The Trial of Judge Bridlegoose¹

(Is Justice Just a Roll of the Dice?)

(Excerpts from Rabelais’s Gargantua and Pantagruel)

ON THE NEXT DAY, at the appointed hour, when Pantagruel arrived at Mirelingues, the president, senators, and counselors begged him to enter with them and hear their judgment on Bridlegoose’s defence of a certain sentence which he pronounced against Toucheronde, the tax-assessor, and which seemed most inequitable to the centumviral court. Pantagruel willingly accepted their invitation. He found Bridlegoose seated in the middle of the judicial enclosure, and offering no other reason or excuse except that he was now old, and that his sight was not as good as it had been. He further pleaded several of the misfortunes and calamities concomitant upon old age, as recorded by Archi. D. lxxxvj c. tanta. By reason of these infirmities, he said, he had not been able to make out the score on the dice as he had done in the past, whence it might have arisen that, as Isaac when old and dimsighted took Jacob for Esau, so in deciding the case in question he might have taken a four for a five, particularly as on that occasion he had used very small dice. He pleaded further that by provision of equity the imperfections of nature ought never to be accounted a crime, as is clear from ff. De re milt. l. qui cum uno; ff. De reg. jur. l. fere; ff. De edil. ed. per totum; ff. de term. mod. l.Divus Adrianus resolut. per Lud. Ro. in l. si vero; and ff. solu. matr. Anyone who took the opposite view, therefore, would be accusing not the man but Nature, as is evident in l. maximum vitium. C. De lib. praeter.

‘What dice do you mean, my friend?’ inquired Blowbroth, grand president of this court.

‘The dice of judgment,’ replied Bridlegoose, ‘those alea judiciorum of which it is written in Doct. 26 quest. ij. cap. Sors; l. nec emptio. ff. De contrahen. empt. l. quod. debetur; ff. De pecul. et ibi Barthol.; the same dice as you gentlemen use in this supreme court of yours, as do all other judges in deciding their cases, according to the comments of D. Hen. Ferrandat, et not. gl. in c. fin. De sortil. et l. sed cum ambo; and ff. De jud., where the learned doctors remark that chance is a very good, honest, useful, and necessary element in the settling of suits and contentions. This has been ever more clearly stated by Bald., Bart., and Alex. C. communia De leg. Si duo.’

‘And how do you work it, my friend?’ asked Blowbroth.

‘I will reply briefly,’ answered Bridlegoose, according to the provisions of the law ampliorem, § in refutatoriis, C. De appella. And to what is said Gl. l. j. ff. quod met. Cau. Gaudent brevitate moderni. I do like the rest of you, gentlemen, I follow the customs of judicature, to which our laws command us always to defer: ut not. Extra De consuet. c. ex literis, et ibi Innoc. First I thoroughly view and review, read and re-read, thumb over and peruse, the bills of complaint, sub poenas, appearances, reports, investigations, preliminary proceedings, statements, allegations, interrogatories, rebuttals, written testimonies, protests, complaints, objections, cross-examinations, confrontations, and face-to-facing of witnesses, demands, letter dismissory, royal missives, warrants, demurrers, anticipatories, injunctions, returns of injunctions, appeals, final judgements, citations of argument, decrees, adjournments for appeal, acknowledgements, executions, and other such drugs and spiceries on one side, and on the other, as a good judge is bound to do, in order to conform to no. Spec. De ordinario § iiij, et tit. De offic. omn. Jud. § fin. et de rescriptis praesenta. § j. I then place on the end of the table in my chamber all the defendant’s bags of documents, and give him the first throw, as the rest of you gentlemen do. This is enjoined by l. Favorabiliores ff. De reg. jur., et in c. cum sunt eod tit. lib. vj, which says: Cum sunt partium jura obscura, reo favendum est potius quam actori.² This done, I put down the plaintiff’s bags of documents as you other gentlemen do, at the other end, visum visu – face to face. For opposita juxta se posita magis elucescunt,³ as is noted in l. j. § Videamus ff. de his qui sunt suit vel alie. jur. et in l. munerum. j. mixta ff. de muner. et honor. Then likewise, and turn for turn, I throw for him too.’

‘But, my friend,’ demanded Blowbroth, ‘in what way do you determine the degree of obscurity of the claims put forward by the litigants?’

‘As you other gentlemen do,’ replied Bridlegoose, ‘that is to say by the number of bags brought in by either party. And then I use my little dice, as you other gentlemen do, to conform to the law, semper in stipulationibus, ff. De reg. juris, and the law in capitals versified que; eod. tit.

