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 manoeuvres, 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.[110]

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.

The judgment of the court was pronounced by Mr. Justice Jones,[111] the senior puisne judge, who said,—“Several times have we met and had conference about this matter, and we have waited on my Lord Saunders during his sickness often; and upon deliberation, we are unanimously of opinion that a corporation aggregate, such as the city of London, may be forfeited and seized into the king’s hands, on a breach of the trust reposed in it for the good government of the king’s subjects; that to assume the power of making bylaws to levy money is a just cause of forfeiture; and that the petition in the pleadings mentioned is so scandalous to the king and his government that it is a just cause of forfeiture. Therefore, this court doth award that the liberties and franchises of the city of London be seized into the king’s hand.”

This judgment was considered a prodigious triumph, but it led directly to the misgovernment which in little more than five years brought about the Revolution and the establishment of a new dynasty. To guard against similar attempts in all time to come, the charters, liberties, and customs of the city of London were then confirmed, and for ever established, by act of Parliament.

Saunders was chief justice so short a time, and this was so completely occupied with the great Quo Warranto case, that I have little more to say of him as a judge. We are told that “while he sat in the Court of King’s Bench he gave the rule to the general satisfaction of the lawyers.”

We have the account of only one trial before him at nisi prius, that of Pilkington, Lord Grey de Werke, and others, for a riot. Before the city of London was taken by a regular siege, an attempt had been made upon it by a coup de main. The scheme was to prevent the regular election of sheriffs, and to force upon the city the two court candidates, who had only a small minority of electors in their favor. In spite of violence used on their behalf, the poll was going in favor of the liberal candidates, when the lord mayor, who had been gained over by the government, pretended to adjourn the election to a future day. The existing sheriffs, who were the proper officers to preside, continued the poll, and declared the liberal candidates duly elected. Nevertheless, the court candidates were sworn in as sheriffs, and those who had insisted on continuing the election after the pretended adjournment by the lord mayor were prosecuted for a riot.[112] They pleaded not guilty, and a jury to try them having been summoned by the new sheriffs, the trial came on at Guildhall before Lord Chief Justice Saunders. He was then much enfeebled in health, and the excitement produced by it was supposed to have been the cause of the fatal malady by which he was struck a few days after.

The jury being called, the counsel for the defendants put in a challenge to the array, on the ground that the supposed sheriffs, by whom the jury had been returned, were not the lawful sheriffs of the city of London, and had an interest in the question.

L. C. J. Saunders.—“Gentlemen, I am sorry you should have so bad an opinion of me, and think me so little of a lawyer, as not to know that this is but trifling, and has nothing in it. Pray, gentlemen, do not put these things upon me.” Mr. Thompson.—“I desire it may be read, my lord.” L. C. J. Saunders.—“You would not have done this before another judge; you would not have done it if Sir Matthew Hale had been here. There is no law in it.” Mr. Thompson.—“We desire it may be read.” L. C. J. Saunders.—“This is only to tickle the people.” The challenge, however, was read. Jeffreys.—“Here is a tale of a tub indeed!” L. C. J. Saunders.—“Ay, it is nothing else, and I wonder that lawyers should put such a thing upon me.” Mr. Thompson.—“My lord, we desire this challenge should be allowed.” L. C. J. Saunders.—“No, indeed, won’t I. There is no color for it.” Mr. Thompson.—“My lord, is the fact true or false? If it be insufficient in point of law, let them demur.” Jeffreys.—“‘Robin Hood on Greendale stood’!!! I pray for the king that it may be overruled.” Mr. Thompson.—“My lord, I say where a sheriff is interested in point of title, he is no person in law to return a jury. The very title to the office is here in question.” L. C. J. Saunders.—“Mr. Thompson, methinks you have found out an invention, that the king should never have power to try it even so long as the world stands. Who would you have the process go to?” Mr. Thompson.—“To the coroner.” L. C. J. Saunders.—“My speech is but bad; let me know what objection is made, and if I can but retain it in my memory, I don’t question but to give you satisfaction. The sheriffs who returned the jury are sheriffs de facto, and their title cannot thus be inquired into. Wherever the defendant thinks it may go hard with him, are we to have a trial whether the sheriffs be sheriffs or no? What you are doing may be done in every cause that may be trying.” Mr. Thompson.—“My lord, we pray a bill of exceptions.” Jeffreys.—“This discourse is only for discourse sake. Swear the jury.” L. C. J. Saunders.—“Ay, swear the jury.”

