CHARGE AND VERDICT.
The regular formula is this. The judge begins to read his notes, andmakes "running comments" as he goes along. "We have first, gentlemen,the statement of Mrs. Cluppins, she tells you, &c. Of course she comesas the friend of the Plaintiff, and naturally takes a favourable view ofher case. If you are satisfied with her statement, it is for you,gentlemen, to consider what value you will attach to it. Then we come tothe question of damages. This is entirely a matter for you. You musttake into account the position in life of the Defendant, and what thePlaintiff has lost by his default. On the other hand they must bereasonable in amount. If you believe the promise has been clearlyestablished, you should give substantial though not excessive damages, ona scale sufficient to repay the Plaintiff for the wrong. On the otherhand--should it seem to you doubtful whether the promise had beenmade--you will give the Defendant the benefit of the doubt. These arequestions entirely for you--not for me. On the whole case, you will askyourselves, whether a promise such as would satisfy reasonable men, hasbeen supported by sufficient evidence. If so, Plaintiff is entitled todamages--on the other hand, if this is not proved to your satisfaction,you will find for the Defendant."
Mr. Justice Stareleigh, however, as we are told, then "summed up in hisold established and most approved form. He read as much of his notes ashe could decypher on so short a notice, and made running comments on theevidence as he went along. If Mrs. Bardell were right, it was perfectlyclear that Mr. Pickwick was wrong, and if they thought the evidence ofMrs. Cluppins worthy of credence, they would believe it, and if theydidn't, why they would'nt. If they were satisfied that a breach ofpromise had been committed, they would find for the Plaintiff, with suchdamages as they thought proper; and if, on the other hand, it appeared tothem that no promise of marriage had ever been given, they would find forthe Defendant, with no damages at all." Such was this luciddirection--which is really, not in the least, an exaggeration.
But I could fancy some acute judge of our time--such as Mr. Justice Dayor Mr. Justice Bigham--after trying this case, turning round in his seatto "charge" the jury. "Here, gentlemen," he would tell them, "we have itclaimed on one side that a promise of marriage was made--and broken; onthe other hand the Defendant denies having ever given such a promise.The question you will have to deal with is: What was this promise, andwhen was it given? In other words, _when_ did the Defendant propose tothe lady. On the part of the Plaintiff, this was said to have been doneat the interview in Goswell Street, and two friends of thePlaintiff--Mrs. Cluppins, I think"--turning over his notes--"yes,Cluppins, and Sanders both declare positively that they overheard thelanguage of the proposal. Further, Mr. Pickwick's friends are called, toprove that the lady was in his arms, fainting. It is extraordinary thatnot one of these three gentlemen should have deposed to any statements orhave offered explanations of the situation. One witness indeed says thathe heard the Defendant remonstrate with the Plaintiff, on her hystericalbehaviour, and ask her to consider that if any one should come in, whatwould be said. Now, this is not the language of an ardent suitor, whowould rather wish than otherwise, that such endearing familiaritiesshould continue: though I don't think you need seriously accept thereading the learned Counsel, Mr. Skimpin, put on the phrase used; on theother hand, the words 'my dear creature,' were distinctly heard.
"There is one little incident," the Judge might go on, "which I must notpass by, and which is not without its significance. A witness deposedthat the defendant was noted for his kindness to the Plaintiff's littleboy--that he was constantly giving him presents, and once was heard tosay to him, patting him on the head, '_how would you like to have anotherfather_?' Now, this addressed to a child of tender years does seem anodd sort of speech. Of course, it will be contended that the referencewas to the probability of his Mother marrying some one other than theDefendant: if that be the case, it seems to me rather an indelicate andreckless speech. And then it must be said, it seems inconsistent withthe amiable and benevolent character given to the Defendant to-day. Onthe other hand, if he were referring to _himself_ it will appear naturaland proper enough. And there is this to be added, that when the childhad reported the remark to his mother, which of course he did, she wouldmost reasonably begin to found hopes upon it. And then what follows,Gentlemen?--the Defendant is found holding this lady in his arms, andbecomes so demonstrative in his attentions that this very child comes toher rescue. I am inexperienced in these things--they may be innocent anddone with the purest intentions, or may not; but you, Gentlemen of theJury, are men of the world: and it is for you to put the properconstruction on them."
