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persons of quality and judgment concur, then it is (as the Scripture saith) Nomen bonum instar wmgwenti fragrantis;” it filleth all round about, and will not easily away; for the odours of ointments are more durable than those of flowers. There be so many false points of praise, that a man may justly hold it a suspect. Some praises proceed merely of flattery; and if he be an ordinary flatterer, he will have certain common attributes, which may serve every man; if he be a cunning flatterer, he will follow the arch-flatterer, which is a man's self; and wherein a man thinketh best of himself, therein the flatterer will uphold him most: but if he be an impudent flatterer, look, wherein a man is conscious to himself that he is most defective, and is most out of countenance in himself, that will the flatterer entitle him to perforce, spreta conscientia.” Some praises come of good wishes and respects, which is a form due in civility to kings and great persons, lawdamdo praecipere; * when, by telling men what they are, they represent to them what they should be. Some men are praised maliciously to their hurt, thereby to stir envy and jealousy towards them ; Pessimum genus inimicorum lawdantium ; * insomuch as it was a proverb amongst the Grecians, that “he that was praised to his hurt should have a push" rise upon his nose”; as we say that a blister will rise upon one's tongue that tells a lie. Certainly moderate praise, used with opportunity, and not vulgar, is that which doeth the good. Solomon saith, “He that praiseth his friend aloud, rising early, it shall be to him no better than a curse.” Too much magnifying of man or matter doth irritate contradiction, and procure envy and scorn. To praise a man’s self cannot be decent, except it be in rare cases; but to praise a man's office or profession, he may do it with good grace, and with a kind of magnanimity. The Cardinals of Rome, which are theologues, and friars, and schoolmen, have a phrase of notable contempt and scorn towards civil business; for they call all temporal business of wars, embassages, judicature, and other employments, sherrerie, which is undersheriffries, as if they were but matters for under-sheriffs and catchpoles; though many times those under-sheriffries do more good than their high speculations. St. Paul, when he boasts of himself, he doth oft interlace, “I speak like a fool”; but speaking of his calling, he saith, Magnificabo apostolatum meum."
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 saith Solomon, Fons turbatus et vena corrupta est justus cadens in causa sua coran adversario.”
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. * - o
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 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 ;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: especially, in case of laws penal, they ought to have care that that which
8 Here, again, advised is careful, considerate. See page 587, note 4.
9 “A righteous man falling in his cause before his adversary is as a troubled fountain and a corrupt spring,” .
1 “He who wrings the nose hard brings blood.” .* was meant for terror be not turned into rigour; and that they bring not upon the people that shower whereof the Scripture speaketh, Pluct 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, &c.” 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 over-speaking 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 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; 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, 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 concerns clerks and ministers. The place of justice is a hallowed place ; and therefore not only the bench, but the footpace” 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”; neither 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 lea: ; * 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
2 “He will rain snares upon them.”
3 “It is the duty of a judge to consider not only the facts but the circumstances of the case.”
4 Prevent in its old sense of anticipate or forestall.
5 Glory here is vain glory; that is vaunting or display. See page 603, notes.
6 Grace in the sense of favour. So in St. James, iv., 6: “God resisteth the proud, but giveth grace unto the humble.”
7 That is, abates his considence in the goodness of his cause. Conceit for opinion. So in King IIenry the Eighth, ii.,3: “I shall not sail to approve the fair conceit the Iing hath of you.” Also in the Scripture saying: “Seest thou a man wise in his own conceit ** : -
8 To chop, here, is to bandy words. See page 602, note 9. 9 The footpace is what we call the lobby. - 1 The purprise is the enclosure. So in Holland's Plutarch: “Their wives and children were to assemble all together unto a certain place in Phocis, and environ the whole purprise and precinct thereof with a huge quantity of wood.” : 2 To poll is an old word for to pillage, to plunder. Poller, a little further on, has the same sense. So Burton: “He may rail downright at a spoiler of countries, and yet in office be a most grievous poller himself.” 3 Not “friends of the court,” but “parasites of the court.” 4 “The safety of the people is the supreme law.”
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 twum, 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 so ignorant of their own right as to think there is not left 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: lWos scimus quia lea: bona est, modo quis ed utatur legitime.”
To seek to extinguish anger utterly is but a bravery 7 of the Stoics. We have better oracles: “Be angry, but sin not; let not the Sun go down upon your anger.” Anger must be limited and confined both in race and in time. We will first speak how the natural inclination and habit “to be angry” may be attempered and calmed; secondly, how the particular motions of anger may be repressed, or at least refrained from doing mischief; thirdly, how to raise anger, or appease anger in another.
For the first, there is no other way but to meditate and ruminate well upon the effects of anger, how it troubles man's life; and the best time to do this, is to look back upon anger when the fit is thoroughly over. Seneca saith well, that “anger is like ruin, which breaks itself upon that it falls.” The Scripture exhorteth us “to possess our souls in patience”; whosoever is out of patience, is out of possession of his soul. Men must not turn bees, animasque in vulnere pomunt.” Anger is certainly a
5 States for orders. See page 193, note 2.