Чарльз Диккенс
Bardell v. Pickwick
Mr. Pickwick was astonished and silent. He was suffering. He had never dreamed 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 trained man servant. You may go down Sir.”
PLEA FOR “DODSON AND FOGG.”
This famous firm of city attornies has become a bye-word in legal history – being considered the most notorious of practitioners for sharp, underhand, scheming practices. Boz was always vehement against the abuses of the law, but his generous ardour sometimes led him to exaggerated and wholesale statements that were scarcely well founded. This is found in some degree even in the sweeping attacks in Bleak House. But he was so vivid, so persuasive, in his pictures, that there was no appeal.
The unreasoning fury of Mr. Pickwick is specially shown in the case of Jingle, whom he pursued with an animosity that was almost frantic. One would think it was some public enemy he was hunting down for the public good. Poor Jingle had really done nothing so monstrous, after all. He had “chaffed” Dr. Slammer, “run off” with the spinster aunt – nothing so uncommon in those days – had been consigned to the Fleet for non-payment of his debts, and there showed penitence and other signs of a good heart. His one serious offence was passing himself off as a naval officer, and under an assumed name. But he had crossed Mr. Pickwick – had ridiculed him – had contemptuously sent a message to “Tuppy.” When he dared to play a practical joke on his persecutor, his infamy passed beyond bounds. Here was the key to Mr. Pickwick’s nature – any lack of homage or respect was an offence against morality. So with Dodson and Fogg. He had settled in his mind that a condescending visit to these gentlemen, with a little explanation and remonstrance would completely disarm them. His fury on his advances being rejected was extraordinary.
Here Boz shows, as he ever does, his profound and most logical treatment of human character. He never goes astray, being guided by a happy and true instinct. Mr. Pickwick had grown to be the most inflated of men. Flattered and followed – submitted to with the greatest deference – ordering people about – doing what he pleased – he could not stand the slightest opposition. No one was to contradict – no one to question even his stockings – speckled or others. Even when he was clearly wrong, it was an affront to hint at it. He had much in common with that great man, Mr. Gladstone, who was the political Pickwick of his time. He was overbearing and arrogant and unrestrained, and I am afraid vindictive. Dodson and Fogg were associated with the great mortification of his life. He could not forgive them – the very sight of them roused his hatred, and the having to pay them ransom stung him to fury. All which is most natural and yet unexpected.
The popular and genial Sir Frank Lockwood was almost the first to put forward a plea in abatement of prejudice for the firm. He showed that they were not much below the usual type of middle-class solicitors. What they did was in the ordinary course. With Mr. Pickwick they were most forbearing, and even indulgent. There was one rather doubtful passage, but even here he offers extenuation. This was their treatment of poor Ramsey, which, at first sight, seems very bad indeed.
‘There was such a game with Fogg here, this mornin’,’ said the man in the brown coat, ‘while Jack was upstairs sorting the papers, and you two were gone to the stamp-office. Fogg was down here opening the letters, when that chap we issued the writ against at Camberwell, you know, came in – what’s his name again?’
‘Ramsey,’ said the clerk who had spoken to Mr. Pickwick.
