Of Judicature

Iudges 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 sticke to Adde and Alter; And to Pronounce that, which they doe not Finde; And by Shew of Antiquitie, to introduce Noveltie. Judges ought to be more Learned, then Wittie; More Reverend, then Plausible; And more Advised, then Confident. Above all Things, Integritie is their Portion, and Proper Vertue. Cursed (saith the Law) is hee that removeth the Land -marke. The Mislaier of a Meere Stone is to blame. But it is the Unjust Judge, that is the Capitall Remover of Land-markes, when he Defineth amisse of Lands and Propertie. One Foule Sentence, doth more Hurt, then many Foule Examples. For these doe but Corrupt the Streame; The other Corrupteth the Fountaine. So saith Salomon; Fons turbatus, & 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 Clerkes and Ministers of Justice underneath them; And to the Soveraigne or State above them.

First, for the Causes or Parties that Sue. There be (saith the Scripture) that turne Judgement into Worme-wood; And surely, there be also, that turne it into Vinegar; For Injustice maketh it Bitter, and Delaies make it Soure. The Principall Dutie of a Judge, is to suppresse Force and Fraud; whereof Force is the more Pernicious, when it is Open; And Fraud, when it is Close and Disguised. Adde thereto Contentious Suits, which ought to be spewed out, as the Surfet 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 downe Hills: So when there appeareth on either side, an High Hand; Violent Prosecution, Cunning Advantages taken, Combination, Power, Great Counsell, then is the Vertue of a Judge seene, to make Inequalitie Equall; That he may plant his Judgement, as upon an Even Ground. Qui fortitèr emungit, elicit sanguinem; And where the Wine-Presse is hard wrought, it yeelds a harsh Wine, that tastes of the Grapestone. Judges must beware of Hard Constructions, and Strained Inferences; For there is no Worse Torture, then the Torture of Lawes. Specially in case of Lawes Penall, they ought to have Care, that that which was meant for Terrour, be not turned into Rigour; And that they bring not upon the People, that Shower, whereof the Scripture speaketh; Pluet super eos Laqueos: For Penall Lawes Pressed, are a Shower of Snares upon the People. Therefore, let Penall Lawes, if they have beene Sleepers of long, or if they be growne 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 farre as the Law permitteth) in Justice to remember Mercy; And to Cast a Severe Eye upon the Example, but a Mercifull Eye upon the Person.

Secondly, for the Advocates and Counsell that Plead: Patience and Gravitie of Hearing, is an Essentiall Part of Justice; And an Over-speaking Judge is no well tuned Cymball. It is no Grace to a Judge, first to finde that, which hee might have heard, in due time, from the Barre; or to shew Quicknesse of Conceit in Cutting off Evidence or Counsell too short; Or to prevent Information, by Questions though Pertinent. The Parts of a Judge in Hearing are Foure: To direct the Evidence; To Moderate Length, Repetition, or Impertinency of Speech; To Recapitulate, Select, and Collate, the Materiall Points of that, which hath beene said; And to Give the Rule or Sentence. Whatsoever is above these, is too much; And proceedeth, Either of Glory and willingnesse to Speake; Or of Impatience to Heare; Or of Shortnesse of Memorie; Or of Want of a Staid and Equall Attention. It is a Strange Thing to see, that the Boldnesse of Advocates, should prevaile 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-waies. There is due from the Judge, to the Advocate, some Commendation and Gracing, where Causes are well Handled, and faire Pleaded; Especially towards the Side which obtaineth not; For that upholds, in the Client, the Reputation of his Counsell, and beats downe, in him, the Conceit of his Cause. There is likewise due to the Publique, a Civill Reprehension of Advocates, where there appeareth Cunning Counsel, Grosse Neglect, Slight Information, Indiscreet Pressing, or an Over-bold Defence. And let not the Counsell at the Barre, chop with the Judge, nor winde himselfe 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 halfe Way; Nor give Occasion to the Partie to say; His Counsellor Proofes were not heard.

Thirdly, for that that concernes Clerks, and Ministers. The Place of Justice, is an Hallowed Place; And therefore, not only the Bench, but the Foot-pace, and Precincts, and Purprise thereof, ought to be preserved without Scandall and Corruption. For certainly, Grapes, (as the Scripture saith) will not be gathered of Thornes or Thistles: Neither can Justice yeeld her Fruit with Sweetnesse, amongst the Briars and Brambles, of Catching and Poling Clerkes and Ministers. The Attendance of Courts is subject to Foure bad Instruments. First, Certaine Persons, that are Sowers of Suits; which make the Court swell, and the Country pine. The Second Sort is of those, that ingage Courts, in Quarells of Jurisdiction, and are not truly Amici Curiæ, but Parasiti Curiæ; in puffing a Court up beyond her Bounds, for their owne 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 Trickes and Shifts, whereby they pervert the Plaine and Direct Courses of Courts, and bring Justice into Oblique Lines and Labyrinths. And the Fourth is, the Poler and Exacter of Fees; which justifies the Common Resemblance of the Courts of Justice, to the Bush, whereunto while the Sheepe flies for defence in Wether, hee is sure to loose Part of his Fleece. On the other side, an Ancient Clerke, skilfull in Presidents, Wary in Proceeding, and Understanding in the Businesse of the Court, is an excellent Finger of a Court; And doth many times point the way to the Judge himselfe.

Fourthly, for that which may concerne the Soveraigne and Estate. Judges ought above all to remember the Conclusion of the Roman Twelve Tables; Salus Populi Suprema Lex; And to know, that Lawes, except they bee in Order to that End, are but Things Captious, and Oracles not well Inspired. Therefore it is an Happie Thing in a State, when Kings and States doe often Consult with Judges; And againe, when Judges doe often Consult with the King and State: The one, when there is Matter of Law, intervenient in Businesse of State; The other, when there is some Consideration of State, intervenient in Matter of Law. For many times, the Things Deduced to Judgement, may bee Meum and Tuum, when the Reason and Consequence thereof, may Trench to Point of Estate: I call Matter of Estate, not onely the parts of Soveraigntie, but whatsoever introduceth any Great Alteration, or Dangerous president; Or Concerneth manifestly any great Portion of People. And let no Man weakly conceive, that Just Laws, and True Policie, have any Antipathie: For they are like the Spirits, and Sinewes, that One moves with the Other. Let Judges also remember, that Salomons Throne, was supported by Lions, on both Sides; Let them be Lions, but yet Lions under the Throne; Being circumspect, that they doe not checke, or oppose any Points of Soveraigntie. Let not Judges also, be so Ignorant of their owne Right, as to thinke, there is not left to them, as a Principall Part of their Office, a Wise Use, and application of Lawes. For they may remember, what the Apostle saith, of a Greater Law, then theirs; Nos scimus quia Lex bona est, modò quis eâ utatur Legitimè.