Bardell v Pickwick E-Book

Percy Fitzgerald

• Herausgeber: Hesperus Press Ltd.
• Kategorie: Gesellschafts- und Liebesromane
• Sprache: Englisch
• Veröffentlichungsjahr: 2012

Seitenzahl: 174

Beschreibung

When Samuel Pickwick uttered soothing words to Mrs Bardell in her time of need, he never dreamt that he would find himself in a court of law, in a breach of promise suit. As a parade of his friends did their best as witnesses to extricate him from the situation, not always successfully, the other side produced evidence that was manipulated by skilful lawyers to make a cast iron case for Pickwick's guilt. In this lawyerly but witty book, Fitzgerald treats Bardell v Pickwick as if it were a real case, analyses the tactics of the various lawyers and scrutinises the points of law Dickens made his fictional lawyers present.

Leseprobe

Bardell v. Pickwick

Percy Fitzgerald

CONTENTS

Title Page

Foreword by Baroness Hale

Introduction

The Cause of Action

The Trial

The Judge

The Court

Serjeant Buzfuz

The Opening Speech

The Incriminating Letters

The Plaintiff’s Case

Winkle’s Evidence

A Revelation

The Defendant’s Case

Charge and Verdict

Plea for ‘Dodson and Fogg’

The Cognovit

Release from the Fleet

Biographical note

Copyright

FOREWORD

Dickens was no stranger to my county of Richmondshire in the North Riding of Yorkshire. In 1839 he stayed in Greta Bridge, on the road from Scotch Corner to Carlisle, on his way to visit Do the boys Hall in nearby Bowes. His visit is commemorated in the Dickens Bar of the Morritt Arms – a favourite watering hole then and now – decorated in 1948 by Jack Gilroy with lively murals as a favour to the then owner, an ancestor of the current Chancellor of the High Court, Sir Andrew Morritt. Prominent among the Dickensian figures adorning the walls is Mr Pickwick, dancing a jig without a care in the world, as if the case of Bardell v. Pickwick had never happened.

The story of Mr Pickwick and Mrs Bardell is but a small part of the Posthumous Papers of the Pickwick Club – indeed the relevant portions of the book are quoted verbatim in Percy Fitzgerald’s entertaining commentary on the case, which was tried before a judge and jury at the City of London Guildhall on, of course, April Fool’s Day in 1828.

To twenty-first-century eyes everything about the case looks like ancient history. The common law action for breach of promise of marriage was abolished by the Law Reform (Miscellaneous Provisions) Act 1970 (which also abolished the common law action for enticing away a spouse and the husband’s action for damages against an adulterer) – as Stephen Cretney comments in Family Law in the Twentieth Century, ‘Family life was thus further distanced from the world of commercial bargains and property deals’. The right to demand trial by jury in a civil action was mostly abolished by the Administration of Justice (Miscellaneous Provisions) Act 1933, but it was kept for breach of promise of marriage actions until they too were abolished. The inability of the parties to give evidence in support of their own case was abolished by the Evidence Act 1851, probably the most important change between the date of the fictional trial in 1828 and the first publication of Fitzgerald’s book in 1902. Imprisonment for debt was largely abolished by the Debtors Act 1869, but this would scarcely have helped Mr Pickwick, who refused to satisfy the judgment debt owing to Mrs Bardell as a matter of principle even though he could afford to do so. He would have had to wait until the Administration of Justice Act 1970 – if other forces had not intervened to save the situation. The Fleet Prison was pulled down in 1846 but the Marshalsea survived until the 1870s.

So, ancient history though Bardell v. Pickwick might seem, it is within living memory that a modern Mr Pickwick might be sued for breach of promise of marriage, tried by a jury, and sent to prison for up to six weeks if he pig-headedly failed to pay the damages awarded. Peter Bromley’s textbook on Family Law, first published in 1957, had a whole chapter devoted to Contracts to Marry, which were very much like any other contract. The sexism of an earlier age creeps in: ‘Although it is customary for a man not to sue the woman for breach of promise, there is clearly no difference in law whether the promisee be the man or the woman and either may sue the other’. So it was thought that marriage was more valuable to a woman than to a man, or possibly that only a cad would keep a woman to her word, or possibly that most women were not worth suing for damages (damages being the only remedy, as equity obviously would not grant specific performance to force them to marry). Unlike an ordinary contract, however, Mr Pickwick would have had a defence if he could have shown that Mrs Bardell was suffering from some moral, physical or mental infirmity rendering her unfit for marriage which he had discovered after the engagement: ‘… the plaintiff’s unchastity (at least if she be a woman), impotence or insanity would be a good defence, but not that she does not have the income that the defendant thought that she had…’; the sexual double standard survived until 1970.

