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B01987
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The character of a judge. In a letter from the country, to a friend in the city.
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1700
(1700)
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Wing C1977A; ESTC N47165
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8,276
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12
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The Character of a Judge In a Letter from the Country to a Friend in the City SIR HAving heard a Report that you are to be made a Judge I shall in confidence of our former Familiarity take that Liberty betimes which your after-Character might restrain by giving my Thoughts concerning the Weights of this Post It 's one of the most difficult and dangerous to the person who undertakes it that occurs in the Government of this World and you are entering into one of the most Capable and Best Societies in Christendome who will very narrowly observe your Halting The Truth of my Position will best appear by laying down the ordinary Qualifications of a Tollerable Judge Which may be Reduced to two main Heads namely Capacity and Integrity Under Capacity is Comprehended 1mo A Competent Knowledge of Law Governed by Good Sense Neither of which separatly will suffice I shall not inlarge upon this Point because common Subjects must suppose that their Rulers have taken care thereof 2do Courage Tempered with Modesty is Requisit for Exerting such Knowledge as is mentioned above Either of these by it self may perniciously Deboard For Natural Complexion may be such as on the one hand being Heated Swells over all the Banks of Law Or on the other hand may be so Chilled upon the appearing of a great Party or Publick Cause as to sink under the Weight of Timidity Both which proceed from a Secret Spring of Natural Defects often without any set Design of doing Injustice The Cure of which Diseases will be suggested under a subsequent Head of Self-observation Integrity doth Comprise many Ingredients Reducible to Impartiality and Diligence Without these Virtues even a solid Vnderstanding accompanied with a discreet Boldness will not serve the Ends of Judgement designed by GOD and Man but on the contrary may be abused to the worst purpose of perverting Justice more Effectually Impartiality Excluds 1mo All Respect of Persons beyond Civility of Good Breeding whether Parties or Pleaders concerned in a Cause And is intirely directed by the Merit or Demerit of the thing proven or to be proven in Law Nothing is more agreeable to the nature of Judgement and more necessary for Restraining the Arbitrary Proceedings of Judges Which is the ground whereupon Scripture Reason and Humane Authority has fixed this Indefezible Rule And which is to be extended even to casus pro amico Tho' in the most dubious Case or smallest Matter Because For discovering this great Snare of casus pro amico the most dangerous that is laid by the Fowler It is to be observed 1mo That there are Rules in Law for decideing the most dubious Cases which can occur And therefore 2do These Rules are not to be broken for personal Respect to any privat Freind or publick Party whatsomever The Rules are obvious in the Laws and Lawyers of all Nations Even when the Arguments on both Sides are otherways perfectly Equal and the Judges Conscience cannot distinguish any difference in the Ballance Namely that in a matter thus doubtful he is to give his Answer for the Defendant or Possessor Except in some Cases where the Legal Favour of the Cause not of the Person predomines the Priviledge or Presumption which stands for the said Defendant or Possessor as it falls out sometimes pro pia causa pro Libertate c. contra fiscum contra animum donandi c. These Subsidiary Maxims of the Law it self make the most unclear Case in it self to become most clear as to the Issue of Decision And therefore it 's still according to Law Or if after all it still remain obscure so that the Judge cannot vote from full Conviction which Paul calls of Faith then the Law it self allows a Non-Liquet But to Surrogate in place thereof the Judges Personal Respect is inconsistent with all the Principles of Nature and Religion For it 's an Vsurpation he having no Commission from GOD or the Soveraign to make the least Distinction betwixt his proper Friends and those who are not so It 's Robbery to take from another who has the Misfortune not to be his Friend and adjudge it to the person who happens to claim that peculiar Priviledge It 's directly opposite to Sacred Write which forbids Respect of