Yet I know
handsomely
and featly how to compose and settle them all.
Gargantua and Pantagruel by François Rabelais
cons.
Therefore is it that, after the manner and fashion
of your other worships, I defer, protract, delay, prolong, intermit,
surcease, pause, linger, suspend, prorogate, drive out, wire-draw, and
shift off the time of giving a definitive sentence, to the end that the
suit or process, being well fanned and winnowed, tossed and canvassed to
and fro, narrowly, precisely, and nearly garbled, sifted, searched, and
examined, and on all hands exactly argued, disputed, and debated, may, by
succession of time, come at last to its full ripeness and maturity. By
means whereof, when the fatal hazard of the dice ensueth thereupon, the
parties cast or condemned by the said aleatory chance will with much
greater patience, and more mildly and gently, endure and bear up the
disastrous load of their misfortune, than if they had been sentenced at
their first arrival unto the court, as not. gl. ff. de excus. tut. l. tria.
onera.
Portatur leviter quod portat quisque libenter.
On the other part, to pass a decree or sentence when the action is raw,
crude, green, unripe, unprepared, as at the beginning, a danger would ensue
of a no less inconveniency than that which the physicians have been wont to
say befalleth to him in whom an imposthume is pierced before it be ripe, or
unto any other whose body is purged of a strong predominating humour before
its digestion. For as it is written, in authent. haec constit. in Innoc.
de constit. princip. , so is the same repeated in gloss. in c. caeterum.
extra. de juram. calumn. Quod medicamenta morbis exhibent, hoc jura
negotiis. Nature furthermore admonisheth and teacheth us to gather and
reap, eat and feed on fruits when they are ripe, and not before. Instit.
de rer. div. paragr. is ad quem et ff. de action. empt. l. Julianus. To
marry likewise our daughters when they are ripe, and no sooner, ff. de
donation. inter vir. et uxor. l. cum hic status. paragr. si quis sponsam.
et 27 qu. 1. c. sicut dicit. gl.
Jam matura thoro plenis adoleverat annis
Virginitas.
And, in a word, she instructeth us to do nothing of any considerable
importance, but in a full maturity and ripeness, 23. q. para ult. et 23. de
c. ultimo.
Chapter 3. XLI.
How Bridlegoose relateth the history of the reconcilers of parties at
variance in matters of law.
I remember to the same purpose, quoth Bridlegoose, in continuing his
discourse, that in the time when at Poictiers I was a student of law under
Brocadium Juris, there was at Semerve one Peter Dandin, a very honest man,
careful labourer of the ground, fine singer in a church-desk, of good
repute and credit, and older than the most aged of all your worships; who
was wont to say that he had seen the great and goodly good man, the Council
of Lateran, with his wide and broad-brimmed red hat. As also, that he had
beheld and looked upon the fair and beautiful Pragmatical Sanction his
wife, with her huge rosary or patenotrian chaplet of jet-beads hanging at a
large sky-coloured ribbon. This honest man compounded, atoned, and agreed
more differences, controversies, and variances at law than had been
determined, voided, and finished during his time in the whole palace of
Poictiers, in the auditory of Montmorillon, and in the town-house of the
old Partenay. This amicable disposition of his rendered him venerable and
of great estimation, sway, power, and authority throughout all the
neighbouring places of Chauvigny, Nouaille, Leguge, Vivonne, Mezeaux,
Estables, and other bordering and circumjacent towns, villages, and
hamlets. All their debates were pacified by him; he put an end to their
brabbling suits at law and wrangling differences. By his advice and
counsels were accords and reconcilements no less firmly made than if the
verdict of a sovereign judge had been interposed therein, although, in very
deed, he was no judge at all, but a right honest man, as you may well
conceive,--arg. in l. sed si unius. ff. de jure-jur. et de verbis
obligatoriis l. continuus. There was not a hog killed within three parishes
of him whereof he had not some part of the haslet and puddings. He was
almost every day invited either to a marriage banquet, christening feast,
an uprising or women-churching treatment, a birthday's anniversary
solemnity, a merry frolic gossiping, or otherwise to some delicious
entertainment in a tavern, to make some accord and agreement between
persons at odds and in debate with one another. Remark what I say; for he
never yet settled and compounded a difference betwixt any two at variance,
but he straight made the parties agreed and pacified to drink together as a
sure and infallible token and symbol of a perfect and completely
well-cemented reconciliation, sign of a sound and sincere amity and proper
mark of a new joy and gladness to follow thereupon,--Ut not. per (Doct. ) ff.
de peric. et com. rei vend. l. 1. He had a son, whose name was Tenot
Dandin, a lusty, young, sturdy, frisking roister, so help me God! who
likewise, in imitation of his peace-making father, would have undertaken and
meddled with the making up of variances and deciding of controversies
betwixt disagreeing and contentious party-pleaders; as you know,
Saepe solet similis esse patri.
Et sequitur leviter filia matris iter.
