LECTOR ON THE LEGAL MERITS OF THE ILIAD. TO CHRISTOPHER NORTH, ESQ. MY DEAR SIR,-The first-fruits of all my ideas are due to Maga, as the kind patroness of my schemes and studies. Encouraged by her favour I have been induced more earnestly than ever to consider the connexion of legal principles with life and literature; and, after much research and reflection, have arrived at the discovery of this important truth, that in most of the great examples of fictitious narrative, the cardinal points of interest turn mainly upon questions of law. I intend, in the present letter, at once to illustrate this position, and to furnish a prospectus of future specu. lations of the same kind, by examin. ing briefly, upon the best principles of jurisprudence, the foundation of the story of the Iliad. I do not here allude to the question between Paris and Menelaus in relation to Helen, although that matter deserves the best attention of a jurist, as an important chapter in ancient practice, regarding a description of injuries for which res paration is now obtained in a shorter and more satisfactory way. But I refer to the proper subject of the Iliad, as a poem employed in celebrating the wrath of Achilles. I affirm that the circumstances out of which the story thus springs are chiefly to be viewed as involving a legal question, and I add, that the interest of the event and the excellence of the. epic, bear an exact proportion to the importance and difficulty of the points of law which are so raised. The facts of the case may be shortly stated:-The Greeks, while engaged in the siege of Troy, having taken by storm some of the neighbouring towns, obtain possession of a large amount of plunder, including, among other articles, an assortment of ladies. A division of the spoil ensues, in which Agamemnon receives Chryseïs as his share, or part of his share, the rest of the females being distributed among the other heroes, Achilles, Ajax, Nestor, &c. Thereafter a mortal pestilence, probably cholera, breaks out in the Grecian army, which, it is ascertained, proceeds from the displeasure of Apollo for the re tention of Chryseis, who is the daughter of his priest; whereupon Aga memnon, acting on the declared principle of promoting the common benefit, Βαλομ' εγω λαον στον εμμεναι, η απο λέσθαι, surrenders Chryseis to her father, without ransom or reward. Quïd juris as to Agamemnon's claim of recompense from the other Greeks on account of the loss thus sustained by him? It will at once be seen that this question is equally difficult and important. The difficulty, as usual, proceeds from the conflict of opposing principles, each of which is undeni ably correct within certain debatable limits, and each of which, if found applicable, will be decisive of the question. 1. On the one hand, there is the principle embodied in the maxim, Res perit domino, a thing perishes to its owner; or, in other words, the owner of an article is the party who must suffer by its loss. There is no doubt that if my horse or house is accidentally destroyed, even when lent to a friend, the loss is mine. The allotment of Chryseis to Agamemnon, transferred to him the periculum or risk of any event by which she might be carried off. Previously indeed to a division, and while she and the other articles of booty were in medio, the risk was with the whole body of the Greeks, who had a common property in the total undivided spoil. But as soon as a division was effected, that act, by passing the property of the lady to the leader of the army, subjected him also to the consequences of any contingency which might affect his prize. From that time forward he had exclusive right to the emoluments and advantages which might result from the chattel; and was bound, as the counterpart of this privilege, to bear the burden of its eventual loss or depreciation. Agamemnon speaks in high terms of the spy or accomplishments of Chryseis, which, probably, consisted mainly in her skill in worsted work, and he had threatened her fa ther, that as she advanced in life she Ιστον εποιχομενην, και εμον λεχος αντισωσαν. As it cannot be questioned that the King of men would have had the whole profits or benefits arising from the disposal or use of the articles so manufactured, without any accountability to the Greeks for the amount received, so he was the sole party to suffer from the untoward result of his speculation. Cujus est commodum ejus debet esse incommodum. 2. But there is another recognised principle of law which militates against the application of these views. It is a rule that recompense or contribution is due where a loss is sustained for the purpose and with the effect of producing benefit to another person, or to a community. This is the foundation of the Lex Rhodia de juctu, or law of general average in the case of jettison; and it extends to many analogous cases. The distinction between the range of this principle and the neighbouring territory, belonging to the rule of res perit domino, may in general be easily defined. If my goods, being on board of ship, are washed into the sea during a storm, it is I that suffer. But if, while these goods are no more in danger than the goods of others, a resolution is adopted to throw my property overboard to lighten the ship for the common safety, there is no doubt that contribution takes place, and that an average must be struck apportioning the loss among all concerned. Now it might be strongly contended here, that as the Greeks were all sailing in the same boat, and as Chryseis was thrown overboard for the general behoof, and so as to benefit the whole crew, Agamemnon was not to be the sole sufferer, but was entitled to indemnification from those who, without any immediate personal sacrifice, participated in the beneficial result. Agamemnon was, no doubt, exposed to the risk of Chryseis perishing individually by the plague, or in any other way in which she might be accidentally affected; and he could not, in such an event, have claimed compensation. But the case is more favourable for his demand where she is not lost accidentally, but surrendered deliberately; and where the object is not specially to benefit her owner, but to save the whole army from injury. 