Judgments in Vacation

by Sir Edward Abbott Parry

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to exhibit their powers before packed galleries, according to the ancient and musty rules of a game that is wholly out of date, is an absurd way of endeavouring to reconcile human differences.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.