But Mr Pickwick’s defence was not that Mrs Bardell was unfit for marriage – she plainly was not – but that he had never offered to marry her at all. And this is the most curious feature of Fitzgerald’s account. The modern contract lawyer would want to know precisely what words or conduct were alleged to constitute the proposal in question and consider whether, objectively understood in their context, they amounted to a contractual offer. The principal witnesses to the crucial conversation were Mr Pickwick and Mrs Bardell, who could not give evidence at the trial in 1828. No doubt this is why Fitzgerald does not quote the passage from the book, which relates that conversation, until he gets to the trial (see pp. 62–5). Instead he begins (see pp. 9–10) with the dramatic scene which confronted the Pickwickians that unlucky morning in July 1827, when they surprised Mr Pickwick with his landlady fainting in his arms in a hysterical condition. But what had led up to it?

The modern lawyer would not wait until the trial and the evidence of what Mrs Cluppins might have heard through the door which was ‘on the jar’. The modern lawyer would start with the parties’ own evidence of their conversation. So we shall give you now the author’s account of the conversation on which the action is based. Mrs Cluppins was probably not a reliable historian or a neutral observer, but we must assume that Dickens has told us the truth about the conversation. Picture to yourselves, therefore, the scene described in Chapter XII: ‘Descriptive of a Very Important Proceeding on the Part of Mr Pickwick; no less an epoch in his life, than in this History’.

To anyone acquainted with… the domestic economy of the establishment, and conversant with the admirable regulation of Mr Pickwick’s mind, his appearance and behaviour on the morning… would have been most mysterious and unaccountable. He paced the room to and fro with hurried steps, popped his head out of the window at intervals of about three minutes each, constantly referred to his watch, and exhibited many other manifestations of impatience very unusual with him. It was evident that something of great importance was in contemplation, but what that something was, not even Mrs Bardell herself had been enabled to discover.

‘Mrs Bardell,’ said Mr Pickwick, at last, as that amiable female approached the termination of a prolonged dusting of the apartment.

‘Sir,’ said Mrs Bardell.

‘Your little boy is a very long time gone.’

‘Why it’s a good long way to the Borough, sir,’ remonstrated Mrs Bardell.

‘Ah,’ said Mr Pickwick, ‘very true; so it is.’

Mr Pickwick relapsed into silence, and Mrs Bardell resumed her dusting.

‘Mrs Bardell,’ said Mr Pickwick, at the expiration of a few minutes.

‘Sir,’ said Mrs Bardell again.

‘Do you think it a much greater expense to keep two people, than to keep one?’

‘La, Mr Pickwick,’ said Mrs Bardell, colouring up to the very border of her cap, as she fancied she observed a species of matrimonial twinkle in the eyes of her lodger; ‘La, Mr Pickwick, what a question!’

‘Well, but do you?’ inquired Mr Pickwick.

‘That depends –’ said Mrs Bardell, approaching the duster very near to Mr Pickwick’s elbow, which was planted on the table – ‘that depends a good deal upon the person, you know, Mr Pickwick; and whether it’s a saving and careful person, sir.’

‘That’s very true,’ said Mr Pickwick, ‘but the person I have in my eye (here he looked very hard at Mrs Bardell) I think possesses those qualities; and has, moreover, a considerable knowledge of the world, and a great deal of sharpness, Mrs Bardell, which may be of material use to me.’

‘La, Mr Pickwick,’ said Mrs Bardell; the crimson rising to her cap-border again.

‘I do,’ said Mr Pickwick, growing energetic, as was his wont in speaking of a subject which interested him, ‘I do, indeed; and to tell you the truth, Mrs Bardell, I have made up my mind.’

‘Dear me, sir,’ exclaimed Mrs Bardell.

‘You’ll think it very strange now,’ said the amiable Mr Pickwick with a good-humoured glance at his companion, ‘that I never consulted you about this matter, and never even mentioned it, till I sent your little boy out this morning – eh?’

Mrs Bardell could only reply by a look. She had long worshipped Mr Pickwick at a distance, but here she was, all at once, raised to a pinnacle to which her wildest and most extravagant hopes had never dared to aspire. Mr Pickwick was going to propose – a deliberate plan, too – sent her little boy to the Borough, to get him out of the way – how thoughtful – how considerate!

‘Well,’ said Mr Pickwick, ‘what do you think?’

‘Oh, Mr Pickwick,’ said Mrs Bardell, trembling with agitation, ‘you’re very kind, sir.’

‘It’ll save you a good deal of trouble, won’t it,’ said Mr Pickwick.

‘Oh, I never thought anything of the trouble, sir,’ replied Mrs Bardell; ‘and, of course, I should take more trouble to please you than ever; but it is so kind of you, Mr Pickwick, to have so much consideration for my loneliness.’

