highest aspect, regarded not as interpreted by statute or custom but
from the standpoint of justice tempered by mercy. As such Equity came
to be regarded as more important than Common law; and the Chancery
overshadowed the other courts. The Chancellor rose constantly in
importance, and as the chief of the King’s chaplains and his adviser
in the exercise of the prerogative of mercy he became “the keeper of
the King’s conscience.” As time went on, Equity like Common law was
based on precedent, and its original purpose fell into the background.
The business of the Chancery was continually on the increase, and it
finally became utterly unmanageable. Protracted law suits are certainly
no new thing and in the 15th century there are, I believe, examples of
interminable litigation. At an early date, the “law’s delay” had passed
into a proverb; and nothing was done to remedy the growing evil. The
Lord Chancellor and the Master of the Rolls were the only available
judges; and as population increased and conditions of life became more
complicated, the grievances of the wretched suitors in Chancery became
intolerable. As you know, in the prize ring, when a boxer had got his
adversary into a hopeless position and could treat him as he liked, the
beaten man was said to be “in chancery.”
It is generally supposed that the Chancellor in “Bleak House” is the
famous Lord Eldon, whose tenure of that exalted office is almost
the longest on record. He was a man of many virtues and singularly
kind-hearted,--the description of his reception of the wards in
Chancery in the book before us does ample justice to this trait--and
as a lawyer he ranks among the very foremost exponents of the law of
England. But he knew and valued the merits of the legal system; and
despite the fact of many cases of individual hardship, these were many,
and he was so anxious to give judgments in exact accordance with the
law that he had great difficulty in making up his mind. As a matter of
fact a judgment by Lord Eldon is even now accepted in your country as
well as mine: but his conscientious thoroughness was a great drawback
in delaying the congested business of the court. I will now give some
formal examples of the condition of the Chancery, taken from Spencer
Walpole’s “History of England from A.D. 1816.”
But first let me quote Dean Swift’s description of the law’s delay a
century earlier. It is of course a caricature: but his satire is so
pungent and his wit so satirical that I cannot resist the temptation of
using his famous book.
Swift makes Gulliver explain the law of England to the Houyhnhnms, the
horses who rule over the human Yahoos.
“It is a maxim among these lawyers that whatever hath been done may
be legally done again; and therefore they take special care to record
all the decisions made against common justice and the general reason
of mankind. These, under the name of precedents, they produce as
authorities, to justify the most iniquitous opinions, and the judges
never fail of directing accordingly.
“In pleading they studiously avoid entering into the merits of a case;
but are loud, violent, and tedious, in dwelling on all circumstances
which are not to the purpose. For instance, in the case already
mentioned (a claim to a cow) they never desire to know what claim or
title my adversary hath to my cow; but whether the said cow were red
or black; her horns long or short; whether the field I graze her in
be round or square; whether she was milked at home or abroad; what
diseases she is subject to and the like; after which they consult
precedents, adjourn the cause from time to time, and in ten, twenty, or
thirty years come to an issue.”
* * * * *
Here is a typical undefended Chancery suit. A will which came into
force in 1819 contained bequests to charities. These legacies were
contrary to the Mortmain laws, and were consequently void. The
heir-at-law filed a bill in Chancery to make them so. During 1820 the
trustees of the charities put in their answers. In 1821 the case was
referred to the Master in Chancery to find out who was the heir at law.
By 1823 he was ready with an answer, and the court directed him to give
an account of the property. He did so in 1824. In 1825 the case was set
down for further directions; in 1826 the Master was told to ascertain
the children of the testator’s half-nephews. This took till 1828, when
the case was reported to the House of Commons. The Master was then
still pursuing his enquiries. A defended case was naturally slower. The
case was referred to the Master in Chancery; he reported: exceptions
were then taken to his report, and so on. In about ten years something
probably occurred to make it necessary to begin again. The Masters were
paid by fees and were interested in making a case last. Their incomes
often amounted to as much as from £3000 ($15,000) to £4000 ($20,000)
a year. The amount of law copying was prodigious. In one case it came
to 10,497 folios, for which a charge of six shillings and eight pence
($1.60) for each folio was made. You recollect the poor captain who
sunk to the position of a law-copying clerk. Be sure he was not paid at
this rate.
