Chapter 5

Every utterance of the little Judge is in character, from his first directions "go on." His suspicious question, "what were you doing in the back room, ma'am?"--and on Serjeant Buzfuz's sudden pause for breath, when "the _silence_ awoke Mr. Justice Stareleigh, who immediately wrote down something, with a pen without any ink in it, and looked unusually profound, to impress his jury with the belief that he always thought most deeply with his eyes shut." Also when at the "on the jar" incident--he "looked doubtful, but said he'd make a note of it." So when Sam made one of his free and easy speeches, the Judge looked sternly at Sam for fully two minutes, but Sam's features were so perfectly calm that he said nothing. When Sam, too, made his witty _reposte_ to Buzfuz as to his "wision being limited," we are told that there was a great laugh--that even "the little Judge smiled:" a good touch, for he enjoyed, like other judges, seeing his learned brother get a fall--'tis human nature.

It must be said the impression of a listener, who had heard all this could have been anything but favourable to Mr. Pickwick. No doubt there was his paternally benevolent character to correct it: but even this might go against him as it would suggest a sort of hypocrisy. Even the firmest friends, in their surprise, do not pause to debate or reason; they are astonished and wonder exceedingly.

WINKLE'S EVIDENCE.

Skimpin may have been intended for Wilkin, a later Serjeant and well-known in the 'fifties, and whose style and manner is reproduced. We could not ask a better junior in a "touch and go" case. He was as ready to take advantage of any opening as was the late Lord Bowen, when he was junior in the Tichborne case.

[Picture: Mr. Skimpin]

On entering the Box, Mr. Winkle "bowed to the Judge," with considerable deference, a politeness quite thrown away. "Don't look at me sir," said the Judge sharply, "look at the Jury." This was ungracious, but judges generally don't relish any advances from witnesses or others.

When poor Winkle was accused by the Judge of giving his name as Daniel, he was told that "he had better be careful:" on which the ready Skimpin: "Now, Mr. Winkle attend to me if you please: and let me recommend you, for your own sake, to bear in mind his lordship's injunction to be careful." Thus by the agency of Judge and counsel witness was discredited at starting and of course flurried.

'I believe you are a particular friend of Pickwick, the defendant, are you not?

Winkle, eager to retrieve himself by being "careful" began--

'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.

But how good Skimpin and how ready--

"'Pray attend to me, Mr. Winkle, and _never mind your friends_,' with another expressive look at the jury; '_they must tell their stories without any previous consultation with you_, if none has yet taken place,' another expressive look. 'Now Sir, tell what you saw,' etc. '_Come_, _out with it_, _sir_, _we must_ have it sooner or later.'" The assumption here that the witness would keep back what he knew is adroit and very convincing.

A REVELATION.

But now we come to a very critical passage in Mr. Pickwick's case: one that really destroyed any chance that he had. It really settled the matter with the jury; and the worst was, the point was brought out through the inefficiency of his own counsel.

But let us hear the episode, and see how the foolish Phunky muddled it.

Mr. Phunky rose for the purpose of getting something important out of Mr. Winkle in cross-examination. Whether he did get anything important out of him, will immediately appear.

[Picture: Mr. Phunky]

'I believe, Mr. Winkle,' said Mr. Phunky, 'that Mr. Pickwick is not a young man?'

'Oh no,' replied Mr. Winkle, 'old enough to be my father.'

'You have told my learned friend that you have known Mr. Pickwick a long time. Had you ever any reason to suppose or believe that he 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; it was Mr. Winkle's fate to figure in both characters.

'I will even go further than this, Mr. Winkle,' continued Mr. Phunky, in a most smooth and complacent manner. 'Did you ever see any thing in Mr. Pickwick's manner and conduct towards the opposite sex to induce you to believe that he ever contemplated matrimony of late years, in any case?'

'Oh no; certainly not,' replied Mr. Winkle.

'Has his behaviour, when females have been in the case, always been that of a man, who having attained a pretty advanced period of life, content with his own occupations and amusements, treats them only as a father might his daughters?'

'Not the least doubt of it,' replied Mr. Winkle, in the fulness of his heart. 'That is--yes--oh yes--certainly.'

