‘As for you too, my Lords,’ replied Bridoye, ‘they serve me in three manners, exquisite, requisite and authentic.
‘First, it is a matter of due process, the omission of which renders actions invalid,
as is very well proven by Speculator, title, “On the Publication of Documents”, and the title, “On the Presentation of a Rescript”;
moreover you are only too aware that, in legal procedures, formalities often demolish materialities and substantialities,
for, The form changed, the substance changes; Pandects: “For the Exhibiting”; the Law Julianus; note on the Law Falcidia; the Law, “If he who has forty”; and, Extravagantes, “Concerning Tenths”; the Canon, “For an Audience”; and “On the Celebration of Masses”, the chapter, “In a certain case”.
‘Secondly, they serve me, as they serve you too my Lords, as an honourable and healthy exercise. The late Professor Othoman Vadere, a great physician (as in the Codex, “On the Officers and the Archiatrus”, Book 12), has many times informed me that a lack of physical exercise is the sole cause of the poor health and shortness of life of judges like you, my Lords, and all officers of the Court;
as has been very well noted by Bartholus in Law 1, Codex, “Of the Judgements for That Which”.
‘And to you, my Lords, and consequently to us,
since, An Accessory conforms to the Nature of the Principal (as in “On the Rules of Law”, Book VI, and the Law, “When the Principal”; and the Law, “Nothing by Trickery”, Pandects, same title: “Of Guarantors”, and Extravagantes, “On the Duties of Legates”);
have been allowed certain honourable and recreational exercises,
as in Pandects: “On Games of Dice and Chance”, the Law, “They usually”; and in the Authentica, “That all should obey”, near the beginning, collation 7; and Pandects: “Of Words Prescribed”; the Law, “If Gratuitous”; and Law 1, Codex: “Of Displays”, chapter 11.
‘And such is the opinion of Saint Thomas, in Secunda Secundae, question 168,
very appositely cited by Doctor Albericus de Rosate, who was a great legal practitioner and a renowned authority, as is attested by Barbatia in his Counsels to Princes; the reason for which is expounded by the gloss, Preamble of the Pandects, “Not even of the third”: Interpose at times joys betwixt thy cares.
‘Now, actually, one day in 1498, having as I did a financial problem in the Chambers of the General Secretaries of the Treasury, and securing an entry by a pecuniary arrangement with the usher, since you too, my Lords, know that All things are obedient to money,
so says Baldus in the Law, “Singularities”; Pandects: “If a Precise Demand”; and Salycetus in the Law, “Of Receipts”; Pandects: “On Financial Constitutions”; and the Cardinal, in the Clementines, 1, “Of Baptisms”,
‘I found them all healthily exercised in playing Swat that Fly – that Muscus – whether before or after a meal is quite indifferent, conceding – nota bene – that the game of Muscus is honourable, healthy ancient and legal, invented by a certain Muscus,
concerning whom see Codex, “Of Petitioning for an Inheritance”, the Law, “If after a Removal”; and Muscarii25 – id est such as play at “Swat that Muscus” – are in law excusable (Law 1, Codex: “Of the Excusing of Artifices”, Book 10.
‘Now on that occasion the part of the fly was played, as I recall, by Magister Tielman Picquet, who was laughing at the Gentlemen of the Chamber aforesaid who were all spoiling their bonnets by thwacking his shoulders with them. He nevertheless told them that they would not be found forgivable by their wives when they got home from the Palais with battered bonnets;
as in Canon 1, Extravagantes, “Of Presumption”, and the gloss thereunto.
‘Now then, I would dare say [like you too, my Lords,] that there is no exercise in the world of the Palais de Justice equal to, or more sweet-smelling than, the emptying of bundles, scrabbling over papers, annotating files, filling up brief-bags and examining cases
according to Bartolus and Johannes de Prato in the Law, “On Errors of Conditions and Demonstrations”, Pandects.
‘Thirdly, just like you, my Lords, I consider that Time ripens all things; that Time brings all things to light, that Time is the Father of Truth
as in the gloss on Law 1 of the Codex, “Of Servitudes”; Authentica, “Of Restitutions, and of the Woman who gives birth”; and Speculator, title, “Of Requests for Advice”.
