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. {84} 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. {85}
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!"
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 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.