A VERY COMMON CASE: OR A GREAT DEAL OF LAW, AND VERY LITTLE JUSTICE-
-HEADS AND TAILS, WITH THE DANGERS OF EACH.
I was early with Noah on the following morning. The poor fellow,
when it is remembered that he was about to be tried for a capital
offence, in a foreign country, under novel institutions, and before
a jury of a different species, manifested a surprising degree of
fortitude. Still, the love of life was strong within him, as was
apparent by the way in which he opened the discourse.
"Did you observe how the wind was this morning, Sir John, as you
came in?" the straightforward sealer inquired, with a peculiar
interest.
"It is a pleasant gale from the southward."
"Right off shore! If one knew where all them blackguards of rear
admirals and post captains were to be found, I don't think, Sir,
John, that you would care much about paying those fifty thousand
promises?"
"My recognizances?--Not in the least, my dear friend, were it not
for our honor. It would scarcely be creditable for the Walrus to
sail, however, leaving an unsettled account of her captain's behind
us. What would they say at Stunin'tun--what would your own consort
think of an act so unmanly?"
"Why, at Stunin'tun, we think him the smartest who gets the easiest
out of any difficulty; and I don't well see why Miss Poke should
know it--or, if she did, why she should think the worse of her
husband, for saving his life."
"Away with these unworthy thoughts, and brace yourself to meet the
trial. We shall, at least, get some insight into the Leaphigh
jurisprudence. Come, I see you are already dressed for the occasion;
let us be as prompt as duellists."
Noah made up his mind to submit with dignity; although he lingered
in the great square, in order to study the clouds, in a way to show
he might have settled the whole affair with the fore-topsail, had he
known where to find his crew. Fortunately for the reputations of all
concerned, however, he did not; and, discarding everything like
apprehension from his countenance, the sturdy mariner entered the
Old Bailey with the tread of a man and the firmness of innocence. I
ought to have said sooner, that we had received notice early in the
morning, that the proceedings had been taken from before the pages,
on appeal, and that a new venue had been laid in the High Criminal
Court of Leaphigh.
Brigadier Downright met us at the door; where also a dozen grave,
greasy-looking counsellors gathered about us, in a way to show that
they were ready to volunteer in behalf of the stranger, on receiving
no more than the customary fee. But I had determined to defend Noah
myself (the court consenting) for I had forebodings that our safety
would depend more on an appeal to the rights of hospitality, than on
any legal defence it was in our power to offer. As the brigadier
kindly volunteered to aid me for nothing, I thought proper not to
refuse his services, however.
I pass over the appearance of the court, the empanelling of the
jury, and the arraignment; for, in matters of mere legal forms,
there is no great difference between civilized countries, all of
them wearing the same semblance of justice. The first indictment,
for unhappily there were two, charged Noah with having committed an
assault, with malice prepense, on the king's dignity, with "sticks,
daggers, muskets, blunderbusses, air-guns, and other unlawful
weapons, more especially with the tongue, in that he had accused his
majesty, face to face, with having a memory, etc., etc." The other
indictment, repeating the formula of the first, charged the honest
sealer with feloniously accusing her majesty the queen, "in defiance
of the law, to the injury of good morals and the peace of society,
with having no memory, etc., etc." To both these charges the plea of
"not guilty," was entered as fast as possible, in behalf of our
client.
I ought to have said before, that both Brigadier Downright and
myself had applied to be admitted of counsel for the accused, under
an ancient law of Leaphigh, as next of kin; I as a fellow human
being, and the brigadier by adoption.
The preliminary forms observed, the attorney-general was about to go
into proof, in behalf of the crown, when my brother Downright arose
and said that he intended to save the precious time of the court, by
admitting the facts; and that it was intended to rest the defence
altogether on the law of the case. He presumed the jury were the
judges of the law as well as of the facts, according to the rule of
Leaplow, and that "he and his brother Goldencalf were quite prepared
to show that the law was altogether with us, in this affair." The
court received the admission, and the facts were submitted to the
jury, by consent, as proven; although the chief-justice took
occasion to remark, Longbeard dissenting, that, while the jury were
certainly judges of the law, in one sense, yet there was another
sense in which they were not judges of the law. The dissent of Baron
Longbeard went to maintain that while the jury were the judges of
the law in the "another sense" mentioned, they were not judges of
the law in the "one sense" named. This difficulty disposed of, Mr.
