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 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 with Solomon,
Fons turbatus, et vena corrupta, est justus cadens in causa sua coram
adversario. The office of judges may have reference unto the parties
that use, 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; 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; 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; 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. 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 overbold defence. And let not
the counsel at the bar, chop 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 an hallowed place; and therefore not only the bench, but the
foot-place; 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; neither can justice
yield her fruit with sweetness, amongst the briars and brambles of
catching and polling 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, 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;
Salus populi suprema lex; 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
to judgment may be meum and tuum, 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 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.