Part 18
No lawyer that I know of has ever suggested that a witness or juror must kiss the Book. Nor, on the contrary, has any lawyer sought to forbid a man to kiss the Book. I take it that any reverent and decent use of the Book as a voluntary addition to the oath would be allowed. The general rule of English law is that all witnesses ought to be sworn according to the peculiar ceremonies of their own religion, or in such manner as they deem binding on their consciences. If, therefore, a Christian wishes to kiss the Book he may do so, but the only formality that need be legally observed is the laying of hands upon the Book. As Lord Hale says, “the regular oath as is allowed by the laws of England is _Tactis sacrosanctis Dei Evangeliis_.” Lord Coke, too, says “It is called a corporal oath because he toucheth with his hand some part of the Holy Scripture.” Modern antiquarians have sought to show that the word corporal was used in connection with the ritual of an oath, and referred to the “Corporale Linteum” on which the sacred Elements were placed, and by which they were covered. Some suggest that the word comes from the Romans, and draws a distinction between an oath taken in person and by proxy. But for my part I think Lord Coke knew as much about it as any of his scholarly critics, and is not far wrong when he says a corporal oath is an oath in which a man touches the Book.
This form of oath was practised by the Greeks and Romans, and is of great antiquity. Hannibal, when only nine years old, was called upon by his father to swear eternal enmity to Rome by laying his hand on the sacred things. Livy, in describing it, uses the words _tactis sacris_, the very expression that passed into the University and other oaths of modern England. Izaak Walton, in his “Life of Hooker,” sets down a bold but affectionate sermon preached to Queen Elizabeth by Archbishop Whitgift, in which he reminds the Queen that at her coronation she had promised to maintain the Church lands, and then he adds: “You yourself have testified openly to God at the holy altar by laying your hands on the Bible, then lying upon it.”
That this is the real form of an English Christian oath, and that kissing the Book is purely a voluntary ceremony is, I think, made clear in a curious little volume, entitled, “The Clerk of Assize, Judges Marshall and Cryer, being the true Manner and Form of the Proceedings at the Assizes and General Goale Delivery, both in the Crown Court and Nisi Prius Court. By T.W.” This was printed for Timothy Twyford in 1660, and sold at his shop within the Inner Temple Gate. It is probably the book Pepys refers to when he notes in his diary: “So away back again home, reading all the way the book of the collection of oaths in the several offices of this nation which is worth a man’s reading.”
I am quite of Pepys’ opinion, and a man may read it after two hundred and fifty years with as much profit as Pepys did. It is a quaint little book, and in the preface T. W. writes that “the Government of this nation being now happily brought into its ancient and right course, and that the proceedings in Courts of Justice to be in the King’s name, and in Latine and Court-hand (the good old way), I have set forth and published the small Manuel,” for the benefit of the new officers who may here “find all such Oaths and Words as are by them to be administered.” In the rubric attached to the jurors’ oath is the following:—“Note that every juror must lay his hand on the Book and look towards the prisoners.” In the same way in the oath to the foreman of the grand jury, T. W. writes: “The foreman must lay his hand on the Book.”
Although it seems probable that kissing the Book was customary at this date, T. W. would, I think, certainly have pointed out that it was necessary if he had so considered it, and the absence of any reference to kissing the Book in a “manuel” published for the very purpose of explaining to the ignorant the correct manner in which to administer the oath, shows that the author did not consider that part of the ceremony a necessary one. The references to the form of oath in old law books are very few. There is a case reported, in “the good old way” of law French, in Siderfin, an ancient law reporter, in Michaelmas Term, 1657. Dr. Owen, Vice-Chancellor of Oxford, refused to take the oath _en le usual manner per laying son main dexter sur le Lieur et per baseront ceo apres_. The doctor merely lifted up his right hand, and the jury, being in doubt, asked Chief Justice Glin whether it was really an oath. The Chief Justice said, “that in his judgment he had taken as strong an oath as any other witness, but said if he was to be sworn himself he would lay his right hand upon the Book.” There is another curious decision upon the necessity of kissing the Book mentioned in Walker’s “History of Independency,” in the account of the trial of Colonel Morrice, who held Pontefract Castle for the King. The colonel wished to challenge one Brooke, foreman of the jury, and his professed enemy, but the Court held, probably rightly, that the challenge came too late, as Brooke was sworn already. “Brooke being asked the question whether he were sworn or no, replied ‘he had not yet kissed the Book.’ The Court answered that was but a ceremony.”