Ut ait gloss. 6, quaest. 1. c. Si quis. gloss. de cons. dist. 5. c. 2. fin.
et est. not. per Doct. cod. de impub. et aliis substit. l. ult. et l.
legitime. ff. de stat. hom. gloss. in l. quod si nolit. ff. de aedil.
edict. l. quisquis c. ad leg. Jul. Majest. Excipio filios a Moniali
susceptos ex Monacho. per glos. in c. impudicas. 27. quaestione. 1. And
such was his confidence to have no worse success than his father, he
assumed unto himself the title of Law-strife-settler. He was likewise in
these pacificatory negotiations so active and vigilant--for, Vigilantibus
jura subveniunt. ex l. pupillus. ff. quae in fraud. cred. et ibid. l. non
enim. et instit. in prooem. --that when he had smelt, heard, and fully
understood--ut ff. si quando paup. fec. l. Agaso. gloss. in verb. olfecit,
id est, nasum ad culum posuit--and found that there was anywhere in the
country a debatable matter at law, he would incontinently thrust in his
advice, and so forwardly intrude his opinion in the business, that he made
no bones of making offer, and taking upon him to decide it, how difficult
soever it might happen to be, to the full contentment and satisfaction of
both parties. It is written, Qui non laborat non manducat; and the said
gl. ff. de damn. infect. l. quamvis, and Currere plus que le pas vetulam
compellit egestas. gloss. ff. de lib. agnosc. l. si quis. pro qua facit. l.
si plures. c. de cond. incert. But so hugely great was his misfortune in
this his undertaking, that he never composed any difference, how little
soever you may imagine it might have been, but that, instead of reconciling
the parties at odds, he did incense, irritate, and exasperate them to a
higher point of dissension and enmity than ever they were at before. Your
worships know, I doubt not, that,
Sermo datur cunctis, animi sapientia paucis.
Gl. ff. de alien. jud. mut. caus. fa. lib. 2. This administered unto the
tavern-keepers, wine-drawers, and vintners of Semerve an occasion to say,
that under him they had not in the space of a whole year so much
reconciliation-wine, for so were they pleased to call the good wine of
Leguge, as under his father they had done in one half-hour's time. It
happened a little while thereafter that he made a most heavy regret thereof
to his father, attributing the causes of his bad success in pacificatory
enterprises to the perversity, stubbornness, froward, cross, and backward
inclinations of the people of his time; roundly, boldly, and irreverently
upbraiding, that if but a score of years before the world had been so
wayward, obstinate, pervicacious, implacable, and out of all square, frame,
and order as it was then, his father had never attained to and acquired the
honour and title of Strife-appeaser so irrefragably, inviolably, and
irrevocably as he had done. In doing whereof Tenot did heinously
transgress against the law which prohibiteth children to reproach the
actions of their parents; per gl. et Bart. l. 3. paragr. si quis. ff. de
cond. ob caus. et authent. de nupt. par. sed quod sancitum. col. 4. To
this the honest old father answered thus: My son Dandin, when Don Oportet
taketh place, this is the course which we must trace, gl. c. de appell. l.
eos etiam. For the road that you went upon was not the way to the fuller's
mill, nor in any part thereof was the form to be found wherein the hare did
sit. Thou hast not the skill and dexterity of settling and composing
differences. Why? Because thou takest them at the beginning, in the very
infancy and bud as it were, when they are green, raw, and indigestible.
Yet I know handsomely and featly how to compose and settle them all. Why?
Because I take them at their decadence, in their weaning, and when they are
pretty well digested. So saith Gloss:
Dulcior est fructus post multa pericula ductus.
L. non moriturus. c. de contrahend. et committ. stip. Didst thou ever hear
the vulgar proverb, Happy is the physician whose coming is desired at the
declension of a disease? For the sickness being come to a crisis is then
upon the decreasing hand, and drawing towards an end, although the
physician should not repair thither for the cure thereof; whereby, though
nature wholly do the work, he bears away the palm and praise thereof. My
pleaders, after the same manner, before I did interpose my judgment in the
reconciling of them, were waxing faint in their contestations. Their
altercation heat was much abated, and, in declining from their former
strife, they of themselves inclined to a firm accommodation of their
differences; because there wanted fuel to that fire of burning rancour and
despiteful wrangling whereof the lower sort of lawyers were the kindlers.
That is to say, their purses were emptied of coin, they had not a win in
their fob, nor penny in their bag, wherewith to solicit and present their
actions.
Deficiente pecu, deficit omne, nia.
