Chapter 24

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.