or religion is yet a brother for common nature and humane condition and must haue right done him as being a brother Your Brethren The name brother is a name of speciall relation and notes out a speciall vicinitie of one vnto another and some degree of equalitie one with another The persons whose causes are to be heard and iudged are brethren to the Iudge not indeed in function or equalitie of condition For herein are Iudges and Magistrates exalted aboue them Rom. 13.1 and for this cause they owe reuerence and respect to the Iudges As for Anabaptisticall conceits Confutat which denie lawfull Magistracie and would bring in vnseemely paritie and confused anarchie they are to be vtterly renounced and farre abandoned out of the hearts of all true Christians and that auncient law is to be embraced which calleth it sacriledge not to reuerence and obey the Magistrate and those who do contemne the Magistrate doe contemne euen God himselfe who is the ordeiner and mainteiner of magistracie as the Lord himselfe saith vnto Samuel 1 Sam. 8.7 Yet is the Iudge to account them his brethren Brethren I say in common nature and humanitie brethren it may be in grace and Christianitie brethren both in humane condition and christian profession Which consideration ought to stir vp Iudges and Magistrates vnto alacritie and cheerefulnesse in execution of their function Doctr. seeing all their imployments trauels therein tend to the good and profit of their brethren Now what studie is too vncessant what trauaile too toylesom what labour too great what time too long what tolerancie too tedious in procuring the weale and welfare of their brethren Especially seeing they are set apart to this honorable imployment by ordination and injunction of God and the King who haue highly aduanced them aboue their brethren to be Iudges and deciders of their persons and causes Cypr. Quo sublimior gloria est eo maior cura est The higher is their glory the greater should be their care Wherefore I beseech you from the Lord most reuerend Iudges heare the causes and iudge righteously betweene your brethren for they are your brethren But if one only or some few were brethren to the Iudge and not the rest Nemo fere est qui sit bonus index in suis rebus Arist polit lib. 3. InsituÌ„ est mortalibus cunctis vt se sua ament sint benigni in suis causis Senec. Lege decernimê° nemineÌ„ sibi essi indicem aut ius dicere debere Imper. Cod. lib. 2. tit 5. Qui iurisdictioni praeest neque sibi ius dicere dâ—bet neque vxori vel liberis vel caeteris quos secum habet then were he not a fit and a competent Iudge for then were the case in some sort his owne and few are fit Iudges in their owne causes For its inbred in all mortall men to loue themselues and their owne things and to be kind and fauourable in their owne causes And therefore the auncient lawes of Emperors forbade that men should be Iudges to giue sentence for themselues And it is an assertion of that great Lawyer Vlpian that no man ought to be Iudge for himselfe or his wife or children or the rest that are neere vnto him But now the parties are all brethren among themselues aswell as to the Iudge and that in nature nation and profession of religion as the Iewes were and as we are And why should men contend seeing they are brethren why should men defraud oppresse rob spoyle maime or murther their brethren It is a very great both sin and shame that men of the same Nation and language who liue vnder the same King and lawes who enjoy the same liberties and priuiledges who are linked together in neighbourhood and acquaintance yea who partake in the same communitie of grace and communion of glory should not liue in loue together and keepe the vnitie of the spirit in the bond of peace Ephef 4 3. but defraud oppresse and injure one another And if through their owne corruption and Satans malice they fall at variance discord and controuersie then surely such as are designed and appointed by God and the King to performe and execute the most honorable office and function of Iudges and Magistrates ought to vse their best endeauour to compound controuersies to right wrongs to punish crimes and by all good meanes to procure both publike and priuate peace that all men may liue safely quietly and louingly together because they are brethren Lastly suppose any be a stranger for particular nation or profession of religion yet is he still a brother in common nature and humane condition and therefore must haue iustice done to him as being a brother both vnto the Iudge and vnto his neighbour Heare and iudge righteously between a man the stranger that is with him All men were created one in nature reasonable creatures all were instamped with the image of God all retaine their simple nature though all haue not recouered Gods image but remaine corrupted and all must haue iustice for it s founded in nature Yea and for a Christian Iudge not to doe iustice to an Ethnick or pagan contending with a Christian were to abuse his function to blemish his religion to harden the Pagan in his infidelitie and sin And not to right a Christian contending with a Pagan were besides the abuse of his function to neglect his dutie to one deare to God Fit it is that he should receiue equitie and iustice at the hand of the Iudge who hath found grace and mercy at the hand of God Among the Iewes there was one Law for all for the stranger and for one of their countrey if either sinned either must be punished Leuit. 