Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression

There were several appeals from decrees of the lord keeper speedily brought to a hearing. “Jeffreys affected to let fly at them, to have it thought that he was fitter to be chancellor.” He attended, neglecting all other business; and during the argument, and in giving his opinion, took every opportunity of disparaging the lord keeper’s law, preparatory to moving reversals. He was particularly outrageous in the case of Howard v. The Duke of Norfolk, being emboldened to talk confidently on matters with which he was not much acquainted, by having to rest on the reputation of Lord Nottingham. That great equity lawyer, contrary to the opinion of the two chief justices and the chief baron, whom he had called in to assist him, had held that an equitable estate tail might be created in a term of years; but his successor had reversed his decree, and the decree of reversal was now under appeal. “Lord Chief Justice Jeffreys, by means of some encouragement he had met with, took upon him the part of slighting and insulting his lordship on all occasions that proffered. And here he had a rare opportunity; for, in his rude way of talking, and others of a party after him, he battered the poor decree; not without the most indecent affronts to his lordship that in such an assembly ever were heard.” The courtesy now prevailing between law lords of opposite political parties was not then known between colleagues sitting in the same cabinet; and the poor lord keeper was assailed by the coarsest vituperation, and the most cutting ridicule. The second Earl of Nottingham, son of the chancellor, “who hated him because he had endeavored to detract from his father’s memory,” likewise took this opportunity to attack him, and got together many instances of his ill administration of justice, and greatly exposed him. He was not roused into retaliation or resistance; and he contented himself with a dry legal argument. The decree was reversed; and when he announced that the contents had it, he must have felt as if he had been sounding his own death knell. The lay lords who voted could have known nothing of the merits of such a nice question; and must have been guided by favor or enmity to the lord keeper or the lord chief justice. What rendered the defeat and contemptuous usage the more galling was the presence of the king; for James, like his brother, attended in the House of Lords when any thing interesting was coming on; and walked about the house, or stood by the fire, or sat in his chair of state or on the woolsack, as suited his fancy.

“Having opened this scene,” says Roger, “we are not to expect other than opposition, contempt, and brutal usage, of that chief towards his lordship while he lived.”

There were few debates in the House of Lords during this short session; but, even in going through the common forms of the House, Jeffreys found opportunities publicly to testify his contempt for the lord keeper; and in the cabinet, in discussing the dispensation to be granted to Catholic officers to serve in the army, and other subjects, he constantly laid traps for him, with a view of either making him obnoxious to the king, or odious to the public – who considered him the author of every declaration or dispensation which passed the great seal.

Sunderland and other members of the cabinet openly joined in this persecution, and “he was little less than derided by them. Being soon to be laid aside, he was not relied upon in any thing, but was truly a seal-keeper rather than a minister of state, and kept on for despatch of the formularies, rather than for advice or trust.” Why did he not resign? It is difficult to understand the reasoning of his brother, who thus accounts for his continuing to bear such insults: – “His lordship was so ill used at court by the Earl of Sunderland, Jeffreys, and their sub-sycophants, that I am persuaded if he had had less pride of heart, he had been tempted to have delivered up the seal in full health. But he cared not to gratify, by that, such disingenuous enemies. He cared not to humor these barkers, or to quit his place before he might do it with safety to his dignity. He intended to stay till the king would bear him no longer, and then make it his majesty’s own act to remove him.”

He felt keenly a sense of the insignificance and disfavor into which he had fallen; and the anticipation of “the worse remaining behind,” when he was to be finally kicked out, preyed upon his spirits. No longer was he ear-wigged by the Lord Cravens, who worship a favorite; no more did the foreign ambassadors bow low when they thought that he observed them: his levee was now deserted; he seemed to himself to discover a sneer on every countenance at Whitehall; and he suspected that the bar, the officers of the court, and the bystanders in chancery, looked at him as if they were sure of his coming disgrace. To shade himself from observation, while he sat on the bench he held a large nosegay before his face.

