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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

"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

"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

"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

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
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.


Noah was incontinently transferred to the place of execution, where
I promised to meet him in time to receive his parting sigh, curiosity
inducing me first to learn the issue on the appeal. The brigadier told
me in confidence, as we went to the other hall, that the affair was
now getting to be one of great interest; that hitherto it had been mere
boy's play, but it would in future require counsel of great reading and
research to handle the arguments, and that he flattered himself there
was a good occasion likely to present itself, for him to show what
monikin reason really was.

The whole of the twelve wore tail-cases, and altogether they presented
a formidable array of intellectual development. As the cause of Noah was
admitted to be one of more than common urgency, after hearing only three
or four other short applications on behalf of the crown, whose rights
always have precedence on such occasions, the attorney-general of the
king was desired to open his case.

The learned counsel spoke, in anticipation, to the objections of
both his adversaries, beginning with those of my brother Downright.
Forthwith, he contended, might be at any period of the twenty-four
hours, according to the actual time of using the term. Thus, forthwith
of a morning, would mean in the morning; forthwith at noon, would mean
at noon; and so on to the close of the legal day. Moreover, in a legal
signification, forthwith must mean between sunrise and sunset, the
statute commanding that all executions shall take place by the light
of the sun, and consequently the two terms ratified and confirmed each
other, instead of conveying a contradiction, or of neutralizing each
other, as would most probably be contended by the opposite counsel.

To all this my brother Downright, as is usual on such occasions,
objected pretty much the converse. He maintained that ALL light
proceeded from the sun; and that the statute, therefore, could only mean
that there should be no executions during eclipses, a period when
the whole monikin race ought to be occupied in adoration. Forthwith,
moreover, did not necessarily mean forthwith, for forthwith meant
immediately; and "between sunrise and sunset" meant between sunrise and
sunset; which might be immediately, or might not.

On this point the twelve judges decided, firstly, that forthwith did not
mean forthwith; secondly, that forthwith did mean forthwith; thirdly,
that forthwith had two legal meanings; fourthly, that it was illegal to
apply one of these legal meanings to a wrong legal purpose; and fifthly,
that the objection was of no avail, as respected the case of No. 1,
sea-water-color. Ordered, therefore, that the criminal lose his tail

The objection to the other sentence met with no better fate. Men and
monikins did not differ more than some men differed from other men, or
some monikins differed from other monikins. Ordered, that the sentence
be confirmed, with costs. I thought this decision the soundest of the
two; for I had often had occasion to observe, that there were very
startling points of resemblance between monkeys and our own species.

The contest now commenced between the two attorneys-general in earnest;
and, as the point at issue was a question of mere rank, it excited a
lively - I may say an engrossing - interest in all the hearers. It was
settled, however, after a vigorous discussion, in favor of the king,
whose royal dignity the twelve judges were unanimously of opinion was
entitled to precedency over that of the queen. To my great surprise,
my brother Downright volunteered an argument on this intricate point,
making an exceedingly clever speech in favor of the king's dignity, as
was admitted by every one who heard it. It rested chiefly on the point
that the ashes of the tail were, by the sentence, to be thrown into
the culprit's face. It is true this might be done physically after
decapitation, but it could not be done morally. This part of the
punishment was designed for a moral effect; and to produce that effect,
consciousness and shame were both necessary. Therefore the moral act
of throwing the ashes into the face of the criminal could only be done
while he was living, and capable of being ashamed.

Meditation, chief-justice, delivered the opinion of the bench. It
contained the usual amount of legal ingenuity and logic, was esteemed
as very eloquent in that part which touched on the sacred and inviolable
character of the royal prerogatives (prerogativae as he termed them),
and was so lucid in pointing out the general inferiority of the
queen-consort, that I felt happy her majesty was not present to hear
herself and sex undervalued. As might have been expected, it allowed
great weight to the distinction taken by the brigadier. The decision
was in the following words, viz.: "Rex et Regina versus No. 1,
sea-water-color: ordered, that the officers of justice shall proceed
forthwith to decaudizate the defendant before they decapitate him;
provided he has not been forthwith decapitated before he can be

The moment this mandamus was put into the hands of the proper officer,
Brigadier Downright caught me by the knee, and led me out of the hall of
justice, as if both out lives depended on our expedition. I was about to
reproach him for having volunteered to aid the king's attorney-general,
when, seizing me by the root of the tail, for the want of a button-hole,
he said, with evident satisfaction:

"Affairs go on swimmingly, my dear Sir John! I do not remember to have
been employed, for some years, in a more interesting litigation. Now
this cause, which, no doubt, you think is drawing to a close, has
just reached its pivot, or turning-point; and I see every prospect of
extricating our client with great credit to myself."

"How! my brother Downright!" I interrupted; "the accused is finally
sentenced, if not actually executed!"

"Not so fast, my good Sir John - not so fast, by any means. Nothing
is final in law, while there is a farthing to meet the costs, or the
criminal can yet gasp. I hold our case to be in an excellent way;
much better than I have deemed it at any time since the accused was

Surprise left me no other power than that which was necessary to demand
an explanation.

"All depends on the single fact, dear sir," continued my brother
Downright, "whether the head is still on the body of the accused or not.

Online LibraryJames Fenimore CooperThe Monikins → online text (page 23 of 34)