24. v. 16 22. The summe of all is this All men are brethren to the Iudge himselfe therefore he must in loue and dutie labour to releeue them all All are brethren amongst themselues therefore he must haue equall respect for righting of them all Wherefore as Moses from God said to these Iudges so I from the same God say vnto you all most reuerend Iudges and all ministers of iustice Heare and iudge righteously betweene your brethren and betweene euery man and his brother and the stranger that is with him And so much of the persons III. Point Admonitions or Cautions Now I proceede to the third particular obserued in this charge namely The admonitions or cautions giuen to the Iudges against pestilent impediments which are frequent enemies to equitie and iustice which are in number two 1. Acceptation of persons for sinister respects 2. Feare of mens greatnes who will be offended at iustice The former admonition or caution is against that principall impediment of iustice The first impediment of iustice acceptation of persons which is set downe 1. Negatiuely so that the vice is forbidden Yee shall not respect persons in iudgment 2. Affirmatiuely so that the vertue is
heare it so readie of resolution that they know which way their verdict shall goe assoone as they know the partie whom they would pleasure or please to bee the plaintife or the defendant before the cause bee opened or euidence produced But as the Law doth presume you to bee Gentlemen of choyce for wisedome and integritie and yeomen of good note for truth and honestie experienced in Law-courses and cases to bee tryed so be diligent in sifting and examming all proofes and euidences readie to conceiue and acknowledge apparant equitie and conscionable in bringing in an approued verdict not partiall nor vnequall in hope of reward or for feare of daunger for fauour to your friends or enuy to your aduersaries but such as may be allowed of God and men to your credite and comfort and the publique good Lastly you my brethren the bodie of the Countrey 6. To the body of the Countrey who seeke in these places of iudgement the face the Iudge to haue your causes tryed in matters of controuersie or else are brought hither to be iudged in matters of crime Follow peace with all men and holinesse without which no man shall see the Lord. Whatsoeuer you would that men should do vnto you euen so doe yee to them For matter of crime 1. Pet. 2.17 Psal 34.13 1. Pet. 3.11 take those exhortations Feare God honour the King Eschew euill and doe good Practise pietie toward God equitie toward men Liue holily as good Christians in a Christian Church liue blamelessely as good subiects in a Christian Common-wealth Auoid those capitall crimes and shamefull courses which bring men to censure before these iudgement seats And to speake particularly Rom. 13.3 If thou wilt not bee afraid of the power of the magistrate doe that which is good and thou shalt haue prayse of the same whosoeuer thou art But if thou doe euill then be afraid for he beareth not the sword in vaine for hee is the minister of God a reuenger to execute wrath vpon him which doth euill Art thou then a traytor to the King or Common-wealth a wilfull murtherer or poysoner of thy brother Then the sword of iustice must be sheathed in thy bloud that euill may be taken away that the land be not guilty of thy foule offence that others may heare and feare that sinne may bee punished in thee and preuented in other that heare or see thee If thou receiue censure for some smaller offence learne by this thy censure to amend thy life lest a worse thing hereafter befall thee for thy iterating of thy sinne will increase thy punishment In case of controuersie I beseech you all to obserue these rules seeke peace and follow after it follow peace with all men Defraud not one another Publicè interest vt lites iniustae atque inanes coerceantur ne Magistratus querelis atque causis nihil◠occupetur neue ciues temerè iuter se rixentur pacemque turbent L. 21. ff si certum petatur And if controuersies arise vse all good meanes for the speedie compounding of them that the Iudgement-seat be not troubled with euery trifling brawle and needlesse suite And whereas none are more readie than you to cry out of Lawyers Atturneys and such men as vnconscionable in peruerting of iustice as vnreasonable extortioners and extorters of fees as defrauders and vndoers of the Common-weale scraping to themselues the fat of the land c. Take heed that the fault and cause of these euils doe not first issue and spring out from your selues from your peeuish and wrongfull and reuengefull dispositions Whosoeuer thou art therefore that complaynest of others take heed lest the fault be found in thy selfe Prosecute no bad cause of hatred to hurt another but onely good causes and that of necessitie to relieue thy selfe Packe no Iuries Suborne no witnesses Bribe no Iudges Lawyers nor ministers of justice vse no calumnies forgeries or vnjust protractions