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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, violent prosecution, cunning advantages taken, combination, 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; 1 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. Specially 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; for penal laws pressed are a shower of snares upon the people Therefore let penal laws, if they have been sleepers of 3 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,
1 He who wrings the nose hard draws blood. Bacon is quoting Proverbs xxx. 33, "Surely the churning of milk bringeth forth butter, and the wringing of the nose bringeth forth blood."
2 He shall rain snares upon them. "Upon the wicked he shall rain snares, fire and brimstone, and an horrible tempest: this shall be the portion of their cup." Psalms xi. 6.
3 Of would now be for; so in Luke xxiii. 8, "for he was desirous to see him of a long season,' "that is, 'for a long season.'
It is the duty of a judge to consider the times as well as the circumstances of facts.
"Judicis officium est, ut res, ita tempora rerum
P. Ovidii Nasonis Tristium Liber I. Elegia I. 37-38.
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 overspeaking1 judge is no well-tuned cymbal.2 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 3 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 5 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 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 graces to the
1 Overspeaking. That speaks too much.
2 "Praise him upon the well-tuned cymbals.”
3 Conceit. • Prevent.
Psalms cl. 5. The Psalter.
To forestall. "For thou preventest him with the blessings of goodness: thou settest a crown of pure gold on his head." Psalms xxi. 3.
5 Impertinency. Of. From.
'Glory. Vanity; display.
Grace. Favor. "But he giveth more grace. Wherefore he saith, God resisteth the proud, but giveth grace unto the humble." James iv. 6.
modest. But it is more strange, that judges should have noted favourites; which cannot but cause multiplication of fees, and suspicion of bye-ways. There is due from the judge to the advocate some commendation and gracing,1 where causes are well handled and fair2 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 3 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 for the party to say his counsel or proofs were not heard.
1 Grace. To favor. 2 Fair. Fairly.
Thirdly, for that that concerns clerks and ministers. The place of justice is an hallowed place; and therefore not only the bench, but the foot-pace 5 and precincts and purprise thereof, ought to be preserved without scandal and corruption. For cer
"Speak me fair in death."
Shakspere. The Merchant of Venice. iv. 1.
8 Conceit. Opinion. "Seest thou a man wise in his own conceit? there is more hope of a fool than of him." Proverbs xxvi. 12. • Chop. To bandy words.
"The chopping French we do not understand." Shakspere, King Richard II, v. 3.
tainly Grapes (as the Scripture saith) will not be gathered of thorns or thistles; 1 neither can justice yield her fruit with sweetness amongst the briars and brambles of catching and polling 2 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 curiæ, but parasiti curiæ,3 in puffing a court up beyond her bounds, for their own scraps1 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 proceedings, 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.
1 "Ye shall know them by their fruits. Do men gather grapes of thorns, or figs of thistles?" Matthew vii. 16.
2 Poll. To plunder; to exact 'graft.' Poller, a little further on, means a plunderer, a 'grafter.'
3 Friends of the court, but parasites of the court.
Scrap. In the provincial English of Norfolk, a scrap, or scrape, is a quantity of chaff mixed with grain and laid as a decoy to lure small birds for the purpose of shooting or netting them; hence, a snare. Familiar, in the spelling 'scrape,' meaning a situation of difficulty or perplexity. "Scrap. A villainous scheme or plot. Grose." A Dictionary of Slang and Colloquial English. John S. Farmer and W. E. Henley. 1905.
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; 1 and to know that laws, except they be in order to that end, are but things captious,2 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 3 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 meum and tuum, when the reason and consequence thereof may trench to point of estate:5 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 one moves with the other. Let judges also remember, that Salomon's throne was supported by lions on both sides: 6 let them be lions, but yet
1 The safety of the people is the supreme law. The quotation is not from the Laws of the XII Tables, but from Cicero, De Legibus Liber III. Caput 3. Section 8, where Cicero proposes it as a law for the government of his imaginary Republic.
2 Captious. Perplexing.
3 Intervenient. Intervening.
'Mine' and 'thine.'
5 Estate. State.
"The throne had six steps, and the top of the throne was round behind: and there were stays on either 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: there was not the like made in any kingdom." I. Kings x. 19 and 20.