Part 8
After some time and examination of the books, the good lady was convinced that she was entitled to a sovereign, and she went away aghast at her husband’s deceit, and murmured, “Eh, but if yon Boers don’t kill him, wait till I get him back!”
One reason why imprisonment should be abolished in relation, at all events, to amounts under forty shillings is the dangerous and slippery paths of evidence along which a Judge has to walk in dealing with small cases. Some witnesses have not the remotest idea of their duties and responsibilities. On one occasion a low-class Jewish workman was sufficiently impressed with his responsibilities to make the following demand after he was sworn.
“My lort, I cannot be a vitness in this case.”
“Why not?” I asked. “Don’t you know anything about it?”
“Oh, yes, I know all about it, but I don’t vant to speak.”
After a good deal of trouble I obtained from him the reason of his reticence.
“You see,” he said, “Moses (the plaintiff) is mine brother-in-law, and little Isaac (the defendant) he is mine vife’s nephew, and if I speak about this case, vy, I must give vun of them avay.”
I condoled with him about his family difficulties, and tried to persuade him that his duty was to speak the truth, but my only recollection of his evidence is that it was of no service to anyone, and that he certainly succeeded in giving himself away.
In a family dispute the greatest care must be taken to accept nothing as true that can possibly be prompted by hatred or malice. To do justice to the Jews they do not, as a rule, bring family disputes into court. A cynical registrar once told me that a Jew would swear anything for his brother, and a Christian anything against his brother. Without endorsing this epigrammatic exaggeration, I must sorrowfully admit that a downright North Country fight between blood relations over club money or the cost of a funeral tea or the furniture of a deceased parent is one of the saddest exhibitions of uncharitableness that I know.
The recklessness with which good ladies of unblemished character will commit what technical-minded lawyers might be inclined to consider perjury, and on occasion even stoop to something like forgery, would surprise anyone who was not conversant with it. In ordinary matters these good people are honest citizens enough, but in a family dispute honour requires that no iniquity must be left undone in order to gain the day. I remember in my early days a fat old dame of cheerful countenance suing her son-in-law, a young workman, for £2 17s. 9d. The odd shillings and pence were admitted, but the £2, which figured through two or three greasy books as “ballanse of account,” could not be traced to any particular source.
The old lady swore it was a grocery account. The young man denied it with emphasis, and said it was spite. Sarah, the old lady’s elder daughter, remembered some of the items of it, and with a great relish swore to them in detail. The young wife, who had been keeping a very lively baby quiet, and trying in between whiles to give evidence from the body of the court, at last got into the witness-box. Flinging the baby into her husband’s arms, and kissing the book with a smack, she shot out the following testimony at her mother and myself: “Look ’ere, mother, you know reet enow what that there balance is; it ain’t no balance at all—it’s my ’at and the wedding-dress, and the shoes to match, and the pair o’ greys what druv us to church, which I paid for when I was in service for three years, putting by ’arf-a-crown a month, which mother kep’ for me, and well she knows it, which it’s Sarah’s spite as ain’t got married yet.”
What was the real truth may be doubtful, but I was clear the “ballanse of account” was not groceries, and struck it out; yet, had the mother succeeded, she would have pursued her son-in-law to prison in an endeavour to collect the money.
For my part I think it is bad business for the community that homes should be broken up in order that a creditor may collect a trumpery debt that should never have been incurred, and it is because I believe it is the interest of the State to keep together the home of the working-man, and to deliver him from temptation, that I hope to see imprisonment for debt diminished, if not abolished altogether. An intelligent landlord wishing to preserve game kills off birds of prey and puts down poachers. An intelligent State, if it wishes to preserve the home of the working-man and his wife and children, should make it illegal for him to mortgage his future earnings, and to place his liberty in jeopardy in order to possess for the moment some shoddy piece of jewellery or drapery for which he has no real use.
THE FOLK-LORE OF THE COUNTY COURT.
“To those athirst the whole world seems A spring of water in their dreams.”
_From the Arabic._
Being snowed up in a library, well stocked with modern scientific folk-lore, I began a serious study of the subject. I started with enthusiasm. I saw myself propounding a new theory for every variant text, and pictured myself triumphantly riding through the otherworld on the Ossianic cycle. After a few days of it, however, I found that, wonderful as the science was, it was not made for me. I ran into a thick German fog, I got mixed up with _sagzug_ and _märchen_, I failed to appreciate the true differences between those holy men, Zimmer and Rohde, and I wandered aimlessly among parallels and analogues of varying age and _provenance_. When I emerged from the German fog I found myself staggering about a bleak Irish moor in company with a fellow named Cormac—or was it Finn? We were studying the _Dinnshenchas_, or playing with an _Agallamh_ or looking for a _Leprechaun_. It was worse than political economy, or logic, or the lost tribes. The fiscal problem is merriment compared to folk-lore. I finished my holiday with Trollope and have put folk-lore on my index _expurgatorius_.
