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, thrace 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 armorer 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 neighbors "bearing his staff with a sandbag 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 Court 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 against his adversary his wit 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to exhibit their powers before packed galleries, according to the ancient and musty rules of a game that is wholly out of date, is an absurd way of endeavoring to reconcile human differences. The whole thing must before long, one would think, tumble into the dustbin of history and become folklore. 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 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, outof-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 armingwire of your hook; or tie the frog's leg above the upper joint to the armedwire; 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 VOL. XXXV. 1843

LIVING AGE.

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 inatter.

In our County Court to-day we administer two oaths. 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 favorably 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 oldworld 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 the 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 quite a 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 porall oath," writes Coke, "because he toucheth with his hand some part of the Holy Scripture."

a cor

runs

The efficacy of the "touch" 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." mands 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.

For these de

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 certainly "looking for trouble." This is not a phrase of the "fancy." but it exactly describes the oath-breaker's position.

was

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-dweller's early religious education, must have done a great Ideal to render the evidence of early man more trustworthy and accurate than that of the 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 a religious sanction, or 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 not come to conquer the earth. To swear was to 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 The Cornhill Magazine.

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 nineteen hundred years of endeavor. 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 at Quay Street 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."

One of my earliest recollections, if not the earliest of all, is of a visit which Lord Anglesey paid to us. As all the world knows, this gallant officer commanded the cavalry at Waterloo, and is generally held to have contributed more to the success of the Allies than any other of the leaders who participated in that great struggle, the Duke of Wellington alone excepted. As he rode over the field by the Iron Duke's side near the close of the day, a spent cannon-ball carried away his leg at the thigh.

"By G-! sir, I've lost my leg!" he exclaimed.

"By G-! have you, sir?" responded the Duke, who was probably too much preoccupied at that critical moment to take in the full extent of the calamity that had befallen his comrade-in-arms.

as

As Lord Anglesey was thus debarred from further campaigning, he was, in recognition of his brilliant services, made Lord-Lieutenant of Ireland. During his tenure of office he made a tour through Connemara, the first ever undertaken by an Irish viceroy, and on his way towards those western wilds he spent a night at our house. He carried amongst his baggage an sortment of cork legs, suitable for various occasions, and whilst the company were assembled downstairs at dinner his valet treated the servants to a private view of them. I was taken to the exhibition by my nurse, and I remember that there was one leg in ordinary morning attire, another booted and spurred for riding-the leg which was clad in evening array he was wearing at that moment.

We were all gathered on the steps to witness his departure next morning.

"The Living Age," March 5, 1904; Feb. 18, 1905; Feb. 10, 1906.

:

There had been much speculation amongst us children as to how he would be able to mount his horse, but he managed that difficult operation so easily and gracefully that when he rode away we were left in hot debate as to which leg was the artificial and which the real one.

I was somewhat older, but still a little girl in very short petticoats, when my grandfather became possessed of a piece of property not usual for a country gentleman to own. This was nothing less than a fully-rigged, ocean-going vessel of his own. He took her over from her former owner in payment of a bad debt, and it was a proud day for us children when we were taken into Galway to see the John and Mary as she lay moored beside the wharf. She was a three-masted barque, generally employed in the American timber trade, but in our eyes she could not have been surpassed by any ship of the British navy. My grandfather perhaps did not view his new acquisition as ecstatically as we did, but force of circumstances having compelled him to become proprietor of the John and Mary, he determined to avail himself of her to provide an opening for one at any rate of the numerous junior members of the family who found an asylum beneath his hospitable roof. He accordingly appointed one of my young cousins mate on board his new craft. Neither my grandfather nor any one else deemed it of the smallest consequence that the cousin in question had never set foot on a ship's deck before, and knew no more of seamanship or navigation than he did of astrology. As for us children, we thought that no higher honor or better fortune could by possibility have fallen to any one's lot, and we watched