‘Ah, to be sure,’ said Mr Pickwick; ‘I never thought of that. When I am in town, you’ll always have somebody to sit with you. To be sure, so you will.’

‘I’m sure I ought to be a very happy woman,’ said Mrs Bardell.

‘And your little boy –’ said Mr Pickwick.

‘Bless his heart!’ interposed Mrs Bardell, with a maternal sob.

‘He, too, will have a companion,’ resumed Mr Pickwick, ‘a lively one, who’ll teach him, I’ll be bound, more tricks in a week than he would ever learn in a year.’ And Mr Pickwick smiled placidly.

‘Oh you dear –’ said Mrs Bardell.

Mr Pickwick started.

‘Oh you good, kind, playful dear,’ said Mrs Bardell; and without more ado, she rose from her chair, and flung her arms round Mr Pickwick’s neck, with a cataract of tears and a chorus of sobs.

‘Bless my soul,’ cried the astonished Mr Pickwick; – ‘Mrs Bardell my good woman – dear me, what a situation – pray consider –Mrs Bardell, don’t – if anybody should come –’

‘Oh, let them come,’ exclaimed Mrs Bardell, frantically; ‘I’ll never leave you – dear, kind, good, soul;’ and, with these words, Mrs Bardell clung the tighter.

‘Mercy upon me,’ said Mr Pickwick, struggling violently, ‘I hear somebody coming up the stairs. Don’t, don’t, there’s a good creature, don’t.’ But entreaty and remonstrance were alike unavailing: for Mrs Bardell had fainted in Pickwick’s arms; and before he could gain time to deposit her in a chair, Master Bardell entered the room, ushering in Mr Tupman, Mr Winkle, and Mr Snodgrass.

Suppose for a moment that the parties’ evidence does not materially differ (and there is always the unsatisfactory Mrs Cluppins in support). Members of the jury, what is your verdict? Subjectively, of course, as the reader knows, Mr Pickwick was thinking of hiring Sam Weller as his manservant. Objectively, however, would a neutral observer reasonably have understood him to have made an offer of marriage which Mrs Bardell had accepted before he hastened to correct the impression he had given? As Fitzgerald comments, ‘It must be said the impression of a listener, who has heard all this, could have been anything but favourable to Mr Pickwick’ (p. 65).

Boz himself comments in his Preface that Mr Pickwick becomes more good and more sensible as the book proceeds – and this is not surprising, because in real life ‘the peculiarities and oddities of a man who has anything whimsical about him, generally impress us first, and it is not until we are better acquainted with him that we usually begin to look below these superficial traits, and to know the better part of him’. Judge for yourselves, dear readers, from Percy Fitzgerald’s entertaining and instructive account of what happened next, whether Mr Pickwick did indeed become more sensible in his dealings in the action of Bardell v. Pickwick…

– Baroness Hale of Richmond, 2012 Justice of the Supreme Court of the United Kingdom

Bardell v. Pickwick

The trial for breach of promise of marriage held at the Guildhall sittings, on 1st April 1828, before Mr Justice Stareleigh and a Special Jury of the city of London.

INTRODUCTION

There are few things more familiar or more interesting to the public than this cause célèbre. It is better known than many a real case: for everyone knows the judge, his name and remarks – also the counsel – (notably Serjeant Buzfuz) – the witnesses, and what they said – and of course all about the plaintiff and the famous defendant. It was tried over seventy years ago at ‘the Guildhall Settens’, and was described by Boz some sixty-three years ago. Yet every detail seems fresh – and as fresh as ever. It is astonishing that a purely technical sketch like this, whose humours might be relished only by such specialists as barristers and attorneys, who would understand the jokes levelled at the profession, should be so well understood of the people. All see the point of the legal satire. It is quite a prodigy. Boz had the art, in an extraordinary degree, of thus vividly commending trade processes, professional allusions, and methods to outsiders, and making them humorous and intelligible. Witness Jackson, when he came to ‘serve’ Mr Pickwick and friend with the subpoenas. It is a dry, business-like process, but how racy Boz made it. A joke sparkles in every line.

