next.
Bartolomeo Bolla, of Bergamo, described himself as vtr ad
risum natus, and boasted on his title-page that his poems
would make his readers split their sides, but no modern
will incur such a risk by their perusal. 1 It may seem strange
that works once so popular and considered so rich in
humour should now be voted flat and vapid; but so it is
with persons and with countries. What may appear
facetious to one man may seem stupid to another, and
the humour of one country is often not appreciated in
another. This is to be borne in mind in judging of the
past. Our point of view is in many respects different;
our interests are different. We can see no humour in
things to which we are indifferent. Popular interest in
courts of law and in law proceedings is probably greater
now than at any time in the past, and the ordinary spec-

and when, two years later, the Count emigrated, the library was taken
by the State, and formed the foundation of the library of the Arsenal.

There is a long notice of Martial d'Auvergne in Bataillard, Uhistoire
des procurateurs et des avouls, p. 315, Paris, 1868, 8vo. As to Arrets
d' Amour, see [E. P. J. Spangenberg] Die Minneh'ofe des Mittelalters,
p. 214 sqq., Leipzig, 1821, 8vo.

1 Nova novorum novissima, she Poemata stylo macaronico conscripta ; Quag
faciunt crepare Lectores ob nimium risum, & saltare capras jf semias, res
nunquam antea visa, 1670, izmo. In his Address to his readers, he
again tells them that his poems are so ridiculous and written in so
fantastic a style that they will kill themselves with too much laughing.
One of the poems is dedicated to King James VI. of Scotland, I. of
England. As to Bolla, see Flogel, Geschichte des Burlesken, p. 129.

ARRETS D'AMOUR 165

tator, to say nothing of the professional lawyer, follows
the evolution of a civil or criminal trial, the examination
of the witnesses, and even the formal proceedings with
keen relish and enjoyment. All that goes on is within
his own experience, and is part of his daily life. Take
away this personal element and the interest to a great
extent evaporates. The present-day reader cannot take
an interest in procedure which he cannot follow, or in
points which he cannot understand, the more especially
when these are associated with entirely impersonal charac-
ters. We can only judge fairly of the past if we place
ourselves in the surroundings of the period or look at
things as the men and women of the day looked at them.
We may say that their standpoint was wrong, but they
occupied it, and from it they viewed the world, and judged
as they viewed it.

How much we are indebted to our own experience and
to our daily life in finding and appreciating humour is
shown when we turn to such a book as Professor von
Ihering's Law in Daily Life. 1

LAW IN DAILY LIFE.

This is a collection of legal questions connected with
the ordinary events of everyday life, for the purpose of

1 Die Jurisprudenz des tdglichen Lebens originally appeared as an Appendix
to the second edition of the author's Civilrechtsfalle ohne Entscheidungen,
Leipzig, 1870, 8vo. Twelve editions of the separate work have already
appeared, and it has been translated into Italian, Hungarian, Modern
Greek, and Portuguese, as well as into English. Law in Daily Life . . .
from the German . . . with notes and additions, by Henry Goudy, Oxford,
1904, 8vo.

1 66 LAWYERS' MERRIMENTS

enabling students of law to grasp the true significance of
the legal relations which arise in the ordinary affairs of life
and theirs, and the legal rules by which they are governed.
The questions are treated very humorously, and afford as
much amusement to the lay reader as they do to the
student of law.

Take a few examples

" (a) How should tips to servants in an hotel be
regarded ? As charity, or donation, or fulfilment of
an obligatio naturalis or civilis ? () Is the landlord
bound to hand over to the servants, as having been
charged and received on their behalf (negotiorum gestio\
the sums which appear in the bill for service ? (r) Is a
contract between him and his servants valid which binds
them to hand over all tips to him ? Would it apply to
a tip given under the express condition that the recipient
should keep it for himself? (d} If a guest, in ignorance
of the fact that gratuities to servants have been already
included in the bill, has given a tip over and above, can
he demand it back on the ground of this mistake ? Is
it a mere error in motive, and how does such an error
affect a donation ? Or is it an error with respect to a
supposed debt? (e) If, as is customary in many hotels,
the gratuities are put into a common box and periodically
divided among the servants, how do the participants
stand towards each other in a legal view ? (/) From
what point of view is a case of failure to put into the
box to be regarded ?"

" In an hotel in Berlin the following case recently
occurred : A guest made an unsuccessful attempt to
commit suicide, and the landlord, finding him lying
unconscious, sent for a doctor. The guest afterwards

LAW IN DAILY LIFE 167

refused to pay the doctor his fee, on the ground that
he had come against his wish, and told him to apply
to the landlord, who had called him in. The latter
repudiated liability on the ground that he had merely
caused the doctor to be summoned, i.e. done no more
than notify him of what had happened, in accordance
with the dictates of humanity. Assuming the landlord
to be condemned to pay the fee, can he not have recourse
against the guest ? Perhaps by the act. neg.gest. ? Could
the guest not answer that the negotiorum gestio was against
his will ? Or has he perhaps assented to it, in that he
acquiesced in the doctor's treatment after he became
conscious?"

" At the ball a lady dancing has her dress torn by a
gentleman who tramples on it while careering reck-
lessly; can she claim damages? The gentleman sets
up the defence, whoever comes to a ball must have such
mischances in view, the doctrine of culpa is not appli-
cable, otherwise all pleasure in dancing would be at an
end. Rules of law have no place at balls, otherwise one
might expect to have an act. iniuriarum afterwards
brought against him when he has come into collision
with another pair of dancers, or upset them in dancing.
There is a tacit agreement among all persons at a ball
that whatever takes place there is not to be regarded
from a legal point of view ; to every one who takes
part in it, and suffers inconveniences of the kind stated,
the maxim of i. 72 pro socio (D. 17. 2) qui parum dili-
gentem socium acquirit, de se queri debet applies. Every
one must be prepared to meet with bad dancers."

" A good mother thinks of her children, even when
at another person's table, by putting some confectionery

1 68 LAWYERS' MERRIMENTS

for them into her pocket ; had a hired servant done
this it would have been a furtum ; is it the same as
regards the mother?"

" What is the nature of the legal transaction when a
cook-confectioner undertakes to provide the whole
dinner in the house of the host? Do the remnants
belong to him or to the host ? Would it make a
difference whether the price was fixed at so much a
head for each person or at a round sum ? "

THE PSALTER FOR LITIGANTS.

The path of the litigant is far from easy. He has many
difficulties to overcome, many disappointments to bear ;
patience and self-restraint are essential. In 1597 Jacques
de Camp-Ront, cure of Avranches published the Psalterium
juste Litigantium? from which he says consolation may be
sought by those whose business is often a grievous struggle
in this world with adversaries visible and invisible. It
was dedicated to the Parliament of Rouen, and had the
approval of sundry doctors in theology.

Opposite the dedication there is an engraving of a
court, with seven judges on the bench, habited in the
style of the period, and a figure, which seems to be that
of the Cure Camp-Ront, presenting his Psalter to the
judges.

The volume indicates the psalms and canticles which
one ought to recite when he would prevail against his
adversary. To arrange this cento the author has divided
the psalter into as many parts as there are days in the
week. There are four psalms and a canticle for each day.

1 Paris (Mettayer), 1597, I2mo.

THE PSALTER FOR LITIGANTS 169

The first psalm contains a prayer in the form of a
petition to God by the just suitor, who fears to see his
enemies eager for the fight and banded against him. In
the second psalm the szme just litigant complains bitterly
of being thus exposed to the shafts of his enemies. In
the third he raises his voice to God and prays for mercy.
In the fourth God comes to his support. The fifth is a
canticle of thanksgiving, in which the suitor thanks God
for having heard his complaint and having confounded his
enemies.

Take, as an example, a youth under age whose avari-
cious relations desire to spoil him of his heritage. 1 In
reading it, it must be kept in view that the composition is
a cento, and that only the first verse of the composite
psalm is given.

Timidly he addresses God

I am small and despised ; for my kinsmen sat and spake against
me. (From Ps. cxix. 141 ; Ixxiii. 8 ; cxviii. 23 ; Ixviii. I3-) 2
(This is from the author's first Psalm.)

How long shall mine enemy be exalted over me ? (Ps. xiii. 2.)
(This is from the author's second Psalm.)

To Thee the poor is left ; Thou wilt be the helper of the
fatherless. I am poor and needy ; Lord help me. (Ps. x. 14,
according to the Hebrew notation ; cxix. 6.)
(This forms part of the author's third Psalm.)

1 This used to be a serious ground of apprehension. Thus in the first
session of the General Assembly of 1560 it was resolved, "to desire the
Estates of Parliament to take order with the confirmatioun of testaments,
that pupils and orphans be not defrauded, and that lawes be made there-
upon in their favours," Booke of the Universal Kirk, i. p. 6 ; Calder-
wood, Historic, ii. p. 47 ; see Maxwell, Old Dundee, pp. 271, 273.

2 The references are to the Vulgate which the author quotes, not to
the English Authorised Version.

i yo LAWYERS' MERRIMENTS

But Thou, Lord, hast heard my prayer. Thou hast given the
heritage to them that fear Thy name. (Ps. Ix. 6.)
(This forms part of the author's fourth Psalm.)

After having thus gained his case, he intones the
canticle

Praise ye the Lord, ye young men. (Ps. cxii. i.)
Glory be to the Father and to the Son, etc.
(From the author's fifth Psalm.)

The French have a proverb, " Bon avocat, mauvais
voisin," which was exemplified in the case of Jacques de
Camp-Ront, for, notwithstanding the preparation of this
version of the psalter for the benefit of those who litigate
justly, he seems to have been a troublesome neighbour.
One Julien Rogeron, surnamed Despreaux, charged him
with having assisted in the pillage of his house during the
troubles of the League, and claimed damages. He sub-
mitted his case to the court in the name of King David, a
hit no doubt at the cure. 1

LAW BOOKS AND THE INDEX EXPURGATORIUS.

The Processus luris loco-serius of Melchior Goldast, as
has been mentioned, 2 was placed upon the Spanish Index,
and a notice of other law books which have been similarly
treated would form a curious chapter in the history of
jurisprudence, 3 although perhaps not quite appropriate in
a discourse on Lawyers' Merriments.

It is strange, however, to find that the Commentary

1 1 have not seen this book, and only know it from the account given
by M. Dupin aine in his Bibliotheque choisie des tores de Droif, p. 309,
Bruxelles, 1833, 8vo. 2 Supra, p. 161.

3 Hommel treats it briefly, Litter atur a Juris, p. 170.

THE INDEX EXPURGATORIUS 171

on the Institutes of Justinian, of Arnold Vinnen or Vinnius
(1588-1657), the erudite professor of Leyden, 1 fell under
the critical observation of the Spanish Inquisition, and
after being duly bowdlerised were placed upon their
Index in 1 707.2 The explanation no doubt is that the
book was, in its day, the best of its kind, but, being the
work of a Protestant, required to be pruned before being
placed in the hands of Roman Catholic students. In 1558
Philip II. denounced the penalty of death against even the
possessor of a book upon the Index, which in Spain was
in charge of the Inquisition ; and the scrutiny of books
was very strict down to the end of the eighteenth century.
Vinnius figures in the Respublica Jurisconsultorum of de
Jennaro 3 not altogether to his advantage, but he was one
of the most distinguished lawyers of the day and the
precursor of the German School of jurists of the nine-
teenth century. " In the first half of the seventeenth
century lived Vinnius, the author of the large and
celebrated Commentary on the Institutes of Justinian and
one of the brightest ornaments of Leyden." 4

1 The Commentary of Vinnius was first published at Amsterdam in
1642; a second edition appeared in 1655 printed by Elzevir, which
was followed by many others. It was edited by Schulting and after-
wards by Heineccius. Both editions were published at Leyden, the
former in 1709 and the latter in 1726, and again at Lyons 1767.
There was a later Spanish edition, Valentia, 1778, 410, 2 vols.

2 An edition corrected, according to the Index, was published by
Johann Friedrich Rtldiger at Nuremberg 1734, 410, 2 vols. On the
title-page Vinnius is described as an " auctor damnatus."

3 Supra, p. 45.

4 John Reddie, Historical notices of the Roman law, p. 68, Edinburgh,
1826, 8vo ; see Infra, p. 207.

David Irving was of opinion that " the Institutes ought at first to be

172 LAWYERS' MERRIMENTS

Amongst the works placed upon the Roman Index
were the works of King James VI. and those of various
lawyers. The most notable of these was Charles Dumoulin
or Molinaeus (1500-66), the contemporary of Cujas, k
grand Jacques^ and a jurist of almost equal eminence. He
was specially skilled in the Droit Coutumier of his native
France, but wrote on nearly every branch of jurisprudence.
He took an active part in the political and religious disputes
of the day, and especially opposed the publication in France
of the decrees of the Council of Trent. The result was
that he had to take refuge in Germany, and became pro-
fessor of Law at Tubingen. The corrections on his works
extend to seventy pages of the Index, and the title impius
is prefixed to his name. His name or the initials C. M.
were everywhere to be deleted from title-page, colophon,
and table of contents ; as were also the names of ail
heretics cited or referred to by him. The Commentaries
of Matthaeus Wesenbecke or Wesenbecius (1531-86) l
on the Institutes of Justinian likewise received the atten-
tion of the Congregation of the Index. Amongst other
deletions which they ordered was that of the name of Du
Moulin from the first epistle prefixed to the work and a
passage of Scripture quoted in the second epistle, because
it was taken from the translation of some heretic. Wesen-

read in the edition of Vinnius, whose notes are short, and greatly facili-
tate the understanding of the text," Observations on the study of the Civil
law, p. 24, Edinburgh, 1820, 8vo.

1 His father, Peter Wesenbecke, had thirteen children, whom he
named after the twelve apostles, as far as these would go. Matthew
was the second youngest, and being a favourite, his father used playfully
to call him Joseph. Melchior Adam, Vitae Germanorum Jureconsultorum,
p. 123, Francof. ad Moenum, 1706, fol. Adam gives a long and inter-
esting account of our author.

THE INDEX EXPURGATORIUS 173

becius was born at Antwerp, 1 but having embraced the
reformed doctrines retired to Germany, first to Jena, and
in 1569 to Wittenberg, where he lived during the rest of
his life. 2 Francois Hottoman, born in Paris in 1524,
professor at Bourges, very learned and very poor, likewise
adopted the Protestant doctrines, and having escaped the
massacre of St. Bartholomew took refuge in Switzerland. 3
He was appointed professor of Roman law at Geneva, where
he had Andrew Melville amongst his auditors, 4 but subse-
quently removed to Basel, where he died in 1590. His
Commentaries on the Institutes and his work De Verbis Juris
were expurgated by the authorities, and he himself pilloried
as auctor damnatus. His faults were not so much doctrinal
as disrespectful, through the references he made to the
claims of the Roman Curia. One sentence, for instance,
is struck out because he seems to place the dignity of the
Emperor above that of the Pope. Another regarding the
Emperor Justinian is objected to because he is referred to
as a good Christian, which might refer to the time of his
death, while history tells that he died in the Eutychian
heresy. The Index Expurgatorius contains the names of
some authors now forgotten, showing that their works were

1 Melchior Adam terms Antwerp " celeberrima totius Europze urbs,
atque emporium opulentissimum."

2 Consilia et Response, Wittenberg, 1611-24, folio, 8 vols.

3 Bayle writes fully regarding him, Dictionnaire, s.v. " Hotman."

An epigram on the remarkable fact that the principal potentates of
Europe at the time were women is attributed to him, Ib. Footnote
in torn. viii. p. 279, Paris, 1820, 8vo.

4 M'Crie, Life of Andrew Melville, p. 22, Edinburgh, 1856, 8vo.

His pamphlet on the murder of Admiral Coligny, De Furoribus
Gallicis . . . vera et simplex Narratio, bears the false imprint, Edimburgi,
1573, 410; Michel, Les Ecossais en France, ii. p. 47.

174 LAWYERS' MERRIMENTS

esteemed of more importance by their contemporaries than
by us. Amongst these was Leopold Dick or Dickius a
name suggestive of a Scotch descent a lawyer of Thorn,
who wrote (Economia juris de delegati potestate, published at
Basel in 1567, but considered by the Congregation not to
be sound in its theological doctrine. 1

THE WAXEN NOSE OF THE LAW.

" He that will go to the law must be sure of four
things First, a right and just cause ; then a righteous
advocate to plead ; next, favour coram judice ; and, above
all, a good purse to procure it." Such was the view of
those who lived in the sixteenth century. 2 The corruption
of judges was very prevalent in Germany in the seventeenth
and eighteenth centuries, and was dealt with by the prolific
pen of Ahasuerus Fritsch in his Der beschamte Geschenk-
Fresser, 3 and by Johann Ludwig Wiederholt (1679-80), an
eminent jurist who devoted several works to the subject, 4
and spent much pains in endeavouring to effect a reform.

1 His tract, De optima studiorum ratione , . . Ejusdem Christianas et chilis
vitae Compendium, originally published in 1564, was reprinted in the
Institutions Literatae of Thorn, vol. iii. pp. 756-822, Torunii Borussorum,
1588, 4to. He gives some sensible advice on the study of law.

2 This aphorism is taken by Lean, Collectanea, iii. p. 395, from George
Gascoigne (1525-77). Later, the points became eight in number.

3 Jena, 1684, 8vo.

4 Repreesentatiojudicis munenbus ac donis corrupti. Das ist kurtze Abbild-
ung eines durch Gaben und Geschenke bestochenen Richters, Wetzlar, 1710,
4to ; Justinian us redivivus, oder ohnvorgreifliche Gedenken, tvie in dem H. R.
Reiche das Justiz-Wesen in einem und den anderen zu verbessen, Ib. 1711.
See also Augustin von Leyser, Dissertatio de tacita judicis corruptela,
Viteb., 1746, 410.

THE WAXEN NOSE OF THE LAW 175

The Germans have a proverb, Das Recht hat eine wach-
serne Nase? " The law hath a waxen Nose," that is, it is
open to any construction an imputation upon those who
administer it. 2 The judge, it suggests, is a Hofrath Nose-
of-Wax, to use Carlyle's phrase.

The same idea prevailed in England

The law shall stand

Like to a waxen nose or Lesbian rule,

A dial gnomon or weathercock

Turned with the breath of greatness every way. 3

The Ship of Fools y as translated by Alexander Barclay,
is to the same effect 4

There cursyd coyne makyth the wronge seme right.
The cause of hym that lyueth in pouertye
Hath no defence, tuycion, strength nor myght,
Suche is the olde custom of this faculte,
That colours oft cloke Justyce and equyte.
None can the mater fele nor vnderstonde
Without the aungell be weyghty in his honde.

" These bee they," says Thomas Nash, " that vse mens
writings like bruite beasts, to make them draw which way

1 Hillebrand, Deutsche Rechtssprlchworter, No. 13 A, p. 10; Graf u.
Dietherr, Deutsche Rechtssprichtvorter, p. 446, No. 421, and p. 452, second
edition, 1864; Simrock, Deutsche Sprichtu'drter-Sammlung^o.^21'], Frankf.,
1846. The proverb is as old as the fifteenth century, being found in
Sebastian Brant, Narrenschijf, c. 71.

Fichtner, supra, p. 49, wrote De cereo juris naso, Norib., 1724, 410.

2 " Les lois ont le nez de cire " is the French version.

3 Hiitriotnastix, 14, 1610 ; quoted in Lean, Collectanea, iii. p. 322;
see also Ib. iv. p. 1 29, quoting Dyer, English Folk-Lore.

4 i. p. 25, Edinburgh, 1874, 410 ; cf. supra, p. 18.

i?6 LAWYERS' MERRIMENTS

they list." 1 A modern humorist now an eminent judge-
repeats the old idea : Laws " are to be regarded as a sort
of corpus vile, to be tugged hither and thither, like the
body of Valerius, when

" . . . * Titus dragged him by the foot
And Aulus by the head.'" 2

And in common parlance we speak of " the glorious
uncertainty of the law."

Judges may fail, or may give contrary opinions ; but
the blame lies not with them or with the law which they
are called upon to administer or the documents they have
to interpret. It is impossible to make a silk purse out of
a sow's ear, and it is equally impossible to construe badly
expressed statutes, ill-drawn deeds, or ambiguous corre-
spondence.

In old times, however, the scales of justice were often
weighted, and judges were induced to act partially.

The "Peat" of a Scotch judge was a curious inter-
mediary for influencing his judicial conduct; 3 and the

x " Lenten Stuff," Works, ed. M'Kerrow, iii. p. 215, London, 1905,
8vo. In the same passage, referring to the tale of the Poor Man and the
Advocate, who had taken away his cow, he says: "So hee that shal
haue his lines bandied by our vsuall plodders in Fitzherbart, lette him
not care whether they bee right or wrong: for they will writhe and
turne them as they list, and make the author beleeue he meant that
which he neuer did meane."

2 Darling, Scintilla Juris, p. 12.

3 On this subject and the corrupt administration of the law, see
Maidment in The Court of Session Garland, pp. 1-27 ; A Representation to
the High Court of Parliament, of some of the most palpable grievances in the
Colledge of Justice, both as to its Constitution and Administration, and several
members thereof. Reprinted by Maidment, Edinburgh, 1829, 410;
[John Greenshields] Reflections on the Administration of Justice in Scotland,
pp. 7-10, Edinburgh, 1806, 8vo.

THE WAXEN NOSE OF THE LAW
From Nebula Nebitlonutn, 1634

V

THE WAXEN NOSE OF THE LAW 177

Pittilloch Tracts cast a lurid light upon the venality of
judges in the seventeenth century. 1 It was because of
this that the term " solicitor " has always been a word of evil
import in Scotland. The Act of Sederunt of I2th June,
1632, prohibited every judge from admitting "any
informer or solicitor within his house, or receiving any
information, after seven hours at night or in the
morning." 2

We have a curious account of this Scotch practice by
an English writer

" I remember, when I was at Edinburgh, attending
the Courts on a Cause I had depending, an Order was
stole upon me, which both my Advocates and Writers
asserted, could not have been obtained but by Purchase.
This the learned Advocate against me called by the
Title of Houghing. But, however they may appropriate
the Expression, I would not have the Elaborate of
that united Region to entertain the Vanity of imagining
that the Practise is a Peculiar of that fine Country.
No, my lord, their united Brethren can boast, if it be
a Thing to boast of, of Wretches every jot as well
qualified for Acts of Treachery in Practise (legally
speaking), tho' perhaps not altogether so considerable
in Number. Those Fawkess in the Legerdemain of
the Law, abound where-ever the Law abounds, and
till regulated by some salutary Act of Parliament (much
wished for, and much wanted) will practise the Trade,

1 Tracts, legal and historical, by Robert Pittilloch, advocate ; reprinted
Edinburgh, 1827, 410.

2 See also A. S., i3th July, 1596, against "inopportune sollisiteris."
The Act 1579, c. 93, mentions that "justice is coft and sold."

M

*! r ' t ! ', '*

" *

1 78 LAWYERS' MERRIMENTS

tho' far more meriting the Halter, than any of the
Houghers on the High-way. Sadly true it is, that I
have known one of the Justiciary there make a jest of
such artifices ; but on this Side the Tweed it is not
quite so bad. And yet I must observe, in Favour of
those ingenious Gentry, that the Laws they make use
of is the Justinian Code, which will not admit of a
Tithe of the useful Circumventions, dextrous Frauds,
and salutary Subterfuges, that are to be met with so
profusely in the Practise of our Common and Statute
Law. Which are most dextrous in their Ambidexterity,
I will not take upon me to determine ; but this I will
venture to affirm, that the honest Men, in both the
one and other Climate, have Reason enough to resent
their several foul Proficiencies in Mai-practises ; how
different soever their Numbers may be upon a Poll." 1

" Blame the lawyers " is an accepted maxim of the lay
mind, and is responsible for a good deal of the unmerited
abuse heaped upon the profession. There is another
side, " Blame the clients," which is not so often heard,
but here is what an old writer has to say upon the
subject

" And for Delayes, though the Law and Lawyer
chiefly be blamed, yet the main cause of Delayes arise
from the stomackfulness and perversness of Clyents,
who are of that contentious disposition, that they will
spend all that ever they are worth, so they may have

1 The Law and Lawyers laid open in twelve Visions, to which is added,
Plain Truth, in three Dialogues between Truman, Skinall, Dryboots, three
Attorneys, and Season a Bencher, p. xiii, London, 1737, 8vo ; see also
The Just Lawyer's Complaint against auricular Informing of Judges, Ib.
1631, 410.

THE WAXEN NOSE OF THE LAW 179

their wils, and through their own refractoriness and
perverse humours will reverse Judgment after Judg-
ment, and Decree after Decree, standing by their good
wils to nothing which the Law awards ; And indeed
there be too many of these malevolous spirits, who
cannot be content to undo themselves, but will strive
also to ruine others, and not onely so, but strive to
defame the learned and honest Council, because the
Cause went against them, when as it is the uprightness
of the Law, which distinguisheth right from wrong." l

After defining law this writer adds

" Thus you see how joyntly and severally our most
famous Ancestors have defined Law unanimously
agreeing ; That it is a fortress for the weak to retire
unto ; a sanctuary for the oppressed to fly unto ; re-
straining the boldness of the insolent ; tying (as it
were with manacles) the hands of the potent, and like
Orpheus Harp, charming the fierceness of the Lyon or
Tyger, so as the poor Lamb may lie in safety by them." 2

MOUSE TRAPS.

Scottish procedure, with its condescendence and answers,
duplies, triplies, and quadruplies, notes, memorials, infor-
mations, petitions, and states of the process, was clumsy

1 The Exact Law-giver ; faithfully communicating to the skilled the firm
Basis and Axioms of their profession, To the ignorant their antient and undoubted
Birthrights and Inheritances. Being as a light unto all the Professors of the
Law, as well Counsellors as Attorneys, Clerks, Soliciters, Scriveners, &c., p. 7,
London, 1658, 8vo.

2 Ib. p. 14.

i8o LAWYERS' MERRIMENTS

and slow, but it did not provide pitfalls for the unwary
practitioner. Indeed, it possessed certain advantages, as
compared with the present system of short written state-
ments and oral pleading. 1 On the other hand, pleading
in England, until the era of recent reforms, required the
utmost care and exactness, and the most trivial slip was
sufficient to render the proceedings abortive. Even in
our own day a judge held that a reference to the year was
bad, because the letters A.D. were not prefixed, non constat
that A. c. might not be intended; and Sir John Hollams
describes the troubles and complexity of English Court
procedure when he commenced practice some seventy
years ago. 2

Old German pleadings were very complicated and
tedious, and were a constant source of danger to the
litigant and his advisers. 3 " Instead of sticking to what is
essential in judicial procedure, many erroneous and super-
fluous things have been intermingled, which leave an open
field for malignity, falsehood, and for all kinds of injustice
which we see multiplied in processes." 4 The dangers and

1 The Edinburgh Law Journal, 1 83 1-32, p. 47, in an article on " Judicial
Demeanour," quite as pertinent now as it was eighty years ago ; see
also Ib. p. 389.

2 Jottings of an old Solicitor, p. 28 sqq., London, 1906, 8vo. The
author of The Life and Adventures of a Limb of the Law, by Michael
Fagg, Esq., K.C. (pseudonym), London, 1836, 8vo, points out the
abuses that existed in consequence of the use of obsolete and wordy
forms, which provided traps for the unwary and catches for the
unscrupulous.

3 Cf. Lifts abusus, n.p. 1728, 8vo, an anonymous work.

4 Formey (1711-97), Secretary of the Berlin Academy, "View of
the King of Prussia's plan for the regulation of Judicial Proceedings,"
The Frederician Code, i. p. iv, Edinburgh, 1761, 8vo.

MOUSE TRAPS 181

delays attendant on legal procedure are set out in a curious
book by Johann Georg Dohler (1667-1749) under the
title Processualische Manse-Fallen, that is, Process or Pro-
cessualist Mouse-Traps, 1 or, as more fully explained on
the tide-page, " a brief representation of what generally
occurs in processes and what good people can have to
hope from them, for the information of all those who are
fond of carrying on processes or would desire to com-
mence them, or those who have to suffer from them ;
Also, for young practitioners, correctly sketched out and
drawn up from personal experience. Besides this, in the
Second Part, means are indicated whereby to escape these
Process Mouse-traps to a certain extent ; And a Preface
regarding the numerous kinds of laws and Processes
relating to them."

The author's account of the remains of ancient juris-
dictions and forms of procedure in Germany is instructive

1 Coburg, 1723, 8vo ; again, Ib. 1724, second edition, p. 240, with a
curious illustration of a Mouse-trap. I have a copy of this edition.
There was a third edition in 1745, and a fourth in 1750; and it was
reprinted at Frankfort in the same year.

D5hler also wrote Schein und Seyn des richterlichen Ambtes ; Coburg,
1723, 8vo, and a tract on the improvement of the administration of
justice in Saxony Zwey Tractate, Leipzig, 1712, 410.

Mause-Falle is still used in the sense of a legal pitfall ; cf. Ihering,
Scherz und Ernst, p. 384, Leipzig, 1909, 8vo. The example he selects is
curiously that of the Scots law of vitious intromission. Pitfall is used in
English in a similar sense. Cf. J. C. H. Flood, The Pitfalls of Testators,
London, 1884, 8vo.

Mause-Falle had appeared on a title-page considerably before Dohler's
time. Die politlsche Mause-falle von Veritano Germanico, n.p. 1683, I2mo.
In English we have The Mous-Trat, a collection of Epigrams by
Henry Parrot, London, 1606, 4to ; and The Mouse-Trap maker and the
Income Tax : A Tale, Ib. circa 1800, 8vo.

1 82 LAWYERS' MERRIMENTS

and still valuable. 1 The trap-falls or pitfalls which the
young practitioners were to avoid arose from the survival
of old forms, and were not so much traps as difficulties,
like the wrong turnings against which Tassara warns
young notaries. 2 The distinction between the various
forms of process, civil and criminal, ordinary and sum-
mary, is to be kept clearly in view. The pleadings are to
be carefully prepared. The entering upon litigation is a
grave matter ; and the author's object is to warn the
inexperienced, and to point out how harmful litigation is
to the old warriors (die alte Feder-Fechtern] 3 who indulge in
it. The draftsman, says Schneidewin, should have three
bags ; in one he will put papers, the productions and the
depositions of witnesses ; in the second the money and
costs ; and in the third patience, when the business drags
on. Another sage says that one should go to law with
slow steps, and should hasten away with the wings of the
eagle. An eminent lawyer remarked that if he had a debt
due to him of 1000 thalers, be would rather take 100 than
go to law. There is a Scots proverb to the same effect
" Law's costly ; tak' a pint and 'gree." Going to law,
says Herr Scriver, is godless and wretched. Another calls
a law court an officina calumniatorum et mendaciorum, ubi
omnes mal<e proditorixque artes regnent. All the trouble,
however, comes from the abuse, not the use, of process,
while blame is cast upon advocates and procurators without
distinction, as says the old rhyme

Es geht dem Schrifften-Steller Chor

Im Beutelschneiden niemand vor.

1 There is a useful article " On the Secret Tribunals of Westphalia "
in Edinburgh Law Journal, 1831-32, p. 417. 2 Infra, p. 201.

3 Cf. Der juriitische Federfechter, Leipzig, 1751-56, 8vo, by Jo. Gottlob
Klingner.

MOUSE TRAPS 183

" No one surpasses the choir of draftsmen (Schnfften-
Stelkr) in purse-cutting." A distinguished catholic said,
in joke, that if he had three sons, he would make
one a murderer, the second a thief, and the third a
beggar, and so all would be well provided for. What
he meant was that he would make one a physician, who
is licensed to kill with impunity ; another he would
make an advocate who has the privilege of making a
clean sweep of people's purses ; and the third he would
make a monk, who has nothing of his own yet always has
a superplus.

The author then trots out " the popular and honoured
Herr Schlendrianus " Mr. Slow-Coach J who has so
besmirched the hands of justice with his dirty shells that
the kernel cannot but taste bitter. Herr Schlendrianus
must be the best interpreter and exponent of process
practice, and if he gives it a juristical box on the ear he
is sinning against himself more severely than if a scholar
were to do the same to Priscian. Beginners are afraid in
case they give Schlendrianus a box on the ear ; old prac-
titioners are careless. The one do not know Schlen-
drianus ; the other know him too well. If the mask were
taken off Schlendrianus many acts in the process-tragedy

1 Schlendrian, the old jog-trot, one who sticks in the old rut ; from
schlendern, to saunter ; Schlenderjan is a lounger or loiterer. Steiler,
1691 (Der deutschen Sprache Stammbaum und Tortwachs), notes that the
word is used chiefly in relation to law practitioners, and explains it as
"homo iners, indoctus, Notarius imperitus, inscius"; quoted Kluge,
Etymologisches Wdrterbuch, s.v. Cf. C. A. A. Slevoigt, Derdeutsche Advocat,
oder So ist der Schlendrian in den Gerichtfhofen, mit Anekdoten und Sey-
spiclen filr Jur'uten und NicAt Juristen, Jena, 1802-03, 8vo, 2 parts ;
Gundling, Umstandliches Leben und Sehriften, p. 5993, Frankfurt, n.d.
4to.

184 LAWYERS' MERRIMENTS

would go more pleasantly and be shorter. 1 For every
kind of process that exists there is a coil of wire for
mouse-traps. Each one has its own flaw, each one its
own peculiar Schlendrian and judicial formula. Forty-
seven forms of process are enumerated by the author ;
but the differences amongst them depend rather upon the
grounds of action than in the procedure itself. In Scot-
land, for instance, an action for recovery of a debt is
different from an action for recovery of a horse, but the
procedure is the same ; a process of cessio bonorum is
different from a declarator of marriage ; a different remedy
is sought, but the procedure by which it is to be obtained
is practically the same.