'You have never known anything in his behaviour towards Mrs. Bardell, or any other female, in the least degree suspicious?' said Mr. Phunky, preparing to sit down, for Serjeant Snubbin was winking at him.

'N--n--no,' replied Mr. Winkle, 'except on one trifling occasion, which, I have no doubt, might be easily explained.'

Now, if the unfortunate Mr. Phunky had sat down when Serjeant Snubbin winked at him, or if Serjeant Buzfuz had stopped this irregular cross-examination at the outset (which he knew better than to do, for observing Mr. Winkle's anxiety, and well knowing it would in all probability, lead to something serviceable to him), this unfortunate admission would not have been elicited. The moment the words fell from Mr. Winkle's lips, Mr. Phunky sat down, and Serjeant Snubbin rather hastily told him he might leave the box, which Mr. Winkle prepared to do with great readiness, when Serjeant Buzfuz stopped him.

'Stay, Mr. Winkle--stay,' said Serjeant Buzfuz, 'will your lordship have the goodness to ask him, what this one instance of suspicious behaviour towards females on the part of this gentlemen, who is old enough to be his father, was?'

'You hear what the learned counsel says, Sir,' observed the Judge, turning to the miserable and agonized Mr. Winkle. 'Describe the occasion to which you refer.'

'My lord,' said Mr. Winkle, trembling with anxiety, 'I--I'd rather not.'

And Winkle had to relate the whole Ipswich adventure of the doublebedded room and the spinster lady.

It is surprising that Dodson and Fogg did not ferret out all about Mr. Pickwick's adventure at the Great White Horse. Peter Magnus lived in town and must have heard of the coming case; these things _do_ somehow leak out, and he would have gladly volunteered the story, were it only to spite the man. But further, Dodson and Fogg must have made all sorts of enquiries into Mr. Pickwick's doings. Mrs. Bardell herself might have heard something. The story was certainly in the Ipswich papers, for there was the riot in the street, the appearance before the mayor, the exposure of "Captain FitzMarshall"--a notable business altogether. What a revelation in open court! Conceive Miss Witherfield called to depose to Mr. Pickwick's midnight invasion. Mr. Pickwick himself might have been called and put on the rack, this incident not concerning his breach of promise. And supposing that the ubiquitous Jingle had heard of this business and had gone to the solicitor's office to volunteer evidence, and most useful evidence it would have been--to wit that Mr. Pickwick had been caught in the garden of a young ladies' school and had alarmed the house by his attempts to gain admission in the small hours! Jingle of course, could not be permitted to testify to this, but he could put the firm on the track. Mr. Pickwick's reputation could hardly have survived these two revelations, and sweeping damages to the full amount would have been the certain result.

This extraordinary adventure of Mr. Pickwick's at the Great White Horse Inn, Ipswich, verifies Dodson's casual remark to him, that "he was either a very designing or a most unfortunate man," circumstances being so strong against him. As the story was brought out, in open court, owing to the joint indiscretion of Phunky and Winkle, it will be best, in justice to Mr. Pickwick, to give practically his account of the affair.

'Nobody sleeps in the other bed, of course,' said Mr. Pickwick.

'Oh no, sir.'

'Very good. Tell my servant to bring me up some hot water at half-past eight in the morning, and that I shall not want him any more to-night.'

'Yes, sir.'

And bidding Mr. Pickwick good-night, the chambermaid retired, and left him alone.

Mr. Pickwick sat himself down in a chair before the fire, and fell into a train of rambling meditations. First he thought of his friends, and wondered when they would join him; _then his mind reverted to Mrs. Martha Bardell_; and from that lady it wandered, by a natural process, to the dingy counting-house of Dodson and Fogg. From Dodson and Fogg's it flew off at tangent, to the very centre of the history of the queer client; and then it came back to the Great White Horse at Ipswich, with sufficient clearness to convince Mr. Pickwick that he was falling asleep: so he aroused himself, and began to undress, when he recollected he had left his watch on the table down stairs. So as it was pretty late now, and he was unwilling to ring his bell at that hour of the night, he slipped on his coat, of which he had just divested himself, and taking the japanned candlestick in his hand, walked quietly down stairs.

