The Monikins

  CHAPTER XX. A VERY COMMON CASE: OR A GREAT DEAL OF LAW, AND VERY LITTLEJUSTICE--HEADS AND TAILS, WITH THE DANGERS OF EACH.

  I was early with Noah on the following morning. The poor fellow, when itis remembered that he was about to be tried for a capital offence, ina foreign country, under novel institutions, and before a jury of adifferent species, manifested a surprising degree of fortitude. Still,the love of life was strong within him, as was apparent by the way inwhich he opened the discourse.

  "Did you observe how the wind was this morning, Sir John, as you camein?" 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 rearadmirals 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 forour honor. It would scarcely be creditable for the Walrus to sail,however, leaving an unsettled account of her captain's behind us. Whatwould they say at Stunin'tun--what would your own consort think of anact so unmanly?"

  "Why, at Stunin'tun, we think him the smartest who gets the easiestout of any difficulty; and I don't well see why Miss Poke should knowit--or, if she did, why she should think the worse of her husband, forsaving his life."

  "Away with these unworthy thoughts, and brace yourself to meetthe trial. We shall, at least, get some insight into the Leaphighjurisprudence. Come, I see you are already dressed for the occasion; letus be as prompt as duellists."

  Noah made up his mind to submit with dignity; although he lingered inthe great square, in order to study the clouds, in a way to show hemight have settled the whole affair with the fore-topsail, had heknown where to find his crew. Fortunately for the reputations ofall concerned, however, he did not; and, discarding everything likeapprehension from his countenance, the sturdy mariner entered the OldBailey with the tread of a man and the firmness of innocence. I ought tohave said sooner, that we had received notice early in the morning, thatthe proceedings had been taken from before the pages, on appeal, andthat 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 theywere ready to volunteer in behalf of the stranger, on receiving no morethan the customary fee. But I had determined to defend Noah myself (thecourt consenting) for I had forebodings that our safety would dependmore on an appeal to the rights of hospitality, than on any legaldefence it was in our power to offer. As the brigadier kindlyvolunteered to aid me for nothing, I thought proper not to refuse hisservices, 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 nogreat difference between civilized countries, all of them wearing thesame semblance of justice. The first indictment, for unhappily therewere two, charged Noah with having committed an assault, with maliceprepense, on the king's dignity, with "sticks, daggers, muskets,blunderbusses, air-guns, and other unlawful weapons, more especiallywith the tongue, in that he had accused his majesty, face to face, withhaving a memory, etc., etc." The other indictment, repeating the formulaof the first, charged the honest sealer with feloniously accusing hermajesty the queen, "in defiance of the law, to the injury of good moralsand the peace of society, with having no memory, etc., etc." To boththese 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 myselfhad applied to be admitted of counsel for the accused, under an ancientlaw of Leaphigh, as next of kin; I as a fellow human being, and thebrigadier by adoption.

  The preliminary forms observed, the attorney-general was about to gointo proof, in behalf of the crown, when my brother Downright aroseand said that he intended to save the precious time of the court,by admitting the facts; and that it was intended to rest the defencealtogether on the law of the case. He presumed the jury were the judgesof 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 thatthe law was altogether with us, in this affair." The court receivedthe admission, and the facts were submitted to the jury, by consent, asproven; although the chief-justice took occasion to remark, Longbearddissenting, that, while the jury were certainly judges of the law, inone sense, yet there was another sense in which they were not judges ofthe law. The dissent of Baron Longbeard went to maintain that while thejury were the judges of the law in the "another sense" mentioned, theywere not judges of the law in the "one sense" named. This difficultydisposed of, Mr. Attorney-General arose and opened for the crown.

  I soon found that we had one of a very comprehensive and philosophicalturn of mind against us, in the advocate of the other side. He commencedhis argument by a vigorous and lucid sketch of the condition of theworld previously to the subdivisions of its different inhabitantsinto nations, and tribes, and clans, while in the human or chrysaliscondition. From this statement, he deduced the regular gradations bywhich men become separated into communities, and subjected to the lawsof civilization, or what is called society. Having proceeded thus far,he touched lightly on the different phases that the institutions ofmen had presented, and descended gradually and consecutively to thefundamental principles of the social compact, as they were known toexist among monikins. After a few general observations that properlybelonged to the subject, he came to speak of those portions of theelementary principles of society that are connected with the rightsof the sovereign. These he divided into the rights of the king'sprerogative, the rights of the king's person, and the rights of theking's conscience. Here he again generalized a little, and in a veryhappy manner; so well, indeed, as to leave all his hearers in doubtas to what he would next be at; when, by a fierce logical swoop, hedescended suddenly on the last of the king's rights, as the one that wasmost connected with the subject.