Dreadfully dejected, he lost his appetite and his strength. He could not even get through the business of the court; and remanets multiplying upon him kept him awake at night, or haunted him in his sleep. He drooped so much, that for some time he seemed quite heart-broken. At last, he had an attack of fever, which confined him to his bed.

The coronation was approaching, and it was important that he should sit in the “Court of Claims.” Having recovered a little by the use of Jesuits’ bark, he presided there, though still extremely weak; and he walked at the coronation “as a ghost with the visage of death upon him, such a sunk and spiritless countenance he had.”

While he was in this wretched state, news arrived that the Duke of Monmouth had landed in the west of England and raised the standard of rebellion. The Parliament, having come to a number of loyal votes, having attainted the duke, and granted a supply, was adjourned, that the members might assist in preserving tranquillity in their several districts.

The lord keeper talked of resigning, and wrote a letter to the Earl of Rochester, to ask leave to go into the country for the recovery of his health, saying, “I have put myself into the hands of a doctor, who assures me of a speedy cure by entering into a course of physic.” Leave was given, and he proceeded to Wroxton, in Oxfordshire, the seat which belonged to him in right of his wife.

Here he languished while the battle of Sedgemoor was fought – Monmouth, after in vain trying to melt the heart of his obdurate uncle, was executed on Tower Hill under his parliamentary attainder, and the inhuman Jeffreys, armed with civil and military authority, set out on his celebrated “campaign.” Roger North would make us believe that the dying Guilford was horrified by the effusion of blood which was now incarnardining the western counties by command of the lord general chief justice, and that he actually interposed to stay it: – “Upon the news returned of his violent proceedings, his lordship saw the king would be a great sufferer thereby, and went directly to the king, and moved him to put a stop to the fury, which was in no respect for his service; but in many respects for the contrary. For though the executions were by law just, yet never were the deluded people all capitally punished; and it would be accounted a carnage and not law or justice; and thereupon orders went to mitigate the proceeding. I am sure of his lordship’s intercession to the king on this occasion, being told it at the very time by himself.” It is painful to doubt the supposed exertion of mercy and firmness by the lord keeper; but an attention to dates, of which this biographer is always so inconceivably negligent, shows the story to be impossible. Jeffreys did not open his campaign by the slaughter of the Lady Lisle, at Winchester, till the 27th of August, and he carried it on with increased cruelty till the very end of September. On the 5th of September died Lord Keeper Guilford, at Wroxton, after having been for some weeks in a state of such debility and exhaustion that, able only to attend to his spiritual concerns, he thought no more of domestic treason or foreign levy than if he had already slept in the grave. For a short time after his arrival there, he rallied, by the use of mineral waters, but he soon had a relapse, and he could with difficulty sign his will. He was peevish and fretful during his sickness, but calmly met his end. “He advised his friends not to mourn for him, yet commended an old maid-servant for her good will that said, ‘As long as there is life there is hope.’ At length, having strove a little to rise, he said, ‘It will not do;’ and then, with patience and resignation, lay down for good and all, and expired.”

He was buried in Wroxton Church, in a vault belonging to his wife’s family, the Earls of Down.

“He was a crafty and designing man,” says Bishop Burnet. “He had no mind to part with the great seal, and yet he saw he could not hold it without an entire compliance with the pleasure of the court. Nothing but his successor made him be remembered with regret. He had not the virtues of his predecessor; but he had parts far beyond him. They were turned to craft; so that whereas the former (Lord Nottingham) seemed to mean well even when he did ill, this man was believed to mean ill even when he did well.” I accede to this character, with the exception of the estimate of North’s “parts,” which I think are greatly overrated. He was sharp and shrewd, but of no imagination, of no depth, of no grasp of intellect, any more than generosity of sentiment. Cunning, industry, and opportunity may make such a man at any time. A Nottingham does not arise above once in a century.