Semper in obscuris quod minimum est sequimur.⁴

Which was also adopted by canon law in c. in obscuris. eod. tit. lib. vj. Of course I have large dice as well, fine and most proper ones, that I use, as you other gentlemen do, when the matter is more fluid; that is to say when there are less bundles.’

‘And after that,’ asked Blowbroth, ‘how do you pronounce judgement, my friend?’

‘As you other gentlemen do,’ replied Bridlegoose, ‘I pronounce in favour of the party to whom fate first awards a good throw of the judiciary, tribunian, and praetorial dice. So our laws ordain, ff. qui pot. in pig. l. potior. leg. creditor. C. De consul l. j. et de reg. jur. in vj. Qui prior est tempore, potior est jure.’⁵

‘Yes, my friend,’ said Blowbroth, ‘but since you settle your judgements by chance and by the fall of the dice, why don’t you put things to the hazard on the same day, at the precise hour when the parties at variance appear before you? Why all this further delay? What use do you make of the writs and documents in the litigants’ bags?’

‘The same use as you other gentlemen do,’ answered Bridlegoose. ‘They serve me for three exquisite, requisite, and authentic purposes. First for the sake of formality. For if form is not observed there is no validity in anything that is done, as is proved very well by Spec. tit. De instr. edit. et tit. De rescript. praesent. Besides which, as you know only too well, often in judicial proceedings the formalities destroy all materiality and substance. For, forma mutata, mutatur substantia.⁶ ff. ad exhib. l. Julianus; ff. ad leg. falcid. l. si is qui quadrigenta. Et extra. De deci. c. ad audientiam, et De celebrat. miss. ci. in quadam. Secondly, as with you other gentlemen, they give me honest and salutary exercise. The late Master Othoma Vadare, a great physician—as you would say, C. De comit. tt archi. lib. xij—told me many times that lack of physical exercise is the sole cause of the poor health and short lives to which you gentlemen and all officers of the law are subject. Which was very well noted before him by Bartolus in lib. j. C. De senten. quae pro eo quod. For which reason, to us in our turn as to you gentlemen, quia accesorium naturam sequitur principalis, De reg. jur. l. vj., et § cum principalis, et l. nihil dolo. ff. eod. titu. ff. De fidejusso l. fidejussor, et extra De offic. deleg. cj., are conceded certain honest and decent games for recreation, ff. De al. lus. et aleat. l. solent. et autent. ut omnes obediant, in princ. coll. 7 et ff. De praescript. verb. l. sit gratuitam; et l. j. C. De spect. lib. xj. And such is the opinion of D. Thomas, in secunda secundae quaest. clxviii, very appositely quoted by D. Alber. de Ros., who fuit magnus practicus and as a solemn doctor, as Barbatia attests in prin. consil. The reason is set out per gloss. In praemio. ff. § ne autem tertii.

Interpone tuis interdum guadia curis.⁷

‘In fact, one day in the year 1489, having some mentatry business in the court of their worships the judges of excise, and entering by the pecuniary permission of the usher—for, as you gentlemen know, pecuniae obediunt omnia,⁸ as Baldus said in l. Singularia ff. Si certum pet.; et Salic. in l. recepticia. C. De constit. pec.; et Card. in Clem. j. De baptis., I found them all playing at fly, a healthy exercise before or after meals—I don’t care which. Provide hic not.,⁹ that the game of fly is honest, healthy, ancient, and lawful, a Musco inventor de quo C. De petit. haered. l. Si post motam. et Muscarii. j., those who play at fly are excusable by law l. j. C. De excus. artif. Lib. x. And on that occasion Master Tielman Picquet was fly, and he was laughing at the way in which all the gentlemen of the court were ruining their caps by swatting him on the shoulders. He told them, all the same, that they would have no excuse for this damage to their caps when they left the courts and returned to their wives, by c. j. extra. De praesumpt. et ibi gl. Now, resolutorie loquendo, I should say, as you other gentlemen do, that there’s no comparable exercise, no exercise more aromatizing in all this litigious world, than the emptying of bags, the thumbing of papers, the assessing of costs, the filling of baskets and the examination of suits, ex Bart. Et Jo. De Pra., in falsa. De condit, et demon. ff.

‘Thirdly, like you other gentlemen, I consider that time ripens all things; with time all things come to light; time is the father of truth, in gl. in l.j. C. De servir.; Autent. De restit. et ea quae pa.; et Spec. tit. De requis. cons. That is why, like you other gentlemen, I suspend, delay, and postpone judgment, so that the case, being well ventilated, sifted, and debated, may in course of time come to its maturity, and so that the decision by dice, afterwards ensuing, may be borne more patiently by the losing party, as not. gloss. ff. De excus. tut. l. Tria onera.

