In the Sphere of Government
The business of judicature, requiring as it does the possession of a high degree of technical skill and knowledge, is generally entrusted by the sovereign body or people to a separate and independent class of functionaries. In England the appellate jurisdiction of the House of Lords still maintains in theory the connexion between the supreme legislative and the supreme judicial functions. In some states of the American Union certain judicial functions of the upper house were for a time maintained after the example of the English constitution as it existed when the states were founded.
In England there is also still a considerable amount of judicial work in which the people takes its share. The inferior magistracies, except in populous places, are in the hands of private persons. And by the jury system the ascertainment of fact has been committed in very large measure to persons selected indiscriminately from the mass of the people, subject to a small property qualification. But the higher functions of the judicature are exercised by persons whom the law has jealously fenced off from external interference and control. The independence of the bench distinguishes the English system from every other. It was established in principle as a barrier against monarchical power, and hence has become one of the traditional ensigns of popular government.
In many of the American states the spirit of democracy has demanded the subjection of the judiciary to popular control. The judges are elected directly by the people, and hold office for a short term, instead of being appointed, as in England, by the responsible executive, and removable only by a vote of the two Houses. At the same time the constitution of the United States has assigned to the supreme court of the Union a perfectly unique position. The supreme court is the guardian of the constitution (as are the state courts of the constitution of the states). It has to judge whether a measure passed by the legislative powers is not void by reason of being unconstitutional, and it may therefore have to veto the deliberate resolutions of both Houses of Congress and the president. It is admitted that this singular experiment in government has been completely justified by its success.
Judges ought to remember that their office is “jus dicereÂ”, and not “jus dareÂ”; 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 (said the law) “is he that removeth the landmarkÂ”. The misleader of a boundary 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 soul sentence doth more hurt than many foul examples. For these do but corrupt the stream, the other corrupted the fountain. So said Solomon, “A righteous man falling down before the wicked is as a troubled fountain or a corrupt springÂ”. 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.
First, for the causes or parties that sue. There be (said the Scripture) that turn judgment into wormwood; and surely there be also that turn it into vinegar; for injustice makes 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 used to prepare his way, by raising valleys and taking down hills: so when there appeared on either side an 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. “Violent wringing makes the nose bleedÂ”; 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. 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 specked, “He will rain snares upon themÂ”; 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: “A judge must have regard to the time as well as to the matterÂ”. In causes of life and death, judges ought (as far as the law permitted) 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 proceeded 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 “repressed the presumptuous, and gives grace to the modestÂ”. 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 obtained 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 appeared cunning counsel, gross neglect, slight information, indiscreet pressing, or an over-bold defense. And let not the counsel at the bar chop with the judge, nor has wind himself into the handling of the cause anew after the judge declared his sentence; but, on the other side, let not the judge meet the cause half way, nor give occasion for the party to say his counsel or proofs were not heard.
Thirdly, for that that concerns clerks and ministers. The place of justice is an hallowed place; and therefore not only the bench, but the lobby and precincts and enclosure thereof, ought to be preserved without scandal and corruption. For certainly grapes (as the Scripture said) will not be gathered of thorns or thistles; neither can justice yield her fruit with sweetness amongst the briars and brambles of catching and extorting fees 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 curiÃ¦, but parasiti curiÃ¦Â” [not friends but parasites of the court], 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 defense 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 this may concern the sovereign and estate. Judges ought above all to remember the conclusion of the Roman Twelve Tables; “The supreme law of all is the weal of the peopleÂ”; 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 an 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 brought into court may be “meum and tuumÂ”, when the principle and consequence thereof may touch point of estate: I call matter of estate, not only the parts of sovereignty, but whatsoever introduced any great alteration or dangerous precedent; or concerned 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 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 said of a greater law than theirs; “We know that the law is good, if a man use it lawfullyÂ”.
Main source: Francis Bacon. (1561-1626). Essays, Civil and Moral . Chapter: Of Judicature
Notes and References
- Encyclopedia Britannica (1911)
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Judicature Acts (England)
- Judiciary Acts