Attorney-General arose and opened for the crown.
I soon found that we had one of a very comprehensive and
philosophical turn of mind against us, in the advocate of the other
side. He commenced his argument by a vigorous and lucid sketch of
the condition of the world previously to the subdivisions of its
different inhabitants into nations, and tribes, and clans, while in
the human or chrysalis condition. From this statement, he deduced
the regular gradations by which men become separated into
communities, and subjected to the laws of civilization, or what is
called society. Having proceeded thus far, he touched lightly on the
different phases that the institutions of men had presented, and
descended gradually and consecutively to the fundamental principles
of the social compact, as they were known to exist among monikins.
After a few general observations that properly belonged to the
subject, he came to speak of those portions of the elementary
principles of society that are connected with the rights of the
sovereign. These he divided into the rights of the king's
prerogative, the rights of the king's person, and the rights of the
king's conscience. Here he again generalized a little, and in a very
happy manner; so well, indeed, as to leave all his hearers in doubt
as to what he would next be at; when, by a fierce logical swoop, he
descended suddenly on the last of the king's rights, as the one that
was most connected with the subject.
He triumphantly showed that the branch of the royal immunities that
was chiefly affected by the offence of the prisoner at the bar, was
very clearly connected with the rights of the king's conscience.
"The attributes of royalty," observed the sagacious advocate, "are
not to be estimated in the same manner as the attributes of the
subject. In the sacred person of the king are centred many, if not
most, of the interesting privileges of monikinism. That royal
personage, in apolitical sense, can do no wrong: official
infallibility is the consequence. Such a being has no occasion for
the ordinary faculties of the monikin condition. Of what use, for
instance, is a judgment, or a conscience, to a functionary who can
do no wrong? The law, in order to relieve one on whose shoulders was
imposed the burden of the state, had consequently placed the latter
especially in the keeping of another. His majesty's first-cousin is
the keeper of his conscience, as is known throughout the realm of
Leaphigh. A memory is the faculty of the least account to a
personage who has no conscience; and, while it is not contended that
the sovereign is relieved from the possession of his memory by any
positive statute law, or direct constitutional provision, it
follows, by unavoidable implication, and by all legitimate
construction, that, having no occasion to possess such a faculty, it
is the legal presumption he is altogether without it.
"That simplicity, lucidity and distinctness, my lords," continued
Mr. Attorney-General, "which are necessary to every well-ordered
mind, would be impaired, in the case of his majesty, were his
intellectual faculties unnecessarily crowded in this useless manner,
and the state would be the sufferer. My lords, the king reigns, but
he does not govern. This is a fundamental principle of the
constitution; nay, it is more--it is the palladium of our liberties!
My lords, it is an easy matter to reign in Leaphigh. It requires no
more than the rights of primogeniture, sufficient discretion to
understand the distinction between reigning and governing, and a
political moderation that is unlikely to derange the balance of the
state. But it is quite a different thing to govern. His majesty is
required to govern nothing, the slight interests just mentioned
excepted; no, not even himself. The case is far otherwise with his
first-cousin. This high functionary is charged with the important
trust of governing. It had been found, in the early ages of the
monarchy, that one conscience, or indeed one set of faculties
generally, scarcely sufficed for him whose duty it was both to reign
and to govern. We all know, my lords, how insufficient for our
personal objects are our own private faculties; how difficult we
find it to restrain even ourselves, assisted merely by our own
judgments, consciences, and memories; and in this fact do we
perceive the great importance of investing him who governs others,
with an additional set of these grave faculties. Under a due
impression of the exigency of such a state of things, the common
law--not statute law, my lords, which is apt to be tainted with the
imperfections of monikin reason in its isolated or individual state,
usually bearing the impress of the single cauda from which it
emanated--but the common law, the known receptacle of all the common
sense of the nation--in such a state of things, then, has the common
law long since decreed that his majesty's first-cousin should be the
keeper of his majesty's conscience; and, by necessary legal
implication, endowed with his majesty's judgment, his majesty's
reason, and finally, his majesty's memory.
