Of Judicature

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.