ESSAYS-1

第56章

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 infer-ences; for there is no worse torture, than the tor-ture of laws. Specially in case of laws penal, they ought to have care, that that which 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 remem-ber 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 essen-tial 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 perti-nent. 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. What-soever is above these is too much; and proceedeth either of glory, and willingness to speak, or of im-patience 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 pre-sumptuous, 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 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 minis-ters. 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 com-mon 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 prece-dents, 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 sov-ereign and estate. Judges ought above all to re-member 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.

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