‘Ah, Ramsey – a precious seedy-looking customer. ‘Well, sir,’ says old Fogg, looking at him very fierce – you know his way – ‘well, Sir, have you come to settle?’ ‘Yes, I have, Sir,’ said Ramsey, putting his hand in his pocket, and bringing out the money, ‘the debt two-pound ten, and the costs three pound five, and here it is, sir;’ and he sighed like bricks, as he lugged out the money, done up in a bit of blotting paper. Old Fogg looked first at the money, and then at him, and then he coughed in his rum way, so that I knew something was coming. ‘You don’t know there’s a declaration filed, which increases the costs materially, I suppose?’ said Fogg. ‘You don’t say that Sir,’ said Ramsey, starting back; ‘the time was only out last night, Sir.’ ‘I do say it, though,’ said Fogg, ‘my clerk’s just gone to file it. Hasn’t Mr. Jackson gone to file that declaration in Bullman and Ramsey, Mr. Wicks?’ Of course I said yes, and then Fogg coughed again, and looked at Ramsey. ‘My God!’ said Ramsey; ‘and here have I nearly driven myself mad, scraping this money together, and all to no purpose.’ ‘None at all,’ said Fogg, coolly; ‘so you had better go back and scrape some more together, and bring it here in time.’ ‘I can’t get it, by God,’ said Ramsey, striking the desk with his fist. ‘Don’t bully me, Sir,’ said Fogg, getting into a passion on purpose. ‘I am not bullying you, Sir,’ said Ramsey. ‘You are,’ said Fogg; ‘get out, Sir, get out of this office, Sir, and come back, Sir, when you know how to behave yourself.’ Well, Ramsey tried to speak, but Fogg wouldn’t let him, so he put the money in his pocket, and sneaked out. The door was scarcely shut, when old Fogg turned round to me, with a sweet smile on his face, and drew the declaration out of his coat pocket. ‘Here, Wicks,’ says Fogg, ‘take a cab, and go down to the Temple as quick as you can, and file that. The costs are quite safe, for he’s a steady man with a large family, at a salary of five-and-twenty shillings a week, and if he gives us a warrant of attorney, as he must in the end, I know his employers will see it paid; so we may as well get all we can out of him, Mr. Wicks; it’s a Christian act to do it, Mr. Wicks, for with his large family and small income, he’ll be all the better for a good lesson against getting into debt, – won’t he, Mr. Wicks, won’t he?’ – and he smiled so goodnaturedly as he went away, that it was delightful to see him. ‘He is a capital man of business,’ said Wicks, in a tone of the deepest admiration, ‘capital, isn’t he?’
The other three cordially subscribed to this opinion, and the anecdote afforded the most unlimited satisfaction.
‘Nice men these here, Sir,’ whispered Mr. Weller to his master; ‘wery nice notion of fun they has, Sir.’
Sir F. Lockwood, by the way, offers one of the most amusing proofs conceivable, of the convincing power of “Pickwick,” which is constantly taking us out of the world of fiction, into that of the daily living life. He speaks of the cruel trick played upon the unfortunate Ramsey, who came to pay his bill of costs, and was told that these were out of date, had been swelled by subsequent proceedings. An affidavit had been sworn – which, after he left the house, Wicks, the clerk, was sent off to swear – Then, Sir Frank, adds: “After all, this is merely given as the statement of Wicks—on whose testimony not much reliance can be placed.” As though Wicks were some living witness, “erect upon two legs,” whom he had been examining in Court!
It must, however, be recollected that this was an exparte story. Wicks, as Sir F. Lockwood hints, may have coloured it up, to amuse his brethren. The truth is these poor helpless debtors, who fall into the hands of legal “sharks” and money-lenders, have their tricks also. They will often “do” those they employ if they can. And further, let this be considered. Before Ramsey paid his visit the affidavit had been prepared, and was actually in Fogg’s pocket. Such affidavit would not be allowed for in the costs unless necessary to the case, so that Fogg’s statement that it had been filed was very near the truth. Perker himself was playing the same game of hide and seek with another unfortunate – one Watty – who was trying to see him, and learn something about his case, but was always put off with the excuse or falsehood, that Perker was out, though he was within. But then, “Perker was an honourable man.”
Boz lets us know, through Sam, how the case reached Dodson and Fogg. He speaks of “the kind generous people o’ the perfession ’as sets their clerks to work to find out little disputes among their neighbours and acquaintances as wants settlin’ by means of law suits.” This system, however, cannot be checked, and “the speculative attorney” even in our time still flourishes.