There wanted then nothing but some brother to supply the place of a
paranymph, brawl-broker, proxenete, or mediator, who, acting his part
dexterously, should be the first broacher of the motion of an agreement,
for saving both the one and the other party from that hurtful and
pernicious shame whereof he could not have avoided the imputation when it
should have been said that he was the first who yielded and spoke of a
reconcilement, and that therefore, his cause not being good, and being
sensible where his shoe did pinch him, he was willing to break the ice, and
make the greater haste to prepare the way for a condescendment to an
amicable and friendly treaty. Then was it that I came in pudding time,
Dandin, my son, nor is the fat of bacon more relishing to boiled peas than
was my verdict then agreeable to them. This was my luck, my profit, and
good fortune. I tell thee, my jolly son Dandin, that by this rule and
method I could settle a firm peace, or at least clap up a cessation of arms
and truce for many years to come, betwixt the Great King and the Venetian
State, the Emperor and the Cantons of Switzerland, the English and the
Scots, and betwixt the Pope and the Ferrarians. Shall I go yet further?
Yea, as I would have God to help me, betwixt the Turk and the Sophy, the
Tartars and the Muscoviters. Remark well what I am to say unto thee. I
would take them at that very instant nick of time when both those of the
one and the other side should be weary and tired of making war, when they
had voided and emptied their own cashes and coffers of all treasure and
coin, drained and exhausted the purses and bags of their subjects, sold and
mortgaged their domains and proper inheritances, and totally wasted, spent,
and consumed the munition, furniture, provision, and victuals that were
necessary for the continuance of a military expedition. There I am sure,
by God, or by his Mother, that, would they, would they not, in spite of all
their teeths, they should be forced to have a little respite and breathing
time to moderate the fury and cruel rage of their ambitious aims. This is
the doctrine in Gl. 37. d. c. si quando.
Odero, si potero; si non, invitus amabo.
Chapter 3. XLII.
How suits at law are bred at first, and how they come afterwards to their
perfect growth.
For this cause, quoth Bridlegoose, going on in his discourse, I temporize
and apply myself to the times, as your other worships use to do, waiting
patiently for the maturity of the process, full growth and perfection
thereof in all its members, to wit, the writings and the bags. Arg. in l.
si major. c. commun. divid. et de cons. di. 1. c. solemnitates, et ibi gl.
A suit in law at its production, birth, and first beginning, seemeth to me,
as unto your other worships, shapeless, without form or fashion,
incomplete, ugly and imperfect, even as a bear at his first coming into the
world hath neither hands, skin, hair, nor head, but is merely an inform,
rude, and ill-favoured piece and lump of flesh, and would remain still so,
if his dam, out of the abundance of her affection to her hopeful cub, did
not with much licking put his members into that figure and shape which
nature had provided for those of an arctic and ursinal kind; ut not. Doct.
ff. ad l. Aquil. l. 3. in fin. Just so do I see, as your other worships
do, processes and suits in law, at their first bringing forth, to be
numberless, without shape, deformed, and disfigured, for that then they
consist only of one or two writings, or copies of instruments, through
which defect they appear unto me, as to your other worships, foul,
loathsome, filthy, and misshapen beasts. But when there are heaps of these
legiformal papers packed, piled, laid up together, impoked, insatchelled,
and put up in bags, then is it that with a good reason we may term that
suit, to which, as pieces, parcels, parts, portions, and members thereof,
they do pertain and belong, well-formed and fashioned, big-limbed,
strong-set, and in all and each of its dimensions most completely membered.
Because forma dat esse. rei. l. si is qui. ff. ad leg. Falcid. in c. cum
dilecta. de rescript. Barbat. consil. 12. lib. 2, and before him, Baldus,
in c. ult. extra. de consuet. et l. Julianus ad exhib. ff. et l. quaesitum.
ff. de leg. 3. The manner is such as is set down in gl. p. quaest. 1. c.
Paulus.
Debile principium melior fortuna sequetur.
Like your other worships, also the sergeants, catchpoles, pursuivants,
messengers, summoners, apparitors, ushers, door-keepers, pettifoggers,
attorneys, proctors, commissioners, justices of the peace, judge delegates,
arbitrators, overseers, sequestrators, advocates, inquisitors, jurors,
searchers, examiners, notaries, tabellions, scribes, scriveners, clerks,
pregnotaries, secondaries, and expedanean judges, de quibus tit. est. l. 3.
c. , by sucking very much, and that exceeding forcibly, and licking at the
purses of the pleading parties, they, to the suits already begot and
engendered, form, fashion, and frame head, feet, claws, talons, beaks,
bills, teeth, hands, veins, sinews, arteries, muscles, humours, and so
forth, through all the similary and dissimilary parts of the whole; which
parts, particles, pendicles, and appurtenances are the law pokes and bags,
gl. de cons. d. 4. c. accepisti. Qualis vestis erit, talia corda gerit.
Hic notandum est, that in this respect the pleaders, litigants, and
law-suitors are happier than the officers, ministers, and administrators of
justice. For beatius est dare quam accipere. ff. commun. l. 3. extra. de
celebr. Miss. c. cum Marthae. et 24. quaest. 1. cap. Od. gl.
Affectum dantis pensat censura tonantis.
Thus becometh the action or process by their care and industry to be of a
complete and goodly bulk, well shaped, framed, formed, and fashioned
according to the canonical gloss.
Accipe, sume, cape, sunt verba placentia Papae.
Which speech hath been more clearly explained by Albert de Ros, in verbo
Roma.