"My lords, this is the legal presumption. It would, in addition, be
easy for me to show, in a thousand facts, that not only the
sovereign of Leaphigh, but most other sovereigns, are and ever have
been, destitute of the faculty of a memory. It might be said to be
incompatible with the royal condition to be possessed of this
obtrusive faculty. Were a prince endowed with a memory, he might
lose sight of his high estate, in the recollection that he was born,
and that he is destined, like another, to die; he might be troubled
with visions of the past; nay, the consciousness of his very dignity
might be unsettled and weakened by a vivid view of the origin of his
royal race. Promises, obligations, attachments, duties, principles,
and even debts, might interfere with the due discharge of his sacred
trusts, were the sovereign invested with a memory; and it has,
therefore, been decided, from time immemorial, that his majesty is
utterly without the properties of reason, judgment, and memory, as a
legitimate inference from his being destitute of a conscience."
Mr. Attorney-General now directed the attention of the court and
jury to a statute of the 3d of Firstborn 6th, by which it was
enacted that any person attributing to his majesty the possession of
any faculty, with felonious intent, that might endanger the
tranquillity of the state, should suffer decaudization, without
benefit of clergy. Here he rested the case on behalf of the crown.
There was a solemn pause, after the speaker had resumed his seat.
His argument, logic, and above all, his good sense and undeniable
law, made a very sensible impression; and I had occasion to observe
that Noah began to chew tobacco ravenously. After a decent interval,
however, Brigadier Downright--who, it would seem, in spite of his
military appellation, was neither more nor less than a practising
attorney and counsellor in the city of Bivouac, the commercial
capital of the Republic of Leaplow--arose, and claimed a right to be
heard in reply. The court now took it into its head to start the
objection, for the first time, that the advocate had not been duly
qualified to plead, or to argue, at their bar. My brother Downright
instantly referred their lordships to the law of adoption, and to
that provision of the criminal code which permitted the accused to
be heard by his next of kin.
"Prisoner at the bar," said the chief-justice, "you hear the
statement of counsel. Is it your desire to commit the management of
your defence to your next of kin?"
"To anybody, your honors, if the court please," returned Noah,
furiously masticating his beloved weed; "to anybody who will do it
well, my honorables, and do it cheap."
"And do you adopt, under the provisions of the statute in such cases
made and provided, Aaron Downright as one of your next of kin, and
if so, in what capacity?"
"I do--I do--my lords and your honors--I do, body and soul--if you
please, I adopt the brigadier as my father; and my fellow human
being and tried friend, Sir John Goldencalf, here, I adopt him as my
mother."
The court now formally assenting, the facts were entered of record,
and my brother Downright was requested to proceed with the defence.
The counsel for the prisoner, like Dandin, in Racine's comedy of Les
Plaideurs, was disposed to pass over the deluge, and to plunge
instantly into the core of his subject. He commenced with a review
of the royal prerogatives, and with a definition of the words "to
reign." Referring to the dictionary of the academy, he showed
triumphantly, that to reign, was no other than to "govern as a
sovereign"; while to govern, in the familiar signification, was no
more than to govern in the name of a prince, or as a deputy. Having
successfully established this point, he laid down the position, that
the greater might contain the less, but that the less could not
possibly contain the greater. That the right to reign, or to govern,
in the generic signification of the term, must include all the
lawful attributes of him who only governed, in the secondary
signification; and that, consequently, the king not only reigned,
but governed. He then proceeded to show that memory was
indispensable to him who governed, since, without one he could
neither recollect the laws, make a suitable disposition of rewards
and punishments, nor, in fact, do any other intelligent or necessary
act. Again, it was contended that by the law of the land the king's
conscience was in the keeping of his first-cousin. Now, in order
that the king's conscience should be in such keeping, it was clear
that he must HAVE a conscience, since a nonentity could not be in
keeping, or even put in commission; and, having a conscience, it
followed, ex necessitate rei, that he must have the attributes of a
conscience, of which memory formed one of the most essential
features. Conscience was defined to be "the faculty by which we
judge of the goodness or wickedness of our own actions. (See
Johnson's Dictionary, page 162, letter C. London edition. Rivington,
publisher.) Now, in what manner can one judge of the goodness or
wickedness of his acts, or of those of any other person, if he knows
nothing about them? and how can he know anything of the past, unless
endowed with the faculty of a memory?"
