Heads or Tails
"De balena vero sufficit, si rex habeat caput, et regina caudam."
BRACTON, L. 3, C. 3.
Latin from the books of the Laws of England, which taken along with
the context, means, that of all whales captured by anybody on the coast
of that land, the King, as Honorary Grand Harpooneer, must have
the head, and the Queen be respectfully presented with the tail.
A division which, in the whale, is much like halving an apple; there is
no intermediate remainder. Now as this law, under a modified form,
is to this day in force in England; and as it offers in various respects
a strange anomaly touching the general law of Fast--and Loose-Fish,
it is here treated of in a separate chapter, on the same courteous
principle that prompts the English railways to be at the expense of a
separate car, specially reserved for the accommodation of royalty.
In the first place, in curious proof of the fact that the above-mentioned
law is still in force, I proceed to lay before you a circumstance-that
happened within the last two years.
It seems that some honest mariners of Dover, or Sandwich,
or some one of the Cinque Ports, had after a hard chase succeeded
in killing and beaching a fine whale which they had originally
descried afar off from the shore. Now the Cinque Ports are
partially or somehow under the jurisdiction of a sort of policeman
or beadle, called a Lord Warden. Holding the office directly
from the crown, I believe, all the royal emoluments incident
to the Cinque Port territories become by assignment his.
By some writers this office is called a sinecure. But not so.
Because the Lord Warden is busily employed at times in fobbing
his perquisites; which are his chiefly by virtue of that same
fobbing of them.
Now when these poor sun-burnt mariners, bare-footed, and with their
trowsers rolled high up on their eely legs, had wearily hauled
their fat fish high and dry, promising themselves a good 150 pounds
from the precious oil and bone; and in fantasy sipping rare tea
with their wives, and good ale with their cronies, upon the strength
of their respective shares; up steps a very learned and most Christian
and charitable gentleman, with a copy of Blackstone under his arm;
and laying it upon the whale's head, he says--"Hands off! this fish,
my masters, is a Fast-Fish. I seize it as the Lord Warden's." Upon this
the poor mariners in their respectful consternation--so truly English--
knowing not what to say, fall to vigorously scratching their heads
all round; meanwhile ruefully glancing from the whale to the stranger.
But that did in nowise mend the matter, or at all soften the hard heart
of the learned gentleman with the copy of Blackstone. At length one
of them, after long scratching about for his ideas, made bold to speak,
"Please, sir, who is the Lord Warden?"
"The Duke."
"But the duke had nothing to do with taking this fish?"
"It is his."
"We have been at great trouble, and peril, and some expense,
and is all that to go to the Duke's benefit; we getting nothing
at all for our pains but our blisters?"
"It is his."
"Is the Duke so very poor as to be forced to this desperate mode
of getting a livelihood?"
"It is his."
"I thought to relieve my old bed-ridden mother by part of my share
of this whale."
"It is his."
"Won't the Duke be content with a quarter or a half?"
"It is his."
In a word, the whale was seized and sold, and his Grace the Duke of
Wellington received the money. Thinking that viewed in some particular
lights, the case might by a bare possibility in some small degree
be deemed, under the circumstances, a rather hard one, an honest clergyman
of the town respectfully addressed a note to his Grace, begging him
to take the case of those unfortunate mariners into full consideration.
To which my Lord Duke in substance replied (both letters were published)
that he had already done so, and received the money, and would be obliged
to the reverend gentleman if for the future he (the reverend gentleman)
would decline meddling with other people's business. Is this the still
militant old man, standing at the corners of the three kingdoms,
on all hands coercing alms of beggars?
It will readily be seen that in this case the alleged right of the Duke
to the whale was a delegated one from the Sovereign. We must needs
inquire then on what principle the Sovereign is originally invested
with that right. The law itself has already been set forth.
But Plowdon gives us the reason for it. Says Plowdon, the whale so caught
belongs to the King and Queen, "because of its superior excellence."
And by the soundest commentators this has ever been held a cogent
argument in such matters.
But why should the King have the head, and the Queen the tail?
A reason for that, ye lawyers!
In his treatise on "Queen-Gold," or Queen-pin-money, an old
King's Bench author, one William Prynne, thus discourseth:
"Ye tail is ye Queen's, that ye Queen's wardrobe may be supplied
with ye whalebone." Now this was written at a time when the black
limber bone of the Greenland or Right whale was largely used
in ladies' bodices. But this same bone is not in the tail;
it is in the head, which is a sad mistake for a sagacious lawyer
like Prynne. But is the Queen a mermaid, to be presented with a tail?
An allegorical meaning may lurk here.
There are two royal fish so styled by the English law writers--
the whale and the sturgeon; both royal property under certain limitations,
and nominally supplying the tenth branch of the crown's ordinary revenue.
I know not that any other author has hinted of the matter;
but by inference it seems to me that the sturgeon must be divided
in the same way as the whale, the King receiving the highly dense
and elastic head peculiar to that fish, which, symbolically regarded,
may possibly be humorously grounded upon some presumed congeniality.
And thus there seems a reason in all things, even in law.