Roma manus rodit, quas rodere non valet, odit.
Dantes custodit, non dantes spernit, et odit.
The reason whereof is thought to be this:
Ad praesens ova cras pullis sunt meliora.
ut est gl. in l. quum hi. ff. de transact. Nor is this all; for the
inconvenience of the contrary is set down in gloss. c. de allu. l. fin.
Quum labor in damno est, crescit mortalis egestas.
In confirmation whereof we find that the true etymology and exposition of
the word process is purchase, viz. of good store of money to the lawyers,
and of many pokes--id est, prou-sacks--to the pleaders, upon which subject
we have most celestial quips, gibes, and girds.
Ligitando jura crescunt; litigando jus acquiritur.
Item gl. in cap. illud extrem. de praesumpt. et c. de prob. l. instrum. l.
non epistolis. l. non nudis.
Et si non prosunt singula, multa juvant.
Yea but, asked Trinquamelle, how do you proceed, my friend, in criminal
causes, the culpable and guilty party being taken and seized upon flagrante
crimine? Even as your other worships use to do, answered Bridlegoose.
First, I permit the plaintiff to depart from the court, enjoining him not
to presume to return thither till he preallably should have taken a good
sound and profound sleep, which is to serve for the prime entry and
introduction to the legal carrying on of the business. In the next place,
a formal report is to be made to me of his having slept. Thirdly, I issue
forth a warrant to convene him before me. Fourthly, he is to produce a
sufficient and authentic attestation of his having thoroughly and entirely
slept, conform to the Gloss. 37. Quest. 7. c. Si quis cum.
Quandoque bonus dormitat Homerus.
Being thus far advanced in the formality of the process, I find that this
consopiating act engendereth another act, whence ariseth the articulating
of a member. That again produceth a third act, fashionative of another
member; which third bringing forth a fourth, procreative of another act.
New members in a no fewer number are shapen and framed, one still breeding
and begetting another--as, link after link, the coat of mail at length is
made--till thus, piece after piece, by little and little, by information
upon information, the process be completely well formed and perfect in all
his members. Finally, having proceeded this length, I have recourse to my
dice, nor is it to be thought that this interruption, respite, or
interpellation is by me occasioned without very good reason inducing me
thereunto, and a notable experience of a most convincing and irrefragable
force.
I remember, on a time, that in the camp at Stockholm there was a certain
Gascon named Gratianauld, native of the town of Saint Sever, who having
lost all his money at play, and consecutively being very angry thereat--as
you know, Pecunia est alter sanguis, ut ait Anto. de Burtio, in c.
accedens. 2. extra ut lit. non contest. et Bald. in l. si tuis. c. de opt.
leg. per tot. in l. advocati. c. de advoc. div. jud. Pecunia est vita
hominis et optimus fide-jussor in necessitatibus--did, at his coming forth
of the gaming-house, in the presence of the whole company that was there,
with a very loud voice speak in his own language these following words:
Pao cap de bious hillots, que maux de pipes bous tresbire: ares que de
pergudes sont les mires bingt, et quouatre bagnelles, ta pla donnerien
pics, trucs, et patacts, Sey degun de bous aulx, qui boille truquar ambe
iou a bels embis. Finding that none would make him any answer, he passed
from thence to that part of the leaguer where the huff-snuff, honder
sponder, swashbuckling High Germans were, to whom he renewed these very
terms, provoking them to fight with him; but all the return he had from
them to his stout challenge was only, Der Gasconner thut sich ausz mit ein
iedem zu schlagen, aber er ist geneigter zu stehlen, darum, liebe frawen,
habt sorg zu euerm hauszrath. Finding also that none of that band of
Teutonic soldiers offered himself to the combat, he passed to that quarter
of the leaguer where the French freebooting adventurers were encamped, and
reiterating unto them what he had before repeated to the Dutch warriors,
challenged them likewise to fight with him, and therewithal made some
pretty little Gasconado frisking gambols to oblige them the more cheerfully
and gallantly to cope with him in the lists of a duellizing engagement; but
no answer at all was made unto him. Whereupon the Gascon, despairing of
meeting with any antagonists, departed from thence, and laying himself down
not far from the pavilions of the grand Christian cavalier Crissie, fell
fast asleep. When he had thoroughly slept an hour or two, another
adventurous and all-hazarding blade of the forlorn hope of the lavishingly
wasting gamesters, having also lost all his moneys, sallied forth with
sword in his hand, of a firm resolution to fight with the aforesaid Gascon,
seeing he had lost as well as he.
