Why? Because, An egg in the hand is worth two chicks tomorrow,
as in the gloss on the Law, “When They”; Pandects: “On Transactions”.
The opposite disadvantage is given
in the gloss on the Canon, “Of Alluviums”, the concluding Law: “Work at a Loss and Mortal Needs Increase”.
‘The true etymology of process is that it must in its procedures solicit prou sacs (many bundles).
‘We have several God-made legal axioms to that effect.
By litigation laws do grow:
By litigation is Justice acquired.
‘The same is stated
in the gloss on “That”; Extravagantes: “Of Presumptions”, and Codex: “Of Probations”, the Law, “The Instruments”; the Law, “Not by Epistles”; the Law, “Not by Naked”; and,
When individual efforts fail, many efforts can prevail.
‘True, but,’ asked Trinquamelle, ‘my friend, what is your procedure in a criminal action, when the guilty party has been caught in flagrante delicto?’
‘Just as you do too, my Lords,’ Bridoye replied. ‘To start off the action, I order the plaintiff to enjoy a deep sleep. And I see that he has done so, making him appear before me bearing a judicially sound, documented proof of his having slept
[in accordance with the gloss on Question 32, Canon 7, “If Any Man Wish His”: Occasionally Good Homer nods].
‘That document begets another limb; and from that other limb is born another: Link by link a coat-of-mail is made. I eventually find that the action is duly formed by such informations and is rendered complete in all its limbs.
‘Whereupon I return to my dice; but that interlude is not ordered without reason and impressive experience. For I remember that there was in the camp at Stockholm a Gascon called Gratianauld, a native of Saint-Sever; who, having gambled away all his money, was deeply disturbed since as you know, money is a second blood,
as Antonius de Butrio states in the canon, “Acceding”, Extravagantes: 2, “As in Litigation not Contestable”, and Baldus, on the Law, “If to Yours”, Codex: “On Work by Freed Slaves”, in the note; and the Law, “The Advocates”, Codex: “Of Advocates of Divers Judgements” – Wealth is the life of Man and the best guarantor in hardships.
‘As he staggered away from the gamesters he yelled out loud in front of all his comrades, in the Gascon patois:
‘“By God’z head, you fellows, may barrel-fever bite ‘ee! Now that I’ve lost my four-and-twenty pence I can bash and batter all the better. Would anyone like to have a go at me [in a bit of sport]?”
‘Since nobody reacted, he went on to the camp at the Hondrespondres and repeated the same words, challenging them to come and have a fight. But the Hondrespondres said:
‘“Der Guascongner thut schich usz mitt eim jedem ze schlagen, aber er ist geneigter zu staelen; darumb, lieben frauuven, hend serg zu inuerm hausraut.” (“That Gascon would like to have a fight with each one of us, but he would rather steal. So, women dear, look out for the baggage.”)
‘Not one of their league offered to fight him. And so that Gascon went over to the camp of the French soldiers-of-fortune, repeating what he had said before and, with little Gascon jigs, gaily challenging them to a fight. But nobody took him up. Thereupon the Gascon lay down at the edge of the camp near the tents of that stout knight Christian de Crissé and dropped off to sleep.
‘About then a soldier-of-fortune (who had also lost all his money the same way) came forth, sword in hand; simply because he too had been a loser, he was quite determined to take on that Gascon. [Tears, for his money lost, wept he most true,
as says the gloss on, “Penances”, distinction no. 3, Canon, “There Are Many Who”.]
‘And indeed, having searched throughout the camp he came across him fast asleep. And he said to him:
‘“Get up, me lad, for the devil’s sake, get up. I’ve lost me money just as much as you have. Shall we have a proper fight, and bash our bacon about good and proper? Look, me sword’s no longer than your rapier.”
‘The Gascon, feeling fuzzy, answered him in his dialect:
‘“By Saint Arnaud’z head! Who be you to wake I up? May barrel-fever twist your guts! Ho! Saint Sebber, Patron Saint of Gascony, I was having a good snooze when this old sod comes pestering me!”