It was really not a question whether Mr. Pickwick would “indict them for a conspiracy,” because they acted as solicitors against him, but whether they would bring an action against him on their own account. All through, Mr. Pickwick’s behaviour to them had been outrageous. He chose to assume, quite gratuitously that it was they – not Mrs. Bardell – who got up the case; that they had worked on her for their own nefarious ends. Nothing could be more absurd. The landlady was eager enough to protect her own interests – her female friends worked on her, and the loss of so valuable a lodger, which the incident must have entailed, inflamed her more. We can see from Sam’s interview with her that she was at last, though at first reluctant, determined to have her rights. But Mr. Pickwick acting on this assumption addressed the firm, from the first to the last in the most scurrilous language. He called them “robbers, swindlers, – a brace of pettifogging scoundrels!” Shocking and ungentlemanly terms, and what is worse, actionable. Yet the pair received this abuse with infinite good temper and restraint, merely securing a witness who should listen, and threatening the speaker with legal penalties.
And why did they not take this course? Well, they had to suspend proceedings until Mrs. Bardell’s action was settled, when on receiving their costs they were desirous to part in good humour. But Mr. Pickwick was so furious at being invited to shake hands with them, that he again broke out with coarse abuse, “Robbers!” “Robbers!” calling it after them down the stairs. Why did they not take action on this? Perhaps they were afraid; as Mr. Pickwick had shewn himself such a doughty and unyielding fighter – going to prison rather than pay. Perhaps they thought he might get the better of them again.
We have very little evidence as to what was the scale of fees in use in these days. They were of course far lower than they are now, after allowances even for the lower cost of living. To-day, the fees to Counsel alone would have absorbed considerably more than Dodson and Fogg’s whole bill of costs. A nice point is, could Mr. Pickwick’s irregular interview with Serjeant Snubbin be considered something in the way of a consultation? Here were Counsel, Solicitor and Client: the Serjeant gave up a portion of his valuable time and, further, the junior counsel was summoned specially from his chambers to supply his “advice and opinion.” Mr. Pickwick ought surely to have to pay for his whim. And the bill of costs that these “sharks” of attornies sent in! It was astonishingly moderate. For writ, service of subpœnas, hunting up evidence, consultation, fees to counsel, fees for the day, retainers, etc., – the sum of £120 was all that was asked.
Imagine Messrs. Lewis and Lewis sending in such a demand at the end of a trial which it had taken them nearly a year to get ready. In our time it could hardly be done under £1,000. Perker, by the way, told his client that on payment of the costs both of Plaintiff and Defendent, into the hands of “these sharks” he would get his release. With much indulgence – the attornies – allowed him to leave the prison on his bare undertaking to pay. And it is not clear why he should pay his own costs to them, and not to Perker. And they were not paid for sometime. Mr. Pickwick’s own costs must have been small. He had no witnesses. Perker would not have made a hand of him, and I fancy he would have got off for ninety pounds, or a hundred pounds. There was, however, the fees of the Special Jury, so he would have to pay, say, £220.
THE COGNOVIT
Perker, it has been shown, was not a very brilliant solicitor, and his views on the trial were somewhat cloudy. When he was urging his client to leave the Fleet he threw out some equally shadowy and ill-informed notions as to what might be done in the way of punishing the nefarious solicitors, Dodson and Fogg, “those Freeman’s Court Sharks.”
His great charge was that they had got a cognovit, or undertaking to pay their costs out of Mrs. Bardell – their own client! Mr. Pickwick refused to pay them – why should not she? The poor woman had “blabbed” to Sam, a careless and natural assurance of theirs, that they would be content to get them from Mr. Pickwick – a thing many a firm would do. But Perker here sees a regular conspiracy. “I cannot undertake to say whether the wording of the cognovit, the nature of the ostensible consideration and the proof we can get together about the whole conduct of the suit, will be sufficient to justify an indictment for conspiracy.”
It is impossible to understand this bit of legal jargon. “The wording of the cognovit” – one could speculate on that without seeing it. (2) “The nature of the ostensible consideration” was not far to seek – it being work and labour done for the Plaintiff. And again, supposing they had promised her to get them solely from Mr. Pickwick – Sam’s revelation of this, in open court, and its reception with laughter, showed what was thought of it. So which of the two courses were they to adopt? (3) And “the proof we may get together about the whole conduct of the suit.” This “whole conduct” was perfectly regular. So the Judge thought – so did the jury. The case was proved by Pickwick’s own friends. As we know, however, the firm took no steps to obtain satisfaction, but there cannot be the slightest doubt that they would have “recovered damages.” We doubt if Mr. Pickwick would have gone to the Fleet for the second time rather than pay.