‘That explains why, just like you, my Lords, I prorogue, stay and postpone my judgement in order that the suit, having been thoroughly ventilated, sifted through and disputed over, may come in due time to maturity, so that the decision thereafter reached by lots may be borne more kindly by the losing parties,
as is noted by the gloss on Pandects, “Of Excusing the Tutelage”, the Law, “Three Burdens”:
Kindly is borne what is willingly borne.
‘If you were to judge it at the outset, when it is unripe and green, there would be a danger of the mischief which the physicians say occurs when one lances a boil before it is ripe or purges the human body of some nocive humour before it has been concocted,
for, (as it is written in the Authentica: “This Constitution”, Innocent IV, First constitution, and repeated in the gloss on the Canon “But”; Extravagantes: “Of Sworn Calumnies”): “What Medicines Do for Illnesses Justice Does for Difficulties”.
‘Nature moreover teaches us: to pick our fruits and eat them when they are ripe;
Institutes, section, “Of the Cause”, paragraph, “The One to Whom”, and in the Pandects: “On the Acquisitions of the Buyer, the Law Julianus”;
to marry young girls when they are ripe;
(Pandects: “Of Gifts between Husband and Wife”; the Law, “When this Statute’, paragraph, “If one Weds” [and question 27, chapter 1, as stated in the gloss: “Her virginity has blossomed and grown ripe in years for the marriage-bed”];)
and to do nothing save when fully ripe, (23, question 2, ultimate paragraph, and 33, ultimate canon).’
How Bridoye tells the story of an Appointer of lawsuits
CHAPTER 41
[Was originally Chapter 39.
‘Appointers’ arrange a settlement or bring opposing parties to reach an agreement out of court. (The name existed in English well before Rabelais.) The French equivalent, appointeur allows of a pun on à point (ripe, as of fruit), which is exploited by Rabelais here.
The reader is at last jokingly informed of what many in the Renaissance would have already realized: Bridoye’s legal references are commonplaces taken from the Brocardia Juris (and other accessible legal works). Why, his very teacher was a lecturer called Professor Brocardium Juris!
Concile de Latran with his red hat, and his wife Pragmatique Sanction are probably carnavalesque figures. The fifth Lateran Council (1512–17) was convened by Julius II to invalidate the decrees of the anti-papalist, French-supported Council of Pisa. The Pragmatic Sanction of 1493 defended the liberties of the Gallican Church against Rome. Rabelais was no supporter of such freedoms or of University freedoms if they sheltered those bodies in France from the powers of the French monarchs.]
‘While on the subject,’ continued Bridoye, ‘I remember that when I was a law student at Poitiers under Professor Brocadium Juris there was at Smarve a certain Perrin Dendin, a decent fellow, a good ploughman, a good bass in the quire-stalls, a trustworthy man and as old as the oldest amongst you, my Lords, who claimed to have seen that grand old man Concile de Latran with his red hat, together with his wife Pragmatique Sanction in her grey-blue satin dress and her huge jet-black prayer-beads.
‘That good man settled more lawsuits than were adjudicated in the whole of the Palais de Justice at Poitiers, the court-house of Montmorillon, and the Hall of Parthenay-le-Vieux put together, which caused him to be respected in all the neighbourhood. In Chauvigny, Nouaillé, Croutelle, Aigne, Ligugé, La Motte, Lusignan, Vivonne, Mezeaux, Etable and their surrounding countrysides, all the quarrels, suits and controversies
were adjudicated by him as by the ultimate judge, although he was not himself a judge but a good man.
See the Argument on the Law, “If of One Only”, Pandects: “Of Oaths”, and “On the Obligations of Words”, the Law, “Continuously”.)26
‘Not a pig was slaughtered in the whole neighbourhood without his having a slice or two of roast pork and some black-puddings. He was almost daily a guest at banquets, feasts, weddings and christenings, at parties after the Churching of Women and in the tavern, in order, you understand, to arbitrate, for he never produced any arbitration without first obliging the opponents to drink together as a sign of their perfect agreement, reconciliation and new-found joy,
as is noted by the Doctors-of-Law on Pandects: “Of the Perils and Concerns Touching the Object Sold”, Law 1.
