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.

Though in an occasional burst of atavism an uneducated man may kiss

his thumb instead of the Book, the bulk of humanity take any oath that

is offered without any deep feeling of religious sanction, nor any

particular fear of supernatural results. It is not altogether a matter

of regret that this should be so. Our ceremony of oath-taking is really

a Pagan one. Our very verb “to swear” takes us back to the pre-Christian

days when man’s strength and his sword were the masters, and peace and

goodwill had come to conquer the earth. To swear was a vow to Heaven

upon a sword. When we offer the Book to a witness to swear upon, we

really tender him, not a Christian thought, but the old Pagan oath which,

splendid as it was, is no longer of force. It was a fine thing in its

day when a knight vowed upon his sword “to serve the King right well by

day and night, on field, on wave, at ting, at board—in peace, in war, in

life or death; so help him Thor and Odin, likewise _his own good sword_.”

It is no use replacing the sword by the Book if you retain the spirit of

the sword in the old Pagan ceremony. The word “to swear” is very closely

related to the word “sword,” and the very essence of swearing, deep down

in the root form of the thing and the word itself, is to take one’s

sword in one’s right hand, and fight for one’s own side with an energy

that will make the Pagan gods shout with joy in the Valhalla. Medical

witnesses and land surveyors are real Vikings in this respect, especially

as it seems to me those of Celtic origin.

But of a truth it is not only the oath and the witnesses that want

amendment. For when I suggest that it would be well in Court if we obeyed

the command, “Swear not at all,” and that the outward use of the Book

in the County Court is undesirable, it is because I feel that some such

thing as a Court on the lines of the teaching of the Book ought not to

be wholly impossible after 1,900 years of endeavour. You must drive out

of the Court all the folk-lore with its Pagan notions of fighting and

hired champions and oaths, and witnesses and heralds, and above all you

must get rid of the anachronism of a Judge, and appoint in his place a

peace-maker or official reconciler. The idea is not wholly Quixotic. Lord

Brougham, a very practical reformer, had hopes of constructing Courts of

Reconciliation in this country seventy years ago. We shall not close the

courts of litigation and replace them by courts of reconciliation in a

day. But I am optimist enough to hope that I may go down to my work one

morning to find that we have been taken over by a new department called

the Office of Peace, and that under the Royal Arms is our new official

motto, “Blessed are the Peacemakers.”

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