"You will have noted, Gentlemen, this curious feature of the case. Noneof the witnesses were in the room when the imputed proposal was made, yetall, Cluppins, Weller, and the Defendant's three friends, _heard_ whatthe Defendant said. This suggests that he must have been very pressing,if not agitated. One of the witnesses, Winkle, I think, yes, Winkle,actually deposes to hearing the words, 'My dear creature! Composeyourself' and the like. He added he was afraid someone might come in; avery reasonable fear, Gentlemen, and well grounded: for several persons_did_ come in and it would seem with awkward results for the Defendant.But, Gentlemen, I confess that what most of all weighs with me in thiscase is the remarkable avowal wrung from a reluctant witness, of theDefendant's being surprised at midnight in a lady's bed-chamber, andbeing taken, after a serious riot, before the Magistrates. This came onme, as I saw it did on you all, as a surprise. True, it does not bear onthe question of a promise or of the breach. But still it seems a matterwhich you cannot wholly shut out from your consideration. It startled meas it did you, to find a sort of travelling philanthropist, as theDefendant Pickwick holds himself out to be, on whose mildly benevolentfeatures nature seems to have stamped rectitude and high principle,living a life of hypocrisy, taking part in midnight invasions anddaylight riots. It is one of his own friends who tells us this sadstory: and it is for you to consider whether the Plaintiff was here alsoin pursuit of yet another disreputable game, holding out marriage as thebait: I seem to speak strongly, but I feel it would be impossible towithdraw this from your consideration.
"You may reasonably ask yourselves of what Pickwick was afraid--or whydid he dread the presence of witnesses? Was he simply beguiling thelady, as he attempted to beguile that lady at Ipswich, without 'meaningbusiness,' as the phrase runs. I must say the Plaintiff had ratherreasonable grounds for assuming that the Defendant _did_ mean business.But all this is for you, Gentlemen, not for me.
"Then we have the man Weller's statement--a sort of humorous stageservant, not unamusing--and of course entirely devoted to his master'sinterest. I don't think you need attach any importance to what he saidof the solicitors for the Plaintiff. When I was at the Bar, Gentlemen,attornies did much worse things than this."
The jury consulted for only a few minutes. Perhaps, however, they wereonly discussing the amount of damages. They were certainlymoderate--laid at 1500 pounds--though had Dodson and Fogg's adviceprevailed, it should have been double. This only, by the way, is furtherproof of the amiable Mrs. Bardell's moderation and secret _tendre_ forher genial lodger. Considering that Mr. Pickwick was 'a gentleman,' andfurther a gentleman of means, and that Mrs. Bardell was but an humblelodging-house keeper, the sum seems hardly commensurate. Dodson and Foggno doubt expected 1,000 pounds.
An anxious quarter of an hour elapsed; the jury came back; the judge was fetched in. Mr. Pickwick put on his spectacles, and gazed at the foreman with an agitated countenance and a quickly beating heart.
'Gentlemen,' said the individual in black, 'are you all agreed upon your verdict?'
'We are,' replied the foreman.
'Do you find for the plaintiff, gentlemen, or for the defendant?'
'For the plaintiff.'
'With what damages, gentlemen?'
'Seven hundred and fifty pounds.'
Mr. Pickwick took off his spectacl
es, carefully wiped the glasses, folded them into their case, and put them in his pocket; then having drawn on his gloves with great nicety, and stared at the foreman all the while, he mechanically followed Mr. Perker and the blue bag out of court.
They stopped in a side room while Perker paid the court fees; and here, Mr. Pickwick was joined by his friends. Here, too, he encountered Messrs. Dodson and Fogg, rubbing their hands with every token of outward satisfaction.
'Well, gentlemen,' said Mr. Pickwick.
