How sagacious—full of legal point—is Boz's comment on Winkle's incoherent evidence. Phunky asked him whether he had any reason to suppose that Pickwick was about to be married. "'Oh no; certainly not,' replied Mr. Winkle with so much eagerness, that Mr. Phunky ought to have got him out of the box with all possible dispatch. Lawyers hold out that there are two kinds of particularly bad witnesses: a reluctant witness, and a too willing witness;" and most true it is. Both commit themselves in each case, but in different ways. The matter of the former, and the manner of the latter do the mischief. The ideal witness affects indifference, and is as impartial as the record of a phonograph. It is wonderful where Boz learned all this. No doubt from his friend Talfourd, K.C., who carefully revised "The Trial."

Skimpin's interpretation of Mr. Pickwick's consolatory phrase, which he evidently devised on the spur of the moment, shows him to be a very ready, smart fellow.

'Now, Mr. Winkle, I have only one more question to ask you, and I beg you to bear in mind his Lordship's caution. Will you undertake to swear that Pickwick, the Defendant, did not say on the occasion in question—"My dear Mrs. Bardell, you're a good creature; compose yourself to this situation, for to this situation you must come," or words to that effect?'

'I—I didn't understand him so, certainly,' said Mr. Winkle, astounded at this ingenious dove-tailing of the few words he had heard. 'I was on the staircase, and couldn't hear distinctly; the impression on my mind is—'

'The gentlemen of the jury want none of the impressions on your mind, Mr. Winkle, which I fear would be of little service to honest, straightforward men,' interposed Mr. Skimpin. 'You were on the staircase, and didn't distinctly hear; but you will swear that Pickwick did not make use of the expressions I have quoted? Do I understand that?'

'No, I will not,' replied Mr. Winkle; and down sat Mr. Skimpin, with a triumphant countenance.

This "Will you swear he did not," etc., is a device familiar to cross examiners, and is used when the witness cannot be got to accept the words or admit that they were used. It of course means little or nothing: but its effect on the jury is that they come to fancy that the words may have been used, and that the witness is not very clear as to his recollection.

How well described, too, and satirised, is yet another "common form" of the cross examiner, to wit the "How often, Sir?" question. Winkle, when asked as to his knowledge of Mrs. Bardell, replied that "he did not know her, but that he had seen her." (I recall making this very answer to Boz when we were both driving through Sackville Street, Dublin. He had asked "Did I know so-and-so?" when I promptly replied, "I don't know him, but I have seen him." This rather arrided him, as Elia would say.)

Skimpin went on:

'Oh, you don't know her, but you have seen her.'

'Now have the goodness to tell the gentlemen of the jury what you mean by that, Mr. Winkle.'

'I mean that I am not intimate with her, but that I have seen her when I went to call on Mr. Pickwick, in Goswell Street.'

'How often have you seen her, Sir?'

'How often?'

'Yes, Mr. Winkle, how often? I'll repeat the question for you a dozen times, if you require it, Sir.' And the learned gentlemen, with a firm and steady frown, placed his hands on his hips, and smiled suspiciously to the jury.

On this question there arose the edifying brow-beating, customary on such points. First of all, Mr. Winkle said it was quite impossible for him to say how many times he had seen Mrs. Bardell. Then he was asked if he had seen her twenty times, to which he replied, 'Certainly,—more than that.' And then he was asked whether he hadn't seen her a hundred times—whether he couldn't swear that he had seen her more than fifty times—whether he didn't know that he had seen her at least seventy-five times, and so forth; the satisfactory conclusion which was arrived at, at last, being—that he had better take care of himself, and mind what he was about. The witness having been, by these means, reduced to the requisite ebb of nervous perplexity, the examination was concluded.

How excellent is this. Who has not heard the process repeated over and over again from the young fledgeling Counsel to the old "hardbitten" and experienced K.C.?

A young legal tyro might find profit as well as entertainment in carefully studying others of Mr. Skimpin's adroit methods in cross examination. They are in a manner typical of those in favour with the more experienced members of the profession, allowing, of course, for a little humorous exaggeration. He will note also that Boz shows clearly how effective was the result of the processes. Here are a few useful recipes.

How to make a witness appear as though he wished to withhold the truth. How to highly discredit a witness by an opening question. How to insinuate inaccuracy. How to suggest that the witness is evading. How to deal with a statement of a particular number of instances. How to take advantage of a witness' glances. How to suggest another imputed meaning to a witness' statement and confuse him into accepting it.

Another happy and familiar form is Skimpin's interrogation of Winkle as to his "friends"—

'Are they here?'

'Yes they are,' said Mr. Winkle, looking very earnestly towards the spot where his friends were stationed.

As every one attending courts knows, this is an almost intuitive movement in a witness; he thinks it corroborates him somehow.

But how good Skimpin and how ready—

"'Pray attend to me, Mr. Winkle, and never mind your friends,' with another expressive look at the jury; 'they must tell their stories without any previous consultation with you, if none has yet taken place,' another expressive look. 'Now Sir, tell what you saw,' etc. 'Come, out with it, sir, we must have it sooner or later.'" The assumption here that the witness would keep back what he knew is adroit and very convincing.



A REVELATION.

But now we come to a very critical passage in Mr. Pickwick's case: one that really destroyed any chance that he had. It really settled the matter with the jury; and the worst was, the point was brought out through the inefficiency of his own counsel.

But let us hear the episode, and see how the foolish Phunky muddled it.

Mr. Phunky rose for the purpose of getting something important out of Mr. Winkle in cross-examination. Whether he did get anything important out of him, will immediately appear.

[Picture: Mr. Phunky]

'I believe, Mr. Winkle,' said Mr. Phunky, 'that Mr. Pickwick is not a young man?'

'Oh no,' replied Mr. Winkle, 'old enough to be my father.'

'You have told my learned friend that you have known Mr. Pickwick a long time. Had you ever any reason to suppose or believe that he was about to be married?'

'Oh no; certainly not;' replied Mr. Winkle with so much eagerness, that Mr. Phunky ought to have got him out of the box with all possible dispatch. Lawyers hold out that there are two kinds of particularly bad witnesses, a reluctant witness, and a too willing witness; it was Mr. Winkle's fate to figure in both characters.

'I will even go further than this, Mr. Winkle,' continued Mr. Phunky, in a most smooth and complacent manner. 'Did you ever see any thing in Mr. Pickwick's manner and conduct towards the opposite sex to induce you to believe that he ever contemplated matrimony of late years, in any case?'

'Oh no; certainly not,' replied Mr. Winkle.

'Has his behaviour, when females have been in the case, always been that of a man, who having attained a pretty advanced period of life, content with his own occupations and amusements, treats them only as a father might his daughters?'

'Not the least doubt of it,' replied Mr. Winkle, in the fulness of his heart. 'That is—yes—oh yes—certainly.'

'You have never known anything in his behaviour towards Mrs. Bardell, or any other female, in the least degree suspicious?' said Mr. Phunky, preparing to sit down, for Serjeant Snubbin was winking at him.

'N—n—no,' replied Mr. Winkle, 'except on one trifling occasion, which, I have no doubt, might be easily explained.'

Now, if the unfortunate Mr. Phunky had sat down when Serjeant Snubbin winked at him, or if Serjeant Buzfuz had stopped this irregular cross-examination at the outset (which he knew better than to do, for observing Mr. Winkle's anxiety, and well knowing it would in all probability, lead to something serviceable to him), this unfortunate admission would not have been elicited. The moment the words fell from Mr. Winkle's lips, Mr. Phunky sat down, and Serjeant Snubbin rather hastily told him he might leave the box, which Mr. Winkle prepared to do with great readiness, when Serjeant Buzfuz stopped him.

'Stay, Mr. Winkle—stay,' said Serjeant Buzfuz, 'will your lordship have the goodness to ask him, what this one instance of suspicious behaviour towards females on the part of this gentlemen, who is old enough to be his father, was?'

'You hear what the learned counsel says, Sir,' observed the Judge, turning to the miserable and agonized Mr. Winkle. 'Describe the occasion to which you refer.'

'My lord,' said Mr. Winkle, trembling with anxiety, 'I—I'd rather not.'

And Winkle had to relate the whole Ipswich adventure of the doublebedded room and the spinster lady.

It is surprising that Dodson and Fogg did not ferret out all about Mr. Pickwick's adventure at the Great White Horse. Peter Magnus lived in town and must have heard of the coming case; these things do somehow leak out, and he would have gladly volunteered the story, were it only to spite the man. But further, Dodson and Fogg must have made all sorts of enquiries into Mr. Pickwick's doings. Mrs. Bardell herself might have heard something. The story was certainly in the Ipswich papers, for there was the riot in the street, the appearance before the mayor, the exposure of "Captain FitzMarshall"—a notable business altogether. What a revelation in open court! Conceive Miss Witherfield called to depose to Mr. Pickwick's midnight invasion. Mr. Pickwick himself might have been called and put on the rack, this incident not concerning his breach of promise. And supposing that the ubiquitous Jingle had heard of this business and had gone to the solicitor's office to volunteer evidence, and most useful evidence it would have been—to wit that Mr. Pickwick had been caught in the garden of a young ladies' school and had alarmed the house by his attempts to gain admission in the small hours! Jingle of course, could not be permitted to testify to this, but he could put the firm on the track. Mr. Pickwick's reputation could hardly have survived these two revelations, and sweeping damages to the full amount would have been the certain result.