Ploratur lachrymis amissa pecunia veris,
saith the Gl. de poenitent. distinct. 3. c. sunt plures. To this effect
having made inquiry and search for him throughout the whole camp, and in
sequel thereof found him asleep, he said unto him, Up, ho, good fellow, in
the name of all the devils of hell, rise up, rise up, get up! I have lost
my money as well as thou hast done; let us therefore go fight lustily
together, grapple and scuffle it to some purpose. Thou mayest look and see
that my tuck is no longer than thy rapier.
of your other worships, I defer, protract, delay, prolong, intermit,
surcease, pause, linger, suspend, prorogate, drive out, wire-draw, and
shift off the time of giving a definitive sentence, to the end that the
suit or process, being well fanned and winnowed, tossed and canvassed to
and fro, narrowly, precisely, and nearly garbled, sifted, searched, and
examined, and on all hands exactly argued, disputed, and debated, may, by
succession of time, come at last to its full ripeness and maturity. By
means whereof, when the fatal hazard of the dice ensueth thereupon, the
parties cast or condemned by the said aleatory chance will with much
greater patience, and more mildly and gently, endure and bear up the
disastrous load of their misfortune, than if they had been sentenced at
their first arrival unto the court, as not. gl. ff. de excus. tut. l. tria.
onera.
Portatur leviter quod portat quisque libenter.
On the other part, to pass a decree or sentence when the action is raw,
crude, green, unripe, unprepared, as at the beginning, a danger would ensue
of a no less inconveniency than that which the physicians have been wont to
say befalleth to him in whom an imposthume is pierced before it be ripe, or
unto any other whose body is purged of a strong predominating humour before
its digestion. For as it is written, in authent. haec constit. in Innoc.
de constit. princip. , so is the same repeated in gloss. in c. caeterum.
extra. de juram. calumn. Quod medicamenta morbis exhibent, hoc jura
negotiis. Nature furthermore admonisheth and teacheth us to gather and
reap, eat and feed on fruits when they are ripe, and not before. Instit.
de rer. div. paragr. is ad quem et ff. de action. empt. l. Julianus. To
marry likewise our daughters when they are ripe, and no sooner, ff. de
donation. inter vir. et uxor. l. cum hic status. paragr. si quis sponsam.
et 27 qu. 1. c. sicut dicit. gl.
Jam matura thoro plenis adoleverat annis
Virginitas.
And, in a word, she instructeth us to do nothing of any considerable
importance, but in a full maturity and ripeness, 23. q. para ult. et 23. de
c. ultimo.
Chapter 3. XLI.
How Bridlegoose relateth the history of the reconcilers of parties at
variance in matters of law.
I remember to the same purpose, quoth Bridlegoose, in continuing his
discourse, that in the time when at Poictiers I was a student of law under
Brocadium Juris, there was at Semerve one Peter Dandin, a very honest man,
careful labourer of the ground, fine singer in a church-desk, of good
repute and credit, and older than the most aged of all your worships; who
was wont to say that he had seen the great and goodly good man, the Council
of Lateran, with his wide and broad-brimmed red hat. As also, that he had
beheld and looked upon the fair and beautiful Pragmatical Sanction his
wife, with her huge rosary or patenotrian chaplet of jet-beads hanging at a
large sky-coloured ribbon. This honest man compounded, atoned, and agreed
more differences, controversies, and variances at law than had been
determined, voided, and finished during his time in the whole palace of
Poictiers, in the auditory of Montmorillon, and in the town-house of the
old Partenay. This amicable disposition of his rendered him venerable and
of great estimation, sway, power, and authority throughout all the
neighbouring places of Chauvigny, Nouaille, Leguge, Vivonne, Mezeaux,
Estables, and other bordering and circumjacent towns, villages, and
hamlets. All their debates were pacified by him; he put an end to their
brabbling suits at law and wrangling differences. By his advice and
counsels were accords and reconcilements no less firmly made than if the
verdict of a sovereign judge had been interposed therein, although, in very
deed, he was no judge at all, but a right honest man, as you may well
conceive,--arg. in l. sed si unius. ff. de jure-jur. et de verbis
obligatoriis l. continuus. There was not a hog killed within three parishes
of him whereof he had not some part of the haslet and puddings. He was
almost every day invited either to a marriage banquet, christening feast,
an uprising or women-churching treatment, a birthday's anniversary
solemnity, a merry frolic gossiping, or otherwise to some delicious
entertainment in a tavern, to make some accord and agreement between
persons at odds and in debate with one another. Remark what I say; for he
never yet settled and compounded a difference betwixt any two at variance,
but he straight made the parties agreed and pacified to drink together as a
sure and infallible token and symbol of a perfect and completely
well-cemented reconciliation, sign of a sound and sincere amity and proper
mark of a new joy and gladness to follow thereupon,--Ut not. per (Doct. ) ff.
de peric. et com. rei vend. l. 1. He had a son, whose name was Tenot
Dandin, a lusty, young, sturdy, frisking roister, so help me God! who
likewise, in imitation of his peace-making father, would have undertaken and
meddled with the making up of variances and deciding of controversies
betwixt disagreeing and contentious party-pleaders; as you know,
Saepe solet similis esse patri.
Et sequitur leviter filia matris iter.