One thing, however, haunts me still. I seem to have escaped from the learned confusions of this dismal science with a belief that the world is certainly not progressing. They took a lot of trouble at school to persuade me that the world kept going round. Since I have dipped into folk-lore I find this to be only part of the truth. The fact seems to be that the world does nothing else but go round and round and round, reiterating its old ideas in a very tiresome way indeed. The things we do and gossip and preach about to-day are much the same as the things they worried over in the ages of caves and mammoths and flint implements. I feel sorry that I cannot explore folk-lore further, for there are evidently great possibilities in it. But folk-lore is like collecting stamps, or keeping gold-fish or guinea-pigs. It is a “fancy,” and if you don’t fancy it you cannot be of the “fancy.” The slang of the science is too difficult for most of us, and if you cannot master the technical terms of a game, how can you hope to play it? Even football would be dull if you had no elementary conception of “off-side,” and it is easier to get “off-side” at folk-lore than it is at football. Then these scientists are so solemn. Euclid has his pictures and occasionally admits that things are absurd; but the smiles of folk-lore are in the otherworld, and even their ghosts do not appear to the latter-day student.
I should never have troubled further about folk-lore had not I met one of its greatest professors. To him I unburdened myself and told my trouble. “Folk-lore books,” he explained, “are not made to read. They are written to amuse the writer. You write about folk-lore—then you will begin to enjoy it.” I remembered that Lord Foppington held similar views when he said: “To mind the inside of a book is to entertain one’s self with the forced product of another man’s brain. Now, I think a man of quality and breeding may be much amused with the natural sprouts of his own.” An idea held in common by a peer and a professor must be precious indeed.
I modestly murmured that I knew nothing about folk-lore. To which the Professor encouragingly remarked that I should “approach the subject with an open mind.” “There is one royal road to success,” he said, as we parted, “have a theory of your own, and whatever happens, stick to it.”
Now curiously enough, I had a theory about folk-lore. It was the simple common idea that comes to many children even in their earliest school-days. The schoolmasters were all wrong. The professors of folk-lore were teaching it upside down. Instead of beginning with ancient legends and working back towards to-day, they should begin with to-day and march forward into the past. I wired to the Professor about it—reply prepaid. His answer was encouraging. “Theory probably Celtic origin; stick.”
As my business is to preside over a County Court, I went down to my work full of my theory and determined at all costs to stick to it. I know that to the pathologist a County Court is merely a gathering-place for microbes, and a centre point of infection; that the reformer sees in it only a cumbrous institution for deciding unnecessary disputes, whilst the facile reporter comes there to wash from its social dirt a few ounces of golden humour for his latest headline. These are but surface views. I went there like the poet, “whose seed-field is Time,” to find folk-lore, and I was overwhelmed.
No sooner did I enter the Court, as I had done many and many a hundred times, than the High Bailiff, rising in his place, called out, as he, too, had done many a hundred times, “Oh yes! Oh yes! Oh yes! All persons having business in the Manchester County Court draw near and give attention.” At once I knew that the place I was in belonged to the old days of fairies and knights, and ladies and giants, and heroes and dragons. The “Oyez! Oyez! Oyez!” struck my certain ear and told me I was in the presence of folk-lore. The creeping voice of the old world came stealing across the ages, calling upon me “Oyez!” “Hear!” and if you can “Understand!” It seemed to bring its message with a sly chuckle as if to say, “There you are, my modern, up-to-date, twentieth century judicial person, beginning your day’s work with the same old cry that has called men together to listen to official wisdom for centuries of time.”
My friend the High Bailiff has not, I am sure, the least notion that he is, from a folk-lore point of view, a man of parallels and analogues, or that the “fancy” would undoubtedly classify him along with that most beautiful of human fritillaries, the Herald. For indeed, in everything but glory of costume, he is one of those delightful figures of the middle ages who carried challenges and messages of peace and war, and set out the lists in jousts and tournaments, and witnessed combats and wagers of battle—which my friend sits and watches to-day—and recorded the names of those who did valiantly, and remembered the dead when the fight was over—which to-day he leaves to the reporters. Here in this dingy court in a Manchester back street students of folk lore may see a real Herald calling out “Oyez! Oyez!” announcing that the lists are open, and that anyone may come prancing into Court and throw down his glove—with the post-heroic gloss of a treasury hearing fee upon it—and that if the challenge be taken up, the fight may proceed according to the custom of County Courts.
