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.)