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LVI.-OF JUDICATURE. JUDGES ought to remember that their oflice is “jus dicere,"4 and not "jus dare ;"b 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 contident. Above all things, integrity is their portion and proper virtue. “Cursed (saith the iawe) 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."" 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 (suith the Scripture that turn judgment into wormwood ; "c und 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 onght to be spewed out, as the surfeit of courts. A judge onght to prepare his way to a just sentence, as God lisothi to proparo his way, by raising valleys and taking down " "To expound the law."
b «To make the law." • The Mostie law. lle alludes to Deuteronomy xxvii. 17—"Cursed De he that removeth his neighbour's landmark."
""A righteous man falling down before the wicked is as a troubled fountain and a corrupt spring."--Proverbs xxv. 26.
• Amos v. 7-.“V'e who turn judgment to wormwood, and leave off righteousness in the earth."
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 piant his judgment as upon an even ground. “Qui fortiter emungit, elicit sanguinem ;"f 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 rigour ; and that they bring not upon the people that shower whereof the Scripture speaketh, “ Pluet super eos laqueos ;"g for penal laws pressed,h 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. 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
person. Secondly, for the advocates and counsel that plead. Pittience i 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;
""He who wrings the nose strongly brings blood.”. Proverbs xxx. 33—"Surely the churning of milk bringeth forth butter, and tho wringing of the nose bringeth forth blood; so the forcing of wrath #ringeth forth strife.”
s « He will rain snares upon them.” Psalm xi. 6—“Upon the wicked he shall rain snares, fire, and brimstone, and an horrible tempest.” h Strained.
“It is the duty of a judge to consider not only the facts but the circumstances of the case.'
Pliny the Younger, Ep. B. 6, E. 2, has the observation—"Paiienciam . .. quæ pars magna justitiæ est ;"_“Patience, which is a great part of justice.
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 favourites, 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 handled and fair pleaded, especially towards the side which obtaineth not;k for that upholds in the client the reputation of his counsel, and beats down in him the conceitl 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 chopm 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 ;" * neither can justice yield her fruit with sweetness amongst the briars and brambles of catching and pollingo 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
Is not successful. • Makes him to feel less confident of the goodness of his cause. m Altercate, or bandy words with the judge.
· St. Matthew vii. 18—“ Do men gather grapes of thorns or figs of thistles
those that engage courts in quarrels or jurisdiction, and are not truly “amici curiæ,”p but “parasiti curiæ,”a 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 oracies 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 “
and “tuum,”u 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 dangercus 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
? "Friends of the court. & “ Parasites," or
flatterers of the court." * Which were compiled by the Decemvirs.
“The safety of the people is the supreme law." t "Mine."
u " Yours." * He alludes to 1 Kings X. 19, 30—“The throne had six steps, and the top of the throne was round behind : and there were stays on either
both sides : let them be lions, but yet lions under the throne : being circumspect that they do not cheek 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.”y
LVII.-OF ANGER. To seek to extinguish anger utterly is but a bravery of the Stoics. We have better oracles : “Be angry, but sin not: let not the sun go down upon your anger. Anger must be limited and confined both in race and in time. We will first speak how.the natural inclination and habit, “ to be angry,” may be attempered and calmed ; secondly, how the particular motions of anger may be repressed, or, at least, refrained from doing mischief ; thirdly, how to raise anger, or appease anger in another.
For the first, there is no other way but to meditate and ruminate well upon the effects of anger, how it troubles man's life : and the best time to do this, is to look back upon anger when the fit is thoroughly over. Seneca saith well, “that anger is like ruin, which breaks itself upon that it falls.' The Scripture exhorteth to
possess our souls in patience ;”c whosoever is out of patience, is out of possession of his soul. Men must not turn bees;
"animasque in vulnere ponunt." Anger is certainly a kind of baseness ; as it appears well in side on the place of the seat, and two lions stood beside the stays. And twelve lions stood there on the one side and on the other upon the six steps."
The same verses are repeated in 1 Chronicles ix. 18, 19. "1 Tim. i. 8-“We know that the law is good, if a man use it law. fully."
* A boast. Ephes. iv. 26. In our version it is th
rendered : “Be ye angry and sin not: let not the sun go down upon your wrath."
“In your patience possess ye your souls.”—Luke xvi. 19. d " And leave their lives in the wound." The quotation is fro:2 Virgil's Georgics, iv. 238.