after the accused was known, and with a particular view to his trial. The Lord High Steward is the Judge of his Court, which is held before him; his summons convenes the Peers for the trial; he determines, by his sole authority, all questions of law that arise in the course of the proceedings. The number and selection of the summoned Peers was, in the time of Charles II., in all cases, discretionary with the Lord High Steward. The Peers summoned cannot be challenged.

In a letter by Lord Cornbury to the Duke of Ormonde, he writes, that he had been informed, from a very credible quarter, that there was a design to prorogue the Parliament, on purpose to try his Father, Lord Clarendon, by a select Jury of Peers, through which means he might fall into the hands of those Lords who were manifestly his enemies; and that this was the reason of Lord Clarendon withdrawing himself from the kingdom. Pepys writes, at the period of the proceedings against Lord Clarendon, that it was considered "better for him to be tried before the Lords, where he could have right, and make interest, than, when the Parliament was up, be tried by a Court on purpose made by the King of what Lords the King pleases, who have a mind to have his head." Had Lord Shaftesbury's famous Indictment been found "a true Bill," he would have been tried in the Court of the High Steward, and the annals of Charles II. been stained with one more bloody sacrifice to despotism.

The Constitution may be thought to have been much improved, as regards the fair trial of Peers, by the Treason Bill of William III., in which it is enacted "That upon the trial of any Peer or Peeress either for treason or misprision, all the Peers who have a right to sit and vote in Parliament shall be summoned twenty days at least before every such trial, and that every Peer so summoned and appearing at such trial, shall sit and vote at the trial of such Peer or Peeress so to be tried."

II. Judges.

Lord Campbell observes that the power of removing Judges on any occasion at the will of the Crown, in the reign of Charles II., prevented him from understanding Blackstone's alleged theoretical perfection of the Constitution at that period. In aggravation of the evils arising from the precarious tenure of the office of Judges, must be considered the want of control during the long intermissions and prorogations of Parliament which were compatible with the Constitution in the reign of Charles II., however pensionless the Parliament whilst sitting might have been. Marvell did not, probably, exaggerate the evils which the Country endured from the Judges in the reign of Charles II., "What French counsel, what standing armies, what parliamentary bribes, what national oaths, and all other the machinations of wicked men had not been able to effect, was more compendiously acted by twelve men in scarlet." The public opinion of the judicial character must have been much degraded, when Roger North could publish a life of his brother Lord Keeper Guilford in a panegyrical style, which demonstrates his hero and relative to have been selfish, cunning, sneaking, and unprincipled, his only restraint being a regard to his personal safety, and the paramount object of his life being the obtaining of advancement by the meanest arts. It is true, that this reign, in its earlier period, was adorned by Sir Matthew Hale, a pattern to Judges for deep learning and strict integrity; and that, probably, his conduct would not have been altered one iota, had his patent been durante bene placito like those of his successors. But the subject of inquiry here is, whether the Constitution, particularly during the latter half of the reign of Charles II., was calculated to produce good or bad Judges?

The Patents of the Judges had been deemed a matter of constitutional importance in the reign of Charles I. In consequence of the disgraceful removals of Judges in that reign for the

purpose of preparing the way for the momentous decision on Ship Money, the House of Lords petitioned the King that the patents of the Judges might thereafter be quamdiu se bene gesserint, with which the King acquiesced. After the Restoration, under the administration of Lord Clarendon, the patents of Judges were quamdiu se bene gesserint. But it would appear that at least from the long prorogation of Parliament in 1665, it became the uniform practice to appoint the Judges durante bene placito1.

The removal of Judges for purposes of State, and the better to ensure the convictions of political victims, exemplifies in a very striking point of view the imperfection of the Constitution in the reign of Charles II., and the importance of amendments upon it made by the Act of Settlement, and by an Act at the commencement of the reign of George III.; the former establishing the Judges' patents permanently in the form of quamdiu se bene gesserint, the latter providing against their termination by the demise of the Crown. Lord Bacon writes of Henry VII., that he used to boast of governing England by his laws, and his laws by his lawyers; it may be thought that he could not have adopted a more effectual plan for this purpose than making the patents of his Judges durante bene placito.