Persons in Judgement without Limitation The very favouring of the Lowness of the Poor as well as the Lustre of the Mighty It 's Incompatible with the Oath de fideli which reguards Equally all the Leidges without Exception of the Receivers Kin Freind or Allay It 's against the common Sense of Mankind painting Astraea or Justice with a Ballance perfectly equal without those Senses which might discover Names And thereby Inveigle in a Byass It does not answer that Confidence which Prince and Subjects may and ought to expect in Judges The Prince being no more concerned in their Friends than other Leidges And which of the Subjects would not stand in Horrour and A-gast if the Judges Friends whether Parties or Pleaders might be lawfully preferred in all such Cases as he shall imagine to be dubious Yet still it may be said that there remains a Legal Felicity in standing Friendly with Judges Since thereby 1mo They having a good Opinion by Knowledge of the Parties Character may Watch the more narrowly that a prevailing Impression or Influence do not over-run a Cause Just in it self Yea 2do In order to search out that Justice which he knew not being overlooked by Lawyers I do not see why a Judge may not borrow from his own private time for supplying ea quae desunt Advocatis in point of Law or even such Facts as arise from those which are Represented in the Process Thus You see the utmost that I tho' claiming a great share in your Friendship do pretend to if my Cause ever come before you Diligence ought to be versant about two main Objects Namely It 's to be observant of the Judge himself and of the Business of Judgement As to the first Tho' a Judge be possest of the forgoing good Qualities yet he needs to have a continual Watch over his Affections and Demeanaor least he be surprised by sudden Emergents that may derogat from the Respect due to his Character or at least bring a stain on Religion and Diffidence in his Justice when his Conduct approaches to or has the appearance of Evil tho' it fall out meerly thro' Indolence or Inadvertance without any formed Project of wresting Justice Thus When one hath a Plea to mannage with a Person of Eminency in Church or State or of singular Parts a Man of a considerable Party or one that is near in Blood-Relation or Confidence or of the same Fraternity with the Judge some are apt officiously to Pity and simpathise with the Party supposed to ly under these disadvantages Unless the Judge disabuse them by discovering a more than ordinary tenderness to his side When a Man is obnoxious to the Judges displeasure either because of his having ill
Principles or Practices Private or Publick without doors or upon account of by-quarrels He 's presently in a Terror that this will Sway Judgement against him and others are too apt to go in with this Foolish Notion Unless it be Confuted by the Judge's distinguishing the Person from the Cause and one Case from another Yea tho' a Regular Passion be justly Excited in a Judge as when Parties are Litigious drive off their Causes to the End of a Session Lawyers are weak of suspected Character or Ramble it no ways alters the Rule of Judgement in the principal Cause but only Subjects the Person to Legal Chastisements of Expences Fine or Reprimand Nothing gives greater occasion to the Scandalous Trade of Counting Noses before hand upon the presumption of a Judge's having espoused a side then the voteing of a Cause in Bulk upon the whole Matter As if the particular Decisive Points thereof could not abide the test And a Judges going through to vote in every Point tho' perhaps not tenible by it self of a Cause thought by him to be just in the main is equally inexcusable For evil is not to be done that Good may come of it A Judges useng weak or Impertinent Arguments even for a Good Cause gives an Impression to the Audience that he is too earnest that it should carry without Respect to the Justice or Merits of it As the Passions of Anger or Pleasure betrayed by Words or even Gestures give Impressions that Affection predomines over Reason in that Matter If one speak much where there is no necessity in respect that the general Bent goes Right Beholders will conclude that it 's a Vanity to be esteemed Valuable or to inhaunce Imployment on his Dependants Besides that it 's a Robbing the Leidges of that time to which they are Intituled for dispatching their Causes Yea even an Affectation of Gratifying one or Mortifying another tho' the Cause will bear the Decision is acting from a wrong Principle in an Irregular manner and to a sinistrous End Either of which doth vitiat a thing tho' good upon the Matter A Christian must abstain