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scribes the supposed Courts of Love, at which the author heard the judgements given which he has reported. A very particular account is given of the various personages who composed the Court, and even their dresses are minutely described ; thus we are told, that the lady judges were clothed in green, with collars of gold, and so richly perfumed that it was impossible to sit near them without sneezing.
We shall now proceed with our extracts; premising, that we have, in our translations, occasionally taken the liberty of omitting a sentence or two, which did not seem suited to our object, and that we have endeavoured to preserve something of the technical form in which they appear in the original.
“ This was an action brought in the Court of the Chief Justice of Love, in the province of Beauty, by the plaintiff, a Lover, against his Lady, defendant, in order to obtain the rescinding of a contract.
“ The contract appeared to be as follows.-- The plaintiff agreed to walk once or twice a-week at midnight, for a certain time before the door of the defendant, who promised, in return, to throw him a nosegay or a bunch of violets. After stating the contract in his declaration, the plaintiff made the following averments :
“ The said plaintiff, in fact, says, that he did, on divers nights, attend at the place so agreed upon as aforesaid; but that the said defendant then and there wholly neglected to attend; and that he, the said plaintiff, on those said several occasions, was obliged to, and actually did, perambulate the street without either fire or light:
« And the said plaintiff further, in fact, says, that frequently on the said several occasions, when he, the said plaintiff, was on the point of departing, he saw a light in the window of the said defendant, with which the soul of him, the said plaintiff, was so ravished and transported, that he knew not what to do. That, on the said several occasions, he hath waited divers long spaces of time, sometimes the whole night, walking up and down, in very great dread lest he the said plaintiff should catch and be afflicted with cold or rheumatism, for that in winter the frost and snow were so severe, that the flesh of him, the said plaintiff, lost its feeling, and the teeth of him, the said plaintiff, then and there chattered in his head.
“ And the said plaintiff further, in fact, says, that the said bad weather frequently compelled him to return to his hotel, he, the said plaintiff
, being then and there wet to the skin, without having or receiving any other reward or recompense, than being allowed to kiss the bell of the said defendant's door; and that, on reaching his hotel, he hath frequently been compelled to change his clothes, which said
mended the study of poetry to the diligent student. “ Verses, at first,” says he, were invented for the help of memorie, and it standeth well with the gravity of our lawyers to cite them.”—Vide 1st Inst. 237a. So, again,“ authoritates philosophorum, medicorum et poetarum, sunt in causis allegandæ et tenendæ.”—Id. 264a.
clothes were then and there damaged and destroyed by the wet; and he hath also been compelled to purchase, and actually hath purchased, divers new suits of clothes, on the occasions last aforesaid, which hath been, and still is, a very great charge to, and grievance upon him, the said plaintiff; in the statement of all which grievances, the said plaintiff hath not taken into account the hazard to which he, the said plaintiff
, was exposed, of being recognized by Danger*, or the Watch.
“ And the said plaintiff further, in fact, says, that, on many of the said several occasions, he, the said plaintiff, by reason of the darkness, walked into and amongst certain heaps of mud, and into certain kennels and sewers, whereby he was much discomposed and dirtied, and did also break the shins of him, the said plaintiff, against certain large stones, and run against certain coaches, then and there driving and passing. Wherefore, he concluded, that the contract was unreasonable, and that he had been grossly deceived; and he required the said contract to be declared null and void, and prayed judgement of his damages and costs.