Dohler never drops his references to wire and to mouse-
traps. He has Libell-Drath ; Litis-Contestation-Drath ;
Beweiss-und Gegen-Beweiss-Drathe, and so on ; but the
traps are the tediousness of the procedure rather than the
danger which attends the different steps. The practitioner
is troubled by articuli dandorum et respondendorum and by
duplicando et triplicando, all of which used to encumber
our procedure, like the " re-re-re-revised condescendence"
in the Address of Poor Peter Peebles. 2 Oaths of credulity
and oaths of calumny, whether, and when, they were to
be taken, their import and effect, all made for delay and

1 " The only question is to prescribe a proper form of judicial procedure
which may effectually leave on one side all the assistance necessary to dis-
cover and establish a person's right : but which may, on the other hand,
disappoint the effect of so many tricks and artifices as men who are
enemies to justice and order have invented for obscuring affairs by
perplexing them with delays, and to elude the judgments to which
they are afraid to submit," Formey, ut supra; The Frederician Code, i.
p. v.

* Supra, p. 13.

MOUSE TRAPS 185

caused a process to drag along slowly. All the troubles
are duly catalogued, but no hint is vouchsafed as to how
they may be avoided or procedure be abbreviated.

In 1739 there was published at Frankfort Politische
Schnupf-Tobacks-Dose vor die wtlchserne Nase der Justiz,
that is, a Political Snuff-box for the waxen nose of Justice,
in applying itself to controverted questions of law in the
commerce of life, as regards purchase and hire, or lease
and other contracts; 1 " a volume of that extensive, close-
printed, close-meditated sort, which is seen only in Ger-
many." It professed to be translated from the original
Italian of Albani de Spinetto, apothecary of Venice. There
was no Italian original, and the author was Johann Friedrich
Hertel (1667-1743), professor of law in the University of
Jena. He was the author of many books ; and delighted
in quaint titles ; Pyxis nautica per immensum Juris pelagum,
seu Manductio brevis studium Jurisprudenti<e instituenda? and
Laterna Magica Juris.

The "Snuff-box" opens with a long Vortrab^ or pre-
liminary trot, introducing Spinetto selling his wares in the
fair of Theodora at Rome on ist April, 1533, much after

1 Politische Scknupf-Tobacks-Dose vor die w'dchserne Nase der Justiz in slch
fas send juris tisc he Streit-Fragen im Handel und Wandel von den Kauff- und

Mieth oder Pacht, auch andern Contracten, mit saty rise her Feder entworfen und
aus dent Italianischen ins Teutsche Ubersezt, Frankf., 1739, 8vo ; again, Jena
u. Leipzig, 1766, 8vo, with engraved frontispiece. I have the latter, but
have not seen the first edition.

Tobacco has been the subject of at least two legal theses : Johann
Conrad Krantz, 'Dissertatio de Jure tabaci, Rinthelii, 1712, 410; and
Heinrich Ernst Kestner (1671-1723), professor at Rinteln in Hesse-
Nassau, and a correspondent of Leibnitz ; Dissertation vom Rechtdes Tabacs,
Waldenburg, 1713, 410 ; Halae, 1687, 410 ; Rinth., 1700, 410.

2 Jena, 1711, 8vo.

1 86 LAWYERS' MERRIMENTS

the fashion of the mountebank doctor in Folpone. 1 Then
follows a dialogue between Spinetto and Madame Themis
on legal matters, humorous but prolix ; and the humour,
like the language, is out of date. The language is a
strange amalgam of German, French, and Latin quite
suitable for the period, but not for ours ; the humour was
no doubt acceptable at the time, but its spirit has evaporated,
and is now flat. Snuff fills the air ; it brightens the wits
of lawyers and of every one else. Would a notary keep
a correct protocol, draw a formal instrument, prepare a
proper Vidimus and transumpt, he must fill his nose, and
clear his brain with Spinetto's ware.

After going through various branches of law and prac-
tice, Spinetto remarks that it was not enough to introduce
into Germany the vast Corpus Juris with its many mouse-
traps, and under its cover to spin out political maxims ;
but the Pope and his clergy must needs next bring in their
law, and so set loose so many fat mice, hares, and other
vermin.

When the discourse was finished Spinetto proceeded to
pack up his wares and take them to his house, but found
so great a crowd of purchasers that he could not supply
them. Lawyers of all kinds, from counsellors to copyists,
pressed upon him for snuff for their waxen nostrils ; but
the peasants and the burgesses had to content themselves
with pimpernel and ratsbane.

This leads to a discussion of practical points, and this
again is preceded by a new title-page and a long preface.
Speaking of Court practice, what is needed, he says, is
Jurisprudent a Polemica. An advocate or procurator must
be able to hit right and left, otherwise he sticks as a

1 Ben Jonson, Volpone ; or, The Fox, Act. ii. sc. i.

MOUSE TRAPS 187

botcher and a bungler. A judge is badly handicapped who
is inexperienced in Jurisprudentia Polemica. The education
of students is deficient if it does not include this and Court
procedure. In some Universities it is entirely overlooked,
and the teachers are young theorists who have never prac-
tised law. What is wanted is a Collegium disputatorium. 1
To forward the study of this branch of law the author
tells us that he prepared this selection of questions with the
arguments on both sides. In practice contrary decisions
are given. Judges may give unjust decisions, but they
excuse themselves on the ground that the doctors of the
law differ. 2 Litigants are led hither and thither till they
are exhausted, and the suit cannot be continued. Hence
the proverb, " Better a losing compromise than a suit
gained." Justice is represented as a young woman seated

1 This came in later times. One of the law courses in Germany is the
Civilpracticum, practical exercises in drawing up forms, judgments,
decrees, and the like.

Sir William Hamilton made a suggestion in this direction, Discussions,
p. 773, London, 1853, 8vo.

2 " The judges, instead of examining the law and taking the spirit of
it, followed the opinion received by most of the doctors, which was
called following the common opinion. The number of commentators being,
in succeeding times, greatly multiplied, so that, in doubtful cases, there
were as many doctors for the affirmative as for the negative, it happened
that the advocates cited the common opinion against the common opinion ; and
as the judges were at liberty to follow the opinion of what doctor they
pleased, all law remained uncertain and arbitrary. The abuse went so
far that when an advocate could produce, in favour of his cause, an
opinion of any doctor of the law, neither he nor his client could be
condemned in costs," The Frederician Code, Preface, sec. 22, vol. i.
p. xxxvi ; cf. Vulteius, De Studio Juris, in Dissertations de Studiis bene
instituendis, p. 296, 1658, I2mo; Francis Grant (Lord Cullen), Essays,
pp. 118, 121, 136.

1 88 LAWYERS' MERRIMENTS

on a square stone, for Justitia debet esse cons fans et perpetua,
with bandaged eyes, holding in her right hand a drawn
sword and in her left a balance. And has she got a waxen
nose ?

When the author comes to the part of his work con-
taining his examples he calls it "A practical handle for
applying the political snuff to the waxen nose of Justice."
He first takes up the Contract of Sale.

The question stated is called a pinch of snuff (Prise],
The argument on the one side is said to be in the right
nostril ; that on the other side in the left nostril.

Here is a " Pinch "

Is there a valid contract of sale when the contracting
parties do not stipulate in express terms, but to a certain
extent through conjectures and circumstances, as, for
example, If it is said, Bring pen and ink, or fetch a
Notary to draw the contract, can it be said that the
parties contract in scriptisl

The pinch having been put into the right nostril,
Justice says No. The contract is not valid until it is
actually reduced to writing and subscribed by the parties.

The left nostril, when stimulated by the snuff, answers
Yes. It is valid and binding. Why did not the con-
tracting parties expressly state and stipulate that the
contract should not stand until it was put on paper and
signed ? In dubio the writing will be held for the purpose
of preserving evidence, not for completing the contract.

Both views are supported by a train of authorities.

The second part of the book, on questions relating to
leases and other contracts, has an independent title-page
and separate pagination, and bears to be by Spinetto. It

MOUSE TRAPS 189

opens with a long discourse between Spinetto and Madame
Themis at Padua, in the course of which Scarramuzzi or
Scaramouche, the servant of Spinetto, and Poltrone, the
lady's maid, 1 are introduced. After this comes the Preface.
The dialogue is tedious and confused, and is not brightened
by the snuff which is copiously praised. The drift is
that law is badly taught in the Universities, and that
judicial procedure is intricate, puzzling, and very expensive.
The Universities make rich by degrees ; they want the
fees, they take no pains with their teaching, and pay no
regard to proficiency in the candidates. Nos sumimus
Pecuniam^ et mittimus asinam in patriam. They treat the
Roman law as a cleverly contrived harrow and mouse-trap
for the jurists. A company of well-to-do merchants
arrived at a University. Amongst them was a smart,
roguish fellow, who wished to have some fun with his
companions. I am given to understand, he said, that
any one can become doctor here if he has money, although
he has never studied. I shall spend 100 ducats and make
myself a doctor. He accordingly waited on the Dean,
the Faculty was convened, he counted out his 100 ducats,
and was duly promoted doctor. When he returned and
told his friends, he said, in jest, I verily believe they would
make my horse a doctor if they were paid for it ; I'll try
to-morrow. Off he went, took his purse with him,
counted out the money on the table, and asked for a
degree for a candidate in absentia. The Faculty suspected

1 The manner in which a mistress addresses her maid reflects the
manners of the time. Poltrone had been sent for a box which she
could not find. " Get away with you, you silly cat, and fetch me at
once the right box, or you will see, how it will be with you, if my hand
and your nose become acquainted."

190 LAWYERS' MERRIMENTS

some trick, but swept up the ducats, and asked who the
candidate was. My riding horse, he replied, who has
served me well, and desires the same honour as myself, so
that people may take off their hats to him. The Dean,
who had a ready wit and saw through the trick, said My
dear sir, we can easily to-day make a horse a doctor, seeing
that we made an ass one yesterday.

Incidentally we get a good deal of information as to the
manner of conferring degrees.

After this dialogue we come upon a third title-page
" A satirical Discourse on some controverted questions of
law." l Spinetto disappears, and it bears to be by I.F.H.,
I.V.D., i.e. Johann Friedrich Hertel, J.U.D., and Pro-
fessor at Jena. 2

In the preface the author defends the style of his work
against an imaginary censor. His object was to make
men think clearly and correctly, and to see both sides of a
question before coming to a conclusion. His presentation
of the points will give greater pleasure to the student, and
will stimulate his mental appetite more sharply than the
ordinary method.

His two worthy teachers, Christian Weise and Niclas
Christoph, baron von Lyncker, 3 approved of a satirical

1 Satyrischer Vortrag einiger iuristischer Streit-Fragen in Handel und
Wandel, Jena, 1766, 8vo.

2 Antecessore Solano. Jena is on the Saale, and appears in Latin as
"Athenae ad Salam," and " Athens Salanag."

3 Von Lyncker, published Resolutiones DCC. disceptationum forensium per
principia authentica ad rationes prezcipuas litigantium, Jena, 1723, 410.

Under the pseudonym Carolus Sylbindus Niceus, he attacked Stryk in
Monita plus quam quinque millia . . . errorum absurdorum, et deliquiorum . . .
Sam. Stryckii Ictl., Francf. et Lips., 1699, -fto ; reprinted in his Experi-
mentum ver<z iolideeque Jurisprudents Romano-Germanica', Jena, 1 706, 410.

MOUSE TRAPS 191

style in certain cases, and employed it in their writings.
Weise elevated rhetoric and poetry and impressed his
pupil Hiibner, the writer of comedies. Dohler, he says,
adopted the satirical vein in Processualische Mausefall and
other works.

The questions stated are from the titles of the Digest,
"de Pactis," " de Transactionibus," " de Negotiis gestis,"
" Si ager vetigalis, i.e. Emphyteuticarius petatur," " Finium
regundorum," " Familiae erciscundae," " Communi divi-
dundo," and "Ad Exhibendum," and are treated in like
fashion as in the first part.

In 1743 Hertel published another volume with a
whimsical title Politische Thee- und Coffe-Tassen 1 that
is, Political Tea and Coffee cups for the delicate little
mouth of Madame Justiz with its double tongue, or, as
explained in an alternative title, Controverted questions
of law relating to Wills and Succession.

In his preface the author expresses the wish that the
German nation in their Holy Roman Empire might have
a certain, sure, and invariable rule for ascertaining law
and justice. The uncertainty and consequent cost do not
altogether arise from law itself, but the blame rather
attaches to the teachers of law, the judges, and the advo-
cates. Germany is oppressed by a mass of incongruous
laws ; it is ruled by Roman law in all its parts, by canon

One of his facetious pieces was Dissertatio de preecellentia Marium
Feminis, Giess. 1673, 410. Little did he imagine that his thesis would
be challenged, and by women e.g. The Man-made World, by Charlotte
Perkins Oilman, London, 1911, 8vo.

^Politische Thee- und Coffe-Tassen vor das delicate Maulgen der Madame
Justiz, mil der gedoppelten Zunge. Oder : juristisiche Streit-Fragen von denen
letzten Willens-Verordnungen und Erbschajften, Jena, 1743, 8vo.

192 LAWYERS' MERRIMENTS

law, German statutes, land laws, and customs. The
student is puzzled to reconcile Roman and German law,
to reconcile the rules of the Corpus Juris with the ancient
customs of his own land. 1

As an example of the author's method, take Gout XX.,
the twentieth sip

" Is the heir ab intestato not bound, in conscience at

least, according to natural equity, to follow the Will

when it lacks merely some trivial detail of the civil

solemnities of deeds? "

First comes a reply from the Tea-cup ; next one from
the Coffee-cup, in the course of which there is quoted the
proverb

Lass das Guth dem rechten Erben

Wilst do froh und selig sterben.

" Leave your property to the right heir if you will die
cheerful and happy."

In this case there is added as a third head, " A Little
Milk."

A very large number of the cases are treated in a similar
manner. The questions are well put, and the arguments
pro and con. are succinctly related.

1 The idea was fostered that the Romano-German Empire was a con-
tinuation of the old Roman Empire. The Reicks-Kammer-Gerichts-
Ordnung of 1495, sec. 3, directed the members of the Imperial Chamber
to administer justice in accordance with the imperial and common laws,
that is, the Civil and Canon law. The same practice grew up in the
various States.

Only those parts of Justinian's collections which were glossed were in
force in Germany, and only certain portions of the Canon law. See
Savigny, Modern Roman Law, translated by Holloway, i. pp. 54 sqq.,
62 sqq., Madras, 1867, 8vo ; The Frederician Code, Preface, sec. 20 sqq. i.
p. xxxv, Edinburgh, 1761, 8vo.

MOUSE TRAPS 193

There is no book of this kind in our Scots library.
We no doubt possess that excellent treatise Dirletotts
Doubts and Questions in the Law of Scotland resolved and
answered by Sir James Steuart of GoodtreesJ- but this is a
sober law book written for instruction and not for amuse-
ment, and except by a blunder will never appear in any
catalogue under the titles, " Facetiae," " Plaisanteries,"
"Livres singuliers," "Elegante Jurisprudenz," "Curiosa,"
" Drolleries," " Humour of the Law," or the like.

The questions which troubled the lawyers of the six-
teenth and seventeenth centuries are, in many cases, so
different from those which arise in practice now-a-days,
that they often seem humorous from their very quaint-
ness. Dirleton doubts whether a person condemned to
death is in liege poustie and able to grant a deed affecting
his heritage. Sir James Stewart was of opinion that he
was not in liege poustie and could not do so, but held that
if he escaped and then made the deed it would be good.
John Maclaurin (Lord Dreghorn) discusses the point, and
arrives at the conclusion that a person under sentence of
death is not disqualified from disponing his heritage. 2

If a female minor marries does the office of her curator
expire ? Maclaurin thinks that Stewart gives " a very
blundering answer to the query," and expresses his own
opinion very decidedly that a husband becomes his wife's
curator, and " that marriage exauctorates the first curator."
He then starts the further question, If a husband dies
leaving a minor wife, does the curatory to which she was
subject prior to wedlock revive upon his death ? 3

1 Edinburgh, 1715, fol.

2 Observations on some Points of Law, p. 1 56, Edinburgh, 1759, ^ vo>

3 Ib. p. 29.

194 LAWYERS' MERRIMENTS

In England they have Hughes s Queries ; or, Choice Cases
for Moots, containing several points of law, not resolved in the
books, by William Hughes, Esq., late of the Honourable
Society of Grayes Inn. 1 This is a student's book intended
to aid the keeping of Moot-Courts ; but mooting was a
serious part of a young lawyer's education, not mere
amusement. 2 The Cases are stated for the purpose of
provoking discussion, and have nothing of a humorous
turn. The Quaeries and Cases, it is said, were " collected
into this body with special regard to the younger Contro-
versialists, who often find it more difficult to make a Case
than make an Argument."

Law Quibbles, first published in London, 1724, proposes
on its title-page to deal with the evasions, tricks, turns,
and quibbles commonly used in the profession of the law,
to the prejudice of clients and others; 3 and in the preface
the author says " The following Work is not compos'd
of Quibbles alone ; for it contains the various Turns and
Subtilties to be met with in the Practice and Abuse of our

1 London, 1675, izmo, B.L.

He had previously edited a similar work by Arthur Gregory :
Gregorys Moot-book ; being a survey of the general titles of the common law
with the cases thereof, London, 1663, 410. He also translated The Mirrour
of Justices, Ib. 1646, i2mo.

2 On the manner of Mooting, see Herbert, Antiquities of the Inns of
Court and Chancery, p. 178, London, 1804, 8vo. Bolting was inferior to
mooting.

3 Law Quibbles; or, a Treatise of the Evasions, Tricks, Turns, and Quibbles,
commonly used in the Profession of the Law, to the Prejudice of Clients, and
others; Necessary to be peruid by all Attorneys, and those who are or may be
concerned in Law-Suits, Trials, tffr., to avoid the many Abuses, Delays, and
Expences, introduced into Practice, London, 1724, 8vo. A second edition
was published in 1726, and a fourth in 1736.

MOUSE TRAPS 195

Laws ; what People may do, and what they may not do ;
what will be Binding, and what will be not so ; with many
extraordinary and curious Cases, proper to be known as a
Guard against Impositions." The text is, however, in an
entirely different strain, and instead of pitfalls and quibbles
presents and explains a number of points of interest with
the principles by which they are ruled.

" BEGINNING.

" A Man buys Cattle in a Fair, or Market, which are
stoln ; and selleth them out of the Market, though the
Beasts are afterwards brought into the Market, and the
second Bargain is confirmed by the Person which bought
the Cattle, who pays all his Money, and likewise the
Toll for the Beasts, the Property is not thereby changed ;
for the Bargain shall have Relation to the Beginning,
which was unlawful. Dy. 99." *

"CHANGE OF PROPERTY.

" If Writings are put in a Box, this will alter the
Property of the Box from being a Chattel, and it shall
go to the Heir. Noy. 7.

"A Man cuts down the Trees of another, and
squares them to make Beams for a House, the Person
injur'd may seize the same ; But if they are once
laid in the Building, their Nature is then alter'd and
they may not be seized, because they are become a
Part of the House, which may not be pull'd down.
Dodd, 143." 2

x /. p. 17. *lb. p. 24.

196 LAWYERS' MERRIMENTS

"VIOLENCE

" All Violence is unlawful ; and if a Man Assault
another with an Intention of beating him only, and he
dieth, it is Felony. If a Father, Master, or Schoolmaster
correct a Child, Servant, or Scholar, with Things not fit
for Correction, and Death ensues, it is Murder. And
if a Man knocks another in the Head who is breaking
his Hedges, &c., this will be Murder, because it is a
violent Act beyond the Provocation. Kel. Rep. 64, I3i." ]

In this part of the world all our sympathies are with
those unfortunates who were so ruthlessly prosecuted, after
the Restoration, for holding conventicles. In England the
accused were often able to provide mouse-traps for the
authorities who put the law in force, by seizing on flaws in
the procedure. No less a person than Sir Edmund Saunders,
Lord Chief Justice of England, "the Terence of Reporters,"
when at the bar, prepared a handbook for the assistance of
Justices of the Peace for the county of Middlesex in
carrying out the Act 22, Charles II. c. i, "To prevent
and suppress seditious Conventicles," with safety " from
the malitious Suits of the Dissenting Party, who were, and
always are ready to take advantage of the least slip or
mistake of any of the King's officers of the Peace." 2

Another manual of the same kind was Legis Fluvius; or,

l lb. p. 115.

2 Observations upon the Statute . . . entituled an Act to prevent and suppress
seditious Conventicles, London, 1685, izmo. Saunders was a great lawyer.
He never in all his life, says Roger North, " betrayed a client to court or
judge, as most eminent men do. If he had any fault it was playing tricks
to serve them, and rather expose himself than his client's interest. He
had no regard for fees, but did all the service he could, whether feed
double or single," Lives of the Norths, iii. p. 91.

MOUSE TRAPS 197

The Fountain of the law opened . . . being useful for all
Attorneys, Clerks and Informers}- It was really for the use
of those last mentioned, and in the title-page the word
" Informers " is printed in a line by itself and in large
capitals. The author, A. G., provided a Form of pro-
ceeding upon each Penal Statute, " so that if this be duly
observed and practised, I hope the Caterpillers and
Locusts of this Commonwealth, as Forestallers, Regradors,
Ingrossers, &c., will be shaken off from our Fruit Trees ;
for which purpose this was composed ; and hoping it will
prove effectual, I conclude."

The constable also required guidance in his calling, and
accordingly E. W., of Gray's Inn, published The Exact
Constable . . . fitted and prepared to the meanest capacity of
either city or country? 1 The author informs us that he had
" no other design than to throw in his Mite towards
establishing the desired and admirable Government of this
Nation, and to contribute his assistance to all those Loyal
and Active subjects, who conform to and act under the
same."

NEQUITIA ADVOCATORUM.

The shortcomings of lawyers can hardly be classed as
merriments, but they have been the subject of many
merry, of some very ill-natured, and of some serious
works.

1 London, 1658, izmo. The author was A. G.

2 London, 1663, i2mo. A sixth edition appeared in 1680, i2mo.
The executioners of the law Messengers-at-Arms, Sheriff-Officers,

and Constables have never been popular. Hence, Ars Catchpolaria ;
or, the Art of destroying Mankind, Intended as a Vade Mecum or Pocket Com-
panion to Messengers and other Executors of the law, Edinburgh, 1775, 8vo.

198 LAWYERS' MERRIMENTS

Of all professions on the globe,
The coifed gown and scarlet robe

Most mis'ry do create ;
Instead of soothing down your cares,
They serve but to perplex affairs,

And bring them to debate.

Since lawyers are such common pests,
Avoid them as you would the nests

Of hornets newly flown ;
And whilst you live, beware of law,
It is the hungry lion's paw

That tears the flesh from bone. 1

In referring to this subject it is convenient to employ a
Latin term. Nequitia is a word with many shades of
meaning, commencing with mere inactivity or slackness
and ending with villany. Between these extremes it may
import idleness, negligence, levity, worthlessness,or wicked-
ness. All these have been attributed to lawyers, so that it
is of advantage to have one word that can express all or
any of them at the will of the speaker. Nequitia infernalis,
it will be remembered, is used by Bartolus as the equivalent
of the Powers of Darkness, and some persons have thought
that it is none too strong for the whole order of lawyers.
" Unless hell is full, never will a lawyer be saved," says
the French proverb.

As early as the second century of our era Apuleius
speaks of judges as " Vilissima capita, forensia pecora,
immo togati vulturii"; marketing their judgments fora
price; 2 but the like language has been used of advocates

1 " The Lawyer " in The Musis Mirrour, i. p. ill, London, 1778, 8vo.
2 Apuleius, Metamorphoses^ 10, 14.

NEQUITIA ADVOCATORUM 199

and even of gentlemen of the short robe, and there is a
long string of proverbs and proverbial phrases expressing
the same idea in terms less or more forcible.

Thou besy fole intende vnto this clause,

That euery lawyer shall gyue more aduertence

To mony and gyftis than vnto thy cause ;

For after he hath set thy wordes and sentence

In his fat boke, fyllyd with offence,

And there pryckd with his couetous pen,

Thou neuer shalt thryue whyle thy name is therin. 1

Writers and knights are placed on the same platform ;
both are rogues, or the next thing to them

The scribe is ordeyned hymself to exercyse,
To wryte with his pen iust lawes and very table,
And shewe by his craft the rule of right iustyce ;
But nowe theyr dedys ar moche varyable
For knyghtes and scribes by wayes disceyuable,
By the swerde and pen right cursydly intende
Them to oppres, whome they ought to defende. 2

Why this should be it is difficult to say. There is no
class of the community more trusted or more esteemed
than the legal profession ; and it is just because they
stand upon a pinnacle of perfection that the shafts of
detractors do them no harm.

The popular prejudice is, and has been, as strong in
Scotland as elsewhere. The language of Alexander Craig
(d. 1627), if not poetical, is at least expressive

Tell, Lawyers are the children of Horse-Lieches,

Which cry Giue, Giue, and make great gain by Speaches,

1 Barclay, The Ship of Fools, ii. p. 50, Edinburgh, 1874, 4 to -

2 73. ii. p. 84. Cf. Ib. ii. p. 51.

200 LAWYERS' MERRIMENTS

Their chieffest sport is but to sow Dissention,
And build their States by Crooks, Delayes, Contention.
Tell Clerkes and Writers, They are farre from ill,
Yet Scrybes of olde expon'd the Laws at will. 1

The lawyer of the period, however, entered upon his
vocation with high resolves : " In this tyme God directed
me to choyse the matter of my lesson [that is, thesis for
admission to the Faculty of Advocates] to be de advo-
catorum ojficiis ac vitiis as the most fit for his glory, the
auditors aedification, and my preparation to ane conscionable
walking in my calling." 2

During the sixteenth and seventeenth centuries the
fancied demerits of lawyers formed the subject of a whole
library of tracts and dissertations. The most prominent
of these was the Disputatio de nequitia Advocatorum, von
Tficken und Bubenstttcken der Advocaten und deren Gebet, a
satirical work by Arnold Moriz Holtermann (1627-1681),
a meritorious lawyer, and professor of law at Marburg. 3
Then followed dissertations on Wmdmacherei^ legal char-

1 Satyra Volans in The Poetical Recreations of Mr. Alexander Craig, Aber-
deen, 1623, 410 ; reprinted by James Maidment.

Edmund Leach wrote, Downfall of the Unjust Lawyers, and Rising of the
Just, 1652, 410.

Writing in 1589 James Melville says of one John Arthoure he was
" pure, debauchit, greidie and neidie, and therewithall a lawer, attending
on Session, and waiting to mak his prey of the soumes of contravention,"
James Melville, Diary, p. 185.

2 Diary of Sir Archibald Johnston of Warriston, p. 161, anno 1633 (Scottish
History Society).

8 Marburg, 1679 ; republished at Marburg in 1681, 1684, 1695, and
1712 ; and at Frankfurt and Leipsic in 1735. It has a curious engraved
title-page. As pendent to this he published Verkehrter Jurist, sive sine
lege Montrosus Jurisconsultus, Marburg, 1680; Freienhagae, 1685, I2mo.

NEQUITIA ADVOCATORUM 201

latanry or gasing, to use modern slang ; the crooked
ways of lawyers ; the tricks of advocates ; the waxen nose
of the law ; and the conscience of an advocate. 1

The proverb, Bonus Jurista, malus Christista, constantly in
the mouth of Luther, has served as a theme for several
legal disquisitions. 2

Ahasuerus Fritsch (1629-1701), one of the most
voluminous authors of his day, jurist and theologian, poet
and man of affairs, exposed the failings of every profession,
and penned treatises on the peccant advocate, the peccant
notary, and other peccant lawyers, as well as on tripping
princes, privy councillors, students, merchants, burgo-
masters, and nobles. 3

1 Von der juristischen Windmacherei, Jena, 1686, by an anonymous writer ;
Hertius (J. N.), Deperversis Advocatorum artibus, Giessae, 1 703 ; Trautmann
(F. A.), De strategematibus advocatorem vulgo, Von Advokaten-Streichen, Jena,
1720, 410 ; Stiykius (S.), De Conscientia Advocati. Erf., 1677.

See J. Frank, in Allgemeine deutsche Biographic, s.v.v. Holtermann and
Doehler.

See also Niemann (Ch. A.), De advocatorum culpa, Jena, 1700, 4to;
Leyser (Aug.), De causis odii erga Advocates, Helmst., 1713, 410 ; Lange
(J. L.), De advocate fatalia negligente, Rostoc., 1755, 410.

2 Supra, p. 133. [Leonhard Schritzmeier] J uristen-spiegel durch Anleitung
des Bprichwortes: Juristen sind bose Christen aufgesetzt, Hamburg, 1666,
i zmo ; Ib. 1 70 1 , 1 2mo ; H. P. Haberkorn, Religio J urisconsultorum, Lipsiae,

1677, 410; Die Religion eines Juristen, Frankf., 1720, anon.; J. G. Meier
presiding ; J. A. Stein, Juristen bose Christen, Giessae, 1719; J. P. Schmidt,
Juristen gute Christen, Rost., 1730, 410; Roderick von Stintzing, Das
Sprichtvort "Juristen base Christen" in seinem geschichtlichen Bedeutungen,
Bonn, 1875, 8vo. At p. 30 he gives a list of books on the proverb.
Georg Wald, or more properly, Am Wald, lawyer and Paracelsist, deals
with it in his Gerichts Teuffel Third Tract, Franckfurt a. M., 1 586, fol.

3 Advocatus peccans, sive de peccatis advocatorum et procuratorum, Francof.,

1678, 8vo. His Notarius Peccans, Rudolst., 1681, 8vo, was an adaptation
of the Compendium in Notariorum sive Tabellonum excessus errores, atque

202 LAWYERS' MERRIMENTS

The fees of law agents have for many generations been
charged in accordance with an authorised Table. It covers
all work done, and professional accounts are taxed in
accordance with its provisions. South of the Border they
had, however, at one time, the curious experience that the
taxing officer altogether disallowed charges for services
of the utmost value and importance, or allowed merely
nominal charges, while he passed charges for services
never rendered or business never performed, which
solicitors made, and were allowed to make, in order to
balance the inequality. 1

The Law and Lawyers laid open in Twelve Visions' 2 ' is
a severe indictment of legal practitioners of all classes in
London in the early part of the eighteenth century; but,

peccata, of Antonio Tassara, a notary of Padua, originally published in
1511 ; reprinted Francofurti, 1590, 8vo. The work refers to the acts of
false notaries, but its principal object is to point out the errors into which
the practising notary is liable to fall and how to guard against them.

According to Henry Cornelius Agrippa no notary could frame an
instrument from whence there may not be some cause of quarrel picked.
De incertitudine et vanitate Scientiarum et Artium, c. 94, Colonize, 1532,
izmo; Morley, Life of Henry Cornelius Agrippa, ii. p. 202, London,
1856, 8vo.

x See per Lord Langdale in Davenport v. Stafford, 8 Beavan, 516;
Report of Special Committee on Professional Remuneration, p. 22 [London,
1858] (Society for promoting the amendment of the law) ; Parker (R. A.),
Observations on the Remuneration of Attorneys and Solicitors, London, 1853.

A Table of Fees is an institution of great antiquity. Pope John XXII.
(1316-34), for instance, fixed a scale of charges for the notaries practising
in the Roman Curia, which was for long in force.

2 Supra, p. 178. Reference may likewise be made to The Life and
Adventures of a Limb of the Law, by Michael Fagg, Esq., K.C., London,
1836, 8vo. The evil still existed, but, as the author points out, only
amongst the disreputable members of the profession.

NEQUITIA ADVOCATORUM 203

while the abuses which are exposed no doubt existed,
they are not characteristic of the profession as a body.

Criticism may be fair and temperate, as in John Payne
Collier's Criticisms upon the Bar ; l but criticism of a class
is apt to degenerate into attacks upon individuals, by the
selection of particular persons as representative of the
class. In other cases, the life and conduct of certain
members of the profession are held up for reprobation ;
but, while the charges made are sometimes well founded
and the exposure is merited, the strictures passed are apt
to become coarse abuse, and lose their point and their
value by their virulence; non est jocus esse malignum.

At the beginning of last century there was published in
London Strictures on the Characters of the most prominent
practising Attornies? Some were praised ; others were
damned. The work was intended to be facetious, but
failed ; its interest lay in the coarse manner in which it
pelted those whom it placed on its self-erected pillory.
It must have found readers, as it had reached a third
edition in 1808. It is described as volume One, but
there seems to have been no Second. A few years later
there appeared Ward's Strictures on the characters of certain
Barristers, ana also on the conduct of the most Respectable
and the most Infamous and Oppressive town and country
Attornies? This is practically the same work in a different

1 London, 1819, 8vo. Published under the pseudonym of "Amicus
Curiae." He was for some time a student of the Middle Temple.

2 London, 1808, 8vo, third edition. The book bears to be by Robert
Holloway, gent. The first edition was published in 1805.

3 London, 1828, 8vo. It was to be published in six parts or two
volumes. I have seen only the second edition of the First Part, and do
not know whether it went further. It bears to be by Thomas Ward,

204 LAWYERS' MERRIMENTS

shape. Some of the chapters are identical, but the persons
praised or satirised are different.

Nowadays plenty of examinations are provided for those
proposing to practise as law agents or as attorneys and
solicitors, but no certificate of respectability is required,
and no inquiry is made as to the fitness and experience
of the candidate for business. This is a singular over-
sight, and contrary to ancient practice. The constitution
" Romani Pontificis providentia" of Martin V. (1417-31)
provided, as regarded Notaries in the Roman Curia,
not only that they should be examined as to their
knowledge of law and fitness to practise, but also that
they should be of good reputation and honest report
(boni nominis, et laudabilis fam<e) ; and there was a similar
regulation as to the Procurators of court. 1

Unfortunately, a certain number of those now admitted
to practise are lacking in honesty and business aptitude,
and bring a stain upon the whole body; but, if we are
to place any reliance upon the two English books just
referred to, things have greatly improved in the hundred
years which have passed since they saw the light.