Perker’s suspicions as to the Cognovit obtained by Dodson and Fogg were shrewd, and certain enough, though he could not have seen the document. The suspicions were well warranted by the state of the Law, which became an instrument in the hands of grasping attorneys. By it the client was made to sign an acknowledgment, and offering no defence to a supposed action, – say for costs – brought against him, Judgment was then marked.
This offered a great temptation to the unscrupulous. Mrs. Bardell, no doubt, signed with light heart, not knowing what she was doing, and being told that it was merely a matter of form. Various enactments attempted to protect the client – one being passed some four or five years before the trial Bardell v. Pickwick, requiring the Cognovit to be regularly filed within twenty-one days; more than ten years later it was required, that the client’s signing such a thing should have no force in Law, unless he was represented by another solicitor.
The matter, as we know, was compromised with Dodson and Fogg, so there was no need to scrutinize the Cognovit. No doubt Perker was enabled to put pressure on the firm by hinting at such proceedings.
The damages, £750, were certainly moderate, and would not have been reduced by the Court on an application to set them aside as “excessive.” The good woman was quite at her ease, being no doubt certain that Mr. Pickwick, at last, must give in. She could even enjoy the society of her friends and make the celebrated junketting to the “Spaniards.” The firm took another view and grew tired of waiting; or they were sagacious enough to see that the arrest of their client was about the best method of putting pressure on Mr. Pickwick. In this connection, it may be noted that Jackson’s over zeal in the transaction might have led to an action against his employers; for he arrested not only Mrs. Bardell, but her friends, Mrs. Sanders and Mrs. Cluppins. The prison gates were actually shut on them. “Safe and sound,” said the Bailiff. “Here we are at last,” said Jackson, “all right and tight.”
True, Mrs. Bardell put under her hand in her appealing letter to Mr. Pickwick, that “this business was from the very first fomented and encouraged and brought about by these men,” but this is not much; for the view only occurs to her when her operations had completely failed and recoiled on her own head with such disastrous result. The firm’s business was to persuade her that she had a good case, and the Jury’s verdict proved that she had. Had Mr. Pickwick given in and paid, she would have had no scruples. One cannot, at the same time, but admire the ingenuity of the author, in bringing such a Nemesis on her. Dodson and Fogg, we are told, “continue in business from which they realise a large income, and in which they are universally considered among the sharpest of the sharp.”
At the last interview, at Perker’s, when the costs were paid, one might have expected Mr. Pickwick to behave with a certain disdainful dignity. He was beaten and had paid over the stakes, and could afford to treat his enemy with contempt. Not so. The partners held out the olive branch by alluding to the way they had passed by his unmannerly attacks on them. “I beg to assure you, sir, I bear you no ill will or vindictive feeling for sentiments you thought proper to express of us in our office,” and the other partner said, “I hope you don’t think quite so ill of us, etc.” This was rather gentlemanly and becoming. One offered his hand. But Mr. Pickwick broke out in a perfect fury. They had assumed a tone of forgiveness which was “an excess of impudence.” He had been “the victim of their plots and conspiracies.” They had imprisoned and robbed him. It was “insolent familiarity.” At last he said, “You are a well-matched pair of mean, rascally, pettifogging robbers.” This sentence he repeated three times, and the words “Robbers” he shouted after them many times over the stairs.
Sharping attornies! Why, a real sharping firm would have forced from their client advances of fee, “cash out of pocket,” have made her give a Bill of Sale on her lease and goods, and have fairly stripped her of everything before the case began. Of the damages – had they got them – she would have seen but little.
