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 demand therefore for that cast of mind which under Charles I had
been the peculiarity of a successful judge no longer existed for
Charles II. When definitions of law were no longer needed to support
the crown in opposition to the other legitimate elements of the
constitution, and when the government was in close accord with the
people, there was no temptation to subject the law to such strains
as it had formerly been made to bear in the effort to galvanise into
life a system which had already died a natural death. Perhaps it was
less that judges had become more scrupulous than that the objection to
their scruples had disappeared. To whatever cause they were due, it
is certain that the reign of Charles II was marked by the renewal of
decisions which must have been obnoxious to the government. No doubt
these are not to be found in particular cases which were regarded as
of high consequence, but the tendency is perfectly visible, and in
one instance at least proved to be of profound importance. This was
the trial of Penn and Meade in 1670, for by the proceedings which
arose from it was finally established the principle that a jury has
an absolute right to give such a verdict as it thinks proper without
being open to question therefore by any other person or authority
whatsoever.[499] The Quakers had been indicted for an unlawful
assembly, and the jury before whom they were tried, in spite of
repeated direction and shameful abuse from the Lord Mayor and the
Recorder, found a verdict of not guilty. For this the court sentenced
the jurymen to a fine of forty marks apiece and imprisonment until the
fine was paid. Bushell, the foreman, and his fellow-jurors obtained a
writ of habeas corpus, and the point was argued at length on the return
to the writ. Ten judges out of twelve affirmed the absolute discretion
of the jury to believe or disbelieve the evidence given according to
the dictates of conscience, and not only were the jurymen discharged
from custody without paying the fine, but no attempt has ever been made
since to contest the principle thus established.[500]
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