“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.”