Heads or Tails

5 min

“De balena vero sufficit, si rex habeat caput, et regina caudam.” Bracton, l. 3, c. 3.

“As for a whale, it is enough if the king has the head and the queen has the tail.” 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.

This Latin comes from the books of the Laws of England. Taken in context, it means that, of all whales anyone captures on England’s coast, the King, as Honorary Grand Harpooneer, must have the head. The Queen must be respectfully presented with the tail. Dividing a whale this way is much like halving an apple. Nothing is left in between. This law, in a modified form, remains in force in England today. In several respects, it is a strange exception to the general law of Fast and Loose-Fish. So I give it a separate chapter, out of the same courtesy that prompts English railways to pay for a separate car reserved for royalty. To begin, I will offer curious proof that the law is still in force. It is an incident 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.

It seems that some honest sailors from Dover, Sandwich, or another of the Cinque Ports once spotted a fine whale far offshore. After a hard chase, they killed it and brought it onto the beach. Now, the Cinque Ports are partly or somehow under the authority of a kind of policeman or beadle called a Lord Warden. I believe the Lord Warden holds his office directly from the crown. All the royal revenues from the Cinque Port territories are assigned to him. Some writers call his office a sinecure, a job with no real work. But it is not. The Lord Warden is sometimes busy pocketing his perks, which are his chiefly because he pockets 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 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,

These poor, sunburned sailors had wearily hauled their fat fish high and dry. They were barefoot, with their trousers rolled high above their eel-like legs. They expected a good £150 for its precious oil and bone. Each imagined spending his share, sipping rare tea with his wife and good ale with his friends. Then a very learned, most Christian and charitable gentleman stepped up, carrying a copy of Blackstone under his arm. He laid the book on the whale’s head and said, “Hands off! This fish, my masters, is a Fast-Fish. I seize it as the Lord Warden’s.” The poor sailors were shocked, but respectful, as true Englishmen would be. They did not know what to say, so they all began scratching their heads vigorously. Meanwhile, they glanced sorrowfully from the whale to the stranger. But their head-scratching did nothing to improve matters or soften the hard heart of the learned gentleman with his copy of Blackstone. At last, one of the sailors, after scratching for a long time as he searched for his thoughts, dared to speak,

“Please, sir, who is the Lord Warden?”

“The Duke.”

“But the duke had nothing to do with taking this fish?”

“But the duke had nothing to do with catching 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?”

“We have gone to great trouble, faced danger, and spent some money. Is the Duke to benefit from all of it, while we get nothing for our efforts but blisters?”

“It is his.”

“Is the Duke so very poor as to be forced to this desperate mode of getting a livelihood?”

“Is the Duke so poor that he has to make a living in this desperate way?”

“It is his.”

“I thought to relieve my old bed-ridden mother by part of my share of this whale.”

“I hoped to help my old, bedridden mother with part of my share of this whale.”

“It is his.”

“Won’t the Duke be content with a quarter or a half?”

“Won’t the Duke be happy 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?

In short, the whale was seized and sold, and his Grace the Duke of Wellington received the money. Viewed in certain lights, the case might just possibly be considered somewhat harsh under the circumstances. So an honest local clergyman respectfully wrote to his Grace, asking him to give the unfortunate mariners’ case full consideration. The Duke replied, in substance, that he had already considered it and received the money. He added that he would be obliged if the reverend gentleman would keep out of other people’s business in future. Both letters were published. Is this the old man who is still fighting, standing on street corners throughout the three kingdoms, forcing beggars everywhere to give him alms?

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.

It is clear that the Duke’s supposed right to the whale was granted by the Sovereign. We must therefore ask on what principle the Sovereign originally received that right. The law itself has already been stated. But Plowdon gives us the reason for it. Plowdon says that a whale caught in this way belongs to the King and Queen “because of its superior excellence.” The most reliable commentators have always considered this a convincing argument in such matters.

But why should the King have the head, and the Queen the tail? A reason for that, ye lawyers!

But why should the King get the head and the Queen the tail? Lawyers, give me a reason for that!

In his treatise on “Queen-Gold,” or Queen-pinmoney, 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.

In his treatise on “Queen-Gold,” or Queen-pinmoney, an old King’s Bench author named William Prynne writes: “The tail belongs to the Queen, so that her wardrobe may be supplied with whalebone.” Prynne wrote this when the black, flexible bone of the Greenland or Right whale was widely used in ladies’ bodices. But that bone is not in the tail. It is in the head, a sad mistake for a shrewd lawyer like Prynne. But is the Queen a mermaid, to be given a tail? An allegorical meaning may be hiding 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.

English legal writers call two fish royal fish: the whale and the sturgeon. Both belong to the crown under certain conditions. They officially make up the tenth branch of the crown’s regular income. I do not know whether any other author has mentioned the matter. But I infer that the sturgeon must be divided in the same way as the whale. The King receives the unusually dense and elastic head of the sturgeon. Seen as a symbol, this arrangement may be a joke about some supposed likeness between the King and the fish. And so there seems to be a reason for everything, even in law.