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THE POETRY OF PLEADING. The Lawyers have as complete a mythology of their own as the old poets, and every trial has as regular a machinery as the Diad.-EsPriella's Leiters,
COURTEOUS reader! albeit thou be of the weaker sex, and as my Lord Coke hath it “ of roseat beauty,” let not thy judgment so misinterpret these “ mine own simple labours," as to turn away thine eyes in displeasure from what thou imaginest to be merely a dusty and unintelligible disquisition. For know it is not here intended to delight merely the eyes of “grave men and singularly well learned,” but so to treat of these lofty matters as that the lay-gents (for so the ancient text-books do denominate all those persons who are not skilled in the learning of the laws)—that the lay-gents shall understand the exposition of the things herein treated of, and understanding, shall admire. Nor shall I so far “ follow the scent of high-swelling phrases," as by the introduction of jaw-breaking words, vocubula artis as our Lord Chief Justice hath termed them, to endeavour after admiration through the ignorance of the uninitiated. Do not then, I pray thee, gentle reader, so far vilipend mine efforts as to think I would load the delectable pages of this work with the mere caput mortuum of legal research; and if perforce thou findest me travelling some little way into the realms of a more antique learning, yet pardon me, " for assuredly out of the old fields must spring and grow the new corn.”
As the grave judgment of man is ever accompanied with some portion of imagination, so hath every science and pursuit a poetry of its own, where a loose is given to the fancy and the imagination, which are permitted to run riot over the ground wherein the judgment hath no jurisdiction. It is in this sense, that worthy Dr. Warton hath affirmed Titus Livy to be a great poet, whereas, in strict parlance, he never wrote a stave of poetry; and it is in this sense that some one whom I forget hath said that" dancing is the poetry of motion ;” in this sense also is it that I intend the Poetry of Pleading. Until this latter century or two, there was a vast portion of poetry intermingled with every science. He was the best astronomer who could imagine the most improbable systems, and the best chemist who could feign more marvellous effects of his art than others; and truly to read the volumes of this ancient lore, no small portion of the imagination was expended in these sciences. That great arch-enemy of fiction, Sir Isaac Newton, Knight, robbed the celestial sciences of these their poetic ornaments, while a similar progress hath been proceeding in almost every other branch of human inquiry :-nay, even the vaulted chambers of the earth have been deprived of their awe-inspiring mysteries, and the dull reality of his fire-lamp enableth Sir Humplirey Davy to work as great wonders as ever Aladdin did. 'Tis a melancholy sight, and a dismal one, thus to behold the great dominions of Fancy gradually surrounded, hemmed in, and apportioned, by her enemies; and it is with a true and perfect satisfaction that mine eyes can turn to one of her richest provinces yet whole and undisturbedthe great province of Legal Funcy. Whatever other disastrous attacks have laid waste her territories, whatever other pretended reformations have been wrought, this portion of the great fairy-land is still safe. No sacrilegious hand hath ever yet attempted to deprive the law of its fictions. The fervent imaginations of our ancestors have descended to us unimpaired, and woe befal the daring hand that shall endeavour to destroy the beautiful system of our legal poetry! What! shall our Castor and Pollux, our Nisus and Euryalus, our John Doe and Richard Roe, live no more?
Let me, however, in this early stage of my labours render myself intelligible to the lay-reader ; and let me explain that pleading, as herein used, signifieth the science not of advocating a cause, but of skilfully preparing all those written documents, which contain the statement of the grievance committed, and the reply of the party accused ; a science which hath been well called “ the heart-string of the common law.” But now to our subject more closely.
