Constituted judge of

the Isle of

Ely.

of his practice; and with those that are incapable, or do not acquit themselves well, it hath the contrary effect.

Another employ fell to his lordship's share, which did him credit, and consequently augmented his business in the country: and that was his being made judge of the royal franchise of Ely. He was constituted by Dr. Lane, then bishop. He succeeded Wren; one of whose sons, Mr. William Wren, was high bailiff of the liberty, and took the seat of an high sheriff; and so the judge, with all the titles of a judge of assize. This was the first bench of justice (if the commission is not accounted one) that his lordship sat on; and to say truth, is a very excellent judge school: for there all sorts of law business come before him, arrests, attachments, demurrers, pleadings, issues, and trials, and all that chicane in Westminsterhall, the difference lying chiefly in greater and less. Divers of the circuit counsel and neighbouring attornies have business and attend there. The worst of the court is, that the pleadings are de hord in horam; and the records are kept by papers filed, and not (as I know) ever made up into rolls. It is so in the court of the county palatine of Durham. But those, and even the ordinary courts of assizes, as to the fairness and regularity of the plea rolls, must yield to that of Lancaster ; and the curiosity there is (or was) such that the

prisoners were arraigned upon the roll, and not upon the bill found, and the whole proceeding to judgment and execution, was also entered up, and not kept in minute books, as at the assizes; which is exceeding commendable in the prothonotary and his clerks there. But, as to the Isle of Ely, whether, since that time I write of, in which the sessions have been neglected and new discouragements continually growing, the court hath not so well answered the attendance of a judge as it did then, I cannot say.

manded a

cognisance.

His lordship found the ways of the attornies, in Regulated the practice their practice, very loose; and scarce any of them and decould be positive what the rules of the court were; but, upon any doubt, some said one thing, and some another: and the business was done in a huddle, almost by word of mouth, there being nothing but a paper upon the file in order for a trial. His lordship endeavoured to regulate all these disorders; making a beginning in the method, which he afterwards pursued in all his judicial places; that is, first, by informing himself, as well as he could, what were the rules, and then, by slow steps, one thing after another, making alterations for the better. But one thing happened which his lordship, with no ordinary exactness of skill in the law, carried through. was commenced in the court of Common Pleas at Westminster, for a cause which arose in the royal

A suit

franchise of Ely. The bishop expected that his judge should see right done to his franchise, which might be hurt if such precedents were let pass. And his lordship thereupon took care that due authorities, regarding this particular case, should be signed and executed by the bishop, directed to him, requiring him to repair to the court of Common Pleas, and for him, and in his name, to demand of the court the cognisance of that cause then depending in the court. And his lordship went to the bar, and, as bailiff of the bishop, made his demand in due form. And the court, who are hardly enough brought to oust themselves of any jurisdiction, scrutinated all points of form, and, finding nothing amiss in the demand, granted the cognisance, and the cause was removed from that court to the court of the franchise. I know no footsteps for many years before, or at any time since, of any such demand made or allowed. But the law was plain, and the forms being out of the common road, not, without great care, foresight and skill, to be pursued, and strict exception and cavil to be expected, the case required such a counsel as his lordship was, to prevail in it. I had this matter from his lordship's own mouth; but, finding no papers concerning it, I cannot point to the time when the transaction was.

Great benefit by at

There was another opportunity fell in his way tendance at as propitious as he could have wished, not only

the eyre.

for fame but for learning; and that was a formal iter or justice-seat of the forests, that was ordered and proclaimed, and judges were appointed to assist the lord chief justice in eyre, the then Earl of Oxford; and counsel for the king were also declared; and they were, Serjeant Maynard, his lordship, and who else I do not remember. These went all out together, and passed from place to place; and the judges were solemnly received by the countries as in a circuit; and thus all the greater part of the forests on this side Trent were visited. The counsel for the king, in all causes in which the king's title was not in question, had liberty to advise and plead; so good money, besides a gratuity and riding charges, was picked up. But it is not readily conceived what advantage here was by gaining an idea of the ancient law in the immediate practice of it. For the court of the forest is in nature of an iter; and the justices proceed, as anciently the justices in eyre did, by presentments, claims, seizures, replevins, &c. very unlike the ordinary processes of the common law in courts of pleas. It is true that the commissions of oyer and terminer and gaol delivery are eyre also, but restrained to personal crimes. Here it is of rights, and those after a peculiar law of forests, as privileges, franchises, grants, customs, purprestures, and offices of divers authorities and jurisdictions; whereof the learning would

cost a student much time and pains, besides going out of the way of his more beneficial studies to acquire. And here the whole time of the several sessions being taken up with the transaction of causes of this nature, the judges well skilled in the old crown law and the prerogative, and no person more deeply learned than Serjeant Maynard, who though a counsel was also an assistant to the court, one who had the opportunity of attending, much more an employment in these courts, as his lordship had, must needs perfect himself in the general knowledge of the forest law, and the jurisdiction of the lord chief justice in eyre. This was an opportunity that rarely happens; many reigns pass before there is another; for it is a great charge to the crown in salaries, expenses, and rewards; and the profits redounded to the lord chief justice in eyre. And it was said at that time, that the king's intent in ordaining a sessions of eyre, was purely to gratify the Earl of Oxford, who was one that ever wanted royal boons. But, as to his lordship and his advantages, besides the credit of such an employ, which was great, this service made him study the forest law a little more than otherwise he had done. But now the forests seem to be neglected, or rather granted out by piecemeal, which kept in due order, as in elder times, and destructive encroachments of the countries suppressed, not only