“The defendant, after making defence, pleaded that the said plaintiff had no cause of complaint. Because, she said, that she, the said defendant, had suffered many greater hardships in the premises than the said plaintiff; and that she was then, and at all times thereafter, when it should please Love, ready and willing to depart from and renounce the said contract; but the said defendant submitted, that the same could not by law be annulled. And she further said, that such annulling as aforesaid, would be a grievous stain on the character of her, the said defendant, who had never theretofore been supposed capable of deceiving any man. And she further said, that, as to the walking of him, the said plaintiff, before the door of her, the said defendant, at the several times aforesaid, shame it was for him, the said plaintiff, thereof to make complaint. And she further said, that she, the said defendant, had suffered and endured, at the said several times aforesaid, much greater and more grievous hardship than he, the said plaintiff: in this, to wit, that when and as often as she, the said defendant, expected the said plaintiff to arrive, she, the said defendant, was, for the space of three hours before the period last aforesaid, in a certain ecstacy, and knew not what to do. And she further said, that though true it was, that she, the said defendant, did occasionally eat and drink, yet protesting that her heart was solely the property of the said plaintiff, she said, that the said waiting of the said plaintiff did grievously discompose her, the said defendant. And she further said, that she frequently could not appear, at the said several times aforesaid, through dread of Danger, from whom it was necessary for her, the said defendant, to make her escape, which, she averred, was, by the moiety, a much
By this expressive term, the husband of the Lady is, in general, designated in the Arrets d'Amours. It is so used by Alain Chartier, and the other early French poets, on account, according to the learned commentator, Benoit de Court, of the perils which a Lover incurred in case the intrigue was detected.
greater hardship and pain, than the said supposed suffering of him, the said plaintiff. For that, upon the occasions last aforesaid, it frequently became, and was necessary for her, the said defendant, to feign and pretend that she, the said defendant, was asleep, whereas, in truth and in fact, she was at that time awake; and also, to feign and pretend that she was weeping, whereas, in truth and in fact, she was at that time very strongly inclined to laugh. And she further said, that as to the cold, shame indeed it was for him, the said plaintiff, thereof to make complaint; for that it had been, from time immemorial, the duty of a Lover never to be cold, even though the frost should split rocks. And she further said, that if he, the said plaintiff, suffered pain and trouble at the said several times aforesaid, on his part and behalf, so likewise did she, the said defendant, on her part and behalf, to wit, in finding some means of escape to the said window whereat she, the said defendant, wearing and being clothed with certain very light garments, did wait for the space of two long hours, watching on which side he, the said plaintiff, should make his approach. And she further said, that the said plaintiff had, at the said several times aforesaid, much pleasanter means of passing his time than she, the said defendant. For that, in waiting as aforesaid, he, the said plaintiff, might and could walk up and down and repeat his 'hours' and orisons; and that there was not on those occasions any one to hinder him, the said plaintiff, from so doing. And she further said, as to the said rain and snow, that the same had no terrors for a true Lover; and as to the said large stones, and the said accidents which he, the said plaintiff, was above supposed to have met with, she said, that such evils never happened to those who have a perfect trust in Love, and who are never guilty of treason, falsehood, or other misprision against him. And she further said, that all the said supposed grievances of the said plaintiff, whereof he had made complaint as aforesaid, were not to be compared with the grievances of her, the said defendant: for that she, the said defendant, bestowed more care and diligence, in one day, in gathering the said violets, than he, the said plaintiff, expended in the course of one whole year; and that, in truth and in fact, there could be no comparison between the benefit and pleasure received by him, the said plaintiff, and by her, the said defendant, respectively. And she further said, that the thread wherewith she, the said defendant, bound, tied, and fastened the said nosegays and violets, so to him, the said plaintiff, in that behalf given and presented as aforesaid, was of much greater value than all that she, the said defendant, had ever received from him, the said plaintiff. Wherefore, she said, that there was no deceit in the said contract, and that it ought not to be rescinded without the consent of her, the said defendant, to obtain which, she prayed that the said defendant might be directed to attend her. And she prayed judgement and her costs.
“The cause having come on to be tried, the Court gave judgement that the plaintiff had shewn no cause for rescinding the said contract, and a specific performance thereof was decreed at the pleasure of the defendant, and costs were given.”
It will probably strike our legal readers, that the proceedings of this court were of a very anomalous kind. It seems to have comprised within itself both a common law and equitable jurisdiction. Nor do the forms of pleading (those bulwarks of the law) appear to have been accurately attended to. In some instances the defendant pleads double, which is certainly vicious, and there are other aberrations from strict legal form. The case we have given is certainly rather long, but we trust that its interest may be pleaded as an excuse for its insertion. We shall now present to our readers the report of a love case, actually decided in the court of the Countess of Champagne, which we extract from 2 Raynouard c. xv. who quotes André, the Chaplain. It will be immediately perceived, that the real cases are rather in the nature of short notes, than detailed reports. In fact, these cases seem more nearly to resemble those sent by our chancellors for the opinion of the courts of common law.
