James Fenimore Cooper.

Works (Volume 17) online

. (page 23 of 35)
Online LibraryJames Fenimore CooperWorks (Volume 17) → online text (page 23 of 35)
Font size
QR-code for this ebook

If they would now only do us justice in the very important
affair of the long-standing and long-neglected redress, which
we have been seeking in vain at their hands, for the last
seventy-two years, I should say that our relations were on
the best possible footing.

Sir, I congratulate you on the profound respect with which
the Leaplow name is treated, in the most distant quarters of
the earth, and on the benign influence this fortunate circum
stance is likely to exercise on all our important interests.

I see but little probability of effecting the object of my
special mission, but the utmost credit is to be attached to the
sincerity of the smiles of the King and Queen, and of all
the royal family.

In a late conversation with his Majesty, he inquired in the
kindest manner after the health of the Great Sachem, [this
is the title of the head of the Leaplow government,] and
observed that our growth and prosperity put all other nations to
shame ; and that we might, on 11 occasions, depend on his
most profound respect and perpetual friendship. In short, sir,
all nations, far and near, desire our alliance, are anxious to
open new sources of commerce, and entertain for us the pro-
foundest respect, and the most inviolable esteem. You can
tell the Great Sachem that this feeling is surprisingly aug
mented under his administration, and that it has at least quad
rupled during my mission. If Leaphigh would only respect
its treaties, Leapthrough would cease taking our seamen,
Lea pup have greater deference for the usages of good society,
and the King of Leapover would seize no more of our ship*
to supply his mistress with pocket-money, our foreign rela
tions might be considered to be without spot. As it is. sir, they
are far better off than 1 could have expected, or indeed, had
ever hoped to see them ; and of one thing you may be diplo
matically certain, that we are universally respected, and tha>


the Leaplow name is never mentioned without all in compa
ny rising and waving their caudcc.


Hon. T &e

P. S. [Private.}

DEAR SIR, If you publish thi dispatch, omit the part
where the difficulties are repeated. I beg you will see that
my name is put in with those of the other patriots, against
the periodical rotation of the littte wheel; as I shall certainly
be obliged to return home soon, having consumed all my
means. Indeed, the expense of maintaining a Jail, of which
our people have no notion is so very great, tba. r think none
of our missions should exceed a week in duratio...

I would especially advise that the message should dilate
on the subject of the high standing of the Leaplow character,
in foreign nations ; for, to be frank with you, facts require
that this statement should be made as often as possible.

When this letter was read, the conversation re
verted to religion. The Brigadier explained that
the law of Leaphigh had various peculiarities on
this subject, that I do not remember to have heard
of before. Thus, a monikin could not be born,
without paying something to the church, a prac
tice which early initiated him into his duties to
wards that important branch of the public welfare;
and, even when he died, he left a fee behind him,
for the parson, as an admonition to those who still
existed in the flesh, not to forget their obligations.
He added that this sacred interest was, in short, so
rigidly protected, that, whenever a monikin refused
to be plucked for a new clerical or episcopal man
tle, there was a method of fleecing him, by the
application of red-hot iroo rods, which generally
singed so much of his skm, that he was commonly
willing, in the end, to let the hair-proctors pick and
choose, at oleasure.


I confess I was indignant at this picture, and did
not hesitate to stigmatize the practice as barbarous.

" Your indignation is very natural, Sir John, and
is just what a stranger would be likely to feel^
when he found mercy, and charity, and brotherly
love, and virtue, and, above all, humility, made the
slalking-horses of pride, selfishness, and avarice.
But this is the way with us monikins; no doubt,
men manage better."


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 surpris
ing 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 morn
ing, Sir John, as you came in ?" the straight-forward
sealer inquired, with a peculiar interest.

" It is a pleasant gale from the southward."

" Right off shore ! If one knew where all them
blackguards of Rear Admirals and Post Captains
were to be found I don't think, Sir John, that you
would care much about paying those fifty thousand
promises ?"

"My recognizes? Not in the least, my dear
friend, were it not for our honor. It would scarce
ly be creditable for the Walrus to sail, however,


caving an unsettled account of her Captain's be-
nind us. What would they say at Stunnin'tun
what would your own consort think of an act so
unmanly ?"

" Why, at Stunnin'tun, we think him the smart
est who gets the easiest out of any difficulty ; and
I do n'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 occa
sion ; 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 apprehen
sion from his countenance, the sturdy mariner enter
ed 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 ga
thered 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 re
fuse his services, however.

I pass over the appearance of the court, the em-
pannelling 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, dag
gers, muskets, blunderbusses, air-guns, and other
unlawful weapons, more especially with the tongue,
in that he had accused his Majesty, face to face,
with having a memory, &c. <fcc." The other indict
ment, repeating the formula of the first, charged the
honest sealer with feloniously accusing her Majes
ty the Queen, "in defiance of the law, to the injury
of good morals and the peace of society, with
having no memory, &c. &c." To both these charges,
the plea of " Not Guilty," was entered as fast as
possible, in behalf of our client.

I ought to have said before, that both Brigadier
Downright and myself had applied to be admitted
of counsel for the accused, under an ancient law
of Leaphigh, as next of kin ; I as a fellow human
being, and the Brigadier by adoption.