This extraordinary adventure of Mr. Pickwick's at the Great White Horse Inn, Ipswich, verifies Dodson's casual remark to him, that "he was either a very designing or a most unfortunate man," circumstances being so strong against him. As the story was brought out, in open court, owing to the joint indiscretion of Phunky and Winkle, it will be best, in justice to Mr. Pickwick, to give practically his account of the affair.

'Nobody sleeps in the other bed, of course,' said Mr. Pickwick.

'Oh no, sir.'

'Very good. Tell my servant to bring me up some hot water at half-past eight in the morning, and that I shall not want him any more to-night.'

'Yes, sir.'

And bidding Mr. Pickwick good-night, the chambermaid retired, and left him alone.

Mr. Pickwick sat himself down in a chair before the fire, and fell into a train of rambling meditations. First he thought of his friends, and wondered when they would join him; then his mind reverted to Mrs. Martha Bardell; and from that lady it wandered, by a natural process, to the dingy counting-house of Dodson and Fogg. From Dodson and Fogg's it flew off at tangent, to the very centre of the history of the queer client; and then it came back to the Great White Horse at Ipswich, with sufficient clearness to convince Mr. Pickwick that he was falling asleep: so he aroused himself, and began to undress, when he recollected he had left his watch on the table down stairs. So as it was pretty late now, and he was unwilling to ring his bell at that hour of the night, he slipped on his coat, of which he had just divested himself, and taking the japanned candlestick in his hand, walked quietly down stairs.

The more stairs Mr. Pickwick went down, the more stairs there seemed to be to descend, and again and again, when Mr. Pickwick got into some narrow passage, and began to congratulate himself on having gained the ground-floor, did another flight of stairs appear before his astonished eyes. At last he reached a stone hall, which he remembered to have seen when he entered the house. Passage after passage did he explore; room after room did he peep into; at length, just as he was on the point of giving up the search in despair, he opened the door of the identical room in which he had spent the evening, and beheld his missing property on the table.

Mr. Pickwick seized the watch in triumph, and proceeded to retrace his steps to his bed-chamber. If his progress downwards had been attended with difficulties and uncertainty, his journey back, was infinitely more perplexing. Rows of doors, garnished with boots of every shape, make, and size, branched off in every possible direction. A dozen times did he softly turn the handle of some bedroom door, which resembled his own, when a gruff cry from within of "Who the devil's that?" or "What do want here?" caused him to steal away on tiptoe, with a perfectly marvellous celerity. He was reduced to the verge of despair, when an open door attracted his attention. He peeped in—right at last. There were the two beds, whose situation he perfectly remembered, and the fire still burning. His candle, not a long one when he first received it, had flickered away in the drafts of air through which he had passed, and sunk into the socket, just as he had closed the door after him. 'No matter,' said Mr. Pickwick, 'I can undress myself just as well by the light of the fire.'

The bedsteads stood, one each side of the door; and on the inner side of each, was a little path, terminating in a rush-bottomed chair, just wide enough to admit of a person's getting into, or out of bed, on that side if he or she thought proper. Having carefully drawn the curtains of his bed on the outside, Mr. Pickwick sat down on the rush-bottomed chair, and leisurely divested himself of his shoes and gaiters. He then took off and folded up, his coat, waistcoat, and neck-cloth, and slowly drawing on his tasseled night-cap, secured it firmly on his head, by tying beneath his chin, the strings which he always had attached to that article of dress. It was at this moment that the absurdity of his recent bewilderment struck upon his mind; and throwing himself back in the rush-bottomed chair, Mr. Pickwick laughed to himself so heartily, that it would have been quite delightful to any man of well-constituted mind to have watched the smiles which expanded his amiable features, as they shone forth, from beneath the night-cap.

'It is the best idea,' said Mr. Pickwick to himself, smiling till he almost cracked the night-cap strings—'It is the best idea, my losing myself in this place, and wandering about those staircases, that I ever heard of. Droll, droll, very droll.' Here Mr. Pickwick smiled again, a broader smile than before, and was about to continue the process of undressing, in the best possible humour, when he was suddenly stopped by a most unexpected interruption; to wit, the entrance into the room of some person with a candle, who, after locking the door, advanced to the dressing table, and set down the light upon it.

The smile that played upon Mr. Pickwick's features, was instantaneously lost in a look of the most unbounded and wonder-stricken surprise. The person, whoever it was, had come so suddenly and with so little noise, that Mr. Pickwick had had no time to call out, or oppose their entrance. Who could it be? A robber? Some evil-minded person who had seen him come upstairs with a handsome watch in his hand, perhaps. What was he to do!

The only way in which Mr. Pickwick could catch a glimpse of his mysterious visitor with the least danger of being seen himself, was by creeping on to the bed, and peeping out from between the curtains on the opposite side. Keeping the curtains carefully closed with his hand, so that nothing more of him could be seen than his face and nightcap, and putting on his spectacles, he mustered up courage, and looked out.

Mr. Pickwick almost fainted with horror and dismay. Standing before the dressing glass, was a middle-aged lady in yellow curl-papers, busily engaged in brushing what ladies call their "back hair." However the unconscious middle-aged lady came into that room, it was quite clear that she contemplated remaining there for the night; for she had brought a rushlight and shade with her, which with praiseworthy precaution against fire, she had stationed in a basin on the floor, where it was glimmering away, like a gigantic lighthouse, in a particularly small piece of water.

'Bless my soul,' thought Mr. Pickwick, 'what a dreadful thing!'

'Hem!' said the lady; and in went Mr. Pickwick's head with automaton-like rapidity.

'I never met with anything so awful as this,'—thought poor Mr. Pickwick, the cold perspiration starting in drops upon his nightcap. 'Never. This is fearful.'

It was quite impossible to resist the urgent desire to see what was going forward. So out went Mr. Pickwick's head again. The prospect was worse than before. The middle-aged lady had finished arranging her hair; had carefully enveloped it, in a muslin nightcap with a small plaited border, and was gazing pensively on the fire.

'This matter is growing alarming'—reasoned Mr. Pickwick with himself. 'I can't allow things to go on in this way. By the self-possession of that lady, it's clear to me that I must have come into the wrong room. If I call out, she'll alarm the house, but if I remain here, the consequences will be still more frightful.'

[Picture: The Double Bedded Room, Great White Horse, Ipswich]

Mr. Pickwick, it is quite unnecessary to say, was one of the most modest and delicate-minded of mortals. The very idea of exhibiting his nightcap to a lady, overpowered him, but he had tied those confounded strings in a knot, and do what he would, he couldn't get it off. The disclosure must be made. There was only one other way of doing it. He shrunk behind the curtains, and called out very loudly—

'Ha—hum.'

That the lady started at this unexpected sound was evident, by her falling up against the rushlight shade; that she persuaded herself it must have been the effect of imagination was equally clear, for when Mr. Pickwick, under the impression that she had fainted away, stone-dead from fright, ventured to peep out again, she was gazing pensively on the fire as before.

'Most extraordinary female this,' thought Mr. Pickwick, popping in again. 'Ha—hum.'

These last sounds, so like those in which, as legends inform us, the ferocious giant Blunderbore was in the habit of expressing his opinion that it was time to lay the cloth, were too distinctly audible, to be again mistaken for the workings of fancy.

'Gracious Heaven!' said the middle-aged lady, 'what's that!'

'It's—it's—only a gentleman, Ma'am,' said Mr. Pickwick from behind the curtains.

'A gentleman!' said the lady with a terrific scream.

'It's all over,' thought Mr. Pickwick.

'A strange man,' shrieked the lady. Another instant and the house would be alarmed. Her garments rustled as she rushed towards the door.

'Ma'am,'—said Mr. Pickwick, thrusting out his head, in the extremity of desperation, 'Ma'am.'

Now although Mr. Pickwick was not actuated by any definite object in putting out his head, it was instantaneously productive of a good effect. The lady, as we have alreaded stated, was near the door. She must pass it, to reach the staircase, and she would most undoubtedly have done so by this time, had not the sudden apparition of Mr. Pickwick's nightcap driven her back, into the remotest corner of the apartment, where she stood, staring wildly at Mr. Pickwick, while Mr. Pickwick, in his turn, stared wildly at her.

'Wretch,'—said the lady, covering her eyes with her hands, 'what do you want here.'

'Nothing, Ma'am—nothing whatever, Ma'am,' said Mr. Pickwick, earnestly.

'Nothing!' said the lady, looking up.

'Nothing, Ma'am, upon my honour,' said Mr. Pickwick, nodding his head so energetically, that the tassel of his nightcap danced again. 'I am almost ready to sink, Ma'am, beneath the confusion of addressing a lady in my nightcap (here the lady hastily snatched off her's), but I can't get it off, Ma'am (here Mr. Pickwick gave it a tremendous tug in proof of the statment). It is evident to me, Ma'am, now, that I have mistaken this bedroom for my own. I had not been here five minutes, Ma'am, when you suddenly entered it.'

'If this improbable story be really true, Sir,'—said the lady, sobbing violently, 'you will leave it instantly.'

'I will, Ma'am, with the greatest pleasure,' replied Mr. Pickwick.