‘The soldier-of-fortune challenged him to a fight on the spot; but the Gascon replied:
‘“Hey, stop it, you poor little chap. Now that I’ve had a good rest, I could skin you alive.”
‘His money was gone and forgotten: gone too his desire to fight! In short instead of starting a fight and perhaps killing each other they went off together for a drink, each pawning his sword. Sleep had achieved that good result and calmed the fiery frenzy of those two stout champions. Appropriate here is,
that golden saying of Johannes Andrea, in the ultimate Canon, “Of Sentencing, and the Matter Adjudicated” (Book 6): The mind acquires wisdom by remaining seated and keeping calm.33
How Pantagruel absolves Bridoye over judgements made by the lottery of dice
CHAPTER 43
[Pantagruel is now acknowledged to be an inspired sage, his wisdom being a gift from God, ‘the Giver of all good gifts’ (James 1:17; Romans 12:6–7; 1 Corinthians 12:4–11). The tables are turned: Bridoye is indeed mad, but with the good madness of the inspired Christian fool. (Cf. the criteria in Chapter 37, and I Corinthians 1:27.) As for his God-given madness, it is cognate to Pantagruel’s God-given wisdom, both being gifts of grace.
There are several scriptural echoes, including one from Magnificat.
The reference to the Provost of Montléry remains unexplained.]
Bridoye then fell silent. Trinquamelle ordered him to leave the court and said to Pantagruel once that was done:
‘Reason demands, most august Prince – not simply because of the bonds by which, through your infinite bounties, you bind this our Parlement to you as well as all the marquisate of Myrelingues, but also because of the good sense, discerning judgement and wondrous learning which almighty God, the Giver of all good gifts, has placed in you – that we should present it to you to decide what to do in this affair (so novel, so strange and paradoxical) of Bridoye who, with you in attendance and in your sight and hearing, acknowledged that he reached his judgements through the lottery of dice. We beg you to be so kind as to announce the verdict which seems to you judicious and equitable.’
To which Pantagruel replied:
‘My Lords, as well you know, my avocation does not lie in professionally deciding lawsuits; yet since it pleases you to grant me so great an honour, instead of fulfilling the duty of judge I shall assume the place of suppliant.
‘I recognize in Bridoye several qualities which seem to me to merit clemency in the case which has arisen. Firstly: old age; secondly, simple-mindedness: to both of which you well know what readiness to pardon and forgive is shown by our laws and statutes. Thirdly, I recognize another factor which is similarly favourable to Bridoye and deducible from our laws: namely that this single fault of his should be treated as null and void, being engulfed in the immense ocean of those so many equitable judgements which he has reached in the past. For well over forty years, in fact, there has never been discovered in him any action worthy of blame: it is as though I were to cast a drop of sea-water into the River Loire: no one would notice it, nor, for that single drop, would anyone call it salty.
‘And it seems to me that there is here something – I know not what – of God, who has so acted and disposed that, in verdicts reached by chance, all Bridoye’s previous decisions have been judged sound by this your venerable and sovereign Court; of God who, as you know, often wishes his glory to appear in the dulling of the wise, the putting down of the mighty and the exalting of the simple and meek.
‘But I will put all that aside, merely praying you (not in the name of those obligations which you claim to owe my family – which I do not recognize – but in the name of the sincere desire which you have l
ong since found in us to uphold your estate and privileges in both Hither and Thither Loire) that on this occasion you vouchsafe to grant him pardon, under two conditions: firstly, that he indemnify, or promise to indemnify, the party wronged by the judgement in question (under that heading I shall myself see that all is done properly and satisfactorily); secondly, that you nominate some young, learned, wise, experienced and virtuous counsellor as an auxiliary to his office, by whose advice he shall from now on carry out his judicial functions.
‘And in the event that you should wish totally to depose him from his office, I would very strongly beg you to entrust him purely and simply to me. Within my kingdom I shall find plenty of places to employ him in and posts in which he can serve me.
‘At which juncture I pray God in his goodness, our Creator, Servator, and Giver of all good gifts, perpetually to keep you in his holy grace.’