  He triumphantly showed that the branch of the royal immunities that waschiefly affected by the offence of the prisoner at the bar, was veryclearly connected with the rights of the king's conscience. "Theattributes of royalty," observed the sagacious advocate, "are not to beestimated in the same manner as the attributes of the subject. Inthe sacred person of the king are centred many, if not most, ofthe interesting privileges of monikinism. That royal personage, inapolitical sense, can do no wrong: official infallibility is theconsequence. Such a being has no occasion for the ordinary faculties ofthe monikin condition. Of what use, for instance, is a judgment, or aconscience, to a functionary who can do no wrong? The law, in order torelieve one on whose shoulders was imposed the burden of the state, hadconsequently placed the latter especially in the keeping of another.His majesty's first-cousin is the keeper of his conscience, as is knownthroughout the realm of Leaphigh. A memory is the faculty of the leastaccount to a personage who has no conscience; and, while it is notcontended that the sovereign is relieved from the possession of hismemory by any positive statute law, or direct constitutional provision,it follows, by unavoidable implication, and by all legitimateconstruction, that, having no occasion to possess such a faculty, it isthe 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, wouldbe impaired, in the case of his majesty, were his intellectual facultiesunnecessarily crowded in this useless manner, and the state would be thesufferer. My lords, the king reigns, but he does not govern. This is afundamental principle of the constitution; nay, it is more--it is thepalladium of our liberties! My lords, it is an easy matter to reignin Leaphigh. It requires no more than the rights of primogeniture,sufficient discretion to understand the distinction between reigning andgoverning, and a political moderation that is unlikely to derange thebalance of the state. But it is quite a different thing to govern.
His majesty is required to govern nothing, the slight interests justmentioned excepted; no, not even himself. The case is far otherwise withhis first-cousin. This high functionary is charged with the importanttrust of governing. It had been found, in the early ages of themonarchy, 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 areour own private faculties; how difficult we find it to restrain evenourselves, assisted merely by our own judgments, consciences, andmemories; and in this fact do we perceive the great importance ofinvesting him who governs others, with an additional set of these gravefaculties. Under a due impression of the exigency of such a state ofthings, the common law--not statute law, my lords, which is apt to betainted with the imperfections of monikin reason in its isolated orindividual state, usually bearing the impress of the single cauda fromwhich it emanated--but the common law, the known receptacle of all thecommon sense of the nation--in such a state of things, then, has thecommon law long since decreed that his majesty's first-cousin shouldbe the keeper of his majesty's conscience; and, by necessary legalimplication, 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, beeasy for me to show, in a thousand facts, that not only the sovereign ofLeaphigh, but most other sovereigns, are and ever have been, destituteof the faculty of a memory. It might be said to be incompatible with theroyal condition to be possessed of this obtrusive faculty. Were a princeendowed with a memory, he might lose sight of his high estate, in therecollection that he was born, and that he is destined, like another,to die; he might be troubled with visions of the past; nay, theconsciousness of his very dignity might be unsettled and weakened bya vivid view of the origin of his royal race. Promises, obligations,attachments, duties, principles, and even debts, might interfere withthe due discharge of his sacred trusts, were the sovereign invested witha 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 aconscience."

  Mr. Attorney-General now directed the attention of the court and jury toa statute of the 3d of Firstborn 6th, by which it was enacted that anyperson attributing to his majesty the possession of any faculty, withfelonious intent, that might endanger the tranquillity of the state,should suffer decaudization, without benefit of clergy. Here he restedthe case on behalf of the crown.

  There was a solemn pause, after the speaker had resumed his seat. Hisargument, logic, and above all, his good sense and undeniable law, madea very sensible impression; and I had occasion to observe that Noahbegan to chew tobacco ravenously. After a decent interval, however,Brigadier Downright--who, it would seem, in spite of his militaryappellation, was neither more nor less than a practising attorneyand counsellor in the city of Bivouac, the commercial capital of theRepublic 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 thefirst time, that the advocate had not been duly qualified to plead, orto argue, at their bar. My brother Downright instantly referred theirlordships to the law of adoption, and to that provision of the criminalcode which permitted the accused to be heard by his next of kin.

