Such were the functions of the justices of the peace in the seventeenth century, and so wide was the reach of the magisterial arm stretched out as a weapon in the service of the administration of government. And if the justices filled so important a position, still more important was that assumed by the king’s judges. The justices were able administrators, dealers of small mercy to the evildoer, guardians of the peace in the name of which their commissions ran; but the judges took a place in the foremost rank as great officers of state. The character of their office had been determined by the famous conflict between James I and Lord Chief Justice Coke which came to a head in 1616 and ended in Coke’s dismissal.[484] The Chief Justice’s endeavour had been to erect the bench into an independent tribunal, founded on the ruins of broken agreement between king and Commons, and occupying the position of arbitrator and guardian of the constitution midway between the two. To the king and to Bacon, who advised him, this seemed intolerable; to James, because the ideal of absolutism which guided his mind could not admit in the state a constitutional oracle other than himself; to the Attorney-General, because his liberal instincts, wide statesmanship, and knowledge of political requirements made clear the impracticable nature of Coke’s ideas, the bonds of crabbed technicality with which they sought to shackle the future, their essential conservatism. Coke’s parchment knowledge, too good for James, was not good enough for Bacon. If Bacon inclined towards administrative absolutism, and Coke represented in the struggle the majesty of the law, assuredly the law for which the Chief Justice fought, for ever seeking guidance in the records of the past, was unfit to mould the future of a great nation. So when Coke fell, characteristically enough, over a sordid squabble into which a question of principle was inappropriately dragged, his fall demands our sympathy perhaps, but hardly our regret. Regret at a victory in the personal cause of the monarch and the check given to the forward march of constitutional progress is profitless. Between the ideas of Bacon and Coke there was no middle course open at the moment when a choice became necessary. It was impossible to avoid the conclusion that the judges must either become an independent power in the state, an irresponsible tribunal to which constitutional questions of the highest importance should be referred for decision in strict accordance with the rules of the Court of King’s Bench, or be content to remain in subservience to the crown, supporters of the king’s prerogative, and administrators of his policy. The expedient, which has since made the way plain, of the constitutional supremacy of the Commons of England was then unborn, and as yet in the light of practical affairs inconceivable. The Lord Chief Justice, “toughest of men,” and too stubborn to yield, was broken; but his brethren on the bench gave way and offered assurances of their good conduct for the future and of their devotion to the royal will. James took the opportunity of the lecture which he read to the judges in the star chamber to compare their behaviour in meddling with the prerogative of the crown to the atheism and blasphemy committed by good Christians in disputing the word of God.
Thus the judges became, according to Bacon’s wish, “lions, but yet lions under the throne,” and carried themselves very circumspectly not to “check or oppose any points of sovereignty.”[485] Of their regularity in this course there can be no doubt, for if any lapsed into forbidden ways, a judge he speedily ceased to be. His appointment was durante beneplacito[486] and revocable at the will of the king; and the king took full advantage of his power. The example offered by the case of Coke was not left long in isolation. The government was engaged in the hopeless attempt to uphold the constitution of the Tudor monarchy at a time when the nation had outgrown it, and had opened a war to the death with the progressive tendency of Parliament. In such a struggle the judges were the king’s strongest weapon, and as a weapon that turns uselessly in the hand, the recalcitrant judge was discarded without scruple. When the better class of judges questioned the legality of acts of government they met with the same fate as their rugged predecessor. Under Charles I two Lord Chief Justices were dismissed and Chief Baron Walter was suspended from office. Judicial offices of consequence were filled with “men of confidence,” men who enjoyed the confidence of the king and quickly lost that of every one else.[487]
In their support of the crown by technical legality and practical injustice the courts lost all repute as temples of the law. Even that high royalist, Lord Clarendon, recognised that reliance upon such means was a cause of weakness, not of strength, and that men ceased to respect judicial decisions when they were used to cloak the designs of government. “When they saw,” he writes, “in a court of law (that law that gave them a title to the possession of all they had) reason of state urged as elements of law, judges as sharp-sighted as secretaries of state, and in the mysteries of state, ... they had no reason to hope that doctrine, or the promoter of it, would be contained within any bounds. And here the damage and mischief cannot be expressed that the crown and state sustained by the deserved reproach and infamy that attended the judges; there being no possibility to preserve the dignity, reverence, and estimation of the laws themselves but by the integrity and innocency of the judges.”[488] To the thorough supporter of the administration the matter appeared in a different light. When the two dissenting judges gave way under pressure and adhered to the report of the majority in favour of ship-money, they were told by Lord Wentworth that it was the greatest service the legal profession had rendered to the crown during this period.[489]
For good or evil the work of reducing the bench to an arm of the administration had been done, and from this political degradation it did not recover for nearly three-quarters of a century, until William III was seated on the throne and the judges became independent of the crown.