'Instantly, Sir,' said the lady.

'Certainly, Ma'am,' interposed Mr. Pickwick very quickly. 'Certainly, Ma'am. I—I—am very sorry, Ma'am,' said Mr. Pickwick, making his appearance at the bottom of the bed, 'to have been the innocent occasion of this alarm and emotion; deeply sorry Ma'am.'

The lady pointed to the door. One excellent quality of Mr. Pickwick's character was beautifully displayed at this moment, under the most trying circumstances. Although he had hastily put on his hat over his night cap, after the manner of the old patrol; although he carried his shoes and gaiters in his hand, and his coat and waistcoat over his arm, nothing could subdue his native politeness.

'I am exceedingly sorry, Ma'am,' said Mr. Pickwick, bowing very low.

'If you are, Sir, you will at once leave the room,' said the lady.

'Immediately, Ma'am; this instant, Ma'am,' said Mr. Pickwick, opening the door, and dropping both his shoes with a loud crash in so doing.

'I trust Ma'am,' resumed Mr. Pickwick, gathering up his shoes, and turning round to bow again, 'I trust, Ma'am, that my unblemished character, and the devoted respect I entertain for your sex, will plead as some slight excuse for this'—But before Mr. Pickwick could conclude the sentence, the lady had thrust him into the passage, and locked and bolted the door behind him.

Whatever grounds of self-congratulation Mr. Pickwick might have, for having escaped so quietly from his late awkward situation, his present position was by no means enviable. He was alone, in an open passage, in a strange house, in the middle of the night, half dressed; it was not to be supposed that he could find his way in perfect darkness to a room which he had been wholly unable to discover with a light, and if he made the slightest noise in his fruitless attempts to do so, he stood every chance of being shot at, and perhaps killed, by some wakeful traveller. He had no resource but to remain where he was, until daylight appeared. So after groping his way a few paces down the passage, and to his infinite alarm, stumbling over several pairs of boots in so doing, Mr. Pickwick crouched into a little recess in the wall, to wait for morning, as philosophically as he might.

He was not destined, however, to undergo this additional trial of patience: for he had not been long ensconced in his present concealment when, to his unspeakable horror, a man, bearing a light, appeared at the end of the passage. His horror was suddenly converted into joy, however, when he recognized the form of his faithful attendant. It was indeed Mr. Samuel Weller, who after sitting up thus late, in conversation with the Boots, who was sitting up for the mail, was now about to retire to rest.

Imagine this story told by Miss Witherfield in open court, with all its details, the lady's narrative being coloured by the recollection that she had lost a suitable husband owing to her adventure. Mr. Peter Magnus would have deposed to Mr. Pickwick's extraordinary interest in the matter of the proposal, and have added his suspicions on recalling Mr. Pickwick's ambiguous declaration that he had come down to expose a certain person—even one of his own sympathetic friends, who had witnessed the scene with Mrs. Bardell, and recalled the Boarding House incident, might murmur, "How odd that he is ever thus in pursuit of the fair under suspicious circumstances? could it be that after all?—What if he had some previous knowledge of the lady, and secretly admired her, and stung to fury at the notion of Mr. Peter Magnus marrying, had taken this strange mode of declaring his passion?" Even the sagacious Sam, devoted as he was to his master, was taken aback on meeting him in his midnight wanderings.

'Sam,' said Mr. Pickwick, suddenly appearing before him, 'Where's my bedroom?'

Mr. Weller stared at his master with the most emphatic surprise; and it was not until the question had been repeated three several times, that he turned round, and led the way to the long-sought apartment.

'Sam,' said Mr. Pickwick, as he got into bed, 'I have made one of the most extraordinary mistakes to-night, that ever were heard of.'

'Werry likely, Sir,' replied Mr. Weller, drily.

'But of this I am determined, Sam,' said Mr. Pickwick, 'that if I were to stop in this house for six months, I would never trust myself about it alone, again.'

'That's the wery prudentest resolution as you could come to, Sir,' replied Mr. Weller. 'You rayther want somebody to look arter you, Sir, ven your judgment goes out a wisitin'.'

'What do you mean by that, Sam?' said Mr. Pickwick. He raised himself in bed, and extended his hand, as if he were about to say something more; but suddenly checking himself, turned round, and bade his valet 'Good night.'

'Good night, Sir,' replied Mr. Weller. He paused when he got outside the door—shook his head—walked on—stopped—snuffed the candle—shook his head again—and finally proceeded slowly to his chamber, apparently buried in the profoundest meditation.

It will be seen that Sam went near to being disrespectful in his sceptical view of his master's story.

When Mrs. Sanders was examined, "the Court" put a few questions to her, as to the customs of love-making among persons of her position. She had "received love letters, like other ladies. In the course of their correspondence Mr. Sanders had often called her a 'duck' but never 'chops' or 'tomato sauce.' He was particularly fond of ducks. Perhaps if he had been as fond of chops and tomato sauce, he might have called her that, as a term of affection."

Mrs. Sanders was clearly one of the same class as Mrs. Cluppins, and chiefly deposed to the general impression in the neighbourhood that Mr. Pickwick had "offered" for Mrs. Bardell. Tupman, Snodgrass and Sam were also examined. Being friends of the defendant, they were from the outset assumed to be "hostile" and treated accordingly. It may be doubted, however, whether it is permissible to treat "your own witnesses" in this rough fashion, until at least they have shown some overt signs of their hostility, either by reserve, or an obvious determination to let as little as possible be extracted from them. In such case, it is usual to apply to the court for its sanction to deal with them by the severity of cross examination.

When Sam entered the witness box, the Serjeant addressed him: "I believe you are in the service of Mr. Pickwick, the Defendant in this case. Speak up, if you please, Mr. Weller." Sam had not had time to say anything, so the admonition might seem superfluous. But this is a well-known device. Sam had been "briefed" to the Serjeant as a rather dangerous witness—somewhat too wide awake. It was necessary therefore to be short and summary with him. He thus conveyed to the jury that this Sam was one whom he could address in this curt way, and who by his low, uncertain accents might try to hide the truth. Sam, however, disconcerted the plan by his prompt, ready answer, "I mean to speak up, sir." Sam, as we know, clearly brought out the Dodson and Fogg's damaging assurance to Mrs. Bardell, that no costs should be charged to her personally.

When the Plaintiff's case was closed, things did not look particularly bright for Mr. Pickwick. It had been shown on the evidence of his own friends that he had been surprised with his landlady in his arms; (2) That he had been corresponding with her on most familiar terms—at least Serjeant Buzfuz had made it appear so; (3) Language that almost amounted to a proposal had been overheard; (4) And finally, it had been revealed that the Defendant had been "caught" in a lady's bedroom, at an Inn, at midnight! To answer which a "strong" case was absolutely essential. This, we grieve to say, was not forthcoming.



THE DEFENDANT'S CASE.

When we listen to the defence set up for Mr. Pickwick we have to lament that that worthy gentleman was not better served by his legal advisers.

On the other side the shrewd Dodson and Fogg had done admirably for their client. They were sharp clever attornies, having a thundering, overpowering leader, and a smart, exceedingly smart junior, one of those "wide-awake" brisk fellows who really conduct the case, and will "take silk" in a few years. This gentleman could cross-examine in capital style and address the jury in a language of his own, by glances, shrugs, and remarks addressed to a witness, but intended for the jury, as they knew perfectly well. His style, bearing, and speeches form an admirable epitome of the arts and devices of a smart counsel. There are "common" forms and Skimpin had them at his fingers' ends. As we listen, we feel how admirably directed they were to work on the jury.

Perker's plan of campaign as announced to Mr. Pickwick, was a poor one enough, and showed how desperate he thought the case was. "We have only one (course) to adopt, my dear sir," he said, "cross-examine the witnesses: trust to Snubbin's eloquence, throw dust in the eyes of the judge, and ourselves on the jury." Brave words, but nothing of the programme was carried out. The cross-examination of the witnesses was but tamely attempted. Snubbin's eloquence was not displayed beyond mildly praising his client's good character. As for "throwing dust in the eyes of judge," we have seen Mr. Justice Stareleigh was much too wide awake for that; while the throwing themselves on the jury was disastrous. There were several other lines of defence which a more up-to-date solicitor would not have overlooked. A less scrupulous man would have made searching enquiries into Mrs. Bardell's history and character; but his client, perhaps, would not have sanctioned this course.

Perker is even absurd enough to talk of a casa, as though it were some Italian word.

A ca sa was short for a writ of Capias ad Satisfaciendum, which gave a warrant to the officers to seize the goods. There were various kinds of this machinery, but what affected Mr. Pickwick was a Capias ad Satisfaciendum, to enforce attendance at the Court. The ca sa also came after judgment, giving authority to imprison the defendant till the claim was satisfied.

The appearance of such great guns as the two Serjeants is accounted for by a curious rule that Serjeants only were permitted to lead in cases read in the Court of Common Pleas. {84} This strange monopoly recalls that other one, in the Court of Arches, where the advocates and judges used to exchange places and decide on cases in which perhaps they had been advocates. These illiberal and unaccountable restrictions have been swept away, with the Courts themselves.