“ The defendant, whose lover had remained for a certain long space of time in parts beyond the seas*, on an expedition, being doubtful respecting his return, whereof many people had well nigh despaired, sought for another lover. The secretaryt of him the said first mentioned lover hereupon impleaded the said defendant, who appeared and pleaded the 7th. Statute of the Code of Lovet.-And thereupon she said, that if it were lawful for a widow to take a husband two years after the decease of her former husband, a fortiori it was lawful for her, the said defendant, who was a quasi widow, living her said firstmentioned lover, so to do, when he, her said first mentioned lover, had sent to her, the said defendant, neither messenger nor message during the said long period of time, although she averred he had, during all that time, frequent opportunities of so doing.”
In our law, those who were on expedition ouster le mere were much favoured. It prevented a descent from Tolling an Entry, and superseded the necessity of continual claim. Vid. Litt. sec. 4:39. See also, as to remitter, id. sec. 677. There was also an Essoyn of ouster le mere, Termes de la Ley. Vor Essoigne.
+ The Secretary of the absent Knight probably acted under a general power of attorney.
The seventh statute was as follows: “ Biennalis viduitas pro amante defuncto superstiti prescribitur amanti.” Our English law prescribes no certain time within which a widow may not marry.
If indeed man has left the realm, and never been heard of since his departure, the law will presume his death after the expiration of seven years. On the first view, therefore, it might be supposed, that a lady would be guilty of bigamy in case she married again within that period. But as there is another presumption of law, namely, that no one shall
“The pleadings run out to great length, but on the cause coming on for trial before the Countess of Champagne, the following judgement was pronounced.
“ The judgement in this case must be for the plaintiff. The defendant should not have renounced her lover, even after so long an absence, but
upon the clearest proof of want of affection or fidelity. The Court, however, must be understood as speaking of absence only when caused by unavoidable necessity, or from some honourable motive. Certainly nothing ought to cause more joy in the breast of one in the defendant's situation, than the information that her lover is acquiring fame in foreign realms, and attaching to himself the confidence of the valiant and the wise. With regard to his neglect in writing, or despatching messengers, it may have arisen from the most prudential reasons, in order that the secret of his attachment might remain hidden. For though he had despatched letters to her, the tenor of which might be unknown to the messenger, yet non constat that by the malfeazance of that messenger, or by his death on the journey, the secret of his passion might have been divulged.”
We shall revert again to the learned Martial de Paris, whose reports are on the whole, though less authentic, more interesting than those of André, the Chaplain. In the multiplicity of very singular suits which he has recorded, we have found some difficulty in making a selection. Perhaps, however, the following presents as striking an illustration, as any, of the very peculiar jurisdiction of these courts.
“ This was an action, in the nature of trover, for a kiss. The
be considered guilty until proved so, in this case of conflicting presumptions it has been held that the latter shall prevail; and if, at the end of one year, the lady chooses to take husband again, the courts will not suppose her first husband to be alive, when that supposition will subject her to the penalties of bigamy. Vide the King against the Inhabitants of Twyning. 2 Barn. and Ald. 386.
In our courts the form of action would be different. For an injury of this kind undoubtedly an action of assault and battery would lie. It seems extremely doubtful whether, according to our law, there could be any property in a kiss. It might perhaps be argued, that it comes within the definition of an incorporeal hereditament, which is defined to be “a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within the same.” 2 Bl. Com. 20. And again, the existence of incorporeal hereditaments is said to consist merely in idea, and abstracted contemplation. Idem. If this were considered to be law, such property would require a grant by deed to pass it, or perhaps it might be considered to pass by actual delivery, according to the case of Smallpiece and Ironside. 2 Barn. and Ald. 551. However, we find no mention of this question in the books.