Imprimis, the soul and spirit both of Law and Poetry are one and the same. Fiction is the heart and life of both the sciences. Can any renowned epic furnish more strict and correct examples of perfect fiction than are to be found in the common action of ejectment, which a late learned and eloquent Chief Justice hath truly called the “creature of Westminster Hall," for, of a surety, no other place can claim so ingenious an invention. In that form of proceeding all the dramatis personæ are purely imaginary, and the facts whereon the judge and jury are to form their grave opinion, are wholly fabricated and untrue, This then, reader, is the fable-John Doe (who sometimes enjoyeth the appellatives of Goodtitle, Holdfast, Goodclaim, or Fairman,) com, plaineth of Richard Roe, (otherwise known by the name of Badtitle, Thrustout, or Quarrelsome,) for having expelled him from an imaginary farm, which is feigned to have been let by some person to the said John for a certain number of years. How truly imaginative is all this ! And mark how beautifully the fiction is connected with the reality! Richard Roe inditeth an epistle to the unfortunate individual of flesh and blood, whose property is involved in this fabulous proceeding, acquainting him with the singular fact of his ancient friend Doe having commenced an action against him, and desiring the aforesaid unfortunate individual to enter into their airy quarrel, or that otherwise by legal magic he will be deprived of his substantial property. This brotherly communication Richard signeth “ your loving friend ;” and luckless indeed is the man of flesh and blood if he despiseth the admonition of his shadowy adviser. Poetry is defined by the stagyrite to be the imitation of an action ; but what poetry can be found so purely fictitious as the action of ejectment; what heroes can vie with Doe and Roe? before whom Achilles and Hector, Æneas and Turnus, are enforced to bend their diminished heads. I would, but that my limits are scant, remark a little on the peculiar characters of these our two most celebrated legal heroes, and I would fain draw a short parallel between them and the boasts of antiquity. Indeed there is in the character of Roe so exceeding a boldness, and so marvellous a pertinacity of purpose, that I doubt much whether in the ancient and modern world conjoint, so extraordinary a character could be produced. The unextinguishable zeal and courage with which after a thousand successive defeats he again attacketh the victorious Doe, are examples of heroism which the records of our courts of justice alone possess. And note, also, the commendable conduct of Doe, who, though thus repeatedly aggrieved, still appealeth to the laws of his country for protection, and is content to repeat for the thousandth time his well-remembered complaints into the listening ear of justice. It is worthy of observation too, that these fierce contentions seem not to disturb the private friendship which hath always existed between Doe and Roe, whose names are ever found conjoined when the necessities of a friend call on them to appear as his pledges to prosecute. This is truly great, and far above the hostile virtues of the heroes of antiquity.
How exceeding poetical too are the strong, powerful, and vivid pictures which the language of our law occasionally displayeth! What votary of the Muses hath ever drawn any thing like the following horrid portraiture? It is compact of terrors ; and what a marvellous addition to the shocking detail is the minute accuracy with which every particular is described ! “ It was presented, that the said William Toomes on the said 4th day of June, in the said year of our Lord 1655, being by himself in his bedchamber in the house of Paul Pinder, Gent. situate and being in the said parish of St. Buttolph, Bishopgate, in the ward aforesaid, and not having God before his eyes, but being moved and seduced by the instigation of the Devil, then and there, to wit, on the said 4th day of June, in the said year of our Lord 1655, took into his hand a certain piece of bed-cord of the value of one penny, and did then and there tie and fasten one end of the said piece of bed-cord to a pillar of the window of the said bed-chamber, and the other end of the said piece of bed-cord around the neck of him the said William Toomes, then and there standing and being upon the edge of the said window : and that he the said William Toomes (one end of the said piece of bed-cord being put, placed, and fastened upon the pillar of the said window, and the other end of the said piece of bed-cord around the neck of him the said William Toomes, in manner and form aforesaid) feloniously, wilfully, and as a felon of bimself, did then and there slide and throw the body of him the said William Toomes from off the said ledge of the said window: and by such tying, placing, and fastening of both ends of the said piece of bed-cord as aforesaid, and by such sliding and throwing of the body of bim the said William Toomes from off the said ledge of the said window, he the said William Toomes then and there, with the said piece of bedcord, wilfully, feloniously, and as a felon of himself, did hang, choak, and strangle himself, of which said hanging, choaking, and strangling, in manner and form aforesaid, he the said William Toomes, then and there, to wit, on the said 4th day of June, in the said year of our Lord 1655, at London aforesaid, in the parish and ward aforesaid, instantly died.” Saunders's Reports, I. 355.—The pleadings in an action of trespass, too, furnish occasionally a fine specimen of poetical amplification of expression. If the defendant hath touched the plaintiff on the shoulder with a switch, he will, perchance, be represented as having with sticks, staves, swords, and bludgeons, struck him a great many and violent blows, in and upon his face, breast, shoulders, back, and stomach. If this be not poetical, I marvel what it is.
What playwright, I would ask, hath ever adhered to the great unities of time and place, with the laudable pertinacity of a common lawyer? Hath not the whole Term been construed but one day to preserve them? And hath not the astute practitioner “coped with things impossible,” lest they should be violated? What tragedian, in the observance of this principle, hath ever sacrificed probability so completely, as the pleader when he relateth, for example, the stranding of a ship on the banks of Newfoundland, in hoc modo. And that the said ship afterwards, and during the said voyage, to wit, on &c. in parts beyond the seas, to wit, at Newfoundland, to wit, at London, in the parish of Saint Mary le Bow, in the ward of Cheap, was stranded, &c.”. Compared with this, it was indeed a scant and poor conceit which imagined a vessel wrecked upon the shores of Bohemia.
