CHAPTER XX. 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.