That there are lawyers who are fond of crooked ways is
unfortunately true ; and it is a subject of deep regret that
there are practitioners who stir up strife, decline to
arrange matters in dispute except upon unreasonable
terms, and unduly protract the proceedings

Esq., late of the Inner Temple. An advertising sheet at the end explains
that any Gentleman wishing to have a chapter inserted descriptive of his
respectability can have this on payment of 7 guineas and a half. " Any
Attorney of actual or supposed improper conduct will be treated with
privately for the suppression of facts."

1 Galante, Fontes iuris canonici selecti, p. 491, CEniponte, 1906, 8vo.

NEQUITIA ADVOCATORUM 205

the law to him

Is like a foul black cobweb to a spider;
He makes it his dwelling, and a prison
To entangle those shall feed him. 1

but such are the exceptions, and no reasonable person
accepts them as typical of the profession.

In 1663 Thomas Manley, " twelve years a practitioner,"
and afterwards of the Middle Temple, published The
Solicitor? a well-written and succinct volume on the call-
ing of the solicitor and the practice of the Court of
Chancery. After dwelling upon the moral qualities re-
quired in a solicitor, and the necessity for a thorough
knowledge of his profession, he adds

" Having thus far trained him up in the way to
perfection, and laid him down some few Rules to walk
by, come we now in the last place to shew how,

" 5. He shall manifest the same, and comment on
his actions. To which purpose it is necessary that he
have a free and voluble tongue to utter and declare his
conceits : in the use whereof, it is necessary that he
avoid affectation, and that his speech be honest, comely,
significant, expressive, proper, and void of all sear
and effeminate terms, without any dissimulation : for
doubtful and ambiguous words, with particular reserves,
argue a base mind, and imbecility of spirit. He must
not always shew himself a Scholar, but sparingly, and
when fit occasion requires it : for sometimes to use

1 Webster, Duchess of Malfi, Act i. sc. 2.

a The Solicitor, Exactly and plainly declaring, Both as to Knowledge and
Practice, how such an Undertaker ought to be qualified. As also, His Parts,
Qualities, and fitting Endowments for such a weighty Employment, London,
1663, izmo.

206 LAWYERS' MERRIMENTS

conceits of Learning as Embroyderies, is requisite ; but
then it should be in a hidden manner, like as apparel
doth represent the proportion, but not the barrenness
of our members : but generally it is the greatest
wisdome rather to attend others, then to be an eloquent
Merchant of self-conceits : for men expert and prac-
ticed, can out of anothers mans words deduce great
consequences, and take light of matters of great import-
ance." 1

Then dealing with the objection that learning in a
solicitor is thrown away, for there are many ignorant
men in practice, he remarks

" To this, I answer : True it is, and to the shame
both of the Law and the Professors thereof be it
spoken, that will suffer such fellows by their ignorance
and deceits to abuse so many as they dayly do. 'Tis
by the means of these cheating devouring Caterpillers,
that the honourable Professors of the Law are so often
cryed out upon for bribing and taking excessive Fees ;
and it will be no wonder hereafter if Ignoramus be
revived, when such a company of simple Sots shall be
admitted or suffered to usurp (and therein abuse and
make vile) the worthy name of a Lawyer. 2

LIVRES DE LUXE.
ILLUSTRATIONS IN LAW BOOKS.

The law books of the present day are, as a rule,
commonplace, unpretentious-looking octavo or duodecimo
volumes, " with a red label behind, and that under-done-

1 lb. p. 25. 2 Ib. p. 26. As to Ignoramus, see supra, p. 102.

LIVRES DE LUXE 207

pie-crust-coloured cover, which is technically known as
* law-calf.' " l A few generations ago there was much
greater variety of size, which ranged from the stately
folio to the diminutive sexto-decimo and even to viginti-
duodecimo. 2 There were, too, large paper copies and
small paper copies, and copies on thick and fine paper,
as well as the ordinary issue upon common paper. There
are, for instance, large and fine paper copies of the
Florentine Pandects of 1553 ; and of the handsome Paris
edition of the Corpus Juris Civilis of 1576 ; and, seeing
that we are now assembled in Dundee, mention may be
made of the Nove/t*e published at Paris in 1558 in folio,
by Henry Stephen. 3 It was edited by Henry Scrimger
(1506-72), professor of civil law in Geneva, a Dundee
man, being a son, it is said, of Walter Scrimger of Glass-
nell, the provost. 4 It is still valuable, and was the basis
of Osenbriiggen's edition of 1854.

1 The Pickwick Papers, c. 33.

2 For instance, the Institutes of Justinian, Lugd. Bat., (Daniel a Gaes-
beeck), 1678, is in 321110 ; and some copies are on large paper with wide
margins for notes. [Renouard] Catalogue de la Eibliotheque (fun Amateur,
i. p. 137, Paris, 1819, 8vo. There were copies in the Sunderland
Library, Catalogue, No. 6953 ; and two in Theodore Williams' Library,
Catalogue , Nos. 1001, 1002. I have one of the two.

3 1 have elsewhere referred to the magnificent Paris edition of the
Corpus Juris Canonici of 1500. Legal Practice in Ayr and the West of
Scotland, p. 84. As to the edition of 1576, see Greswell, Early Parisian
Greek Press, i. p. 133.

There was a handsome copy of the Novelise, bearing the Royal Arms
of France, in the Sunderland Library, Catalogue, No. 6963.

4 John Reddie, Historical Notices of the Roman Law, p. 51, Edinburgh,
1826. The author was a son of James Reddie, Town-clerk of Glasgow,
the eminent jurist. James Browne, Remarks on the Study of the Civil Law,
pp. 24, 66, Edinburgh, 1828, 8vo ; M'Crie, Life of Andrew Melville,

208 LAWYERS' MERRIMENTS

Amongst Scots law books, there are large paper copies
of Brodie's Stair in folio (Edinburgh, 1826, 2 vols.) ; of
More's Stair in quarto (Edinburgh, 1832, 2 vols.) j 1 and
of Robertson's Statuta Ecclesi* Scotican* (Edinburgh, 1866,
4to, 2 vols.). Bankton's Institute (Edinburgh, 1751-53,
3 vols.) is a folio, and there are some very handsome
copies on large paper. Balfour's Practicks, published in
the following year, 1754, is also found on large paper.

In the early days of printing a few copies of the more
important works were taken off upon vellum, 2 and this
practice was followed as regards law books.

Who blindly take the Book display'd
By Pettifoggers in the Trade,
Nor asks of what the leaf was made,
That seems like Paper I can tell 'em,

That though 'tis possible to squint
Through any page with letters in't,
No Copy, though an Angel print,
Reads elegantly but "ON VELLUM." 3

p. 408, Edinburgh, 1856; Irving, Lives of Scottish Writers, i. p. 176;
Hugo, Geschichte da r'dmischen Rechts, iii. p. 240.
1 But of faith, not a breath

Is heard near Brodie's Stair ;
Our most devout have Nesbit's Doubts,
As well as Brodie's Stair.

Outram, The Faculty Roll.

2 The old vellum was of various qualities (i) real calf-skin, which
was the best ; (2) lamb-skin from a still-born animal ; (3) lamb-skin of
an animal which has lived ; (4) sheep-skin. Van Praet, Catalogue des
Livres imprimis sur velin de la Bibliotheque du Rot, i. p. x ; cf. Peignot,
Dictionnaire raisonne de Bibliologie, s.v. " Velin."

As to works on vellum, see Brunet, Manuel du Libraire t i. p. xxxv,
Paris, 1860, 8vo.

3 [James Beresford], Bibliosophia, p. vl, London, 1810, I2mo.

LIVRES DE LUXE 209

Taking the press of Fust and Schoeffer, of Mainz,
there were copies on vellum of their editions of the
Clementines of 1460, and of the Decretals of Boniface VIII.
of 1465, both with the gloss of Joannes Andreae.

Peter Schoeffer produced vellum copies of his editions
of the Institutes of Justinian, 1468 and 1472 j 1 of the
Code, 1475 > of the Authentics, 1477 ; of the Clementines,
1467 and 1471 ; of the Decretals of Boniface VIII., 1470,
1473, and 1476; of the Decretum of Gratian, 1472 ; and
of the Decretals of Gregory IX., 1473.

Amongst the books on vellum in the Hunterian Library,
in the University of Glasgow, are the Decretals of Boniface
VIII. of 1473, th 6 colophon of which is printed in red
ink, and bears that the work has been produced, not with
pen and ink, but by a certain beautiful invention by a
venerable man, Peter Schoiffer de Gernszhem. 2

The Consilia of Jason de Mayno (1435-1519), a great
Italian lawyer, were printed at Lyons in 1534, and some
copies were taken on vellum. 3

Most of the other great printers of the fifteenth century
issued law books, and of the more important there were

1 There is a copy on vellum of the 1468 edition in the Ryland's
Library, and there was one in Renouard's Library, Catalogue de la
Blbliotheque (Pun Amateur, i. p. 136, and another in the Sunderland
Library, Catalogue, No. 6918. There was a copy on vellum of the
1472 edition in the library of Sir Mark Sykes, Catalogue, No. 1672,
which fetched ^22 us. 6d. at the sale in 1824. It was afterwards in
the Syston Park Library, Catalogue, No. 1069.

2 As late as 1486 Michael Wenssler of Basel inserted in the colophon
of his books that they were not produced atramentali penna cannave,
ted arte ingeniosa quadam imprimendi,

3 Bibliotheca Harleiana, iii. No. 3243 ; Savigny, Geschlchte des rb'mischen
Rechts im Mittelalter, vi. p. 343.

o

210 LAWYERS' MERRIMENTS

copies on vellum. The same practice was followed in the
sixteenth, seventeenth, and eighteenth centuries, and even
the nineteenth century was not without its vellum copies.

Of many of the printed editions of the ancient
Coutumes of France there are copies on vellum. 1

There are copies of several of the Ordinances of the
Kings of France on vellum, and also of the documents
representing the legislation of the Republic and of the
Empire. The various Codes have all been printed on
vellum. The metrical version of the Code Napoleon, by
J. H. Falcon-Rochelle, 2 has also appeared in this form.

The commentaries of Jacobus de Marquilles upon the
customs of Barcelona, published in that city in 1505,
appeared in vellum, with a fine woodcut on the title-page. 5
The Constitutions of the Council of Constance of 1 609
were also printed on vellum. 4

Text-books, formularies, books of procedure, and even

1 Amongst others there are vellum copies of the following editions :
Of the Coutumes of Normandy 1483 and 1583; of Touraine 1507 and
1569 ; of Auvergne 1511 ; of Paris 1513 and 1580 ; of Nivernois 1535 ;
of Senlis 1540; of Berry 1540; of Beam 1552; of Sens 1553; of
Vermandois 1557 ; of Grande Perche 1558 ; of Poitou 1560 ; of
Melun 1561 ; of Auxere 1563 ; of Orleans 1583. There were several
of these vellum copies in the Solar Library. There were five in
Renouard's Library, three of which had come from the library of
President de Thou, father of the historian. Catalogue de la Bibliothequc
a"un Amateur, i. p. 140.

* Supra, p. 37.

3 Catalogue de la 'Bibliotheque de Heredia, i. No. 296, Paris, 1891,
8vo. This copy was previously in the library of J. C. Brunet, the
bibliographer. Catalogue des livres, i. No. 78, Paris, 1868, 8vo ;
Hiersemann, Gesetz-Sammlungen, No. 343, Leipzig, 1911.

4 Catalogue de la Bibllotheque de Heredia, i. No. 314.

LIVRES DE LUXE 211

die Elegante Jurisprudent have also appeared in this dress.
There are, for instance, copies on vellum of the Fceminei
sexus Apologia of Amaury Bouchard of St. Jean d'Angely,
chancellor of the King of Navarre, 1 printed at Paris in
1522 by Jodocus Radius Ascenscius, that is, Josse Bade,
of Asche, a craftsman, it may be mentioned, who was
much in favour in Scotland. This is not a facetious, but
a serious piece. " Planum multum in eo abstrusioris
philosophise est, multum antiquae, illius disciplinae, multum
veteris historic. Sublimis ubique senties." 2

In modern times, the Dei delitti e delle Pene of Beccaria, 3
II Principe of Machiavelli, 4 r Esprit de Lois of Montesquieu, 6
and the Letters ofJunius 6 have been printed on vellum.

l Almarici Bovchardi . . . Tijs yvvoMccfas ^urX^s . . . aduersus Andream
Tiraquellum Fontiniensem, Parisiis (In Chalcographia lo. Badii Ascensii),
1522, 410. There is a copy on vellum in the British Museum, and
there was one in the Sunderland Library, Catalogue, No. 1856.
There is a copy on paper in the Advocates' Library.

He also edited Gaii Institutiones, Paris, 1524, 4to.

As to Bouchard, see Marchand, Dictionnaire, s.v., La Haye, 1758, fol.

2 Introductory letter by Petrus Amicus (Pierre Amy).

3 Parigi (F. A. Didot), 1780, 8vo ; again, Brescia (Nicolo Bettoni),
1807, 410.

There was a copy of the former on vellum in the Wodhull Library,
Catalogue, No. 340, London, 1886.

Didot reprinted his edition in quarto form, limiting the impression to
fourteen copies. Peignot, Repertoire de bibliographies speciales, p. 16,
Paris, 1810, 8vo ; [Renouard] Catalogue de la Bibliotheque a"un Amateur,
i. p. 145.

4 Filadelfia (Livorno), 8vo ; again, Firenzi, 1797, 8vo.

5 Paris (Pierre Didot 1'aine), 1803, I2mo, 5 vols. ; and again, 1820
8vo, 4 vols.

London (Bensley), 1797, 8vo, 2 vols; also L. P.

212 LAWYERS' MERRIMENTS

The Promnciale of Lyndwood * and The New Actis . . .
of Parliament of 1 540 2 are both found on vellum. If
Davidson's edition of Bellenden's Croniklis of Scotland
could be treated as a law book it would be included
amongst those of which Dibdin calls " membranaceous
copies." 3 There is a magnificent edition of Magna Carta
on vellum. 4

In 1897 the Charters of the Faculty of Procurators in
Glasgow were reprinted. 5 One copy was taken on vellum
and presented to me, as I was Dean of Faculty at the
time.

Prior to the invention of printing the best manuscripts,
and more particularly books of devotion, were beautifully
illuminated, and are still prized as works of art. The

1 Opus magistri Guillelmi Lyndewoode super constitutiones provinciates,
circa 1540, fol.

The Paris edition of 1506 is a superb specimen of printing, en rouge
et noir, and contains several ornamented titles and other woodcuts.
The edition of 1496 by Wynken de Worde has on the title a woodcut
of Lyndwood with pastoral staff in his hand.

2 The New Actis and Constitutionis of Parliament maid be the rycht
excellent prince, James the Fiji Kyng of Scottis 1540, Edinburgh (Thomas
Davidson), 1541, fol. Only two copies are known, both on vellum.
The one is in the Advocates' Library ; the other was in the library of
Michael Wodhull, sold in January, 1886, Catalogue, No. 1385.

3 There is one in the library of the University of Edinburgh. The
Hamilton Palace copy, sold in 1884, fetched j8oo.

There are copies on large paper of the first edition of the original
Latin text of Hector Boethius, Paris, 1526, fol.

4 1816 fol. There were copies in Sir Mark Sykes' library, and in the
Syston Park library.

5 Royal Charters erecting the Faculty of Procurators in Glasgow into a
corporation and body politic . . . and Supplementary Charter, Glasgow (at
the University Press), 1897, 8vo.

LIVRES DE LUXE 213

printer had to compete with the scribe and the illuminator.
The type was carefully cut and exactly set, the ink was
intensely black, the paper was the best that could be
procured, and superior to most that is now in use.
The book, after it had been printed, was illuminated by
hand, just as was done in the case of manuscripts. Blanks
were left for initial letters, which were filled by the rubrica-
tor and the miniaturist, and the margins were decorated
with scroll work. The British Museum copy of Schoeffer's
Clementines of 1471 has an elaborate border and miniatures
sketched in pencil and prepared for gilding, but never
completed. The Institutes of Justinian of 1468 on vellum,
also in the Museum, is enriched with ornaments and initials
painted in gold and colours in France. Schoeffer's Code
of 1475, a ^ so otl ve H um > m tne same collection, has ten
miniatures, and initials painted in gold and colours.
Several of the miniatures show Justinian seated on his
throne, with figures before him. There is a fine copy on
paper of the Decretorum Codex 'by Nicolas Jenson, Venice,
1474, in the Hunterian Library, with numerous illuminated
capitals and many beautiful vignettes in outline, which
were evidently intended to be coloured. 1

Early law books, like others, were often printed en
rouge et noir, which gave them a brilliant and attractive
appearance.

Another extravagance of printers and publishers is the
use of coloured paper, green, blue, yellow, and the like,
and even black paper with the letterpress in white, for a
limited number of copies of a book. There are, for
instance, copies on green paper of the Amsterdam octavo

X A rare and very handsome edition. There are copies on vellum.
Van Praet, Catalogue des livres tmprimes sur ve/in, ii. p. 4.

2i 4 LAWYERS' MERRIMENTS

edition of 1681 of the Corpus Juris Civilis, and of the
Aldine edition of the Canones et decreta Concilii Tridentini>
on large and blue paper. 1

Woodcut initials began to be used in place of leaving
blanks to be filled up by the hand, although the blanks
continued in use till a late date, 2 and very soon woodcut
illustrations were introduced into the text. In 1472
Gunther Zainer, of Augsburg, issued two editions of the
German version of Belial, illustrated with thirty-two wood-
cuts ; and in 1473 another edition was produced by
Johann Bamler, likewise a printer of Augsburg, illustrated
with woodcuts, the most of which had appeared in Zainer's
edition. It seems unlikely that the one printer would
simply appropriate or even borrow the illustrations of the
other ; and the more probable explanation is that the
woodcuts remained the property of the engraver and were
at his disposal.

Many other illustrated editions of Belial were published
at Augsburg and Ulm. The Low German version of
Magdborch, that is, Magdeburg, 1492, has also woodcuts.
The woodcuts again appear in the Dutch version of 1483,

1 Peignot, Repertoire de bibliographies speciales, pp. 158, 159.

Of the Italian translation of Paradise Lost by Paolo Rolli, London,
1729, fol., there are also copies on blue paper.

Of the Ordinances of Forli, Venetia, 1559, fol., there are copies on blue
paper. Renouard, Catalogue de la Bibliotheque d'un Amateur, i. p. 144.

There is a Glasgow periodical, Rattray's Green Leaves, Glasgow, 1848,
8vo, the first seven numbers of which are printed on green paper.
Afterwards it appeared on ordinary white paper. I have a copy.

2 E.g., in the Grunnius Sophista of Ottomar Luscinius, Argentinae (Jo.
Knoblouch), 1522, 8vo, supra, p. 44. I have a copy of this edition.

As to Luscinius, see Forstemann und Gttnther, Briefe an Desiderius
Erasmus, p. 386.

ILLUSTRATIONS IN LAW BOOKS 215

printed by Jakob Bellaert at Haarlem, under the title Der
Sonderen troest. The editions of the French translation,
Lyons, 1481, 1482, 1484, 1485, 1490, Paris without date,
and again 1503, are also adorned with woodcuts.

Blackstone's Commentaries appeared in an illustrated
edition in I793- 1 The author, it will be remembered,
wrote some melodious legal lyrics.

A few years ago the profession was surprised by the
insertion in the Law Reports of a small woodcut map for
the purpose of explaining the facts of a case, and some
time afterwards the Court of Session Cases followed this
example, and presented its readers with a tiny outline
plan showing the relative positions of certain plots of
ground as to which there was a question in Court.
Although it has been the modern practice to exclude illus-
trations of all kinds from law books, it was not so in early
times. The Tracts of Bartolus de Alluvione and de
Fluminibus et Insula^ for instance, are accompanied by
excellent diagrams. 2 Thedrbor Consanguinitatis et Affinitatis
of Joannes Andreas has large and handsome woodcuts of
the respective trees. 3 The Barcelona edition, of 1502, of
the original Catalan of the Consolato del Mare has a magni-
ficent woodcut of a ship on the title-page. 4 The legal

1 London, 4 vols. 8vo, with thirteen fine portraits of judges.

2 Trac tatus xxxlx. pp. 630-648, Basileae, 1562, fol. And in the
earlier editions, ? 1485, fol. G.L. ; ? 1510, fol. ; Lugduni, 1547, fol.

3 Nuremb., (Creussner), 1478, fol.; Leipzig, 1498, fol.; Nuremb.,
1506, fol.

4 Libre de cosolat tractat dels fets maritims, Barcelona, per Johan Luschner
[1502], fol. G.L. ; Catalogue de la Bibliotheque de Heredia, i. No. 279,
Paris, 1891, 8vo. The printer, Johan Luschner, was a German who
had previously printed in the neighbouring monastery of Montserrat.

2i6 LAWYERS' MERRIMENTS

writer, however, who is best known for the use of pictorial
illustrations in his works is Josse de Damhoudere, or
Damhauder, (1507-1581), a Belgian lawyer, and imperial
commissary under the Emperor Charles V. In 1554 he
published La practique et enchiridion des causes criminelles?
with woodcuts representing various crimes and their punish-
ment, one of which the Gardeloo is familiar to Scottish
readers by its reproduction on the title-page of Mr. James
Maidment's Scottish Pasquils. His Practique judiciare des
causes civiles 2 and his Refuge et garand des pupilles, orphelins
et pro digues* are both likewise illustrated with woodcuts.

1 La practique et enchiridion des causes criminelles, illustrees par plusieurs
elegantes figures, redigee en escript par losse de Damhoudere, docteur es
droictz . . . fort utile et necessaire a. tous souuerains Baillifz, Escoutestes,
Mayeurs, &c., Louvain, 1554, 4to. There was a copy of this edition
in the Beckford Library, Catalogue, i. No. 2315. It was reprinted, Lyons,
1555, 1558, 8vo ; Anvers, 1556, 1562, 1564, 1570, 1601, 410; Venet.,
1572. The last two are without the illustrations. The illustrations
increased in number in the various editions till they reached 56. In
the earlier editions they are printed on slips which have then been
pasted on the pages. These have often been removed, so that it is
difficult to get a perfect copy. In the later editions the woodcuts are
printed in the text, but are often worn and faint. The work was trans-
lated into Latin; Antverpiae, 1554, 1562, 1570; Rotterd., 1649, 410,
with 69 woodcuts; into German, Franckfurt a. M., 1565, 410; Ib.
1591, fol.; into Flemish by the author himself, Loven, 1555, 4to ;
Brussel, 1571, fol. ; Antwerp, 1572, fol.; and into Dutch, Rotterdam,
1618, 8vo ; Ib. 1650, 410.

2 Anvers, 1572, fol. In Latin, Ib. 1569, 410; Venet., 1572, fol.;
Sondershusae, 1693, 4to. In Dutch, Rotterdam, 1649, 4to.

3 Anvers, 1567, 410. There was a copy in the Beckford Library,
Catalogue, i. No. 2317. In Latin, Antv., 1564, 410 ; Francof., 1565, fol.

His Opera Omnia were published at Antwerp, 1646, fol., 1685, fol.,
but without the illustrations. Chapter 83 of the Praxis rerum Criminal-

ILLUSTRATIONS IN LAW BOOKS 217

A less-known but equally interesting volume on
criminal practice is the Praxis criminis persequendi l of Juan
Milles or Joannes Millaeus, " Boius Syluigniacus," as he
styles himself, that is, of Souvigny in Bourbonnois, high
treasurer of the waters and forests of France. It is
adorned with thirteen full-page woodcuts, one of which, it
is said, bears the mark of Geoffrey Tory. These wood-
cuts illustrate the successive steps of procedure citation,
arrest, interrogation, and so on ; and various kinds of
torture by water, and by the boot, the only kind per-
mitted by the Parliament of Paris, and the estrapade or
vertical rack, here termed Tortura Tholosana, and lastly
the execution of the criminal. There are copies on large
paper, and there is a copy on vellum in the Bibliotheque
Nationale, Paris.

The Criminal law Ordinance of Bamberg is illustrated
with one-and-twenty full-page woodcuts. 2

turn, in the Opera, contains a very curious vocabulary of military terms
in Latin, Flemish, French, and Italian ; and a dictionary of Quotations.

1 Paris, 1541, fol. Dedicated to King Francis. The treatise contains
full forms of all the steps of procedure, with an ample commentary.
The torture by water, that is, filling the victim with water, is termed
Tortura Gallica ordinaria ; the boot is styled Tortura cothurnorum.

There was a later edition, Lugduni, 1550, 8vo. A copy of this was
in the library of the College of Advocates, Doctors' Commons. There
is a volume, Stile y Pratique judiciaire de Juan Milks, Lyon, 1556, fol.,.
but I do not know whether this is the same author, as I have not seen
the book. See Catalogue dei Livres de feu Monsieur Mariof, avocat aux
conseils du Roy, p. 9, No. 70, [Paris, i3th September, 1751].

2 Bambergische peinliche Helsgerichts-Qrdnung, Bamberg, 1580, fol. ; re-
printed with excellent reproductions of the woodcuts, Ib. 1738, fol.
There was an earlier edition with woodcuts, Meyntz, 1531, fol.
The book, which is by J. Von Schwarzenberg, was originally published,
Ib. 1510, fol. As to this Ordinance, see Bohmer, Handbuch der Literatur

2i 8 LAWYERS' MERRIMENTS

The use of illustrations, such as these, is that the reader
may more clearly and readily understand a verbal de-
scription. Torture by the boot, or by the thumbscrew, is
better understood by means of a picture than by a page of
print ; although it is not so certain that one understands
what suicide is any the better by Damhoudere's picture.

Illustrations have also been employed as part of a
system of mnemonics for enabling the student to have at
his finger-ends the contents of certain law books. Many
years ago I attended a lecture on memory, in the
University of Glasgow, by Dr. Edward Pick, 1 in which
he professed to train the memory by the application of
the principle of association, so that one could retain and
recall all sorts of miscellaneous information with ease.
Amongst others, the lawyer was by this method to be
enabled to fix in his memory the whole of the titles of the
Digest in the course of a few hours, and to recall any one
of them at pleasure when required. In old days it was con-
sidered essential that the lawyers should have such informa-
tion prompt and ready for use, and not to be dependent on
indexes. Such facility was only gained with much labour,
and many plans were prepared for the assistance of students.

One of these attempts was made by Johann Buno
(1617-97), a Lutheran clergyman. 2 Born at Francken-

des Criminalrechts, p. 78 ; Gottingen, 1816, 8vo ; Heinrich Zoepfl, Das
alte bamberger Recht, Heidelberg, 1839, ^vo.

1 He was the author of a small volume on Memory and the rational means
.of improving it, London, 1861, which passed through several editions.
The historical introduction makes no references to Buno's system.

2 Conrad Buno, possibly a relation, was a bookseller at Ratzeburgh in
the duchy of Lauenburg, as appears from the title-page of the Memorials
Jnstitutionum Juris, Ratzeburgi, 1672, 4to.

.

THE SUICIDE

From Netulo Nebulonuiii, 1634

**

ILLUSTRATIONS IN LAW BOOKS 219

berg, in Hesse, he studied at Marburg and Helmstadt,
lived for a few years at Dantzig, acted as private tutor
to some young men, became rector of St. Michael's
School in the old mediaeval Hanse town of Liineburg, in
Hanover, afterwards Professor of History and Geography
there, and finally Inspector of Schools. He was thus led
to study educational methods, and, in order to enable
children and young persons more easily to master facts
and collect ideas, he invented an elaborate system of
topical mnemonics. This he applied to Latin Grammar, 1
and to History. 2

Then, turning his attention to the Corpus Juris Civilis*
he provided the student with what he considered an easy
method of becoming a living index to that vast repository
of law.

Judging from his works, he had an attractive person-
ality ; he impressed those in authority by his enthusiasm ;
he was allowed to put his plans into practice, and was
advanced from one position to another in recognition of
the value of his services. *"

One of his earliest works, Uralter Luststeig der Pabular
und Bilder Grammaticf is, as the title indicates, a collection
of early works on grammar treated in a romantic style.
Of these there are four. The first two are (I) Der
Gramma fie Krieg zwischen dem Nomine und verbo, and

1 Neue lateinische Grammatica in Fabeln und Bildern den ausserlichen Sinnen
vorgestellet und also eingerichtet, Dantzig, 1651, 410.

*Historuche Bilder dannnen Idea Historic Universally Ltineburg,
1672, 410.

3 Memoriale Corporis Juris Civilis, Hamburg, 1673, fol.

4 Dantzig, 1650, 410. Dedicated to Adrian de Linda, president of
the city and senate of Dantzig, where he then was.

220 LAWYERS' MERRIMENTS

(II) Der Process welchen der Buchstabe S als Klager eines
Theils wieder das T als beklagten anderen Theils fur den
verordneten Richtern den iwcalibus angestranget ; which have
some resemblance to the fictitious trials to which reference
has been made. The first is a German version of the
well-known Bellum Grammatical * of Andreas Guarna, of
Salerno, and patrician of Cremona, which for two hundred
years was a popular school-book in Scotland. 2 The other
piece is a translation of the A//o? <pdovt]evTu>v or Lis Vocalium
of Lucian, in which the letter S brings an action of ejection
against the letter T. The suit is conducted after the
Athenian manner, the vowels being the dicasts. 3

Turning now to Buno's labours in the province of law,
his first essay was on the Institutes of Justinian and the
two titles of the Digest, " De Verborum signification "
and " De diversis Regulis," published in 1672 at Ratze-
burgh,* the capital of the duchy of Lauenburg. In the
Dedication and the Preface to this work he explains his
method.

The titles, he says, are reduced to an arrangement in
which their contents and numerical order are indicated by
images or pictures, corresponding to the things of which

J It originally appeared at Cremona, 1511, 4to, and was reprinted in
numerous editions in every country in Europe. It was translated into
French by P. Roger, Paris, 1616, 8vo ; and again by H.B.G. (i.e.
Gibault), Poitiers, 1811, I2mo ; and into English by W[illiam]
H[aywarde], London, 1569 ; Somers' Tracts, ed. Scott, i. p. 533.

2 There were Edinburgh editions of 1658, 1698 ; and a Glasgow one
of 1674.

8 Luciani Opera, p. 18, Paris, 1842, 8vo.

4 Memoriale Institutionum Juris, Ratzeburgi, 1672,410. I have copies
of this and of the Examen, of the Memoriale Juris Chilis, the Neue
lateinische Grammatica, and the Uralter Luststeig.

ILLUSTRATIONS IN LAW BOOKS 221

they are the signs and of those to which they most nearly
approach, and these are impressed on and retained by the
memory without effort. If mention be made of any title,
the mind instantly recognises its image, and along with
the image its contents and numerical order. Thus the
eagle (aquila^ with sword and scales, the emblems of
justice, marks out the title "De Justitia et Jure," while
the book which the bird grasps contains the law. The
African gazelle (bubalus) signifies the title " De Jure
naturali gentium," as the gazelles are joined, male and
female, by the law of Nature, and not by the law of
nations or the civil law. Captives (captwi] designate the
title "De Jure personarum," because, having been formerly
free, and having been taken by the enemy, they have
been reduced into slavery. The representation of the
title " De suspectis Tutoribus " is the cat, the tutor suspectus
of the mice. Jesus stands for the title " Quibus modis
tollitur obligatio," seeing that being bound to the cross
He bore our obligations.

While the picture or image suggests the matter or
contents of the title, the first letters of the name indicate
its number. Thus, while Jesus bound to the cross at
once brings to mind the title " Quibus modis tollitur
obligatio," the picture indicates its number, for the first
letters J E represent the number 30 of a conventional
alphabet designed by the author. In like manner, when
one conversant with the author's system hears the title "De
suspectis Tutoribus" mentioned, he at once remembers
Felis (the cat), which recalls its matter, while the initial
letters FE point out the number 26.

In the same way, the two titles of the Digest, "De
Verborum significatione " and " De diversis Regulis," are

222 LAWYERS' MERRIMENTS

represented by certain pictures which give the clue to
their contents and their number.

The maxim of Ulpian, "Verbum hoc, si quis, tarn
masculos quam fceminas complectitur," is law I of the
title " De Verborum significatione." This is adumbrated
by Adam and Eve, to whom God said, " Ye shall not eat
of every tree of the garden." 1 The first letters AD of
the word Adam denote that this is the first law. Again,
the rule " Fceminas ab omnibus officiis civilibus, vel
publicis remotae sunt ; . . . Item, impubes omnibus officiis
civilibus debet abstinere," is law 2 of the title " De
diversis Regulis," which is thus expressed according to
the author's plan. " Barbati magistratus fceminas et
impuberes imberbes ab officiis civilibus removent, et
abigunt," that is, the Bearded magistrates remove the
women and beardless youths from civil offices and drive
them away. The first letters BA of Barbati indicate the
number, which is 2.

The lawyer of Buno's day was expected to know par
casur not merely the titles, but even the paragraphs of the
Institutes , and this the author's system helped him to do

1 This is disputed by that great advocate of women, Henry Cornelius
Agrippa, in his work, De nobilitate et pr<ec edentla Faeminei sexus, Antverp.,
1529, 8vo. The fruit of the tree of knowledge was forbidden to man
only, before woman was made ; woman received no injunction, she
was created free. She was not blamed, therefore, for eating, but for
causing sin in her husband by giving him to eat ; and she did that not of
her own free will, but because the devil tempted her. Morley's Life of
Henry Cornelius Agrippa, i. p. 103 ; Female Pre-eminence . . . Done into
English by H. C. [Henry Care], pp. 30, 31, London, 1670, izmo.