Such then were a few of the abuses of one branch of the legal system
which Dickens exposed. They have in the main been disposed of since
1873. We cannot, however, leave the subject without a few words on his
inexhaustible fertility in drawing the characters of lawyers.
The profession is represented throughout. We see Mr. Justice Stareleigh
trying Mr. Pickwick and waking up at intervals. Who can forget the
cross-examination of Sam Weller.
“‘Is it a good place?’” Sam is asked. Yes, Sir. “‘Little to do and
plenty to get,’ said Sergeant Buzfuz jocularly. ‘Plenty to get, as the
soldier said when they gave him six dozen,’ replied Sam. ‘You mustn’t
tell us what the soldier or anybody else said,’ remarked the judge,
waking up suddenly. ‘It is not evidence.’” Immortal too are the counsel
in that famous case, the eloquent Buzfuz and the abstracted Stubbin;
nor can we forget the unlucky novice, Mr. Phunky, who ruined the case
for Mr. Pickwick by the way he cross-examined Mr. Winkle.
No profession has risen more in dignity and respectability in England
in recent years than that of the solicitor or attorney. In Scott and
in almost all earlier novelists, the man who prepared the work for
counsel and was engaged in the humbler practice of the courts is nearly
always represented as a rogue. How often do we find him described as a
“miserable pettifogger” and charged with “sharp practice.” It is the
same with Dickens. Even Mr. Perker in “Pickwick,” who is thoroughly
honest, cannot withhold his admiration of Dodson and Fogg’s acuteness.
“‘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 the intellect of man had ever made, etc.”
In treating of the dishonest little legal practitioners Dickens
indulges his taste for burlesque humour. Witness the scene in which
Dodson and Fogg are visited by Mr. Pickwick, and the two lawyers try to
provoke him to commit an assault or to use slanderous language, and Sam
Weller without ceremony drags his master out of the office. Mr. Sampson
Brass is also a subject of rollicking humour, as is his sister, the
fair Sally. Witness the scene where Brass visits Quilp at his wharf on
the Thames and is compelled to drink spirits neat and almost boiling,
and is made sick by the pipe the little monster makes him smoke; or
when Brass, aided by Quilp’s wife and mother-in-law, is writing a
description of the supposed corpse of his missing client, and recalls
Quilp’s characteristics, “his wit and humour, his pathos and his
umberella.” I confess I do not quite understand how Brass was able to
get Kit imprisoned; our author’s law appears a little stagey. I should
say that type of lawyer had disappeared; but I once did come across a
Dodson and Fogg, though a pianoforte, not a widow, was the cause of my
costly experience.
Let us now turn from the somewhat painful abuses which Dickens
denounces to a more cheerful subject, that of Parliamentary elections.
Here I can speak frivolously, for I am one of those who have grave
doubts whether a good or a bad system of election, in my country at any
rate, matters much, for choose them how you will, the representatives
of the people never seem to represent anything but their own private
interests. Let us take Mr. Pickwick’s experiences at Eatandswill, which
is, I believe, the now disfranchised borough of Sudbury in Suffolk,
about fourteen miles from Bury St. Edmunds, whither Mr. Pickwick
started on his expedition to thwart the plans of Mr. Jingle, and had
his famous experience at the young ladies’ school. His friend, Mr.
Perker, was, you will recollect, the agent of the Hon. Samuel Slumkey.
“‘Spirited contest, my dear Sir,’ said Mr. Perker to Pickwick.
‘I am delighted to hear it,’ said Mr. Pickwick, rubbing his hands.
‘I like to see sturdy patriotism, on whatever side it is called
forth;--and so it’s a spirited contest?’
‘O yes,’ said the little man, ‘very much so indeed. We have opened all
the public houses in the place, and left our adversary nothing but the
beer shops--masterly stroke of policy that, my dear Sir, eh?’”