Again; it was a political corollary from the institutions of
Leaphigh, that the king could do no wrong--
"I beg your pardon, my brother Downright," interrupted the chief-
justice, "it is not a corollary, but a proposition--and one, too,
that is held to be demonstrated. It is the paramount law of the
land."
"I thank you, my lord," continued the brigadier, "as your lordship's
high authority makes my case so much the stronger. It is, then,
settled law, gentle monikins of the jury, that the sovereign of this
realm can do no wrong. It is also settled law--their lordships will
correct me, if I misstate--it is also settled law that the sovereign
is the fountain of honor, that he can make war and peace, that he
administers justice, sees the laws executed--"
"I beg your pardon, again, brother Downright," interrupted the
chief-justice. "This is not the law, but the prerogative. It is the
king's prerogative to be and do all this, but it is very far from
being law."
"Am I to understand, my lord, that the court makes a distinction
between that which is prerogative, and that which is law?"
"Beyond a doubt, brother Downright! If all that is prerogative was
also law, we could not get on an hour."
"Prerogative, if your lordship pleases, or prerogativa, is defined
to be 'an exclusive or peculiar privilege.' (Johnson. Letter P, page
139, fifth clause from bottom; edition as aforesaid. Speaking slow,
in order to enable Baron Longbeard to make his notes.) Now, an
exclusive privilege, I humbly urge, must supersede all enactments,
and--"
"Not at all, sir--not at all, sir--not at all, sir," put in my lord
chief-justice, dogmatically-looking out of the window at the clouds,
in a way to show that his mind was quite made up. "Not at all, good
sir. The king has his prerogatives, beyond a question; and they are
sacred--a part of the constitution. They are, moreover, exclusive
and peculiar, as stated by Johnson; but their exclusiveness and
peculiarity are not to be constructed in the vulgar acceptations. In
treating of the vast interests of a state, the mind must take a wide
range; and I hold, brother Longbeard, there is no principle more
settled than the fact, that prerogativa is one thing, and lex, or
the law, another." The baron bowed assent. "By exclusion, in this
case, is meant that the prerogative touches only his majesty. The
prerogative is exclusively his property, and he may do what he
pleases with it; but the law is made for the nation, and is
altogether a different matter. Again: by peculiar, is clearly meant
peculiarity, or that this case is analogous to no other, and must be
reasoned on by the aid of a peculiar logic. No, sir--the king can
make peace and war, it is true, under his prerogative; but then his
conscience is hard and fast in the keeping of another, who alone can
perform all legal acts."
"But, my lord, justice, though administered by others, is still
administered in the king's name."
"No doubt, in his name: this is a part of the peculiar privilege.
War is made in his majesty's name, too--so is peace. What is war? It
is the personal conflicts between bodies of men of different
nations. Does his majesty engage in these conflicts? Certainly not.
The war is maintained by taxes. Does his majesty pay them? No. Thus
we see that while the war is constitutionally the king's, it is
practically the people's. It follows, as a corollary--since you
quote corollaries, brother Downright--that there are two wars--or
the war of the prerogative, and the war of the fact. Now, the
prerogative is a constitutional principle--a very sacred one,
certainly--but a fact is a thing that comes home to every monikin's
fireside; and therefore the courts have decided, ever since the
reign of Timid II., or ever since they dared, that the prerogative
was one thing, and the law another."
My brother Downright seemed a good deal perplexed by the
distinctions of the court, and he concluded much sooner than he
otherwise would have done; summing up the whole of his arguments, by
showing, or attempting to show, that if the king had even these
peculiar privileges, and nothing else, he must be supposed to have a
memory.
The court now called upon the attorney-general to reply; but that
person appeared to think his case strong enough as it was, and the
matter, by agreement, was submitted to the jury, after a short
charge from the bench.