Very unusual indeed at this time was the appearance of a lawyer of Serjeant Snubbin's class in court, and there is a well-known story how, when Charles Butler made his appearance on a special occasion, all the Bar crowded in to hear him, and he had, I think, to get a gown for the occasion.

One is sorry to think that there are no Serjeants now, though at the Irish Bar there is one solitary survivor—Serjeant Hemphill. Gone too, are their "coifs" and other paraphernalia. With the abolition of the separate courts they were found superfluous. We like to hear of Serjeant Parry, Serjeant Ballantine, Serjeants Warren and Talford, all four literary men. {85}

Having made this initial blunder, Perker did not even instruct a good, smart and ready junior, but chose instead the incapable Phunky who really brought out that fatal piece of evidence from Winkle, which "did for" his case altogether. He had no business, as Boz tells us.

This junior, we are told, had been just called, that is to say, he had been only eight years at the Bar. Snubbin had never heard of him. The little judge, in court, also said "that he never had the pleasure of hearing the gentleman's name before," a sneer he would not have ventured on to a counsel in good practice. Snubbin's remark is amusing and sarcastic; but now-a-days any barrister who had been at the Bar eight years would not be considered as just called, for if he has been passed over for that time, he is likely never to make a figure. The rude and unbecoming sneers, both of Snubbin and the little Judge, seem amazing in our present code of legal manners. Everything at that time, however, was much more "in the rough" and coarser. This was his first case; and the poor creature is thus described:

Although an infant barrister, he was a full-grown man. He had a very nervous manner, and a painful hesitation in his speech; it did not appear to be a natural defect, but seemed rather the result of timidity, arising from the consciousness of being "kept down" by want of means, or interest, or connection, or impudence, as the case might be. He was overawed by the Serjeant, and profoundly courteous to the attorney.

'I have not had the pleasure of seeing you before, Mr. Phunky,' said Serjeant Snubbin, with haughty condescension.

Mr. Phunky bowed. He had had the pleasure of seeing the Serjeant, and of envying him too, with all a poor man's envy, for eight years and a quarter.

'You are with me in this case, I understand?' said the Serjeant.

If Mr. Phunky had been a rich man, he would have instantly sent for his clerk to remind him; if he had been a wise one, he would have applied his fore-finger to his forehead, and endeavoured to recollect, whether, in the multiplicity of his engagements he had undertaken this one, or not; but as he was neither rich nor wise (in this sense at all events) he turned red, and bowed.

'Have you read the papers, Mr. Phunky?' inquired the Serjeant.

Here again, Mr. Phunky should have professed to have forgotten all about the merits of the case; but as he had read such papers as had been laid before him in the course of the action, and had thought of nothing else, waking or sleeping, throughout the two months during which he had been retained as Mr. Serjeant Snubbin's junior, he turned a deeper red, and bowed again.

'This is Mr. Pickwick,' said the Serjeant, waving his pen in the direction in which that gentleman was standing.

Mr. Phunky bowed to Mr. Pickwick with a reverence which a first client must ever awaken; and again inclined his head towards his leader.

'Perhaps you will take Mr. Pickwick away,' said the Serjeant, 'and—and—and—hear anything Mr. Pickwick may wish to communicate. We shall have a consultation, of course.' With this hint that he had been interrupted quite long enough, Mr. Serjeant Snubbin, who had been gradually growing more and more abstracted, applied his glass to his eyes for an instant, bowed slightly round, and was once more deeply immersed in the case before him: which arose out of an interminable law suit, originating in the act of an individual, deceased a century or so ago, who had stopped up a pathway leading from some place which nobody ever came from, to some other place which nobody ever went to.

With such a pair the case was literally given away. Perker should have secured a man like the present Mr. Gill or Mr. Charles Matthews—they might have "broken down" the witnesses, or laughed the case out of court.

We may speculate—why did Perker make this foolish selection? As to Snubbin there was some excuse, as it was the custom that Serjeants only should lead in the Court of Common Pleas. But for the choice of Phunky, Perker's stupidity alone was responsible.

Under these conditions Serjeant Snubbin's conduct of the case and his "handling" of the witnesses was truly inefficient. He lost every opportunity for helping his client. He "led" in a quiet, gentlemanly and almost indifferent way. His first opportunity came in examining Mrs. Cluppins. As we have seen, she had deposed to hearing, when the door was "on the jar," Mr. Pickwick make those speeches which Mrs. Bardell had taken to be a proposal. Now here was the moment to show the ambiguity and that Mr. Pickwick was speaking of his servant. It might have been brought out that Sam was actually engaged that day, and that she had met him on the stairs, etc. But Snubbin declined to ask her a single question, saying that Mr. Pickwick admitted the accuracy of her statement. But this was beside the matter, and the Serjeant need not have impeached her accuracy.

When Phunky came to Winkle, the inexperience of the tyro was shown at once. Again, here was the moment to have extracted from the witness a full explanation of Mr. Pickwick's ambiguous speeches to Mrs. Bardell. He could have "brought out" as "clear as the light of day" that Mr. Pickwick was speaking of his engagement of a valet and have shown that the valet was to be engaged that very morning. It would have been impossible to resist such an explanation. But the thing was not thought of. From him also could have been drawn a vast deal favourable to Mr. Pickwick such as his disgust and annoyance at Mrs. Bardell's behaviour, his wish to be rid of her, his complaints of her conduct. But no, there was only the foolish question as to Mr. Pickwick's being an elderly man and of fatherly ways, a topic that would by no means negative the presumption of matrimony. But nothing could excuse the rashness of putting a general question as to "Mr. Pickwick's behaviour towards females." No adroit counsel would run the risk of encountering a too conscientious witness, such as Winkle proved to be and who would "let the cat out of the bag."

As we have seen, this awkward question settled Mr. Pickwick's business. Snubbin had held him out as an elderly but benevolent being, treating every female he met as a daughter, never dreaming of matrimony: when lo! the whole fabric is overthrown in an instant by the luckless Winkle's admission!

Amid the profound silence of the whole court Mr. Winkle faltered out that the trifling circumstance of suspicion was Mr. Pickwick's being found in a lady's sleeping apartment at midnight, which had terminated, he believed, in breaking off the projected marriage of the lady, and had led, he knew, to the whole party being forcibly carried before a magistrate.

Thus was the defendant suddenly revealed as a Pecksniffian Lothario, and his pretence of philanthrophy after was shewn in its true colours. It was impossible not to associate this with the scene with Mrs. Bardell.

But there was an important legal "point" which one might have expected would have occurred to so eminent a Chamber Counsel as Serjeant Snubbin. To prove a breach of the promise, it must always be shown that the defendant had been given an opportunity of officially refusing to fulfil it. It should have been put to him "in black and white," "Will you marry me?" and he must have answered "No, I will not," or something to that effect. In default of this the defendant might plead "True I gave the promise and it stands unbroken, for you never required me to act upon it." Now in Mr. Pickwick's case this actually occurred. As we have seen he left town the morning after the imputed proposal and while he was away, within a month, the notice of action was sent to him. Up to that time he had not heard a word of Dodson and Fogg, or of legal proceedings. But it may be urged that Mrs. Bardell herself may have written, formulating her demands. That this was not the case is evident from Mr. Pickwick's behaviour; he did not dream of such a thing, or he would have been disturbed by it, or have consulted his friends about it. Had it been so, his high opinion of Mrs. Bardell would have been shattered. For did he not say on seeing Dodson and Fogg's letter, "She couldn't do it, she hasn't the heart to do it." The only thing that makes against this theory is his reply to Peter Magnus who asked him "had he ever proposed?" when he answered vehemently "Never," possibly recalling Mrs. Bardell. She may however have written to him a pleading letter reminding him of what he had said to her, declaring her deep-seated affection for him and inviting him to carry out what he had offered. Mr. Pickwick would have replied in one of his amiable letters, couched in rather general terms, perhaps calling her "my dear creature," but putting aside the whole business: and there the matter probably dropped for a time. I have little doubt the good woman up to the last really believed that her elderly lodger intended to make her an offer of his hand, and that on his return from his travels he would resume the business. Much elated by this prospect, and most naturally too, she had told all her friends and neighbours of her approaching advancement. This Mrs. Sanders specially deposed to: "had always said and believed that Pickwick would marry Mrs. Bardell; knew that Mrs. Bardell being engaged to Pickwick was the current topic of conversation in the neighbourhood, after the fainting in July; had been told it herself by Mrs. Mudberry which kept a mangle, and Mrs. Bunkin which clear-starched, but did not see either Mrs. Mudberry or Mrs. Bunkin in court."

Notwithstanding these speculations, it still does not appear that Pickwick made such a legal and official refusal to execute his promise as would be sufficient to support the statement of what is now called "the summons and plaint," to wit, that the plaintiff being able and willing "to marry the defendant the defendant refused, etc."

There is another matter on which hands of skilful counsel might have affected Mrs. Bardell and which my friend Mr. Burnand ("F. C. B.") was the first to push home. At the trial, Mrs. Saunders cross-examined by Serjeant Snubbin, had to admit that her friend had an admirer—a certain Baker in the neighbourhood—who was supposed to have matrimonial designs. Pressed on this matter she thus deposed: "Had heard Pickwick ask the little boy how he should like to have another father. Did not know that Mrs. Bardell was at that time keeping company with the baker, but did know that the baker was then a single man, and is now married. Couldn't swear that Mrs. Bardell was not very fond of the baker, but should think that the baker was not very fond of Mrs. Bardell, or he wouldn't have married somebody else. Thought Mrs. Bardell fainted away on the morning in July, because Pickwick asked her to name the day; knew that she (witness) fainted away stone dead when Mr. Saunders asked her to name the day, and believed that everybody as called herself a lady would do the same, under similar circumstances. Heard Pickwick ask the boy the question about the marbles, but upon her oath did not know the difference between an alley tor and a commoney.