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 upon the merits of cases when the administration was in power: the only difference was that formerly they had feared dismissal from the service of an angry sovereign as the result of an independent opinion, whereas now they feared impeachment at the hands of the angrier Commons.
Under the Commonwealth and the Protectorate the bench fared no better. In October 1649 all judges and other officers of the law, down to the very clerks of the courts, who had shown themselves hostile to the Parliament and in sympathy with the monarchy, were summarily dismissed, and their posts filled by men in whom trust could be reposed. Even this was not sufficient. In affairs of state justice was at a still greater discount under the Protectorate than under the monarchy. The cause of right was pleaded in vain when it came into collision with the power and plans of the Protector. “For not observing his pleasure” judges were rebuked, suspended, dismissed. Special judicial commissions were appointed to do his work; obnoxious attorneys and critical counsel were imprisoned.[494] The jury which acquitted Lilburn after “the furious hurley-burleys” of his second trial were sharply examined on their conduct by the Council of State.[495] Moreover the new appointments to the bench in spite of all care were not entirely satisfactory to Cromwell’s government. The judges still exhibited a bent which must have been far from pleasing to the republicans. Sir Matthew Hale withdrew as far as possible from all political trials and refused to sit on Penruddock’s trial after the collapse of the rising at Salisbury.[496] Surely it is this rather than the respectability of their characters that should explain how it came about that at the Restoration nine out of the fifteen republican judges then in office were found acceptable to the new government.
The character of the bench was no more altered by the Restoration than by the rebellion. If the traditions of forty years had clung too closely to be shaken off by those who might perhaps wish to be rid of them, they were not likely to be removed ten years later by those whose interest it was to retain them. The only practical difference was that the judges, whose duty as partisans of the government had been sealed by time and recognised by all who were concerned in the government, could now return to their more natural sphere as servants of the crown as well. Thenceforward until the end of the Stuart monarchy they were indispensable as allies of the king, protectors of the administration, shining examples of loyalty well applied and labour serviceably directed. They possessed moreover the signal advantage of being able to enforce the example which they inculcated. Those who did not obtained an evil reputation at court; and Sir Matthew Hale was looked at askance as one who was suspected of not lending a whole-hearted support to the government.[497] Even the theoretical advantage which had been gained by the Long Parliament now disappeared. Charles II took advantage of the lengthy prorogation of 1665 quietly to reintroduce appointments “at the good pleasure” of the crown.[498]
There was however some change for the better. A large majority of the nation was for the first time for thirty years united in sympathy with the government. The universal desire was for peace and stability. The great constitutional questions which had rent the kingdom and distracted the bench lay for the moment at rest. Government was no longer divided against itself; what was now found in opposition was not a combination of popular feeling with constitutional principle, to crush which the law must be strained by a serviceable judiciary, but a discredited party of fanatics and dissenters, the dregs of a defeated rebellion, against whom the law could be directed legally and to the satisfaction of the vast majority of the king’s subjects.
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]
One further instance may be noted. In 1675 a consultation of all the judges but two was held to decide a case which was submitted to them by the Attorney-General. A great riot had been made a month before by the weavers’ apprentices in various parts and suburbs of London by way of protest against the increased introduction of looms into their trade; the looms had been broken, a large amount of property destroyed, and several persons injured. The Attorney-General now wished to indict the rioters for high treason; but the judges were divided, five for, five against the opinion that treason had been committed, and in spite of the evident anxiety of the government to proceed against the apprentices on the graver issue, the Attorney-General had to be content with laying the indictments for a riot and obtaining convictions for the lesser offence.[501] When it is remembered that the London apprentices perpetually drew upon themselves the watchful eye of the government by their obnoxious politics, and that a trade riot was always suspected of being the forerunner of a sectarian revolt, it is evident that the decision of the judges meant considerable annoyance, if not an actual rebuff, to the government.[502]