  "Prisoner at the bar," said the chief-justice, "you hear the statementof counsel. Is it your desire to commit the management of your defenceto your next of kin?"

  "To anybody, your honors, if the court please," returned Noah, furiouslymasticating his beloved weed; "to anybody who will do it well, myhonorables, and do it cheap."

  "And do you adopt, under the provisions of the statute in such casesmade and provided, Aaron Downright as one of your next of kin, and ifso, in what capacity?"

  "I do--I do--my lords and your honors--I do, body and soul--if youplease, I adopt the brigadier as my father; and my fellow human beingand tried friend, Sir John Goldencalf, here, I adopt him as my mother."

  The court now formally assenting, the facts were entered of record, andmy brother Downright was requested to proceed with the defence.

  The counsel for the prisoner, like Dandin, in Racine's comedy of LesPlaideurs, was disposed to pass over the deluge, and to plunge instantlyinto the core of his subject. He commenced with a review of the royalprerogatives, and with a definition of the words "to reign." Referringto the dictionary of the academy, he showed triumphantly, that to reign,was no other than to "govern as a sovereign"; while to govern, in thefamiliar signification, was no more than to govern in the name of aprince, or as a deputy. Having successfully established this point, helaid down the position, that the greater might contain the less, butthat the less could not possibly contain the greater. That the rightto reign, or to govern, in the generic signification of the term, mustinclude all the lawful attributes of him who only governed, in thesecondary signification; and that, consequently, the king not onlyreigned, but governed. He then proceeded to show that memory wasindispensable to him who governed, since, without one he couldneither recollect the laws, make a suitable disposition of rewards andpunishments, nor, in fact, do any other intelligent or necessaryact. Again, it was contended that by the law of the land the king'sconscience was in the keeping of his first-cousin. Now, in order thatthe king's conscience should be in such keeping, it was clear that hemust HAVE a conscience, since a nonentity could not be in keeping,or even put in commission; and, having a conscience, it followed, exnecessitate rei, that he must have the attributes of a conscience, ofwhich memory formed one of the most essential features. Consciencewas defined to be "the faculty by which we judge of the goodness orwickedness of our own actions. (See Johnson's Dictionary, page 162,letter C. London edition. Rivington, publisher.) Now, in what manner canone judge of the goodness or wickedness of his acts, or of those ofany other person, if he knows nothing about them? and how can he knowanything 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 thechief-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'shigh authority makes my case so much the stronger. It is, then, settledlaw, gentle monikins of the jury, that the sovereign of this realm cando no wrong. It is also settled law--their lordships will correct me, ifI misstate--it is also settled law that the sovereign is the fountain ofhonor, that he can make war and peace, that he administers justice, seesthe laws executed--"

  "I beg your pardon, again, brother Downright," interrupted thechief-justice. "This is not the law, but the prerogative. It is theking's prerogative to be and do all this, but it is very far from beinglaw."

  "Am I to understand, my lord, that the court makes a distinction betweenthat which is prerogative, and that which is law?"

  "Beyond a doubt, brother Downright! If all that is prerogative was alsolaw, we could not get on an hour."

  "Prerogative, if your lordship pleases, or prerogativa, is defined tobe 'an exclusive or peculiar privilege.' (Johnson. Letter P, page 139,fifth clause from bottom; edition as aforesaid. Speaking slow, inorder to enable Baron Longbeard to make his notes.) Now, an exclusiveprivilege, I humbly urge, must supersede all enactments, and--"

  "Not at all, sir--not at all, sir--not at all, sir," put in my lordchief-justice, dogmatically-looking out of the window at the clouds, ina 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--apart of the constitution. They are, moreover, exclusive and peculiar, asstated by Johnson; but their exclusiveness and peculiarity are not tobe constructed in the vulgar acceptations. In treating of the vastinterests of a state, the mind must take a wide range; and I hold,brother Longb
eard, there is no principle more settled than the fact,that prerogativa is one thing, and lex, or the law, another." The baronbowed assent. "By exclusion, in this case, is meant that the prerogativetouches only his majesty. The prerogative is exclusively his property,and he may do what he pleases with it; but the law is made for thenation, and is altogether a different matter. Again: by peculiar, isclearly 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--theking can make peace and war, it is true, under his prerogative; but thenhis conscience is hard and fast in the keeping of another, who alone canperform all legal acts."