There are, moreover, certain other fictions of law which may well vie with any thing which poet hath ever yet produced. Is an estate without any visible owner?--the law, with an oriental boldness of imagery, declareth that it is in nubibus, in the clouds ! or adopting a more tender and beautiful phrase, saith it reposeth in gremio legis. I fear I shall scarcely be able, in these my narrow limits, to explain to the lay-reader the meaning of the scintilla juris, which our lawyers foster like the sacred fires of Vesta, though I am forced to confess that it hath been blown upon by some. However, it is a singularly happy figure. Then again, how magnificent a maxim of law is that which tells us that the King can never die. Nay the potency which could thus confer immortality, formerly accomplished a greater task, and doomed a man to be dead while he yet lived. Before our monasteries were dissolved, if any one became a monk he was accounted civiliter mortuus, that is to say, he was civilly put to death, and executors were appointed who administered all his effects. These are but a few instances of the splendid Alights of imagination wherein our law occasionally delighteth to indulge.
And think not, lector benevole, that the science of the law lacketh the aid even of measured verse. It is in no wise contrarient to that grave and serious science, to array itself upon occasion in the gauds and trappings of poetical measures. The learned student must doubtless have remarked how very nearly do many of our legal proceedings run as it were naturally into verse. Exempli gratia, I will cite truly from the most erudite Reports of that very venerable judge Sir Edmund Saunders, Knight, (sometime Chief Justice in Banco Regis, a lawyer of most profound and judicial knowledge, and withal of a bhithe complexion) the commencement of the record in Holdipp v. Otway, Il. 102. wherein the manifest truth of the above opinion will appear. The sentence runneth in hæc verba.
“Our Lord the King hath sent to his beloved and trusty Sir John Vaughan, Knt. his Chief Justice of the Bench, his writ close in these words, to wit, &c." Truly the sentence maketh excellent verse.
“ Our Lord the King hath sent to his beloved
And trusty Sir John Vaughan, Knight, his Chief Justice
O'th' Bench, his writ close, in these words, to wit,">&c. If need were, grave authorities are not wanting to prove that originally all laws were written in verse, and that even in our English courts there be many notable examples of the love and respect wherewith the Muses are regarded. The ancient laws of Spain were chanted in verse; and it hath been said that the civil law consisted of thirty thousand verses, God bless the mark! It is, however, only by stealth and morsels, that the art of versification hath crept into practice amongst our own lawyers, whereof ensue some noticeable instances. Two poetical wills have been proved in the Prerogative Court of the Archbishop of Canterbury; and the rolls of divers and sundry of our copyhold menors exhibit the customs in verse. And here let me venture, pace tua, lector benevole, to present thee with a short and delectable report in verse, of a cause heretofore decided in K. B.-Note, it was a settlement case, and is reported in Burn's Justice.
A woman having a settlement
Married a man with none,
If that she had was gone.
Suspended doth remain,
Chorus of Puisne Judges :
It doth revive again. I would fain garner up the many pleasant instances which lie scattered abroad in the volumes of our elder lawyers; for, credit me, they would form a right musical anthologia. Howbeit, learned reader, I will only propose unto thee one or two marvellous sweet passages from the honeyed pages of wise Sir Edward Coke, which shall inform thee how poetical a genius that most learned clerk did possess. In what poet didst thou ever read a more lively and natural simile than the following. My lord speaketh of the readers in the Inns of Court. “But now readings have lost the said former qualities, have lost also their former authorities : for now the cases are long, obscure, and intricate, full of new conceits, liker rather to riddles than lectures, which when they are opened they vanish away like smoke; and the readers are like to lapwings, which seem to be nearest their nests when they are farthest from them, and all their study is to find nice evasions out of the statute.” Co, Litt. 280. One more ensample and I conclude. It mindeth me much of the figure made use of by a famous statesman now no more. “Our student shall observe that the knowledge of the law is like a deep well, out of which each man draweth according to the strength of his understanding. He that reachetb deepest, he seeth the amiable and admirable secrets of the law, wherein I assure you
the sages of the law in former times have had the deepest reach. And as the bucket in the depth is easily drawn to the uppermost part of the water (for nullum elementum in suo proprio loco est grave), but take it from the water it cannot be drawn up with a great difficultie; so albeit beginnings of this study seem difficult, yet when the professor of the law can dive into the depth, it is delightful, easy, and without any heavy burthen, so long as he keep himself in his own proper element.” Co. Litt. 71. Vale. From my moiety of a petit chamber in Medio Templo. Trin. Term. 3 G. IV.