By the COURT.—During the period of her keeping company with Mr. Sanders, had received love letters, like other ladies. In course of their correspondence Mr. Sanders had often called her a 'duck,' but never 'chops,' nor yet 'tomata sauce.' He was particularly fond of ducks. Perhaps if he had been as fond of chops and tomata sauce, he might have called her that, as a term of affection.

What a point, too, Serjeant Snubbin missed here! Could he not have quoted the old verses. How he would have convulsed the court as he poured out the apropos "for Tommy and Me!"

Pat-a-cake, Pat-a-cake, baker's man, Bake me a cake as quick as you can; Knead it and bake it as fast as can be, And put in the oven for Tommy and me.

Now we do not find that the Serjeant made any use of this topic in his speech. He might have surely urged that this "wily and experienced widow" was eager for a husband, that having been "thrown over" by her baker and stung by the mortification, she resolved, as it were, to rehabilitate herself and prepare this "plant" for her unsuspecting lodger. As Sir Henry Irving says in the play, "I don't like widows; they know too much." F. C. B., as I have said, has treated this baker theme and developed it regularly in his amusing operetta "Pickwick."

The little epitome given of Snubbin's speech shows how weak were his topics, and that he, in fact, considered that there was no defence.

Serjeant Snubbin then addressed the jury on behalf of the defendant; and a very long and a very emphatic address he delivered, in which he bestowed the highest possible eulogiums on the conduct and character of Mr. Pickwick. He attempted to show that the letters which had been exhibited, merely related to Mr. Pickwick's dinner, or to the preparations for receiving him in his apartments on his return from some country excursion. It is sufficient to add in general terms, that he did the best he could for Mr. Pickwick; and the best, as everybody knows on the infallible authority of the old adage, could do no more.

This was no more than speaking "in mitigation of damages."

Mr. Phunky made no speech, which was just as well, as he might have but damaged the case, as no witnesses had been called on his side. For the same reason, the Court had not the pleasure of hearing Skimpin, who would no doubt have "torn the Defendant's case to tatters."



CHARGE AND VERDICT.

The regular formula is this. The judge begins to read his notes, and makes "running comments" as he goes along. "We have first, gentlemen, the statement of Mrs. Cluppins, she tells you, &c. Of course she comes as the friend of the Plaintiff, and naturally takes a favourable view of her case. If you are satisfied with her statement, it is for you, gentlemen, to consider what value you will attach to it. Then we come to the question of damages. This is entirely a matter for you. You must take into account the position in life of the Defendant, and what the Plaintiff has lost by his default. On the other hand they must be reasonable in amount. If you believe the promise has been clearly established, you should give substantial though not excessive damages, on a scale sufficient to repay the Plaintiff for the wrong. On the other hand—should it seem to you doubtful whether the promise had been made—you will give the Defendant the benefit of the doubt. These are questions entirely for you—not for me. On the whole case, you will ask yourselves, whether a promise such as would satisfy reasonable men, has been supported by sufficient evidence. If so, Plaintiff is entitled to damages—on the other hand, if this is not proved to your satisfaction, you will find for the Defendant."

Mr. Justice Stareleigh, however, as we are told, then "summed up in his old established and most approved form. He read as much of his notes as he could decypher on so short a notice, and made running comments on the evidence as he went along. If Mrs. Bardell were right, it was perfectly clear that Mr. Pickwick was wrong, and if they thought the evidence of Mrs. Cluppins worthy of credence, they would believe it, and if they didn't, why they would'nt. If they were satisfied that a breach of promise had been committed, they would find for the Plaintiff, with such damages as they thought proper; and if, on the other hand, it appeared to them that no promise of marriage had ever been given, they would find for the Defendant, with no damages at all." Such was this lucid direction—which is really, not in the least, an exaggeration.

But I could fancy some acute judge of our time—such as Mr. Justice Day or Mr. Justice Bigham—after trying this case, turning round in his seat to "charge" the jury. "Here, gentlemen," he would tell them, "we have it claimed on one side that a promise of marriage was made—and broken; on the other hand the Defendant denies having ever given such a promise. The question you will have to deal with is: What was this promise, and when was it given? In other words, when did the Defendant propose to the lady. On the part of the Plaintiff, this was said to have been done at the interview in Goswell Street, and two friends of the Plaintiff—Mrs. Cluppins, I think"—turning over his notes—"yes, Cluppins, and Sanders both declare positively that they overheard the language of the proposal. Further, Mr. Pickwick's friends are called, to prove that the lady was in his arms, fainting. It is extraordinary that not one of these three gentlemen should have deposed to any statements or have offered explanations of the situation. One witness indeed says that he heard the Defendant remonstrate with the Plaintiff, on her hysterical behaviour, and ask her to consider that if any one should come in, what would be said. Now, this is not the language of an ardent suitor, who would rather wish than otherwise, that such endearing familiarities should continue: though I don't think you need seriously accept the reading the learned Counsel, Mr. Skimpin, put on the phrase used; on the other hand, the words 'my dear creature,' were distinctly heard.

"There is one little incident," the Judge might go on, "which I must not pass by, and which is not without its significance. A witness deposed that the defendant was noted for his kindness to the Plaintiff's little boy—that he was constantly giving him presents, and once was heard to say to him, patting him on the head, 'how would you like to have another father?' Now, this addressed to a child of tender years does seem an odd sort of speech. Of course, it will be contended that the reference was to the probability of his Mother marrying some one other than the Defendant: if that be the case, it seems to me rather an indelicate and reckless speech. And then it must be said, it seems inconsistent with the amiable and benevolent character given to the Defendant to-day. On the other hand, if he were referring to himself it will appear natural and proper enough. And there is this to be added, that when the child had reported the remark to his mother, which of course he did, she would most reasonably begin to found hopes upon it. And then what follows, Gentlemen?—the Defendant is found holding this lady in his arms, and becomes so demonstrative in his attentions that this very child comes to her rescue. I am inexperienced in these things—they may be innocent and done with the purest intentions, or may not; but you, Gentlemen of the Jury, are men of the world: and it is for you to put the proper construction on them."

"You will have noted, Gentlemen, this curious feature of the case. None of the witnesses were in the room when the imputed proposal was made, yet all, Cluppins, Weller, and the Defendant's three friends, heard what the Defendant said. This suggests that he must have been very pressing, if not agitated. One of the witnesses, Winkle, I think, yes, Winkle, actually deposes to hearing the words, 'My dear creature! Compose yourself' and the like. He added he was afraid someone might come in; a very reasonable fear, Gentlemen, and well grounded: for several persons did come in and it would seem with awkward results for the Defendant. But, Gentlemen, I confess that what most of all weighs with me in this case is the remarkable avowal wrung from a reluctant witness, of the Defendant's being surprised at midnight in a lady's bed-chamber, and being taken, after a serious riot, before the Magistrates. This came on me, as I saw it did on you all, as a surprise. True, it does not bear on the question of a promise or of the breach. But still it seems a matter which you cannot wholly shut out from your consideration. It startled me as it did you, to find a sort of travelling philanthropist, as the Defendant Pickwick holds himself out to be, on whose mildly benevolent features nature seems to have stamped rectitude and high principle, living a life of hypocrisy, taking part in midnight invasions and daylight riots. It is one of his own friends who tells us this sad story: and it is for you to consider whether the Plaintiff was here also in pursuit of yet another disreputable game, holding out marriage as the bait: I seem to speak strongly, but I feel it would be impossible to withdraw this from your consideration.

"You may reasonably ask yourselves of what Pickwick was afraid—or why did he dread the presence of witnesses? Was he simply beguiling the lady, as he attempted to beguile that lady at Ipswich, without 'meaning business,' as the phrase runs. I must say the Plaintiff had rather reasonable grounds for assuming that the Defendant did mean business. But all this is for you, Gentlemen, not for me.

"Then we have the man Weller's statement—a sort of humorous stage servant, not unamusing—and of course entirely devoted to his master's interest. I don't think you need attach any importance to what he said of the solicitors for the Plaintiff. When I was at the Bar, Gentlemen, attornies did much worse things than this."

The jury consulted for only a few minutes. Perhaps, however, they were only discussing the amount of damages. They were certainly moderate—laid at 1500 pounds—though had Dodson and Fogg's advice prevailed, it should have been double. This only, by the way, is further proof of the amiable Mrs. Bardell's moderation and secret tendre for her genial lodger. Considering that Mr. Pickwick was 'a gentleman,' and further a gentleman of means, and that Mrs. Bardell was but an humble lodging-house keeper, the sum seems hardly commensurate. Dodson and Fogg no doubt expected 1,000 pounds.

An anxious quarter of an hour elapsed; the jury came back; the judge was fetched in. Mr. Pickwick put on his spectacles, and gazed at the foreman with an agitated countenance and a quickly beating heart.