The whole matter was very much discussed in 1744, when, in a well-known case, lawyers argued at interminable length as to whether it were possible for a person professing the Gentoo religion to take an oath in an English court. Sir Dudley Rider, the Attorney-General, says in his argument “kissing the Book is no more than a sign, and not essential to the oath.” He seems to think that touching the Book is not essential; but the true view seems to be laid down by Lord Chancellor Hardwicke, who says that the outward act is not essential to the oath, but there must be some external act to make it a corporal act. That is to say, that the kind of external act done may be left to the taste and fancy of the person taking the oath. The laying the hand on the Book is convenient, and is the recognised form, but a salute or act of reverence towards the Book would be sufficient, as Dr. Owen’s case seems to show.
Apart altogether from the forms and ceremonies of oaths, it is surely well worth considering whether the practice of oath-taking in courts of justice should not be discontinued. Although many good and learned men have argued with great ability that a man taking an oath does not imprecate the Divine vengeance upon himself if his evidence is false, yet the whole history and practice of oath-taking is adverse to their amiable and well-meaning philosophy. The gist of an oath is, and always has been, that the swearer calls upon the Almighty to inflict punishment upon him here or hereafter if he is false to his oath. In early days oaths were only taken upon solemn occasions, and in a solemn manner. In modern life they have been multiplied, and become so common that little attention is paid to them. Even in this country prior to Elizabeth there was no statute punishing perjury, and the oath was the only safeguard there was against the offence. The statute then passed shows of what little use the oath was even in those days as a preventive of perjury. But then few people could give testimony in courts, and there may have been some semblance of a religious ceremony in the affair. To-day that is gone, and necessarily gone.
All writers who have seriously considered the matter condemn the multiplicity of oaths on trivial occasions as taking away from the ceremony any practical value it may have. Selden, in Cromwell’s day, says: “Now oaths are so frequent they should be taken like pills, swallowed whole; if you chew them you will find them bitter; if you think what you swear, ’twill hardly go down.” What would he think of our progress to-day in this matter? Defoe, at a later date, lays down the principle that “the making of oaths familiar is certainly a great piece of indiscretion in a Government, and multiplying of oaths in many cases is multiplying perjuries.” England has been called “a land of oaths,” and familiarity with oath-taking has always bred contempt of the oath. In the old days of the Custom House oaths it is said that “there were houses of resort where persons were always to be found ready at a moment’s warning to take any oath required; the signal of the business for which they were needed was this inquiry: ‘Any damned soul here?’”
Without suggesting that there is a great amount of perjury in English courts, for Englishmen respect the law and have a wholesome dread of indictments, we cannot pride ourselves on a system that uses what ought to be a very solemn ceremony on every trumpery occasion. In the County Courts alone a million oaths at least must be taken every year in England. And upon what trifling, foolish matters are men and women invited by the State to make a presumptuous prayer to the Almighty to withdraw from them His help and protection if they shall speak falsely.
