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Sir Francis Bacon

Essay 56

Of Iudicature.
1 IVdges ought to remember, that their Office is Ius dicere, and not Ius dare; To Interpret Law, and not to Make Law, or Giue Law. Else will it be like the Authority, claimed by the Church of Rome; which vnder 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 Noueltie. Iudges ought to be more Learned, then Wittie; More Reuerend, then Plausible; And more Aduied, then Confident. Aboue all Things, Integritie is their Portion, and Proper Vertue. Cursed ( saith the Law ) is hee that remoueth the Land-marke. The Mislaier of a Meere Stone is to blame. But it is the Vniust Iudge, that is the Capitall Remouer 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 Iustus cadens in causâ suâ coram Aduersario. The Office of Iudges, may haue Reference, Vnto the Parties that sue; Vnto the Aduocates that Plead; Vnto the Clerkes and Ministers of Iustice vnderneath them; And to the Soueraigne or State aboue them.
2 First, for the Causes or Parties that Sue. There be ( saith the Scripture ) that turne Iudgement into Worme-wood; And surely, there be also, that turne it into Vinegar; for Iniustice maketh it Bitter, and Delaies make it Soure. The Principall Dutie of a Iudge, 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 Iudge ought to prepare his Way to a Iust Sentence, as God vseth to prepare his Way, by Raising Valleys, and Taking downe Hills: So when there appeareth on either side, an High Hand; Violent Prosecution, Cunning Aduantages taken, Combination, Power, Great Counsell, then is the Vertue of a Iudge seene, to make Inequalitie Equall; That he may plant his Iudgement, as vpon an Euen Ground. Qui fortitèr emungit, elicit sanguinem; And where the Wine-Presse is hard wrought, it yeelds a harsh Wine, that tastes of the Grapestone. Iudges 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 haue Care, that that which was meant for Terrour, be not turned into Rigour; And that they bring not vpon the People, that Shower, whereof the Scripture speaketh; Pluet super eos Laqueos: For Penall Lawes Pressed, are a Shower of Snares vpon the People. Therefore, let Penall Lawes, if they haue beene Sleepers of long, or if they be growne vnfit for the present Time, be by Wise Iudges confined in the Execution; Iudicis Officium est, vt Res, ita Tempora Rerum, &c. In Causes of Life and Death; Iudges ought ( as farre as the Law permitteth ) in Iustice to remember Mercy; And to Cast a Seuere Eye vpon the Example, but a Mercifull Eye vpon the Person.   
3 Secondly, for the Aduocates and Counsell that Plead: Patience and Grauitie of Hearing, is an Essentiall Part of Iustice; And an Ouer-speaking Iudge is no well tuned Cymball. It is no Grace to a Iudge, first to finde that, which hee might haue heard, in due time, from the Barre; or to shew Quicknesse of Conceit in Cutting off Euidence or Counsell too short; Or to preuent Information, by Questions though Pertinent. The Parts of a Iudge in Hearing are Foure: To direct the Euidence; To Moderate Length, Repetition, or Impertinency of Speech; To Recapitulate, Select, and Collate, the Materiall Points of that, which hath beene said; And to Giue the Rule or Sentence. Whatsoeuer is aboue 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 Aduocates, should preuaile with Iudges; Whereas they should imitate God, in whose Seat they sit; who represseth the Presumptuous, and giueth Grace to the Modest. But it is more Strange, that Iudges should haue Noted Fauourites; Which cannot but Cause Multiplication of Fees, and Suspicion of By-waies. There is due from the Iudge, to the Aduocate, some Commendation and Gracing, where Causes are well Handled, and faire Pleaded; Especially towards the Side which obtaineth not; For that vpholds, 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 Ciuill Reprehension of Aduocates, where there appeareth Cunning Counsel, Grosse Neglect, Slight Information, Indiscreet Pressing, or an Ouer-bold Defence. And let not the Counsell at the Barre, chop with the Iudge, nor winde himselfe into the handling of the Cause anew, after the Iudge hath Declared his Sentence: But on the other side, Let not the Iudge meet the Cause halfe Way; Nor giue Occasion to the Partie to say; His Counsell or Proofes were not heard.
4 Thirdly, for that that concernes Clerks, and Ministers. The Place of Iustice, is an Hallowed Place; And therefore, not only the Bench, but the Foot-pace, and Precincts, and Purprise thereof, ought to be preserued without Scandall and Corruption. For certainly, Grapes, ( as the Scripture saith ) will not be gathered of Thornes or Thistles: Neither can Iustice yeeld her Fruit with Sweetnesse, amongst the Briars and Brambles, of Catching and Poling Clerkes and Ministers. The Attendance of Courts is subiect 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 Iurisdiction, and are not truly Amici Curiæ, but Parasiti Curiæ; in puffing a Court vp beyond her Bounds, for their owne Scraps, and Aduantage. 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 peruert the Plaine and Direct Courses of Courts, and bring Iustice into Oblique Lines and Labyrinths. And the Fourth is, the Poler and Exacter of Fees; which iustifies the Common Resemblance of the Courts of Iustice, 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 Vnderstanding in the Businesse of the Court, is an excellent Finger of a Court; And doth many times point the way to the Iudge himselfe.
5 Fourthly, for that which may concerne the Soueraigne and Estate. Iudges ought aboue all to remember the Conclusion of the Roman Twelue 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 Iudges; And againe, when Iudges doe often Consult with the King and State: The one, when there is Matter of Law, interuenient in Businesse of State; The other, when there is some Consideration of State, interuenient in Matter of Law. For many times, the Things Deduced to Iudgement, 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 Soueraigntie, but whatsoeuer introduceth any Great Alteration, or Dangerous president; Or Concerneth manifestly any great Portion of People. And let no Man weakly conceiue, that Iust Laws, and True Policie, haue any Antipathie: For they are like the Spirits, and Sinewes, that One moues with the Other. Let Iudges also remember, that Salomons Throne, was supported by Lions, on both Sides; Let them be Lions, but yet Lions vnder the Throne; Being circumspect, that they doe not checke, or oppose any Points of Soueraigntie. Let not Iudges 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 Vse, 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 vtatur Legitimè.

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