3. But then again, it is not clear that this principle of contribution, as in the case of jettison, is properly applicable to the question in hand. It must be carefully considered whether Agamemnon and Chryseis are truly in the supposed situation of a merchant and his goods on board of ship in a storm, so as to be within reach of the rule contended for. There is certainly one specialty which raises a puzzle in the case, and which must be cleared away, or shown to be unimportant, before the analogy can fully hold. Chryseis in this case was the sole cause of the storm, which she is thrown overboard to elude. We have as yet had no principle or authority which disposes of this peculiarity. In the cases previously figured, there was no connexion between the danger impending, and the property sacrificed; at least, that property was in no way implicated in the origin of the danger. It is not in consequence of any part of the cargo being on board, that the winds and waves are induced to assail a vessel; nor is there in the elements a desire to get possession of one com. modity more than another. But here Agamemnon or his merchandise was as a kind of Jonas in the ship, and scarcely therefore in the same favourable condition as the rest of the crew and cargo. This consideration might make a material alteration on the state of the question. I do not, in this view, remember any precise case in point, nor is the situation likely to occur often in real business. Equity, however, affords grounds for opposing any contribution in such circum stances. To take a fanciful, or perhaps a fabulous illustration, it seems pretty certain that, if various animals in company with a beaver were shot at by hunters, with an exclusive view to what the beaver could alone supply, the species of jettison which is said to be performed by that quadruped in such an emergency would not entitle him to come against his neighbours to make up the loss thus sustained. It may be plausibly argued, that Agamemnon was in an analogous position, and that he could have no claim for indemnification of a loss, which became necessary to avert the ruin which he and his property had brought upon the community. Indeed, it might be said that those who had already suffered by the pestilence, or their widows and families, had a good claim of damages against him as the cause of the mischief. 4. To all which, however, it might be rejoined, on the part of Agamemnon, that the specialty here founded on made no difference on the case, or if it did, had a tendency rather to strengthen than to exclude his claim. It could not be seriously maintained that Agamemnon was personally responsible for the consequences of Chryseis's detention; and indeed the allusion to such a liability only showed the weakness of the argument on the part of the Greeks. He might have been so liable if any culpability had attached to him; but this was not the case, or if there was culpability, it was of a kind that could not be pleaded by these parties, who had been jointly concerned in the transactions by which Chryseis was made captive, and were equally implicated in the cause, as they had been in the consequences, of Apollo's interference. It seemed, moreover, to be implied in the division of the spoil, that Agamemnon received Chryseis from the Greeks with a warranty that she was free from any peculiar defect of title, or from any latent danger attending her detention. At least, in the event of any such defect or danger unexpectedly emerging, the whole matter was liable to be opened up, and a restitutio in integrum must take place as far as practicable. It was out of the question that an indi vidual should suffer the whole amount of a loss which was the result of the joint actings, and calculated to secure the joint benefit of the whole society. It will be seen that other arguments would here come into play, such as the plea that there is no contribution in tort, or that the loss suffered by one of several wrongdoers gives him no claim of recompense against his comrades. But to these matters it is sufficient generally to allude. It must be confessed that the whole question thus raised resolves itself into some of the prettiest points of law that ever emptied a client's pocket; and I am sure that the slight sketch which I have given of them must have contributed to raise even your own exalted opinion of Homer's ability. It thus appears that he was as great in jurisprudence as he was in every other department. So nicely and skilfully have the scales been adjusted in the case we have been considering, that I confess I feel it almost impossible to tell on which side the balance inclines. My own leaning, on the whole, is in favour of Agamemnon; and I am disposed to think