Two women, for instance, have a dispute over the fit of a bodice; each is full of passion and prejudice, and quite unlikely to speak the truth, the whole truth, and nothing but the truth. Is it fair to ask them to take an oath that they will do so, and, in the language of Chaucer, to swear “in truth, in doom and in righteousness,” about so trivial a matter? Or, again, in an arbitration under the Lands Clauses Act, is it fitting that six land surveyors should condemn themselves to eternal penalties when everyone knows that, like the barristers engaged in the arbitrations, they are paid for services of an argumentative character rather than as witnesses of mere fact? As Viscount Sherbrooke said in an excellent essay on the oath, written at the time of the Bradlaugh case, “If you believe in God it is a blasphemy; if not, it is a hollow and shameless cheat.”
Any practical, worldly scheme to prevent perjury is of more use than a religious oath, and one might quote many historical instances in proof of this. Two widely apart in circumstance and period will show my meaning. The Ministers of Honorius on a certain occasion swore by the head of the Emperor, a very ancient form of oath. (Joseph, it may be remembered, swore “by the life of Pharaoh,” and Helen swore by the head of Menelaus.) The same Ministers, says Gibbon, “were heard to declare that if they had only invoked the name of the Deity they would consult the public safety (by going back on their word), and trust their souls to the mercy of Heaven; but they had touched in solemn ceremony that august seal of majesty and wisdom, and the violation of that oath would expose them to the temporal penalties of sacrilege and rebellion.” In like manner I remember a Jew, annoyed by apparent disbelief of his oath, saying before me in a moment of irritation, “I have sworn by Jehovah that every word I say is true, but I will go further than that: I will put down ten pounds in cash, and it may be taken away from me if what I say is not true.” What sane man will say that the oath, as an oath, is of practical use when for centuries we find instances such as these of the way it is regarded by the person by whom it is taken. But it will be said that if a man pleases he can to-day affirm. Undoubtedly that is so, but the average Englishman has a horror of making a fuss in a public place, especially about a matter of everyday usage. The other day I suggested to a man who was suffering from cancer in the tongue that he might take the Scotch oath instead of kissing the Book. He did it reluctantly, as I thought. Once, too I made the same suggestion to a witness at Quarter Sessions who was in a horrible state of disease, but he preferred to kiss the Book—which was afterwards destroyed.
The average man is like the average schoolboy, and would any day rather do “the right thing” than to do what is right. All of us have not the courage of Mrs. Maden, who was refused justice in a Lancashire county court as late as 1863 because she honestly stated her views on matters of religion. As Baron Bramwell pointed out in deciding the case, the judgment he was giving involved the absurdity of ascertaining the fact of Mrs. Maden’s disbelief by accepting her own statement of it, and then ruling that she was a person incompetent to speak the truth. Truly no precedent in English law can be over-ruled by its own inherent folly.
Later on, too, in our own time, we can remember the fate of Mr. Bradlaugh in his struggles with Courts and Parliament, and we can read in history the stories of George Fox and Margaret Fell. The cynic may say that these people made a great deal of fuss about a very unimportant matter; but, after all, the attitude of George Fox on the question of the oath was a very noble one.
“Will you take the oath of allegiance, George Fox?” asks the Judge in the Court of Lancaster Castle.
_George Fox_: “I never took an oath in my life.”
_Judge_: “Will you swear or no?”
_George Fox_: “Christ commands we must not swear at all; and the apostle: and whether I must obey God, or man, judge thee, I put it to thee.”
And having read many volumes of man’s answer to George Fox, I am content for my part to think he still has the best of it, and that “Swear not at all” is as much a commandment as “Thou shalt not steal,” or “Sell all that thou hast and give to the poor.” Whether in a work-a-day world of timid people, who cling to the bad habits of their prehistoric ancestry, it is possible to live up to the ideals of these commandments is quite another matter, and I should be the last in the world to throw stones at others in this matter.
I must confess that on the few occasions I have given evidence I have dutifully “kissed the Book” like any other witness. Whether I should do so again I am not so sure. Probably literary pride would overcome the natural shyness of my disposition, and I should propose to read what I have written here to a long-suffering judge, and claim as of right to take the oath “tactis sanctis,” with no ceremony of kissing.
