Bardell v. Pickwick

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. 2 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. 3

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!”

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.”