'Gentlemen,' said the individual in black, 'are you all agreed upon your verdict?'

'We are,' replied the foreman.

'Do you find for the plaintiff, gentlemen, or for the defendant?'

'For the plaintiff.'

'With what damages, gentlemen?'

'Seven hundred and fifty pounds.'

Mr. Pickwick took off his spectacles, carefully wiped the glasses, folded them into their case, and put them in his pocket; then having drawn on his gloves with great nicety, and stared at the foreman all the while, he mechanically followed Mr. Perker and the blue bag out of court.

They stopped in a side room while Perker paid the court fees; and here, Mr. Pickwick was joined by his friends. Here, too, he encountered Messrs. Dodson and Fogg, rubbing their hands with every token of outward satisfaction.

'Well, gentlemen,' said Mr. Pickwick.

'Well, sir,' said Dodson: for self and partner.

'You imagine you'll get your costs, don't you, gentlemen?' said Mr. Pickwick.

Fogg said they thought it rather probable. Dodson smiled, and said they'd try.

'You may try, and try, and try again, Messrs. Dodson and Fogg,' said Mr. Pickwick vehemently, 'but not one farthing of costs or damages do you ever get from me, if I spend the rest of my existence in a debtor's prison.'

'Ha, ha!' laughed Dodson. 'You will think better of that, before next term, Mr. Pickwick.'

'He, he, he! We'll soon see about that Mr. Pickwick,' grinned Mr. Fogg.

Speechless with indignation, Mr. Pickwick allowed himself to be led by his solicitor and friends to the door, and there assisted into a hackney-coach, which had been fetched for the purpose, by the ever watchful Sam Weller.

Sam had put up the steps; and was preparing to jump upon the box, when he felt himself gently touched on the shoulder; and looking round, his father stood before him. The old gentleman's countenance wore a mournful expression, as he shook his head gravely, and said, in warning accents:

'I know'd what 'ud come 'o this here mode 'o doin' bisness. Oh Sammy, Sammy, vy worn't there a alleybi!'

We may wonder that the laborious Chamber Counsel Serjeant Snubbin did not advise "moving for a new trial." The verdict was clearly a wrong one—no sufficient evidence had been furnished either of a promise, or a breach. The full court would no doubt have granted the motion, and this would have led to Mr. Pickwick's release, for the astute Dodson and Fogg must have recognised their poor chances, and perhaps have required "security for costs," which their client could not have given. However, the idea did not occur to anybody.

Since the law was changed both plaintiff and defendant may be examined in such cases as these. What a different complexion this would have put on the suit. The whole case would have tumbled to pieces like a pack of cards. For Mr. Pickwick "put into the box" would have clearly shown that all that had been thus misconstrued, was his proposal for engaging a valet, which was to have been that very morning. He would have related the words of the dialogue, and the Jury would have seen at once how the mistake arose. On the other hand, he would have been exposed to a severe rating cross examination by the learned Serjeant—fortified by Winkle's most damaging slip about the White Horse incident—who would have forced out of him all the incidents. We can almost hear the Serjeant subject the Defendant to the torture.

"This fellow of yours, Sir, was he recommended to you by a friend?"

"No—not at all."

"By a Registry Office?"

"Certainly not—nothing of the kind."

"Nothing of the kind? I suppose too low a class of place for you, eh? Come Sir!"

"I never said such a thing."

"Nor thought it, I suppose? Come, Sir, no beating about the bush. In plain terms, did you get him from a low Public House in the Boro'?"

Mr. Pickwick started up.

"Never!"

"Do you deny it?"

"I never knew that the White Hart was a low Public-House," said the witness indignantly.

"Never mind what you know, Sir. Did you or did you not get him from there?" thundered the Serjeant.

"Of course I did."

"Of course you did. Then what's the use of all this juggling. It does you no good with My Lord and the Jury. I tell you plainly, Mr. Pickwick, we mean to have all out of you. Now Sir, was this man of yours an experienced valet?"

"Certainly not."

"He had, of course, some training in his profession in other families?"

"Not that I know of."

"Not that you know of. Do you dare to persist in that, Sir?"

"Why not?"

"Don't ask me questions, Sir, I'm asking you. Do you deny, Sir, that the man was neither more nor less than a common Boots in the yard of a Public House, wearing an old tattered hat and jacket—very different from the suit in which you have rigged him up here to-day?"

Mr. Pickwick was astonished and silent. He was suffering. He had never dreamed of this view.

"Why," he said, "I suppose—"

"We want none of your supposes, Sir, answer yes or no."

"Well he certainly was such as you describe."

A flutter ran round the court.

"And this creature of yours, you would impose on the Jury as a trained man servant. You may go down Sir."



PLEA FOR "DODSON AND FOGG."

This famous firm of city attornies has become a bye-word in legal history—being considered the most notorious of practitioners for sharp, underhand, scheming practices. Boz was always vehement against the abuses of the law, but his generous ardour sometimes led him to exaggerated and wholesale statements that were scarcely well founded. This is found in some degree even in the sweeping attacks in Bleak House. But he was so vivid, so persuasive, in his pictures, that there was no appeal.

The unreasoning fury of Mr. Pickwick is specially shown in the case of Jingle, whom he pursued with an animosity that was almost frantic. One would think it was some public enemy he was hunting down for the public good. Poor Jingle had really done nothing so monstrous, after all. He had "chaffed" Dr. Slammer, "run off" with the spinster aunt—nothing so uncommon in those days—had been consigned to the Fleet for non-payment of his debts, and there showed penitence and other signs of a good heart. His one serious offence was passing himself off as a naval officer, and under an assumed name. But he had crossed Mr. Pickwick—had ridiculed him—had contemptuously sent a message to "Tuppy." When he dared to play a practical joke on his persecutor, his infamy passed beyond bounds. Here was the key to Mr. Pickwick's nature—any lack of homage or respect was an offence against morality. So with Dodson and Fogg. He had settled in his mind that a condescending visit to these gentlemen, with a little explanation and remonstrance would completely disarm them. His fury on his advances being rejected was extraordinary.

Here Boz shows, as he ever does, his profound and most logical treatment of human character. He never goes astray, being guided by a happy and true instinct. Mr. Pickwick had grown to be the most inflated of men. Flattered and followed—submitted to with the greatest deference—ordering people about—doing what he pleased—he could not stand the slightest opposition. No one was to contradict—no one to question even his stockings—speckled or others. Even when he was clearly wrong, it was an affront to hint at it. He had much in common with that great man, Mr. Gladstone, who was the political Pickwick of his time. He was overbearing and arrogant and unrestrained, and I am afraid vindictive. Dodson and Fogg were associated with the great mortification of his life. He could not forgive them—the very sight of them roused his hatred, and the having to pay them ransom stung him to fury. All which is most natural and yet unexpected.

The popular and genial Sir Frank Lockwood was almost the first to put forward a plea in abatement of prejudice for the firm. He showed that they were not much below the usual type of middle-class solicitors. What they did was in the ordinary course. With Mr. Pickwick they were most forbearing, and even indulgent. There was one rather doubtful passage, but even here he offers extenuation. This was their treatment of poor Ramsey, which, at first sight, seems very bad indeed.

'There was such a game with Fogg here, this mornin',' said the man in the brown coat, 'while Jack was upstairs sorting the papers, and you two were gone to the stamp-office. Fogg was down here opening the letters, when that chap we issued the writ against at Camberwell, you know, came in—what's his name again?'

'Ramsey,' said the clerk who had spoken to Mr. Pickwick.

'Ah, Ramsey—a precious seedy-looking customer. 'Well, sir,' says old Fogg, looking at him very fierce—you know his way—'well, Sir, have you come to settle?' 'Yes, I have, Sir,' said Ramsey, putting his hand in his pocket, and bringing out the money, 'the debt two-pound ten, and the costs three pound five, and here it is, sir;' and he sighed like bricks, as he lugged out the money, done up in a bit of blotting paper. Old Fogg looked first at the money, and then at him, and then he coughed in his rum way, so that I knew something was coming. 'You don't know there's a declaration filed, which increases the costs materially, I suppose?' said Fogg. 'You don't say that Sir,' said Ramsey, starting back; 'the time was only out last night, Sir.' 'I do say it, though,' said Fogg, 'my clerk's just gone to file it. Hasn't Mr. Jackson gone to file that declaration in Bullman and Ramsey, Mr. Wicks?' Of course I said yes, and then Fogg coughed again, and looked at Ramsey. 'My God!' said Ramsey; 'and here have I nearly driven myself mad, scraping this money together, and all to no purpose.' 'None at all,' said Fogg, coolly; 'so you had better go back and scrape some more together, and bring it here in time.' 'I can't get it, by God,' said Ramsey, striking the desk with his fist. 'Don't bully me, Sir,' said Fogg, getting into a passion on purpose. 'I am not bullying you, Sir,' said Ramsey. 'You are,' said Fogg; 'get out, Sir, get out of this office, Sir, and come back, Sir, when you know how to behave yourself.' Well, Ramsey tried to speak, but Fogg wouldn't let him, so he put the money in his pocket, and sneaked out. The door was scarcely shut, when old Fogg turned round to me, with a sweet smile on his face, and drew the declaration out of his coat pocket. 'Here, Wicks,' says Fogg, 'take a cab, and go down to the Temple as quick as you can, and file that. The costs are quite safe, for he's a steady man with a large family, at a salary of five-and-twenty shillings a week, and if he gives us a warrant of attorney, as he must in the end, I know his employers will see it paid; so we may as well get all we can out of him, Mr. Wicks; it's a Christian act to do it, Mr. Wicks, for with his large family and small income, he'll be all the better for a good lesson against getting into debt,—won't he, Mr. Wicks, won't he?'—and he smiled so goodnaturedly as he went away, that it was delightful to see him. 'He is a capital man of business,' said Wicks, in a tone of the deepest admiration, 'capital, isn't he?'

