'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 than
that about "What the soldier said." It is perfect, so complete, that it
is always understood by unprofessional readers. The lawyer feels at once
that 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 two
impressive legal tomes of some 1800 pages. The great and laborious John
Pitt Taylor could not have been wholly a legal dry-as-dust: for the man
who could have gravely entered Bardell _v._ Pickwick in his notes and
have quoted a passage must have had a share of humour.
Most people know that it is a strict principle that "hearsay evidence" of
an utterance will not be accepted in lieu of that of the person to whom
the remark was made. Neither can we think it out of probability that
such an objection may have been made by some over punctilious judge
wishing to restrain Sam's exuberance. A Scotch judge once quoted in
court a passage from _The Antiquary_ in which he said the true view of an
intricate point was given; but then Scott was a lawyer.
It is requisite, says Mr. John Pitt Taylor (p. 500) speaking of "hearsay
evidence" that whatever facts a witness speaks, he should be confined to
those lying within his own knowledge. For every witness should give his
testimony on oath, and should be subject to cross examination. But
testimony from the relation of third persons cannot be subject to these
tests. This rule of exclusion has been recognised as a fundamental
principle of the law of evidence ever since the time of Charles II. To
this he adds a note, with all due gravity: "The rule excluding heresay
evidence, or rather the mode in which that rule is frequently
misunderstood 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 of
thousand cases quoted, and he has even found a place for it in his index
of places. He then goes on to quote the passage, just as he would quote
from Barnwall and Adolphus.
How sagacious--full of legal point--is Boz's comment on Winkle's
incoherent evidence. Phunky asked him whether he had any reason to
suppose that Pickwick was about to be married. "'Oh no; certainly not,'
replied Mr. Winkle with so much eagerness, that Mr. Phunky ought to have
got him out of the box with all possible dispatch. Lawyers hold out that
there are two kinds of particularly bad witnesses: a reluctant witness,
and a too willing witness;" and most true it is. Both commit themselves
in each case, but in different ways. The matter of the former, and the
manner of the latter do the mischief. The ideal witness affects
indifference, and is as impartial as the record of a phonograph. It is
wonderful 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 he
evidently devised on the spur of the moment, shows him to be a very
ready, 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 cross
examiners, and is used when the witness cannot be got to accept the words
or admit that they were used. It of course means little or nothing: but
its 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 his
recollection.
How well described, too, and satirised, is yet another "common form" of
the cross examiner, to wit the "How often, Sir?" question. Winkle, when
asked as to his knowledge of Mrs. Bardell, replied that "he did not know
her, but that he had seen her." (I recall making this very answer to Boz
when 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 I
have 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 her 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 and
over again from the young fledgeling Counsel to the old "hardbitten" and
experienced K.C.?
A young legal tyro might find profit as well as entertainment in
carefully studying others of Mr. Skimpin's adroit methods in cross
examination. They are in a manner typical of those in favour with the
more experienced members of the profession, allowing, of course, for a
little humorous exaggeration. He will note also that Boz shows clearly
how effective was the result of the processes. Here are a few useful
recipes.
_How to make a witness appear as though he wished to withhold the
truth_._ How to highly discredit a witness by an opening question_._
How to insinuate inaccuracy_._ How to suggest that the witness is
evading_._ How to deal with a statement of a particular number of
instances_._ How to take advantage of a witness' glances_._ How to
suggest another imputed meaning to a witness' statement and confuse him
into accepting it_.
Another happy and familiar form is Skimpin's interrogation of Winkle as
to 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 movement
in a witness; he thinks it corroborates him somehow.