Bardell v. Pickwick

  WINKLE'S EVIDENCE.

  Skimpin may have been intended for Wilkin, a later Serjeant andwell-known in the 'fifties, and whose style and manner is reproduced. Wecould not ask a better junior in a "touch and go" case. He was as readyto take advantage of any opening as was the late Lord Bowen, when he wasjunior in the Tichborne case.

  [Picture: Mr. Skimpin]

  On entering the Box, Mr. Winkle "bowed to the Judge," with considerabledeference, a politeness quite thrown away. "Don't look at me sir," saidthe Judge sharply, "look at the Jury." This was ungracious, but judgesgenerally don't relish any advances from witnesses or others.

  When poor Winkle was accused by the Judge of giving his name as Daniel,he was told that "he had better be careful:" on which the ready Skimpin:"Now, Mr. Winkle attend to me if you please: and let me recommend you,for your own sake, to bear in mind his lordship's injunction to becareful." Thus by the agency of Judge and counsel witness wasdiscredited at starting and of course flurried.

  'I believe you are a particular friend of Pickwick, the defendant, are you not?

  Winkle, eager to retrieve himself by being "careful" began--

  'I have known Mr. Pickwick now as well as I recollect at this moment, nearly--'

  'Pray, Mr. Winkle, don't evade the question. Are you, or are you not a particular friend of the defendant?'

  'I was just about to say that--'

  'Will you, or will you not answer my question, sir?'

  'If you don't you'll be committed, sir,' interposed the little Judge.

  'Come, sir,' said Mr. Skimpin, '_yes or no_, _if you please_.'

  'Yes, I am,' replied Mr. Winkle.

  '_Yes_, _you are_. _And why couldn't you say that at once_, _sir_?'

  I think there is no more happy touch of legal satire in the books thanthat about "What the soldier said." It is perfect, so complete, that itis always understood by unprofessional readers. The lawyer feels at oncethat it is as true as it is happy.

  'Little to do and plenty to get,' said Serjeant Buzfuz to Sam.

  'O, quite enough to get, sir, as the soldier said ven they ordered him three hundred and fifty lashes.'

  '_You must not tell us what the soldier or any other man said_, _sir_; _it's not evidence_,' interposed the Judge.

  Who will forget the roar that always greeted this sally when Boz read it,or the low and slow solemnity which he imparted to the Judge's dictum.As an illustration it is simply admirable.

  Boz himself would have been pleased to find himself quoted in twoimpressive legal tomes of some 1800 pages. The great and laborious JohnPitt Taylor could not have been wholly a legal dry-as-dust: for the manwho could have gravely entered Bardell _v._ Pickwick in his notes andhave quoted a passage must have had a share of humour.

  Most people know that it is a strict principle that "hearsay evidence" ofan utterance will not be accepted in lieu of that of the person to whomthe remark was made. Neither can we think it out of probability thatsuch an objection may have been made by some over punctilious judgewishing to restrain Sam's exuberance. A Scotch judge once quoted incourt a passage from _The Antiquary_ in which he said the true view of anintricate point was given; but then Scott was a lawyer.

  It is requisite, says Mr. John Pitt Taylor (p. 500) speaking of "hearsayevidence" that whatever facts a witness speaks, he should be confined tothose lying within his own knowledge. For every witness should give histestimony on oath, and should be subject to cross examination. Buttestimony from the relation of third persons cannot be subject to thesetests. This rule of exclusion has been recognised as a fundamentalprinciple of the law of evidence ever since the time of Charles II. Tothis he adds a note, with all due gravity: "The rule excluding heresayevidence, or rather the mode in which that rule is frequentlymisunderstood in Courts of Justice, is amusingly caricatured by Mr.Dickens _in his report_ of the case of Bardell _v._ Pickwick, p. 367."

  Bardell _v._ Pickwick! He thus puts it with the many thousand or tens ofthousand cases quoted, and he has even found a place for it in his indexof places. He then goes on to quote the passage, just as he would quotefrom Barnwall and Adolphus.

  How sagacious--full of legal point--is Boz's comment on Winkle'sincoherent evidence. Phunky asked him whether he had any reason tosuppose that Pickwick was about to be married. "'Oh no; certainly not,'replied Mr. Winkle with so much eagerness, that Mr. Phunky ought to havegot him out of the box with all possible dispatch. Lawyers hold out thatthere are two kinds of particularly bad witnesses: a reluctant witness,and a too willing witness;" and most true it is. Both commit themselvesin each case, but in different ways. The matter of the former, and themanner of the latter do the mischief. The ideal witness affectsindifference, and is as impartial as the record of a phonograph. It iswonderful 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 heevidently devised on the spur of the moment, shows him to be a veryready, 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 crossexaminers, and is used when the witness cannot be got to accept the wordsor admit that they were used. It of course means little or nothing: butits 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 hisrecollection.

  How well described, too, and satirised, is yet another "common form" ofthe cross examiner, to wit the "How often, Sir?" question. Winkle, whenasked as to his knowledge of Mrs. Bardell, replied that "he did not knowher, but that he had seen her." (I recall making this very answer to Bozwhen 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 Ihave 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 h
er 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 andover again from the young fledgeling Counsel to the old "hardbitten" andexperienced K.C.?

  A young legal tyro might find profit as well as entertainment incarefully studying others of Mr. Skimpin's adroit methods in crossexamination. They are in a manner typical of those in favour with themore experienced members of the profession, allowing, of course, for alittle humorous exaggeration. He will note also that Boz shows clearlyhow effective was the result of the processes. Here are a few usefulrecipes.

  _How to make a witness appear as though he wished to withhold thetruth_._ How to highly discredit a witness by an opening question_._How to insinuate inaccuracy_._ How to suggest that the witness isevading_._ How to deal with a statement of a particular number ofinstances_._ How to take advantage of a witness' glances_._ How tosuggest another imputed meaning to a witness' statement and confuse himinto accepting it_.

  Another happy and familiar form is Skimpin's interrogation of Winkle asto 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 movementin 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_,' withanother expressive look at the jury; '_they must tell their storieswithout any previous consultation with you_, if none has yet takenplace,' another expressive look. 'Now Sir, tell what you saw,' etc.'_Come_, _out with it_, _sir_, _we must_ have it sooner or later.'" Theassumption here that the witness would keep back what he knew is adroitand very convincing.