For the more I see of the ceremony the more it jars upon me as a mere matter of reverence to holy things, and the more I read of the matter the more convinced I am of its superstitious origin. When, too, I feel sure that it is of no practical purpose and is as useless as it is insanitary, I begin to think that the hour is approaching when we may, without impiety to the shades of our ancestors, adopt some more reasonable ceremony of commencing our evidence in the law courts than that of kissing the Book.
A WELSH RECTOR OF THE LAST CENTURY.
“E’en children follow’d with endearing wile, And pluck’d his gown to share the good man’s smile.”
—_Oliver Goldsmith._
“I must tell you this indeed,” as the Reverend John Hopkins, Rector of Rhoscolyn, always began his stories; but I wish I could tell you what I have to tell in his own delightful accent. For the form of words, “I must tell you this indeed,” was only, I think, a trick of speech he used in order to give himself time to translate his Welsh thought into the English tongue, and his English tongue, when it spoke, gave something of the rhythm and music of the Welsh to the foreign language he was using. His was a curious Welsh accent, unlike any I have heard. For though he had lived in the pure and bracing atmosphere of Anglesey—where, as in all the Welsh counties I have been in, they assure me the most classical Welsh is spoken—yet the rector did not speak with the Anglesey tongue, being a South Wales man himself, a “Hwntw” in the phrase of the North, or “man from beyond.” And the beyond he had sprung from was, I believe, in the neighbourhood of Merthyr. He was a son of the soil and of the school of Lampeter, and—the rectory of Rhoscolyn being in the gift of the Bishop of Llandaff—he had, when I first knew him, been sent some twenty years ago to minister on this out-of-way rock, and there he remained to the day of his death. The rector’s duties included ministering in two distant chapels, Llanfair-yn-Neubwll and Llanfihangel-y-Traeth, which was performed by deputy, but wholly or partly at his cost. In the days of Elizabeth, the whole of the duties were performed for ten pounds five shillings; nowadays, I believe, the living is worth nearly two hundred pounds.
But though, as I said, there was the song in his words that there is in all right-spoken Welsh, and the high note lovingly dwelt on towards the end of the sentence, which only a Welshman can produce without effort, yet I am not artist enough to describe to you in words the difference of the rector’s speech from that of his neighbours, only, “I must tell you this indeed,” that so it was and always is, I am told, with the “men from beyond.”
The Rector of Rhoscolyn was a bachelor, a man of stout build and middle stature. He had the air of a Friar Tuck about him. His eyes were merry and kindly. If he had changed his long rusty black coat and clerical hat for a cassock and cowl, he would have been a monk after Dendy Sadler’s own heart. He loved his pipe and his glass, when the day’s work was done, and the talk of books and men, with those who had lived in the outer world, was to him the rarest and most delightful of pleasures. He was outspoken, simple, and generous, an earnest believer in his creed and his Church, a lover of music, and above and beyond all, a man who attracted to himself animals and little children as if by instinct, and gained their love as only those who suffer them to come without affectation can do. He seemed, as far as I could see, to have no enemies. I think it was a weakness in his character—a Christian weakness—that he shrank from causing annoyance or hurt to anyone’s susceptibilities. I was his neighbour for some seven summer weeks, and five evenings out of seven we smoked our pipes together, and he poured out to very willing ears the tales of his lonely parish, but I scarce remember an unkindly story among them all. If there was a tale that he feared might give pain in the repetition, it was always prefaced by a smile of great candour, and as he began, “I must tell you this indeed,” he placed his fore-finger on his broad nostril and said in a sly merry whisper, with a great rolling of the letter “r”: “This is _inter-r-r nos_.” That is why some of his best stories cannot be set down here.