"You are not to suffer your intellects to be confused,
gentlemonikins, by the argument of the prisoner's counsel,"
concluded the chief-justice. "He has done his duty, and it remains
for you to be equally conscientious. You are, in this case, the
judges of the law and the fact; but it is a part of my functions to
inform you what they both are. By the law, the king is supposed to
have no faculties. The inference drawn by counsel, that, not being
capable of erring, the king must have the highest possible moral
attributes, and consequently a memory, is unsound. The constitution
says his majesty CAN do no wrong. This inability may proceed from a
variety of causes. If he can do NOTHING, for instance, he can do no
wrong. The constitution does not say that the sovereign WILL do no
wrong--but, that he CAN do no wrong. Now, gentlemonikins, when a
thing cannot be done, it becomes impossible; and it is, of course,
beyond the reach of argument. It is of no moment whether a person
has a memory, if he cannot use it, and, in such a case, the legal
presumption is, that he is without a memory; for, otherwise, nature,
who is ever wise and beneficent, would be throwing away her gifts.
"Gentlemonikins, I have already said you are the judges, in this
case, of both the law and the fact. The fate of the prisoner is in
your hands. God forbid that it should be, in any manner, influenced
by me; but this is an offence against the king's dignity, and the
security of the realm; the law is against the prisoner, the facts
are all against the prisoner, and I do not doubt that your verdict
will be the spontaneous decision of your own excellent judgments,
and of such a nature as will prevent the necessity of our ordering a
new trial."
The jurors put their tails together, and in less than a minute,
their foremonikin rendered a verdict of guilty. Noah sighed, and
took a fresh supply of tobacco.
The case of the queen was immediately opened by her majesty's
attorney-general; the prisoner having been previously arraigned, and
a plea entered of "not guilty."
The queen's advocate made a bitter attack on the animus of the
unfortunate prisoner. He described her majesty as a paragon of
excellences; as the depositary of all the monikin virtues, and the
model of her sex. "If she, who was so justly celebrated for the
gifts of charity, meekness, religion, justice, and submission to
feminine duties, had no memory," he asked leave to demand, in the
name of God, who had? "Without a memory, in what manner was this
illustrious personage to recall her duties to her royal consort, her
duties to her royal offspring, her duties to her royal self? Memory
was peculiarly a royal attribute; and without its possession no one
could properly be deemed of high and ancient lineage. Memory
referred to the past, and the consideration due to royalty was
scarcely ever a present consideration, but a consideration connected
with the past. We venerated the past. Time was divided into the
past, present, and future. The past was invariably a monarchical
interest--the present was claimed by republicans--the future
belonged to fate. If it were decided that the queen had no memory,
we should strike a blow at royalty. It was by memory, as connected
with the public archives, that the king derived his title to his
throne; it was by memory, which recalled the deeds of his ancestors,
that he became entitled to our most profound respect."
In this manner did the queen's attorney-general speak for about an
hour, when he gave way to the counsel for the prisoner. But, to my
great surprise, for I knew that this accusation was much the gravest
of the two, since the head of Noah would be the price of conviction,
my brother Downright, instead of making a very ingenious reply, as I
had fully anticipated, merely said a few words, in which he
expressed so firm a confidence in the acquittal of his client, as to
appear to think a further defence altogether unnecessary. He had no
sooner seated himself, than I expressed a strong dissatisfaction
with this course, and avowed an intention to make an effort in
behalf of my poor friend, myself.
"Keep silence, Sir John," whispered my brother Downright; "the
advocate who makes many unsuccessful applications gets to be
disrespected. I charge myself with the care of the lord high
admiral's interests; at the proper time they shall be duly attended
to."
Having the profoundest respect for the brigadier's legal
attainments, and no great confidence in my own, I was fain to
submit. In the meantime, the business of the court proceeded; and
the jury, having received a short charge from the bench, which was
quite as impartial as a positive injunction to convict could very
well be, again rendered the verdict of "guilty."
In Leaphigh, although it is deemed indecent to wear clothes, it is
also esteemed exceedingly decorous for certain high functionaries to
adorn their persons with suitable badges of their official rank. We
have already had an account of the hierarchy of tails, and a general
description of the mantle composed of tenth-hairs; but I had
forgotten to say that both my lord chief-justice and Baron Longbeard
had tail-cases made of the skins of deceased monikins, which gave
the appearance of greater development to their intellectual organs,
and most probably had some influence in the way of coddling their
brains, which required great care and attention on account of
incessant use. They now drew over these tail-cases a sort of box-
coat of a very bloodthirsty color, which, we were given to
understand, was a sign that they were in earnest, and about to
pronounce sentence; justice in Leaphigh being of singularly
bloodthirsty habits.