Guilford had as much law as he could contain, but he was incapable of taking an enlarged and commanding view of any subject. In equity, he did nothing to rear up the system of which the foundations had been so admirably laid by his predecessor. His industry was commendable; and I think he may be fairly acquitted of corruption, notwithstanding his indiscreet acceptance of a present of one thousand pounds from the six clerks, when they had a dispute with the sixty, on which he was to adjudicate. Where he was not under the apprehension of personal responsibility, there was nothing which he would not say or do to exalt the prerogative and please his patrons. I shall add only one instance. Sir Thomas Armstrong was outlawed for high treason while beyond the seas unless he surrendered within a year. Being sent over a prisoner from Holland within a year, he insisted that he was entitled to a writ of error to reverse the outlawry and to be admitted to make his defence; but the lord keeper refused him his writ of error, first, on the pretence that there was no fiat for it by the attorney general, and then, that he had no right to reverse his outlawry, as he was present by compulsion. Thus the unhappy victim was sent to instant execution without trial.

So zealous a conservative was Guilford, that “he thought the taking away of the tenures” (i. e. the abolition of wardship and the other oppressive feudal burdens introduced at the conquest) “a desperate wound to the liberties of the people.”

The court wags made great sport of him, the Earl of Sunderland taking the lead, and giving out the signal, while Jeffreys was always ready to join in the laugh. I may offer as an example “the story of the rhinoceros.” My lord keeper went one day into the city, accompanied by his brother Sir Dudley, to see a rhinoceros of enormous size lately imported, and about to be exhibited as a show.[107 - Evelyn tells us that this was the first rhinoceros ever introduced into England, and that it sold for two thousand pounds.] Next morning, at Whitehall, a rumor was industriously spread that the lord keeper had been riding on the rhinoceros, “and soon after dinner some lords and others came to his lordship to know the truth from himself; for the setters of the lie affirmed it positively, as of their own knowledge. That did not give his lordship much disturbance, for he expected no better from his adversaries. But that his friends, intelligent persons, who must know him to be far from guilty of any childish levity, should believe it, was what roiled him extremely, and much more when they had the face to come to him to know if it were true. So it passed; and the Earl of Sunderland, with Jeffreys and others of that crew, never blushed at the lie of their own making, but valued themselves upon it as a very good jest.”

To try how far his compliance with the humors of the court would go, they next persuaded his own brother-in-law (that he might not suspect the hoax) to wait upon him, and in strict confidence, and with great seriousness, to advise him to keep a mistress, “otherwise he would lose all his interest with the king; for it was well understood that he was ill looked upon for want of doing so, because he seemed continually to reprehend them by not falling in with the general custom; and the messenger added, that if his lordship pleased he would help him to one.” He declined the offer – with much politeness, however, lest he should give offence. But with his familiar friends “he made wonderfully merry with this state policy, especially the procuring part, and said, that if he were to entertain a madam, it would be one of his own choosing, and not one of their stale trumpery.”

Although he never aimed at oratory, it is said that he meditated a “history of his own times.” He might have transmitted to us many curious anecdotes, but the performance must have been without literary merit; for some of his notes which he had written as materials are in the most wretched style, and show that he was unacquainted with the first principles of English composition, and even with the common rules of grammar. He did publish two or three short tracts “on music” and other subjects, which were soon forgotten. He was well versed in music, conversed with Sir Peter Lely about painting, speculated with natural philosophers on the use of the bladder of fishes, and learned several of the continental languages; but he seems never to have looked into a classical writer after he left college, and to have had the same taste for the belles lettres as his brother Roger, who, placing them all in the same category, talks with equal contempt of “departed quacks, poets, and almanack makers.” Although his two immediate predecessors were libelled and lauded by popular verses in the mouths of every one, I can find no allusion in any fine writer either of the court or country party to North; and it may be doubtful whether he knew anything of the works of Butler, of Dryden, of Waller, or of Cowley, beyond the snatches of them he may have heard repeated in the merry circle at Whitehall.