not only from Evil but likeways from the very Appearance of it or approaches to it And therefore when ever the Judge Discovers by the Appearance of the Parties or Pleaders or Cause that the perverse Notion of a Byass may be surmised He ought with a Jealous Eye to be upon Guard and take a peculiar Care for making appear to the World that he decides from a Principle of Justice and is not acted by any base End of Gratification c. But nothing is more unlike to this Spirit and Conduct if any should lead about industriously those B t s called P t s as ware exposed to the People or make a Semblance of ordering Processes so as to Enhaunce the Perquisites of Servants Obstinacy likeways in an Intenible Point does mostly presuppose such Springs tho' often Invisible and Tirrannical Grimaces make a shew of Will frequently when Power is deficient at least we who are Country-men and our Agents make this Interpretation of such Appearances Wherein it is not fit to be more explicite There are many other Duties tho' some-what of different nature Incumbent on a Judge the Omission whereof doth mightily stain his Character Thus The useing Scripture-Phrases meerly to make a Chime or Jest is the worst of Sacriledge And even Coarse Expressions tho quaint enough in private Conversation Expose the Gravity of a Judge's Character to the scorn of the Mobb Solomon sought out fitt Words A Court ought to beware of Covering by a Decision betwixt two Parties any Transaction in prejudice of a third Or laying a Precedent as a train for another succeeding Case Which is in some degree like the sentence against NABOTH and a prostituting Judgment to a Cloak of Intrigue An endeavour to spoyl a just Interloquitor by an ackward state of the Case or stretching the words so high tho needlesly as it cannot stand and finally all Captious Cunning against the true Import of the thing or the meaning of the Majority may be Ranked under the same head Let every one be persuaded in his own mind for what 's not of Faith doubting is Sin And therefore no reguard to the party or a fellow Judges opinion must make one to stiffle his own deliberate Sentiment and Reasons for it Since that would be to hold the Truth in unrighteousness and he who doth not Endeavour to hinder wrong when he ought and probably may do it is an Interpretative actor in it No Judge ought to make use of his Authority but at most by modest and Reasoning Offices to Induce a Transaction whatever be his Inclination or interest therein Least like the Sons of Eli he make Justice to be abhored upon the account of what is even Ceded to by that Concussion What is premised doth agree pretty Exactly with the Scripture and Law-Character of a Judge A Man of Truth fearing GOD able and ready to Judge the People at all Seasons neither respecting the Person of the Poor nor Honouring the Person of the Mighty He Searcheth out the Cause which he knows not and to that end stayes Judgment tho it seem Just at the time till the other party come and Search it out Hee 's never Ruffled with Passion whatever Occurr knowing that GOD guides the meek in Judgement and the Wrath of Man works not the Righteousness of GOD. If the Case be too hard at present he waits till this also be revealed to him But Acts nothing through heast for A furious Man aboundeth in Transgression Tho there be a Reall Yea unnacountable Escape in a fellow-Judge yet they are to Honour one another before the People And even as to private Persons whose Names fall to be mentioned in a Cause the Judge is not to receive an evil Report since Veritas convitii non Excusat in-Juriantem except in so far as it Influenceth the Cause being a direct Ingredient in the Decision thereof He will likewise commend himself to the Consciences of others Especially those that are without He 'll Covet Respect rather from Love than fear This last being the affection for which the Devil desires Sacrifice from the Pagans Redeeming of others time from his own Idle words and speaking the Truth in his Heart must Superceed Vain Discourses and Exclude Arguments which a Man himself doth not beleive As the wresting anothers words is Equal to that Contention and Foolish Babling which is forbidden in Religion But the most dangerous Rock to an Honest-Man is a pretence of Equity or Private knowledge in Collision with Law or Publick Knowledge by the Records of Proces c. As to which The Ordinary Distinctions will Easily dissentangle him with sufficient safety For As to Law Legal Equity called quitas Scripta is a Law And the Law it self hath bounded it to Forms Penalties ceasing of the adequate Reason of a Statute or Custome c. Which therefore the Pretorian or