"Prisoner at the bar," the chief-justice began, in a voice of
reproof, "you have heard the decision of your peers. You have been
arraigned and tried on the heinous charge of having accused the
sovereign of this realm of being in possession of the faculty called
'a memory,' thereby endangering the peace of society, unsettling the
social relations, and setting a dangerous example of insubordination
and of contempt of the laws. Of this crime, after a singularly
patient and impartial hearing, you have been found guilty. The law
allows the court no discretion in the case. It is my duty to pass
sentence forthwith; and I now solemnly ask you, if you have anything
to say why sentence of decaudization should not be pronounced
against you. "Here the chief-justice took just time enough to gape,
and then proceeded--"You are right in throwing yourself altogether
on the mercy of the court, which better knows what is fittest for
you, than you can possibly know for yourself. You will be taken,
Noah Poke, or No. 1, sea-water-color, forthwith, to the centre of
the public square, between the hours of sunrise and sunset of this
day, where your cauda will be cut off; and after it has been divided
into four parts, a part will be exposed towards each of the cardinal
points of the compass; and the brush thereof being consumed by fire,
the ashes will be thrown into your face, and this without benefit of
clergy. And may the Lord have mercy on your soul!"
"Noah Poke, or No. 1, sea-water-color," put in Baron Longbeard,
without giving the culprit breathing-time, "you have been indicted,
tried, and found guilty of the enormous crime of charging the queen-
consort of this realm of being wanting in the ordinary, important,
and every-day faculty of a memory. Have you anything to say why
sentence should not be forthwith passed against you? No; I am sure
you are very right in throwing yourself altogether on the mercy of
the court, which is quite disposed to show you all that is in its
power, which happens, in this case, to be none at all. I need not
dwell on the gravity of your offence. If the law should allow that
the queen has no memory, other females might put in claims to the
same privilege, and society would become a chaos. Marriage vows,
duties, affections, and all our nearest and dearest interests would
be unhinged, and this pleasant state of being would degenerate into
a moral, or rather an immoral pandemonium. Keeping in view these
all-important considerations, and more especially the imperativeness
of the law, which does not admit of discretion, the court sentences
you to be carried hence, without delay, to the centre of the great
square, where your head will be severed from your body by the public
executioner, without benefit of clergy; after which your remains are
to be consigned to the public hospitals for the purposes of
dissection."
The words were scarcely out of Baron Longbeard's mouth, before both
the attorneys-general started up, to move the court in behalf of the
separate dignities of their respective principals. Mr. Attorney-
General of the crown prayed the court so far to amend its sentence,
as to give precedency to the punishment on account of the offence
against the king; and Mr. Attorney-General for the queen, to pray
the court it would not be so far forgetful of her majesty's rights
and dignity, as to establish a precedent so destructive of both. I
caught a glimpse of hope glancing about the eyes of my brother
Downright, who, waiting just long enough to let the two advocates
warm themselves over these points of law, arose and moved the court
for a stay of execution, on the plea that neither sentence was
legal--that delivered by my lord chief-justice containing a
contradiction, inasmuch as it ordered the decaudization to take
place between THE HOURS OF SUNRISE AND SUNSET, and also FORTHWITH;
and that delivered by Baron Longbeard, on account of its ordering
the body to be given up to dissection, contrary to the law, which
merely made that provision in the case of condemned MONIKINS, the
prisoner at the bar being entirely of another species.
The court deemed all these objections serious, but decided on its
own incompetency to take cognizance of them. It was a question for
the twelve judges, who were now on the point of assembling, and to
whom they referred the whole affair on appeal. In the meantime,
justice could not be stayed. The prisoner must be carried out into
the square, and matters must proceed; but, should either of the
points be finally determined in his favor, he could have the benefit
of it, so far as circumstances would then allow. Hereupon the court
rose, and the judges, counsel, and clerks repaired in a body to the
hall of the twelve judges.