He lived very hospitably, receiving those who retailed the gossip of the day in his house in Great Queen Street, Lincoln’s Inn Fields, then the fashionable quarter of the town for the great nobility as well as for eminent lawyers. The nobility and chief gentry coming to London frequently dined with him. The dinner was at a very early hour, and did not last long. “After a solemn service of tea in a withdrawing room, the company usually left him.” He had a court room fitted up on the ground floor, which he then entered, and there he continued hearing causes and exceptions, sometimes to what was considered a late hour. About eight o’clock came supper, which he took with a few private friends, and relished as the most agreeable and refreshing meal of the day.

In the vacations, when he could be spared from London, he retired to his seat at Wroxton. For some years he likewise rented a villa at Hammersmith, but this he gave up soon after his wife’s death. He had the misfortune to lose her after they had been married only a few years. She seems to have been a very amiable person. She found out when her husband had any trouble upon his spirits, and she would say, “Come, Sir Francis, (as she always styled him,) you shall not think; we must talk and be merry, and you shall not look on the fire as you do. I know something troubles you; and I will not have it so.” He would never marry again, which in his last illness he repented, for “he fancied that in the night human heat was friendly.”

He was extremely amiable in all the relations of domestic life. Nothing can be more touching than the account we have of the warm and steady affection subsisting between him and his brother, who survived to be his biographer.

The lord keeper was a little but handsome man, and is said to have had “an ingenuous aspect.”

He left behind him Francis, his son and heir, the second Baron Guilford, father of Francis, the third Baron Guilford, on whom descended the barony of North, by failure of the elder branch of the family, and who, in 1752, was created Earl of Guilford, and was the father of Lord North, the prime minister, so celebrated for his polished oratory, his refined wit, and amiable manners.[108 - We may add – for his tory principles, and for the loss of America to the British crown. —Ed.]

When we estimate what the lord keeper achieved, we should bear in mind that he died at forty-eight, an age considerably more advanced than that reached by his immediate successor; yet under that at which other lord chancellors and lord keepers began to look for promotion. He was in truth solicitor general at thirty-four, attorney general at thirty-seven, chief justice of the Common Pleas at thirty-eight, and lord keeper and a peer at forty-five. It is probably well for his memory that his career was not prolonged. He might have made a respectable judge when the constitution was settled; but he was wholly unfit for the times in which he lived.

I ought not to conclude this memoir without acknowledging my obligations to “Roger North’s Life of the Lord Keeper;” which, like “Boswell’s Life of Johnson,” interests us highly, without giving us a very exalted notion of the author. Notwithstanding its extravagant praise of the hero of the tale, its inaccuracies, and its want of method, it is a most valuable piece of biography, and with Roger’s lives of his brothers “Dudley and John,” and his “Examen,” ought to be studied by every one who wishes to understand the history and the manners of the reign of Charles II.

CHAPTER XIV.

EDMUND SAUNDERS

There never was a more flagrant abuse of the prerogative of the crown than the appointment of a chief justice of the King’s Bench for the undisguised purpose of giving judgment for the destruction of the charters of the city of London, as a step to the establishment of despotism over the land. Sir Edmund Saunders accomplished this task effectually, and would, without scruple or remorse, have given any other illegal judgment required of him by a corrupt government. Yet I feel inclined to treat his failings with lenience, and those who become acquainted with his character are apt to have a lurking kindness for him. From the disadvantages of his birth and breeding, he had little moral discipline; and he not only showed wonderful talents, but very amiable social qualities. His rise was most extraordinary, and he may be considered as our legal Whittington.

