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.