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Bolon, Justinian, Edgar, e Alphonsus of Castile he Wise, that made the “Siete Partidas:"in the third place are “ liberatores," or "salvatores,” & such as compound the long miseries of civil wars, or deliver their countries from servitude of strangers or tyrants; as Augustus Cæsar, Vespasianus, Aure. lianus, Theodoricus, King Henry the Seventh of England, King Henry the Fourth of France: in the fourth place are " propagatores,” or “propugnatores imperii," b such as in honourable wars enlarge their territories, or make noble de
fence against invaders; and, in the last place, are patres » patriæ,"i which reign justly and make the times good
wherein they live; both which last kinds need no examples, they are in such number. Degrees of honour in subjects participes curarum,"
," those upon whom princes do discharge the greatest weight of their affairs; their right hands, as we call them ; the next are “ duces belli,"great leaders; such as are princes' lieutenants, and do them notable services in the wars : the third are gratiosi,” favourites;
such as exceed not this scantling,m to be solace to the sove→ reign, and harmless to the people : and the fourth, “negotiis pares;
;"" such as have great places under princes, and execute their places with sufficiency. There is an honour, likewise, which may be ranked amongst the greatest, which happeneth rarely ; that is, of such as sacrifice themselves to death or danger for the good of their country; as was M. Regulus, and the two Decii.
• Surnamed the Peaceful, who ascended the throne of England A.D. 959. He was eminent as a legislator and a rigid assertor of justice. Hume considers his reign “one of the most fortunate that we meet with in the ancient English history."
* These were a general collection of the Spanish laws, made by Alphonso X. of Castile, arranged under their proper titles. The work was commenced by Don Ferdinand, his father, to put an end to the contradictory decisions in the Castilian courts of justice. divided into seven parts, whence its name “Siete Partidas.” It did noty however, become the law of Castile till nearly eighty years after.
& "Deliverers," or "preservers.".
1 "Leaders in war.
Equal to their duties.”
LVI.-OF JUDICATURE. JUDGES ought to remember that their office is “ cere,”a and not “jus dare ;”b 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 antiquity 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 lawC) 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 fountain : so saith Solomon, “ Fons turbatus et vena corrupta est justis cadens in causâ suấ coram adversario."d The office of judges may have reference unto the parties that sue, 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
“To expound the law."
b “ To make the law." · The Mosaic law. He alludes to Deuteronomy xxvii. 17—“Cursed ba he that removeth his neighbour's landmark.”
d“A righteous man falling down before the wicked is as a troubled fountain and a corrupt spring.”—Proverbs xxv. 26.
· Amos v. 7-"Ye who turn judgment to wormwood, and leave off righteousness in the earth."
hills : 80 when there appeareth on either side a 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 ;"f 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: especially 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 ;"g for penal laws pressed,h 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,” &c.i In causes of life and death, judges ought (as far as the law permitteth) in justice to
and to cast a severe eye upon the example, but a merciful eye upon
person. Secondly, for the advocates and counsel that plead. Patience) and gravity of hearing is an essential 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 pertinent. The parts of a judge in hearing are four : to direct the evidence ; to moderate length, repetition, or impertinency of speech;
["He who wrings the nose strongly brings blood.” Proverbs xxx. 33—"Surely the churning of milk bringeth forth butter, and the wringing of the nose bringeth forth blood; so the forcing of wrath bringeth forth strife.”
8“He will rain snares upon them." Psalm xi. 6—“Upon the wicked he shall rain snares, fire, and brimstone, and an horrible tempest.” b Strained.
“It is the duty of a judge to consider not only the facts but the circumstances of the case.'
Pliny the Younger, Ep. B. 6, E. 2, has the observation_"PatienLiam : quæ pars magna justitiæ est ;"_"Patience, which is a great part of justice.
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 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-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 ;k 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, por 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 ministers. The place of justice is a hallowed place; and therefore not only the bench but the foot-pace 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 ;” n neither can justice yield her fruit with sweetness amongst the briars and brambles of catching and pollingo 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
k Is not successful.
St. Matthew vii. 16—“Do men gather grapes of thorns or figs of thistles
those thiat engage courts in quarrels of jurisdiction, and are not truly “amici curiæ,”p but “ parasiti curiæ,”q 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 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 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 sovereign and estate. Judges ought, above all, to remember 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 a 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 deduced to judg
be “ meum "t and “tuum,”u 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 dangercus 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 reniember, that Solomon's throne was supported by lions on
P“ Friends of the court.
“The safety of the people is the supreme law.”
o “Yours." * He alludes to 1 Kings n. 19, 30—“The throne had six steps, and the top of the throne was round behind : and there were stays on either