 | CHAPTER V. The monikins |  |
5. CHAPTER V.
5. 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 straight-forward
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 recognizes?—Not in the least, my dear
friend, were it not for our honor. It would scarcely
be creditable for the Walrus to sail, however,
us. What would they say at Stunnin'tun—
what would your own consort think of an act so
unmanly?”
“Why, at Stunnin'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
to aid me for nothing, I thought proper not to refuse
his services, however.
I pass over the appearance of the court, the empannelling
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, &c. &c.” 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, &c. &c.” 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 that the jury was the
judge 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 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 became 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;
as to what he would next be at; when, by a fierce
logical swoop, he descended suddenly on the latter
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 a political 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 burthen
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
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
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 First-born
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 decaudisation,
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
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
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 a 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 163., 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
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,
gentlemonikins 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 was 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
and—”
“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 exclusion and peculiarity
are not to be construed 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
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 fire-side; 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, that 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,
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 excellencies;
as the depository of all the monikina 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
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 to 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
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 mean time,
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
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 decaudisation
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
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 decaudisation to take place between the hours
of sunrise and sunset, and also forthwith: and that
delivered by Baron Longbeard, on account of its
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 mean time, 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.
| CHAPTER V. The monikins | |