In Salomon et Marcolphm Justiniano-Gregoriani : hoc est sapida et imipida
. . . Theologica, Juridica . . . Curialia, Processionalia, formalia, Francf., 1678,
8vo, attributed to Christian Rebhold, a passage is cited from the canon
law which states that woman was not made in the image of God.

ILLUSTRATIONS IN LAW BOOKS 223

by combining the titles in a story evolved from the
picture which expressed the title. Captives (captivt)
represents the title " De Jure personarum," and the
paragraphs are united by a story in this wise

The question is put concerning the right of captives,
Are they free men, or are they slaves ? i.

Liberty was not permissible to them, but slavery was
their lot by the law of Nations. 3.

Because they have been preserved and taken by the
strong hand from the enemy. 4.

On account of captivity they are regarded in the same
light as if born of a slave mother or sold. 5.

Nevertheless, in the condition of slaves, there is no
distinction.

Similarly, the various paragraphs of all the titles of the
Institutes are linked together.

Following the Memoriale is a Questionnaire, a series of
more than 2000 questiones upon the Institutes, and an
account of a public examination of the author's pupils,
varying in age from twenty to sixteen, in which they
acquitted themselves with great credit. 1

The Digest is treated on corresponding lines.

The pictorial illustrations of the subjects of the titles
are very ingenious, often suggestive, and are well drawn
and engraved. They are excellent representations of the
life of the period domestic groups, dress, furniture, and
utensils, houses and factories, horses and cattle, the
market-place and the farm, the notary's office and trades-
man's shop, ships and maritime affairs. But, notwith-
standing their excellence, it may be doubted whether they

1 Examen seu Specimen juris primum, 1670, 410.

224 LAWYERS' MERRIMENTS

are of any practical service for the purpose intended.
To know the general scope of a chapter or section of a
book and its number is of no value except to the one who
has mastered the chapter itself, and when this has been
done it is an incumbrance rather than a help to remember
it by means of a picture. 1 The Digest is not in daily use,
as it once was, but the edict, Naute, caupones, stabularii,
is as often quoted with us as any Act of Parliament, and
there are various other titles with which the practising
lawyer is expected to be familiar, such as " Pro socio,"
" De lege Rhodia de jactu," " De periculo et commodo
rei venditae," "Ad legem Aquiliam," the latter of which
I have heard discussed offhand in the Small Debt Court ;
but one can remember their gist and position without
any artificial help.

Paulus tells us (" De Verborum significatione," 1. 228)
that " Municipes intelligendi sunt, et qui in eodem
municipio nati sunt." This is not more readily remembered
by a vignette of three tall Switzers (Helvetii) standing
in a diminutive town at their feet. The Helvetii are in-
troduced for the sake of the letters HE, because they
indicate 28 in the second century, which again is designated
" Bombarda."

There is a good deal of quaintness and some humour
in many of the thumb-sketches. " Jurisdiction is not

1 Aegidius Mommerius (d. 1570), professor of law in the University of
Marburg, employed an elaborate system of diagrams and tables, different
coloured inks, and note books, for assisting the student to master and
remember the contents of the Corpus Juris Civilis. " Epistola de ratione
legendi discendique luris," prefixed to Matthaei, Nofef . . . in libros iv.
Institutionum . . . Justiniani, Amstelod., 1657, I2mo; reprinted in Dis-
sertationes de Studiis bene instituendis, p. 316, Traj. ad Rhen., 1658, izmo.

LAWYERS' LOGIC 225

transferable " (" De diversis Regulis," 1. 70). This is in-
dicated by Jonah, sword-in-hand, being ejected from the
whale's mouth ; no one but Jonah must deliver to Nineveh
the message he had received from God. " No obligation
arises from giving advice unless it be dishonest" (/. 1. 47).
This is to be impressed on the memory by the picture
of a dormouse and house-mice beside a trap, but the
advice of the dormouse G!is t probably introduced in
place of the rat, on account of the letters GL, which are
required for numerical purposes however fatal it might
be, was not dishonest. Pussy with a mouse in her mouth
suggests a tutor suspect ; and again the same person is
indicated by a sus and a pecten, a play upon the words.
A tutor who is taken prisoner does not lose his office.
He is shown in the sketch being carried off on the back
of his captor.

LAWYERS' LOGIC.

The system of Buno was an aid to the memory only.
A more famous system was the Ars Magna of Raymond
Lully (1234-1315), doctor illuminatus, as he is known,
intended to be a universal art of discovery, or method of
investigation, and which was a tabulation of the different
sides from which a question must be regarded, an embodi-
ment of the ideal which science puts before herself of
finally bringing all conceptions into unity and correlation. 1

1 Lully's system is explained in Raymundi Lullii Opera ea, quae ad inven-
tam ab if so artem universalem, . . . pertinent, Argentinae, 1 598, 8vo, with a
preface by the publisher, Lazarus Zetzner of Strassburg. It was reprinted
with some additions, Ib. 1617, and is a dumpy octavo of over 1,100
pages, closely printed in small type, with an exhaustive Index. There
was a later edition, Ib. 1651, 8vo.

A summary of the system is given by Edwin Wallace in Encyclopaedia

226 LAWYERS' MERRIMENTS

Its primary object was to provide a system of argument-
ation suited to convince all unbelievers of the truth of
Christianity, but it was also applicable to law and other
sciences. It has not fulfilled the expectations of its
author ; its scope has been much misrepresented, and was
burlesqued by Swift in his " Project of a Literary Turning
Machine," in the Voyage to Laputa. 1

Amongst the branches of his Arbor Imperialis are in-
cluded procurators, j udges, advocates, and officers of the
law (sagiones she nuncii). Procurators are to be appointed,
not for their own advantage, but for the benefit of the
state, and a prince does wrong if he licenses procurators
who seek the office for gain ; he is in the same position in
this respect as the Pope if he consents to the appointment
of a prelate for his own advantage and not that of the public
he commits simony. 2

Lully was not only a philosopher and a missionary, but
also a lawyer, and did much for the science of law. The
only one of his legal treatises which has been printed is
Ars Juris, which appeared at Rome in 1516, under the
editorship of Salvator Gavelli of Spoleto. 3 Its purpose
was to facilitate the acquisition of law by means of an
artificial method, and by the same method to shorten the

Britannica, s.v. Lully, loth ed. ; Prantl, Geschichte der Logik, iii. p. 145
sqq., Leipzig, 1867 ; Morhof, Polyhistor, vol. i., i. 5, p. 352 sqq. See also
Fabricius, Bibliotheca Lafina, xi. p. 292 ; xvii. p. 40, Patavii, 1754, 410.

1 Ferriar, Illustrations of Sterne, i. p. 43, London, 1812, 8vo, second edition.

2 Arbor Scientite . . . "Patris Raymundi Lulii, p. 169, Lugduni, 1515, 410.
I have a copy of this, formerly in the library of Mark Pattison. There
was an earlier edition. Barchinone (i.e. Barcelona), 1482, fol. ; and a
later, Lugduni, 1635, 410.

3 Romae (Jacobus Mazochius), 1516, 410.

LAWYERS' LOGIC 227

time required for a suit at law. It is founded on an
arrangement of coloured, overlapping triangles forming
nine points (an enneagram), with one inscribed and three
circumscribed circles, the latter divided each into nine
compartments, or twenty-seven in all. In these com-
partments, and in the triangular spaces opposite them, there
are placed certain terms or topics, which are to be brought
together according to the object sought. It is ingenious
but hardly useful. Various general questions are dis-
cussed and resolved, according to the author's method :
Is there an equal presumption in favour of the pursuer
and of the defender, or should the presumption be in
favour of one of them rather than of the other ? Is one
justified in killing a person who attacks him, in order to
save his own life ? Is it lawful to tell a lie to save
another's life ? Can a woman be a witness in a criminal
cause ? The last he answers in the negative, for various
reasons, one of which is that testimony requires equality
between the intellect and the will, and such equality
cannot so naturally exist in a woman as in a man.

Several others of Lully's works are still preserved in
manuscript. Of one of these, Ars utriusque juris, sive
brevis de Inventione mediorum Juris civilis, Savigny has
given a specimen from a MS. in Paris. 1 After remarking
that science is long and life is short, and that the science
of law is prolix and in causes most laborious, he proceeds
to expound his system u naturally and logically," so that
jurists who have not been so trained may easily know
how to find necessary conclusions. The method, how-
ever, would afford little assistance even to a willing and
intelligent learner.

1 Savigny, Geschichte des r'dmiscAen Rechts im Mittelalter, v. p. 566.

228 LAWYERS' MERRIMENTS

Amongst the questions he suggests is whether a man
can be baptized by the devil, which he answers in the
negative. Then, further on, he states the case of Bullum
v. Boatum, or Casus forensis de Asino : A boat is fastened
by a rope to the bank of a stream, an ass which was
passing entered the boat, and set it adrift by eating the
rope, and both boat and ass were lost. Who is to make
good the loss ? In the Ars partlcularis the same question
is put, and there Lully decides that no one can claim
reparation ; but in the present treatise he takes a different
view, and holds that the owner of the ass must bear four-
fifths and the owner of the boat one-fifth of the loss,
because, says he, the ass occasioned loss to the owner of
the boat through four causes by the elementative, the
vegetative, the sensitive, and the imaginative, of which it
was composed, while the boat caused loss to its owner
only through the elementative, of which it consisted. A
definite rule might prove of much value in apportioning
loss in collision cases, but the Lullian plan, it is to be
feared, would only make a difficult question more obscure.

His method of teaching law depends upon whether the
intellect of the student (tntellectus scholaris] is in the
positive, the comparative, or the superlative degree. This
having been ascertained, the method is infallible (modus est
infallibilis} ; whence it may be said that this art is the
treasury of students, rich or poor, engaged in learning. This
being so, we must regret that the author is not more explicit
in his directions, so as to enable us to take advantage of it.

A training in logic was at one time considered an
essential part of a lawyer's education. In the University
of Coimbra no one was permitted to enter the faculty
of law until he had spent some time in the study of

LAWYERS' LOGIC 229

logic. 1 There were plenty of general treatises on the
subject to which he might apply himself, but there is
likewise a considerable library of works specially prepared
for the use of law students and practising lawyers.

One of the earliest of these was by Johann Apel, or
in Latin, Appellus (1486-1536), professor of law and
rector of the University of Wittenberg. 2 It follows the
ordinary lines, but draws its examples from legal science.
The author does not run through the predicaments with
the celerity of the coachman of Cornelius Scriblerus, 3 but
they are illustrated by diagrams, and explained in reference to
legal terms. Substance is corporeal or incorporeal : bodies
(corpora) are animate or inanimate : fungible or non-
fungible, a distinction well known to the Scots lawyer.
The examples given of the former are ginger and coin :
of the latter, a field, a river, a tree.

1 Antonio de Sousa de Macedo, Perfectm Doctor, p. 52 ; infra, p. 238.

2 Methodica dialectices ratio ad lurisprudentiam adcommodata, Norimb.
1535, 410. Reprinted with Cantiuncula, infra t p. 230; and also in
vol. i. of the Tractatus Tractatuum, Lugduni, 1549, fol. ; infra, p. 245.

In 1502 Apel entered the University of Wittenberg, founded by
Maximilian I. on 6th July of that year, and was thus one of its earliest
students.

3 " Cornelius was forced to give Martin sensible images ; thus, calling
up the coachman, he asked him what he had seen in the bear-garden ?
the man answered he saw two men fight a prize ; one was a fair man,
a serjeant in the Guards ; the other black, a butcher ; the serjeant
had red breeches, the butcher blue ; they fought upon a stage about
four o'clock, and the serjeant wounded the butcher in the leg. ' Mark '
(quoth Cornelius), ' how the fellow runs through the predicaments.
Men, substantia ; two, quantitai ; fair and black, qualitas ; serjeant and
butcher, relatio ; wounded the other, actio fcjf passio ; righting, situs ;
stage, ubi ; four o'clock, quando ; blue and red breeches, habitus.'' "
Memoirs of Martinus Scriblerus, i. c. 7.

230 LAWYERS' MERRIMENTS

Nicolaus Everardus of Middleburg, a doctor of laws and
professor at Louvain, was the author of Loci legales? which,
he explains on his title page, is a work upon invention
and argumentation, that is, the manner of arguing and dis-
puting on all questions which can occur in law, natural,
ecclesiastical or civil, by means of common places (loci
or topica). It is therefore a treatise on method, and
discovery, rather than on formal logic. Works of a
similar character were published by Petrus Andreas
Gammarus, J.U.D., of Casale Monferrato, commonly
known as Bononiensis, 2 and by Claudius Cantiuncula,
chancellor of the royal court at Ensisheim, 3 the latter of
which was in great repute. 4

Christoph Hegendorf (1500-40) the reformer, humanist,
theologian and lawyer, wrote a small treatise to illustrate
the application of logic to the civil law. 5 It follows the

l Topicorum seu de locls legalibus Liber, Lovanii, 1516, fol. ; again
Bononiae, 1528,410; Basileae, 1544, fol. Reprinted with Cantiuncula,
infra, note 4.

z Dialectica legalis, Bononiae, 1523, 4to : Cracau, 1526,410; Venetiis,
1533, 410. Reprinted with Cantiuncula, infra, note 4.

8 This is the latinized form of Claude Chansonette, which again
was the French rendering of the German Liedlein or Leidel, the author
being a native of Lorraine. Jugler, Beytrage zur juristiscben Biographic,
iv. p. in.

4 Topica legalia, Basileae, 1545, fol.

Along with this are reprinted the above-mentioned works of Apel,
Everardus, and Gammarus.

5 Libri Dialectic* legalis libri iv. Antwerpiae, 1534, 8vo ; Paris
(Rob. Stephanus), 1535, 8vo : Basel, 1573, 8vo.

He contributed much by speech and writing to the diffusion of the
Reformation doctrines of Luther.

He was for a short time professor of law at Ltlneburg. He published
several books on law, and also on grammar and philology. He edited

LAWYERS' LOGIC 231

traditional lines of the schools, and is clear and compact.
Part iv., on judgment, and the rules of invention and
argumentation, is the fullest, and is to some extent
derived from Cantiuncula.

Clodius includes works on mnemonics applied to law
and to logic in his Library of Games, 1 but the books
just referred to, and many others of the same nature, 2
are set treatises with a serious purpose. They show,
however, that sport or frivolity need not necessarily
engage a lawyer's leisure, and that he may find recreation
for himself and profit to others by bringing his pro-
fessional knowledge to bear upon subjects of daily life
and general education.

No Scottish lawyer has applied himself to the prepara-
tion of a work on logic for lawyers, but, in order to divert
himself during the six months vacation of the Court of
Session, the " noble wit of Scotland, Sir George Mac-
kenzie " (1636-91), popularly known as the " bluidy
Mackenzie," wrote his Pleadings? a book now forgotten,
but still worth reading. His aim was " to inform
strangers as to our way of pleading in Scotland," to
form a style and give himself easiness in pleading.

several classical authors and wrote plays. One of his books, Antidotum
adverstii pestilentiam, Leipzig, 1539, is a theological work, but has often
been erroneously catalogued under Medicine.

1 Infra, p. 256.

2 As to disputation and method, see infra, p. 237.

8 Pleadings in some remarkable cases, Edinburgh, 1673, 410 ; Ib. 1704,
I2mo ; and in vol. i. of his Works, Edinburgh, 1716-22, fol. 2 vols.

See Idea Eloquentia forensis hodiernae, Ib. 1681, 8vo.

Translated into English by Robert Hepburn, advocate (d. 1712) ; Ib.
1711, 8vo.

232 LAWYERS' MERRIMENTS

An old Act of Sederunt directed that all pleading should
be syllogistic, which he considers quite inappropriate :
" it were very ridiculous, and impossible, to wrap up
a long story, many circumstances, presumptions and
probabilities in a syllogism." After explaining his idea
of pleading and that which prevailed in France, he
turns to the subject of debate. " With us, Action is
possibly too violent, which I ascribe both to the violent
Temper of our Nation, praeferuidum Scotorum ingenium y
and to the Way of our Debate : for Fire sparkles
ordinarily from the Collision of two Bodies, one against
another ; some debate for Interest only, some for
Honour, but Advocates for Both : yet hardly can he
raise Passion in others, who shows it not himself;
and all Men presume, that he who is very serious and
earnest to convince others, is one Convert of his own
Argument." l

He has a fine, hearty, breezy opinion of his country
and her tongue :

" It may seem a Paradox to others, but to me it
appears undeniable, that the Scotish Idiom of the British
Tongue is more fit for Pleading, than either the English

1 Alongside of Mackenzie's work we may perhaps place the Parlia-
mentary Loglck, London, 1808, 8vo, of William Gerard Hamilton (1729-
96), better known as " Single-speech Hamilton." He began life as a
lawyer, but soon abandoned the profession for politics. His father,
William Hamilton, a bencher of Lincoln's Inn, was said by Horace
Walpole to have " been the first Scot who ever pleaded at the
English bar," and " should have been the last." His grandfather was
William Hamilton of Wishaw (d. 1724), whose Account of the Shy res
of Renfrew and Lanark as edited by William Motherwell, sheriff-clerk
of Renfrewshire, is still invaluable to the local antiquary and
genealogist.

LAWYERS' LOGIC 233

Idiom or the French Tongue ; for certainly a Pleader
must use a brisk, smart, and quick Way of speaking ;
whereas the English, who are a grave Nation, use a too
slow and grave Pronunciation, and the French a too soft
and effeminate one. And therefore, I think the English
is fit for Haranguing, the French for Complimenting,
but the Scots for Pleading. Our Pronunciation is like
ourselves, firy, abrupt, sprightly, and bold ; their greatest
Wits being employ 'd at Court, have indeed enrich'd
very much their Language as to Conversation ; but
our's bending themselves to study the Law, the chief
Science in Repute with us, hath much smooth'd our
Language, as to Pleading. . . . Their Language is
invented by Courtiers and may be softer, but our's by
learn'd Men and Men of Business, and so must be more
massy and significant: And for our Pronunciation,
beside what I said formerly of its being more fitted to
the Complexion of our People than the English Accent
is : I cannot but remember them, that the Scots are
thought the Nation under Heaven, who do with most
Ease learn to pronounce best the French, Spanish and
other foreign Languages, and all Nations acknowledge
that they speak the Latin with the most intelligible
Accent; for which no other Reason can be given, but
that our Accent is natural, and has nothing, at least
little, in it that is peculiar. I say this not to asperse
the English, they are a Nation I honour, but to reprove
the petulancy and Malice of some among them, who
think they do their Country good Service when they
reproach our's."

An English lawyer and poet, Abraham Fraunce (d.
1633), was the author of an interesting volume styled The

234 LAWYERS' MERRIMENTS

Lawiers Logike, published at London in 1588. l It is
founded on the work of Ramus, but its illustrations are
drawn from English law, many of them in Norman
French. It is of no value to the practising lawyer, but
the numerous quotations in prose and verse make it
excellent reading. He gives some curious examples of
"unusual and upstart words," as, "he putteth his felicitie
in circumpugnable goods, circumpugnabilibus bonis, meaning
Riches, because men fight about them." 2 When treating
of evidence he refers to " the misdating, rasing, inter-
lyning, adding new letters upon the old, hanging in the
smoke, breaking of y e scale, utter quashing of the print,
heating of the waxe and fastning therof to the Labell
from whence it was once severed, with other such imper-
fections " which "make the deede suspicious." 3 Speaking
of the first rule of Ramus, that is de omni, he says it
" excludeth all false and lame preceptes, which if it were
observed in our lawe, then all repugnant dreames of
Serieantes and Counsailers that serve the time and speake
for money should not runne so currant for good law : nay
euery judgement geuen either without reason, or with
partialitie, should not stand for Justice : euery Semble
should not pass for a sentence, nor euery Dictum fuit,
for a Dictators constitution." 4 He gives the case of
Protagoras and Euathlus as an example of the dilemma. 5

1 The Lawiers Logike, exemplifying the precepts ofLogike by the practise of
the common Lawe, London, 1588, 8vo.

It concludes with a long analysis of the Earl of Northumberland's case
and another of Stanford's Crown pleas.

Fraunce was called to the bar at Gray's Inn, practised for some time
and became an officer of court, but devoted himself largely to literature.

2 /. 26 b. *lb. 7lb. *lb. 89. *Ib. 98 b ; supra, pp. I, 3.

LAWYERS' LOGIC 235

Another lawyer, Zachary Coke of Gray's Inn, applied
himself to logic, and is the author of a treatise in which he
professed to unfold " to the meanest Capacity the Way to
dispute well, and to refute all Fallacies whatsoever." Logic
" is that which (by Grace) recovers us to our Primogenial
condition, unclouds the masqued minde, plows up, and
unseals the depths of Reason, Evolves the hidden ld<eas of
things, and unites the knottinesse of every emergency.
By it are confuse things made Distinct ; Abstruse,
Obvious ; And the Planetick thoughts to act Syncentrick,
and in its sphere. This also rangeth the Pel-met Concep-
tions to Battlia and Order : It unforks Oracles, making
them Toothlesse, turneth into Milk bony Paradoxes, and
Cloudy ^Enigma's to clear Sunshine." There is here a
profusion of the " unusual and upstart words " reprobated
by Fraunce ; but the work as a whole is too diffuse, and
is too much given to minute distinctions to be practically
useful. The etymology of all words, the author remarks,
" is not to be sought, for many words are primitive " ; but
he does not regard his own rule, for he immediately tells
us, World = war-old, "because the older it is, the war or
worse it is." Most of his examples are taken from
practical theology, but he occasionally draws upon ordinary
experience. As an example of what is contingent he gives,
" the rednesse of the evening in respect of the next day's
fair weather, the red lowring of the morning in respect of
rain at evening." He was a Puritan, and dedicates his
book "to the illustrious His Excellency Oliver Cromvvel,
Generalissimo of England, Scotland, and Ireland, Chan-
celour of Oxford, &c. And to The most Renowned his
Generall Councell of Officers," whom he thus addresses :

" Sirs, God hath set you up the Oracles of War, made

236 LAWYERS' MERRIMENTS

you to your Enemies Rocks, dashing them as Waves of
the Sea ; Your Drums, like Zizca's, conquering with
Alarms, the clashing of your Armour terrible as thunder,
your Victories alway as sure as the Rancontre ; Every Field
to bear you new Palms, immense structures to be crowded
with Ensigns and Trophies of your admirable Successes :
But these my Lords, are but Meteors adding Blaze, little
of true Brightnesse : They have an Umbrage of Grandeur,
not a spark or Dram of Glory ; The Enamel of these
Gayeties and Gauds, Sully and soon grow Dusky. It is
your Zeals to the Interest of Heavens affairs, and the
good of Community, that will be the Heralds to blazon
your Escutcheons without stain, and Aggrandize your names

to all Posterity."

* * #

" But that I build not too spatious Gates to my Mynda,
or throw the Fabrick out at the Casements, I only add,
that your Lordships fixing this Land to a happy Tempera-
ment of Justice, and Equity, advancing Letters, and
reforming all things to the standard of the Word, will
render England the Worlds Eutopia, the most Felicitous
of Nations, and having absolved your courses thorow the
Zodiac of praise-worthy actions, you will set laden with
Lustre, and satisfying soulpeace : Treasures of an higher
Carac than the worlds Magnalia ; And the prayers of the
Saints ascending with you, will Petarr your enterances
thorow Heavens Portcullis ; while you scale the Battle-
ments of Glory to perfect your Triumphs, and with
Seraphic Hierarchies chaunt Eternal Trisagions in ravish-
ing Division ; and every Colon and Column of your
lives, quartered with the memory of your Atchievments,
cause your Names (Rivalling with time) to survive on

SEX 237

Earth, perfumed as Incense, and Odorous as a pile of
Spices." l

Exaggerated as this language may now seem, it no
doubt expressed the author's feelings at the time. He
was a godly man, anxious about the purity of doctrine,
and ends his work with the suffrage, " Blessed be God."

SEX.

The magistrates driving away women who desire to
hold civil office is curiously like the scenes now being
enacted, in which the Prime Minister drives out the
suffragettes, who desire votes.

lege dura uiuont mulieres,
Multoque iniquiore miserae, quam viri. 2

1 The Art of Loglck, London, 1654, 8vo ; Ib. 1657, 8vo, "the Second
edition corrected and amended."

1 have a copy of the second edition, and also a copy of Fraunce's book.
Both are referred to by the late Professor Baynes, An Essay on the new
Analytic of logical forms, pp. 6, 23, 24, 64, 108, 109, Edinburgh, 1850.

Sir William Hamilton, Professor of Logic and Metaphysics in the
University of Edinburgh, it will be remembered, was a member of the
Faculty of Advocates, and had some practice in teind cases.

Johann Heumann von Teutschenbrunn (i 71 1-60), professor at Altdorf,
has a chapter (c. 27) on logic in his Apparatus ] urisprudentiae literarius, ed.
Siebenkees, Norimb., 1780, 8vo, but it is of little use to the law student.

Just Henning Boehmer (1674-1749), the well-known writer on
Protestant canon law, was the author of Methodus disputandi et conscribendi
Disfutationes juridicas, Halae, 1730, 8vo, 2nd ed., in which he pro-
pounded some novel views upon the subject, but as disputations are
now out of date, the best method of arranging one's argument for such a
purpose hardly concerns us.

Method in presenting an argument in a court of law was dealt with
by H. de Saint-Albion, Logique judiciaire, ou Tralte des arguments /egaux,
Paris, 1841, i2mo, 2nd ed.

2 Plautus, Mercator, v. 817

238 LAWYERS' MERRIMENTS

Antonio de Sousa de Macedo (1606-82), doctor of the
civil law, professor in the University of Coimbra, and
secretary to the Portuguese legation to the court of Charles
I., was an industrious author, and, amongst other books,
wrote Perfectus Doctor? in which he treats of all matters
pertaining to that title. It is dedicated to the Blessed
Virgin, but notwithstanding that he addresses her as the
Queen of Doctors (Regina Doctorum\ he is not over
complimentary to the female sex. In his chapter entitled
"Sex," he says that women are unfitted for learning
because, in accordance with the tenets of the humoral
pathology, they have too much moisture, 2 which obstructs
the intelligence, although it promotes prudence, with
which they are well endowed. They can learn nothing
but a little Latin, and that by rote; their counsel is weak,
frail and infirm. He admits, however, that there is
another side to the question, and that Cassaneus praises
women for their wisdom and sound counsel, and mentions
that many have excelled in learning. He falls back,
nevertheless, upon the text illustrated by Buno that women
are debarred from all public offices; they cannot act as
magistrates or judges, they cannot plead ; they cannot be

1 Perfectus Doctor, Londini (Rich. Hearn), 1643, 410; and also
Amstelodami (Gul. Jansen), 1643, 410; with commendatory verses in
Latin by Henry Glapthorne, the dramatist.

Sousa's Lusitania liberata was published at London, 1645, fol.

2 " From moisture, it is hard to know what difference of wit may
spring, sithens it is so far contrary to the reasonable facultie. At least
(after Galen's opinion) all the humours of our body, which hold over-
much moisture make a man blockish and foolish," Juan de Dios Huarte
Navarro, Examen de Ingenios. The Examination of Mem Wits. . . .
Englished by R. C., p. 60, London, 1594, 4to.

SEX 239

guardians. Hence, he concludes, learning would be of no
use to them. 1

There is nothing new under the sun ; and it is possible
that Buno's group may represent a contemporary phase of
the question now so prominent. Votes for women and
their right to participate in the administration of affairs
were discussed in the early part of the eighteenth century,
as they are to-day. In a curious German book, by the
Jesuit Franz Callenbach, Puer centum Annorum? or " News
to all grown-up persons of both sexes of the busy world
lying before their eyes and daily enacting a child's play,"

1 Perfectus Doctor, p. 7 sqq.

2 Puer centum Annorum sive Heteroclitus repuerascentis mundi Genius, Der
vor Augen liegend-handel- und wandlenden Welt tagllch anhaltendes Kinder-
Spiehl. Allen in Jahren erwachsenen beyderky Geschlechti was Stands sie auch
seynd zu trewmeynender Nachricht . . . Im Jahr da die Welt alt und kindisch
war, /./. aut a., pp. 144, 8vo. In my copy a former owner has noted
the date as 1640, but I do not know upon what authority. It is,
however, some seventy years too early, as the author's publications
appeared in the second decennium of the eighteenth century. FlSgel,
Geschichte der komischen Litteratur, iii. p. 459.

In his Genealogia Nisibitarum or genealogy of the ancient family of
" Nisi," he thus speaks of the lawyer :

Wann der Doctor Jurium,

Halt Privat-Collegium,
Nisi sitzt in Folio,

Non invito Domino.
Instituta seynd wohl gut,
Jura machen guten Muth,
Nisi selbst zur Rechten sitzt,

Nichts als Interesse schwitzt.

Nisi professes every doctrine ; he is prominent at elections :
Nisi ist Ubiquitist,

Molinist und Pietist,

2 4 o LAWYERS' MERRIMENTS

there is a dialogue amongst the members of a college of
councillors (Rath-Collegium] a bench of judges, we might
say in which a lady, Lucretia, is introduced.

Seeing that less weight is being attributed to the
books of law than formerly, she hopes that she may yet
become a Rftthin or Councilloress. Papirius replies that
their college (collegium) * the bench would be happy
to be supported by such a member. The point
has, however, been taken whether it would be advan-
tageous to allow a Vote and a Seat (Fotum, Session} to
women in a body of councillors ; although he would
support it, as the body (corpus) would be more perfect
if composed of both sexes. A question has been raised
as to the ability of a woman to keep a secret, and secrecy
is the soul of a councillor ; but the granting to them of
the acts consulendo, recommenando, and even dirigendo, that
is, of counselling, recommending, and directing, has been
attended with so much success that we may go further.

Lucretia interjects : " Hence it comes that in things
concerning our sex no one would more surely direct our
votum or vote than we ourselves. Without presumption
be it said, I have composed, corrected, penned the votum

Nisi sich mit Kunstgriff nehrt

Die er in den Schulen lehrt.
Nisi os Capituli,

In Electionibus
Habet jus suffragii

In Decisionibus.

Genealogla Nisibitarum, den uralten Nisi-Sfamm-Saum Geburtks-
Br'u/[iji$\ 8vo.

1 German tribunals were composed of permanent colleges (collegia).
In Scotland we have "the College of Justice." A judge of the Court
of Session is a " Senator of the College of Justice."

SEX 241

or judgment of many men, so that many a time the
conclusion was known before the matter was formally
put as a proposition. One who has thus placed con-
fidence in my humble self asks counsel of me." 1

Almachius would likewise have no objection to grant
the vote. Within a few years, he adds, the sex has been
mixed up in the administration of affairs of state, of war
and peace, so that through much practice they have
qualified themselves in all ways. Women are therefore
no longer to be excluded under the excuse of inherent
weakness and consequent incapacity. If then they were
excluded, contrary to their expectation, they would
nevertheless quovis modo ob et subreptitie that is, in
some manner and surreptitiously get in, and perhaps
be more troublesome through resentment at their
treatment.

Writing in 1509, Cornelius von Nettesheim expresses
himself to the like effect :

" From what hath been said, appears conspicuously,
as if written with Sunbeams on a Wall of Chrystal, That
this Sex are not incapable of, nor were in the primitive
and more innocent Ages of the World, debarred from
managing the most arduous or difficult affairs, till the
tyranny of Men usurpt the dispose of all business, and
unjust Laws, foolish Customes, and an ill mode of education,
retrench! their liberties. For now a Woman (as if she
were only the passtime of Mens idle hours, or a thing

1 Joannes Andreae (d. 1 348), the great canonist of Bologna, mentions
that he was much indebted to his wife, Milancia, for assisting him in
solving difficult questions of law. Bayle, Dictionnaire, s.v. Andre ;
Savigny, Geschichte des romischen Rechts in Mittelalter, vi. p. 96.
Macchiavelli, Bitisia Gozzadina, No. 137. Infra, p. 245.

242 LAWYERS' MERRIMENTS

made meerly for trifling Courtiers to throw away their
#o#-sensical Complements on) is from her Cradle kept
at home ; and as incapable of any nobler imployment,
suffered only to knit, spin, or practise the little curiosities
of the Needle. And when she arrives at riper years, is
delivered to the tyranny of a jealous-pated Husband,
or cloistered up in a Nunnery ; all publick Offices
are denied them ; implead, or sue at Law in their
own Names, though never so prudent, they must
not ; no Jurisdiction they can exercise ; nor make
any Contract that is valid without their Husbands
license ; and several other hard Impositions they have
laid on them. 1

" By which unworthy, partial means, they are forc'd
to give place to Men, and like wretched Captives
overcome in War, submit to their insulting Conquerors,

1 These are the ordinary disqualifications. Joachim Wibel ( 1 594- 1653),
professor of civil law in the University of Tubingen, discusses the
limitations imposed upon the sex, in reference to contracts, De contractibui
Mulierum, c. i. p. 4 sqq. y Stuttgardiae, 1656, 410. He states the law of
a great number of countries, and, amongst others, of Scotland, Ib. 70,
p. 19, founding on Regiam Majestatem, ed. Skene, i. c. 30, No. 6 ; ii. c.
36, No. 47.

Wibel's book was founded on his inaugural disquisition, De juribus
Mulierum. After the disastrous battle of NOrdlingen, 6th September,
1634, in which the Protestant party was defeated by the Roman
Catholics and Imperialists, the country was reduced to famine, and the
University closed. Wibel occupied himself in expanding his Dis-
quisition, but died at the then fashionable spa of Schwalbach before it
was completed. It was published after his death by Johann Wyrichl
ROsslin, printer in Stuttgart.

As to the necessity for a vindication of the rights of women,
see Janssen, History of the German People, xii. p. 210, London,
1907, 8vo.