So far, he was right in point of law; but, when the trial proceeded upon the merits, to suit the purposes of the government and to obtain a conviction he laid down doctrines which he must well have known to be indefensible respecting the power of the lord mayor to interrupt the poll by an adjournment, and the supposed offence of the electors in still continuing the election, they believing that they were exercising a lawful franchise. Finally, in summing up to the jury, he observed,—

“But they pretend that the sheriffs were the men, and that the lord mayor was nobody; that shows that it was somewhat of the Commonwealth seed that was like to grow up among the good corn.” [Here the report says, the people hummed and interrupted my lord. He thus continued.] “Pray, gentlemen, that is a very indecent thing; you put an indignity upon the king. Pray, gentlemen, forbear; such demeanor does not become a court of justice. When things were topsy turvy I can’t tell what was done, and I would be loth to have it raked up now. These defendants tell you that they believed they were acting according to law; but ignorance of the law is now no excuse, and you will consider whether they did not in a tumultuary way make a riot to set up a magistracy by the power of the people? Gentlemen, it hath been a long trial, and it may be I have not taken it well; my memory is bad, and I am but weak. I don’t question but your memories are better than mine. Consider your verdict, and find as many guilty as you think fit.”

The jury having been carefully packed, the defendants were all found guilty, and they were heavily fined; but after the Revolution this judgment was reversed by the legislature.

During Lord Chief Justice Saunders’s last illness, the Ryehouse Plot was discovered, and it was a heavy disappointment to the government that no further aid could be expected from him in the measures still contemplated for cutting off the Whig leaders and depressing the Whig party. His hopeless condition being ascertained, he was deserted and neglected by all his Whitehall patrons, who had lately been so attentive to him, and he received kindness only from humble dependents and some young lawyers, who, notwithstanding all his faults, had been attached to him from his singular good humor.

A few minutes after ten o’clock in the forenoon of Tuesday, the 19th of June, 1683, he expired in a house at Parson’s Green, to which he had unwillingly transferred himself from Butcher Row when promoted to be chief justice. His exact age was not known, but he was not supposed to be much turned of fifty, although a stranger who saw him for the first time would have taken him to be considerably more advanced in life. Of his appearance, his manners, and his habits, we have, from one who knew him intimately, the following graphic account, which it would be a sin to abridge or to alter,—

“As to his person, he was very corpulent and beastly—a mere lump of morbid flesh. He used to say, ‘by his troggs, (such a humorous way of talking he affected,) none could say he wanted issue of his body, for he had nine in his back.’ He was a fetid mass that offended his neighbors at the bar in the sharpest degree. Those whose ill fortune it was to stand near him were confessors, and in summer time almost martyrs. This hateful decay of his carcass came upon him by continual sottishness; for, to say nothing of brandy, he was seldom without a pot of ale at his nose or near him. That exercise was all he used; the rest of his life was sitting at his desk or piping at home; and that home was a tailor’s house, in Butcher Row, called his lodging, and the man’s wife was his nurse or worse; but by virtue of his money, of which he made little account, though he got a great deal, he soon became master of the family; and being no changeling, he never removed, but was true to his friends and they to him to the last hour of his life. With all this, he had a goodness of nature and disposition in so great a degree that he may be deservedly styled a philanthrope. He was a very Silenus to the boys, as in this place I may term the students of the law, to make them merry whenever they had a mind to it. He had nothing of rigid or austere in him. If any near him at the bar grumbled at his stench, he ever converted the complaint into content and laughing with the abundance of his wit. As to his ordinary dealing, he was as honest as the driven snow was white; and why not, having no regard for money or desire to be rich? And for good nature and condescension, there was not his fellow. I have seen him, for hours and half hours together, before the court sat, stand at the bar, with an audience of students over against him, putting of cases, and debating so as suited their capacities and encouraged their industry. And so in the temple, he seldom moved without a parcel of youths hanging about him, and he merry and jesting with them. Once, after he was in the king’s business, he dined with the lord keeper, and there he showed another qualification he had acquired, and that was to play jigs upon a harpsichord, having taught himself with the opportunity of an old virginal of his landlady’s; but in such a manner, not for defect but figure, as to see him was a jest.”His Reports are entertaining as well as instructive.[113] Notwithstanding his carelessness about money, he left considerable property behind him.