The other three cordially subscribed to this opinion, and the anecdote afforded the most unlimited satisfaction.

'Nice men these here, Sir,' whispered Mr. Weller to his master; 'wery nice notion of fun they has, Sir.'

Sir F. Lockwood, by the way, offers one of the most amusing proofs conceivable, of the convincing power of "Pickwick," which is constantly taking us out of the world of fiction, into that of the daily living life. He speaks of the cruel trick played upon the unfortunate Ramsey, who came to pay his bill of costs, and was told that these were out of date, had been swelled by subsequent proceedings. An affidavit had been sworn—which, after he left the house, Wicks, the clerk, was sent off to swear—Then, Sir Frank, adds: "After all, this is merely given as the statement of Wicks—on whose testimony not much reliance can be placed." As though Wicks were some living witness, "erect upon two legs," whom he had been examining in Court!

It must, however, be recollected that this was an exparte story. Wicks, as Sir F. Lockwood hints, may have coloured it up, to amuse his brethren. The truth is these poor helpless debtors, who fall into the hands of legal "sharks" and money-lenders, have their tricks also. They will often "do" those they employ if they can. And further, let this be considered. Before Ramsey paid his visit the affidavit had been prepared, and was actually in Fogg's pocket. Such affidavit would not be allowed for in the costs unless necessary to the case, so that Fogg's statement that it had been filed was very near the truth. Perker himself was playing the same game of hide and seek with another unfortunate—one Watty—who was trying to see him, and learn something about his case, but was always put off with the excuse or falsehood, that Perker was out, though he was within. But then, "Perker was an honourable man."

Boz lets us know, through Sam, how the case reached Dodson and Fogg. He speaks of "the kind generous people o' the perfession 'as sets their clerks to work to find out little disputes among their neighbours and acquaintances as wants settlin' by means of law suits." This system, however, cannot be checked, and "the speculative attorney" even in our time still flourishes.

It was really not a question whether Mr. Pickwick would "indict them for a conspiracy," because they acted as solicitors against him, but whether they would bring an action against him on their own account. All through, Mr. Pickwick's behaviour to them had been outrageous. He chose to assume, quite gratuitously that it was they—not Mrs. Bardell—who got up the case; that they had worked on her for their own nefarious ends. Nothing could be more absurd. The landlady was eager enough to protect her own interests—her female friends worked on her, and the loss of so valuable a lodger, which the incident must have entailed, inflamed her more. We can see from Sam's interview with her that she was at last, though at first reluctant, determined to have her rights. But Mr. Pickwick acting on this assumption addressed the firm, from the first to the last in the most scurrilous language. He called them "robbers, swindlers,—a brace of pettifogging scoundrels!" Shocking and ungentlemanly terms, and what is worse, actionable. Yet the pair received this abuse with infinite good temper and restraint, merely securing a witness who should listen, and threatening the speaker with legal penalties.

And why did they not take this course? Well, they had to suspend proceedings until Mrs. Bardell's action was settled, when on receiving their costs they were desirous to part in good humour. But Mr. Pickwick was so furious at being invited to shake hands with them, that he again broke out with coarse abuse, "Robbers!" "Robbers!" calling it after them down the stairs. Why did they not take action on this? Perhaps they were afraid; as Mr. Pickwick had shewn himself such a doughty and unyielding fighter—going to prison rather than pay. Perhaps they thought he might get the better of them again.

We have very little evidence as to what was the scale of fees in use in these days. They were of course far lower than they are now, after allowances even for the lower cost of living. To-day, the fees to Counsel alone would have absorbed considerably more than Dodson and Fogg's whole bill of costs. A nice point is, could Mr. Pickwick's irregular interview with Serjeant Snubbin be considered something in the way of a consultation? Here were Counsel, Solicitor and Client: the Serjeant gave up a portion of his valuable time and, further, the junior counsel was summoned specially from his chambers to supply his "advice and opinion." Mr. Pickwick ought surely to have to pay for his whim. And the bill of costs that these "sharks" of attornies sent in! It was astonishingly moderate. For writ, service of subpoenas, hunting up evidence, consultation, fees to counsel, fees for the day, retainers, etc.,—the sum of 120 pounds was all that was asked.

Imagine Messrs. Lewis and Lewis sending in such a demand at the end of a trial which it had taken them nearly a year to get ready. In our time it could hardly be done under 1,000 pounds. Perker, by the way, told his client that on payment of the costs both of Plaintiff and Defendent, into the hands of "these sharks" he would get his release. With much indulgence—the attornies—allowed him to leave the prison on his bare undertaking to pay. And it is not clear why he should pay his own costs to them, and not to Perker. And they were not paid for sometime. Mr. Pickwick's own costs must have been small. He had no witnesses. Perker would not have made a hand of him, and I fancy he would have got off for ninety pounds, or a hundred pounds. There was, however, the fees of the Special Jury, so he would have to pay, say, 220 pounds.



THE COGNOVIT.

Perker, it has been shown, was not a very brilliant solicitor, and his views on the trial were somewhat cloudy. When he was urging his client to leave the Fleet he threw out some equally shadowy and ill-informed notions as to what might be done in the way of punishing the nefarious solicitors, Dodson and Fogg, "those Freeman's Court Sharks."

His great charge was that they had got a cognovit, or undertaking to pay their costs out of Mrs. Bardell—their own client! Mr. Pickwick refused to pay them—why should not she? The poor woman had "blabbed" to Sam, a careless and natural assurance of theirs, that they would be content to get them from Mr. Pickwick—a thing many a firm would do. But Perker here sees a regular conspiracy. "I cannot undertake to say whether the wording of the cognovit, the nature of the ostensible consideration and the proof we can get together about the whole conduct of the suit, will be sufficient to justify an indictment for conspiracy."

It is impossible to understand this bit of legal jargon. "The wording of the cognovit"—one could speculate on that without seeing it. (2) "The nature of the ostensible consideration" was not far to seek—it being work and labour done for the Plaintiff. And again, supposing they had promised her to get them solely from Mr. Pickwick—Sam's revelation of this, in open court, and its reception with laughter, showed what was thought of it. So which of the two courses were they to adopt? (3) And "the proof we may get together about the whole conduct of the suit." This "whole conduct" was perfectly regular. So the Judge thought—so did the jury. The case was proved by Pickwick's own friends. As we know, however, the firm took no steps to obtain satisfaction, but there cannot be the slightest doubt that they would have "recovered damages." We doubt if Mr. Pickwick would have gone to the Fleet for the second time rather than pay.

Perker's suspicions as to the Cognovit obtained by Dodson and Fogg were shrewd, and certain enough, though he could not have seen the document. The suspicions were well warranted by the state of the Law, which became an instrument in the hands of grasping attorneys. By it the client was made to sign an acknowledgment, and offering no defence to a supposed action,—say for costs—brought against him, Judgment was then marked.

This offered a great temptation to the unscrupulous. Mrs. Bardell, no doubt, signed with light heart, not knowing what she was doing, and being told that it was merely a matter of form. Various enactments attempted to protect the client—one being passed some four or five years before the trial Bardell v. Pickwick, requiring the Cognovit to be regularly filed within twenty-one days; more than ten years later it was required, that the client's signing such a thing should have no force in Law, unless he was represented by another solicitor.

The matter, as we know, was compromised with Dodson and Fogg, so there was no need to scrutinize the Cognovit. No doubt Perker was enabled to put pressure on the firm by hinting at such proceedings.

The damages, 750 pounds, were certainly moderate, and would not have been reduced by the Court on an application to set them aside as "excessive." The good woman was quite at her ease, being no doubt certain that Mr. Pickwick, at last, must give in. She could even enjoy the society of her friends and make the celebrated junketting to the "Spaniards." The firm took another view and grew tired of waiting; or they were sagacious enough to see that the arrest of their client was about the best method of putting pressure on Mr. Pickwick. In this connection, it may be noted that Jackson's over zeal in the transaction might have led to an action against his employers; for he arrested not only Mrs. Bardell, but her friends, Mrs. Sanders and Mrs. Cluppins. The prison gates were actually shut on them. "Safe and sound," said the Bailiff. "Here we are at last," said Jackson, "all right and tight."

True, Mrs. Bardell put under her hand in her appealing letter to Mr. Pickwick, that "this business was from the very first fomented and encouraged and brought about by these men," but this is not much; for the view only occurs to her when her operations had completely failed and recoiled on her own head with such disastrous result. The firm's business was to persuade her that she had a good case, and the Jury's verdict proved that she had. Had Mr. Pickwick given in and paid, she would have had no scruples. One cannot, at the same time, but admire the ingenuity of the author, in bringing such a Nemesis on her. Dodson and Fogg, we are told, "continue in business from which they realise a large income, and in which they are universally considered among the sharpest of the sharp."