SEX 243

not out of any natural or divine reason, or necessity,
but only by the prevalency of Custome, Education,
Chance^ or some tyrannical occasion : yet might
Womens excellent good natures possibly perswade
them calmly to undergo this servitude, did not the
male-usurpers adde shame and reproach to their tyranny.
But as all slavery is miserable in the account of generous
minds, so that which comes accompanied with scorn and
contempt , stirs every ones indignation, and can be
endur'd by none whom Nature does not intend for
slaves as well as Fortune" x

1 Henry Cornelius Agrippa, Female Pre-eminence. . . . Done info
English, by H. C., p. 76, London, 1670, izmo. The translator was
Henry Care (1646-88), a busy writer in his day. The translation is
dedicated to Queen Katherine.

Ruy Gon9alves dedicated his work of a like character (supra, p. 163)
to Queen Catherine, widow of John III. of Portugal, and grandmother
and guardian of King Sebastian, the reigning sovereign.

The original of Agrippa's work, De Nobilitate et Preecellentia Fceminei
Sexus, was written in 1509, but was not published until 1532 ; Morley,
The Life of Henry Cornelius Agrippa von Nettesheim, i. p. 98, London,
1856, 8vo.

There is an English poetical version by H. C., The Glory of Women ;
or a Looking-Glasse for Ladies. . . . Translated into English prose, but now
turned into heroicall Verse, by H. C., Gent., London, 1652, I2mo. It is
dedicated to " the truely vertuous and beautifull Gentlewoman, Mrs.
Elizabeth Crompton." H. C. has been taken (British Museum Catalogue]
to be, in this case, Henry Care, but the initials would seem to be those
of the unfortunate Hugh Crompton. The dedication is signed " Your
faithfull friend and kinsman, H. C." His Poems, London, 1657, 121110,
are dedicated to Colonell Tho. Crompton, and the dedication concludes,
" Your loyall kinsman and servant, Hugh Crompton."

The prose translation referred to was probably that by Edward
Fleetwood, London, 1652, 410. H. C. had seen it only in manu-
script.

244 LAWYERS' MERRIMENTS

DOCTORS OF LAWS.

There is no doubt much truth in Agrippa's view.
There has been a considerable deal of jealousy of women
who desire to prosecute any vocation commonly appro-
priated to men, and many obstacles have been placed in
the way of those who seek to elevate the position of
women and to enlarge the scope of their activities. 1 It
was perilous, it was said, to marry an erudite woman,
a woman who could calculate the epact of the moon,
or read Callus 2 or Les Evangiles des quenouilles* was to
be avoided, and if she could write there was sure
to be mischief. A learned woman was thought to be
ambitious of ruling her husband and family. 4 Can
a woman be made a doctor ? is one of the questions put
by Pierre Lesnauderie or de les Nautere, in Latin, Petrus

1 See J. W. Koenig, Disputatio de differentiis utriusque Sexus In iure,
Argent., 1664, 410.

2 Alexander Gallus or Alexander de Villa Dei, the grammarian.

3 Les euanglles des connoilles faltes a Fhonneur et exaulsement des dames,
lesquels traitent de plusieurs chases ioyeuses, raconties par plusieurs dames
assembles pour filer durant six journees, was printed repeatedly in the
fifteenth century and often afterwards. There was a recent and excellent
edition, Paris, 1855, i6mo.

Translated into English under the title The Gospelles of Dystaues, and
*' Enprynted at London in Flete strete at the Sygne of the sonne by Wynkyn
de Worde" 410, 60 leaves, n.d. Bibliotheca Heberiana, viii. No. 994.

From the book comes the expression " Suivre 1'Evangile des que-
nouilles" = to exhibit oneself subject to the will of his wife.

4 Nevizzano, Sylva nuptialis, lib. ii. No. 101. Infra, p. 264.

Nevizzano had no great opinion of women. He was mobbed by the
ladies of Piedmont, by whose influence his book was placed upon the
Index. On the other side, Fran9ois de Billon wrote Le Fort inexpugnable
de rhonneur du sexe feminine, Paris 1555, 4to ; and again Ib. 1564, 410.

DOCTORS OF LAWS 245

Lenauderus, a doctor of laws and regent in the University
of Caen, in his work on the privileges of doctors. 1 His
reply is in the negative ; but other writers have taken
a different view, 2 and there have been many women
proficient in law, as in other branches of science.

A daughter of Accursius, the advocates' idol (Advoca-
torum idolus\ the greatest of the glossators, 3 is said to

1 De Doctonbus et privilegiis eorum, Paris (Franc. Regnault), 1516, 8vo ;
reprinted in vol. xviii. p. 4 of that wonderful storehouse of law the Tractatus
univeni Juris, edited by Francesco Ziletti, under the auspices of Pope
Gregory XIII., and published at Venice in 1584-86 in 28 volumes folio.
A similar collection had been published at Lyons in 9 volumes folio in
1535 under the title Tractatus doctorum Juris, or more popularly Oceanus
Juris; and another at the same place in 1549, in 18 volumes folio,
under the title Tractatus tractatuum Juris. Both of these titles are often
applied to the collection of 1584. It contains 715 legal treatises on a
great variety of subjects, arranged according to the order of the Pandects.

2 C. A. Macchiavelli, Bitisia Gozzadina, seu De Mulierum doctoratu
apologetica, legalis historica Dissertatio, Bononiae, 1722, 410; a medal
bearing her likeness is prefixed. This is a quarto volume of 100 pages,
treating very fully of the doctorate for women. It was followed by
Andreas Westphal, De doctoratu Mulierum, Gryphisvaldae, 1734, 410.

8 Rabelais through Pantagruel (ii. c. 5) pokes fun at the gloss of
Accursius. Pantagruel studied a good long time at Bourges, " and profited
very much in the Faculty of Laws ; and would sometimes say, that Law-
Books were like a wonderful rich Cloth of Gold, edg'd with Fur ; for in
the World are no goodlier Books to be seen, more ornate, or more
eloquent than the Texts of the Pandects ; but the bordering of them,
that is to say the Gloss of Accursius is so vile, mean, and scandalous that
it is nothing but dirt."

Albericus Gentilis attributes to Accursius the saying, Graecum est,
non potest legi, but this is probably a slander. Bartolus, another great
glossator, is said to be the author of the saying, De verbibus non curat
Jurisconsu/tus. Rabelais (ii. c. 10) is quite as disrespectful towards him
as he is of Accursius. " How would these old dotards be able to under-

246 LAWYERS' MERRIMENTS

have taught Civil law publicly in Bologna. 1 Milancia,
the wife of Joannes Andreae, the famous canonist (fons
et tuba juris canonici), assisted him in his law studies. 2
Their daugher Novella (b. 1312), was an erudite lawyer,
and took her father's place in the lecture room, if he
chanced to be absent, and expounded the Decretum and

stand aright the text of the Laws ; who never in their time had looked upon
a good Latin book ? As doth evidently enough appear by the rudeness
of their style ; which is fitter for a chimney-sweeper, a cook or a scullion,
than for a Juris-consult and Doctor in the Laws." One of the books in
the library of Saint Victor was (Ib. ii. c. 7) Praeclar'urimi juris utriusque
doctor'n Maistre Pilloti Raquedenari, De bobelinandis glosse Accursiane
baguenandis Repetitio enucidiluculidissima, that is, "A most unravelled
Repetition on pricking the bladders of the gloss of Accursius, by the
most illustrious doctor of laws, Master Pilferer Catchpenny."

On the other hand, the Emperor Charles IV. conferred upon Bartolus
and all his descendants who should be professors of law the right to
legitimize any of their students who should be bastards, and to relieve
them from the disqualifications of minority. Lauterbach, Tractatus novus
de armis et literis, No. 141, 142, Witebergae, 1595, 410.

His opinion had so much weight with a court of law that the
expressions, plus resolu que Bartole and resolu comme un Bartole, were
proverbial. Cf. Sousa de Macedo, Perfectus Doctor, p. 92.

1 Panzirolus, De claris legum Interpretibus, p. 120. The statement is
based on an on dit of Albericus de Rosate on the Infortiatum, f. 82,
Lugd. 1545, and cannot be regarded as conclusive. See Bayle, Diction-
naire, s.v. Accurse ; Savigny, Geschichte des romischen Rechts im Mittelalter,
v. p. 247 ; Hugo, Geschichte des rb'mischen Rechts selt Justinian, iii. p. 147.
Macchiavelli, Op. laud. No. 134, deals fully with the matter.

Franciscus, the eldest son of Accursius, was a lawyer in Bologna. In
1273 Edward I. of England, on his return from the Holy Land, passed
through Bologna, made the acquaintance of Franciscus and took him
into his employment, and provided him with free quarters in the
King's manor house at Oxford, i.e. Beaumont Palace. He is mentioned
by Dante, Inferno, canto xv.

2 Supra, p. 241.

DOCTORS OF LAWS 247

Decretals to his students. 1 Her father entitled his greatest
work, his Commentary on the Decretals, Novellae, in her
honour. She became the wife of Johannes Calderinus,
an eminent counsellor (juris consultus consummatissimus}?
and often assisted him in advising cases. The most
brilliant of all was Bitizia Gozzadini (1500-46), daughter
of a noble of Bologna, who was created J.U.D. (Juris
utriusque doctrix) at Bologna, and lectured first privately
and afterwards publicly upon the Institutes of Justinian. 3

Queen Elizabeth addressed the University of Cam-
bridge in Latin, after being informed that nothing was
allowed to be said openly to that learned body in
English. 4

Notwithstanding the ungracious remark of Sousa, or
rather of his authority Huarte, 5 for like most old
writers he never makes a remark of his own if he can

1 Macchiavelli, Op. laud. Nos. 140, 141, 142. The statement rests on
the authority of Christine de Pisan in his Cite des Dames, ii. c. 36,
Paris, 1 536. His father was a Bolognese and contemporary with Joannes
Andreae.

Bettina, another daughter, is said to have been equally erudite and
helpful. Olivier de Coste (Father Hilarion), a Minim, Les Eloges et Vies
. . . des Dames . . . illustres en piete, en courage et en doctrine, i. pt. 3,
p. 522, Paris, 1647, 410. First edition, ib. 1630, 410.

2 A doctor of laws when he commenced to lecture (legere) was styled
clarissimus, Nevizzano, Sylva nuptialis, lib. v. No. 36. See Andreas
Florentin Rivinus, professor of law at Wittenberg, Programma : Unde
Doc tores juris consultissimi vocentur, Viteb., 1 746, 410.

8 C. A. Macchiavelli, Op. laud. Nos. 10, 21, 129 ; Hilarion de Coste,
Op. laud. i. pt. 3, p. 526.

4 Note by Professor Andrew Amos to Fortescue, De laudlbus legum
Angliae, p. 182, Cincinnati, 1874, 8vo.

5 Examen de Ingenios, p. 286.

248 LAWYERS' MERRIMENTS

borrow it from a predecessor many women have written
and spoken excellent Latin. Maria Gaetana d' Agnesi
(1718-99), the celebrated mathematician, vindicated the
right of women to a liberal education in an eloquent
oration, couched in classical Latinity. 1 She afterwards
became professor of mathematics and philosophy in the
University of Bologna, and was so eminent as a linguist
that she was known as the walking Polyglot.

Elizabeth Elstob (1683-1756), the Anglo-Saxon
scholar, was not a student of law, but she was an expert
palaeographer and skilled in diplomatics, 2 a subject inti-
mately related to law and nowadays deemed peculiarly
suitable for women.

Many years ago, at the annual meeting of Queen
Margaret College, I suggested the practice of the law,
more particularly conveyancing, as a suitable profession
for women. Principal Caird had doubts upon the subject,
but women are now engaged in every department of law,
and the University of Glasgow, like almost every other,
has many women doctors of laws. Miss Janet Ann
Galloway (d. 1909), the honorary secretary of Queen
Margaret College, was created LL.D., as were also Mrs.
Isabella Elder (d. 1905), and Mrs. Jessie Campbell of

1 The Oratio is found in Discorsi accademici, . . . intorno agll itudj delle
Donne, Padova, 1729, 8vo.

Her Imtituzioni analitiche, Milano, 1 748, 4to, 2 vols., were translated
into English by Rev. John Colson, Lucasian professor of mathematics
in the University of Cambridge, and published, London, 1801, 410,
2 vols.

2 D. E. Baring, Clavls diplomatica, p. 37, Hanoverae, 1754, 4 to -
From a statement on pp. 35, 36, it would seem that Baring visited
England, and was probably introduced to Miss Elstob. J. G. Eccard,
the antiquary, was amongst her correspondents.

. . .

ttj >.

v "

DOCTORS OF LAWS 249

Tullichewan (d. 1907), two of its founders, while Miss
Frances H. Melville, its present head, is M.A. and B.D.

The title "doctor" was at first appropriated to the
Faculty of Law, and originated at Bologna ; now we
have doctors of theology, doctors of medicine, doctors
of philosophy and others. A doctor legis was a doctor of
civil law ; doctor decretorum or in decretis^ a doctor of the
canon law ; doctor utriusque juris or doctor tegum, a doctor
of both laws, that is the civil and the canon law. A
doctor of laws was entitled to many privileges, and in the
Middle Ages was considered tanquam nobilis. A countess
might marry him without loss of caste. He was entitled
to bear arms, and on his shield of arms to have the
vizor of his helmet raised. 1 He had right to be seated
in presence of a judge or magistrate. 2 " Doctors," it is
said, " are stars abiding to all eternity ; they shine as
the brightness of the firmament ; they are the foundations
of the church militant in the holy mountains ; they are
like burning lamps which shine above the candlestick in
the house of the Lord." 3

1 C. P. Richter, Expositio Auth. Habita, v. No. 9, p. 93.

2 Lauterbach, Tractatus novus de armis et literis, No. 130 ; Halbritter,
De privilegiis Doctorum, p. 22 ; Stephani, Tractatus de Habilitate, No. 8.

3 This is quoted by Sousa de Macedo, Perfectus Doctor, p. 40, from
Petrus de Ubaldis of Perugia (d. 1420), Consistorial Advocate at Rome,
Super Canonica Episcopal! et parochiale portione, in Praefat. No. i, a treatise
which the curious reader will find in Tractatus Universi Juris, vol. xv.
part 2, p. 198, but which was first printed in the latter part of the
fifteenth century, s.l.a. ettyp. but presumably at Rome; and again in
1474 by Hans. Aurl, thought to have been at Rome.

The saying was a favourite one, and is quoted by Matthias Stephani,
Tractatio de nobilitate scientiae . . . et privilegiis Doctorum, No. 4, from
Magister Coler, that is Matthias Coler (1530-87), professor of law at
Jena, De processibus executivis in causis civilibus, p. i, cap. 6, No. 132.

250 LAWYERS' MERRIMENTS

After a doctor had lectured for twenty years he became
illustrious the title of a king's councillor. 1 Bartolus says
" a doctor regenting in the civil law during the space of
two years, ipso facto, becomes a knight," 2 and the ex-
pression Knight of the law (miles legalis or miles literatus]
was a common one. Matthew Paris refers to Henry of
Bath, the Justiciar and special councillor of the king, as
miles literatus legum terrae peritissimus : and gives the
same title to Robert de la Ho, to whom the king
had entrusted the guardianship of the Jews and of his
seal pertaining to the exchequer of the Jews. 3 The
corresponding French term was Chevalier-en-loix or
dominus legum. Froissart speaks of the death of three
knights : " le deux d'Armes et le tiers de Loix." We
have a charter of 1456 subscribed "Jean de Luirieux,
docteur en loix, chevalier," and we meet with the synony-
mous expression, u Chevaliers de Lectures." 4 The pre-
cedence attaching to a doctor has in this country and in
England been conferred on the mere court practitioner,
an advocate or barrister, although possessed of no degree
in law at all. 5 Laud, however, obtained of Charles I.,

1 Nevizzano, Sylva nupttalis, lib. v. No. 36.

2 Code (x. 52), de Professoribus, ad. leg. i.

3 Chronica Majora, v. pp. 213, 245, ed. Luard.

4 Du Cange, Glossarium, s.v. Miles literatus.

5 " There is scarce to be found, throughout the kingdom, an eminent
lawyer, who is not a gentleman of birth and fortune ; consequently they
have a greater regard for their character and honour than those who are
lord in another way." Fortescue, De laudibus legum Angliae, by Gregor
and Amos, p. 191, Cincinnati, 1874, 8vo. The "Considerations de-
livered to the Parliament, 1559," proposed 9, "That none study the
laws, temporal or civil, except he be immediately descended from a

DOCTORS OF LAWS 251

that the Masters of the Requests, and also eight Masters
of Chancery, should all be Doctors of the Civil Law. 1

The degree of doctor of laws has always been popular
in Germany, and the crowds of candidates for the honour
are responsible for the extensive literature we have of
Dissertations and Disquisitions upon legal subjects. Some
of these aspirants, desiring to escape from the beaten path,
sought out unusual subjects for treatment, or treated com-
mon subjects in an unusual way, and produced the whim-
sical dissertations to which reference has been made. 2 The
doctorate itself did not escape such treatment. Does the
title of doctor really ennoble the man who holds it ? was

nobleman or gentleman, for they are the entries to rule and government,
and generation is the chiefest foundation of inclination." Calendar of
MSB. of the Marquis of Salisbury, Part i., p. 163 (Historical MSS. Com-
mission) ; Order of King James in 1603. Dugdale, Origines Jurldlclales,
p. 316, London, i67i,fol. In an order in 1614 by our Sovereign Lord
King James, and of Scotland the 48th, Attorneys and Solicitors were
excluded from the Inns of Court as being but " ministerial persons and
of an inferior nature." Ib. p. 317. The exclusion still exists, although
the alleged ground for it, if it ever did exist, has long ceased to do so.
Francesco Osio, a lawyer of Milan, protested against it, and maintained
the nobility of Notaries, Dlssertatlo subfeciva ad L. non aliter ff. de adopt,
Mediolani, 1636. Barbatias styles procurators, positivi doctores.

It was at one time held that a doctor of laws could not be a
procurator, because the office was mean ; but later, the office was
esteemed honourable and could be held by a doctor. Halbritter, De
prlvlleglls Doctorum, pp. 6, 7 ; Stephani, Tractatio de nobllltate Suentiae,
No. 6.

1 Note by Professor Andrew Amos to Fortescue, Op. laud., p. 129.
Cf. Ib. 182-83.

2 Supra, p. 121. Heinrich von Coceji has Exercitationes curlosae,
Lemgouiae, 1722, 4to, 2 vols., but this was a serious work like
Hargrave's Jurisconsult Exer citations, London, 1811-12, 410, 3 vols.

252 LAWYERS' MERRIMENTS

the subject of an oration by Wolfgang Gruning (1562-1615)
of Hirschfeld in Hesse, a doctor of Basel and professor of
law at Erfurt. 1 Abraham Kaestner (d. 1747), professor
first at Helmstadt and afterwards at Leipzig, next raised
the question whether the degree of doctor liberated a son
from the patria potestas ? 2 But whatever might be the
status of the doctor, Professor Heinrich Ernst Kestner
(1671-1723), of Rinteln, maintained, in an oration at
a creation of graduates, that the doctor of laws was
essential to the well-being of the State. 3 Others took a
different view, 4 but the State nevertheless accorded various
privileges to the doctors. 5

These are detailed at length by many writers. A
doctor could not be put to the torture if accused of crime.
If he was convicted, his punishment was less than that of
an ordinary person. If a doctor and two others are
together, and one of the latter is killed, it will be presumed

1 Quaesfio utrum gradus ac titulus Doctoris hominem nobilem dedeceat, nee
ne? Erfurt, 1599, 4-to; Spirae, 1618, 410. This was followed by
Arnold Rayger, Oratio de Problemate, utrum dignitas Doctoralis, aut alterius
gradus assumtio, dedecoret, aut obfuscet, generis nobilitatem? Francof., 1600,
4to; and later J. D. Fregismont published Discursus . . . de Doctorum
dlgnitate, nobilitate priuilegiis et praeeminentia, Salisb., 1673, I2mo.

2 Programma, An dignitas Doctoralis filium a patria potestate liberet ?
Lipsiae, 1723, 410.

3 Oratio, ostendens Quod nulla respublica absque Doc tore iuris subsistere
possit? Rint., 1715, 410. Also in his Parerga, p. 83, Ib. 1717, 410.

As to Kestner, see supra, p. 185.

4 C. P. Loescher, De periculo simul et incommodis Doctoratus iuridici,
Vinariae, 1719, 4to ; De praerogativis Doctorum juris, prae aliarum
facultatum supremis gradibus, Ib. 1720, 410.

5 Johann Halbritter (1568-1627), Professor of Law at Tubingen,
Oratio, De privileges Doctorum, Ttibingae, 1604, 8vo.

DOCTORS OF LAWS 253

that the doctor did not do it. A doctor is not liable to be
mulcted in expenses if a law plea is decided against him :
subject to this qualification that inasmuch as the title of
doctor can be obtained in a university on the payment of
fees, and there is consequently an infinity of little doctors
(doctorelli), the privilege holds good only if the doctor be
a consultant and unites erudition with a knowledge of
the law. If one of a number of coheirs be a doctor he is
entitled to the custody of the will. The sons of doctors
don't pay examination fees, and take precedence of their
equals. Doctors may lawfully carry arms, although it
may not be lawful for others to do so. Scholars and
students are bound to supply meals to needy doctors and
teachers. Doctors are free of all personal and patrimonial
burdens. A doctor is entitled to have a blacksmith or
other person who makes a noise in the street removed, so
that he may pursue his studies in peace and silence. 1 It is
illegal to build beside schools and lecture rooms so as to
interfere with their light, although the site has no servi-
tude of light. Doctors and their wives are entitled to
wear chains and rings of gold, a privilege not accorded
to all nobles, but only to those possessed of a large
fortune.

This abstract is taken from a small book by Matthias

1 Sir George Mackenzie, Pleadings in some remarkable Cases, p. 37,
Edinburgh, 1673, 410, refers to a case mentioned by Expilly (supra, p.
1 1 6) of an advocate at Grenoble who " did pursue a Smith to transport
his Forge from the Chief-street, because it did by its noise disturb not
only him, but the people who frequented that street," in which the court
refused the application and absolved the smith.

It is not said that the advocate was a doctor, and if he were the
application was not founded upon the privilege above mentioned, as it
was made on behalf of all who frequented the street.

254 LAWYERS' MERRIMENTS

Stephani (1576-1646) a doctor of laws and professor of
law in the university of Greifswald, on the privileges,
prerogatives and immunities of doctors. 1 It is, however,
pretty much an abridgment of the work of Halbritter
above mentioned, 2 who again was preceded in the same
field by Petrus de Lesnauderie, already mentioned,
Giovanni Nevizzano, 3 Johann Lauterbach of Noscowitz, 4
Christoph Philipp Richter (1602-73) count palatine and
professor at Jena, 5 and others; and was followed by
Christoph Besoldus (1577-1638) professor at Tubingen,
afterwards at Ingolstadt, 6 and by Loescher 7 and Kem-
merich. 8

1 Tractatio de nobilitate Scientiae she literaria y de privilegiis, praeroga-
tivis, ff immunitatibus Doctorum, Gryphiswald., 1613, izmo.

2 Supra, p. 252. 3 Infra, p. 264.

4 Tractatus novus de Arm'is et Literis, Witebergae, 1595, 410.

5 Expositio Authenticae Habita C. Ne filius pro patre, en quo statu, jure
atque privilegiis Literatorum agitur, Jena, 1647, 410; again, Wittenbergae,
1679, 4 to.

This is a collection of seven Disputations on this Constitution. It is
a bulky, badly printed book, but a good Index helps to ascertain its
contents.

The Constitution " Habita " of the Emperor Frederick I. in the year
1158, is appended to the title iv. 13 of the Code Nejilius pro patre, and
was made the subject of many disquisitions on privileges.

6 Dissertatio de Studiosis, magistris, licentiatis, doctoribus et eorum privilegiis
et immunitatibus, Tubingae, 1631, izmo.

After the defeat of the Protestant party at Nordlingen and the occu-
pation of Wtirtemberg by the Imperialists he declared himself a Roman
Catholic and retired to Ingolstadt, where he was provided with a chair.
He had, however, been contemplating the change of faith since 1630.
He was a most voluminous author.

7 Supra, p. 252.

8 D. H. Kemmerich (1677-1745), Programma, An et quosque Doctores
iuris immunitate gaudeant a muneribus civilibut? Vitenb., 1724, 410.

DOCTORS OF LAWS 255

Professor Jakob Born (1638-1709) of Leipzig, and
Privy Councillor of Dresden, suggested a question which
might well cause alarm to the Universities : Can a
Law Faculty, which has created doctor a raw and
uninstructed candidate, be sued for damages by the
clients whose cases he has bungled when they have no
other relief ? * No liability may attach to a Law Faculty
or to the University, but if it could be imposed on the
Treasury through the courts of law which admit ignorant
and untrustworthy lawyers to practice, the nequitia advoca-
torum of which we hear would soon disappear.

Is it nequitia for a doctor to study and to draw papers
on feriat days (diebus feriatis\ the most notable of which
in our calendar is Sunday ? This was answered in the
affirmative. But is it allowable for a doctor to give advice
on such days ? The canonists considered the point, and
concluded that it is so in the case of litigants (forenses)
who are in a hostel, but the doctor ought to make a
donation to the funds of the charity. 2

RECREATIONS OF LAWYERS.

Johann Heumann von Teutschenbrunn (1711-60), an
erudite German lawyer and professor at Altdorf, published
a literary guide to Jurisprudence, in which he gives a

1 Programma super quaestion<z, An Facultas iuridica quae Doctorem rudem
et imperitum creavit, a clientibus, quorum causas per tmperltiam et inscitiam
perdidit, si alio remedio illis wccurri nequeat, actione pulsari queat ? Lipsiae,

1678, 410.

He also wrote Programma, De promotions per saltum, 1684, 410, edited
by C. U. Grupen and published with Peter Muller, Tractatio iuridica
de gradu Doctoris, Jenae, 1715, 410.

2 Sousa de Macedo, Perfectus Doctor, p. 69.

256 LAWYERS' MERRIMENTS

selected list of books bearing upon every subject required
for the training of an accomplished lawyer. 1 In the last
paragraph the four hundred and eighth he says, " I do
not explain what amount of leisure is to be given to
games (aha] ; because I consider as lost whatever time is
not devoted to study." If he had gaming or gambling in
view no one would venture to suggest that this is a
suitable occupation for a lawyer's leisure, but, as the list of
books appended to the paragraph 2 includes such innocent
and cultured pastime as chess, 3 the golf and tennis of
the present day would no doubt have been considered
equally objectionable, 4 while bridge would have been
classed with the scurrilitas aleae^ which forms the subject

1 Apparatus jurisprudentiae literarius, Norimbergae I752,8vo. ; Ib, 1780,
8vo, 2nd edition, enlarged and improved by Johann Christian Siebenkies,
professor at Altdorf.

2 The books are more curious than useful, but include the ( Bibliotheca
luioria of Heinrich Jonathan Clodius (d. 1767), librarian at Dresden,
Lipsiae, 1761, 8vo, which has not yet been superseded.

The list indicates that the benefit to be derived from games, and their
position from a legal standpoint, were being discussed in the eighteenth,
as they are in the twentieth century.

Antonius Massa of Galese, in the neighbourhood of Rome, wrote,
Libri III. de exercltatione Jurisperitorum, Romae [1550], 410. This,
however, is a treatise on mental not physical training, and was in
its day a useful introduction to the study of the law. It passed through
several editions, and was reprinted in Tractatus Universi Juris, vol. i. p. 168.

The presentation copy of the original edition to Pope Julius III.,
to whom it is dedicated, is in the British Museum.

3 Thomas Actius, that is Tommaso Azzio, of Fossombrone in Urbino,
wrote De Ludo Scacchorum in legali methodo Tractatus, Pisauri, 1583, 410.

4 Sir Edward Coke found recreation in a game at bowls ; but a
football match would be excluded, according to Sousa de Macedo,
who says that the looking on at games, especially where there is a crowd,
is not becoming in a doctor of laws. Terfectus Doctor, p. 24.

RECREATION
From Decretum Gra.tia.ni, Venetiis, 1514

RECREATIONS OF LAWYERS 257

of one of the dissertations of Augustin von Leyser (1683-
1752), professor of law at Wittenberg. The dictum that
the only true recreation of the lawyer is in study, is not
to be [taken literally, as the chapter in which it occurs
relates to the pastimes of polite society (de exercitationibus
humanitatis petitions), amongst which are enumerated
horsemanship, strategy, hunting, painting, dancing, carving
and manners at table (an secandi escas)? a knowledge of
the arts and sciences, and travel. These are similar to the
recreations recorded in the pages of Whos Who^ save that
lawyers do not now return dancing and high jinks amongst
their pastimes.

Dancing has been celebrated by a lawyer, Antoine
d' Arena (d. 1544), a pupil of Alciati and judge at Saint-
Remy near Aries, a facile writer of Macaronic verses.
He thus strings together the names of the great jurists :

Bartolus et Baldus, Paulus, Felinus, lason,

Panormitanus, Deems atque Cynus.
Et dominus Petrus Albert!, granque Rolandus,

Teulerius, Merulus, Rissius atque bonus.
De Ripa, Alciatus, legum magnique magistri

Quos de dansando vincere nemo potest. 2

1 His reference is to Vollstdndiges und neuemvermehrtes Trincir-Buch,
Nuremb. 1657, Ib. 1665, 410, of the Nuremberg poet, Georg Philipp
Harsdorffer (1607-58) : The author treats of table decoration, carving,
foods and their seasons, dishes and their preparation, and banquets, and
concludes with a discussion of five and twenty questions relating to food
and eating. How often should we eat in the day ? How long can a
man do without food ? Whether flesh or fish is the better ? What is the
best medium against drunkenness ? Is it beneficial to sleep after dinner ?

2 Antonius de Arena, Proven^alls . . . ad suos Compagnones studiantes . . .
nouuellos quam plurimos mandat, p. 78. Stampatus in Stampatura Stampa-
torum, 1670, izmo, the edition specially prized in France. There
were several early editions, and a later. London, 1758, izmo.

As to the author see Delepierre, Macaroneana, p. 148, 1852, 8vo.

258 LAWYERS' MERRIMENTS

Domitian, we are told, 1 expelled a man of quaestorian
rank from the senate because he was too expert in pos-
turing and dancing (gesticulandi sahandique studio}, and
this incident has been made the text, by legal writers, 2
for sundry disquisitions as to the propriety of councillors
engaging in this pastime. Besoldus concludes that the
manners of the courts of princes regarding deportment
are allowable to a councillor in a moderate degree, and
this was the general opinion.

Founding upon a rule of this kind, dancing and
similar amusements were at one time favourite pastimes
of English lawyers. " There is," says Sir John
Fortescue, " both in the Inns of Court, and the Inns
of Chancery, a sort of an Academy, or Gymnasium,
fit for persons of their station ; where they learn singing,
and all kinds of music, dancing and such other accom-
plishments and diversions (which are called Revels)
as are suitable to their quality, and such as are
usually practised at Court." 3 Sir Christopher Hatton first
obtained Queen Elizabeth's favour, by his appearance in a
masque prepared by the lawyers. Sir Edmund Saunders
played on the virginals, and Lord Keeper Guilford was a
perfect musician. Sir John Davies wrote a composition
in lyric verse, entitled Orchestra, or a poem expressing the
antiquity and excellency of Dancing, London, 1596.*

1 Suetonius, De vita Caesarum, Domitianus, c. 8.

2 For instance Heinrich Neunhan (1590 1634), professor of history
and poetry at Jena, afterwards councillor at Ilm of Count Ludwig Giinther
of Schwarzburg and Honstein, in his tract, De Jure Consiliariorum, p. 247,
appended to his Trac tatus juridical de Juribus Viduitatis, Jena, 1658, 410.

3 De laudibus legum Angliae, by Grigor and Amos, p. 191.

4 Note by Professor Andrew Amos, Ib. p. 193. Mr. Galbraith Miller
(supra, p. 89) was a musician.

RECREATIONS OF LAWYERS 259

The Revels, referred to by Fortescue, were what were
known as Post Revels at one time performed in the
various Inns of Court " by the young Gentlemen of the
Society with Galliards, Corrantoes, and other Dances : or
else with Stage-Play es," at the beginning and end of
Christmas. 1

" Nor were these Exercises of Dances meerly
permitted ; but thought very necessary (as it seems)
and much conducing to the making of gentlemen
more fit for their Books at other times ; for, by an
Order made 6 Febr. 7 Jac. it appears, that the Under
Barristers, were by Decimation put out of Commons,
for examples sake, because the whole Bar offended
by not dancing on Candlemas day preceeding, accord-
ing to the antient Order of this Society, when the
Judges were present : with this, that if the like fault
were committed afterwards, they should be fined or
disbarred." 2

The Serjeants at law had, what Dugdale terms, "divers
great and solemn feasts," and the Inns of Court had their
grand Christmasses and other banquets ; these, however,
although social were not convivial but great and stately
ceremonials. 3

Conviviality was another thing and found place in
England as elsewhere. In Germany lawyers of the old

1 Dugdale, OriginesJuridiciales, p. 205, London, 1671, fol. He mentions
that of late years those Post Revels had been discontinued.

2 Ib. p. 246. This refers to Lincoln's Inn.

3 The judges and advocates of the court of Caen used, it is said, to
celebrate the feast of St. Yves by a banquet ; but this has been
questioned. Note by M. G. Mancel, in Memoires de la Sodete des
Antiquaires de Normandie, 2 d S. ii. (1841), p. 434.

260 LAWYERS' MERRIMENTS

school distinguished themselves in this way, to an extent
verging on bacchanalianism. Conviviality was the subject
of many facetious dissertations, one of the best known of
which is the Disputatio inauguratis, theoretico-practica de
Jure potandi?- It was, however, reprobated by all serious
writers on the demeanour and training of lawyers, and
moderation in eating and drinking was recommended.
Bartolus, it is said, eat by weight, so as always to possess
a balanced mind. Drunkenness, says Sousa, must be
avoided by doctors. 2

In social drinking Scotland followed the example of
Germany.

