Bardell v. Pickwick

  THE DEFENDANT'S CASE.

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

  On the other side the shrewd Dodson and Fogg had done admirably for theirclient. 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 "takesilk" in a few years. This gentleman could cross-examine in capitalstyle 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 theyknew perfectly well. His style, bearing, and speeches form an admirableepitome 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 feelhow admirably directed they were to work on the jury.

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

  Perker is even absurd enough to talk of a _casa_, as though it were someItalian word.

  A _ca sa_ was short for a writ of _Capias ad Satisfaciendum_, which gavea warrant to the officers to seize the goods. There were various kindsof this machinery, but what affected Mr. Pickwick was a _Capias adSatisfaciendum_, to enforce attendance at the Court. The _ca sa_ alsocame after judgment, giving authority to imprison the defendant till theclaim was satisfied.

  The appearance of such great guns as the two Serjeants is accounted forby a curious rule that Serjeants only were permitted to lead in casesread in the Court of Common Pleas. {84} This strange monopoly recallsthat other one, in the Court of Arches, where the advocates and judgesused to exchange places and decide on cases in which perhaps they hadbeen advocates. These illiberal and unaccountable restrictions have beenswept away, with the Courts themselves.

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

  One is sorry to think that there are no Serjeants now, though at theIrish Bar there is one solitary survivor--Serjeant Hemphill. Gone too,are their "coifs" and other paraphernalia. With the abolition of theseparate courts they were found superfluous. We like to hear of SerjeantParry, Serjeant Ballantine, Serjeants Warren and Talford, all fourliterary 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 reallybrought out that fatal piece of evidence from Winkle, which "did for" hiscase altogether. He had no business, as Boz tells us.

  This junior, we are told, had been just called, that is to say, he hadbeen only eight years at the Bar. Snubbin had never heard of him. Thelittle judge, in court, also said "that he never had the pleasure ofhearing the gentleman's name before," a sneer he would not have venturedon to a counsel in good practice. Snubbin's remark is amusing andsarcastic; but now-a-days any barrister who had been at the Bar eightyears would not be considered as just called, for if he has been passedover for that time, he is likely never to make a figure. The rude andunbecoming sneers, both of Snubbin and the little Judge, seem amazing inour present code of legal manners. Everything at that time, however, wasmuch more "in the rough" and coarser. This was his first case; and thepoor 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 havesecured a man like the present Mr. Gill or Mr. Charles Matthews--theymight have "broken down" the witnesses, or laughed the case out of court.

  We may speculate--why did Perker make this foolish selection? As toSnubbin there was some excuse, as it was the custom that Serjeants onlyshould 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 everyopportunity for helping his client. He "led" in a quiet, gentlemanly andalmost 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 hadtaken to be a proposal. Now here was the moment to show the ambiguityand that Mr. Pickwick was speaking of his servant. It might have beenbrought out that Sam was actually engaged that day, and that she had methim on the stairs, etc. But Snubbin declined to ask her a singlequestion, saying that Mr. Pickwick admitted the accuracy of herstatement. But this was beside the matter, and the Serjeant need nothave impeached her accuracy.

  When Phunky came to Winkle,
the inexperience of the tyro was shown atonce. Again, here was the moment to have extracted from the witness afull 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 thatthe valet was to be engaged that very morning. It would have beenimpossible to resist such an explanation. But the thing was not thoughtof. 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, therewas only the foolish question as to Mr. Pickwick's being an elderly manand of fatherly ways, a topic that would by no means negative thepresumption of matrimony. But nothing could excuse the rashness ofputting a general question as to "Mr. Pickwick's behaviour towardsfemales." No adroit counsel would run the risk of encountering a tooconscientious witness, such as Winkle proved to be and who would "let thecat 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, treatingevery female he met as a daughter, never dreaming of matrimony: when lo!the whole fabric is overthrown in an instant by the luckless Winkle'sadmission!

  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, andhis pretence of philanthrophy after was shewn in its true colours. Itwas impossible not to associate this with the scene with Mrs. Bardell.

  But there was an important legal "point" which one might have expectedwould have occurred to so eminent a Chamber Counsel as Serjeant Snubbin.To prove a breach of the promise, it must always be shown that thedefendant had been given an opportunity of officially refusing to fulfilit. It should have been put to him "in black and white," "Will you marryme?" and he must have answered "No, I will not," or something to thateffect. In default of this the defendant might plead "True I gave thepromise and it stands unbroken, for you never required me to act uponit." Now in Mr. Pickwick's case this actually occurred. As we have seenhe left town the morning after the imputed proposal and while he wasaway, within a month, the notice of action was sent to him. Up to thattime 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 havebeen disturbed by it, or have consulted his friends about it. Had itbeen so, his high opinion of Mrs. Bardell would have been shattered. Fordid 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 thistheory 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 ofwhat he had said to her, declaring her deep-seated affection for him andinviting him to carry out what he had offered. Mr. Pickwick would havereplied in one of his amiable letters, couched in rather general terms,perhaps calling her "my dear creature," but putting aside the wholebusiness: and there the matter probably dropped for a time. I havelittle doubt the good woman up to the last really believed that herelderly lodger intended to make her an offer of his hand, and that on hisreturn from his travels he would resume the business. Much elated bythis prospect, and most naturally too, she had told all her friends andneighbours of her approaching advancement. This Mrs. Sanders speciallydeposed to: "had always said and believed that Pickwick would marry Mrs.Bardell; knew that Mrs. Bardell being engaged to Pickwick was the currenttopic 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 thatPickwick made such a legal and official refusal to execute his promise aswould be sufficient to support the statement of what is now called "thesummons 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 haveaffected Mrs. Bardell and which my friend Mr. Burnand ("F. C. B.") wasthe first to push home. At the trial, Mrs. Saunders cross-examined bySerjeant Snubbin, had to admit that her friend had an admirer--a certainBaker in the neighbourhood--who was supposed to have matrimonial designs.Pressed on this matter she thus deposed: "Had heard Pickwick ask thelittle boy how he should like to have another father. Did not know thatMrs. Bardell was at that time keeping company with the baker, but didknow that the baker was then a single man, and is now married. Couldn'tswear that Mrs. Bardell was not very fond of the baker, but should thinkthat the baker was not very fond of Mrs. Bardell, or he wouldn't havemarried somebody else. Thought Mrs. Bardell fainted away on the morningin July, because Pickwick asked her to name the day; knew that she(witness) fainted away stone dead when Mr. Saunders asked _her_ to namethe day, and believed that everybody as called herself a lady would dothe same, under similar circumstances. Heard Pickwick ask the boy thequestion about the marbles, but upon her oath did not know the differencebetween 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 theircorrespondence 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 havecalled her that, as a term of affection.

  What a point, too, Serjeant Snubbin missed here! Could he not havequoted the old verses. How he would have convulsed the court as hepoured 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 hisspeech. He might have surely urged that this "wily and experiencedwidow" was eager for a husband, that having been "thrown over" by herbaker and stung by the mortification, she resolved, as it were, torehabilitate herself and prepare this "plant" for her unsuspectinglodger. 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 bakertheme and developed it regularly in his amusing operetta "Pickwick."

  The little epitome given of Snubbin's speech shows how weak were histopics, 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 butdamaged the case, as no witnesses had been called on his side. For thesame reason, the Court had not the pleasure of hearing Skimpin, who wouldno doubt have "torn the Defendant's case to tatters."