Ut ait gloss. 6, quaest. 1. c. Si quis. gloss. de cons. dist. 5. c. 2. fin.
et est. not. per Doct. cod. de impub. et aliis substit. l. ult. et l.
legitime. ff. de stat. hom. gloss. in l. quod si nolit. ff. de aedil.
edict. l. quisquis c. ad leg. Jul. Majest. Excipio filios a Moniali
susceptos ex Monacho. per glos. in c. impudicas. 27. quaestione. 1. And
such was his confidence to have no worse success than his father, he
assumed unto himself the title of Law-strife-settler. He was likewise in
these pacificatory negotiations so active and vigilant--for, Vigilantibus
jura subveniunt. ex l. pupillus. ff. quae in fraud. cred. et ibid. l. non
enim. et instit. in prooem. --that when he had smelt, heard, and fully
understood--ut ff. si quando paup. fec. l. Agaso. gloss. in verb. olfecit,
id est, nasum ad culum posuit--and found that there was anywhere in the
country a debatable matter at law, he would incontinently thrust in his
advice, and so forwardly intrude his opinion in the business, that he made
no bones of making offer, and taking upon him to decide it, how difficult
soever it might happen to be, to the full contentment and satisfaction of
both parties. It is written, Qui non laborat non manducat; and the said
gl. ff. de damn. infect. l. quamvis, and Currere plus que le pas vetulam
compellit egestas. gloss. ff. de lib. agnosc. l. si quis. pro qua facit. l.
si plures. c. de cond. incert. But so hugely great was his misfortune in
this his undertaking, that he never composed any difference, how little
soever you may imagine it might have been, but that, instead of reconciling
the parties at odds, he did incense, irritate, and exasperate them to a
higher point of dissension and enmity than ever they were at before. Your
worships know, I doubt not, that,
Sermo datur cunctis, animi sapientia paucis.
Gl. ff. de alien. jud. mut. caus. fa. lib. 2. This administered unto the
tavern-keepers, wine-drawers, and vintners of Semerve an occasion to say,
that under him they had not in the space of a whole year so much
reconciliation-wine, for so were they pleased to call the good wine of
Leguge, as under his father they had done in one half-hour's time. It
happened a little while thereafter that he made a most heavy regret thereof
to his father, attributing the causes of his bad success in pacificatory
enterprises to the perversity, stubbornness, froward, cross, and backward
inclinations of the people of his time; roundly, boldly, and irreverently
upbraiding, that if but a score of years before the world had been so
wayward, obstinate, pervicacious, implacable, and out of all square, frame,
and order as it was then, his father had never attained to and acquired the
honour and title of Strife-appeaser so irrefragably, inviolably, and
irrevocably as he had done. In doing whereof Tenot did heinously
transgress against the law which prohibiteth children to reproach the
actions of their parents; per gl. et Bart. l. 3. paragr. si quis. ff. de
cond. ob caus. et authent. de nupt. par. sed quod sancitum. col. 4. To
this the honest old father answered thus: My son Dandin, when Don Oportet
taketh place, this is the course which we must trace, gl. c. de appell. l.
eos etiam. For the road that you went upon was not the way to the fuller's
mill, nor in any part thereof was the form to be found wherein the hare did
sit. Thou hast not the skill and dexterity of settling and composing
differences. Why? Because thou takest them at the beginning, in the very
infancy and bud as it were, when they are green, raw, and indigestible.
Yet I know handsomely and featly how to compose and settle them all. Why?
Because I take them at their decadence, in their weaning, and when they are
pretty well digested. So saith Gloss:
Dulcior est fructus post multa pericula ductus.
L. non moriturus. c. de contrahend. et committ. stip. Didst thou ever hear
the vulgar proverb, Happy is the physician whose coming is desired at the
declension of a disease? For the sickness being come to a crisis is then
upon the decreasing hand, and drawing towards an end, although the
physician should not repair thither for the cure thereof; whereby, though
nature wholly do the work, he bears away the palm and praise thereof. My
pleaders, after the same manner, before I did interpose my judgment in the
reconciling of them, were waxing faint in their contestations. Their
altercation heat was much abated, and, in declining from their former
strife, they of themselves inclined to a firm accommodation of their
differences; because there wanted fuel to that fire of burning rancour and
despiteful wrangling whereof the lower sort of lawyers were the kindlers.
That is to say, their purses were emptied of coin, they had not a win in
their fob, nor penny in their bag, wherewith to solicit and present their
actions.
Deficiente pecu, deficit omne, nia.
There wanted then nothing but some brother to supply the place of a
paranymph, brawl-broker, proxenete, or mediator, who, acting his part
dexterously, should be the first broacher of the motion of an agreement,
for saving both the one and the other party from that hurtful and
pernicious shame whereof he could not have avoided the imputation when it
should have been said that he was the first who yielded and spoke of a
reconcilement, and that therefore, his cause not being good, and being
sensible where his shoe did pinch him, he was willing to break the ice, and
make the greater haste to prepare the way for a condescendment to an
amicable and friendly treaty. Then was it that I came in pudding time,
Dandin, my son, nor is the fat of bacon more relishing to boiled peas than
was my verdict then agreeable to them. This was my luck, my profit, and
good fortune. I tell thee, my jolly son Dandin, that by this rule and
method I could settle a firm peace, or at least clap up a cessation of arms
and truce for many years to come, betwixt the Great King and the Venetian
State, the Emperor and the Cantons of Switzerland, the English and the
Scots, and betwixt the Pope and the Ferrarians. Shall I go yet further?
