Dodson and Fogg, Costs and the Fleet

Chapter 47: Pickwick pays. Perker explains the position. Mrs Bardell can be released only if the costs are paid, and only Pickwick can pay them. He has spent months in prison rather than give Dodson and Fogg a farthing, and he now pays both his own costs and hers to get a woman out of gaol. His benevolence, in Dickens's own chapter title, "proves stronger than his obstinacy".

Chapter 53: the exit of Dodson and Fogg. They appear once more, are told exactly what Pickwick thinks of them, and are shown out. They have lost nothing.

Chapter 57: the club is dissolved. Pickwick retires, Sam marries, and the novel ends away from the law altogether.

The cognovit, explained properly

What it is. A cognovit, in full cognovit actionem, is a written acknowledgment by a defendant that the plaintiff's claim is good, on which judgment can be entered without any trial. Signing one hands the other side a judgment in advance.

What Mrs Bardell signed. A cognovit in favour of her own attorneys, for their costs. She describes it as a matter of form, which is what she was told it was.

What it meant. Once she signed, Dodson and Fogg did not need to sue her or prove anything. They could execute on the cognovit, and they did, taking her to the Fleet.

Why it is the sharpest point in the novel. Consider the outcome. The plaintiff won her action and was awarded seven hundred and fifty pounds. She ends in prison. The defendant lost and refused to pay, and he ends up paying, but voluntarily and to free her. The only people who gain anything are the attorneys, and their client's imprisonment is simply a step in collecting their bill.

Imprisonment for debt, in four facts a law student should know

One. It was civil, not criminal. No offence had been committed. The creditor's remedy was to take the debtor's body.

Two. It had no fixed term. Release depended on payment, on the creditor's consent, or on discharge under the insolvency provisions. That is why the Chancery prisoner in chapter 44 has been inside for twenty years.

Three. The prisoner paid his own way. Food, a room, and comforts were bought. The poor lived on the common side on charity, so the prison reproduced the inequality that had put people there.

Four. Dickens was writing from his own family's experience. His father was imprisoned for debt in the Marshalsea when Dickens was twelve, and the boy was sent to work in a blacking factory. Imprisonment for debt in England was substantially abolished by the Debtors Act 1869, more than thirty years after this novel, and the campaign against it is one of the things the book belongs to.

Dodson and Fogg: a character sketch of a firm

They are always correct. They never threaten, never lie in a way that can be pinned on them, and take care to have witnesses when Pickwick loses his temper in their office.

They take the risk and keep the profit. The case is run on speculation. If it fails they charge nothing; if it succeeds they take their costs, and if the defendant will not pay they take them from their own client.

They stage the case. The umbrella and the pattens handed in at court, the melancholy faces, the child placed in front of the judge. Perker, a lawyer himself, admires the workmanship: "excellent ideas of effect, my dear Sir, excellent."

They are never punished. No court censures them, no rule catches them, and they leave the novel exactly as they entered it. That is Dickens's most serious charge: not that the law was broken, but that none of this required breaking it.

Two questions this material answers

"Critically examine the trial between Bardell and Pickwick." The trial chapter answers most of it, but the strongest conclusion comes from here: the proceedings ended in a verdict for the plaintiff and the plaintiff went to prison, so the outcome tells you who the litigation was actually for.

"Discuss Dickens's satire of the legal profession." Use three things: the attorneys who work on speculation and enforce a cognovit against their own client, the advocate who reads a note about chops as a love letter, and the prison that holds people until somebody pays.

What beginners get wrong

They think Pickwick is imprisoned for the damages. He is arrested and imprisoned because he refuses to pay, and it is the costs that are enforced. Refusing to pay a judgment debt was what put a person in the Fleet.

They think he gives in. He does not. He pays to release Mrs Bardell, and Dickens is explicit that benevolence, not obstinacy, decides it.

They forget Sam. Sam Weller has himself arrested on a debt arranged with his own father so that he can stay with his master, which is the novel's best single act of loyalty.

They leave out the Chancery prisoner. He is the answer to anyone who says the Fleet chapters are comic.

A worked answer

Question. "Explain how Mrs Bardell came to be imprisoned, although she won her case."

A model answer in five steps. First, after the verdict she signed a cognovit in favour of her own attorneys, Dodson and Fogg, for the amount of their costs. Second, a cognovit is a written acknowledgment that the other side's claim is good, on which judgment may be entered without any trial, so signing one hands over a judgment in advance; she was told it was a matter of form and says so herself. Third, Pickwick refused to pay a farthing of damages or costs, so the attorneys could recover nothing from him. Fourth, they therefore executed on the cognovit against their own client, and a clerk named Jackson took her by a trick, in a coach she believed was going on an outing, to the Fleet Prison. Fifth, she could be released only if the costs were paid, and the only person able to pay them was the defendant, so Pickwick, who had spent months in prison rather than give them a penny, paid both bills to get her out.

The point to close on. Nothing in that sequence required any rule to be broken, and that is Dickens's charge.

Quick revision

Chapter 40 arrest by Namby and the sponging house; 41 chummage and the whistling shop; 42 the common side; 43 Sam has himself arrested by arrangement with his father; 44 the Chancery prisoner dies after twenty years; 45 Pickwick pays for others' release; 46 Mrs Bardell taken to the Fleet on a cognovit for her own attorneys' costs; 47 Pickwick pays both bills and both go free; 53 Dodson and Fogg exit unpunished; 57 the club is dissolved.

Cognovit: a written confession of judgment allowing execution without a trial. Mrs Bardell signed one "just as a matter of form".

Debtors' prison: civil, indefinite, self-financed, abolished substantially by the Debtors Act 1869.

Test yourself

1. Why is Pickwick imprisoned? Not as a punishment for losing the action. He refuses to pay the damages and costs, and a judgment creditor could take a debtor's body, so he is arrested and committed to the Fleet.

2. What is a cognovit and what did Mrs Bardell's do to her? A written acknowledgment that the other party's claim is good, on which judgment may be entered without trial. She gave one to her own attorneys for their costs, and they executed on it and had her imprisoned in the Fleet.

3. Why does Pickwick finally pay? Because Mrs Bardell cannot be released unless the costs are paid, and he is the only person who can pay them. He gives up his principle in order to get a woman out of prison.

4. What does the Chancery prisoner add to the book? He shows that the system's cruelty is not confined to comedy: a man may spend twenty years inside on a suit that never ends, and die there. It is the point at which Dickens stops being funny.

5. In one sentence, what is Dickens's charge against the profession here? That everything which ruins the parties was done within the rules: the attorneys acted lawfully at every step, and the result was that the winner of the case went to prison and only the lawyers gained.