The Cognovit that was extracted from Mrs. Bardell was an acknowledgement, as we have seen, which entitled them to enter up judgment just as if a trial had taken place. In the Oxford great Dictionary, it reads quaintly to find Mrs. Bardell’s cognovit quoted as an illustration of the legal meaning.
The Turnkey, on her arrest, had told Sam that she had been brought to the Fleet, “on a Cognovit for costs,” Sam imparted this news to Job Trotter, and sent him off, hot foot, to Perker in Montague Place. This outcast, was able to tell him, “it seems they got a Cognovit out of her for the amount of the costs, directly after the trial!”
Boz, on this occasion, gives us a happy glimpse of Solicitor life.
Mr. Perker had a dinner party that day, which was certified by the lights in the drawing-room windows, the sound of an improved grand piano, and an improveable cabinet voice issuing therefrom; and a rather overpowering smell of meat which prevaded the steps and entry. In fact, a couple of very good country agencies happening to come up to town at the same time, an agreeable little party had been got together to meet them, comprising Mr. Snicks the Life Office Secretary, Mr. Prosee the eminent counsel, three solicitors, one commissioner of bankrupts, a special pleader from the Temple, a small-eyed peremptory young gentleman, his pupil, who had written a lively book about the law of demises, with a vast quantity of marginal notes and references; and several other eminent and distinguished personages. From this society little Mr. Perker detached himself on his clerk being announced in a whisper; and repairing to the dining-room, there found Mr. Lowten and Job Trotter looking very dim and shadowy by the light of a kitchen candle, which the gentleman who condescended to appear in plush shorts and cottons for a quarterly stipend, had, with a becoming contempt for the clerk and all things appertaining to ‘the office,’ placed upon the table.
‘Now Lowten,’ said little Mr. Perker, shutting the door, ‘what’s the matter? No important letter come in a parcel, is there?’
Do we not seem to be present? We can never pass by Russell Square without calling up the scene. Note, too, the components of that legal dinner. Poor Sir F. Lockwood used to declare that he relished “Mr. Prosee, the eminent counsel,” more than any one of Boz’s legal circle. Yet these five words are all we know of him. But Sir Frank had imagination, and like some of us could read between the lines, or rather, between the words. Here was a prominent member of the Bar – was he K.C.? a triton among the minnows – therefore heading the table, listened to with reverence as he told of the judges, possibly of “old Stareleigh’s” last exhibition of petulance – “with it’s high time for him to go, etc.” But if he had not silk, why did not Perker retain him instead of the incapable Phunky, whom he did not ask on this occasion. “I gave the chap a good chance, but he destroyed my whole case!” “Catch me letting him put his legs under my mahogany.” Among the guests was that “small-eyed, peremptory young gentleman” – the special pleader’s pupil. What a capital sketch has Boz given of him. “He had written a lively book about the law of demises, with a vast quantity of marginal notes and references.” He had come with his teacher, who was no doubt highly deferental to Mr. Prosee, but enough, the peremptory young gentleman may have partly “tackled” the great man on some point of practice. The good country agencies must have gone home delighted with their evening.
But Mr. Prosee may be brought into somewhat closer communication with the case. At Perker’s dinner the gentlemen had gone up to the drawing room, when Perker was called down to hear the news of Mrs. Bardell’s arrest. Mr. Prosee was left expatiating to the circle on some beautiful “point,” and when Perker returned how likely that he should tell of his extraordinary client who had preferred to go to prison rather than pay the costs of a suit, “and here,” he would go on, “is the drollest sequel you ever heard, &c.”
“An odd unusual thing,” Mr. Prosee would say. “Plaintiff and Defendant, both in jail together! I never heard the like.” There would be much laughter at the novel situation. Thus the cognovit would come up and Mr. Prosee gravely say, “nothing will be done till an Act of Parliament is passed. The client should be protected by a fresh solicitor.” On which the young author of the treatise on Demises would have something to say in his best fashion; for the cognovit might be taken to be a sort of demise. “I doubt Mr. Prosee, if your suggestion would work. As I take it, sir, etc.”