or vn-warrantable practises for the effecting of thy purposes in vnlawfull proceedings for if it fall out thou be justly cast in thy bad cause then shalt thou beare an heauie burden of iust punishment for thy wilfull prosecution of thy vnrighteous suit Or if by force or fraud thou preuayle against equitie then which is worse thou burdenest thy selfe with the fearefull guilt of double iniquitie And though thou get the day in the place of iudgement on earth yet shalt thou loose the day at Gods Iudgement-seat in Heauen Application to all ioyntly And now at length to grow to a finall conclusion of all these things being so as Iehosaphat that most worthy seruant of God did charge those Iudges whom he had made so do I a poore Minister of Christ in the name of the Lord charge you all that haue the least finger in matters of iustice as Reuerend Iudges worthy Iustices Counsellors Iurors witnesses and the rest Take heed what yee doe ◠Chron. 19.6.7 for yee iudge not for man but for the Lord who is with you in the iudgement Wherefore now let the feare of the Lord be vpon you take heed and do it for there is no iniquitie with the Lord our God nor respect of persons nor taking of gifts And as Moses to these Iudges of Israel in this place Heare the causes between your brethren and iudge righteously betweene euery man and his brother and the stranger that is with him Yee shall not respect persons in iudgement but you shall heare the small aswell as the great you shall not be afraid of the face of man V. and last poynt Of reseruation of iudgement for the iudgment is Gods Now I should proceed to the case of reseruation And if the cause be too hard for you bring it vnto me and I will heare of it But of this I say no more but this That whereas these causes and matters of iudgment are farre too great for any of vs who of our selues cannot thinke a good thought Therefore let vs appeale to God and to his Throne of grace for his assistance and blessing in these weighty affaires of Iudgment O blessed Lord God Father of mercies and God of all grace graunt we humbly intreat thee to our Iudges and Magistrates heauenly wisdom christian courage godly feare vncorrupted integritie in hearing and iudging to all the ministers and instruments of iustice and equitie vprightnes and good conscience in prosecuting and promoting of actions and causes to all the people louing affections and peaceable dispositions one toward another thankfulnes vnto thee for this thine ordinance of iudgement and dutiful obedience to the rules of pietie iustice and equitie that so vice may be punished vertue encouraged iniustice may be remoued equitie maintained The common-wealth may be prospered the Church enlarged our poore soules may be saued and thy great name glorified in the manifestation of thine aboundant mercie in our felicitie and that for the merits of thine onely Sonne and our onely Sauiour Iesus Christ the righteous Iudge of quicke and dead to whom with Thee O Father and with thy Holie-Spirit three glorious Persons but one only true and euer-liuing God be ascribed of vs and of thy whole Church all Honour Glorie Praise Power Maiestie Dominion and Thankes-giuing from this time forth for euer-more Amen All glorie be to GOD. FINIS
this regular and circular revolution all motion begins in God and ends in God for mans felicitie and Gods glory infinitely and eternally Great you see is your honour as great is your charge A double charge from God Deut. 17. v. 18 19 20. from King God chargeth the King God and King whose Ministers and sword-bearers you are haue charged you Rom. 13.4 Your office then of Magistracie as ours of Ministery is not so much nomen honoris as oneris Aug de Ciuit. Dei l. 19. c. 19. Your desire must therefore be not so much praeesse as prodesse to beare rule as to profit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Luc 21.25 to be benefactors for the good of men that is your end who are publique Patrons oracles of your Country Hauens and Refuges to poore distressed ones Your symbole must be that of Alphonsus Alphons Neapolitan Rex The Pelican with her own bill picking and drawing bloud out of her owne breast with this inscription Pro lege pro grege Magistraâ—us virio ostendit Arist ex Biante Herein will Magistracie shew your manhood Lastly where as these matters of iudgment are disposed and dispensed not by your selues alone but by many other inferior organs and instruments who need due inspection and daily information 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hom. