Contents -BIBLIOGRAPHIC RECORD

S. Austin Allibone, comp. Prose Quotations from Socrates to Macaulay. 1880.

Judges

The best law in our days is that which continues our judges during their good behaviour, without leaving them to the mercy of such who might by an undue influence trouble and pervert the course of justice.

It was a famous saying of William Rufus, Whosoever spares perjured men, robbers, plunderers, and traitors, deprives all good men of their peace and quietness.

A king that setteth to sale seats of justice oppresseth the people; for he teacheth his judges to sell justice; and “pretio parata pretio venditur justitia.”

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 precept 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…. 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…. 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…. 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 stayed and equal attention…. 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.

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.

Let not judges also be so 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 eâ utatur legitime.”

The world, my fellow-citizens, has produced fewer instances of truly great Judges than it has of great men in almost every other department of civil life. A large portion of the ages that are past has been altogether incapable of producing this excellence. It is the growth only of a government of laws, and of a political constitution so free as to invite to the acquisition of the highest attainments, and to permit the exercise of the purest virtues, without exposure to degradation and contempt, under the frown of power. The virtues of a prince may partially correct the mischiefs of arbitrary rule, and we may see some rare examples of judicial merit, where the laws have had no sanction, and the government no foundation, but in the uncontrolled will of a despot; but a truly great Judge belongs to an age of political liberty, and of public morality, in which he is the representative of the abstract justice of the people in the administration of the law, and is rewarded for the highest achievements of duty by proportionate admiration and reverence.

We are now under the direction of a fearful mandate which compels our Judges to enter the arena of a popular election for their offices, and for a term of years so short as to keep the source of their elevation to the Bench continually before their eyes. At least once again in the life of every Judge we may suppose he will be compelled by a necessity much stronger than at first to enter the same field; and the greater the necessity the less will his eyes ever close upon the fact. It is this fact, re-eligibility to office, with the hope of re-election, that puts a cord around the neck of every one of them during the whole term of his office. It is transcendency worse than the principle of original election at the polls…. A leasehold elective tenure by the judiciary is a frightful solecism in such a government. It enfeebles the guarantee of other guarantees—the trial by jury—the writ of habeas corpus—the freedom and purity of elections by the people—and the true liberty and responsibility of the press. It takes strength from the only arm that can do no mischief by its strength, and gives it to those who have no general intelligence to this end in the use of it, and therefore no ability to use it for their own protection. The certainty and permanence of the law depend in great degree upon the Judges; and all experience misleads us, and the very demonstrations of reason are fallacies, if the certainty and permanence of the judicial office by the tenure of good behaviour are not inseparably connected with a righteous as well as with a scientific administration of the law.

In the first class I place the judges as of the first importance. It is the public justice that holds the community together; the ease, therefore, and independence of the judges ought to supersede all other considerations, and they ought to be the very last to feel the necessities of the state; or to be obliged either to court or bully a minister for their right; they ought to be as weak solicitors on their own demands as strenuous asserters of the rights and liberties of others. The judges are, or ought to be, of a reserved and retired character, and wholly unconnected with the political world.

It is related of some French judge, who was remarked throughout his whole practice for the almost infallible justice of his decrees, that whenever any extraordinary case occurred the circumstances of which were so perplexed as to render him incapable of giving a decided opinion in favour of either side, with satisfaction to his own conscience, he was accustomed to retire to his closet, and refer it to the final decision of the die.

Give me a man that buys a seat of judicature; I dare not trust him for not selling justice.

If they which employ their labour and travail about the public administration of justice, follow it only as a trade, with unquenchable thirst of gain, being not in heart persuaded that justice is God’s own work, and themselves his agents in this business,—the sentence of right, God’s own verdict, and themselves his priests to deliver it; formalities of justice do but serve to smother right; and that which was necessarily ordained for the common good is, through shameful abuse, made the cause of common misery.

The verdict of the judges was biassed by nothing else than their habitudes of feeling.

Princes in judgment, and their delegate judges, must judge the causes of all persons uprightly and impartially, without any personal consideration.

In judgments between rich and poor, consider not what the poor man needs, but what is his own.

Where the law is known and clear, the Judges must determine as the law is, without regard to the inequitableness or inconveniency: these defects, if they happen in the law, can only be remedied by Parliament. But where the law is doubtful and not clear, the Judges ought to interpret the law to be as is most consonant to equity and what is least inconvenient.