The preliminary forms observed, the Attorney-
General was about to go into proof, in behalf of
the crown, when my brother Downright arose and
said that he intended to save the precious time of
the court, by admitting the facts ; and that it was
intended to rest the defence altogether on the law
of the case. He presumed that the jury was the
judge of the law as well as of the facts, according
to the rule of Leaplow, and that " he and his bro
ther 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 compre
hensive 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 subdivi
sions of its different inhabitants into nations, and
tribes, and clans, while in the human or chrysalis
condition. From this statement, he deduced the
regular gradations by which men became sepa
rated into communities, and subjected to the lawg
of civilization, or what is called society. Having
proceeded thus far, he touched lightly on the dif
ferent phases that the institutions of men had pre
sented, and descended gradually and consecutively
to the fundamental principles of the social com
pact, as they were known to exist among monikins.
After a few general observations that properly be
longed 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 pre
rogative, 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 latter
of the King's rights, as the one that was most
connected with the subject.

He triumphantly showed that the branch of the
royal immunities that was chiefly affected by the
offence of the prisoner at the bar, was very clearly
connected with the rights of the King's conscience.
" The attributes of royalty," observed the sagacious
advocate, " are not to be estimated in the same man
ner as the attributes of the subject In the sacred
person of the King are centred many, if not most,
of the interesting privileges of monikinism. That
royal personage, in a political sense, can do no
wrong; official infallibility is the consequence. Such
a being has no occasion for the ordinary faculties
of the monikin condition. Of what use, for instance,
is a judgment, or a conscience, to a functionary
who can do no wrong? The law, in order to relieve
one on whose shoulders was imposed the burthen
of the state, had, consequently, placed the latter
especially in the keeping of another. His Majesty's
first-cousin is the keeper of his conscience, as
is known throughout the realm of Leaphigh. A
memory is the faculty of the least account to a
personage who has no conscience; and, while it
is not contended that the sovereign is relieved
from the possession of his memory by any positive
statute law, or direct constitutional provision, it
follows, by unavoidable implication, and by all
legitimate construction, that, having no occasion
to possess such a faculty, it is the legal presump
tion 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 Leap-
high. It requires no more than the rights of pri
mogeniture, 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 no
thing, 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 ob
jects 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 import
ance 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 imperfec
tions 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 Majes
ty'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 Leap-
high, 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 ori
gin of his royal race. Promises, obligations, attach
ments, 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 im
memorial, that his Majesty is utterly without the
properties of reason, judgment, and memory, as a
legitimate inference from his being destitute of a

Mr. Attorney-General now directed the attention
of the court and jury to a statute of the 3d of First
born 6th, by which it was enacted that any person
attributing to his Majesty the possession of any
faculty, with felonious intent, that might endanger
the tranquillity of the state, should suffer decaudisa-
tion, 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 Down
right, who, it would seem, in spite oi his military
appellation, was neither more nor less than a prac
tising 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
<*,ourt now took it into its head to start the objec
tion, for the first time, that the advocate had not
Heen duly qualified to plead, or to argue, at their
*>ar. 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 honor-
ables, 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 Ra
cine'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 acade
my, 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 de
puty. Having successfully established this point, he
laid down the position, that the greater might con
tain the less, but that the less could not possibly
contain the greater. That the right to reign, or to
govern, in the generic signification of the term,
must include all the lawful attributes of him who
only governed, in the secondary signification ; and
that, consequently, the King not only reigned, but
governed. He then proceeded to show that a mem
ory was indispensable to him who governed, since,
without one, he could neither recollect the laws,
make a suitable disposition of rewards and punish
ments, nor, in fact, do any other intelligent or ne
cessary 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 non
entity could not be in keeping, or even put in com
mission ; 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 good
ness or wickedness of our own actions." [See
Tohnson's Dictionary, page 163., letter C. London
edition. Rivington, publisher.] Now, in what man
ner 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 in
stitutions of Leaphigh, that the King could do no

" 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 Briga
dier, " as your Lordship's high authority makes my
case so much the stronger. It is, then, settled law,
gentlemonikins of the jury, that the Sovereign of
this realm can do no wrong. It is also settled law,
their Lordships will correct me, if I misstate,
it is also settled law, that the Sovereign is the foun
tain of honor, that he can make war and peace,
that he administers justice, sees the laws exe
cuted "

" 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 preroga
tive, 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 pre
rogaliva, is defined to be 'an exclusive or peculiar
privilege.' [Johnson. Letter P. page 139., fifth
clause from bottom. Edition as aforesaid. Speak
ing 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," put in my Lord
Chief Justice, dogmatically, looking out of the
window at the clouds, in a way to show that his
mind was quite made up. " Not at all, good sir.
The King has his prerogatives, beyond a question ;
and they are sacred ; a part of the constitution.
They are, moreover, exclusive and peculiar, as
stated by Johnson ; but their exclusion and pecu
liarity are not to be construed in the vulgar ac
ceptations. 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 set
tled than the fact, that prerogative, is one thing, and
lex, or the law, another." The Baron bowed as
sent. " 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 pe
culiarity, 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 an
other, 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 1 It is the
personal conflicts between bodies of men of differ
ent nations. Does his Majesty engage in these con
flicts 1 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 fire-side ; and, there
fore, the courts have decided, ever since the reign
of Timid II., or ever since they dared, that the pre
rogative was one thing, and the law another."

My brother Downright seemed a good deal per
plexed by the distinctions of the court, and he con
cluded much sooner than he otherwise would have
done ; summing up the whole of his arguments, by
showing, or attempting to show, that if the King
had even these peculiar privileges, and nothing
else, that he must be supposed to have a memory.

The court now called upon the Attorney-Gene
ral 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.

Online LibraryJames Fenimore CooperWorks (Volume 17) → online text (page 23 of 35)