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,—