« ZurückWeiter »
people that shower whereof the Scripture speaketh, ‘Pluet super eos laqueos ;'16 for penal laws pressed, 17 are a shower of snares upon the people: therefore let penal laws, if they have been sleepers of long, 18 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. 19 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 20 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,21 and willingness 22 to speak, or of impatience to hear, or of shortness of memory, or of want of a staid and equal 23 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:24 but it is more strange, that Judges should have noted 25 favourites, which cannot but cause multiplication of fees, and suspicion of by-ways. 26 Thère 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 27 not; for that upholds in the Client the reputation his Counsel, and beats down in him the conceit of his
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 29 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 30 thereof ought to be preserved without scandal and corruption ; for, certainly, Grapes (as the Scripture saith) will not be gathered of thorns or thistles ;'31 neither can Justice yield her fruit with sweetness amongst the briars and brambles of catching 32 and polling 33 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, 34 and are not truly amici curia, but parasiti curia,86 in puffing a Court up
35 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, 36 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 ;'37 and to know that laws, except they be in order to that end, 38 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 39 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,40 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 41 one moves with the other. Let Judges also remember, that Salomon's throne was supported by lions 42 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 câ utatur legitime.' 43
NOTES ON ESSAY LVI.
1. To expound the law and not to make the law. 2. stick '_hesitate; make a difficulty; be in a difficulty. 3. pronounce'-declare officially and formally. The verb is
distinguished from say or speak, in always involving some reference to authority: a private person may say of some one charged with a crime that he is guilty, and deserves imprison.
ment; still none but a judge can pronounce this. 4. by show'—under pretence.
5. witty'-sharp, clever, ingenious.
• In my school-days, when I had lost one shaft,
I oft found both'-Merchant of Venice, I, i. 8. Deut. xxvii, 17: 'Cursed is he that removeth his neighbour's
• Half to half the world opposed, he being
-Antony and Cleopatra, III, ii.
-Faerie Queene, III, ix, 46.
worth. 10. .capital'-principal, chief. In the same way we speak of the
capital city of a country.
'It is now that whatever is capital and essential in Christianity should
be clearly and strenuously affirmed'-BP. JEREMY TAYLOR. II. Prov. xxv, 26;'A righteous man falling down before the wicked
is as a troubled fountain and a corrupt spring: 12. Amos v, 7: ‘Ye who turn judgment to wormwood, and leave off
righteousness in the earth.' 13. 'close '--secret. See note 32, Essay XI. 14.
"useth'-is accustomed. The reference is to passages in Holy
Scripture, Isa. xl, 3, Matt. iii, 3. 15. "He who wrings the nose strongly brings forth blood.' The refer
ence is to Prov. xxx, 33: ‘Surely the churning of milk bringeth forth butter, and the wringing of the nose bringeth forth
blood ; so the forcing of wrath bringeth forth strife.' 16. 'He shall rain snares upon them.' The reference is to Ps. xi, 6:
• Upon the wicked He shall rain snares, fire, and brimstone,
and an horrible tempest.”. 17. pressed'-strained, forced. 18. of long'—for a long time. 19. 'It is the duty of a judge (to consider) not only facts but the
circumstances of facts.'
20. 'overspeaking'-garrulous, interfering by his talk. He means that a talkative judge speaks much and loudly, but not appropriately; like a loud cymbal, but one not well tuned. The reference is to Ps. cl, 5: 'Praise Him upon the well-tuned cymbals; praise Him upon the loud cymbals.'
21. 'glory'-vanity, boastfulness.
22. 'willingness'-desire, wishfulness.
23. equal'-steady, persevering, continuous.
24. James iv, 6: God resisteth the proud, but giveth grace unto the humble.'
25. 'noted'-known openly; notorious.
26. 'by-ways'-secret proceedings; crooked courses. See also note 32, Essay XI.
27. 'obtaineth'-wins; is successful.
28. the conceit of his canse'-the over-confident opinion that his cause was just and ought to have been successful. 29. 'chop'-have altercations; bandy words.
30. 'foot-pace-the raised platform upon which the judge's seat is placed.
'precincts'-the space where the attendants stand.
'purprise'-the open space in front of the judge's seat.
31. Matt. vii, 16: 'Do men gather grapes of thorns, or figs of thistles?'
32. 'catching.' See note 22, Essay LIII.
33. 'polling'-stripping, plundering. So also, a few lines below, he speaks of the poller and exacter of fees.' The verb to poll is still used of trees in the sense of to crop, or clip (cf. also pollard); and of men in the sense of to cut the hair short, to make bald; so also we speak of polled stags, or polled kine, when they have lost their horns.
34. 'quarrels of jurisdiction'-disputes as to the right of a court to exercise authority in certain cases.
35. 'Friends of the court.
'Parasites (or flatterers) of the court.'
'weather'-tempestuous or severe weather. See also note 13, Essay XIV.
37. The safety of the people is the supreme law.'
The Twelve Tables were a code of ancient Roman laws, drawn up B.C. 451 by the Decemvirs, so called because they were a council consisting of ten members. The tables were placed publicly in the Forum, so that all might become acquainted with them, and they became the basis of Roman civil law. Only fragments of them now remain; but it does not seem that the maxim which Bacon here quotes was contained in the Twelve Tables at all. It is found, however, in Cicero, De Legibus, iii, 3, 8: 'Ollis salus populi suprema
One of the laws of the Twelve Tables established for every