“He was at first,” says Roger North, “no better than a poor beggar-boy, if not a parish foundling, without known parents or relations.” There can be no doubt that, when a boy, he was discovered wandering about the streets of London in the most destitute condition – penniless, friendless, without having learned any trade, without having received any education. But although his parentage was unknown to the contemporaries with whom he lived when he had advanced himself in the world, recent inquiries have ascertained that he was born in the parish of Barnwood, close by the city of Gloucester; and his father, who was above the lowest rank of life, died when he was an infant, and that his mother took for her second husband a man of the name of Gregory, to whom she bore several children. We know nothing more respecting him, with certainty, till he presented himself in the metropolis; and we are left to imagine that he might have been driven to roam abroad for subsistence, by reason of his mother’s cottage being levelled to the ground during the siege of Gloucester; or that, being hardly used by his step-father, he had run away, and had accompanied the broad-wheeled wagon to London, where he had heard that riches and plenty abounded.

The little fugitive found shelter in Clement’s Inn, where “he lived by obsequiousness, and courting the attorneys’ clerks for scraps.” He began as an errand boy, and his remarkable diligence and obliging disposition created a general interest in his favor. Expressing an eager ambition to learn to write, one of the attorneys of the Inn got a board knocked up at a window on the top of a staircase. This was his desk, and, sitting here, he not only learned the running hand of the time, but court hand, black letter, and engrossing, and made himself “an expert entering clerk.” In winter, while at work, he covered his shoulders with a blanket, tied hay bands round his legs, and made the blood circulate through his fingers by rubbing them when they grew stiff. His next step was to copy deeds and law papers, at so much a folio or page, by which he was enabled to procure for himself wholesome food and decent clothes. Meanwhile he not only picked up a knowledge of Norman French and law Latin, but, by borrowing books, acquired a deep insight into the principles of conveyancing and special pleading. By and by the friends he had acquired enabled him to take a small chamber, to furnish it, and to begin business on his own account as a conveyancer and special pleader. But it was in the latter department that he took greatest delight and was the most skilful – insomuch that he gained the reputation of being familiarly acquainted with all its mysteries; and although the order of “special pleaders under the bar” was not established till many years after, he was much resorted to by attorneys who wished by a sham plea to get over the term, or by a subtle replication to take an undue advantage of the defendant.

It has been untruly said of him, as of Jeffreys, that he began to practise as a barrister without ever having been called to the bar. In truth, the attorneys who consulted him having observed to him that they should like to have his assistance to maintain in court the astute devices which he recommended, and which duller men did not comprehend, or were ashamed of, he rather unwillingly listened to their suggestion that he should be entered of an Inn of Court, for he never cared much for great profits or high offices; and having money enough to buy beer and tobacco, the only luxuries in which he wished to indulge, he would have preferred to continue the huggermugger life which he now led. He was domesticated in the family of a tailor in Butcher Row, near Temple Bar, and was supposed to be rather too intimate with the mistress of the house. However, without giving up his lodging here, to which he resolutely stuck till he was made lord chief justice of England, he was prevailed upon to enter as a member of the Middle Temple. Accordingly, on the 4th of July, 1660, he was admitted there by the description of “Mr. Edward Saunders, of the county of the city of Gloucester, gentleman.” The omission to mention the name of his father might have given rise to the report that he was a foundling; but a statement of parentage on such occasions, though usual, was not absolutely required, as it now is.

He henceforth attended “moots,” and excited great admiration by his readiness in putting cases and taking of objections. By his extraordinary good humor and joviality, he likewise stood high in the favor of his brother templars. The term of study was then seven years, liable to be abridged on proof of proficiency; and the benchers of the Middle Temple had the discernment and the liberality to call Saunders to the bar when his name had been on their books little more than four years.

We have a striking proof of the rapidity with which he rushed into full business. He compiled reports of the decisions of the Court of King’s Bench, beginning with Michaelmas term, 18 Charles II., A. D. 1666, when he had only been two years at the bar. These he continued till Easter term, 24 Charles II., A. D. 1672. They contain all the cases of the slightest importance which came before the court during that period; and he was counsel in every one of them.

