“And do you adopt, under the provisions of the statute in such cases made and provided, Aaron Downright as one of your next of kin, and if so, in what capacity?”
“I do—I do—my lords and your honors—I do, body and soul—if you please, I adopt the brigadier as my father; and my fellow human being and tried friend, Sir John Goldencalf, here, I adopt him as my mother.”
The court now formally assenting, the facts were entered of record, and my brother Downright was requested to proceed with the defence.
The counsel for the prisoner, like Dandin, in Racine’s comedy of Les Plaideurs, was disposed to pass over the deluge, and to plunge instantly into the core of his subject. He commenced with a review of the royal prerogatives, and with a definition of the words “to reign.” Referring to the dictionary of the academy, he showed triumphantly, that to reign, was no other than to “govern as a sovereign”; while to govern, in the familiar signification, was no more than to govern in the name of a prince, or as a deputy. Having successfully established this point, he laid down the position, that the greater might contain the less, but that the less could not possibly contain the greater. That the right to reign, or to govern, in the generic signification of the term, must include all the lawful attributes of him who only governed, in the secondary signification; and that, consequently, the king not only reigned, but governed. He then proceeded to show that memory was indispensable to him who governed, since, without one he could neither recollect the laws, make a suitable disposition of rewards and punishments, nor, in fact, do any other intelligent or necessary act. Again, it was contended that by the law of the land the king’s conscience was in the keeping of his first-cousin. Now, in order that the king’s conscience should be in such keeping, it was clear that he must HAVE a conscience, since a nonentity could not be in keeping, or even put in commission; and, having a conscience, it followed, ex necessitate rei, that he must have the attributes of a conscience, of which memory formed one of the most essential features. Conscience was defined to be “the faculty by which we judge of the goodness or wickedness of our own actions. (See Johnson’s Dictionary, page 162, letter C. London edition. Rivington, publisher.) Now, in what manner can one judge of the goodness or wickedness of his acts, or of those of any other person, if he knows nothing about them? and how can he know anything of the past, unless endowed with the faculty of a memory?”
Again; it was a political corollary from the institutions of Leaphigh, that the king could do no wrong—
“I beg your pardon, my brother Downright,” interrupted the chief-justice, “it is not a corollary, but a proposition—and one, too, that is held to be demonstrated. It is the paramount law of the land.”
“I thank you, my lord,” continued the brigadier, “as your lordship’s high authority makes my case so much the stronger. It is, then, settled law, gentle monikins of the jury, that the sovereign of this realm can do no wrong. It is also settled law—their lordships will correct me, if I misstate—it is also settled law that the sovereign is the fountain of honor, that he can make war and peace, that he administers justice, sees the laws executed—”
“I beg your pardon, again, brother Downright,” interrupted the chief-justice. “This is not the law, but the prerogative. It is the king’s prerogative to be and do all this, but it is very far from being law.”
“Am I to understand, my lord, that the court makes a distinction between that which is prerogative, and that which is law?”
“Beyond a doubt, brother Downright! If all that is prerogative was also law, we could not get on an hour.”