because it seems to top them; and sometimes, if it doth not take with the court, throw up, saying, "the cause was given away," which almost blasts a young man. Therefore, when he thought he had a significant point to offer, he first acquainted the foreman with it which was commonly well taken: and he in return would say, "Move it yourself," and then he seconded it. These discretions respecting the counsel did him great service; and I have more to remember anon, that respect the judge.

50. But first, I shall remember some of the advantages which brought his lordship so soon into circuit business. One of which was his being put into the commission pursuant to the act of parliament for dividing the great level of the fens; and which conduced much to his lordship's fame. And that was done to the intent his lordship should take the chair, and direct in the execution of it. When this commission first met and he was put in the chair, he observed that they had no copy of the act before them but only that which was printed for common use, and he did not think that sufficient, for it was but a private act of which the judges did not ex officio take notice, and there might be errors of the press: and accordingly he took care to have an authentic copy examined by the record itself. After that he proposed to the commissioners such apt methods for their proceedings in that commission, that the gentlemen were extremely pleased: for they were satisfied that all he proposed would be for the ease of the commissioners and of the country, and also conducive to an equal distribution of justice to particular persons, who for their interests appeared before them. And these methods being so fairly and ingenuously displayed at the first, the gentlemen of the commission admired the invention and dexterity of one so young, and accordingly agreed to every thing he proposed. And afterwards through the whole course of that commission, he had the authority of a judge amongst them and was seldom interrupted or opposed in any thing he dictated to them; for they saw plainly he had both skill and will to do right in every thing. And the country people seeing him rule the roast (as they say) there, took him for the judge in earnest. And if any of them had a case to come before the commissioners, of which there was

MADE JUDGE OF ELY.

55

like to be any doubt or contest, they would if possible come along with a client to him at the assizes (of which practice I reserve to speak afterwards), and there bow and cringe that they might be known again at the commission. Thus every opportunity of transacting put into the hands of a person capable of doing well proves an ingredient of fame, which in professions precarious and competitory as the law is, perpetually and in a geometrical proportion (to use the allusion) enlarges the sphere of his practice; and with those that are incapable, or do not acquit themselves well, it hath the contrary effect.

:

51. 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 Westminster Hall, the difference lying chiefly in greater and less. Divers of the circuit counsel and neighbouring attorneys have business and attend there. The worst of the court is, that the pleadings are de horâ 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 court 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.

52. His lordship found the ways of the attorneys in their practice very loose; and scarce any of them could 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. A suit was commenced in the court of Common Pleas at Westminster for a cause which arose in the royal 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 cognizance 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.

ATTENDANCE AT THE EYRE.

57

53. There was another opportunity fell in his way as propitious as he could have wished, not only 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 the deer (which are a trifle) but timber would have such increase as would supply shipping and save great charges and be a vast accommodation of the royal navy. And it is not to be wondered that this economy of the forests is laid aside, saving only as to offices for wardships; for the subject matter is unpopular, and the officers are on the one side corrupt and yield to all abuses and on the other side oppress and extort money of all they can; and, as if that were the end of their institution, mind little else.

54. His lordship was not without eminent good fortune as well as discretion to help him forward in his circuit practice, which made him arise in it faster than young men have commonly done. As when the Lord Chief Justice Hyde' was alive, he usually went the Norfolk circuit. The chief justice was a western man, but would not take the circuit so called because he would not break a law with a non obstante. And this judge was industriously favourable to his lordship calling him cousin in open court, which was a declaration that he would take it for a respect to himself to bring him causes, and that is the best account that can be given of a favourite; in which capacity a gentleman pretends to be easily heard, and that his errors and lapses, when they happen, may not offend the judge or hurt a cause, beyond which the profession of favour is censurable both in judge and counsel. But this benefit grew, like that under Sir Jeoffry Palmer, at first out of a

Uncle to the famous Earl of Clarendon. He was employed to draw the answer to the impeachment preferred by the Commons against the Duke of Buckingham, and was rewarded for the service with the place of lord chief justice. See § 43, n.