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repetition, or impertinency1 of speech; to recapitulate, select, and collate the material points of that which hath heen said; and to give the rule or sentence. Whatsoever is above these is too much, and proceedeth either of2 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 fair5 pleaded, especially towards the side which obtaineth6 not; for that upholds in the client the reputation of his counsel, and beats down in him the conceit7 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 chops 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 footpace1 and precincts, and purprise2 thereof, ought to be preserved without scandal and corruption; for, certainly, grapes (as the Scripture saith) 'will not be gathered of thorns or thistles;'3 neither can justice yield her fruit with sweetness amongst the briars and brambles of catching and polling4 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,'5 in puffing a court up beyond her bounds for their own scraps and advantages: 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 the fleece. On the other side, an ancient7 clerk, skilful in precedents, wary in proceedings, and understanding in the business of the court, is an excellent figure of a court, and doth many times point the way to the judge himself.
1 Impertinency. Irrelevancy. See page 86. •
s Of. From. See page 270.
3 Glory. Display; vaunting. See page 538.
4 Grace. To favour.
'Kegardless pass'd her o'er, nor grac'd with kind adieu.'—Dryden.
6 Fair. Fairly.
'Entreat her fair.'—Shakespere.
6 Obtain. To prevail; succeed. 'Thou shalt not obtain nor escape by fleeing.' —Ecclesiaslicus xi. 10.
7 Conceit. Opinion. 'Seest thou a man wise in his own conceit 1 There is more hope of a fool than of him.'—Frov. xxvi. 12.
'I shall not fail to approve the fair conceit
s Chop. To bandy words.
'The chopping French we do not understand.'—Shakespere.
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 ;'8 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
1 Footpace. A lobby.
s Purprise. Enclosure. 'But their wives and children were to assemble together in a certain place in Phocis, and they filled the purprises and precincts thereof with a huge quantity of food.'—Holland.
3 Matt. vii. 16.
4 Polling. Plundering, 'Peeling and polling were voyded, and in place thereof succeeded liberality.'—Erasmus.
5 'Friends of the court/ but 'parasites of the court.'
6 Poller. Plunderer. 'With Sallust, he may rail downright at a spoiler of countries, and yet in office to be a most grievous poller himself.'—Surton.
7 Ancient. Senior. 'Junius and Andronicus were in Christianity his ancients.' —Hooker.
8 'The safety of the people is the supreme law.'
• with judges: and again, when judges do often consult with the king and State: the one, where there is matter of law intervenient1 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 :3 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, 'Nos scimus quia lex bona est, modo quis ea utatur legitime.'*
'Non est interpretatio, sed divinatio, 'Ex omnibus verbis eliciendus est
quae recedit a litera. sensus, qui interpretur singula.
'If we depart from the letter, we are 'The sense of the whole should benot interpreting the law, but guessing at taken as the interpreter of each single
the law.' word.'
'Cum receditur a litera, judex transit 'Pessima tyrannis lex jn equuleo.
in legislatorem. 'Law put to the rack is the worst of
'When we depart from the letter, the tyrannies' judge is changed into a legislator.'
1 Intervenient Intervening. 'I omit things intervenient.'— Wotton.
s 'Mine' and 'thine.'
8 I Kings x. 20.
4 * We know that the law is good, if a man use it lawfully.'—I Tim. i. 8.
'There is due to the public a civil reprehension of advocates,
where there appeareth cunning counsel, indiscreet
pressing, or an over-bold defence.'
The temptation to an 'over-bold defence'—to a wilful misleading of a judge or jury by specious sophistry, or seeking to embarrass an honest witness, and bring his testimony into discredit—is one to which the advocate is, undeniably, greatly exposed. Nay, it has even been maintained by no mean authority,1 'that it is part of a pleader's duty to have no scruples about any act whatever that may benefit his client.' 'There are many whom it may be needful to remind,' says an eminent lawyer, 'that an advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world—that client, and none other. To serve that client, by all expedient means, to protect that client at all hazards and costs to all others (even the party already injured) and amongst others, to himself, is the highest and most unquestioned of his duties. And he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any others. Nay, separating even the duties of a patriot from those of an advocate, he must go on, reckless of the consequences, if his fate should unhappily be to involve his country ill confusion, for his client.'—[Licence of Counsel, p. 3.]
On the other hand, it is recorded that 'Sir Matthew Hale, whenever he was convinced of the injustice of any cause, would engage no more in it than to explain to his client the grounds of that conviction; he abhorred the practice of misreciting evidence, quoting precedents in books falsely or unfairly, so as to deceive ignorant juries or inattentive judges; and he adhered to the same scrupulous sincerity in his pleadings which he observed in the other transactions of life. It was as great a dishonour as a man was capable of, that for a little money he was hired to say otherwise than he thought.'—[Licence of Counsel, p. 4.]
1 'Lecture on the Intellectual and Moral Influences of the Professions/ reprinted ill the Elements of Eluitoric.
'The advocate, ' says another eminent legal writer, 'observing in an honest witness a deponent whose testimony promises to be adverse, assumes terrific tones and deportment, and, pretending to find dishonesty on the part of the witness, strives to give his testimony the appearance of it. I say a bond fide witness; for in the case of a witness who, by an adverse interrogator, is really looked upon as dishonest, this is not the proper course, nor is it taken with him. For bringing to light the falsehood of a witness really believed to be mendacious, the more suitable, or rather the only suitable course is to forbear to express the impression he has inspired. Supposing his tale clear of suspicion, the witness runs on his course with fluency till he is entangled in some irretrievable contradiction, at variance with other parts of his own story, or with facts notorious in themselves, or established by proofs from other sources.' — [Licence of Counsel, p. 5.]
'We happen to be aware, from the practice of persons of the highest experience in the examinations of witnesses, that this description is almost without exception correct, and that, as a general rule, it is only the honest and timid witness who is confounded by imperious deportment. The practice gives preeminence to the unscrupulous witness who can withstand such assaults. Roger North, in his life of Sir Dudley North, relates that the law of Turkey, like our absurd law of evidence in some cases, required the testimony of two witnesses in proof of each fact; and that a practice had in consequence arisen, and had obtained the sanction of general opinion, of using a false witness in proof of those facts which admitted of only one witness. Sir Dudley North, while in Turkey, had numerous disputes which it became necessary to settle by litigation,— 'and,' says his biographer, 'our merchant found by experience, that in a direct fact a false witness was a surer card than a true one; for if the judge has a mind to baffle a testimony, an honest, harmless witness, that doth not know his play, cannot so well stand his many captious questions, as a false witness, used to the trade, will do; for he hath been exercised, and is prepared for such handling, and can clear himself, when the other will be confounded: therefore circumstances may be such as to make the false one more eligible.'
According to one, then, of the writers I have cited, an