  "But, my lord, justice, though administered by others, is stilladministered in the king's name."

  "No doubt, in his name: this is a part of the peculiar privilege. Waris made in his majesty's name, too--so is peace. What is war? It is thepersonal conflicts between bodies of men of different nations. Does hismajesty engage in these conflicts? Certainly not. The war is maintainedby taxes. Does his majesty pay them? No. Thus we see that while thewar is constitutionally the king's, it is practically the people's.It follows, as a corollary--since you quote corollaries, brotherDownright--that there are two wars--or the war of the prerogative,and the war of the fact. Now, the prerogative is a constitutionalprinciple--a very sacred one, certainly--but a fact is a thing thatcomes home to every monikin's fireside; and therefore the courts havedecided, 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 distinctionsof the court, and he concluded much sooner than he otherwise would havedone; summing up the whole of his arguments, by showing, or attemptingto show, that if the king had even these peculiar privileges, andnothing else, he must be supposed to have a memory.

  The court now called upon the attorney-general to reply; but that personappeared to think his case strong enough as it was, and the matter,by agreement, was submitted to the jury, after a short charge from thebench.

  "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 equallyconscientious. You are, in this case, the judges of the law and thefact; 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 inferencedrawn by counsel, that, not being capable of erring, the king must havethe highest possible moral attributes, and consequently a memory,is unsound. The constitution says his majesty CAN do no wrong. Thisinability may proceed from a variety of causes. If he can do NOTHING,for instance, he can do no wrong. The constitution does not say thatthe 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 momentwhether 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 hergifts.

  "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 thisis 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 ofyour own excellent judgments, and of such a nature as will prevent thenecessity of our ordering a new trial."

  The jurors put their tails together, and in less than a minute, theirforemonikin rendered a verdict of guilty. Noah sighed, and took a freshsupply of tobacco.

  The case of the queen was immediately opened by her majesty'sattorney-general; the prisoner having been previously arraigned, and aplea entered of "not guilty."

  The queen's advocate made a bitter attack on the animus of theunfortunate prisoner. He described her majesty as a paragon ofexcellences; as the depositary of all the monikin virtues, and themodel of her sex. "If she, who was so justly celebrated for the gifts ofcharity, 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 personageto recall her duties to her royal consort, her duties to her royaloffspring, her duties to her royal self? Memory was peculiarly a royalattribute; and without its possession no one could properly be deemedof high and ancient lineage. Memory referred to the past, and theconsideration due to royalty was scarcely ever a present consideration,but a consideration connected with the past. We venerated the past. Timewas divided into the past, present, and future. The past was invariablya monarchical interest--the present was claimed by republicans--thefuture belonged to fate. If it were decided that the queen had nomemory, we should strike a blow at royalty. It was by memory, asconnected with the public archives, that the king derived his title tohis 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 anhour, when he gave way to the counsel for the prisoner. But, to my greatsurprise, for I knew that this accusation was much the gravest of thetwo, since the head of Noah would be the price of conviction, my brotherDownright, instead of making a very ingenious reply, as I had fullyanticipated, merely said a few words, in which he expressed so firma confidence in the acquittal of his client, as to appear to think afurther defence altogether unnecessary. He had no sooner seated himself,than I expressed a strong dissatisfaction with this course, and avowedan intention to make an effort in behalf of my poor friend, myself.

  "Keep silence, Sir John," whispered my brother Downright; "the advocatewho makes many unsuccessful applications gets to be disrespected. Icharge myself with the care of the lord high admiral's interests; at theproper 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 themeantime, the business of the court proceeded; and the jury, havingreceived a short charge from the bench, which was quite as impartial asa positive injunction to convict could very well be, again rendered theverdict of "guilty."