Having spoken those words, Pantagruel bowed to the whole court and left the courtroom. He found Panurge, Epistemon, Frère Jean and others waiting by the door. They all mounted and rode back towards Gargantua. On the road Pantagruel gave them, point by point, an account of Bridoye’s trial.
Frère Jean said that when he had lived in the convent at Fontenay-le-Comte under the noble Abbot Ardillon he had known Perrin Dendin. Gymnaste said he had been in the tent of Christian, the stout Seigneur de Crissé, when the Gascon had reacted to the soldier-of-fortune. Panurge had some difficulty over believing in the success of judgements made by lots, particularly over so long a period.
Epistemon said to Pantagruel:
‘There is a parallel story told about a Provost of Montléry. But what do you make of that successful use of dice continued over so many years? I wouldn’t be surprised by one or two such judgements thus delivered by lots, particularly in matters intrinsically ambiguous, intricate, perplex and obscure.’
How Pantagruel tells a curious story of the perplexity of human judgements
chapter 44
[Originally there was no chapter-break here.
The first words of the divinely wise Pantagruel smoothly take up the terms perplex and obscure just said by the sage Epistemon. We now move into what are perplex cases in the strictest legal sense. In such cases recourse can be had to dice, but only when there is no other way (as the time-honoured legal phrase puts it). Cf. the conclusions in the Institutions of Civil Law with Notes of Silvester Aldobrandinus etc. (Venice 1568), p. 192 vo: ‘Add that it is wrong in Law to allow judgements by Lots unless matters are so perplex and obscure that there is no other way: see the Law ‘If Two’, the law, Common Matters Concerning Legates’ (the law cited by Pantagruel at the end of Chapter 12).
Behind all the laughter Rabelais is advancing standard humanist Law. Thomas More implies that recourse to lots is typically Lutheran, but whilst not accepting that lots can apply to a decision whether or not to marry, he used exactly the same technical phrases as Rabelais here: it is legal; and just to use lots to avoid the perplexity but only if there were no other way.
The case which Pantagruel is about to relate was very widely cited by legal writers (for example by Tiraqueau in On Tempering Punishments).
In the original text of the Third Book, the answer to Pantagruel is delivered by Pantagruel! In 1552 it is attributed to Epistemon. That correction is accepted here. The attack on Tribonian, the architect of the Pandects, puts Rabelais in good company, including that of Gillaume Budé and Montaigne.]
‘As was,’ said Pantagruel, ‘the problem argued out before Cnaeus Dolabella, the Proconsul for Asia. The case was as follows:
‘A woman of Smyrna had a son by her first husband. His name was ABC. Sometime after the death of that husband she remarried and had a son EFG by her second husband. It transpired (and you are aware that it is uncommon for stepsons and stepmothers34 to feel affection for the children of the original fathers and mothers, now dead) that the second husband and his son covertly and treacherously killed ABC in an ambush.
‘The mother, apprised of the wickedness and treachery, had no intention that the deed should go unpunished and put them both to death, thus avenging the murder of her first son.
‘She was arrested under the law and brought before Cnaeus Dolabella.
‘She appeared before him and confessed to the facts, dissimulating nothing; she simply submitted that it was right and reasonable to have killed them.
[‘Such was the case.]
‘He found the matter so equivocal that he had no idea which side to incline towards. The wife’s crime was serious: she had killed her second husband and the son. But her reason for those murders seemed to him so innate, so well grounded in natural law (since the two of them together had treacherously ambushed that first son without being in any way wronged or injured by him, merely out of a covetous desire to take over the whole of the hereditament) that he sent it to the Areopagus in Athens for a decision so as to find out what their counsel and judgement would be.
‘The Areopagites replied that, in order to answer certain questions not covered by the transcript of the indictment, the contending parties should be brought before them, in person, one hundred years from thence.
‘That was tantamount to stating that so great were the perplexity and obscurity of the case that they did not know what to say nor how to judge. If anyone had decided the case by casting dice, he could not have gone wrong whatever happened: if it went against the woman, she did deserve to be punished seeing that she had taken retribution into her own hands instead of leaving it to the Law: if for the woman, she had a plausible case from her appalling suffering.
