From the Essayes of Francis Bacon
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 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 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 fountain. 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, 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; 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 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
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 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; 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 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 overbold 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 clerks and ministers. 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 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 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
deduced 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 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 Solomon’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. (We know that the law is good, if a
man use it lawfully).