  In Leaphigh, although it is deemed indecent to wear clothes, it is alsoesteemed exceedingly decorous for certain high functionaries to adorntheir persons with suitable badges of their official rank. We havealready had an account of the hierarchy of tails, and a generaldescription of the mantle composed of tenth-hairs; but I had forgottento say that both my lord chief-justice and Baron Longbeard hadtail-cases made of the skins of deceased monikins, which gave theappearance of greater development to their intellectual organs, and mostprobably had some influence in the way of coddling their brains, whichrequired great care and attention on account of incessant use. They nowdrew over these tail-cases a sort of box-coat of a very bloodthirstycolor, which, we were given to understand, was a sign that they were inearnest, and about to pronounce sentence; justice in Leaphigh being ofsingularly 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 arraignedand tried on the heinous charge of having accused the sovereign of thisrealm of being in possession of the faculty called 'a memory,' therebyendangering the peace of society, unsettling the social relations, andsetting a dangerous example of insubordination and of contempt of thelaws. Of this crime, after a singularly patient and impartial hearing,you have been found guilty. The law allows the court no discretion inthe case. It is my duty to pass sentence forthwith; and I now solemnlyask you, if you have anything to say why sentence of decaudizationshould not be pronounced against you." Here the chief-justice took justtime enough to gape, and then proceeded--"You are right in throwingyourself altogether on the mercy of the court, which better knows whatis fittest f
or you, than you can possibly know for yourself. You will betaken, Noah Poke, or No. 1, sea-water-color, forthwith, to the centre ofthe 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 intofour parts, a part will be exposed towards each of the cardinal pointsof the compass; and the brush thereof being consumed by fire, the asheswill be thrown into your face, and this without benefit of clergy. Andmay the Lord have mercy on your soul!"

  "Noah Poke, or No. 1, sea-water-color," put in Baron Longbeard, withoutgiving the culprit breathing-time, "you have been indicted, tried, andfound guilty of the enormous crime of charging the queen-consort of thisrealm of being wanting in the ordinary, important, and every-dayfaculty of a memory. Have you anything to say why sentence should notbe forthwith passed against you? No; I am sure you are very right inthrowing yourself altogether on the mercy of the court, which is quitedisposed to show you all that is in its power, which happens, inthis case, to be none at all. I need not dwell on the gravity of youroffence. If the law should allow that the queen has no memory, otherfemales might put in claims to the same privilege, and society wouldbecome a chaos. Marriage vows, duties, affections, and all our nearestand dearest interests would be unhinged, and this pleasant state ofbeing would degenerate into a moral, or rather an immoral pandemonium.Keeping in view these all-important considerations, and more especiallythe imperativeness of the law, which does not admit of discretion, thecourt sentences you to be carried hence, without delay, to the centre ofthe great square, where your head will be severed from your body by thepublic executioner, without benefit of clergy; after which yourremains are to be consigned to the public hospitals for the purposes ofdissection."

  The words were scarcely out of Baron Longbeard's mouth, before boththe attorneys-general started up, to move the court in behalf of theseparate dignities of their respective principals. Mr. Attorney-Generalof the crown prayed the court so far to amend its sentence, as to giveprecedency to the punishment on account of the offence against the king;and Mr. Attorney-General for the queen, to pray the court it would notbe so far forgetful of her majesty's rights and dignity, as to establisha precedent so destructive of both. I caught a glimpse of hope glancingabout the eyes of my brother Downright, who, waiting just long enoughto let the two advocates warm themselves over these points of law, aroseand moved the court for a stay of execution, on the plea that neithersentence was legal--that delivered by my lord chief-justice containinga contradiction, inasmuch as it ordered the decaudization to take placebetween THE HOURS OF SUNRISE AND SUNSET, and also FORTHWITH; and thatdelivered by Baron Longbeard, on account of its ordering the body tobe given up to dissection, contrary to the law, which merely made thatprovision in the case of condemned MONIKINS, the prisoner at the barbeing entirely of another species.

  The court deemed all these objections serious, but decided on its ownincompetency to take cognizance of them. It was a question for thetwelve judges, who were now on the point of assembling, and to whom theyreferred the whole affair on appeal. In the meantime, justice could notbe stayed. The prisoner must be carried out into the square, and mattersmust proceed; but, should either of the points be finally determinedin his favor, he could have the benefit of it, so far as circumstanceswould then allow. Hereupon the court rose, and the judges, counsel, andclerks repaired in a body to the hall of the twelve judges.