I would inaugurate a movement to apparel the High Bailiff in scarlet and gold lace, and I would have him ride into Court on a white palfrey, sounding a trumpet, but that I fear it would lead to jealousy among Registrars. Besides, some envious German Professor will, I know, point out that as a crier my High Bailiff is more akin to the _Praeco_ of a Roman auction, and that the village town crier is his poor relation. The answer to this is that his auctioneering tendencies really belong to his bailiff cycle, as the “fancy” would say. And as a bailiff we could, did time permit, trace him in dry-as-dust glossaries and abridgments, through a line of sheriffs of counties, and stewards of manors, and in various forms of governors and superintendents, until we lose sight of him as a kind of tutor to the sons of emperors in the twilight of the gods.
Let the High Bailiff call on the first case, and say with Richard Plantagenet, Duke of York:
This is the day appointed for the combat, And ready are the appellant and defendant, The armourer and his man to enter the lists; So please your Highness to behold the fight.
It seems a real pity that we no longer follow the rubric of the Second Part of Henry VI., and that we cannot see Horner enter with his neighbours “bearing his staff with a sand-bag fastened to it,” on the other side, “Peter with a drum and a sand-bag.” Horner and Peter to-day would make a much better fight of it, thumping each other with sand-bags, than they do “barging” at each other with tongues, and they would be better friends afterwards. With a small charge for admission, too, and two houses a night, the County Courts might be self-supporting.
But we have not got very far away from the wager of battle after all. The hired champion is still with us from the house of the old Knights Templars, but he breaks his wit against his adversary instead of a lance. In another hundred years or so our methods of settling disputes may seem as laughable and melodramatic to our more reasonable great grandchildren as our grandfathers’ romantic methods seem to us. They may think that fees paid to eminent counsel, dressed in antique shapes, to exhibit their powers before packed galleries, according to the ancient and musty rules of a game that is wholly out of date, is an absurd way of endeavouring to reconcile human differences. The whole thing must before long, one would think, tumble into the dustbin of history and become folk-lore. But the legendary charm of the absurdity will always remain. Sir Edward Clarke or Mr. Rufus Isaacs, appearing for an injured ballet-girl in a breach of promise case against a faithless and wicked peer, is only a new setting of the story of Perseus and Andromeda, with the golden addition of a special fee. Perhaps there is even a parallel for the special fee in the old myth, for may it not be said that in a sense Perseus was moved to leave his usual circuit, and appear against the dragon by the tempting special fee of Andromeda herself? Could such a glorious figure be marked on the brief of to-day, what eloquence we should listen to.
The longer one stays in a County Court, the more does the atmosphere seem charged with folk-lore. Sagas seem to float in the air with the soot of our smoky chimneys, and wraiths of old customs swim in the draughty currents of cold that whistle under our doors. No sooner does a witness step into the box than one perceives that he too is an eternal type, and our methods of dealing with him as everlasting as the forms of the waves. The Greeks with all their noble ideals were a practical people, and the exactitude of their terminology is beyond praise; with a true instinct they described their witness as μάρτυς, a martyr. For, in the Golden Age, and equally I take it, in the Bronze, Stone, and Flint Chip period, the only way to stimulate your witness to truth was by blood or fire. These rough, kind-hearted, jovial, out-of-door fellows had not considered the superior and more subtle torture of cross-examination. The rack and the stake were good enough for them. Yet I feel sorry for the Greeks. How an Athenian mob would have enjoyed the intellectual entertainment of Mr. Hawkins, Q.C., administering one of those searching cross-examinations so lovingly described in Lord Brampton’s “Book of Martyrs.” Many others I have heard greatly skilled in this truly gentle art, but no one who played the game with such sporting strictness or approached his task with such loving joy. To see a witness in his hands made one feel almost jealous of the victim. To say this is only to say that to be a great advocate you must also be a great sportsman. How many moderns could handle a witness after the manner of Master Izaak Walton dealing with his frog? “I say, put your hook, I mean the arming-wire, through his mouth and out at his gills, and then with a fine needle and silk sew the upper part of his leg, with only one stitch, to the arming-wire of your hook; or tie the frog’s leg above the upper joint to the armed wire; and, in so doing, use him as though you loved him, that is, harm him as little as you may possibly that he may live the longer.” Alas! Lord Brampton’s arming-wire is laid on the shelf, and the pike in his pool mourns for Master Izaak—but what sportsmen they were. Really, when I think of the sorrows of the human frog in the witness-box, I begin to think the hour is coming to start a Witness Preservation Society with a paid secretary and a London office. It would be a charity—and there is a lot of money in charity nowadays.
Some day I will write a book the size of a Wensleydale cheese on the folk-lore of evidence. It should be written in German, but unfortunately I am such a bigoted Imperialist that I have patriotically avoided the study of the tongue. It should perhaps be published in several cheeses, and the biggest cheese should be all about the Oath. It was the flood of folk-lore on this subject that overwhelmed me when I first began to consider the matter.