But, to understand the man and his ways, you must know how and where he lived. For the surroundings and the man were as if Nature had designed the one for the other, and he was as much in his place in his rectory, on the side of the Mynydd Rhoscolyn, as the Sarn Cromlech is on the slopes of Cefnamlwch. Rhoscolyn is a typical Anglesey parish. No doubt, when Mona was one of the Fortunate Islands, it had a Druid temple and a Druid priest, and if the latter had come back to the site of his temple he would have found little of change. A church, a plâs, a post-office, a rectory, a life-boat, and a few farmhouses in sheltered corners; but the rest is as it always was. The eternal rocks, the restless waves rushing up into the black water caves, the steep cliffs crumbling a little day by day, the cruel, sharp island rocks hidden at high water and marked by the spray and swirl of the tide as it sinks away from the shore, the purple heather and yellow gorse clothing the cliffs to the edge of the sky, the samphire finding a fearful footway between earth and sea, and, above all, the wild bees humming their eternal summer song, and the fresh breezes, always pure, always sweet, always sweeping backwards and forwards across the promontory. Those things were there in the day of the Druids and they are there to-day.
And in Roman times Rhoscolyn was of more note than it is now, for some say that the name of it is derived from a Roman column that was placed here to signify the utmost bounds of Roman victories. Whether this be true or not, we have in the name Bodiar—which is still the squire’s house—the governor’s habitation, and in the neighbouring Prieddfod the Præsidii Locus; or, at least, this is what antiquaries tell us, and it is comfortable to believe these things. Telford and his new road thrust Rhoscolyn further away from civilisation, and the railway brought it no nearer as it sneaked into Holyhead, across the Traeth-y-grubyn, behind the shelter of the road embankment. For Holyhead is on an island, and the old main road, with that instinct for the line of least resistance which in old highways tends to such picturesque results, kept south of the wide marsh and crossed the water at Four Mile Bridge—Rhyd-y-bont Pennant calls it, and he rode over it, and knew at least as much of Wales as an ordnance surveyor of to-day. There you can see the most beautiful sunset views of the Holyhead Mountain, at the head of the open water, when the tide is high; and if you turn your back to the town, you will find Rhoscolyn within a couple of miles of Four Mile Bridge and six miles south of Holyhead.
The rectory stands on the slope of the Rhoscolyn Mountain—there are no hills in Wales to speak of, for we speak of them all as mountains. It is four-square, whitewashed, and has a slate roof. There are no trees round it. The only trees in Rhoscolyn are an imported plantation at the plâs. There are a few thorn bushes in the hedgerows, but the wind has carved them into finger-posts, pointing consistently eastward, and they scarcely look like trees at all. The rectory is surrounded by substantial farm buildings, for the rector is a farmer. His old mare, Polly, and the low gig are well-known figures in Holyhead market, and he tells you with a farmer’s pride that all through the winter his evening supper is oatmeal porridge and milk, the produce of his own farming. He had no relish, he told me, for oatmeal that was bought at a shop, for he had a countryman’s delight and belief in the home-made. His was a good herd of cows, and he knew each by name, and, like all true Welshmen, could call them to him as he walked through his fields. Different Welsh districts seem to have different calls for their cattle, and the real Nevin call, for instance, is another thing altogether from the Rhoscolyn call. These things are a mystery, and are well understood by the cows themselves, who will shake their heads contemptuously at the Saxon imitator.
The church is a pretty modern building, with a belfry, standing on an eminence away from other buildings. The post-office where I was living is its nearest neighbour. There are no streets in Rhoscolyn, nor has it any centre square. It is a parish rather than a village, and its few hundred inhabitants live in scattered farms and cottages. There are generally a few artist visitors, for Rhoscolyn is almost another Sark for the rock-painter, and one or two families find summer homes in the neighbouring farms. There is bathing out of your tent, which you leave on the grass at the edge of the tiny bay, at the mercy of the winds and the little black bullocks that roam about in the flat marshes inland. There are rambles among the cliffs and the heather. An ideal place for a holiday for those who really want a holiday and are content with oxygen and rest.