Page:The Green Bag (1889–1914), Volume 04.pdf/70

53 supposed to have been preserved in the of oaths were in an alliterative verse, an echo Saturnian rhythm; while in a more cul of which remains in the modern phrase, tured age, according to Teufife], "the more "the truth, the whole truth, and nothing but national a poet is, the more prominent the the truth!" position the law holds in his writings; " and it Early law had not only a poetic form but is related of Terence that he regarded a play a dramatic form as well. Sir Henry Maine of Luscius as of small account, because of a has shown in his " Ancient Law," and more flagrant error in it in a statement of the fully in his " Early History of Institutions," civil law. It must be confessed, however, that the technical formalities in the primi that this last criticism is over-harsh, and tive law of procedure are simply " a drama might result in the condemnation of half tization of the Origin of Justice." Thus, the plays of modern times. The " stage in the venerable Actio Sacramenti of the law " of Mr. Jerome K. Jerome seems, after Romans, there was a pretence of a quarrel all, to be a piece of necessary literary between two armed men, of the accidental appearance of the praetor, and of a submis mechanics. sion by the disputants to his arbitration; Scherer, in his " History of German Liter ature," has an interesting chapter on the and if b^ chance the praetor should fail primitive literature of the Aryans, and es j thus happily to appear, then our primitive wranglers lay a wager on the issue of their pecially of the Germanic branch. A quota tion from Mrs. Conybeare's translation will quarrel quite like a pair of modern wranglers. The dialogue which took place in this legal not be inapt in this connection : — drama has developed into the modern art of "There were no written laws, but the priest pleading. It was poetic in form, and came proclaimed the fixed laws as approved by the peo to have a semi-sacred meaning to pleaders, ple. He was the ' mouthpiece ' and guardian and particularly to the special pleaders who of the laws. These promulgations of the law delighted to get an adversary nonsuited for often described in detail the circumstances of suing for a bull instead of a " leader of the actual life which the law covered; and this gave rise to real poetry, whose charm lingers even in herd," or a goat instead of a " browser upon leeks." Similar dramas were also enacted the later written code." in the English law of procedure, — as in the As is well known, early Germanic poetry action of ejectment and in the procedure by is alliterative; and this feature still persists fines and recoveries. In the making of con in much of our modern legal literature, as in tracts and the conveyance of property, other the phrases " house and home, spick and span, survivals of these ancient legal dramas per weal and woe, hand and heart, stock and sisted down to a very late day, while many stone, kith and kin, bed and board, wind marriage ceremonies preserve hints of the and weather," etc. Scherer gives an example early drama of chase and capture. How of a sentence of banishment by which the much literature may owe to these mimic condemned is to be a fugitive and an outcast combats and proceedings one can hardly everywhere and always, — wheresoever fire venture to assert; but it is surely safe to burns and grass is green, child cries for its ascribe to them some influence in the mother or mother hears a child; as far as growth of the dramatic art. ship sails, shield glitters, sun melts snow, Aside from its poetic form, legal writing feather flies, fir-tree flourishes, hawk flies may also claim some consideration as litera through the long spring day; while the wind ture. Teuffel declares that "jurisprudence lifts its wings; wheresoever the welkin is the only part of literature which was spreads, or the world stands fast, winds roar, developed by the Romans in a manner and waters flow into the sea. The old forms throughout national." Sir Henry Maine