‘He had a son called Tenot Dendin, a lumping great yokel and (so help me God) a decent fellow who desired to undertake similarly to reconcile litigious parties; for you know that,
Similar to the father his son not seldom seems.
And the daughter lightly delights in her mother’s ways.
As state:
the gloss, Question 6, Canon 1, “If Anyone”, and the gloss on “Constancy”, division 5, chapter 1, towards the end; and as is noted in the Codex by the Doctors-of-Law, “Of Those below the Age of Consent, and Substitutions of Others”, the final law; and the Law, “Legitimate”; Pandects: “Of the Human Condition”, gloss on the words “If he wish not”; Pandects: “Of the Edicts of Aediles”; the Law, “Who”; Pandects: on the Law Julia ref. Lèse-majesté:
I make an exception for the children begotten by a monk of a nun,
as in the gloss on the Canon, “Shameless Persons”, 27, question 1.
‘Now amongst the titles he gave himself was Appointer-of-Lawsuits. In that business he was active and vigilant, for,
“To the Vigilant laws come in aid”, according to the Law, “Pupil”, Pandects: “Things Fraudulently Believed”, and the same, the Law, “Not indeed”, or in the Preamble to the Institutes;
for, no sooner did he hear of a lawsuit or quarrel anywhere in that country or have sense of it –
scent as in the Pandects: “If a Quadruped does damage”, the law “Ostler”, gloss on the verb olfecit (flaired), that is, “put its nose to her arse” –27
he would set about reconciling the parties.
‘It is written, “He who labours not, let him manger not”;28
and thus says the gloss on Pandects: “Of Damages Caused”; ‘the Law, “Although”;
and, “From necessity the old woman trots plus que le pas”29
as in the gloss on Pandects: “Of the Recognition of Children”, the Law, “If a Man Acts for Some Woman”; the Law, “If”, Codex: “Of Conditions Inserted”.
‘But in that business he was so unfortunate that he failed to settle any quarrel whatsoever, no matter how piddling it was. Instead of settling them he further aggravated and embittered them. You know, my Lords, that Speech is given to all: wisdom to few,
see the gloss on Pandects: “Of Transfers Made to Change a Judgement”, law 2;
and the innkeepers of Smarve complained that, in a whole year under him, they never sold as much of the Wine of Appointment – as they called the good wine of Ligugé – as they did in half-an-hour under his father.
‘So it came to pass that he moaned about it to his father, attributing the causes of his rebuffs to the waywardness of folk in his day and age, telling him frankly that if folk had previously been so wayward, litigious, unruly and irreconcilable, he – that father of his – would never have acquired such unshakable honour and title of Appointer of Lawsuits. By so doing, Tenot was acting contrary to the dictates of the Law, in which it is forbidden for children to utter reproaches against their fathers:
according to the gloss (and also to Bartholus) on Law 3, paragraph, “If anyone”; Pandects: “Of Conditions for Causes”; and in the Authentica, “Of Nuptials”, paragraph, “But what has been sanctioned”, collation 4.
‘“Dendin, my son,” said Perrin, “you must act differently. You really must:
When must in a law comes, never, never doubt
Whatever it says is to be carried out.
as in the gloss, Codex: ‘Of Appeals’, the Law, ‘Even they’. ‘“That’s not where the hare’s hidden. You never settle any differences, lad? And why? Because you take them at the beginning when they are still green and immature. I settle them all. And why? Because I take them towards the end of their growth, quite à point and digestible. And so the gloss states: ‘Sweeter ripe fruit through many hazards grown’; see:
the law, ‘He not about to die’, Codex, ‘On Contracts and the Transmission of Obligations’.
‘“Do you not know what that popular proverb says: Happy the physician called in when the illness wanes? The illness had spontaneously passed its crisis; even if a physician never arrived on the scene it was drawing to its end. So too those litigants of mine were spontaneously wilting before the last stage of their lawsuit, for their purses were empty. They were spontaneously ceasing to plead and prosecute. There was not a bean left in their bag for pleading and prosecuting.
Where in- is lacking there lacks all -come.30
‘“By then, all that was wanting was someone to act as best man and mediator who would be the first to mention any reconciliation, in order to spare each of the parties the baneful embarrassment of hearing folk say, ‘He gave in first. He was the first to talk of conciliation. He tired of it first. He never had the stronger case: he felt where the shoe pinches all right!’