Yea, as I would have God to help me, betwixt the Turk and the Sophy, the
Tartars and the Muscoviters. Remark well what I am to say unto thee. I
would take them at that very instant nick of time when both those of the
one and the other side should be weary and tired of making war, when they
had voided and emptied their own cashes and coffers of all treasure and
coin, drained and exhausted the purses and bags of their subjects, sold and
mortgaged their domains and proper inheritances, and totally wasted, spent,
and consumed the munition, furniture, provision, and victuals that were
necessary for the continuance of a military expedition. There I am sure,
by God, or by his Mother, that, would they, would they not, in spite of all
their teeths, they should be forced to have a little respite and breathing
time to moderate the fury and cruel rage of their ambitious aims. This is
the doctrine in Gl. 37. d. c. si quando.
Odero, si potero; si non, invitus amabo.
Chapter 3. XLII.
How suits at law are bred at first, and how they come afterwards to their
perfect growth.
For this cause, quoth Bridlegoose, going on in his discourse, I temporize
and apply myself to the times, as your other worships use to do, waiting
patiently for the maturity of the process, full growth and perfection
thereof in all its members, to wit, the writings and the bags. Arg. in l.
si major. c. commun. divid. et de cons. di. 1. c. solemnitates, et ibi gl.
A suit in law at its production, birth, and first beginning, seemeth to me,
as unto your other worships, shapeless, without form or fashion,
incomplete, ugly and imperfect, even as a bear at his first coming into the
world hath neither hands, skin, hair, nor head, but is merely an inform,
rude, and ill-favoured piece and lump of flesh, and would remain still so,
if his dam, out of the abundance of her affection to her hopeful cub, did
not with much licking put his members into that figure and shape which
nature had provided for those of an arctic and ursinal kind; ut not. Doct.
ff. ad l. Aquil. l. 3. in fin. Just so do I see, as your other worships
do, processes and suits in law, at their first bringing forth, to be
numberless, without shape, deformed, and disfigured, for that then they
consist only of one or two writings, or copies of instruments, through
which defect they appear unto me, as to your other worships, foul,
loathsome, filthy, and misshapen beasts. But when there are heaps of these
legiformal papers packed, piled, laid up together, impoked, insatchelled,
and put up in bags, then is it that with a good reason we may term that
suit, to which, as pieces, parcels, parts, portions, and members thereof,
they do pertain and belong, well-formed and fashioned, big-limbed,
strong-set, and in all and each of its dimensions most completely membered.
Because forma dat esse. rei. l. si is qui. ff. ad leg. Falcid. in c. cum
dilecta. de rescript. Barbat. consil. 12. lib. 2, and before him, Baldus,
in c. ult. extra. de consuet. et l. Julianus ad exhib. ff. et l. quaesitum.
ff. de leg. 3. The manner is such as is set down in gl. p. quaest. 1. c.
Paulus.
Debile principium melior fortuna sequetur.
Like your other worships, also the sergeants, catchpoles, pursuivants,
messengers, summoners, apparitors, ushers, door-keepers, pettifoggers,
attorneys, proctors, commissioners, justices of the peace, judge delegates,
arbitrators, overseers, sequestrators, advocates, inquisitors, jurors,
searchers, examiners, notaries, tabellions, scribes, scriveners, clerks,
pregnotaries, secondaries, and expedanean judges, de quibus tit. est. l. 3.
c. , by sucking very much, and that exceeding forcibly, and licking at the
purses of the pleading parties, they, to the suits already begot and
engendered, form, fashion, and frame head, feet, claws, talons, beaks,
bills, teeth, hands, veins, sinews, arteries, muscles, humours, and so
forth, through all the similary and dissimilary parts of the whole; which
parts, particles, pendicles, and appurtenances are the law pokes and bags,
gl. de cons. d. 4. c. accepisti. Qualis vestis erit, talia corda gerit.
Hic notandum est, that in this respect the pleaders, litigants, and
law-suitors are happier than the officers, ministers, and administrators of
justice. For beatius est dare quam accipere. ff. commun. l. 3. extra. de
celebr. Miss. c. cum Marthae. et 24. quaest. 1. cap. Od. gl.
Affectum dantis pensat censura tonantis.
Thus becometh the action or process by their care and industry to be of a
complete and goodly bulk, well shaped, framed, formed, and fashioned
according to the canonical gloss.
Accipe, sume, cape, sunt verba placentia Papae.
Which speech hath been more clearly explained by Albert de Ros, in verbo
Roma.
Roma manus rodit, quas rodere non valet, odit.
