ever sat. But although his lordship was not surprised at this behaviour of the chief justice, yet he was very much concerned to see the generality, both gentle and simple, lawyers and laymen, idolize him, as if there had never been such a miracle of justice since Adam. His voice was oracular, and his person little less than adored. And his lordship knew also that this fascination proceeded from faction, and had at the root more of confederacy than judgment; for, because the chief justice was, in principle, averse to monarchy and the court, they all with one voice exalted him, in order to have him lead the law and all the lawyers that way, and left no room for just thoughts of him, which attributed enough of honour and commendation; but all that he said was right, and whoever said to the contrary was wrong. In opposition to this impetuous, or rather rage of reputation (under which his lordship himself was a sufferer, as may be seen elsewhere) his lordship thought fit to note down the several instances in his own observation of this judge's fondness and partiality; which he intended to have explained at large; when he was at leisure, and should have had a disposition so to do. These notes are come to my hand, and being willing to declare the scope of them as well as I can, I will pass them one by one, as follows.

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Nosworthy versus Basset. Trials directed Nosworthy “with all art and care, yet slighted."

versus Basset. Trials slighted

for his turn.

It is usual in dark matters of fact, to refer when not them to trials at common law, and a verdict upon one trial, is always allowed to be given in for good evidence upon any other trial of the same fact. Nosworthy had married a daughter of Serjeant Maynard, who urged very hard against Sir William Basset, an old cavalier or loyalist. There lay the characteristic. Care was taken to settle the issues for two trials successive, and with all the art that might be, to give Nosworthy the advantage. If either of them had taken accordingly on his side, there was no doubt but the authority of them had been great in the consequence of future proceedings; but it happened that both went for Basset. Notwithstanding that, another trial was directed to be at the bar, before Hales himself; and when the authority of two verdicts was alleged, he slighted, and had no regard to them.*

"Hyde versus Emerton, marriage affectedly Strove to "tried to prejudice an odious cause against right." an ecclesi

prejudice

astical cause by a

trial.

* See this case reported in its 203. 1 Show. 537. 2 Salk. 592. the action was Ejectment, and therefore the observation in the text, that " a verdict upon one trial is always allowed to be given in for good evidence upon any other trial of the same fact," is inapplicable.

various stages in 3 Mod. temporal Hard. 375. The form of

The principal depended in the court of the arches in a trial of marriage. And the question was whether the son of the Lord Treasurer Danby, or Mr. Emerton, a sort of dissenter, was married to Mrs. Hyde. The cause was wholly eccle- . siastical, and from the arches must (upon appeal) go to the delegates, and could by no possibility be drawn from that jurisdiction to the common law, and all titles whatever under that marriage, must (even at common law) stand and fall by the sentence in the ecclesiastical court. Emerton was advised to bring an ejectment for the lady's land, and to get that cause tried at the bar before Hales. It was alleged in delay of the trial, that the right of the marriage depended in the arches, and till sentence the right could not appear at law; for that court was decisive. The matter of delays in the arches was stood upon as a reason to proceed, and however answered upon the necessity by their course and rules, it passed, and the trial went on. And it was managed by Hales with frequent exclamations at the clearness of Emerton's title, and proof of the marriage. The pinch was that, by the matrimonial law, fathers and mothers are not witnesses to matches for preferment of children; but the common law allowed them and in that lay the clearness.* But it

* This case is shortly reported in Keble's Reports, vol. iii. p. 447. See also Stillingfleet's Discourse at the Meeting

was thought that such a trial, carried with the opinion of so popular a judge, would awe the ecclesiastical court, and so be of service towards the sustaining a cause grounded upon a very odious practice of Emerton to gain that lady. The characteristic of this cause was evident enough; and so it was in the case of Soams and Bernardiston; see the Examen. In that, Hales said he would not try the cause before the House of Commons had decided the right; but there the reason lay counter, as was showed in that book.

Mildenhall,

"Case of Mildenhall Encount: act of parlia- Case of "ment; otherwise in the case of the London judi- sided with catory."

66

the popu

lace against

I cannot well make out this comparison; but the lord. only remember that the Mildenhall case was upon the title of Sir Henry North,* lord of the manor, and a cavalier, against the populace of the town, touching a right to an allotment upon the division of the common fens; the townsmen distinguished it from common, by calling it their sola et separalis pastura. It was tried before Hales in the

of the delegates." (Discourses, p. 79.) It was undoubtedly the duty of Hale to suffer the cause to proceed, and to receive the evidence of those witnesses who were admissible by the rules of the common law.

* See the case of Potter v. North, reported in, Saund. 347, 1 Vent. 383.

Ac etiams, law in B. R. but not in C. B.

Exchequer; and in that case, he did not allow the sentence of the commissioners to be conclusive; but upon the London commission of settling rights after the fire, he ruled it was so, though both stood on equal height, viz. the act of parliament. That, as I take it, is the inconsistency here noted. But to do him right, though he leaned as much as he could to end the cause with advantage on the popular side, he never would say that such a custom to exclude the lord, who had no profit otherwise, was good in law; but rather the contrary. But here the lord of the manor had no benefit of his opinion; but for fear of worse, was constrained to go off upon a reference; for the ill consequence, by offending if he refused, made the compliance necessary.

"Ac etiams, in the Common Pleas, condemned, "when used in the King's Bench, and the case "but altered."

The secret of this matter depends on the history of the two courts, the King's Bench and Common Pleas, striving for jurisdiction, or rather increase of business; which will be found more largely treated of elsewhere. The court of Common Pleas had been outwitted by the King's Bench, till his lordship came upon the cushion; and that by an artifice in process called ac etiams. His lordship used the same artifice in the process of his court, where it was as good law as above.