Portatur leviter quod portat quisque libenter.¹⁰

If judgement were given when the case was raw, unripe, and in its early stages, there would be a danger of the same trouble as physicians say follows on the lancing of an abscess before it is ripe, or the purging of some harmful humour from the human body before it has fully matured. For, as it is written in Autent. haec. constit. princ., and repeated, gl. in c. Caeterum. Extra De jura. Calum.

Quod medicamenta morbis exhibent, hoc jura negotiis.¹¹

‘Furthermore, Nature instructs us to pick and eat fruit when they are ripe, Instit. De re. div. § is ad quem; et ff. de act. empt. l. Julianus; likewise to marry our daughters when they are nubile, ff. De donat. inter vir. et uxor. l. cum hic status. § si quia sponsa et 27, q.j.c. Sicut says gl.

Jam matura thoris plenis adoleverat annis Virginitas.¹²

Indeed not to do anything except in full maturity, xxiij, q.ij. § ult. and xxxiij. d.c. ult.

* * *

‘That is why,’ continued Bridlegoose, ‘like you other gentlemen, I temporize, waiting for a lawsuit to mature and to attain full growth in all its limbs—in its bags and documents that is. Arg. in l. si major. C. commu. Divi.; et De cons. d.j.c. Solennitates, et ibi gl. A lawsuit, when newly born, seems to me, as it does to you other gentlemen, shapeless and imperfect, even as a bear at birth has neither feet, paws, skin, fur, nor head, but is merely a lump of raw and formless flesh. The she-bear, by dint of licking, perfects its limbs, ut not. Doct. ff. ad leg. Aquil. l. ij in fi. Thus, like you other gentlemen, I see lawsuits born shapeless and limbless in their origins. They have nothing but a document or two, and at that time they’re ugly beasts. But once they’re well packed, racked, and sacked, they can really be said to have shape and limbs. For forma dat esse rei, l. Si is qui ff. ad l. Falcid. in c. cum dilecta extra de rescript. Barbatia, Cons. 12 lib. II, and before that Bald. in c. ulti. extra de consuet.; et l. Julianus. ff. ad exhib. et l. quesitum. ff. De leg. iiij. The method is set down in gl. p. q. j., c. Paulus:

Debile principium melior fortuna sequetur.¹³

Like you other gentlemen, so the sergeants, ushers, summoners, pettifoggers, proctors, commisioners, advocates, examiners, scribes, notaries, registrars, and petty judges, de quibus tit. est lib. iij. Cod., by sucking very hard and continuously at the parties’ purses, provide their suits with head, feet, claws, beak, teeth, hands, veins, arteries, nerves, muscles, and humours. These are the bags, gl. De cons. d. 4, c. accepisti.

Qualis vestis erit, talia corda gerit.¹⁴

Hic not. that in this respect litigants are more fortunate than minsters of justice, for,

Beatius est dare quam accipere¹⁵

ff. comm. lib. iij. et extra, De celebra. Miss. c. cum Marthae, and 24 q.j.c. Odi gl.

Affectum dantis pensat censura tonantis.¹⁶

In this way they make the suit perfect, handsome, and shapely, as says the canonical gloss,

Accipe, sume, cape, sunt verba placentia Papae¹⁷

which is more clearly stated by Alber. de Ros., in verb. Roma.:

Roma manus rodit, quas rodere no valet, odit.
Dantes custodit, non dantes spernit et odit.¹⁸

And what’s the reason for that?

Ad praesens ova, cras pullis sunt meliora¹⁹

ut est glos. in l. cum hi, ff. De transact. The drawback of the contrary is set out in gloss. C. De allu. l. fi.:

Cum labor in damno est, crescit mortalis egestas²⁰

The true derivation of the word Lawsuit is from the number of lawsacks that it requires for its pursuit, one which point we have such celestial maxims as: Litigando jura crescunt, Litigando jus acquiritur.²¹ Item gl. in c. Illud ext., De praesump., et C. De prob., l. instrumenta, l. non epistolis, l. non nudis.

Et cum non prosunt singula, multa juvant.²²

‘Yes,’ said Blowbroth, ‘but how do you proceed in a criminal case when the party has been caught flagrante crimine?’

‘As you other gentlemen do,’ replied Bridlegoose. ‘I permit, or command, the plaintiff to take a good sound seep as a preliminary to the case, and then to appear before me, bringing me good and attested evidence of his sleep, according to the gloss, 32 q. vij. C. Si quis cum.