In our County Court we administered two oaths.[1] The Scotch oath, with uplifted hand, and the English oath, with its undesirable ceremony of kissing the Book. The Scotch form is incomparably the older, and though some maintain that the hand of the witness is lifted to show he has no weapon about him, there seems no doubt that the sounder view is that both Judge and witness are really each lifting his hand in appeal to the Deity. In this way did the Greeks lift their hands at the altars of their gods when they made sacrifice. In similar fashion was the oath to Wodin administered in the Orkneys by two persons joining their hands through the hole in the ring-stone of Stennis. So also Aaron “lifted up his hand toward the people.” And it is no stretch of imagination to suppose the lifting of the hands to the sun to have been one of the most natural and solemn attitudes of early man. In the Scotch form of oath we seem to have a ceremony that has been with us from the earliest dawn of humanity. I have seen this oath administered in a Scotch Court, and it certainly still retains many of the solemn incidents of a religious ceremony, and compares very favourably from a serious dramatic point of view with the English oath as administered here. The fact that the Judge administers the oath himself, standing with hand uplifted, is impressive, at all events to those to whom it is not made stale by custom. To me it seems a very appropriate ceremony in an old-world system of law such as prevails in Scotland, where there are numerous judges and not too much work to do. In a busy English urban County Court, it would render the life of a Judge uninsurable.
Our English oath is a much younger branch of the family. I have made my own theory of its incidents, and remembering my professor’s advice, I propose to stick to it. It is a quite modern idea that the oath should be taken on the New Testament. Sir Geoffrey Boleyn, writing to John Paston in 1460, says that the late Sir John Falstafe in his place at Suffolk, “by his othe made on his primer then granted and promitted me to have his manner of Gunton.” Even as late as 1681, Coke’s “Institutes” print a form of oath with the Roman Catholic adjuration, “So help you God and all Saints.” An Irish woman in Salford County Court quite recently objected to kiss the Book, and desired to kiss a crucifix. But the “kissing” idea is very modern. In 1681 it seems clear that kissing the Book was not a necessary official act. All that was necessary was to place the hand upon the Bible. “It is called a corporall oath,” writes Coke, “because he toucheth with his hand some part of the Holy Scripture.”
The efficacy of the “touch” runs through all the old legends, and we have an amusing survival of it to-day when a punctilious Crier insists upon a nervous lady struggling out of her glove before he will hand her the Book, and again, in the peremptory order constantly given by a clerk when handing the Book to a witness, “Right hand, if you please.” For these demands there is as far as I know no legal sanction, and I take them to be echoes of the social system of these islands that prevailed some time prior to the building of Stonehenge.
Touching a sacred object seems a world-wide method of oath-taking. The Somali—who are not yesterday’s children—have a special sacred stone, and observe a very beautiful ceremony. One party says, “God is before us, and this stone is from Amr Bur,” naming a fabulous and sacred mountain. The other party receiving the stone says, “I shall not lie in this agreement, and therefore take this stone from you.” Let us hope that what follows is more satisfactory than are my everyday experiences.
The exact origin of kissing the Book in English Courts, though modern, is obscure. It is not, I should say, a matter of legal obligation, but seems to be merely a custom dating from the middle or end of the eighteenth century. If a witness claims to follow the law according to Coke, and to take his “corporall oath” by touching the Book, who shall refuse him his right? The “kissing” act seems akin indeed to what the “fancy” call, somewhat unpleasantly, a saliva custom, which in modern western life exists in very few forms, though many of the lower classes still “spit” on a coin for luck. The subject is a very large one, but the fundamental idea of all customs relating to saliva seems to have been a desire for union with divinity, and if the Book were always kissed in our Courts with that aspiration, the custom might well be retained.
Unfortunately, the practical value of an oath depends in almost exact ratio upon the depth of superstition of the person to whom it is administered. The moral man will speak truth for practical moral reasons. The immoral man will lie for practical immoral reasons. The latter in the old days was hindered by the oath from lying, because he firmly believed in the practical evil effects of breaking the oath. The perjurer of old was certainly “looking for trouble.” This is not a phrase of the “fancy,” but it exactly describes the oath-breaker’s position. Some of the few minor _sequelæ_ of perjury were such domestic troubles as a curse which ran on to the seventh generation, or the perjurer’s death from lingering disease in twelve months, or that he would be turned into stone, or that the earth might swallow him up and that after death he would wander round as a vampire. These simple beliefs, which were no doubt part of the cave-dwellers’ early religious education, must have done a great deal to render the evidence of early man more trustworthy and accurate than that of his degenerate younger brother.