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 an-
tiquity, 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 foun-
tain. 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, vio-
lent prosecution, cunning advantages taken, com-
bination, 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 infer-
ences; for there is no worse torture, than the tor-
ture 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 remem-
ber 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 essen-
tial 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 perti-
nent. 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. What-
soever is above these is too much; and proceedeth
either of glory, and willingness to speak, or of im-
patience 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 pre-
sumptuous, 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 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 minis-
ters. 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; either 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 com-
mon 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 prece-
dents, 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 sov-
ereign and estate. Judges ought above all to re-
member 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 de-
duced 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 peo-
ple. 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 Solo-
mon'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.
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