Scott's description of high jinks as practised by
Counsellor Pleydell in the Star and Garter Tavern, in
Writers' Court, kept by Clerihugh, is not exaggerated.

u With some difficulty a waiter was prevailed upon
to show Colonel Mannering and Dinmont the room
where their friend, learned in the law, held his
hebdomadal carousals. The scene which it exhibited,
and particularly the attitude of the counsellor himself,
the principal figure therein, struck his two clients with
amazement.

Mr. Pleydell was a lively, sharp-looking gentleman,
with a professional shrewdness in his eye, and,
generally speaking, a professional formality in his
manners. But this, like his three-tailed wig and
black coat, he could slip off on a Saturday evening,
when surrounded by a party of jolly companions, and
disposed for what he called his altitudes. On the
present occasion, the revel had lasted since four

1 Facetiae Facet'tarum, p. 99, Francof. a. M., 1655, I2mo.

2 Sousa de Macedo, Perfectus Doctor , p. 30.

RECREATIONS OF LAWYERS 261

o'clock, and, at length, under the direction of a
venerable compotator, who had shared the sports
and festivity of three generations, the frolicsome
company had begun to practise the ancient and now
forgotten pastime of High Jinks. This game was
played in several different ways. Most frequently
the dice were thrown by the company, and those upon
whom the lot fell were obliged to assume and maintain,
for a time, a certain fictitious character, or to repeat a
certain number of fescennine verses in a particular
order. If they departed from the characters assigned,
or if their memory proved treacherous in the
repetition, they incurred forfeits, which were either
compounded for by swallowing an additional bumper,
or by paying a small sum towards the reckoning. At
this sport the jovial company were closely engaged,
when Mannering entered the room.

Mr. Counsellor Pleydell, such as we have described
him, was enthroned, as a monarch, in an elbow-
chair, placed on the dining-table, his scratch wig on
one side, his head crowned with a bottle-slider, his
eye leering with an expression betwixt fun and the
effects of wine, while his court around him resounded
with such crambo scraps of verse as these :

Where is Gerunto Now ? and what's become of him ?
Gerunto's drowned because he could not swim, etc., etc.

Such, O Themis, were anciently the sports of thy
Scottish children ! " x

1 Guy Mannering, c. 36.

See Scott's note on " Convivial Habits of the Scottish Bar " ; Robert
Chambers, " Bacchanalianism, Taverns, Clubs, etc., of the last Century "
in Traditions of Edinburgh, ii. p. 237 sqq. ; Lockhart, Memoirs of

262 LAWYERS' MERRIMENTS

THE LAWYERS' LIBRARY.

In the scene in Clerihugh's we have a learned lawyer
over the bottle, and with his boon companions : next we
are carried to his house, many stairs up, in a lofty tene-
ment on the north side of the High Street :

" The stair, the scale-stair, was not well cleaned ;
and on entering the house, Mannering was struck
with the narrowness and meanness of the wainscotted
passage. But the library, into which he was shown
by an elderly respectable-looking man-servant, was a
complete contrast to these unpromising appearances.
It was a well-proportioned room, hung with a portrait
or two of Scottish characters of eminence, by Jamieson,
the Caledonian Vandyke, and surrounded with books,
the best editions of the best authors, and in particular,
an admirable collection of classics.

* These,' said Pleydell, ' are my tools of trade. A
Lawyer without history or literature is a mechanic, a
mere working mason ; if he possesses some know-
ledge of these, he may venture to call himself an
architect.'" 1

the life of Sir Walter Scott, i. p. 200, Edinburgh, 1839, 8vo > secon d
edition.

John Maclaurin (Lord Dreghorn) wrote " A Birthday ode in honour
of the late Mr. Andrew Crosbie," which concludes

'Tis order'd, boy, Law, Love, and Wine,
Shall thy strange cup of love compose ;
But tho' the three are all divine,
The last shall be thy darling doze.

Works, i. p. 43.

He also wrote an "Ode to the God of Eating." The Polyhymnia,
No. 19, Glasgow [circa 1800], 12010.
1 Guy Mannering, c. 37..

THE LAWYERS' LIBRARY 263

The original of Counsellor Pleydell was Mr. Andrew
Crosbie (d. 1785), an eminent advocate, and one of the
leading citizens of Edinburgh. When Dr. Johnson visited
Scotland, in 1774, Crosbie was almost the only one who
had the courage to maintain his own opinion against him
in conversation. He lived at that time in a house in
Advocate's Close on the north side of the High Street,
opposite the Tolbooth. Scott was too young to have
visited the house in Crosbie's day, but his account of the
library only does justice to its owner. Crosbie was not a
collector, in the narrow sense of the word, but, as we
know from the sale catalogue, 1 he had something like a
couple of thousand volumes of well-selected books. Law
naturally occupied a prominent place the Corpus Juris
Civilis, glossed and non-glossed, the Codex Theodosianus
by Godefroi, the works of Bartolus and many of the best
civilians. He had all the ordinary classics, many of them
from the Foulis press. English literature was well repre-
sented, and, what seems curious for a private library, the
Journals of the House of Commons from 1547 to 1766, in
thirty folio volumes, formed an imposing feature. He

1 Catalogue of a valuable collection of Books, which belonged to the late
Andrew Crosbie, Esq., Advocate, Edinburgh, 1785, 8vo. I have a copy.
He had a number of interesting MSS. Among them was (No. 473)
The Register of the Presbytery of Aberdeen, from 1598 to 1604.

In addition to the books catalogued there was a collection of pamphlets,
which were set up at the end of each night's sale.

A few pages further on, in Guy Manuring, Scott refers to the case of
a man who was ruined by a legacy of two shares in the Ayr Bank (that
is, Douglas Heron & Company). This misfortune overtook Mr. Crosbie.
He was a large shareholder, and when the bank failed he lost everything.

He seems to have been inclined to mix himself up with commercial
undertakings, as he was a partner in the Lochdochart Mining Company.
See Arniston Session Papers, cxxv. No. 28.

264 LAWYERS' MERRIMENTS

evidently had a strong leaning towards geography, as he
had a large number of maps and atlases, and books of
travel, including the Hakluyt of 1589, the three volumes
of 1598-1600, and the five folio volumes of Purchas his
PilgrimeS) 1625-26. Amongst Scotch books, were Hector
Boethius by Jodocus Badius, Paris, 1527, and the Black Acts,
"bound in red turkey, a very fine copy" and marked scarce.

In collecting a library Crosbie was representative of the
profession. With the exception of the clergy, no class of
the community have been so earnest in collecting books as
lawyers, amongst no class has the love of books and good
literature been more general. Book collecting has been
the most common and the most useful recreation of
lawyers ; generally accompanied by a wide and sympathetic
acquaintance with their contents. 1

One of the requirements for being a doctor of laws was
to have the necessary law books, or, in modern phrase, to
have a good library, for a doctor requires many books,
and if possible he should have every book. 2 If he has
not the books required for his profession, he ought not to
enjoy the privileges of a doctor. 3

1 Spilsbury, Lincoln's Inn, p. 243, London, 1873.

2 Besoldus, Dissertatio de studiosis, magistris, licentiatis, doctoribus, p. 146.
Like other old writers, he supports his statement by a long string of

authorities ; amongst others by a Consilium, An oportet habere plures
libros ? of Giovanni Nevizzano of Asti (d. 1540), professor at Turin,
at the end of the Elenchus omnium Auctorum, Francof. a. M., 1579, 410.

The Elenchus, edited by J. W. Freymon, is a catalogue of jurists and
writers on law, founded on an earlier work by Nevizzano and others,
which again was a new edition of the Index librorum omnium Juris, of
J. B. Ziletti, Venetiis, 1563, 410. It was well done, and must have
been useful in its day, and is not without value even now.

3 From the Preface to the Clementines, as quoted by Nevizzano, Op. laud.
p. 98. He reverts to it in his Sylva Nuptialis, lib. v. No. 46.

THE LAWYERS' LIBRARY 265

The ever-to-be-remembered Alciati thus enumerates
the books essential for a lawyer's library of his day :
In jure primas comparatus caeteris
Partes habebit Bartolus.
Decisiones ob frequenteis, actio
Baldum forensis sustinet.
Non negligenda maxime est tironibus
Castrensis explanatio.
Opinionum tutius Sepligadas
Superabis Alexandro duce.
Ordinis Jason, atque lucis nomine
Videndus est properantibus. 1

Although few in number, these works represent a vast

Nevizzano was a favourite of Burton, who refers to him in the
Anatomy of Melancholy as " Nevisanus the lawyer " (Democritus to the
Reader ad Jinem), and quotes the Sylva Nuptlalls repeatedly. This is a
wonderful book in the style which Burton adopted, and may have been
the very prototype of the Anatomy, Every sentence is supported by the
authority of some older writer, one of whom is Petrus de Lesnauderie
(supra, p. 244), whom he frequently cites. The book, as the later title page
explains, is a treatise on matters relating to marriage, dowries, and the
like, with chapters thrown in regarding the means of reconciling Guelphs
and Ghibellines, the method of judging, of executing the command of
rulers ; the authorities and privileges of doctors and miserable persons,
all arising on the question whether one should or should not wed (An
nubendum sit vel nori). It was first published at Paris, 1521, and again in
1523, 8vo ; then came an edition [Ingolstadt ?], 1540 ; Lugduni, 1524,
1545, 1556, 1572; Venetiis, 1570 and 1592; Francof., 1602 and
1647 ; Coin, 1856, all in 8vo. It was also printed in vol. vi. of the
Tractatus Tractatuum, Lugduni, 1549* Notwithstanding these numerous
issues the Sylva is one of those books which are marked " scarce." The
title of the earlier editions was somewhat different from that of the later
ones.

1 Sousa de Macedo, Perfectus Doctor, p. 56. He adds Joannes ab
Imola and some others ; and quotes a saying regarding the Summa of Azo,
" Chi non ha la Summa de Azo non entra en palazo."

266 LAWYERS' MERRIMENTS

amount of reading. The Lyons edition of Bartolus, for
instance, is in five, 1 and the Junta edition of Baldus de
Ubaldis is in eight goodly folio volumes. 2 Although not
often referred to now, they still form an important part of
the law library ; and anyone who has patience to take them
up will find a great deal of interesting matter and will be
surprised to see how many of the questions which arise in
daily practice were discussed and thought out by these old
jurists.

Without books the student can make no progress.
They are those things, says Lucas de Penna, " which
deliver him from ignorance, and are the temple of justice,
the light of the heart, the mirror of the body, the repertory
of virtues, the crown of the prudent, the diadem of the
wise, a vessel full of wisdom, the right road of eloquence,
a garden full of fruits, a meadow decked with flowers, the
beginning of intelligence, the foundation of memory." 3

Books purchased by a father for his son are deemed to
be donations, and are not to be brought into collation. A
scholar's library cannot be taken in execution for payment
of a debt. They are to him what arms are to a soldier. 4
A doctor, says Menochius, should not carry weapons
(non armigerus), for the arms of a doctor are books and
laws (codices et leges}. 6

He is no doctor, says lawyer Nevisanus, who allows
the dust to lie upon his books, 6 that is, he must

1 Lugduni, 1555. The Venice edition of 1590 (supra t p. 134) is in
ten volumes.

2 Venetiis (apud Juntas), 1615-16.

3 As quoted by C. P. Richter, Expositio, Disp. v. No. 8, p. 92.

4 Richter, Op. laud. Disp. v. No. 8, p. 9.

5 As quoted by Sousa de Macedo, Perfectut Doctor, p. 26,
6 Sy!va Nuptia/is, lib. v. No. 39.

THE LAWYERS' LIBRARY 267

use them. He must also take good care of them.
Too little attention is given to book-binding in these
days. A lawyer's books, says Sebastian Brant, (1458-
1521), author of the Ship of Fools, professor of law at
Basel, syndic and chancellor in Strassburg, must be well
clad. The Digestum vetus (that is, Pandects i.-xxiv.
tit. 2) is to be bound in pure white leather, in accordance
with the simplicity of the ancient law ; the Infortiatum
(that is, Pandects xxxiv. tit. 3 xxxviii.) in black leather,
a sombre dress (lugubris <uestis\ because it treats of
succession and the property of those who are dead. The
Digestum novum (Pandects xxxix. to the end), should be
in red, because it treats of crimes and their penalties.
The Code, being more recent than the Digest, is to
be bound in a bright green colour. The Volumen
containing the last three books of the Code, the nine
collations of Authentics, the Institutiones, and the Book
of Feus, should be bound in two colours (bipartite
veste), e.g. green and red, seeing that it is recent and
deals partly with penal and fiscal matters. 1 Sousa de
Macedo does not insist upon this, but recommends the
doctor to have the Cross of Christ stamped upon his
books, after the pattern of St. Bonaventura, who was
a man of learning, and when asked about his library
pointed to the Cross and said that it was from it that
he drew his varied and abundant erudition. 2

One of the most interesting libraries ever formed in
Scotland was that of Sir Walter Scott, still happily pre-

1 Expositiones siue Declarationes admodum necessarie . . . omnium titulorum
Jegalium, pp. 6, 7, Lovanii, 1552, 8vo, originally published Basilee,
1490, 410.

2 Sousa de Macedo, Perfectus Doctor, p. 33. . .

268 LAWYERS' MERRIMENTS

served at Abbotsford. 1 It reflects the man, his tastes, and
pursuits ; and his writings show how wonderfully he had
assimilated the contents of his books.

No one enjoyed more than Scott the pleasure of col-
lecting, no one knew better than he what was valuable
and what was rubbish : no one knew better the points
which appeal to the mere book collector. He loved litera-
ture, he loved the books which embody it, he appreciated
beauty of form, of illustration, of binding, he could amuse
himself with all the foibles of the collector, black letter and
italic letter, large paper and small paper, scarcity and
uniqueness. How sympathetically he describes the library
of Jonathan Oldbuck.

" Here were editions esteemed as being the first,
and there stood those scarcely less regarded as being
the last and best ; here was a book valued because it
had the author's final improvements, and there another
which (strange to tell !) was in request because it had
them not. One was precious because it was a folio,
another because it was a duodecimo ; some because
they were tall, some because they were short ; the
merit of this lay in the title-page, of that in the
arrangement of the letters in the word FINIS. There
was, it seemed, no peculiar distinction, however
trifling or minute, which might not give value
to a volume, providing the indispensable quality
of scarcity, or rare occurrence, was attached to it." 2

1 Catalogue of the library at Abbotsford. Edinburgh, 1839. Printed
for the Bannatyne and the Maitland clubs.

The catalogue was prepared by John George Cochrane (1781-1852),
an excellent bibliographer, a Glasgow man and son of a Glasgow lawyer.

2 The Antiquary, c. 3,

THE LAWYERS' LIBRARY 269

Dominie Sampson's delight in the stout pig-skin
covered volumes of the late lamented bishop, with their
oaken boards and brazen clasps,

That weight of wood, with leathern coat o'erlaid,
Those ample clasps of solid metal made,
The close-pressed leaves unoped for many an age,
The dull red edging of the well-fill'd page,
On the broad back the stubborn ridges roll'd,
Where yet the title stands in tarnish'd gold,

is that of Scott himself. With what gusto he recites
the feats of Snuffy Davie : and recalls his own prowess
in the Cowgate, the Canongate, the Bow, Saint Mary's
Wynd.

u How often have I stood haggling on a halfpenny,
lest, by a too ready acquiescence in the dealer's first
price, he should be led to suspect the value I set upon
the article ! how have I trembled, lest some passing
stranger should chop in between me and the prize,
and regarded each poor student of divinity that
stopped to turn over the books at the stall, as a rival
amateur, or prowling bookseller in disguise ! And
then, Mr. Lovel, the sly satisfaction with which one
pays the consideration, and pockets the article, affect-
ing a cold indifference, while the hand is trembling
with pleasure ! Then to dazzle the eyes of our
wealthier and emulous rivals by showing them such
a treasure as this (displaying a little black smoked
book about the size of a primer) to enjoy their
surprise and envy, shrouding meanwhile under a veil
of mysterious consciousness our own superior know-
ledge and dexterity these, my young friend, these
are the white moments of life, that repay the toil, and

270 LAWYERS' MERRIMENTS

pains, and sedulous attention, which our profession,
above all others, so peculiarly demands ! "

As the speaker warms to his subject he describes it as a
" profession," and the word is not misapplied. The
formation of a library is a work of genius.

An author of a very different type from Scott, Christian
Gottlieb Haubold(i766-i824), professor of law at Leipzig, 1
after detailing very fully the bibliographical aids available
to students for obtaining an acquaintance with the literature
of Roman law, recommends them to read catalogues and
attend book auctions. 2 How much is to be learned in
this way is shown by the four series of Bibliographical
Collections and Notes made by Mr. W. C. Hazlitt from the
books sold at Sotheby's 1867 to 1889.

Fortunately for lawyers, law books are not in favour
with book hunters and general collectors, and Carnegie

1 David Irving gives some particulars of his history, Introduction to the
Study of the Civil Law, p. 163, and adds : " In all that relates to what the
Germans describe as the literature of the law, he was without a rival, and
his notes are of the greatest value in directing the researches of the curious
enquirer."

2 Institutiones iuris Romani literariae, i. 18, 19, Lipsiae, 1809, 8vo.
Mr. Lawler remarks that, if Lord Macaulay had been acquainted with

the catalogues of book auctions in England in the seventeenth century,,
some of his remarks on the dissemination of literature, and the libraries
of the country clergy, in his Essay on the state of England at the death
of Charles II., would have been somewhat modified. Book Auctions in
England in the seventeenth century, p. xvi, London, 1898.

Edward Millington, the greatest book auctioneer of the middle part
of the seventeenth century, in the preface to one of his catalogues, says :
" The Gentlemen, the Buyers, by their converse and learned conferences
at Auctions, are generally both qualified to judge of the value and scarcity
of most books that present themselves in our Sales" (Ib. 105). Cf.
Gentleman's Magazine, 1816, Part 2, p. 510.

THE LAWYERS' LIBRARY 271

librarians neglect them, unless they happen to be rare,
or printed in the early days of the press, or have some
accidental feature that distinguishes them. Collectors who
would reject a modern edition of the Summa of Azo, or
of a Lectura of Bartolus or of Baldus, would pounce upon
Peter Drach's edition of the former, 1 Vindelin de Spira's
edition of Bartolus, 2 or Christopher Valdarfer's edition
of Baldus, 3 although they could make no use of any one
of them. The real place for such books is a law library,
or a library for students such as those of the Universities.
Every man is guided by his own tastes and pursuits
in forming his library. Mr. Alfred John Horwood (1821-
81), the editor of the Tear Books, collected early editions
of the works of the old jurists : Charles Purton Cooper
(1793-1873), was specially interested in the early law of
France, and presented two thousand volumes upon that
and kindred subjects, to the library of Lincoln's Inn, of
which he was Master. David Constable, advocate (1795-
1867) eldest son of the great bookseller and publisher
brought together a large library of well-chosen books *

1 Summa extraordinaria super Institutis, Spirae, 1482, fol.

2 Lectura super primam partem Codicis, Venetiis, circa 1470, fol.
There is a copy of this in the Hunterian Library, Glasgow.

8 Petrus Baldus de Ubaldis, de Perusio, Lectura super primo libro
Decretalium, Mediolani, 1476, fol.

On the verso of the last leaf there is a recommendation of the work,
which concludes with this encouraging offer :

" Et ne pretii magnitudo te perterreat dono tibi dabitur, si dignum te
prestiteris."

4 " Bibliomania was inherited and congenital with him, and when only
three years old he had already acquired the sobriquet of ' Wee Davy
Books.' . . . While still in his teens it is reported of him that there
were few persons who knew better the extrinsic and intrinsic value of
any book worth knowing." So says his brother Thomas, Archibald

272 LAWYERS' MERRIMENTS

ranging over a variety of subjects, particularly law, history
and literature; 1 all the early and best writers in Scots and
English law ; many works on foreign, and on the civil, the
common and the feudal law, several of them rare and
curious, such as the Decretals of Boniface VIIL, 1473 ; 2
the Institutiones of Justinian, 1476 ; the Decisiones Rotae
Romanae, 1477, all by Peter SchoefFer ; the old French
metrical version of the Institutiones ; 3 the Praxis Criminis
of Millaeus ; 4 the Constitutions Othonis, by Wynkyn de
Worde, 1517; Deutsch Lebenrecht, Augsburg, 1482 ; the
Paraphrases in tres libros prior es Institutionum Justiniani
of Claudius Cantiuncula. 6

Some lawyers have restricted their collections to law
books only, such as the two " famed practicers of the

Constable, and his literary correspondents, ii. pp. 105, 1 14, Edinburgh, 1873,
8vo. With the view of joining his father as a publisher he was
apprenticed to White and Cochrane, the well-known booksellers of
London, and afterwards spent some time with Messrs. Longman ; but
ultimately abandoned this project, and was called to the bar.

1 Catalogue of the Library of David Constable, Esq., Advocate, Edinburgh,
1828, 8vo. Twenty-two days' sale. He edited F Expedition en Ecosse
of Sieur Berteville for the Bannatyne Club. Edinburgh, 1824, 410.

He was a student of catalogues. In his own catalogue eighty numbers
are devoted to the subject, one of them embracing seventy volumes.

2 A copy described as " a remarkably fine, tall and sound copy of this
rare volume, modern blue morocco, with Schoeffer's device in gilt on the
sides," is priced in Ellis' Catalogue, No. 142 (1912), at ^52 IDS. Supra,
p. 209.

3 Supra, p. 34.

4 Supra, p. 217.

5 Lovanii, 1562, fol. There was an earlier edition, Lugduni, 1534-35,
4to, 2 vols. The British Museum has a copy, Lovanii, 1549, fol.,
which was presented to the Library of Doncaster by Abraham Cowley.

THE LAWYERS' LIBRARY 273

law" 1 whose libraries were disposed of together in 1683,
and the catalogue of which contained " the compleatest
Collection of the Common and Statute Law Books,
ancient and modern, that hath hitherto been published,
or perhaps will ever be exposed to sale by way of
auction." 1 Others have found their recreation in any-

1 " Practiser " is a good old word, once in common use, a favourite
with Roger North : " An eminent Chancery practiser," Lives of the
Norths, i. p. 14; "a bar-practiser," Ib. pp. 26, 27; "an eminent prac-
tiser of conveyancing in Gray's Inn," Ib. p. 92. " Practisers of the law
in North Britain" occurs in the title of the Statute, 10 Anne, c. 2
(1711). See Selden, note to c. viii. of Fortescue, De laudibus legum
Angliae, 1737, fol. The Society of Gentlemen Practisers in the courts
of law and equity, 1739-1810, was the precursor of the present Law
Society of London. See The Records of the Society of Gentlemen Practisers,
London, 1897, 8vo.

The word Practiser was also used of physicians and surgeons. Cf.
James Fourestier, The Pearle of Practise, or Practisers Pearle of Phisicke
and Chirurgie, London (Richard Field), 1594, 4to.

The corresponding Scots word was Perticien, or Practician.
He was ane richt courticiane,
And in the law ane practiciane.

Sir David Lyndsay, Squyer Me/drum, 1536.
For quhich, knawing myne vnsufficience
To be comprysit perticiane with prudence
I propone. . . .

"The Cokelbie Sow," 63, Laing, Select Remains of the Ancient Popular
Poetry of Scotland, p. 239, Edinburgh, 1885, 410.

In Medicine ane greit practiciane.
Rolland, Court of Venus, ii. 304 (Scottish Text Society).
The old French term was Practicien. Cf. Le Guydon des practiciens,
contenant tout le faict de practique, Paris, 1538, 1547, I2mo, and later
dates. There is a preliminary address by litienne Dolet, who says that
the work had been sent to him by a friend. See Christie, Etienne Dolet,
p. 520.

2 Lawler, Book Auctions in England in the seventeenth century, p. 62.

S

274 LAWYERS' MERRIMENTS

thing but law. Thomas Frognall Dibdin (1775-1847),
the celebrated bibliographer and collector, was originally
a lawyer. 1 Isaac Reed (i 742-1 8o7), 2 who was a con-
veyancer, collected works relating to the English drama
and poetry, and edited Shakespeare. Sir William
Hamilton (1788-1856) had a library rich in works on
philosophy, more especially on logic, and in editions of
the works of Aristotle and of his commentators. James
Maidment (d. 1879), like Isaac Reed, took a deep
interest in the drama, and works upon this subject formed
a considerable part of his collection, but it also included
much upon the history and literature of Scotland and
many of those freakish works which pass under the title
Facetiae or Drolleries. Hamilton and Maidment both
abandoned the practice of the law, and their collections
are not so characteristic as those of men who, while
engaged in active practice, had the inclination and found
time to form a library, as, for example, Lord Rutherfurd
(1791-1854) and Lord Cockburn (1779-1854). The
former was one of the most brilliant men and greatest
lawyers of his time, and his library represented the tastes
of a cultured man. He had, however, a hobby, the
collecting the works written by or attributed to Defoe.
This demanded eagerness, watchfulness, and considerable
bibliographical knowledge, and resulted in one of the best
collections of Defoe literature which has been formed. 3

1 He published a tabular analysis of Blackstone's Rights of Persons.

2 As to Reed, see Dibdin, Bibliomania, p. 454 sqq., London, 1842,
8vo.

8 It embraced upwards of one hundred and fifty of Defoe's publica-
tions, besides Miscellaneous Tracts by others connected with the series.
It sold for 110.

THE LAWYERS' LIBRARY 275

Like Crosbie, he was a collector of maps; 1 and Cockburn,
like Lord Rutherfurd, was a Defoe enthusiast, although
maxima cum interuallo. His collection, however, when
brought to the hammer, brought ,40 iys. 6d. He loved
Edinburgh, and picked up books, tracts and pamphlets
relating to the city. He was one of the counsel engaged
in the trial of Burke and Hare for the West Port murders,
and collected the books, papers and broadsides relating
to the case, in six volumes. He had the articles contri-
buted to the Edinburgh Review by Brougham, Sydney
Smith, John Allen, Playfair, Mackintosh, Horner and
others taken out and bound in separate volumes. 2

Each of these libraries was stamped with the indivi-
duality of its owner. They were formed for use, not for
show, or from the mere desire of acquisition. Their
owners collected to obtain information upon subjects in
which they were interested, and bought what was con-
genial to their tastes.

Both were particular as to the condition of their books,
and liked to have them in sound order and well clad ; but
it was because they loved them and wished to do them
honour and not for mere display. Lord Rutherfurd's
library was specially rich in fine bindings, and the books
so treated were worthy of it. He purchased examples of
the work of the famous craftsmen of the seventeenth
and eighteenth centuries, and employed the best binders
of the day to clothe his modern books suitably. He
had a weakness for large paper copies and fine paper

1 His collection brought 29 8s.

2 Reference has been made, supra, p. 57, to Halkerston's Latin
Maxims. Lord Cockburn had a copy (No. 1334), on which he had
written "a curious MS. commentary."

276 LAWYERS' MERRIMENTS

copies, 1 and was fond of books which had belonged to
notable persons. He had Bayle's Dictionnaire "in rich old
French green morocco, tooled on the sides, gilt leaves,
from the library of Madam Pompadour," and books from
the libraries of Madame de Laborde, Madame la Valiere,
Edward Gibbon, Lord Glenlee, the Duke of York,
Gonzaga, duke of Mantua, and many others.

This is a legitimate taste. There is an added pleasure
in the volume from its associations. Personally I have no
fancy for tall or large paper copies : they take up too
much space, but I like books which have been in some
great library or which belonged to some eminent man. I
have a number which belonged to Adam Smith ; amongst
others his copy of the folio Virgil of Foulis, which is on
large paper and suitably bound in calf. Smith said he was
" a beau in nothing but his books," and sentiment is
gratified by knowing exactly how he treated them.
" There is nothing which brings us more immediately into
the presence of the honoured dead than the possession of
a book which once belonged to them, and which exhibits
proof that it had been perused, if not studied, by them."

It is hardly possible to be interested in any subject and
to disregard its literature. We all require a certain
number of books for every day use, for amusement, for
instruction, for professional purposes ; but if we try to
follow up any branch of knowledge, or to investigate any
particular subject, it will soon be found that this can only

1 His law library was good, but had no special feature, except that he
seemed to have preferred large paper copies when these were to be had.
Thus he had Bell's Commentaries, More's Stair, and Balfour's Practicks, on
large paper, the latter " handsomely bound in morocco, extra gilt leaves."
See supra, p. 208.

THE LAWYERS' LIBRARY 277

be done by acquiring books bearing upon it. It is impos-
sible to work without material, and it is only by patience
and watchfulness that this can be obtained. No two
persons' pursuits are precisely the same, and each must
provide for himself.

When, therefore, a lawyer or other professional man
desires to pursue any special line of inquiry, he insensibly
becomes a book hunter. Lawyers' Merriments may not
be a subject of first-rate importance, but it throws light
upon the profession of the law, and the manner in which
those engaged in it have sought to enliven it, and to find
recreation in turning it to purposes of amusement. The
tracking out and securing literature bearing upon the
subject is in itself a pleasant recreation. No doubt if one
had unlimited leisure and devoted himself wholly to
collecting books upon this or any other subject, he would
gather far more material, but the pursuit would become a
business and cease to be a pastime.

I attended my first book auction, on the High Street of
Ayr, in the summer of 1852, and made a few small
purchases, more in accordance with my finances than my
wishes. I had been a collector even earlier, and have
been so ever since. Book-hunting is a fascinating pursuit,
and one's leisure is pleasantly passed in learning what each
author has to say, and in ascertaining something of his life
and ways, and the history of his books. Book openeth
book, and one is often led into out-of-the-way paths, and
to make the acquaintance of long-forgotten writers, many
of them men of repute in their day, but who have been
jostled aside by the thronging crowd which moves on-
wards, too deeply concerned with its own affairs to think
much of those who have gone before.

278 LAWYERS' MERRIMENTS

One's library may seem a poor thing to the cold and
indifferent outsider ; and badly selected to those of
different tastes. u Guenille, si Ton veut ; ma guenille
m'est chere." Each must please himself.

" With deep concern, the curious bid me tell,
Why no Black Letter dignifies my cell :
No Caxton ? Pynson ? in defence I plead
One simple fact ; I only buy to read.
I leave to those whom headstrong fashion rules,
Dame JULIAN BERNERS, and the SHIP OF FOOLS ;
The cheapest page of wit, or genuine sense
Outweighs the uncut copy's wild expence.
What coxcomb would avow th' absurd excess,
To choose his friends, not for their parts, but dress ?
Yet the choice Bard becomes some ancient stains ;
I love, in Gothic type, my CHAUCER'S strains ;
And SPENCER'S dulcet song as deeply charms,
When his light folio boasts ELIZA'S arms.
Nay doubly fair the Aldine pages seem,
Where, broadly gilt, illumin'd letters gleam." l

1 Ferriar, Bibliomania, London, 1 809, 4:0 ; reprinted Illustrations of
Sterne and other Essays, London, 1812, 8vo, 2 vols.

INDEX

Abbas Siculus, see Tudeschis.

Abbotsford, 268.

A.B.C. Das, xiii.

a Beckett, G. A., 39.

Abele, Justus, 5.

Abele von Lilienberg, Matthias, 96.

Accord of parties to litigation,

'55-

Accounting, 55.
Accursius, 245, 246.

Franciscus, 246.
Act of Parliament in verse, 2 1 .

containing memorial rhyme, 59.
Actius, Thomas, 256.
Actor = pursuer, 138, 146.
Acts of the Apostles, in verse, 19.
Acts of Sederunt, 80, 177.
Acute dicta, 54.
A.D., omission of the letters fatal,

1 80.

Adagia, 44, 47.
Adam, a Dominican Friar, 36.
Adam and Eve, 141, 144, 222.
Adam, Melchior, 172, 173.
Addison, Joseph, 58.
Addosio, Carlo d', 128.
Adelstan, King, grant by, 26, 27.
Advocacy, history of, 46.
Advocata = a woman advocate, 137.
Advocates, 59, 78, 163, 164, 182,

186, 197, 201, 226, 232,

250, 253, 263.
College of, Doctors Commons,

217.
costume, 78, 79.

Faculty of, Edinburgh, 1 2, 200 ;

their library, 33, 211, 212.
of Lyons claimed exemption

from taxation as nobles, 101.
Advocatorum idolus, 245.
Advocatus peccans, 201.
Affidavit, explained, 66.
Agnel, limile, 128.
Agnesi, Maria G. d', 248.
Agrippa, H. C., 202, 222, 241,

243, 244.

Albericus de Rosate, 246.
Alciati, Andreas, 46, 55, 257, 265.
Aldine editions, 214, 278.
Alexander Gallus, 244.
Alexander Severus, Emperor, 138.
Allen, John, 24, 275.
Alt, Georg, 152.
Altdorf, 49, 255.
Altercatio rusticorum, 95.
American Revolution, 65.
Amicus, Petrus, 211.
Amicus reipublicae, 113.
Amiens, local customs of, 52, 117.
Amos, Andrew, professor, 247, 251.
Amphitheatrum Sapientiae, 124.
Amsterdam, 171, 214.
Am Wald, Georg, 201.
Amy, Pierre, 211.
Anatomy of Melancholy, 265.
Ancharano, Jacobus de, 154.
Anderson, Rev. John, Glasgow, 58.

Dr. Patrick, 104.
Andreae, Joannes, 209, 215, 241,

246, 247.

280

INDEX

Andrews, William, 6.
Anglo-Saxon conveyances, 26.

law, 28.

Angoulevent, 96.

Animals, prosecution and excom-
munication of, 127.
Anjou, le due d', 52.
Annebaut, Richard d', 32.
Annuity, The, 8, 9.
Anstey, Christopher, 71.

John, 71.