The prospects however were doubtful, for Mr. Fizkin had thirty-three
electors locked up in the coach house of the White Hart. All the hotels
were full of voters and Mrs. Perker had brought green parasols for
the wives of doubtful supporters of Mr. Slumkey. Then came the day of
nomination and “During the whole time of the polling, the town was in
a perpetual fever of excitement. Everything was conducted on the most
liberal and delightful scale. Exciseable articles were remarkably
cheap at all the public houses.... A small body of electors remained
unpolled until the very last day. They were calculating and reflecting
persons, who had not yet been convinced by the arguments of either
party, although they had had frequent conferences with each. One hour
before the close of the poll Mr. Perker solicited the honour of a
private interview with these intelligent, these noble, these patriotic
men. It was granted. His arguments were brief, but satisfactory. They
went in a body to the poll; and when they returned, the honourable
Samuel Slumkey, of Slumkey Hall, was returned also.”
To persons accustomed to modern Parliamentary elections in England
this passage would need a commentary to be understood. The nomination
and the show of hands amid riotous disorder is a thing of the past.
The protracted poll, lasting in some cases for several days, the
non-resident electors billeted in the inns at the candidates’ expense,
and the whole scene Dickens depicted belongs to another age which is
almost incomprehensible to the England of to-day.
Sam Weller’s story of his father and the voters had more point in those
days than now. Mr. Weller was offered a twenty-pound note ($100) and
it was suggested that if the coach were overturned by the bank of a
canal it might be a good thing. Strangely enough an accident happened.
To quote Sam’s words: “You wouldn’t believe it, sir,” continued Sam,
with a look of inexpressible impudence at his master, “that on the
wery day he came down with those voters, his coach _was_ upset on that
’ere wery spot, and every man of them was turned into the canal.” In
the unreformed Parliament, before 1832, the boroughs had each its own
peculiar electorate; and I am glad to use for my information a book
written by two learned scholars now in America, Mr. and Mrs. Porritt.
In not a few places the election of members was vested in the Mayor
and burgesses, in others the different guilds and corporations were
the electors. In one case the franchise was more democratic even than
now, the very tramps who slept in the town of Preston became voters.
Not infrequently the members were nominated by a local magnate. In many
cases the town sold its nomination to the highest bidder; and this
was occasionally the case at Eatandswill, if so be that it represents
Sudbury. But frequently the electors were the so-called “freemen” of
the borough. The name takes us back to mediæval times, when slavery was
in existence, or to the days when the guilds were close corporations,
and no one not free of them could practise any trade. But in later
times the freedom was a matter of inheritance and could even be
taken up, in some cases, by marriage with a “freeman’s” daughter.
The franchise in many towns was enjoyed only by these freemen, and
in Ipswich, to take an example familiar to me, most of them were
non-resident.
In an election in the “twenties,” which is reputed to have cost the
candidates £30,000 ($150,000), I have been told that they chartered
ships to bring electors from Holland. This is, doubtless, why all
the hotels in Eatandswill were crowded, and explains the elder Mr.
Weller’s adventure by the canal. Bribery was illegal; and in a famous
case in 1819 Sir Manasseh Massey Lopez was fined £10,000 ($50,000) and
imprisoned for two years for practising it at Grampound. But it was an
exceptional case; and the Lords threw out the bill for disfranchising
the borough.
Now we are on the subject of political life I cannot resist reminding
you of a perfectly delightful sketch of a political fraud in the
person of Mr. Gregsbury in “Nicholas Nickleby.” He comes into the story
for no particular reason except to give Dickens the joy of describing
the sort of man he had doubtless observed when he was a pressman in the
House of Commons.
Nicholas is present when the deputation arrives to request Mr.
Gregsbury to resign his seat, and Mr. Pugstyles is its spokesman.