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as interpreters of Law instruct them as Moderators of Iustice direct them as charged your selues of God and King to doe iustice lay great charge on them yea as armed with power coactiue by vertue thereof as far as shall be lawfull and needfull as Guardians of equitie vrge them to doe what God and King law and conscience equitie and honestie exact at their hands that this chaste Virgin Iustice be not by them deslowred Hesiod that conscience of crime in vnrighteous dealing may not inwardly Hieron epist. wound their consciences at home nor their name and familie outwardly besmeared with iust reproch and ignominie abroad But that good right be maintained good conscience discharged good name preserued that God may be honoured 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gods people benefited the Common-wealth cherished the Church inlarged our communion with God and society with men may become most comfortable happy and blessed while iudgment and iustice are equally dispensed of all manner persons vnder God and King as from God by God and for God as is more largely declared in this insuing Treatise which being heretofore once vttered by me and now drawne into publique by effectuall perswasion of others I now make bold to present to your Honours and Worships because it concernes you all though for manner not so worthy as I well could wish your learned wisdomes view and approbation Well hoping that in your priuacie and retirednesse from your weighty imployments you will please to peruse it couering what faults and slips you espie therein with your robes of loue and Christian Charitie 1 Pet 4.8 not looking at my want of discharge of my dutie which I ingenuously acknowledge and sue for pardon thereof at the hands of God and you but at the better discharge of your owne whereto this my poore labour as a weake meane would further For so you stand charged of God and the King Take heede therefore what yee doe 2 Chron 19.6 for yee iudge not for man but for the Lord. And the Lord be with you in the iudgment Amen Your Honors and Worships in all dutie to be commanded William Pemberton The Charge of GOD and the KING DEVTER 1.16 17. 16. And I charged your Iudges at that time saying Heare the causes betweene your brethren and iudge righteously betweene euery man and his brother and the stranger that is with him 17. Yee shall not respect persons in iudgment but you shall heare the small aswell as the great you shall not be afraid of the face of man for the iudgment is Gods and the cause that is too hard for you bring it vnto me and I will heare it AL the counsels and works of God the most mighty Creator most wise disposer of all things doe proceede from the good pleasure of Gods will Ephes 1 12. which is the cause of all causes and tend to the glory of his name Voluntas Dei omnium quae sunt ipsa est causa Aug deâ—en contra Manich l. 1. c. 2. Prou 16.14 which is the end of all ends And that in the manifestation of his mercy in the gracious saluation and happines of some and of his iustice in the deserued condemnation and misery of others And this our naturall and temporary life which we liue on earth is in the counsell and decree of God a praeparation and degree to a better life And in the elect to omit the rest to a life spirituall and supernaturall begun on earth in this time of grace and continued in Heauen in that eternitie of glory This life well led in faith and obedience doth highly aduance vs to felicitie and happines This life ill led in infidelitie and sin doth deeply depresse vs into miserie and wretchednesse The entrance of Lawes Now that man on earth might liue well God did giue him a Rule to liue by This Rule is the Law of God the rule of piety the square of equitie first instamped in mans nature in his created innocencie AntequaÌ„ scripta fuit in hominum legthus in mentibus vigebat Ambrâ—â— lib. 4. de Abra hamo Patriare cap. 4. Eph 4.24 In libro aduersus Iudaeâ—s For what was that Image of God in man consisting of righteousnesse holinesse and trueth but Lex primordialis a primordiall Law as Tertullian speakes exactly requiring and absolutely inabling the performance of duties of piety to God and of equitie to man both in habite and act and that in sinceritie and perfection of them both And what was the Morall Law proclaimed on Mount Sinah Exod. 20. after that man had defaced Gods image by transgressing his command but this primordiall Law renewed and repeated as an absolute and eternall rule and square of piety to God Exod. 31.18 and equitie to man which God with his owne finger did ingraue in two Tables of stone and gaue vnto Moses for the vse of his Church This Morall Law requires obseruation according to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or exact perfection thereof but it giues no abilitie to performe obedience It sheweth what man now ought to doe what once he could haue done but not what he now can do nor what it will inable him to do but accuseth and accurseth euery man as guilty of sinne for the least transgression of it Whereupon God in mercy to releeue mans misery to this law of works giuen in Sinah Exod. 20. did adde another Law as the Apostle stiles it the Law of Faith Rom. 3.27 Isâ—â— 2.3 Mich. 4.2 giuen in Sion which promiseth life and blessednesse to all that beleeue in