‘What astonishes me, though, in Bridoye is the continuance over so many years.’
‘I cannot give an unqualified answer to your problem,’ replied Epistemon, ‘so much I must confess. But I would conjecturally refer Bridoye’s good fortune in judgement to the propitious aspect of the heavens and the favour of the Motor Intelligences: they contemplate the simple-mindedness and pure emotions of Justice Bridoye, who (mistrustful of his own learning and abilities; aware of the antinomies and contradictions within laws, edicts, customs and decrees; conscious of the deceits of the Slanderer from Hell who often transfigures himself as an angel of light through his ministers, the perverted lawyers, counsellors, procurators and other such myrmidons who turn black into white, make it appear to both parties through misleading illusions that they have the Law on their side: for you know that there is no case so bad that it finds not its lawyer, without which there would never be any lawsuits in this world) humbly commends himself to God, the Just Judge, invokes the help of heavenly grace, confides in the Most-Holy Ghost over the hazard and perplexity of the decisive judgement, and by such lots reconnoitre his decree and good pleasure which we call verdicts; and then the Motor Intelligences might spin and turn the dice so that they fall in support of him who, furnished with a just grievance, was imploring that his rightful cause be upheld by Justice; since the Talmudists say that there is no evil in lots, simply that amongst the anxieties and doubts of human beings it is by lots that is manifested the Divine Will.35
‘I would not wish to think or say – and I certainly do not believe – that the iniquity of the legal consultants in that Parlement of Myrelingues in Myrelingues is so lawless and their corruptibility so manifest that a lawsuit would not be worse decided by a throw of the dice, whatever happened, than it is passing through their hands full of blood and perverted passions; especially considering that their entire manual of current law was handed down to them by a certain Tribonian, a wicked, faithless and barbaric man, so malevolent, rapacious and iniquitous that he would peddle the laws, edicts, rescripts, enactments and ordinances to whichever party offered him the most; and who “cut them their slices” into those little bits and bobs of law which they currently use, whilst repressing and jettisoning all which made of the Law a totality, fearing that if the Law had remained whole and the books of the Ancient jurisconsults expounding the Twelve Tables and the Edicts of the Praetors had been there to r
ead, the world would have clearly learnt of his wickedness.
‘That is why it would often be better (that is to say, less evil would come of it) if the opposing parties walked over spiked booby-traps than relied for their law on their responses and expert opinions; indeed, Cato wished and advised that the law-courts in his time be paved with such spikes!36
How Panurge takes counsel from Triboullet
chapter 45
[Was originally Chapter 42.
We now meet Triboullet, the real fool of the courts of Louis XII and François I. With him we leave the ‘thesis’ – should one marry? – and return to the ‘hypothesis’ – should Panurge marry?
The principal authority and source of the arguments and details in this chapter is Budé’s Annotations on the Pandects, commenting on a paragraph of the Pandects with the incipit ‘if the slave amongst the Fanatics did not always jerk his bead…’(In Opera, III (Basle, 1557), Gregg reprint, pp. 251–2). There is a crucial difference in Law between ‘jectigation’, the jerking of the head of the inspired person, and the lolling of the head shown by Panurge at the beginning of Chapter 37 of the Third Book (and, before that, by the young giant in Gargantua lumbering astride his decrepit old mule). Jectigation is caused by the inflowing of the spirit of prophecy, which produces a divine ‘madness’. The lolling head is the sign of a very different kind of madness, bestial stupor, or the worse kind of heavy, melancholy madness.]
Six days later Pantagruel returned home at the very time that Triboullet came by river from Blois, on whom, when he docked, Panurge bestowed a pig’s bladder, blown up tight and loudly rattling from the peas inside it, plus a wooden sword highly gilt, together with a game-pouch made from a tortoise shell, a wickered demijohn of vin breton and a quarter-pound of blant dureau apples.
Gargantua and Pantagruel Page 60