“‘My conduct, Pugstyles,’ said Mr. Gregsbury, looking round upon
the deputation with gracious magnanimity, ‘my conduct has been, and
ever will be, regulated by a sincere regard for this great and happy
country. Whether I look at home, or abroad; whether I behold the
peaceful industrious communities of our island home: her rivers covered
with steamboats, her road with locomotives, her streets with cabs, her
skies with balloons of a power and magnitude hitherto unknown in the
history of aëronautics--I say whether I look at home, etc., etc., I
clasp my hands, and, turning my eyes to the broad expanse above my
head, exclaim, Thank God I am a Briton.’” When even this outburst does
not meet with approval and the deputation presses Mr. Gregsbury to
resign, the member reads a letter he has addressed to Mr. Pugstyles
in which he says, “Actuated by no personal motives, but moved only by
high and great constitutional considerations ... I would rather keep my
seat, and intend doing so.” No, in all the changes time has brought,
one thing does not change--our politicians are still the same.
In “Our Mutual Friend” our author touches once more on the state of the
poor and their terror of “the parish.” No one who has read this novel,
with its wealth of characters amazing even for Dickens--for even in his
other works you fail to find so many types as Bella Wilfer, Mr. and
Mrs. Boffin, Fascination Fledgby, the dolls’ dressmaker, Mr. Silas
Wegg, Mr. Venus, Rogue Riderhood, the Veneerings, to mention only a
few--no one, I say, can ever forget the old washerwoman Betty Higden
and her horror of the workhouse, how it haunted her whole life and gave
an additional terror to death, that thereby she would fall into the
hands of the parish and be buried by it. And in this novel Dickens is
as severe on the injudicious charity of philanthropists and faddists as
he is upon the callousness of the guardians of the poor. There is no
more terrible satire on the mistakes of the education of that age than
his delineation of Bradley Headstone. I have never to my recollection
read any discussion of this character but I have often thought that in
Headstone and Charley Hexam, his pupil, he is giving a warning of the
dangers of modern education.
Universal education was not yet adopted in England, which was the
most backward of countries in this respect. But it was in the air,
and Dickens foresaw that some of the principles adopted would prove
serious to the community. He dwells on the mechanical efficiency of
the teaching; the learning to write essays on any subject exactly one
slate long, for example; on the miscellaneous and useless information
imparted; on a Bible teaching which has nothing to do with vital
religion. Dickens recognised that the education of all classes was
killing individuality, and not fostering moral or spiritual qualities.
He recognised that in the type of Charley Hexam it was encouraging a
desire for “respectability,” consisting, not in taking one’s coat off
to work, but in working in a black coat, which was killing the finer
feelings in which the poor often shew to the advantage of the rich. And
in Bradley Headstone Dickens points out, that all this smug education
was powerless to restrain the elemental ferocity of human nature in
the schoolmaster, who looked natural in Rogue Riderhood’s clothes,
and not himself in his decent black coat. There was latent in him all
the ferocity of a hardened criminal; and recent events are shewing how
powerless education is really to civilise the heart of man.
I have spoken of the need of a map of London to understand Dickens,
and I shall now take an extract from “Oliver Twist” to illustrate this
remark. Oliver has just met with John Dawkins, otherwise the Artful
Dodger, who offered to take him to a lodging. “It was nearly eleven
o’clock when they reached the turnpike at Islington. They crossed from
the Angel into St. John’s Road; struck down the small street which
terminates at Sadlers Wells Theatre; through Exmouth Street and Coppice
Row; down the little court by the side of the workhouse; across the
classic ground which once bore the name of Hockley in the Hole, thence
to little Saffron Hill the Great and so on to when they reached the
bottom of the hill, his (Oliver’s) conductor, catching him by the arm,
pushed open the door of a house near Field Lane.”
Now I almost defy anyone to find all these localities in a modern map.
You would have, in the first place, to start in the middle of London at
the Angel at Islington. Sadlers Wells is now in the midst of a network
of streets. It was only when I turned to Northcock’s history of London,
which has a good map dated 1772, that all was plain. Islington was a
village outside London; Sadlers Wells a suburban resort; Exmouth street
was not yet built;[30] but Coppice row, Hockley in the Hole, and of
course Saffron Hill and Field Lane, were all easily found.
In speaking of this great delineator of human character as now needing
explanation and comment, I have no doubt that he belongs to that small
group of writers whose works belong to all ages. We hear complaints in
England that young people do not read him; and the same were made when
we were young.