At the last interview, at Perker's, when the costs were paid, one might have expected Mr. Pickwick to behave with a certain disdainful dignity. He was beaten and had paid over the stakes, and could afford to treat his enemy with contempt. Not so. The partners held out the olive branch by alluding to the way they had passed by his unmannerly attacks on them. "I beg to assure you, sir, I bear you no ill will or vindictive feeling for sentiments you thought proper to express of us in our office," and the other partner said, "I hope you don't think quite so ill of us, etc." This was rather gentlemanly and becoming. One offered his hand. But Mr. Pickwick broke out in a perfect fury. They had assumed a tone of forgiveness which was "an excess of impudence." He had been "the victim of their plots and conspiracies." They had imprisoned and robbed him. It was "insolent familiarity." At last he said, "You are a well-matched pair of mean, rascally, pettifogging robbers." This sentence he repeated three times, and the words "Robbers" he shouted after them many times over the stairs.

Sharping attornies! Why, a real sharping firm would have forced from their client advances of fee, "cash out of pocket," have made her give a Bill of Sale on her lease and goods, and have fairly stripped her of everything before the case began. Of the damages—had they got them—she would have seen but little.

The Cognovit that was extracted from Mrs. Bardell was an acknowledgement, as we have seen, which entitled them to enter up judgment just as if a trial had taken place. In the Oxford great Dictionary, it reads quaintly to find Mrs. Bardell's cognovit quoted as an illustration of the legal meaning.

The Turnkey, on her arrest, had told Sam that she had been brought to the Fleet, "on a Cognovit for costs," Sam imparted this news to Job Trotter, and sent him off, hot foot, to Perker in Montague Place. This outcast, was able to tell him, "it seems they got a Cognovit out of her for the amount of the costs, directly after the trial!"

Boz, on this occasion, gives us a happy glimpse of Solicitor life.

Mr. Perker had a dinner party that day, which was certified by the lights in the drawing-room windows, the sound of an improved grand piano, and an improveable cabinet voice issuing therefrom; and a rather overpowering smell of meat which prevaded the steps and entry. In fact, a couple of very good country agencies happening to come up to town at the same time, an agreeable little party had been got together to meet them, comprising Mr. Snicks the Life Office Secretary, Mr. Prosee the eminent counsel, three solicitors, one commissioner of bankrupts, a special pleader from the Temple, a small-eyed peremptory young gentleman, his pupil, who had written a lively book about the law of demises, with a vast quantity of marginal notes and references; and several other eminent and distinguished personages. From this society little Mr. Perker detached himself on his clerk being announced in a whisper; and repairing to the dining-room, there found Mr. Lowten and Job Trotter looking very dim and shadowy by the light of a kitchen candle, which the gentleman who condescended to appear in plush shorts and cottons for a quarterly stipend, had, with a becoming contempt for the clerk and all things appertaining to 'the office,' placed upon the table.

'Now Lowten,' said little Mr. Perker, shutting the door, 'what's the matter? No important letter come in a parcel, is there?'

Do we not seem to be present? We can never pass by Russell Square without calling up the scene. Note, too, the components of that legal dinner. Poor Sir F. Lockwood used to declare that he relished "Mr. Prosee, the eminent counsel," more than any one of Boz's legal circle. Yet these five words are all we know of him. But Sir Frank had imagination, and like some of us could read between the lines, or rather, between the words. Here was a prominent member of the Bar—was he K.C.? a triton among the minnows—therefore heading the table, listened to with reverence as he told of the judges, possibly of "old Stareleigh's" last exhibition of petulance—"with it's high time for him to go, etc." But if he had not silk, why did not Perker retain him instead of the incapable Phunky, whom he did not ask on this occasion. "I gave the chap a good chance, but he destroyed my whole case!" "Catch me letting him put his legs under my mahogany." Among the guests was that "small-eyed, peremptory young gentleman"—the special pleader's pupil. What a capital sketch has Boz given of him. "He had written a lively book about the law of demises, with a vast quantity of marginal notes and references." He had come with his teacher, who was no doubt highly deferental to Mr. Prosee, but enough, the peremptory young gentleman may have partly "tackled" the great man on some point of practice. The good country agencies must have gone home delighted with their evening.

But Mr. Prosee may be brought into somewhat closer communication with the case. At Perker's dinner the gentlemen had gone up to the drawing room, when Perker was called down to hear the news of Mrs. Bardell's arrest. Mr. Prosee was left expatiating to the circle on some beautiful "point," and when Perker returned how likely that he should tell of his extraordinary client who had preferred to go to prison rather than pay the costs of a suit, "and here," he would go on, "is the drollest sequel you ever heard, &c."

"An odd unusual thing," Mr. Prosee would say. "Plaintiff and Defendant, both in jail together! I never heard the like." There would be much laughter at the novel situation. Thus the cognovit would come up and Mr. Prosee gravely say, "nothing will be done till an Act of Parliament is passed. The client should be protected by a fresh solicitor." On which the young author of the treatise on Demises would have something to say in his best fashion; for the cognovit might be taken to be a sort of demise. "I doubt Mr. Prosee, if your suggestion would work. As I take it, sir, etc."



RELEASE FROM THE FLEET.

But the circumstances connected with Mr. Pickwick's release from the Fleet, show the adroitness and ability of Dodson in a high degree. It will be recollected that when Job rushed with the news to Perker, that gentleman and his clerk broke out into raptuous admiration.

'Now, Lowten,' said little Mr. Perker, shutting the door, 'what's the matter? No important letter come in a parcel, is there?'

'No, sir,' replied Lowten. 'This is a messenger from Mr. Pickwick, sir.'

'From Pickwick, eh?' said the little man, turning quickly to Job. 'Well; what is it?'

'Dodson and Fogg have taken Mrs. Bardell in execution for her costs, sir,' said Job.

'No!' exclaimed Perker, putting his hands in his pockets, and reclining against the sideboard.

'Yes,' said Job. 'It seems they got a cognovit out of her for the amount of 'em, directly after the trial.'

'By Jove!' said Perker, taking both hands out of his pockets and striking the knuckles of his right against the palm of his left, emphatically, 'those are the cleverest scamps I ever had anything to do with!'

'The sharpest practitioners I ever knew, sir,' observed Lowten.

'Sharp!' echoed Perker. 'There's no knowing where to have them.'

'Very true, sir, there is not,' replied Lowten; and then both master and man pondered for a few seconds, with animated countenances, as if they were reflecting upon one of the most beautiful and ingenious discoveries that the intellect of man had ever made. When they had in some measure recovered from their trance of admiration, Job Trotter discharged himself of the rest of his commission. Perker nodded his head thoughtfully, and pulled out his watch.

Now to the superficial this seemed to be evaded by the art of the firm in "getting the cognovit out of her." But this was an ordinary, vulgar stroke—which anyone could have done. Their policy went far deeper, and this Perker was acute enough to recognize. There was no object in putting Mrs. Bardell into the Fleet.

They could no more get their costs out of her, than they could get them out of Mr. Pickwick. She had nothing but her few "sticks" of furniture, worth say 50 pounds. But the astute fellows saw what pressure could be put on the benevolent nature of Mr. Pickwick, who could not endure that a respectable woman should be exposed to the contamination of a debtor's prison. And their sagacity was to be justified, and on the very next day, too.

It is curious, however, that no mention is made of Mrs. Bardell's release. It, of course, took place before Mr. Pickwick's. Here again Dodson and Fogg behaved very fairly, for they allowed both her and Mr. Pickwick to be released, without receiving payment, but simply on "an understanding" by Perker. As it turned out, indeed, they were not paid for some weeks.

The processes by which Mr. Pickwick was got into the Fleet were complicated enough, Habeas Corpus, appearing before functionaries, etc. But it is odd that in cases of persons of lower degree these seemed not to be necessary. We do not hear of them in Sam's instance. While Mrs. Bardell, was taken straight from "the Spaniards," to the prison door, she was not even formally arrested by the Bailiff, though he was in attendance. He sat afar off at Hampstead, taking his drink—and on the box during the drive. She might be said to have been arbitrarily taken to the prison by Jackson—without a legal warrant. Had not the business been compromised, some other astute firm of attorneys might have found subject for an action against Dodson and Fogg.

Another of the humorous incidents connected with the case is old Weller's firm persuasion that Mr. Pickwick was to "stand his trial," as though he were indicted for some criminal offence. We find him always astray as to when he was to be "tried," etc. This is a most natural impression among the lower classes, who are not very clear as to the distinction between civil and criminal process, being most familiar with the latter. In the same spirit is his humorous suggestion of securing an alibi, as the best method of getting Mr. Pickwick off. "O Sammy, Sammy, vy worn't there a alleybi!"

* * * * *

Such is "The Trial in Pickwick."

Is there any writer, now living, I may be asked, who could furnish such a picture as this, one so full of reality and true humour, of one of our modern Courts of Justice? The answer must be that it would be idle to look for such a person. There are thousands who could supply minute drawings in which not a single detail would be omitted. But the piercing to the essence, the happy generalization, the knowledge of the true points of character, these would be sought in vain.

THE END