Bardell v. Pickwick

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 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.

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.

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!

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.

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.”

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.

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.”

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.”

“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 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.

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—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.

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!”

“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.”

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.

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.

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!

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.

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.

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.  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.

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.”

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.

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.”

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.

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.”

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 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.  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.

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.

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