But with us, and I believe with you, his popularity from time to time
revives, and no educated man or woman can ignore him. The fact that
he has appealed so strongly to the imagination of America is alone a
proof of the universality of his genius; for, like Shakespeare and
the classics of all countries, his works are the property, not of one
people, but of the world. He is not perfect; we should not love him
so much if he were. He has faults of style, of arrangement, even of
taste. It is easy to criticise; but because of his very excellences,
his humour, his pathos, his wide sympathy, his hatred of injustice
and oppression, it seems almost presumption to endeavour to sing his
praises.
May I conclude with those prophetic words he puts into the mouth of
Martin Chuzzlewit on leaving your country, which he made his own by
denouncing its failings as unsparingly as he did those of his own
mother land, in the hope that both you and we, America and England,
would conquer them and become the common benefactors of humanity.
“‘I am thinking,’ said Mark, ‘that if I was a painter and was called
upon to paint the American Eagle, how should I do it?’
‘Paint it as like an Eagle as you could, I suppose.’
‘No,’ said Mark, ‘that wouldn’t do for me, sir. I should want to
draw it like a Bat for its shortsightedness, like a Bantam for its
bragging, like a Magpie for its honesty, like a Peacock for its
vanity, like an Ostrich for putting its head in the mud and thinking
nobody sees it.’
‘And like a Phœnix for its power of springing from the ashes of its
faults and vices and soaring up into the sky.’
‘Well, Mark, let us hope so.’”
APPENDIX TO LECTURE VI
To shew Dickens’ care in collecting his facts the following report of
a case relating to Yorkshire Schools is of interest. It was supplied
to the author by C. S. Kenny, Esq., Downing Professor of the Laws of
England, Cambridge.
CHAPTER II. THE RELEVANCY OF EVIDENCE
[_Evidence must be confined to the points in issue._]
BOLDRON _v._ WIDDOWS
WESTMINSTER N. P. SITTINGS. 1824.
1 CARRINGTON AND PAYNE 65.
This was an action for defamation. The declaration stated that the
plaintiff kept a school, and had divers scholars; and that the
defendant spoke of him in his business of a schoolmaster certain words
there set out. The words were variously laid in different counts;
but they were, in substance, that the scholars were ill fed, and
badly lodged, had had the itch, and were full of vermin. Some of the
counts laid the loss of certain scholars as special damage. Pleas--the
general issue; and justifications, that the whole of the words were
true.
For the plaintiff, several witnesses proved the speaking of the
words, and that the boys were boarded, educated, and clothed, by the
plaintiff, at £20 a year each, near Richmond in Yorkshire: and the
usher of the school was called to prove that the boys were well fed
and well lodged, and had no itch. In his cross-examination it appeared
that there were between eighty and ninety boys; that about seventy of
them had had a cutaneous disease; and that they all slept in three
rooms close to the roof, with no ceiling; and that there was a general
combing of the heads of the whole school every morning over a pewter
dish, and that the vermin combed out were thrown into the yard; no
boy was free from them. A piece of bread of a perfectly black hue was
shewn him: he did not think the bread in the school so black as that.
The witness having stated that he had himself been at the Appleby
grammar-school, the plaintiff’s counsel wished to ask him what was the
quality of the provisions used by the plaintiff’s school, compared
with those consumed by the Appleby grammar-school.
The defendant’s counsel objected to this.
ABBOTT, C.J. That cannot be asked; what is done at any particular
school is not evidence. You may shew the general treatment of boys at
schools, and shew that the plaintiff treated the boys here as well as
they could be treated for £20 a year each, for board, education, and
clothes.
One of the plaintiff’s scholars was then called to prove the
plaintiff’s good treatment of them.
In cross-examination, the defendant’s counsel wished to ask him
whether the plaintiff did not set the boys to plant potatoes in school
hours?
ABBOTT, C.J. I do not think you can ask this; the issue here being
whether the plaintiff’s scholars were ill fed, badly lodged, had the
itch, and had vermin. Nothing has been said as to their being badly
educated. Their education is not in question here.
_Gurney_, for the defendant, addressed the jury, and called witnesses
to prove the truth of the words.
Verdict for the plaintiff, damages £120.
FOOTNOTES: