[486] This rule was not without exception. Baron Flowerdue, raised to the bench in 1684, held office quamdiu se bene gesserit. (Prothero, Statutes and Constitutional Documents 143). And we learn from Coke (Inst. iv. 117) that the Chief Baron always held office on a permanent tenure (Prothero cviii.). Of course it made no difference, for good behaviour in the eyes of the king, with whom the decision rested, was likely to have much in common with his good pleasure.
[487] Gneist, Constitutional History of England (trans. Ashworth) 550.
[488] Clarendon, Hist. Reb. (Oxford, 1826) i. 123, 124.
[489] Gneist 552 n. See Gardiner viii. 208.
[490] Gardiner ix. 246, 247. Gneist 555.
[491] L.J. May 6, 1641. Parl. Hist. ii. 757.
[492] In a somewhat similar case the judges under Charles II refused to give an opinion until the matter had been argued before them by counsel. The Attorney-General, among other questions put to the judges at the outbreak of the agitation of the Popish Plot, asked “Whether there be any evidence against these particular persons besides the single testimony of Mr. Oates?” To which it was answered that it was a question of fact, and could only be determined in court. S.P. Dom. Charles II 407: i. 128.
[493] Gardiner ix. 306, 307. Gneist 555 n. Hallam (ii. 107) attempts to uphold the judges’ decision, but Stephen’s argument (i. 362, 363) must be held to settle the question.
[494] Gneist 570 n. (2).
[495] 4 State Trials 445–450.