that this also was the view taken by old Mæonides himself. At least it appears to me that, with that admirable judgment and knowledge of nature which are peculiarly his own, he proceeds immediately to put Agamemnon as far in the wrong as he has hitherto been in the right, so as, in this way, to divide both the truth and the error of the case between the parties, and to preserve that sympathy for each which was essential to the interest of his story. Agamemnon, I have said, appears to me to have been well founded in his general plea; but he is wholly mistaken when he comes to carry it out in detail. Supposing him entitled to compensation for the loss of Chryseis, he had no right to seize upon the goods of Achilles, or of any individual, to satisfy his claim. He could only ask, on his own principles, that a general average should be struck, and that each of the parties benefitted should pay his proportion. It is clear, in the same way, that Agamemnon himself must have børne a share of the loss; so that, in any view, he had a right not to the full value of the lady-but only to that value, minus his own proportion of it. This, however, and all other nice questions of adjustment of the average, are perhaps fitter for a broker's books of business, than for an epic poem, and in avoiding them as he has done, our sagacious bard has served several purposes at the same time. It must, in conclusion, be confessed that there is not more of skill and ingenuity shown in raising these various questions of law, than of eloquence and ability in discussing them. Avoiding any pedantic or technical expressions, the principles at issue are sufficiently developed for all the purposes of poetry, and the leading speeches are extremely satisfactory. The splendid military talents of Achilles, as, till lately in the case of the Duke of Wellington, have tended unduly to obscure the lustre of his intellectual powers, But for this strength of expression, an apology must be sought in the manners of the age. And how nobly has the hero pleaded the rights of private property in the following passage, enforcing them at the same time by some considerations, which, though not strictly pertinent, would at least be calculated to have much weight with a jury. "What gen'rous Greek, obedient to thy word, Shall form an ambush, or shall lift the sword? What cause have I to war at thy decree? The distant Trojans never injured me: To Phthia's realms no hostile troops they led, Safe in her vales my warlike coursers fed; Far bence removed, the hoarse-resounding main, And walls of rocks, secure my native reign, Whose fruitful soil luxuriant harvests grace, Rich in her fruits, and in her martial race. Hither we sail'd, a voluntary throng, T'avenge a private, not a public wrong: What else to Troy th' assembled nations draws, But thine, ungrateful, and thy brother's cause? Is this the pay our blood and toils deserve, Disgraced and injured by the man we serve? And darest thou threat to snatch my prize As observed, if I remember right, in the best criticisms on Homer that have ever appeared, Pope has here omitted the beautiful force of the original reference to Achilles's own prize, the ολιγον το φίλον τε. But in other respects he has well rendered the passage; and with deference to much that has been said on the subject, I doubt whether any one has yet surpassed Pope as a translator of the Iliad. His translation is, at least, the most readable that we possess, and an unreadable translation of Homer must, of all others, be the most unlike the original. I now, sir, dismiss this subject, with an attempt to embody in verse the views that might have been taken of the question we have now examined, if it had been professionally argued ment to the native country of Maga, and formally decided. As a compli I adopt the language and machinery of the law of Scotland. AGAMEMNON v. ACHILLES and OTHERS. Report the case, O heavenly Muse, In which Atrides, King of Men, In Themis' Court the Greeks pursues; (O for the Bard's or Baron's* pen!) Claiming another blooming beauty, Or else a further share of booty, Equal in value to Chryseis. The ground on which he puts his plea is, That he the lady has restored To save these same defenders' bacon, And so is left at bed and board Quite solitary and forsaken. Ten Thousand Achilles then, for self and friends, Which he, for one, might well dispute, The maxim, domino res périt, Was quite enough to end the suit. The claim was clear as in rem versum; The authorities, alive and dead, Were many-he would not rehearse 'em : * Mr Baron Hume, whose excellent Reports have been lately published. But would refer her Lordship back to Replied no blame in this affair Can lie at Agamemnon's charge; Or if it does, 'tis but a share Of what affects the Greeks at large. The case thus comes to one short point, Which seems decisive of the whole; The blame and benefit are joint, The loss should therefore not be sole. Many more arguments were stated, But some strong language pass'd in Court, Themis, who, not to judge at random, For such a rateable percentage, Was ask'd from each in solidum,- very gratefully, MOUND PLACE, 15th August 1840. THE VISIT TO THE LIONS. "HER Majesty, struck with the great skill of Van Amburgh in managing those tremendous animals, expressed a wish to see them nearer; and accordingly, after the audience had retired, she, with several of the ladies of the Court and the Lords in Waiting, came upon the stage." Newspaper paragragh. |