'Well, sir,' said Dodson: for self and partner.
'You imagine you'll get your costs, don't you, gentlemen?' said Mr. Pickwick.
Fogg said they thought it rather probable. Dodson smiled, and said they'd try.
'You may try, and try, and try again, Messrs. Dodson and Fogg,' said Mr. Pickwick vehemently, 'but not one farthing of costs or damages do you ever get from me, if I spend the rest of my existence in a debtor's prison.'
'Ha, ha!' laughed Dodson. 'You will think better of that, before next term, Mr. Pickwick.'
'He, he, he! We'll soon see about that Mr. Pickwick,' grinned Mr. Fogg.
Speechless with indignation, Mr. Pickwick allowed himself to be led by his solicitor and friends to the door, and there assisted into a hackney-coach, which had been fetched for the purpose, by the ever watchful Sam Weller.
Sam had put up the steps; and was preparing to jump upon the box, when he felt himself gently touched on the shoulder; and looking round, his father stood before him. The old gentleman's countenance wore a mournful expression, as he shook his head gravely, and said, in warning accents:
'I know'd what 'ud come 'o this here mode 'o doin' bisness. Oh Sammy, Sammy, vy worn't there a alleybi!'
We may wonder that the laborious Chamber Counsel Serjeant Snubbin did notadvise "moving for a new trial." The verdict was clearly a wrong one--nosufficient evidence had been furnished either of a promise, or a breach.The full court would no doubt have granted the motion, and this wouldhave led to Mr. Pickwick's release, for the astute Dodson and Fogg musthave recognised their poor chances, and perhaps have required "securityfor costs," which their client could not have given. However, the ideadid not occur to anybody.
Since the law was changed both plaintiff and defendant may be examined insuch cases as these. What a different complexion this would have put onthe suit. The whole case would have tumbled to pieces like a pack ofcards. For Mr. Pickwick "put into the box" would have clearly shown thatall that had been thus misconstrued, was his proposal for engaging avalet, which was to have been that very morning. He would have relatedthe words of the dialogue, and the Jury would have seen at once how themistake arose. On the other hand, he would have been exposed to a severerating cross examination by the learned Serjeant--fortified by Winkle'smost damaging slip about the White Horse incident--who would have forcedout of him all the incidents. We can almost hear the Serjeant subjectthe Defendant to the torture.
"This fellow of yours, Sir, was he recommended to you by a friend?"
"No--not at all."
"By a Registry Office?"
"Certainly not--nothing of the kind."
"Nothing of the kind? I suppose too low a class of place for you, eh?Come Sir!"
"I never said such a thing."
"Nor thought it, I suppose? Come, Sir, no beating about the bush. Inplain terms, did you get him from a low Public House in the Boro'?"
Mr. Pickwick started up.
"Never!"
"Do you deny it?"
"I never knew that the White Hart was a low Public-House," said thewitness indignantly.
"Never mind what you know, Sir. Did you or did you not get him fromthere?" thundered the Serjeant.
"Of course I did."
"Of course you did. Then what's the use of all this juggling. It doesyou no good with My Lord and the Jury. I tell you plainly, Mr. Pickwick,we mean to have all out of you. Now Sir, was this man of yours anexperienced valet?"
"Certainly not."
"He had, of course, some training in his profession in other families?"
"Not that I know of."
"Not that you know of. Do you dare to persist in that, Sir?"
"Why not?"
"Don't ask _me_ questions, Sir, I'm asking _you_. Do you deny, Sir, thatthe man was neither more nor less than a common Boots in the yard of aPublic House, wearing an old tattered hat and jacket--very different fromthe suit in which you have rigged him up here to-day?"
Mr. Pickwick was astonished and silent. He was suffering. He had neverdreamed of this view.
"Why," he said, "I suppose--"
"We want none of your supposes, Sir, answer yes or no."
"Well he certainly was such as you describe."
A flutter ran round the court.
"And this creature of yours, you would impose on the Jury as a trainedman servant. You may go down Sir."
Bardell v. Pickwick Page 13