The Popish Plot: A study in the history of the reign of Charles IIPollock, John
History
The Popish Plot: A study in the history of the reign of Charles II
Pollock, John
Popish Plot, 1678
The stirring events of the great rebellion, the Protectorate, and the
Restoration, which so profoundly affected the life and institutions of
the nation in other ways, touched the bench but slightly. In the early
months of the Long Parliament a resolution was passed by both houses of
Parliament to the effect that the judges’ appointments should be for
the future _quamdiu se bene gesserint_, and on January 15, 1641, the
king gave effect to this by a declaration that they should no longer
hold office at the pleasure of the crown but during good behaviour. For
twenty-four years the improvement was maintained in theory; in practice
the old system kept its hold unshaken. During the short remainder of
Charles I’s reign the judges were concerned on only two occasions in
affairs of state. These were however enough to demonstrate that the
change in the manner of their appointments had by no means the result
of rehabilitating the character of the bench and restoring to it the
quality, which it had long lacked, of independence. One of the first
acts of the Long Parliament, after dealing with the vital question
of ship-money, was to turn upon the judges who had lent the weight
of their names to the decision which pronounced its legality. Finch
was violently attacked as a traitor in the House of Commons, and his
impeachment voted with scarcely a dissentient voice. The Lord Keeper
preferred the path of safety to that of dignity and fled to Holland
on board a royal vessel, leaving the impeachment to be formally
concluded in his absence. At the same time proceedings were commenced
against six other judges who had sat at Hampden’s trial.[490] The
effect of this was immediate. Only once again did the judges come into
prominence before the outbreak of the Civil War. Scarcely five months
after Finch’s impeachment the House of Lords demanded their opinion
whether or no the articles against Strafford amounted to making him
guilty of treason. Without hesitation they replied unanimously that
upon the articles which the Lords had voted to be proved it was their
opinion that the Earl of Strafford did deserve to undergo the pains
and penalties of high treason by law.[491] Not only was their conduct
in delivering this extra-judicial opinion decidedly irregular,[492]
but their decision was in flagrant opposition to the clearest dictates
of justice and rules of law, for the accusations against Strafford
cannot be regarded as tantamount, or even approaching, to a substantial
charge of treason.[493] The fault lay not in their intelligence, but
in the system which had made their honesty an asset in the treasury of
government, and had robbed them of their ability to judge facts in the
light of law and reason without reference to principles of statecraft
or the struggle of parties. It was not upon the merits of the case
that their decision was based now that it was unfavourable to the
administration, any more than their favourable decisions had been based
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