The following examples illustrate the working of the system whereby Judges were made constitutionally the servitors of the Crown. When the Popish Plot began to engross public attention, the Government required a more unscrupulous tool for the Chief Justiceship of the King's Bench than Chief Justice Raynsford: he was accordingly dismissed, to make room for Scroggs. Chief Justice Scroggs served the government successfully, first in

1 Marvell writes, "During this inter-parliament there were five Judges' places either fell or were made vacant." Of the new appointments he adds, "they are all, by their patents, durante bene placito,” and concerning them all "there is too much to be said." See Siderfin's Reports, p. 408. Lord Hardwicke, in his notes upon the Address concerning the Judges' patents at the commencement of the reign of George III., considers that patents quamdiu se bene gesserint in the reign of Charles II. ceased after Clarendon's fall.

encouraging and then discouraging prosecutions for the Popish Plot, and in saving the Duke of York from a presentment for Recusancy, by suddenly dismissing a Grand Jury; but, in the end, he lost too much character, as well as weight with Juries, to be entrusted with the State prosecutions consequent on the dissolution of Charles's last Parliament: he was therefore cashiered. Pemberton, who had often prostituted the functions of a Judge in prosecutions for the Popish Plot, was made Chief Justice in his stead: this Judge presided at the trial of Fitzharris, who had been impeached, and at the examination before a Grand Jury of the witnesses against Shaftesbury, whose indictment was ignored. In 1683, the Quo Warranto against the City of London being ripe for argument, Saunders (whom Lord Campbell calls the legal Whittington), as hath been noticed in a previous page, was promoted to be Chief Justice of the King's Bench, in order that he might pass judgment on his own pleadings. Pemberton was removed to make room for Saunders, by a mitigated fall to the Chief Justiceship of the Common Pleas. Till the appointment of Jeffreys, after Saunders's death, there was no Judge who had proved himself so unscrupulous as Pemberton, and he was accordingly appointed to try Lord Russell. Although in that trial his conduct may be censured in the present day, according to many opinions, though not universally, it did not satisfy the rancour of the Court, and shortly after the trial, Pemberton was displaced altogether from the Bench. Jeffreys, the Judge, who, by universal consent, is considered to have disgraced the English Bench more than any other individual who ever sat upon it1, was made Chief Justice of the King's Bench, in time to preside at the trial of Algernon

1 The character and conduct of Jeffreys are usually taken from Roger North and the State Trials. The following coincidence is less known: Sir W. Dugdale writes, "The Lord High Steward (Jeffreys) railed at us (the Heralds) before the Judges, telling them we were a company of ignorant coxcombs, and, at the coronation, when asked a question, stood gaping. I began to speak; but he was so fiery, I was forced to be silent."

Sydney. Pemberton, before his elevation to the Chief Justiceship of the King's Bench, in 1681, had, in May, 1679, been made a puisne Judge of the King's Bench, and had been removed in the February following. He had two falls from the Bench to the Bar, and after each he resumed his practice, as a Sergeant, in Westminster Hall. He was deservedly omitted in the restorations of Judges at the Revolution'.

III. Juries.

Inestimable in State Prosecutions is the Trial by Jury. But, agreeably to the adage Corruptio optimi est pessima, there can be no worse engine than that mode of trial for aggravating the evils of an imperfect Constitution. A medal struck upon the occasion of the acquittal of Lilburn preserves the names of his Jury, but neither they, nor the names of the Juries which acquitted the Seven Bishops or Hardy, are reckoned among our household words. Still less, if possible, is known of the names of bad Jurymen, whose wicked verdicts have been pronounced under the protection of a generic and venerated appellation, and

1 A number of details concerning the removals of Judges mentioned in the text, and various others, may be found in Roger North's Life of Lord Keeper Guilford; Lord Campbell's Lives of the Chief Justices; and the Appendix to Heywood's Vindication of Fox's History; Lord Hardwicke's Notes, before mentioned, Par. Hist. Vol. XV.; Speaker Onslow's Note to Burnet, Vol. II. p. 12; the Author's Fortescue, p. 197. Sir W. Wild was appointed a Judge in 1672, and removed in 1679; Sir F. Brampston, appointed in 1678, was removed in 1679; Sir W. Dolben, appointed in 1677, was removed in 1683; Sir T. Street, appointed in 1681, was removed in 1684; Sir W. Ellis, appointed in 1672, was removed in 1676; Sir R. Atkyns, appointed in 1672, was removed in 1679; at the Revolution he was made Chief Baron of the Exchequer. The cause of Atkyns's removal was, his objecting on a circuit, upon which he travelled with Scroggs, to doctrines which Scroggs laid down, that it was high treason to petition for a Parliament, and that the King might prevent, by proclamation, the publishing of whatever he chose. Judge Archer, who was appointed in 1663, whilst the patents were quamdiu se bene gesserint, was superseded in 1672, as the Reporter says, "Pro quibusdam causis mihi incognitis." This Judge, relying on the terms of his patent, refused to surrender it without a Scire Facias. He was, however, prohibited from sitting in court, but received a share of the fees, and his name continued to be used in fines and other records. These rises and falls of Judges are analogous to those of Mistresses in Cowley's Chronicle.