Answer, term to, 136, 155.
Ante nati, 84.
Antiquary, The, 268, 269.
Apel, Johann, 229, 230.
Aphorisms, legal, 52, 56.
Appeal from the Sheriff, ill.
Appeal to higher Court, 96, 157.
Apuleius, 198.
Arbiters, 157.

Arbor Scientiae of Lully, 226.
Arcadius, Emperor, 148.
Arcana clericalia, 60.
Arches, Court of, 79.
Arena, Antoine d', 257.
Areita Amorum, 161, 162, 163.
Arms, coat of, of a doctor, 249.
Arniston Session papers, 257.
Arret= judgment against which

there is no appeal, 161.
Ars Catchpolaria, 197.
An Juris of Lully, 226.
Ars magna of Lully, 225.
Ars particularis of Lully, 228.
Art and part, 147.
Arthoure, John, 200.
Articles, 156.
Articulandum, ad, 156.
Artois, Comte d', 163.
Ascensius, Jodocus Badius, 211,

264.

Assault, 196.
Asti, 264.

Athens, legal procedure, 220.
Attorneys, 16, 78, 79, 81, 1 06,
197, 203, 204, 251, 273.

costume, 79.

excluded from Inns of Court,
251.

wore swords, 79.

strictures on, 203.
Attornies 1 Guide, 81.
Augmentation, process of, in.
Augsburg, 157, 214, 272.
Augustine, St., 131.
Aurigny, Gilles d', 61.
Authentic " Habita," 254.
Authentics, the, 209, 267.
Autun, 128, 129.
Auvergne, 210.

Auvergne, Martial d', 161, 164.
Auxere, 117, 210.
Avoues, history of, 164.
Avranches, 1 68.
Axiomata juris, 36.
Ayerer, Jacob, 158, 159, 160.
Ayr, 277.

Ayr Bank, the, 263.
Azo, 265, 271.
Azzio, Tommaso, 256.

Bacon, Lord, 56.

Badde, Josse, of Asche, 211, 264.

Baemler, Johann, 214.

Baird, Robert, of Gartsherrie, 119.

Baldis, Angelus de, 57.

Baldus, see Ubaldis.

Balfour's Prac ticks, 208, 276.

Ball, liability of dancers at, for

injury to dresses, 167.
Ballads of the Bench and Bar, 1 5, 90.
Bamberg, Criminal Ordinance of,

217.
Bankrupts, their tender affections,.

42.

turned solicitors, 80.
Bankton, Lord, 57, 208.
Bannatyne Club, 268, 272.
Bannister's Reports, 120.
Bar, the, 46.
Bar, the rush to the, 15.
Barbatias, Andreas, 151, 251.
Barcelona, customs of, 210.
printing, 215, 226.

INDEX

281

Barclay, Alexander, 175, 199, 278.
Barclay, Hugh, sheriff, 6.
Barghmoot, courts of, 38.
Baring, D. E., 248.
Baron's Court, The, 104.
Barristers, 66, 78, 250, 259.

costume, 79.
Bartolus of Saxoferrato, 46, 134,

151, 153, 1 60, 197, 215,

245, 246, 250, 257, 260,

263, 266, 271.
Basel, 173, 174, 252, 267.
Basoche, la, 117, 118.
Bataillard, Charles, 164.
Bayle, Pierre, 3, 48, 130, 132,

160, 161, 173, 241, 246, 276.
Baynes, Thomas Spencer, 237.
B.D. = Baccalaureus Decretorum,

I?-

Beam, 210.
Beaune, 128.
Beccaria, C. B. S., Marquis de,

211.

Becker, see Pistorius.

Beginning, 195.

Bekker, E. J., 115.

Belial, xiv, 154, 155, 156, 163,

214, 215.

Belial v. Christ, 132.
Bell, Henry Glassford, sheriff, 8,

14.

Bellaert, Jakob, 215.
Bellenden, John, Archdeacon of

Moray, 212.
Beresford, James, 208.
Berlucius, J. A., 47.
Berry, 210.
Besdel, P. F., 100.
Besoldus, Christoph, 254, 258,

264.
Bibliography of Games, 231, 256.

Proverbs, 51.
Bibliomania, by Dibdin, 274.

by Ferriar, 278.
Bibliosophia, 208.
Bigelow, L. J., 6.
Bill of Suspension, 108.

Billinghurst, George, 60.

Billon, Franfois de, 244.

Bird, Robert, 9, 114.

Black Acts, 264.

Blackstone, Sir William, 39, 140,

215, 274.

Bleak House, 45, 76.
Blewitt, James, 75.
Blount, Thomas, 28.
Blue Bonnets, 64, 65.
and Buff, 65.
colour, 65.
Boehmer, Georg Wilhelm, 217.

J. H., 237-
Boemers, Carl, 68.
Boethius, Hector, vi, 212, 264.
Bolla, Bartolomeo, 164.
Bologna, 246, 247, 248, 249.
Bologna, four doctors of, 48.
Bolting, 194..

Bon avocat, mauvais voisin, 170.
Bonus Jurista, malus Christista,

133, 201.

Book binding, 267, 275, 276.
Book buying, 269.
Book collecting as a pursuit, 264,

268, 277.

Books, gift of, 266, 271.
Boot, the, 217, 218.
Borchling, Conrad, professor, 28.
Born, Jakob, professor, 255.
Boswell, Sir Alexander, 109.

James, 109.

Bouchard, Amaury, 211.
Boucher d'Argis, Antoine Gaspard,

116, 117.

Bouhier, President, 130.
Bourges, 113, 173, 245.
Bourgogne, 130.
Bouthors, Alexandre, 52.
Bow church, 79.
Bracciolini, Poggio, 5.
Bracton, H. de, 138.
Branch, the lower, 16, 78, 106.
Branch, Thomas, 54.
Brant, Sebastian, 175, 267, 278.
Brassicanus, J. A., 44, 48.

:

0%

-

282

INDEX

Brehon laws, 23.

Bridges, John, bishop, 19, 33.

British Museum, 8, 33, 74, 102,

117, 124, 153, 211, 213.
Brocards, 57.

Brome, Alexander, 63, 106.
Bronchorst, Everard, 139, 163.
Broom, Herbert, 56.
Brougham, Lord, 75, 76.
Browne, Irving, 16, 128.

James, 207.

Sir Thomas, 126.
Bruges, customs of, in verse, 37.
Brunet, J. C, 96, 124, 153, 208.
Brusoni, L. D., 43.
Budgell, Eustace, 58.
Buff colour, 65.
Bulgarus, 48.

Buno, Johann, 218, 225, 238, 239.
Bunyan, John, 132.
Buridan's Ass, 3.
Burlesque law suits, 95, 116.

trials, 95.
Burton, John Hill, 57.

Robert, 264, 265.
Buying a pig in a poke, 55.
Byles, Sergeant, 1 1 8.
Byrne, Mrs. Julia C., 6.

Caen, advocates of, 259.

University of, 245.
Calderinus, Joannes, 247.
Callenbach, Franz, 239, 240.
Callistratus, 55.

Calumny, oath of, 59, 154, 184.
Cambridge, University of, 102,

247, 248.

Campbell, Mrs. Jessie, 248.
Campbell, Lord, 61, 71, 80.
Canon law, 35, 36, 1 86, 192, 222,

237, 246, 247, 255.
Canter, Willelm, 48.
Cantiuncula, Claudius, 229, 230,

231, 272.

Capacity, legal, 193.
Capel, Jacques, 95.
Louis, 96.

Capias, 63, 64.

Caps, lawyers', 79.

Cards, Playing, for teaching law

and logic, xiii.
Care, Henry, 222, 243.
Carlyle, Thomas, 62, 175.
Carmen necessarium, 22.
Carrighan, Terentius, 76.
Carving at table, art of, 257.
Cases, referred to :

A Burgess v. A Hunter, re pigs,

97-

Ayliffe, Anne, 85.

Baird v. Baird's Trustees, 90.

Belial v. Christ, 132.

Bickley v. Tasker, 118.

Bullum r. Boatum, i, 3, 9, 228.

Calvin's case, 84.

Casus forensis de Asino, i, 3,
9, 228.

Caudry's case, 85.

City of Glasgow Bank Liqui-
dators, ii.

Cunningham f. Russell, 109.

Davenport v. Stafford, 202.

Davidson and Francis, 92.

Dick v. Fletcher, 93.

Dieu, la cause de, 101.

Duffy v. Proser, 107.

Ewing f . Orr Ewing, 90.

Gow, v. Bell, 1 08.

Hubbard's case, 85.

John-A-Gull v. John-A-Gud-
geon, 73.

Johnson v. Gallagher, 87.

Lazarus, property of, 1 26.

Lis Vocalium, 220.

Manby v. Scott, 86.

Mary, Queen of Scots, 85.

Mill-Ass and the bowl of
malmsey, 97.

Morecrave v, Pricklove, 105.

Nose v. Eyes, i, 84.

Northumberland, Earl of, 234.

Paterson v. Gandasequi, 88.

Proces v. De Bon Accord, 96.

Protagoras v. Euathlus, 2, 234.

INDEX

283

Cases, referred to :

Queen v. Price, 126.

Reg. v. Sharpe, 126.

Semayne's case, 85.

Shelley's case, 84.

Stanley, Sir William, 85.

Stavert v. Stavert, 89.

Stradling v. Stiles, i.

Strathmore v. Bowes, 86.

Studd v. Cook, 90.

Susan Sly v. Rover, 114.

Swans, case of the, 84.

Williams v. Williams, 126.

Wyper v, Harveys, 92.
Catalogues, Book, their value, 270.

collection of, 272.
Catchpenny, Master Pilferer, 246.
Catechism, Beginner's, 20.

Shorter, in verse, 20.

The Mother's, 20.
Catherine, widow of John III. of

Portugal, 243.
Caudry's case, 85.
Cause de Dieu, la, 101.
Causes amusantes, 102.

celebres, 100.

grasses, 116.
Cavaliers, 65.
Cessio Bonorum, in.
Chambers, Robert, 261.
Chancery, 56, 74, 75, 76, 80, 90,
205, 272.

bill in, 78.

Inns of, 258.

masters of, 251.

practice in, 205.

suit, 77.
Chansonette, Claude, see Cantiun-

cula.

Chaperon = hood, 78.
Charlatanry, legal, 201.
Charles I., 238, 250.
Charles IV., Emperor, 246.
Chartiludium Institutionum, xiv.
Chasseneux, Barthelemy, 128, 129,

130.
Chess, game of, 256.

Chevalier-en-loix, 250.
Chorley, Josiah, 20.
Christ, Jesus, trial of, 131.
Christian, Edmund B. V., 16, 45,

1 06.

Christie, R. C., 45, 273.
Circuity to be avoided, 142.
Citation, xiii, 128, 136, 150, 154.
Civil-practicum, 187.
Clarissimus, as a title, 247.
Clementines, the, 207, 209, 213,

264.
Clients, claim for bad advice, 255.

stomachfulness and perversity of,

178.

Clodius, H. J., 231, 256.
Coceji, H. von, 251.
Cochrane, J. G., 268.
Cock, The, xiii.
Cockburn, Lord, 274, 275.
Cocu, Bredin le, 42.
Code, German civil, in verse, 37.

German penal, in verse, 37.
Code, Napoleon, in verse, 37.
Code of Justinian, in verse, 35.
Cohn, Georg, 50.
Coimbra, University of, 163, 228,

238.

Coke, Sir E., 24, 40, 55, 61, 63,
82, 256.

Institutes, 40, 56, 83, 84.

Reports, 55, 86.
in verse, 84.

Zachary, 235, 237.
Coler, Matthias, 249.
Coligny, Admiral, murder of, 173.
College of Justice, 240.
Collegium, 240.
Collegium disputatorium, 187.
Collier, J. P., 203.
Collision suit, a, 114, 228.
Collop Monday, 116.
Cologne, University of, 50.
Colours of book covers, 267.
Colours, political, 65.
Colson, Rev. John, professor, 248.
Comic Black stone, 39.

284

INDEX

Comic text books, 39.
Common opinion, 187.
Commonwealth period, 62, 235.
Compearance, day of, 136.
Compromise, discouraged, 73.

often best course, 187.
Condescendence, I 50.

re-re-re-revised, 13, 184.
Conjunct, 144.
Conradi, F. K., 50.
Consett, Henry, 59.
Consistorial Courts, 17, 249.
Consolato del Mare, 215.
Constable, Archibald, 271.

David, 271.
Constables, 197.
Constance, Council of, 210.
Constitutiones Othonis, 270.
Contention, Goddess of, 72.
Contract not reduced to writing,

1 88.

Contumacia, 128, 137.
Conventicles, 196, 197.
Conveyances, in verse, 26.
Conveyance, order of the parcels

in a, 60.

Conveyancer's Guide, 69.
Conveyancing for the Nursery, 7 1 .
Conviviality, 259, 260.
Cooper, Charles Purton, 36, 100,

102, 1 16, 271.

Copenhagen, University of, 50.
Copyists, 1 86, 199.
Coquille, Gui, 52.
Cornelius Antoine, 160.
Corocotta, the pig, 43, 44, 48.
Corpus juris canonici, 36, 207.
civi/is, 48, 1 86, 192, 207, 214,

219, 224, 263.
Coste, Olivier de, 247.
Costume, legal, 78, 79.
Counsellors, 78, 186.
Court of Arches, 79.

Chancery, 56, 74, 75, 76, 80,

90, 205.

Court, consistorial, 17, 249.
ecclesiastical, 79, 127, 155.

King's Bench, 93.

of Upper Bench, 106.

Lord Mayor's, 106.

Registration, 93.

Rent, 104.

of Session, 12, 13, 14, 19, 90,
177, 200, 240.

Sheriff, 80, 99.

Small debt, 224.

Court, contempt of, see Contu-
macia.

Court of law, described, 182.
Court of Session Cases, 215.
Court of Session Garland, II, 109,

115, 176.

Court-hand, the, 70.
Coutumes de France :

Amiens, 52, 117.

Auvergne, 210.

Auxere, 210.

Beam, 210.

Berry, 210.

Bourgogne, I 30.

Grande Perche, 210.

Melun, 210.

Nivernois, 210.

Normandy, 36, 210.

Orleans, 210.

Paris, 36, 210.

Poitou, 210.

Senlis, 210.

Sens, 210.

Touraine, 210.

Vermandois, 210.
Covenanters, 65, 196, 197.
Covenanting literature, 58, 65.
Cowell, John, 62, 80.
Cowley, Abraham, 272.
Cowper, William, i, 82.

training as a solicitor, 84.
Craig, Alexander, 199, 200.
Credulity, oath of, 184.
Creed, in verse, 20.
Criminal, executed and revived,

127.
Criminal law, xiii, 6, 216,217, 267.

sentences, review of, 91.

INDEX

285

Crisp, John, 31, 45, 69, 71.
Criticisms upon the ^Bar, 203.
Croake, James, 6.
Crompton, Hugh, 243.
Cromwell, Oliver, 235.
Crosbie, Andrew, 262, 263, 275.
Cujas, Jacques, 46, 52, 113, 172.
Cullen, Lord (Francis Grant), 197.
Culpa, 107, 147, 167, 255.
Curiosites Judiciaires, 5.
Curiosities of the law, 5.

law reporters, 6.

legislation, v, 6.
Curtius, Benedictus, 162.
Customs, see Coutumes.

D'Auvergne, Martial, 161, 164.

Daemon, 138, 143.

Damhoudere, Josse, xiii, 216, 218.

Dancing, 257, 258, 259.

Dante, 246.

Darling, Sir Charles, 41, 176.

Dauphine, Parliament of, 1 1 6.

David, King, 154, 156, 170.

Davidson, Thomas, 212.

Davies, Sir John, 258.

Deas, Lord, 90.

his experience as Advocate-
Depute, 91.

Death, legal capacity of person con-
demned to, 193.

De Bure, Guill. Fr., 43, 96, 125,

157- .

Decalogue in verse, 20.

De Camp- Ront, Jacques, 168, 170.
Decimae, 64.

inclusive, 1 13.
Decisions, contrary, 187.
Decomberousse, B. M., 37.
Decree, form of, 150.
Decretals, the, 135, 209, 247, 274.
Decretum, the, 209, 213, 246.
Decretum, in verse, 35, 36.
D.D. = Doctor Decretorum, 17.
Deeds in verse, 25.
Defamation, action of, 109.
Defoe collections, 274, 275.

Degrees, University, 17, 187, 189,

244, 247, 253, 255.
Delepierre, Octave, 125, 257.
Denis, J. M. K. P., 132.
De Paulmy, Marquis, 163.
Deschennes, Gamier, 36.
Desmoulins, Camille, 65.
Devil, belief in his personality, 133.

and Christ, 148.
Diabolus, 138.

Diagrams as aids to memory, 224.
Diamond Beetle Case, 109, 115.
Dibdin, T. F., 212, 274.
Dick, Mrs. Eliza, 93.
Dick v. Fletcher, 93, 94.

John, D.D., 93.
Dickens, Charles, 45, 76.
Dickius, Leopold, 174.
Dictionary, as a political weapon, 6 2.

Morison's, v.

Dietherr, Mathias, 51, 175.
Dieu, la cause de, 101.
Digest, see Justinian.
Dinmont, Dandie, 260.
Dinner supplied by contract, ques-
tion as to remains, 168.
Dinouart, Abbe, 46.
Dirleton's Doubts, 193, 208.
Disputation, art of, 237.
Disraeli, Isaac, 62, 63.
Dissertatio de praecellentia mar'ium

prae Feminis, 191.
Dissertations, 251.

whimsical, 121, 251, 260.
Distinctions, the, in verse, 35, 36.
'Divinite, la, des P rotes, 113.
Doctors of laws, 244, 249.

their privileges, 249, 252.

their nobility, 249, 251.
Dod, Henry, 21.
Doehler, J. G., 181, 191, 201.
Dolet, litienne, 273.
Domitian, Emperor, 258.
D'Oppede, Baron, 130.
Dornavius, Caspar, 124.
D'Orville, Contant, 163.
Douglas, Heron & Co., 263.

286

INDEX

Downfall of the Unjust Lawyers, 204.

Drach, Peter, 271.

Draco, L. H., 33.

Draftsman, the, 182, 187.

Draudius, Georg, 130.

Dreghorn, Lord, see Maclaurin,

John.

Dreyer, J. C. H., 28.
Drinking and drunkenness, 260.
Dublin, 81.

Dufour, Julien-Michel, 7, 46, 125.
Dugdale, Sir William, 251, 259.
Dumoulin, Charles, 172.
Dun, Lord, 80.
Dunbar, W. B., 6.
Dundee, vii, 6, 108, 207.

Psalm tune, 20.
Dunfermline, 18.
Dupin, A. M. J. J., 57, 102, 116,

152, 161, 170.
Dupleix, Scipion, 36.
Duplies, 97, 179, 184.
Dutch law, 53.
Du Troncy, Benoit, 42.

Easter, rules for calculating, 59-
Ebert, F. A., 133, 160.
Eccard, J. G., 248.
Ecclesiastical courts, 79, 127, 155.

suits, plenary, summary, 155.
Eck, Cornelius van, 34.
Edinburgh, u, 12, 15, 29, 220,
260, 262, 275.

false imprint, 173.

High Street, 12, 262, 263.

Holyrood, 57.

printing, 212.

streets and closes, 260, 262, 263,
269.

taverns, 260.

University library, 212.

West Port murders, 275.
Edinburgh Law Journal, 29, 1 80,

182.

Edinburgh Review , 275.
Education of law students, 187,
228.

Edward I., 246.

Edwards, H., 6.

Eisenhart, J. F., 50.

Elder, Mrs. Isabella, 248.

Eldon, Lord, 75.

Elegante Jurisprudenz, 121.

Elizabeth, Queen, 247, 258.
projected marriage, 52.

Elstob, Elizabeth, 248.

Epact of the moon, women who
can calculate, 244.

Erasmus, Desiderius, 47, 48, 55.

Erfurt, University of, 252.

Escape of prisoners, 6.

Estienne, Robert, 102.

Estor, J. G., 130.

Estrapade, 217.

Etymology, 235.

Euathlus, 2, 234.

Eutychian heresy, 173.

Ev angiles, Let, des Quenouilles, 244.

Evangelists, the, tried by the laws
of evidence, 13 r.

Everardus, Nicolaus, 230.

Evidence, hearsay, 41.

laws of, applied to the Evan-
gelists, 131.

Exact Constable, The, 197.

Exact Lawgiver, The, 179.

Examinations, 204, 253.

Exceptions, 150, 155.

Excommunication, 127, 128, 130.

Exorcism, 127.

Expilly, Claude d', 116, 117, 253.

Facetiae, 5, 193, 274.
Facetite facetiarum, 124, 260.
Facetious deeds and precedents, 42.
Faculty of Advocates, see Advocates.

of Procurators, see Procurators.
Fagg, Michael, pseud., 106, 180,

202.

Falcon-Rochelle, J. H., 37, 210.
Fastingtide, 116.
Father and a worthless son, 98.

patria potestas, 252.
Feast of fools, 117.

INDEX

287

Federfechtern, 182.

Fees, 199, 202, 206, 253, 255.

Feigned account of an actual trial,

93, 94-

Female Pre-eminence, 222.
Femme-Avocat, 137, 139.
Feoffment, 70.
Ferdinand of Hungary, 1 30.
Ferget, Pierre, 157.
Ferine autumnales Jurisconsultorum,

46.

'Feriat days, 255.
Ferriar, Dr. John, 226, 278.
Feus, Book of the, 267.
Fichtner, J. G., professor, 49, 175.
Fitch, Joseph, 21.
Fitz- Herbert, Anthony, 60, 61,

176.

Fleas, 115, 121, 122, 124.
Fleet solicitors, 80.
Fleetwood, Edward, 243.
Fletcher, Rev. Alexander, 93, 94.

Andrew of Salton, 94.

Robert, 94.
Flitner, Johann, xiii.
Flogel, K. F., professor, 43, 117,

125, 135, 164, 226, 239.
Flohjagd, die, 115.
Florentine Pandects, 207.
Flares legum, 5 1 .
Foeminei sexus Apologia, 211.
Fons, Victor, 52.

Forgeries of ancient deeds, 45, 234.
Forli, Ordinances of, 214.
Formey, J. H. S., 180, 184.
Formulaire recreatif, 42.
Forspeaker = advocate, 59.
Fortescue, Sir John, C.J., 247, 250,
251, 258,259,273.

William, M.R., i, 58.
Foulis, R. and A., printers, 276.
Fourestier, James, 273.
Fournel, J. F., 151.
Fracastorius, Hieron., 68, 69.
France :

codes, 37, 52, 210.

customary law, 36, 52, 172, 210.

ordinances of the Kings, 210.

rural law, 52.

Francis I., King of France, 217.
Franck, J., 50.
Fraser, Lord, 79.
Fraunce, Abraham, 233, 237.
Frederician Code, 180, 184, 187,

192.

Frederick I., Emperor, 254.
Fregismont, J. D., 252.
Freight is the mother of wages, 53.
Fresnoy, Lenglot du, 163.
Frey, J. C., 124.
Freymon, J. W., 264.
Friedberg, 49.

Fritsch, Ahasuerus, 159, 174, 201.
Froissart, Jehan, 250.
Fungibles, 229.
Fiirsprecherinn, 137.
Fust and Schoeffer, 209.

Gabriel, Angel, 136.
Gaertner, Andreas, 49.
Galante, Andreas, 204.
Galloway, Miss J. A., 248.
Gait, John, 94.
Games, 256.

Library of, 231, 256.
Gammer Gur tori's Needle, 19.
Gardeloo, the, 216.
Garland, Court of Session, 1 1 , 1 09,
115.

Justiciary, 109.

Parliament House, 109.
Garrick's Head, the, 118.
Gartsherrie, Black Knights of, I 19.
Gascoigne, George, 174.
Gavelkind, law of, 69.
Gavelli, Salvator, 226.
Gedik, Simon, 125.
Genealogia Nisibitarun:, 239, 240.
Geneva, 174, 207.
Gentilis, Albericus, 245.
Gentius, Gulielmus, 48.
Gerichts-Teuffel, 201.
Germany :

Bills of Exchange ordinances, 37.

288

INDEX

Germany :

Civil Code, 37.

Constitution, 37.

course of legal study, 187.

Frederician Code, 180, 184, 187,
192.

Holy Roman Empire, 191, 192.

Imperial Chamber, 192.

legal humour, 115.

law, 28, 1 80.
in proverbs, 49.
metrical history of, 68.
pleading and procedure, 180,
187.

Roman law in, 186, 191, 192.

lawyers, their conviviality, 259.
Gesta Romanorum, 5.
Gierke, Otto, 28.
Giessen, University of, 50.
Gilbert, Chief Baron, 80.
Gilhausen, Ludovicus, 49.
Gilman, Charlotte P., 191.
Giry, A., 59.
Glapthorne, Henry, 238.
Glasgow, 8, 9, 20, 89, 92, 99, 100,

119, 120, 126, 214, 2l8, 220,
248, 268.

Cathedral, 100.

City Bank, 1 1.

Commissary Court, 100.

Constitutional, 12.

Day, 1 08.

Faculty of Procurators, 80, 212.

Herald, 8.

Hunterian library, 209, 213.

Morning Journal, 9 1 .

printing, 214.

Queen Margaret College, 248,
249.

Sheriff Court, 99, 126.

University, 17, 20, 89, 218, 248.

University library, xiii, 47, 209.
Glen, James, 71.
Glory of Women, The, 243.
Glossators, the, 245.
Glossed portions of the Corpus juris
civilis, 192.

Glossing, 146.

Godofredi, Peter, 48.

Goethe, J. W. von, 123.

Gold chains and rings may be worn

by doctors of laws, 253.
Goldast, Melchior, 133, 151, 157,

160, 161, 170.

Gospelles, The, of Dy staves, 244.
Good Friday, 136, 144.
Goudy, Henry, 165.
Goujet, Abbe, 161.
Gowns, see Robes.
Gozzadini, Bitizia, 245, 247.
Graf, Eduard, 51, 175.
Grammar, early works on, 219.
Grammar, English, in verse, 21.
Grammar IV ar, The, 219, 220.
Grande Perche, 210.
Grant and feoffment, 70.
Grant, Francis, see Lord Cullen.
Gratian, 35, 209.
Gray's Inn, 54, 69, 234, 235, 273.
Green colour, 66.
Greenleaf, Simon, 131.
Greenshields, John, 176.
Greffier au Sceau, 80.
Gregory, Arthur, 194.
Greifswald, University of, 50, 254.
Grenoble, 117, 253.
Greswell, W. P., 157, 160, 162,

207.

Grimm, Jacob, vi, 27, 29.
GrOningen, University of, 53.
Gruning, Wolfgang, 252.
Grunnius Corocotta, will, 43.
Grunnius Sophista, 44, 214.
Grupen, C. U., 255.
Grynaeus, J. J., 44.
Guilford, Lord Keeper, 258.
Gunpowder Plot, 21.
Guy Manner ing, 261, 262, 263.
Guy don, Le, des practiciens, 273.

Haarlem, 215.
Haberkorn, H. P., 201.
Halbritter, Johann, 249, 251, 252,
254.

INDEX

289

Halkerston, Peter, 57, 275.
Hamilton, Sir William, xiv, 3, 54,

187,237.

William Gerard, 232.
Handyside, Lord, 9.
Hargrave, Francis, 251.
Harderwyk, University of, 53.
Harnack, Adolph, professor, 148.
Harsdorffer, G. P., 257.
Hatton, Sir Christopher, 258.
Haubold, C. H., 270.
Hawke, Matthew, 61, 69.
Hawkins, Sir John, 79, 102.
Hazlitt, W. C., 270.
Heard, F. F., 6.
Heart of Midlothian, 29, 80.
Hegendorf, Christoph, 230.
Heir ab intestate, 192.
Helmstadt, University of, 50,

252.

Hen and chickens, 98.
Hening, W. W., 54.
Henrys, Claude, 117.
Henryson, Robert, 17.
Herrissant, L. T., 102.
Hertel, J. F., 185, 190, 191.
Hertius, J. N., 50, 201.
Hertz, see Hertius.
Heumann von Teutschenbrunn,

Johann, 237, 255.
Heywood, John, 58.
High Jinks, 257, 260.
Hilarion, Father, 247.
Hillebrand, J. H., 51, 175.
Historischer Processus Juris, 158.
Hoeltich, F. H., 125.
Hoff, E. O., 5.
Hofrath Nose of Wax, 175.
Hollams, Sir John, 180.
Holland, law of, 53.
Hollinworth, Richard, 132.
Holloway, Thomas, 203.
Holtermann, A. M., 200, 201.
Holy Roman Empire, 191, 192.
Holyrood, 57.
Homer, 55, 56.
Hommel, C. F., vi, 170.

Honeyman, William, Sheriff of

Lanark, 99.

Honorius, Emperor, 148.
Hood, furred, 78, 79.

miniver, 79.

tafety, 79.

without fur, 78.
Horace, 56.
Horwood, A. J., 271.
Hostiensis, 60.
Hotch-pot, 32.
Hotel-keeper's liability for medical

attendance on guests, 166.
Hottoman, Fra^ois, 173.
Houghing = bribery of judges 177,
House, every man's, is his castle,

55' 8 5-

Howitt, William, 85.

Huarte, Juan, 238, 247.
Hubbard's case, 85.
Hudibras, 70.
Hughes, William, 194.
Hugo, G., 122, 123, 208, 246.
Humoral Pathology, 238.
Humour, 53.

in Indexes and Dictionaries, v,

62.
Humour of the law, 5, 28.

of lawyers, 6, 45.

out of date, 1 64.

Ignoramus, 79, 102, 206.

Ihering, Rudolf von, 115, 165,
166, 181.

Illumination of books and manu-
scripts, 213.

Illustrations in Law Books, 206.

Illustrious, as a title, 250.

Images or pictures, as aids to
memory, 220, 221.

Imola, Joannes ab, 265.

Impugnant, 138.

Incorporated Society of Law
Agents, vii.

Incunabula, 33, 35, 36, 95, 152,
157,209,213,214, 266,271,
272, 278.

290

INDEX

Index, Congregation of the, 172.
Index expurgatorius, 161, 170, 171,

172, 173, 174, 244.
Indexes, humour in, 62, 231.
Induciae, legal, 136, 155.
Infants, limbo of, 159.
Infinitum in jure reprobatur, 49.
Informers, 197.
Infortiatum, the, 246, 267.
Ingolstadt, University of, 254.
Ink, different colours for drafting,

II.

Inner Temple, 28.
Innes, Alexander Taylor, 131.
Innes, J. W. Brodie, 87.
Inns of Chancery, 258.
Inns of Court, 28, 36, 54, 69, loo,

102,116,117,205,234,235,

251, 258, 259, 273.
Inquisition, Spanish, 161, 171.
Institutes, The, in verse, 32, 35,

272.

Interlocutors, 98, 140, 141.
Interpretation, forced, 176.
Intime = respondent, 96, 108.
Irving, David, 23, 171, 208, 270.
Edward, 94.

James VI., 102, 103, 113, 164,

172, 251.

the 48th King of Scotland, 251.
Janssen, J., 142.
Januario de, or Jenarro de, G. A.,

45 191-
Jeafferson, J. C., 6.

Jena, 161, 173, 174, 185, 190,

249, 254, 258.
Jenkins, David, judge, 49.
Jennaro, see Januario.
Jenson, Nicolas, 213.
Jervis, Sir John, 119.
Jews, the, 67, 134, 139.
Joannes ab Imola, 265.
Jocular Customs of Manors, 28.

Laws, vi.
John the Baptist as notary, 151,

156.

Johnson, Dr. Samuel, 62, 79, 109,

263.

Johnston, Sir Archibald, 200.
Jonah, 224.
Jones, F. C., 69.
Jonson, Ben, 186.
Joseph, Vicar of Egypt, 156, 157.
Joubert, Nicolas, 96.
Judge and Jury court, 1 1 8, 1 20.
Judge delegate, 154.
Judge suspect, 139.
Judges, corruption of, 174, 198.
of the Court of Arches, costume

of, 79.

Junius, Letters of, 211.
Juntas of Venice, xiv, 36, 266.
Jurisconsulte goguenard, 41.
Jurisprudentia polemica, 186, 187.
Jurisprudenz elegante, 121, 193,

211.

Juristen-spiegel, 201.
Jus tertii, 58.

Justice, figure of, 187, 188, 191.
Justiciary Garland, 109.
Justiciary Opera, Songs in the, 109.
Justinian, Emperor, 173, 213.
Code, 34, 134, 135, 138, 148,

209, 213, 250, 254, 267.
Justinian, Digest or Pandects, 108,

141, 142,167,191,207,218,

223, 224, 267.
De Regulis Juris, 33, 46, 162,

22O, 221.

De Verborum significatione, 113,

22O, 221, 222.

Infortiatum, the, 246, 267.
Institutes, 32, 33, 171, 172, 173,

207, 209, 213, 220, 222, 223,

247, 267, 272.

Kaestner, Abraham, 252.
Kames, Lord, 54, 57, 58.
Katherine of Portugal, Queen of

England, 243.
Katzenstein, Dr. Jacob, 115.
Kaufmann, Josef, 133.
Kemmerich, D. H., 254.

INDEX

291

Kent, custom of, 69.
Kestner, H. E., 185, 252.
Kiel, University of, 28.
Klingner, J. G., 182.
Knicknakkius, 124, 125.
Knights as oppressors, 199.

of the law, 250.
Koechy, C. H. G., 123.
Koenig, J. W., 244.
Koenigsberg, 126.
Kohlburger, J. A., 48.
Krantz, J. C, 185.
Kurella, J. H., 126.

Lachende der Jurist, 115.

Laconic Law Dictionary, 66.

Langdale, Lord, 202.

Lange, J. L., 201.

Large paper copies, 207, 217, 268,

275,276.

