Judges ought to remember that their office is “jus dicere,”[557] and
not “jus dare;”[558] 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)[559] is he that removeth the landmark.”
The mislayer of a mere stone 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 foul 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 causâ suâ coram adversario.”[560] 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.
First, for the causes or parties that sue. “There be (saith the
Scripture) that turn judgment into wormwood;”[561] 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 a 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;”[562] 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.
Especially 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;”[563] for penal laws pressed,[564] 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,” &c.[565] 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[566] 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, of 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;[567] for that
upholds in the client the reputation of his counsel, and beats down
in him the conceit[568] 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[569] 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 to the party to
say, his counsel or proofs were not heard.
Thirdly, for that that concerns clerks and ministers. The place of
justice is a hallowed place; and, therefore, not only the bench,
but the foot-pace and precincts, and purprise thereof, ought to be
preserved without scandal and corruption; for, certainly, “Grapes (as
the Scripture saith) will not be gathered of thorns or thistles;”[570]
neither can justice yield her fruit with sweetness amongst the briers
and brambles of catching and polling[571] 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 curiæ,”[572] but
“parasiti curiæ,”[573] 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.
Fourthly, for that which may concern the sovereign and estate. Judges
ought, above all, to remember the conclusion of the Roman Twelve
Tables,[574] “Salus populi suprema lex;”[575] 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 a 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 to judgment may be “meum”[576]
and “tuum,”[577] when the reason and consequence thereof may trench
to 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[578] 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 so 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 eâ utatur legitime.”[579]