Quandoque bonus dormitat Homerus.²³

‘This act provides a new limb, and from that one springs another, as link by link a coat of mail is made. Finally, by investigation, I find the case well shaped and perfect in all its limbs. Then I have recourse to my dice; and I don’t intervene at this point without good reason and valid precedents. I remember that in the camp at Stockholm as Gascon named Gratianauld, a native of Saint-Sever, lost all his money at play, to his very great fury—for, as you know, pecunia est alter sanguis,²⁴ as Ant. de Butrio says, in c. accedens. ij, extra ut lit. non contest., and Bald. in l. Si tuis. C. De op. li. per no. et l. advocatai C. de advo. diu. jud. Pecunia est vita hominis, et optimus fidejussor in necessitatibus.²⁵ Now as he came out of the gambling house, he shouted to his companions: “By the bull’s head, boys, may drink harden our livers! Now that I’ve lost my two dozen bawbees, I’m in far better trim to punch you, clout you, and kick you if anyone’ll challenge me to a scrap.” As nobody answered him, he went on to the camp of the heavey-weights, and repeated the same words, challenging them also to a fight. But these great Fireslanders merely answered: “Der Guascongner thut schich usz mitt eim iedem zu schlagen, aber er is geneigter zu staelen; darumb, lieben frauuen, hend serg zu inu inuerm hausraut.”²⁶ And none of their company offered to fight. So the Gascon went on to the French mercenaries, saying the same as before and gallantly offering them a fight with a number of gasconading flourishes. But no one answered him. Then the fellow lay down at the far end of the camp, near the tent of fat Christian, the Chevalier de Crissé, and went to sleep. At that moment a mercenary who had also lost all his money came out with his sword, firmly resolved to fight with the Gascon, seeing that he had lost too:

Ploratur lachrymis amissa pecunia veris²⁷

as says the gloss De poenitent. dist. 3, c. sunt plures. So he searched for him right through the camp, and found him asleep. “Hi there,” he shouted at him. “Hi there, by all the devils! Get up! I’ve lost all my money, just like you. Come, let’s have fight, my lad, let’s have a good bang at one another. See, my sword’s no longer than your rapier.” But the Gascon answered him in a daze: “By St. Arnault’s head, who are you that wake me up? May the tavern-fever send you staggering! By St. Sever, patron of Gascony, I was just having a good sleep when this scoundrel came and started pestering me!” The mercenary once more challenged him to fight, but the Gascon replied: “I’ll skin you, you miserable devil, now that I’ve had a rest. But just you come and have a little sleep like me first. Then we’ll fight.” Having forgotten his loss, he had lost his wish to fight: and in the end, instead of fighting and possibly killing one another, they went off to drink together, each pawning his sword for the cash. Sleep had performed this good deed, and calmed the burning fury of the two good champions. The golden phrase of Giovanni Andrea applies here, in c. ult. De sent. et re judic. libro sexto.

Sedendo et quiescendo fit anima prudens.²⁸

Endnotes

¹ François Rabelais, Gargantua and Pantagruel Chapter XXXIX, XL, XLII (London: Penguin Books 1955), 396 ff., 404 ff.. ⇑

² When the law is obscure, favour the defendant rather than the plaintiff. ⇑

³ Opposites, when confronted, shed greater light. ⇑

⁴ In difficult cases, always take the least consequential case. ⇑

⁵ The first comer has the best case in law. ⇑

⁶ When the forms are changed the substance is changed. ⇑

⁷ Take a holiday every now and them between your studies. ⇑

⁸ All things obey money. ⇑

⁹ Here take note. ⇑

¹⁰ A load willing borne is light to bear. ⇑

¹¹ What medicine is to disease, the law is to business. ⇑

¹² Virginity, no ripe with years, was ready for the marriage bed. ⇑

¹³ Better fortune follows poor beginnings. ⇑

¹⁴ Laces will be worn to suit the coat. ⇑

¹⁵ It is more blessed to give than to receive. ⇑

¹⁶ Jupiter in his judgement considers the disposition of the giver. ⇑

¹⁷ Take, accept, and receive are words that please the Pope. ⇑

¹⁸ Rome gnaws hands; those that it cannot gnaw it hates. It looks after givers, spurns and dislikes non-givers. ⇑

¹⁹ Today’s eggs are better than tomorrow’s hens. ⇑

²⁰ When work is wasted human need increases. ⇑

²¹ Laws grow by litigation, law is acquired by litigation. ⇑

²² When things fail singly, they prevail in quantity. ⇑

²³ Sometimes the good Homer nods. ⇑

²⁴ Money is a second blood. ⇑

²⁵ Money is a man’s staff, and his best defender in need. ⇑

²⁶ The Gascon behaves as if he wants to fight with everybody. But really he is better at stealing. Therefore, dear ladies, look to the baggage. ⇑

²⁷ The loss of money is bewailed with real tears. ⇑

²⁸ By leisure and quiet the soul become wise. ⇑