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Washington reduced to the brink of despair, and that nothing would have saved his cause, but such a series of blundering follies on the part of the British commanders, as never occurred before or since, and such as no one would have calculated on.
Of all the clever men then that at that time existed, and many of whom spoke eloquently on each side, Tucker was the only one who was not puzzle-headed. And he obtained some small share of late credit, but present contempt.
A very clear-headed man will always have detected some popular fallacies, and perceived some truths generally overlooked; and, in short, will always be somewhat in advance of the common run of his contemporaries. And if he has the courage to speak out on these points, he must wait till the next generation for the chief part at least of his popularity. The fame of clever but puzzle-headed advocates of vulgar errors, will spring up like a mushroom in a night, which rots in a day. His will be a tree, 'seris factura nepotibus umbram.''
The author in question furnished a striking confirmation of the paradox. In two or three years he and his book were totally forgotten. He himself outlived, by a good many years, his own mushroom-celebrity. He went off, like a comet into its aphelion, and became invisible. It would be difficult to find a copy of his works, except at the trunk-maker's. And the prophecy concerning him, in the conversation above recorded, is probably forgotten also by those who took part in it. 'Ipsse periere ruinae.'*
The truth is, that what people in general most readily and most cordially approve, is the echo of their own sentiments; and whatever effect this may produce must be short-lived. We hear of volcanic islands thrown up in a few days to a formidable size, and, in a few weeks or months, sinking down again or washed away; while other islands, which are the summits of banks covered with weed and drift sand, continue slowly increasing year after year, century after century. The man that is in a hurry to see the full effect of his own tillage, should cultivate annuals, and not forest trees. The clear-headed lover of truth is content to wait for the result of his. H he is wrong
.' Destined to afford shade to one's grandchildren.
in the doctrines he maintains, or the measures he proposes, at least it is not for the sake of immediate popularity. If he is right, it will be found out in time, though, perhaps, not in his time. The preparers of the mummies were (Herodotus says) driven out of the house by the family who had engaged.their services, with execrations and stones; but their work remains sound after three thousand years.
ESSAY LVI. 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 stick1 to add and alter, and to pronounce that tyhich 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 land 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 coram adversario.''
The office of judges may have a reference unto the parties that sue, unto the advocates that plead, unto clerks and ministers of justice underneath them, and to the sovereign or State above them.
First, for the causes of 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 spewed5 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 persecution, 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 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; especially in case of laws penal, they ought to have care, that that which was meant for terror,3 be not turned into rigour: and that they bring not upon people that shower whereof the Scripture speaketh,'Pluet super eos laqueos;'4 for penal laws pressed, are a shower of snares upon the people: therefore let penal laws, if they have been sleepers of long,5 or if they be grown unfit for the present time, be by wise judges confined in the execution: 'Judicis oflBcium est, ut res, ita tempora rerum,' (fee.* 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.
1 Stick. To scruple; to hesitate. 'Rather than impute our miscarriages to our own corruptions, we do not stick to arraign Providence itself.'—L'Estrange.
* Deut. xxvii. 17.
3 'A righteous man falling in his cause beforo his adversary is as a troubled fountain and a corrupt spring.'—Prov. xxv. 26.
* Amos v. 7.
s Spew. To eject with loathing. 'Because thou art lukewarm, and neither cold nor hot, I will spew theo out of my moutii.'—Revel, iii. 16.
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.7 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 prevent9 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 glory3 and willingness to speak, or of impatience to hear, or of shortness of memory, or of want of a stayed 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 obtaineth6 not; for that upholds in the client the reputation of his counsel, and beats down m him the conceit7 of his cause. There is likewisedue to the Public a civil reprehension of advocates, where thero appeareth cunning counsel, gross neglect, slight information, indiscreet pressing, or an over-bold defence. And let not tho counsel at the bar chop8 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.
1 'Who wrings hard draws forth blood.' Cf. Prov. xxx. 33.
* Wrought . Worked. 'It had been a breach of peace to have wrought any mino of his.'—Raleigh.
* Terror. What may excite dread. 'Rulers ore not a terror to good works, but to evil.'—Romans xiii. 3.
4 'He shall rain snares upon them.'—Psalm xi. 6.
5 Of. For; during. 'He was desirous to see him of a long season.'—Luke xxiii. 8.
* ' It is the duty of a judge to take into consideration the times, as well as tho circumstances, of tacts.'—Ovid, Trtit. 1. i. 3 7. 'Psalm cl. 5.
8 Conceit . Conception; appreheneion. 'I shall be found of a quick conceit in judgment . and I shall be admired.'—Wisdom viii. Ii. s Prevent . Forestall. See Matt. xvii. 25.
Thirdly, for that that concerns clerks and ministers. The place of justice is a hallowed place; and therefore not only the
1 Impertinency. Irrelevancy. See page 96. J Of. From. See page 289.
3 Glory. Display; vaunting. See pago 568.
4 Grace. To favour.
'Regardless pass'd her o'er, nor grac'd with land adieu.'—Dryden.
6 Fair. Fairly.
'Entreat her fair.'—Shakespere.
6 Obtain. To prevail; succeed. 'Thou shalt not obtain nor escape by fleeing.' —Ecelasiasticus xi. 10.
* Conceit . Opinion. 'Seest thou a man wise in his own conceit f There U more hope of a fool than of him.'—Pmii. xxvi. 12.
'I shall not fail to approve tho fair coiweit The king hath of you.'—Shakespere. 8 Chop. To bandy words.
'The clwjsping French we do not understand.'—Slwkespere.