His “hold of business” appears the more wonderful when we consider that his liaison with the tailor’s wife was well known, and might have been expected to damage him even in those profligate times; and that he occasionally indulged to great excess in drinking, so that he must often have come into court very little acquainted with his “breviat,” and must have trusted to his quickness in finding out the questions to be argued, and to his storehouses of learning for the apposite authorities.

But when we peruse his “reports,” the mystery is solved, There is no such treat for a common lawyer. Lord Mansfield called him the “Terence of reporters,” and he certainly supports the forensic dialogue with exquisite art, displaying infinite skill himself in the points which he makes, and the manner in which he defends them; doing ample justice at the same time to the ingenuity and learning of his antagonist. Considering the barbarous dialect in which he wrote, (for the Norman French was restored with Charles II.,) it is marvellous to observe what a clear, terse, and epigrammatic style he uses on the most abstruse juridical topics.

He labored under the imputation of being fond of sharp practice, and he was several times rebuked by the court for being “trop subtile,” or “going too near the wind;” but he was said by his admirers to be fond of his craft only in meliori sensu, or in the good sense of the word, and that, in entrapping the opposite party, he was actuated by a love of fun rather than a love of fraud. Thus is he characterized, as a practitioner, by Roger North: —

“Wit and repartee in an affected rusticity were natural to him. He was ever ready, and never at a loss, and none came so near as he to be a match for Serjeant Maynard. His great dexterity was in the art of special pleading, and he would lay snares that often caught his superiors, who were not aware of his traps. And he was so fond of success for his clients that, rather than fail, he would set the court hard with a trick; for which he met sometimes with a reprimand, which he would wittily ward off, so that no one was much offended with him. But Hale could not bear his irregularity of life; and for that, and suspicion of his tricks, used to bear hard upon him in the court. But no ill usage from the bench was too hard for his hold of business, being such as scarce any could do but himself.”

He did not, like Scroggs and Jeffreys, intrigue for advancement. He neither sought favor with the popular leaders in the city, nor tried to be introduced into Chiffinch’s “spie office” at Whitehall. “In no time did he lean to faction, but did his business without offence to any. He put off officious talk of government and politics with jests, and so made his wit a catholicon or shield to cover all his weak places and infirmities.” He was in the habit of laughing both at Cavaliers and Roundheads; and, though nothing of a Puritan himself, the semi-Popish high-churchmen were often the objects of his satire.

His professional, or rather his special pleading, reputation forced on him the advancement which he did not covet. Towards the end of the reign of Charles II., when the courts of justice were turned into instruments of tyranny, (or, as it was mildly said, “the court fell into a steady course of using the law against all kinds of offenders,”) Saunders had a general retainer from the crown, and was specially employed in drawing indictments against Whigs, and quo warrantos against whiggish corporations. In crown cases he really considered the king as his client, and was as eager to gain the day for him, by all sorts of manœuvres, as he had ever been for a roguish Clement’s Inn attorney. He it was that suggested the mode of proceeding against Lord Shaftesbury for high treason; on his recommendation the experiment was made of examining the witnesses before the grand jury in open court, and he suggested the subtlety that “the usual secresy observed being for the king’s benefit, it might be waived by the king at his pleasure.” When the important day arrived, he himself interrogated very artfully Mr. Blathwayt, the clerk of the council, who was called to produce the papers which had been seized at Lord Shaftesbury’s house in Aldersgate street, and gave a treasonable tinge to all that passed. The ignoramus of his indictment must have been a heavy disappointment to him; but the effort which he made gave high satisfaction to the king, who knighted him on the occasion, and from that time looked forward to him as a worthy chief justice.