Laterna magica Juris, 185.
Latin, pleading in, 79.

pronunciation of, 233.
Latitat, 63, 64.
Laughter, side-splitting, 164.
Lauriere, E. J. de, 52.
Lauterbach, Johann, 246, 249, 254.
Law is the perfection of reason, 55.

a fortress for the weak, 179.

a sanctuary for the oppressed,
179,

comedy of, 16.

corrupt administration of, 1 76.

delays, 179.

humours of the, 5 6, 28.

infallible method of teaching,
228.

legerdemain of the, 177, 194.

library, 10, 16, 262.

Lully's method of teaching, 226.

lyrics, 8.

mechanical devices for teaching,
xiii, 221, 226.

poetry of, vi, 27.

procedure, 18, 19.

reports in verse, 82.

subject of didactic poetry, 67.

terms, explained humorously, 63,

66.

Law Agents, 80, 202, 204.
Law Books are like a rich cloth of

gold, 245.
sizes, 207.
Law-calf, 207.
Lawler, John, 270, 273.
Law Quibbles, 194.
Law Scrutiny, 81.
Law suits, their immortality, 112,

"3-

burlesque, 95.

facetious, 1 1 6.

sham, 95, 116, 120, 121.

shortening of, 226.
Law and lawyers laid open, 178, 202.
Law in Daily Life, 115, 165.
Law Reports, The, 215.
Law Society of London, 273.
Lawyers, 197, 198, 199, 201, 206.

fee books, 199.

humour of, 6, 45.

library, 10, 16, 262.

logic, 228, 237.

peccant, 201.

prejudice against, 199.

recreations, xiv, 255, 256.

religion, 201.

time, distribution of, 61.
Lazarus, 126.
Leach, Edmund, 200.
Lead mines, Liberties of the, 38.
Leading Cases done into English, 86.
League, The, 112, 170.
Learning, display of, 206.
Le Court, Benoit, 162.
Legal Practice in Ayr and the West of

Scotland, vii, 207.
Legends of the leading Cases, 87.
Legerdemain of the law, 177, 194.
Legis Fluvius, 196, 197.
Leibnitz, G. W., 185.
Leipzig, University of, vi, 50,252,

255,270.

Leitch, Sir John, 75.
Leitch, N., of Glasgow, 20.

292

INDEX

Lenten Stuff, 176.
Lese majesty, 147.
Lesnauderie, Pierre, 244, 254, 265.
Leyden, University of, 50, 171.
Leyser, Augustin von, 174, 201,

257.
Libel, points of a well-drawn, 60.

form of, 155.
Liberties and Customs of the Lead

mines, 38.
Library, the lawyers', 10, 1 6, 262.

formation of a, 270, 274.
Libraries :

Abbotsford, 267.

Advocates, Edinburgh, 33, 211,

212.

College of, Doctors' Com-
mons, 217.
Arsenal, Paris, 164.
Beckford, 216.
Bibliotheque, national, Paris,

217.
British Museum, 8, 33, 74, 102,

117,124,153,211,213,272.
Brunei, J. C., 210.
Biinau, 48.

Cockburn, Lord, 274.
Collande, de, 43.
Constable, David, 271.
Crosbie, 262, 263, 274.
Crossley, 33.
D'Argenson, 13.
D'Artois, 163.
Doncaster, 272.
Dresden, 48.

Edinburgh University, 2:2.
Gibbon, 276.

Glasgow, Hunterian, 209, 213,
271.

University, xiv, 47.
Glenlee, Lord, 276.
Gonzaga, Duke of Mantua, 276.
Greville, 33, 74, 153.
Hamilton Palace, 212.
Hamilton, Sir William, xiv, 274.
Harley, 209.
Heber, 33, 153, 244.

Heredia, 210, 215.
Hibbert, 116, 160.
Hiersemann, 210.
Hunterian, Glasgow, 209, 213,

271.

Laborde, 276.
La Valiere, 276.
Lincoln's Inn, 36, 100, 102,

116, 117, 271.
Maidment, 274.
Mariot, 217.
Mierman, 33.

Meon, 7, 36, 43, 96, 117, 124,
130.

Parr, 33.

Pompadour, 276.

Potier, 42, 96.

Queensberry, 157.

Reed, 274.

Renouard, 207, 209, 210, 211,
214.

Rutherfurd, Lord, 274.

Rylands, 209.

St. Victor, 246.

Scott, Sir W., 267.

Smith, Adam, 276.

Solar, 33, 117, 210.

Stewart of Spoutwells, 105.

Sunderland, 207, 209, 211.

Sykes, Sir M., 209, 212.

Syston Park, 209, 212.

Thou, de, 210.

Two famed Practicers of the
law, 272.

Valliere, 163.

Williams, Theodore, 207.

Williamson, 100.

Wodhull, 211, 212.

Writers to the Signet, 8.

York, Duke of, 276.
Lie, is it ever permissible to, 227.
Liedlein, see Cantiuncula.
Liege poustie, 193.
Light, obstruction to, 253.
Lincoln's Inn, 36, 100, 102, 1 1 6,

117, 259, 264, 271.
Lindsay, Sir David, 18, 273.

INDEX

293

Lipsius Justus, 1 6 1.

Lis Vocalium, 220.

Literature of the law, 255, 270.

Litigacio Sathanas contra genus
humanum, 153.

Litigants, 187.

the just, 1 68, 169.
perverse, 179.

Litigiosus, The, a logical puzzle, 2.

Litis abusus, 180.

Litiscontestation, 156, 184.

Littleton, Sir Thomas, 40, 56, 83,
84.

Livres de Luxe, 206.

LochdochartMiningCompany,263.

Locusts, The, 74.

Loescher, C. P., 252, 254.

Loesler, J. F., 126.

Logic, training in, xiv, 228.

Logic, lawyers', 225, 228, 237.

Loisel, Antoine, 52.

Long, Edward, 128.

Long robe, 78.

Lord's Prayer in verse, 20.

Loss, apportionment of, 228.

Losung-schreiber, 152.

Louvain, University of, 50, 230.

Lucas de Penna, 266.

Lucian, 45, 220.

Lucifer, 144, 154.

Lully, Raymond, 225.

Lllneburg, University of, 219, 230.

Luschner, Johan, 215.

Luscinius, Ottmar, 44, 214.

Luther, Martin, xiv, 3, 230.

Lutheran theological terms, mali-
ciously explained, 63.

Lyncker, Baron von, 190.

Lyndwood, W., 212, 272.

Lyons, 209, 245, 266.

Macaronic verse, 164, 257.
Macaulay, Lord, 270.
MacCrie, Thomas, 207.
Machiavelli, C. A., 241, 245, 246,

247.
N., 211.

Mackay, A. T., 12.

Mackenzie, Sir George, 231, 253.

Maclachlan, Jessie, murderess, 9 1 .

Maclaurin, Colin, 12.

Maclaurin, John, Lord Dreghorn,

12, 109, 126, 127, 193, 262.
Magdeburg, 157, 214.
Magna Carta, 212.
Maidment, James, 12, 176, 200,

216, 274.
Mainz, 209.
Maitland Club, 268.
Majorities, 41.
Makers, Scots, 17.
Manley, Thomas, 205.
Manlove, Edward, 28.
Man-made World, The, 191.
Mannering, Colonel, 260, 262.
Mantel, schwarze, 79.
Mantel-Kind, 30.
Manuals of law, 152.
Manuscripts, 212, 263.
Maps, collections of, 264, 274.
Marburg, University of, 122, 200,

219, 224.
March, John, 113.
Marchand, Prosper, '154, 158,

211.

Marienberg, 49.
Market, sale in, 195.
Markland, Abraham, 67.
Marquilles, Jacobus de, 210.
Marriage, forbidden degrees, in

verse, 60.

Martyrs, Psalm tune, 20.
Mary, Queen of Scots, 85.
Masenius, Jacobus, 124.
Massa, Antonius, 256.
Matthai, Anton, 53, 224.
Maxims, Law, 23, 54, 55.
Mayno, Jason de, 209.
Medices, Sebastian, 49.
Meier, J. G., 201.
Melun, 210.
Melville, Andrew, 173, 207.

Frances H., 249.

James, 200.

294

INDEX

Memorial verses, 59.
Memory, 218.

tenacious, 53.
Menochius, Jacobus, 266.
Meon, D. M., 7.
Merseburg, 125.
Merus Canonista, merus asinista,

133-

Messengers-at-Arms, 197.

Metamorphosis tela judiciaries, 96.
Method, 230, 231, 237.
Metrical versions of law reports,
82,95.

laws and deeds, 19, 33, 35, 46,
69, 272.

forms of procedure, 68.
Metrical histories of law, 68.
Michael the Archangel, 151.
Middle Temple, 205.
Milancia, 241, 246.
Miles legalis, s. literatus, 250.
Millaeus, Joannes, 217, 272.
Miller, Joe, 5.

Miller, William Galbraith, 89, 258.
Milles, Juan, see Millaeus.
Millington, Edward, 270.
Minors and their property, 77, 1 69.
Miracle plays, 132, 133.
Mirror and Lamp of the Law, 134.
Mitchell, James, of Dykes, 58.
Mnemonics, topical, 219, 231.
Moderators, 157.
Moile, N. T., 7, 85.
Moisture in the humoral pathology,

238.

Molinaeus, see Dumoulin.
Mommerius, Aegidius, 224.
Monarch of law, 134.
Moncrieff, Hon. F. C., 6.
Monks, 183.

Montesquieu, C. de Baron, 211.
Montfalcon, J. B., 43.
Montserrat, 215.
Moore, Sir Thomas, 56.
Moot Courts, 187, 194.
Morison's Dictionary, v.
Mors omnia solvit, 49.

Moses, xiv, 154, 155.
Motherwell, William, 232.
Mouse traps, 179, 196, 225.
Mouse-Trap Mater, The, 181.
Miiller, Peter, 255.
Multiplepoinding, in, 112.
Mummy, human, 126.
Murder, 196.
Muret, 53.

Murner, Thomas, xiv.
Music a recreation for lawyers, 258.
Mystery plays, 135.

Nachtigall, Ottmar, 44.

Naples, 45, 128.

Nash, Thomas, 175.

Naude, Gabriel, 130.

Neaves, Charles, Lord Neaves, 13,

47, "3-

Nebulo Nebulonum, xiii, xiv.
Negotiorum gestor, 167.
Neil, Gabriel, 100.
Nequita advocatorum, 197, 206.
Neunhan, Heinrich, 258.
Nevizzano, Giovanni, 244, 247,

250, 254, 264, 266.
New Bath Guide, 71.
New Testament in verse, 19.
Niceus, C. S., 190.
Nichil Novit, a procurator, 80.
Nicholson, Renton, 118.
Niemann, C. A., 201.
Nisbet, Sir John, of Dirleton, 193.
Nisi, family of, 239.
Nivernois, 210.
Nobility of doctors, 249, 251.

of notaries, 251.

of procurators, 251.
Noisy trades, 253.
Non-appearance, certificate of, 137.
NOrdlingen, battle of, 242, 254.
Normandy, 36, 210.
North, Roger, 196, 273.
Notaries, 25, 138, 142, 161, 186
188, 201, 202, 204.

literary style, 59.

nobility, 251.

INDEX

295

Notarius, indoctus, 183.

Notarius peccans, 201.

Nova novorum novissima, 164.

Novel, the, 45.

Novella, 246.

Novelke, part of the Corpus Juris

civilis, 207.

of Joannes Andreae, 247.
Noy, William, Attorney General,

56.

Nugef legates, 109.
Nugef venales, 44, 1 24.
Nuremberg, 152, 157, 158, 171.

Oath, corporal, 156.

judicial, 158.

form of, 66.

of calumny, 59, 154, 184.

of credulity, 184.
Obsolete forms, 180.
Oceanus Juris, 245.
(Economia Juris, 174.
Oldbuck, Jonathan, 268.
Oldenburg, J. C. H., 35.
One should be just before he is

generous, 55.

Opinion, the common, 187.
Opizius Jocoserius, 121.
Orange, colour, 65.
Orchestra, 258.
Origen, 148.
Orleans, 210.
Or ley Farm, 45.
Orphans, defrauding of, 169.
Osio, Francesco, 251.
Otho, Cardinal, 272.
Otto, C. E., 50.
Outram, George, 8, 112, 208.
Overgreghi, la Festa d\ 109.

Padua, 189, 248.
Pagenstecher, A. A., 53.
Palladinus, Jacobus, 154, 158.
Pallas, 44.

Pancake Tuesday, 116.
Pandects, their eminence, 245.
See Justinian.

Panormitanus, see Tudeschis.
Pantagruel, 245.
Panzirolus, Guide, 48, 246.
Paper, coloured, 213.
Paracelsist, 201.
Paradise Lost, 214.
Paradoxes, 121, 125.
Parchment, 24, 70, 72, 74,

208.
Paris :

Custom of, 36, 210.

Parliament of, 117, 161, 217.

University of, 112.
Paris, Martial de, 160, 161.

Matthew, 250.
Parker, R. A., 202.
Parliament House, the, n.

Garland, 109.
Parodies, 12.
Parr, Samuel, 33.
Partnership, curious contract, 101.

law of, 34.

title on, in the Institutes, 34.

in the Digest, 167.
Parvi fures suspenduntur magni

dimittuntur, 49.
Passeret, Jean, 112.
Passion Plays, 132, 133.
Pastimes of lawyers, 256, 257.
Patria potestas, 252.
Patronus = counsel, 128.
Paul, Sir J. B., 15.
Peat, a, 176, 177.
Peebles, Poor Peter, 12, in, 184.
Peignot, E. G., 7, 43, 44, 208,

211, 214.

Peleus, Julien, advocate, 96.

Penna, Lucas de, 266.

Perfectus Doctor, 229, 238, 246, 249,

255, 256, 260, 265, 266, 267.
Perfervidum Scotorum ingenium,

232.

Perpetuities, rule against, 70.
Personal element in humour, 165.
Perugia, Law School of, 134, 249.
Phillip II., 171.
Phillips, Sir Edward, 28.

296

INDEX

Physician, the, 183, 273.

Pick, Edward, 218.

Pictures as aids to memory, 221,

222.

Pilate, Pontius, 134.
Pilatus, Judex, 131.
Pilgrim's Progress, The, 133.
Pimpernel and ratsbane, 186.
Pisacene, G. B., 33.
Pisan, Christine de, 247.
Pistorius, G. T., 50.
Pitaval, Guyot de, 97, 100.
Pitfalls, 181, 182.
Pitilloch, Robert, 177.
Plaidoyers burlesques, 95.
Plautus, 237.
Pleader, special, 74.
Pleader's Guide, 64, 71.
Pleading, 180, 182, 231, 233.
Pleas in law, 108, 150.
Pleydell, Counsellor, 260.
Poet and lawyer, relation of, 27.
Poetry and law, vi, 27, 67.

suitable form for laws, 24.
Poets, as authorities in law, 24.
Points of leading Cases into doggerel,
89.

PoitOU, 2IO.

TioXiTiKol (rrlv<M, 23.

Politische Schnuff-Tobacks-Dose, 185.

Politische Thee- und Coffe-Tassen, 191.

Polkemmet, Lord, 12.

Pollock, Sir Frederick, 85.

Poltrone, 189.

Ponendum, ad, 156.

Pons, Robert, 7.

Pons Asinorum, 3.

Pont, Gratien du, 96.

Pontan, J. L, 53.

Pope, Alexander, i, 68.

Pope, The, 173, 186, 226.

Boniface VIII., 209, 272.

Clement VII., 130.

Gregory IX., 135, 209.
XIII., 245.

Innocent III., 153.

John XXII., 202.

Julius III., 256.

Martin V., 204.
Popplestone, John, 16, 88.
Person, Professor, 72.
Portraits, 215.

Positions, Positiones, 150, 156.
Possession, 108, 140, 155.
Post nati, 84.

Practiser = practitioner, 272, 273.
Precedence of doctors, 253.
Predicables, 69.
Predicaments, the, 69, 229.
Presbyterians, 64, 65.
Presumptions, 227.
Principia legis et <equitatis, 54.
Printing, early, 209, 213.

en rouge et noir, 212, 213.
Priscian, 183.

Procedure, court, 18, 19, 97, 98,
104, 134 sqq., 154 sqq., 158,
184, 1 86, 187.

applied in illustration of serious
subjects, 131.

three persons necessary for, 138.
Process, forms of, 182.

their abuse, 182.

against the rats, 128.

steps of, 1 8, 158.

appeal from the Sheriff, in.

of augmentation, in.

cessio bonorum, in.

multiplepoinding, in, 112.

soumin and roumin, in.

wakening, in, 112.

mouse traps, 181.
Processus Luciferi, 132, 155, 158,
161.

Sathanas, 131, 134, 153, 154,

157, 161, 164.
Proctors, 79.

Procuration, letters of, 140, 154.
Procurator, appointment of a, 134,

J 35> 138, 140, r 54-
Procurators, xiii, 182, 186, 226,

251.

nobility of, 251.
Faculty of, in Glasgow, 80, 212.

INDEX

297

Procurators, of Nuremberg, 158.

Paris, 78, 1 1 8, 1 6 1, 164.

Roman, 204.

Scottish, 79, 80.
Proffatt, John, 7.
Promovent, 138.
Property, change of, 195.
Protagoras, the sophist, 2, 234.
Protocol, notary's, 186.
Proverbs, 47, 49, 52, 54, 133, 170,

2OI.

Dutch, 53.

French, 52, 198.

German, 48, 49, 51, 175, 201.

Roman, 55.

Scottish, 57, 58, 182.

Spanish, 113.

subject of dissertations, 49.
Prynne, William, 62.
Psalter for Litigants, 168, 169.
Psellus, M. C., 23.
Puer centum annorum, 239.
PufFendorf, Samuel, 126.
Pulicibus, Dissertatio de, 121, 128,

130.

Punctuatio, 146.
Pupils and their property, 169.
Purgatory, 159, 160.
Putte, F. van de, 37.
Pyxis nautica, 185.

Quadruplies, 97, 179.

Querela In/an (turn, 159.

Questions illustres, 7.

Quo minus, writ, 64, 65.

Quod mulieres non sunt homines,

125-
Quotations, Dictionary of, 217.

Rabelais, Fra^ois, 3, 8, 45, 245,

246.

Racine, Jean, 96, 108.
Rack, vertical, 217.
Ramus, Petrus, 112, 234.
Rarity as commendation of a book,

265, 268, 278.
Rath-Collegium, 240.

Rats, plague of, 128.

excommunication of, 128, 129.
Raf tray's Green Leaves, 214.
Rayger, Arnold, 252.
Rebhold, Christian, 222.
Reciprocus, the, a logical puzzle, 2.
Record in Rithme, 105.
Recreations of lawyers, vi, xiv,

255, 264.
Reddie, James, 207.

John, 171, 207.
Reed, Isaac, 274.
Redgauntlet, 12.
Reformation, the, 230.
Regiam Majestatem, vi, 242.
Registration court, 93.
Reid, John James, 15.
Reineke de Vos, 28.
Relations, greedy, 169.
Religio Jurisconsultorum, 201.
Remuneration, professional, 202.
Rennes, parliament of, 95.
Rent court, 104.
Replications, 150, 155.
Reports, law, in verse, 82.
Res judicata, 143.
Responsiones, 150.
Respublica Jurisccnsultorum, 45, 171.
Restitution, 143, 155.
Reus = defender, 138.
Revels, 258, 259.
Revenant, case of a, 126.
Reymond, Moritz von, 37.
Reynard the Fox, 28.
Rhoener, Fritz, 115.
Rhyme, use of, for law purposes,

3i 59> 95-

Rhythm in deeds, 25.
Richardson, John, 54.
Richter, C. P., 249, 254, 266.
Rinteln, University of, 185, 252.
Rivinus, A. F., 247.
Robe, bar, 77.

basse, 78.

black, 79.

courte, 78.

de laine, 78.

298

INDEX

Robe, long, 78.

prunella, 79.

scarlet, 79, 198.

short, 78, 199.

silk, 78.

stuff, 78.

wool, 78.

Robertson, Joseph, 208.
Rodd, Thomas, i.
Roman Curia, 202, 204.
Roman law,

metrical history of, 68.

inverse, 33, 35, 46.
Rome, 185.
Rondonneau, L., 161.
Rorarius, Hieronymus, 130.
Rosolin, J. W., printer, 242.
Ross, Rev. William, of Aberdour,i8.
Rostock, University of, 50.
Rottmann, Julius, 5.
Rouen, Parliament of, 168.
Rouge et noir printing, 212, 213.
Round-head, 65.
Royalists, 65, 106.
Royer-Duval, 46.
Rubrication, 213.
Ruediger, J. F., 171.
Ruggles, George, 102.
Rules of the road, 59, 114.
Russell, Lord John, 54.
Rutherfurd, Lord, 274, 275.
Ruy Gon9alves, 163, 243.

Sabell, E. W., 121, 124.

Sabellicus, Dr., 121, 122, 124.

Sachwalterinn, 137.

Saint Albion, H. de, 237.

Saint Bartholomew, massacre, 173.

Saint Edme, 117, 128, 129.

Saint Yves, 259.

Sale, contract of, 188.

Salomon et Marcolphus, 222.

Sampson, Dominie, 268.

Satan, 132, 134, 138.

Satans-Prozesse, 132.

Satyre Menippee, 112.

Saunders, Sir Edmund, 196, 258.

Savigny, F. K. von, 132, 146, 192,

209, 227, 246.
Scheffer, Sebastian, 68.
Schelmen Zunft, Das, xiv.
Schertius, J. G., 50.
Scherz, see Schertius.
Schiller of Gleiwitz,Amtsrichter,37.
Schlegd, J. H., 56.
Schlendrianus, 183.
Schmidt, J. P., 201.
Schneidewin, 182.
Schoeffer, Peter, 209, 213, 272.
Schoolmen, the, 3.
Schrifften-Steller, 183.
Schritzmeier, L., 201.
Schwalbach, 242.
Schwarzenberg, J. von, 217.
Schwert-magen, 30.
Scintilla Juris, 41, 176.
Scioppius, Caspar, 161.
Scotland, 211, 212, 260.

Acts of Parliament, 59, 212,
264.

College of Justice, 240.

Commissary court, 100.

Consistorial courts, 17, 100.

Convivial habits of lawyers, 260.

Court of Session, 12, 13, 14,

i9> 9. J 77i l8l 2 DO >

240.

Justiciary, 91.
Covenanters, 58.
Criminal law, 91, 92.
forms of action, 184.
General Assembly, 169.
language, 233, 273.
law, 57, 169, 1 8 1, 193, 242.
Parliament, 169.
printing, 212.
procedure, 104, 155.
proverbs, 58.
Registration court, 93.
Rent court, 104.
Sheriff court, 80, 99.
Small debt court, 224.
social drinking, 260.
style of pleading in, 231.

INDEX

299

Scott, Sir Walter, 1 2, 29, 49, 80,
94, 260, 262, 263, 267, 268,
269, 270.

Scottish language, 233, 273.
Scottish Pasquils, 216.
Scriba, 142, 199.
Scribe, the, 199.
Scriblerus, Cornelius, 229.

Martinus, i, 229.
Scrimger, Henry, 207.

Walter, 207.
Scurrilitas aleae, 256.
Sedan, 96.
Semayne's case, 85.
Senchus Mor, The, 23.
Senlis, 210.
Sens, 210.

Sentence, definitive, 156.
Sergius, J. A., 34, 45.
Sergius Polensis, will of, 43.
Serjeants at law, 259.
Sex, 237.

Sexes, their controversies, 96.
Shakespeare, 58.
Sham suits, 95, 115, 120, 121.
Shelley's case, 84.
Sheriff court, 80, 99.

Officers, 197.

Styles of Writs, 10.
Ship of fools, 175, 267, 278.
Short robe, 78.
Shrove-tide license, 116.
Simony, 226.
Simpsone, Andrew, 19.
Simrock, C. J., 175.
Single-speech Hamilton, 232.
Slevoigt, C. A. A., 183.
Slow-Coach, 183.
Smith, Adam, 276.
Smith, Robert, schoolmaster, 20.
Smuff, 185, 186, 188, 189.
Snuffy Davy, 269.
Society of Gentlemen Practisers,

. 273-
Solicitors, 78, 79, 81, 251.

a word of evil import in Scot-
land, 177.

conduct, 205.

Fleet and Wapping, 80.

history of, 16.

moral qualities, 205.

use of title in Scotland, 80, 177.

Solomon, King, xiv, 154, 155, 156.
the judgment of, 97.

Son, worthless, and his father's
property, 98.

bonder en Troest, Der, 215.

Sophists, 2.

Sots, Prince des, 96.
principaute des, 96.

Soumin an' Roumin, in.

Sousa de Macedo, Antonio de, 229,
238, 246,247,249,255,256,
260, 265, 266.

Soutar's Styles, 20.

South, Robert, 54.

Spain, Gothic laws of, 24.

Spangenberg, E. P. J., 164.

Spanish proverb, 113.

Spindel-magen, 30.

Spinetto, Albani de, 185, 188, 189,
190.

Spulzie, 155.

Stair's Institutions, ed. Brodie, 208.
ed. More, 208, 276.

Stanford's Crown Pleas, 234.

Stanley, Sir William, trial, 85.

State, doctors of laws required for
its well-being, 252.

State Trials in verse, 85.

Statuta ecclesite Scoticanee, 208.

Statutes, badly expressed, v, 176.

Stein, J. A., 201.

Stephani, Matthias, 249, 251, 254.

Stephen, Henry, 207.

Steven, G. A., Lecture on Heads, i.

Stewart, Sir James, 193.

Stintzing, R. von, 51, 132, 201.

Stolle, Gottlieb, 132, 159, 160, 161.

Straccha, Benvenuto, 55.

Strictures on the Characters of prac-
tising Attornies, 203.

Struthers, William, 47.

Stryk, Sam., 190, 201.

300

INDEX

Subpoena writ, 78.
Suffragettes, 225.
Suicide, xiv, 166, 218.
Sundays, doctors of laws may work

on, 255.

Susanna and the elders, 98.
Suspension, 108.
Swans, property in, 84.
Swift, Jonathan, 49, 226.
Syllogism, the : syllogistic form of

pleading, 232.
Sylva nuptialis, 244, 247, 250, 264,

265, 266.
Symbolical acts, 27, 28, 70.

Table of Fees, 202.
Tassara, Antonio, 182, 202.
Tegg, William, 7.
Teind cases, 113, 237.
Ten Thousand a year, 45.
Tenterden, Lord, 79.
Terrasson, Antoine, 43, 45.
Testament badly drawn, v, 176.
confirmation of, 169.
of Corocotta, 43, 48.

Cuspidius, 45.

Huschelin, 48.

Robin, 44.

Sergius Polensis, 44.
Testamentum omne morte con-

summatum, 126.
Testator, the, who makes his own

will, 14.
no right to dispose of his own

body, 125, 126.

Testimony requires -equality be-
tween intellect and will, 227.
Theft, what is, 167, 168.
Themis, n, 186, 189, 261.
Theodora, Fair of, 185.
Theodosian Code, 263.
Theodosius, Emperor, 148.
Theramo, Jacobus de, 154.
Theses, 200.

whimsical, 121, 251, 260.
Thorn, 174.
Thou, President de, 210.

Thou, J. A., 129, 210.
Tinker, the, 82.
Tips to servants, 166.
Tobacco, 185.
Tortura Gallica, 217.

Tholosana, 217.
Torture, the, 218, 252.
Tory, GeofFroy, 217.
Touchstone, pseudonym, 87.
Touraine, 210.
Tractatus doc tor urn Juris, 245.
Tractatus tractatuum, 229, 245.
Tractatus universi Juris, 245,249,256.
Tradesmen, broken, turned solici-
tors, 80.

Translation, faulty, 57.
Trautmann, F. A., 201.
Travel, books of, 264, 274.
Trayner, Lord, 57.
Tree of Knowledge forbidden to

man only, 222.

Trent, Council of, 160, 172, 214.
Trial,actual, turned into ridicule, 9 3 .

metrical reports of, 85.

mock, 116, 117, 118.
Tricks and artifices, 184, 201.
Triplies, 97, 179, 184.
Trumpet, golden, 150.

iron, 136.
Tubingen, University of, 172, 242,

252^ 254.

Tudeschis, Nicolaus de, 24,51,257.
Tullois, C. d'Acreigne, 96.
Tutor, suspect, 169, 221, 225.
Twelve Tables, laws of the, 22, 46.
Tye, Christopher, 19.

Ubaldis, Baldus de, 257, 266, 271.

Petrus de, 249.
Ubiquitists, 239.
Ulm, 214.
University, teaching of law at the,

187, 189, 228.
degrees, 17, 187, 189, 253.
claim against University for
conferring degree on incom-
petent doctor of laws, 255.

INDEX

301

University, degrees

granted to a horse, 190.
purchased, 189, 253.
law course should include pro-
cedure, 187.

Upstart words, 234, 235.
Utrecht, 34.
law of, 53.

Valdarfer, Christopher, 271.
Van Praet, Joseph, 208, 2 1 3.
Vavasseur, Fran9ois, 43.
Veitch, Professor John, 54.
Vellum, 208, 209, 210, 211, 217.
Venice, 36, 49, 185, 213, 245, 265.
Verduyn, Henricus, 126.
Verkehrter Jurist, 200.
Vermandois, 2 1 o.
Verse, Catechism in, 20.

Conveyancing in, 25.

Decalogue in, 20.

grammar, 21.

laws in, 19, 22, 52.

law reports in, 82.

New Testament in, 19.

Statutes in, 20.

Wills in, 31.
Verses, memorial, 59.
Vida, Marco Girolamo, 68.
Vidimus, 186.
Vindelin de Spira, 271.
Vinn ius, Arnold, 46, 1 40, 171,172.
Violence, 196.

Virgin Mary, 131, 134-151, 238.
Vitious intromission, 181.
Vocabulary of military terms, 216.
Voet, Jan, 140.
Volkmar, Leopold, 52.
Volpone, 1 86.

Votes for women, 239, 240.
Voyage to Laputa, 226.
Voyer d'Argenson, 163.
Vulteius, Hermann, 187.

Wakening, process of, in, 112.
Wald, see Am Wald.
Wallace, Edwin, 225.

Walpole, Horace, 71.

Wapping solicitors, 80.

Ward, Thomas, 203.

Waree, C. B., 5.

Warrell, John, 84.

Warren, Samuel, 45, 66, 79.

Watson, Lord, 90.

Watt, Francis, 5.

Waxen nose of the law, xiii, 174,

185, 188, 201.
Weber, Immanuel, 50.
Webster, John, 157, 205.
Wechel, Chretien, 132, 160.
Weise, Christian, 190, 191.
Weislinger, J. N., 63.
Wenssler, Michael, 209.
Wesenbecke, Matthaeus, 172.

Peter, 172.

Westminster Hall, 66.
Westphal, Andreas, 245.
Westphalia, secret tribunals of,

182.

Wharton, G. F., 56.
Whig colours, 65.
Whimsical dissertations, 121, 251,
260.

law cases, 95.

theses, 121, 251, 260.
Wibel, Joachim, 242.
Wiederholt, J. L, 174.
Wife, position of, 193, 242.
Wigs, lawyers', 13, 77, 106.

action regarding, 107.
Wilcox, H. S., 6.
Will, the, and the Intellect, 227.
Will, deficient in some formality,
192.

the testator who makes his own,
14.

See Testament.
Will, in verse, 31.
Williamson, Stephen, 100.
Willock, John, 5.
Wills and Succession, 191.
Wilson, Robert, 20.
Winchester, Psalm tune, 20.
Windmacherei, 200, 201.

302

INDEX

Wittenberg, University of, 56, 173,

229, 247, 257.
Woestine, Ambrosius de, 36.
Woldenberg, Christian, 49.
Woman and process compared,

"3-

Women, 96, 162, 227, 237, 241,

244.

apology for, 211.
administration of affairs, 241.
allowed to appear in Court on

behalf of the poor and others,

T-
as advocates, 137, 139, 241.

cannot be judges, 162, 163,

238.

exceptions to the rule, 163.
cannot be witnesses, 227.
councilloresses, 240.
disqualifications of, 242, 244.
doctors of laws, 244, 247, 248.
erudite, prejudice against, 244,

246, 247, 248.

excluded from civil office, 139,

222, 238, 242.
Latin of women, 238, 248.
learned in the law, 241, 246,

247, 248.

magistrates driving away women,

222, 237, 238.
married, law relating to, 86.
mathematicians, 248.
not made in the image of God,

222.

obstacles made to their advance-
ment, 244.
offices and jurisdictions may

descend to women, 140.
palaeographers, 248.
pre-eminence of, 222, 243.
principal potentates of Europe
in the sixteenth century, 173.
privileges and prerogatives, 163.
professors, 247, 248.
prudence, 238.
superiority claimed by men,

191, 242, 243.
tree of knowledge not forbidden

to Eve, 222.

tyranny of men, 242, 244.
unjust laws against, 242.
vindication of their rights, 242.
votes for, 239, 240.
Woodcuts, 212, 214, 216, 217.
Worde, Wynkyn de, 212, 244, 272.
World = war-old, 235.
Writers to the Signet, 8, 80.
W.S. explained, 80.

Zainer, Gtinther, 157, 214.
Zaunschliffer, O. P., 121, 123,

124, 128, 131.
Zedler, J. H., 159.
Zetzner, Lazarus, 225.
Ziletti, Francesco, 245, 264.
Zoepfl, Heinrich, 218.
Zurich, University of, 50.
Zyryck, Cornelius, 51.

BELIAL AND MOSES BEFORE KING SOLOMON, AS JUDGE
From Belial zu Tetttsch, Strassburg, 1508

GLASGOW : PRINTED AT THE UNIVERSITY PRESS
BY ROBERT MACLEHOSE AND CO. LTD.

PLEASE DO NOT REMOVE
CARDS OR SLIPS FROM THIS POCKET

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6231 Lawyers' merriments

IAM8