‘“And there, Dendin, is where I come in, as appropriate as pork to peas. Therein lies my ‘chance’. Therein, my income! Therein, my ‘good fortune’. Let me tell you Dendin, my pretty lad, that by that method I could have established a peace – or at least a truce – between the Great King and the Venetians; the Emperor and the Switzers; the English and the Scots; the Pope and Ferrara; and (need I go farther?) with God’s help between the Turk and the Sophy or the Tartars and the Muscovites.
‘“Understand me properly: I would seize the moment when both were tired of fighting, when both had emptied their war-chests, exhausted the purses of their subjects, sold their estates, mortgaged their lands and used up their food and munitions. Then, by God or his Mother, they are forcefully forced to recover their breath and moderate their crimes. That is taught in the gloss to 37, distinction, “If when”:
I shall hate if I can: if not, unwillingly love.”’31
How lawsuits are born and how they grow to perfection
CHAPTER 42
[Was originally Chapter 40.
The legal joke continues.
No concessions to the solitary reader are made at the end, neither the Gascon tongue nor the German being translated in Rabelais’ texts. It is not vital to understand them: read aloud by a good mimic those passages can still be made to sound funny. ‘Hondrespondres’ (Hundred-pounders) was a nickname of Swiss mercenaries.]
‘That,’ continued Bridoye, ‘is why – just as you, my Lords – I spin out the time, waiting for the lawsuit to mature in all its limbs (that is, in its documents and bundles) and to be perfectly formed. See:
Argument on the Law, “If Superior”, Codex: “Of the Division of the Community”, and “Of Consecration”, division I, canon “Solemnities” and the gloss thereupon.
‘A lawsuit when it is born seems to me at first – as to you too, my Lords – shapeless and unformed. It is like a bear-cub which, when it is born, has no feet, paws, skin, hair nor head, being simply a crude shapeless lump of flesh: then the mother-bear licks its limbs into perfect shape:
as is noted by the Doctors-of-Law, Pandects: “Of the Law Aquilia”, Law 2, towards the end.
‘And thus – as you too, my Lords – I see nascent lawsuits as shapeless and limbless. They have but a document or two: an ugly beast still! But once they have been well piled, set and bundled up, you can genuinely say that they have limbs and a shape
: for, Form gives a thing its being:
‘For which see:
the Law, “If He Who”, Pandects: On the Law Falcidia, in the canon, “When Having Chosen”; Extravagantes: “Of the Rescripts”; Barbatia, Consilium 12, Book 2; and before that, Baldus in the ultimate Canon of the Extravagantes: “Of the Custom”; and the law Julianus, Pandects: “For the Exhibiting”, and the Law Quaesitum, Pandects: “Of Legates”, 3.
‘The procedure is as is stated in the gloss on “Penance”, question 1; canon, Paulus: A weak beginning will be followed by better fortune. Just like you too, my Lords, the serjeants-at-arms, the ushers, the sumners, the quibblers, the proctors, the commissaries, the barristers, the inquirers, the scriveners, the notaries, the scribes and the puisne judges (on whom see Title 1, Book 3 of the Codex) by sucking away very forcefully and continuously at the purses of the litigant engender limbs for their lawsuits: heads, feet, claws, beaks, teeth, hands, veins, arteries, sinews, muscles and humours. They constitute the bundles,
as in the gloss on “Consecration”, Decreta, 4, Canon, “You have received: The Clothes Reveal the Inner Man”.
‘Now, nota bene, that in this sense the litigants are more blessèd than the ministers of Justice, for It is more blessèd to give than to receive:
See Pandects: Commentary on Law 3; and Extravagantes; “On the Celebration of Masses”, Canon, “When to Martha”, [and Question 24, Canon 1, “I hate”, gloss: “Thundering Jove weighs the intentions of the giver.”].32
‘And it is in that way are lawsuits rendered perfect, elegant and well shaped, as says the Canon-law gloss:
Take, receive and hope are words which please a pope.
Something which has been stated more clearly by Albericus of Rosata, s.v. Roma:
Rome gnaws at hands: if she cannot, she loathes them; She protects givers: non-givers, she spurns them and loathes them.