Upon the dissolution of the Oxford Parliament and the rout of the Whig party, it being resolved to hang Fitzharris, Saunders argued with uncommon zeal against the prisoner’s plea, that there was an impeachment depending for the same offence, and concluded his legal argument in a manner which seems to us very inconsistent with the calmness of a dry legal argument – “Let him plead guilty or not guilty; I rather hope that he is not guilty than he is guilty; but if he be guilty, it is the most horrid, venomous treason ever spread abroad in any age, and for that reason your lordships will not give countenance to any delay.”

I find him several times retained as counsel against the crown; but upon these occasions the government wished for an acquittal. He defended the persons who were prosecuted for attempting to throw discredit on the Popish Plot, he was assigned as one of the counsel for Lord Viscount Stafford, and he supported the application made by the Earl of Danby to be discharged out of custody. On this last occasion he got into a violent altercation with Lord Chief Justice Pemberton. The report says that “Mr. Saunders had hardly begun to speak when the Lord Chief Justice Pemberton did reprimand the said Mr. Saunders for having offered to impose upon the court. To all which Mr. Saunders replied, that he humbly begged his lordship’s pardon, but he did believe that the rest of his brethren understood the matter as he did.” The Earl of Danby supported this statement, and Saunders had a complete triumph over the chief justice.

Pemberton was soon removed from the office of chief justice of the King’s Bench, and Saunders sat in his place.

In spite of the victory which the king had gained over the Whigs at the dissolution of his last Parliament, he found one obstacle remain to the perpetuation of his despotic sway in the franchises of the city of London. The citizens (among whom were then included all the great merchants and some of the nobility and gentry) were still empowered to elect their own magistrates; they were entitled to hold public meetings; and they could rely upon the pure administration of justice by impartial juries, should they be prosecuted by the government. The attorney and solicitor general, being consulted, acknowledged that it passed their skill to find a remedy; but a case being laid before Saunders, he advised that something should be discovered which might be set up as a forfeiture of the city charters, and that a quo warranto should be brought against the citizens, calling upon them to show by what authority they presumed to act as a corporation. Nothing bearing the color even of irregularity could be suggested against them, except that, on the rebuilding and enlarging of the markets after the great fire, a by-law had been made, requiring those who exposed cattle and goods to contribute to the expense of the improvements by the payment of a small toll; and that the lord mayor, aldermen, and commonalty of the city had, in the year 1679, presented a petition to the king lamenting the prorogation of Parliament in the following terms: “Your petitioners are greatly surprised at the late prorogation, whereby the prosecution of the public justice of the kingdom, and the making of necessary provisions for the preservation of your majesty and your Protestant subjects, have received interruption.”

Saunders allowed that these grounds of forfeiture were rather scanty, but undertook to make out the by-law to be the usurpation of a power to impose taxes without authority of Parliament, and the petition a seditious interference with the just prerogative of the crown.[109 - Saunders was very ingenious; but in the invention of charges to serve the turn of tyranny he has his match in some of our American lawyers. —Ed.]

Accordingly, the quo warranto was sued out, and, to the plea setting forth the charters under which the citizens of London exercised their privileges as a corporation, he drew an ingenious replication, averring that the citizens had forfeited their charters by usurping a power to impose taxes without authority of Parliament, and by seditiously interfering with the just prerogative of the crown. The written pleadings ended in a demurrer, by which the sufficiency of the replication was referred, as a question of law, to the judgment of the Court of King’s Bench.

Saunders was preparing himself to argue the case as counsel for the crown, when, to his utter astonishment, he received a letter from the lord keeper announcing his majesty’s pleasure that he should be chief justice. He not only never had intrigued for the office, but his appointment to it had never entered his imagination; and he declared, probably with sincerity, that he would much sooner have remained at the bar, as he doubted whether he could continue to live with the tailor in Butcher Row, and he was afraid that all his favorite habits would be dislocated. This arrangement must have been suggested by cunning lawyers, who were distrustful of Pemberton, and were sure that Saunders might be relied upon. But Roger North ascribed it to Charles himself; not attempting, however, to disguise the corrupt motive for it. “The king,” says he, “observing him to be of a free disposition, loyal, friendly, and without greediness or guile, thought of him to be chief justice of the King’s Bench at that nice time. And the ministry could not but approve of it. So great a weight was then at stake as could not be trusted to men of doubtful principles, or such as any thing might tempt to desert them.”