The more stairs Mr. Pickwick went down, the more stairs there seemed to be to descend, and again and again, when Mr. Pickwick got into some narrow passage, and began to congratulate himself on having gained the ground-floor, did another flight of stairs appear before his astonished eyes. At last he reached a stone hall, which he remembered to have seen when he entered the house. Passage after passage did he explore; room after room did he peep into; at length, just as he was on the point of giving up the search in despair, he opened the door of the identical room in which he had spent the evening, and beheld his missing property on the table.

Mr. Pickwick seized the watch in triumph, and proceeded to retrace his steps to his bed-chamber. If his progress downwards had been attended with difficulties and uncertainty, his journey back, was infinitely more perplexing. Rows of doors, garnished with boots of every shape, make, and size, branched off in every possible direction. A dozen times did he softly turn the handle of some bedroom door, which resembled his own, when a gruff cry from within of "Who the devil's that?" or "What do want here?" caused him to steal away on tiptoe, with a perfectly marvellous celerity. He was reduced to the verge of despair, when an open door attracted his attention. He peeped in--right at last. There were the two beds, whose situation he perfectly remembered, and the fire still burning. His candle, not a long one when he first received it, had flickered away in the drafts of air through which he had passed, and sunk into the socket, just as he had closed the door after him. 'No matter,' said Mr. Pickwick, 'I can undress myself just as well by the light of the fire.'

The bedsteads stood, one each side of the door; and on the inner side of each, was a little path, terminating in a rush-bottomed chair, just wide enough to admit of a person's getting into, or out of bed, on that side if he or she thought proper. Having carefully drawn the curtains of his bed on the outside, Mr. Pickwick sat down on the rush-bottomed chair, and leisurely divested himself of his shoes and gaiters. He then took off and folded up, his coat, waistcoat, and neck-cloth, and slowly drawing on his tasseled night-cap, secured it firmly on his head, by tying beneath his chin, the strings which he always had attached to that article of dress. It was at this moment that the absurdity of his recent bewilderment struck upon his mind; and throwing himself back in the rush-bottomed chair, Mr. Pickwick laughed to himself so heartily, that it would have been quite delightful to any man of well-constituted mind to have watched the smiles which expanded his amiable features, as they shone forth, from beneath the night-cap.

'It is the best idea,' said Mr. Pickwick to himself, smiling till he almost cracked the night-cap strings--'It is the best idea, my losing myself in this place, and wandering about those staircases, that I ever heard of. Droll, droll, very droll.' Here Mr. Pickwick smiled again, a broader smile than before, and was about to continue the process of undressing, in the best possible humour, when he was suddenly stopped by a most unexpected interruption; to wit, the entrance into the room of some person with a candle, who, after locking the door, advanced to the dressing table, and set down the light upon it.

The smile that played upon Mr. Pickwick's features, was instantaneously lost in a look of the most unbounded and wonder-stricken surprise. The person, whoever it was, had come so suddenly and with so little noise, that Mr. Pickwick had had no time to call out, or oppose their entrance. Who could it be? A robber? Some evil-minded person who had seen him come upstairs with a handsome watch in his hand, perhaps. What was he to do!

The only way in which Mr. Pickwick could catch a glimpse of his mysterious visitor with the least danger of being seen himself, was by creeping on to the bed, and peeping out from between the curtains on the opposite side. Keeping the curtains carefully closed with his hand, so that nothing more of him could be seen than his face and nightcap, and putting on his spectacles, he mustered up courage, and looked out.

Mr. Pickwick almost fainted with horror and dismay. Standing before the dressing glass, was a middle-aged lady in yellow curl-papers, busily engaged in brushing what ladies call their "back hair." However the unconscious middle-aged lady came into that room, it was quite clear that she contemplated remaining there for the night; for she had brought a rushlight and shade with her, which with praiseworthy precaution against fire, she had stationed in a basin on the floor, where it was glimmering away, like a gigantic lighthouse, in a particularly small piece of water.

'Bless my soul,' thought Mr. Pickwick, 'what a dreadful thing!'

'Hem!' said the lady; and in went Mr. Pickwick's head with automaton-like rapidity.