This trial for breach has been debated over and over again among lawyers and barristers, some contending that ‘there was no evidence at all to go to the jury’ as to a promise; others insisting on misdirection, and that there was evidence that ought not to have been admitted. The law has since been changed, and by later Acts both Mrs Bardell and Mr Pickwick would have been allowed to tell their stories and to have been cross-examined. Mrs Bardell was almost justified in suspecting that Mr Pickwick was offering his hand when he was merely speaking of engaging a manservant. But then the whole would have been spoiled. Under the present systems, this would all have come out. Mr Pickwick, when it came to his turn, would have explained what his proceedings meant. It is a most perfect and vivid satire on the hackneyed methods of the lawyers when dealing with the witnesses. Nothing can be more natural or more graphic. It is maintained to something between the level of comedy and farce: nor is there the least exaggeration. It applies now as it did then, though not to the same topics. A hectoring, bullying counsel, threatening and cruel, would interfere with the pleasant tone of the play; but it is all the same conveyed. There is a likeness to Bardell v. Pickwick in another burlesque case, tried in our day, the well-known ‘Trial by Jury’, the joint work of Mr Gilbert and the late Sir Arthur Sullivan. The general tone of both is the same and in the modern work there is a general Pickwickian flavour. Sir Arthur’s music, too, is highly ‘Pickwickian’, and the joint effort of the two humorists is infinitely diverting. The judge is something of a Stareleigh.

The truth is that Boz, the engenderer of these facetiae, apart from his literary gift, was one of the most brilliant, capable young fellows of his generation. Whatever he did, he did in the best way, and in the brightest way. But his power of observation and of seeing what might be termed the humorous quiddity of anything, was extraordinary.

To put absurdity in a proper view for satirical purposes, it has to be generalised from a number of instances, familiar to all. Those legal oddities, the public has seen over and over again, but they had passed unnoticed till this clever observer set to work and noted them. As I say, it requires a deep knowledge of the law to set these things in a grotesque light.

Boz had been a sort of general reporter on the Chronicle: he ‘took’ everything. He had reported at police courts as well as at the law courts. His quick and bright intelligence seized the humours here, as it did those of the street. He later reported in the gallery, and was dispatched across the country in post-chaises to ‘take’ eminent political speakers – always winning the hearty commendation of his employers for his zeal and energy.

THE CAUSE OF ACTION

Mr Pickwick was a well-to-do bachelor, who lived by himself near the city, where he had been in trade. His age was about fifty, as can be accurately calculated by his remark on the sliding at Manor Farm. ‘I used to do so on the gutters when I was a boy… but I haven’t done such a thing these thirty years.’ This was said in 1828. He resided in Goswell Street – now Goswell Road – with a widow lady, whose husband had been in the Excise. He cannot have paid more than a pound a week, if so much, for two rooms on the first floor. There was no servant, and the hardworking landlady, Mrs Martha Bardell, performed all the duties of her household single-handed. As her counsel later described it – and see all she did for him! – ‘She waited on him, attended to his comforts, cooked his meals, looked out his linen for the washer-woman when it went abroad, darned, aired, and prepared it for his wear when it came home, and, in short, enjoyed his fullest trust and confidence.’ This Serjeant Buzfuz, duly ‘instructed’. Not only was there Mr Pickwick, but there was another lodger, and her little boy Tommy. The worthy woman took care of and looked after all three. This might incline us to take a favourable view of her. She regarded her lodger with feelings of veneration and attachment, of which proof is found in her later talk with Sam. To him she said that ‘he had always behaved himself like a perfect gentleman’ and then added this significant speech: ‘It’s a terrible thing to be dragged in this way before the public, but I now see that it’s the only thing that I ought to do.’ That is, she seems to have held out as long as possible, believing that her amiable lodger would act as a perfect gentleman and like himself. But when she found that even an action had no terrors for him, she saw that there was nothing else to do but to let the action go on.

And what was Mrs Bardell like? One would imagine her a plump, buxom widow, ‘fat, fair and forty’, with her dear little boy, ‘the only pledge of her deceased exciseman’, or say something between thirty and forty years old. Fortunately, two portraits have come down to us of the lady – one somewhat of this pattern and depicting her, as she flung herself on Mr Pickwick on the disastrous morning: the other – a swollen, dreadful thing, which must be a caricature of the literal presentment. Here we see a woman of gross, enormous proportions seated on the front bench and apparently weighing some thirteen or fourteen stone, with a vast coarse face. This is surely an unfair presentment of the worthy landlady; besides, Dodson and Fogg were too astute practitioners to imperil their chances by exhibiting to his Lordship and the Jury so ill-favoured a plaintiff. Indeed, we are told that they arranged a rather theatrical exhibition in this scene, with a view of creating an impression in their favour.

Many find pleasure in reading the Booksellers Catalogues, and a vast number are showered on me in the course of the year. But on one of these I always gaze with special interest, and even tenderness. For it comes from one Herbert, who lives in Goswell Road. Only think, Goswell Road – erst Goswell Street, where just seventy years ago Mrs Bardell was letting lodgings and Mr Pickwick himself was lodging: and on the cover I read, a further attraction, ‘Goswell Road, near “The Angel”’, whence the ‘stage’ which took the party to the ‘Spaniard’ at Hampstead started! Sometimes I am drawn to the shop, crowded with books; but one’s thoughts stray away from the books into speculations as to which