On the 23d of January, being the first day of Hilary term, 1683, Sir Edmund Saunders appeared at the bar of the Court of Chancery, in obedience to a writ requiring him to take upon himself the degree of serjeant at law, and distributed the usual number of gold rings, of the accustomed weight and fineness, with the courtly motto, “Principi sic placuit.” He then had his coif put on, and proceeded to the bar of the Common Pleas, where he went through the form of pleading a sham cause as a serjeant. Next he was marched to the bar of the King’s Bench, where he saw the lord keeper on the bench, who made him a flowery oration, pretending “that Sir Francis Pemberton, at his own request, had been allowed to resign the office of chief justice of that court, and that his majesty, looking only to the good of his subjects, had selected as a successor him who was allowed to be the fittest, not only for learning, but for every other qualification.” The new chief justice, who often expressed a sincere dislike of palaver, contented himself with repeating the motto on his rings, “Principi sic placuit;” and having taken the oaths, was placed on the bench, and at once began the business of the court.

In a few days afterwards came on to be argued the great case of The King v. the Mayor and Commonalty of the City of London. Fitch, the solicitor general, appeared for the crown; and Treby, the recorder of London, for the defendants. The former was heard very favorably; but the latter having contended that, even if the by-law and the petition were illegal, they must be considered only as the acts of the individuals who had concurred in them, and could not affect the privileges of the body corporate, – an ens legis, without a soul, and without the capacity of sinning, – Lord Chief Justice Saunders exclaimed, —

“According to your notion, never was one corporate act done by them; certainly, whatsoever the Common Council does, binds the whole; otherwise it is impossible for you to do any corporate act; for you never do, and never can, convene all the citizens. Then you say your petition is no reflection on the king, but it says that by the prorogation public justice was interrupted. If so, by whom was public justice interrupted? Why, by the king! And is it no reflection on the king that, instead of distributing justice to his people, he prevents them from obtaining justice? You must allow that the accusation is either true or false. But, supposing it true that the king did amiss in prorogating the Parliament, the Common Council of London, neither by charter nor prescription, had any right to control him. If the matter were not true, (as it is not,) the petition is a mere calumny. But if you could justify the presenting of the petition, how can you justify the printing of it, whereby the mayor, aldermen, and citizens of London do let all the nation know that the king, by the prorogation of Parliament, hath given the public justice of the nation an interruption? Pray, by what law, or custom, or charter, is this privilege of censure exercised? You stand forth as ‘chartered libertines.’ As for the impeccability of the corporation, and your doctrine that nothing which it does can affect its being, strange would be the result if that which the corporation does is not the act of the corporation, and if, the act being unlawful and wicked, the corporation shall be dispunishable. I tell you, I deliver no opinion now; I only mention some points worthy of consideration. Let the case be argued again next term.”

In the ensuing term the case was again argued by Sawyer, the attorney general, for the crown, and Pollexfen for the city, when Lord Chief Justice Saunders said, “We shall take time to be advised of our opinion, but I cannot help now saying what a grievous thing it would be if a corporation cannot be forfeited or dissolved for any crime whatsoever. Then it is plain that you oust the king of his quo warranto, and that, as many corporations as there are, so many independent commonwealths are established in England. We shall look into the precedents, and give judgment next term.”

When next term arrived, the Lord Chief Justice Saunders was on his death-bed. His course of life was so different from what it had been, and his diet and exercise so changed, that the constitution of his body could not sustain it, and he fell into an apoplexy and palsy from which he never recovered. But before his illness he had secured the votes of his brethren.