Dantes custodit, non dantes spernit, et odit.
The reason whereof is thought to be this:
Ad praesens ova cras pullis sunt meliora.
ut est gl. in l. quum hi. ff. de transact. Nor is this all; for the
inconvenience of the contrary is set down in gloss. c. de allu. l. fin.
Quum labor in damno est, crescit mortalis egestas.
In confirmation whereof we find that the true etymology and exposition of
the word process is purchase, viz. of good store of money to the lawyers,
and of many pokes--id est, prou-sacks--to the pleaders, upon which subject
we have most celestial quips, gibes, and girds.
Ligitando jura crescunt; litigando jus acquiritur.
Item gl. in cap. illud extrem. de praesumpt. et c. de prob. l. instrum. l.
non epistolis. l. non nudis.
Et si non prosunt singula, multa juvant.
Yea but, asked Trinquamelle, how do you proceed, my friend, in criminal
causes, the culpable and guilty party being taken and seized upon flagrante
crimine? Even as your other worships use to do, answered Bridlegoose.
First, I permit the plaintiff to depart from the court, enjoining him not
to presume to return thither till he preallably should have taken a good
sound and profound sleep, which is to serve for the prime entry and
introduction to the legal carrying on of the business. In the next place,
a formal report is to be made to me of his having slept. Thirdly, I issue
forth a warrant to convene him before me. Fourthly, he is to produce a
sufficient and authentic attestation of his having thoroughly and entirely
slept, conform to the Gloss. 37. Quest. 7. c. Si quis cum.
Quandoque bonus dormitat Homerus.
Being thus far advanced in the formality of the process, I find that this
consopiating act engendereth another act, whence ariseth the articulating
of a member. That again produceth a third act, fashionative of another
member; which third bringing forth a fourth, procreative of another act.
New members in a no fewer number are shapen and framed, one still breeding
and begetting another--as, link after link, the coat of mail at length is
made--till thus, piece after piece, by little and little, by information
upon information, the process be completely well formed and perfect in all
his members. Finally, having proceeded this length, I have recourse to my
dice, nor is it to be thought that this interruption, respite, or
interpellation is by me occasioned without very good reason inducing me
thereunto, and a notable experience of a most convincing and irrefragable
force.
I remember, on a time, that in the camp at Stockholm there was a certain
Gascon named Gratianauld, native of the town of Saint Sever, who having
lost all his money at play, and consecutively being very angry thereat--as
you know, Pecunia est alter sanguis, ut ait Anto. de Burtio, in c.
accedens. 2. extra ut lit. non contest. et Bald. in l. si tuis. c. de opt.
leg. per tot. in l. advocati. c. de advoc. div. jud. Pecunia est vita
hominis et optimus fide-jussor in necessitatibus--did, at his coming forth
of the gaming-house, in the presence of the whole company that was there,
with a very loud voice speak in his own language these following words:
Pao cap de bious hillots, que maux de pipes bous tresbire: ares que de
pergudes sont les mires bingt, et quouatre bagnelles, ta pla donnerien
pics, trucs, et patacts, Sey degun de bous aulx, qui boille truquar ambe
iou a bels embis. Finding that none would make him any answer, he passed
from thence to that part of the leaguer where the huff-snuff, honder
sponder, swashbuckling High Germans were, to whom he renewed these very
terms, provoking them to fight with him; but all the return he had from
them to his stout challenge was only, Der Gasconner thut sich ausz mit ein
iedem zu schlagen, aber er ist geneigter zu stehlen, darum, liebe frawen,
habt sorg zu euerm hauszrath. Finding also that none of that band of
Teutonic soldiers offered himself to the combat, he passed to that quarter
of the leaguer where the French freebooting adventurers were encamped, and
reiterating unto them what he had before repeated to the Dutch warriors,
challenged them likewise to fight with him, and therewithal made some
pretty little Gasconado frisking gambols to oblige them the more cheerfully
and gallantly to cope with him in the lists of a duellizing engagement; but
no answer at all was made unto him. Whereupon the Gascon, despairing of
meeting with any antagonists, departed from thence, and laying himself down
not far from the pavilions of the grand Christian cavalier Crissie, fell
fast asleep. When he had thoroughly slept an hour or two, another
adventurous and all-hazarding blade of the forlorn hope of the lavishingly
wasting gamesters, having also lost all his moneys, sallied forth with
sword in his hand, of a firm resolution to fight with the aforesaid Gascon,
seeing he had lost as well as he.
Ploratur lachrymis amissa pecunia veris,
saith the Gl. de poenitent. distinct. 3. c. sunt plures. To this effect
having made inquiry and search for him throughout the whole camp, and in
sequel thereof found him asleep, he said unto him, Up, ho, good fellow, in
the name of all the devils of hell, rise up, rise up, get up! I have lost
my money as well as thou hast done; let us therefore go fight lustily
together, grapple and scuffle it to some purpose. Thou mayest look and see
that my tuck is no longer than thy rapier.
