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Essay LVI: Of Judicature
Essay LVI: Of Judicature
Judges ought to remember that their office is jus dicere, and not jus
dare; to interpret law, and not to make law, or give law. Else will it be like
the authority claimed by the Church of Rome, which under pretext of exposition
of Scripture doth not stick to add and alter; and to pronounce that which they
do not find; and by show of antiquity to introduce novelty. Judges ought to be
more learned than witty, more reverend than plausible, and more advised than
confident. Above all things, integrity is their portion and proper virtue.
Cursed (saith the law) is he that removeth the landmark. The mislayer of a
mere-stone ^1 is to blame. But it is the unjust judge that is the capital
remover of landmarks, when he defineth amiss of lands and property. One soul
sentence doth more hurt than many foul examples. For these do but corrupt the
stream, the other corrupteth the fountain. So saith Solomon, Fons turbatus, et
vena corrupta, est justus cadens in causa sua coram adversario [A righteous
man falling down before the wicked is as a troubled fountain or a corrupt
spring]. The office of judges may have reference unto the parties that sue,
unto the advocates that plead, unto the clerks and ministers of justice
underneath them, and to the sovereign or state above them.
[Footnote 1: Boundary stone.]
First, for the causes or parties that sue. There be (saith the Scripture)
that turn judgment into wormwood; and surely there be also that turn it into
vinegar; for injustice maketh it bitter, and delays make it sour. The
principal duty of a judge is to suppress force and fraud; whereof force is the
more pernicious when it is open, and fraud when it is close and disguised.
Add thereto contentious suits, which ought to be spewed out, as the surfeit of
courts. A judge ought to prepare his way to a just sentence, as God useth to
prepare his way, by raising valleys and taking down hills: so when there
appeareth on either side an high hand, violent prosecution, cunning
advantages taken, combination, power, great counsel, then is the virtue of a
judge seen, to make inequality equal; that he may plant his judgment as upon
an even ground. Qui fortiter emungit, elicit sanguinem [Violent wringing makes
the nose bleed]; and where the wine-press is hard wrought, it yields a harsh
wine, that tastes of the grape-stone. Judges must beware of hard constructions
and strained inferences; for there is no worse torture than the torture of
laws. Specially in case of laws penal, they ought to have care that that which
was meant for terror be not turned into rigor; and that they bring not upon
the people that shower whereof the Scripture speaketh, Pluet super eos laqueos
[He will rain snares upon them]; for penal laws pressed are a shower of snares
upon the people. Therefore let penal laws, if they have been sleepers of long,
or if they be grown unfit for the present time, be by wise judges confined in
the execution: Judicis officium est, ut res, ita tempora rerum, etc. [A judge
must have regard to the time as well as to the matter]. In causes of life and
death, judges ought (as far as the law permitteth) in justice to remember
mercy; and to cast a severe eye upon the example, but a merciful eye upon the
person.
Secondly, for the advocates and counsel that plead. Patience and gravity
of hearing is an essential part of justice; and an overspeaking judge is no
well-tuned cymbal. It is no grace to a judge first to find that which he might
have heard in due time from the bar; or to show quickness of conceit in
cutting off evidence or counsel too short; or to prevent information by
questions, though pertinent. The parts of a judge in hearing are four: to
direct the evidence; to moderate length, repetition, or impertinency of
speech; to recapitulate, select, and collate the material points of that which
hath been said; and to give the rule or sentence. Whatsoever is above these
is too much; and proceedeth either of glory and willingness to speak, or of
impatience to hear, or of shortness of memory, or of want of a staid and equal
attention. It is a strange thing to see that the boldness of advocates should
prevail with judges; whereas they should imitate God, in whose seat they sit;
who represseth the presumptuous, and giveth grace to the modest. But it is
more strange, that judges should have noted favorites; which cannot but cause
multiplication of fees, and suspicion of by-ways. There is due from the judge
to the advocate some commendation and gracing, where causes are well handled
and fair pleaded; especially towards the side which obtaineth not; for that
upholds in the client the reputation of his counsel, and beats down in him the
conceit of his cause. There is likewise due to the public a civil reprehension
of advocates, where there appeareth cunning counsel, gross neglect, slight
information, indiscreet pressing, or an over-bold defence. And let not the
counsel at the bar chop ^2 with the judge, nor wind himself into the handling
of the cause anew after the judge hath declared his sentence; but, on the
other side, let not the judge meet the cause half way, nor give occasion for
the party to say his counsel or proofs were not heard.
[Footnote 2: Bandy words.]
Thirdly, for that that concerns clerks and ministers. The place of
justice is an hallowed place; and therefore not only the bench, but the
foot-pace ^3 and precincts and purprise ^4 thereof, ought to be preserved
without scandal and corruption. For certainly grapes (as the Scripture saith)
will not be gathered of thorns or thistles; neither can justice yield her
fruit with sweetness amongst the briars and brambles of catching and polling
^5 clerks and ministers. The attendance of courts is subject to four bad
instruments. First, certain persons that are sowers of suits; which make the
court swell, and the country pine. The second sort is of those that engage
courts in quarrels of jurisdiction, and are not truly amici curiae, but
parasiti curiae [not friends but parasites of the court], in puffing a court
up beyond her bounds, for their own scraps and advantage. The third sort is of
those that may be accounted the left hands of courts; persons that are full of
nimble and sinister tricks and shifts, whereby they pervert the plain and
direct courses of courts, and bring justice into oblique lines and labyrinths.
And the fourth is the poller and exacter of fees; which justifies the common
resemblance of the courts of justice to the bush whereunto while the sheep
flies for defence in weather, he is sure to lose part of his fleece. On the
other side, an ancient clerk, skilful in precedents, wary in proceeding, and
understanding in the business of the court, is an excellent finger of a court;
and doth many times point the way to the judge himself.
[Footnote 3: Lobby.]
[Footnote 4: Enclosure.]
[Footnote 5: Extorting fees.]
Fourthly, for that which may concern the sovereign and estate. Judges
ought above all to remember the conclusion of the Roman Twelve Tables; Salus
populi suprema lex [The supreme law of all is the weal of the people]; and to
know that laws, except they be in order to that end, are but things captious,
and oracles not well inspired. Therefore it is an happy thing in a state when
kings and states do often consult with judges; and again when judges do often
consult with the king and state: the one, when there is matter of law
intervenient in business of state; the other, when there is some consideration
of state intervenient in matter of law. For many times the things deduced ^6
to judgment may be meum and tuum [mine and thine], when the reason ^7 and
consequence thereof may trench to ^8 point of estate: I call matter of estate,
not only the parts of sovereignty, but whatsoever introduceth any great
alteration or dangerous precedent; or concerneth manifestly any great portion
of people. And let no man weakly conceive that just laws and true policy have
any antipathy; for they are like the spirits and sinews, that one moves with
the other. Let judges also remember, that Solomon`s throne was supported by
lions on both sides: let them be lions, but yet lions under the throne; being
circumspect that they do not check or oppose any points of sovereignty. Let
not judges also be ignorant of their own right, as to think there is not left
to them, as a principal part of their office, a wise use and application of
laws. For they may remember what the apostle saith of a greater law than
theirs; Nos scimus quia lex bona est, modo quis ea utatur legitime [We know
that the law is good, if a man use it lawfully].
[Footnote 6: Brought into court.]
[Footnote 7: Principle.]
[Footnote 8: Touch.]
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