Christ The law of workes called the morall law is grounded on nature and may be called Lex timoris the law of feare because through our impotencie it doth terrifie and affright vs. The law of Faith which is the Gospell is grounded on Gods grace and may be called Lex amoris the law of Loue for God so loued vs Ioâ— 3.16 that he gaue his Sonne for vs and it effectually worketh the loue of God in vs and reftoreth vs againe to blessednesse with God Man doth againe recouer this blessednes with God while he is driuen from himselfe and his sinnes by the fearefull threats of the law morall and is allured vnto Christ by the sweet promises of the Gospell this law of Faith and is daily renewed by the spirit of grace vnto conformitie to the law of works which still remaineth as a Rule of good life requiring obedience of faith Aug lib. 3. ad Bonifacium c. 4. contra Faustum Manich. in way of thankfulnes till Gods glorious image be againe repaired in vs and that eternitie of glory be conferred vpon vs. In the meane time for the space of this life many disorders and misdemeanors remaine still in the world For the greater part of men will not be reformed the better part are but in part sanctified These sin of weaknesse those of wilfulnesse both haue neede of all good helps for reformation to good or restraint from euill Wherevpon God hath in wisdom ordeined Humane Lawes and hath appointed Kings Custedes vindâ—ces vtriusque Tabulae Dâ—ut 17. Esa 49.23 Princes and Magistrates to be keepers of both the Tables of the Morall Law Nursing-fathers and Nursing-mothers vnto his militant Church and constant Defenders of the Christian Faith And all their good Lawes both Ecclesiasticall and Ciuill are backs and props vnto Gods holy Law and in their due and faithfull execution effectuall meanes to procure the obseruation thereof And in a word of all good Lawes whether written or vnwritten there is a twofold end or scope as namely they do respect and ayme at either piety and godlinesse from man to God that a blessed communion may be maintained betweene man and God or equitie iustice from man to man that a comfortable communion and sweet societie may be preserued betweene man and man And surely these humane lawes of Kings Rulers being wisely enacted and duely executed by Iudges and Magistrates competent and faithfull in the execution of their function are soueraigne helps for the cure of vice by inflicting punishment on malefactors and to allure to virtue by conferring rewards and defending of well-doers and to right euery man in his righteous cause that euery man may enioy his own That so we may lead a quiet and a peaceable life 1 Tim. 2.2 in all godlinesse and honestie And to this purpose are we to pray to God for them v. 1. and for this end are they designed to this function by God Rom. 13.1 4 and for the better discharge of their office and dutie they receiue a charge from God and the King And so to descend to our present purpose and to apply my self wholy to time and occasion these words of this Scripture doe commend to our view a speciall Charge giuen by GOD and the KING to Iudges and Magistrates for execution of iustice This Charge I say first is giuen of God for Moses was an holy Prophet of God and spake nothing but from the mouth of God or by inspiration of the Spirit of God and therefore this is the Charge of God Secondly Act 7.35 Bertram de politia Iudaica cap. 5 â—â—utr I call it the Charge of the King for Moses was Prince and chiefe Ruler of Gods people his authoritie was Regall his power Soueraigne not differing in nature but in name from that of a King In this Charge we may consider 1. The giuing of the Charge And I charged your Iudges at that time saying 2. The Charge giuen Heare the causes betweene your brethren c. In the giuing of the Charge we may obserue 1. The person that gaue it Moses I charged 2. The persons to whom it was giuen the Iudges your Iudges 3. The thing giuen for nature a Charge I charged 4. The time when it was giuen at that time namely of their election and designation to their function And I charged your Iudges at that time saying In the Charge giuen we may obserue 1. Instructions or iniunctions giuen to the Iudges which are two First to heare causes deliberately Heare the causes Secondly to iudge righteously and iudge righteously 2. The parties betweene whom they must heare and iudge propounded first in relation to the Iudges your brethren secondly in relation among themselues betweene euery man and his brother that is of the same Nation of the same Religion neither only so but as the meaning is more plainly opened betweene euery man and the stranger that is with him A stranger for kindred Nation or Religion is yet a brother for common nature and humane condition and therfore must haue right done to him as being a brother 3. Admonitions or cautions against pestilent impediments which are frequent enemies to equitie and iustice and they are two First Acceptation of persons on sinister respects Yee shall not respect persons in iudgment but you shall heare the small aswell as the great Secondly Feare of mens greatnesse who will be offended at iustice You shall not be afraid of the face of man 4. Reasons to inforce the performance of the iniunctions and obseruation of the cautions 1. for the iudgement is Gods 2. The charge is from God as in the first words I charged As if he should haue said God hath charged you to do right God will maintaine you in doing right therefore heare deliberately iudge righteously accept no mans person feare no mans face but do right to the small as well as the great to the stranger as well as the brother 5. A case of reseruation of iudgement in causes too difficult by consultation or appeale to the chiefest Iudge And the cause that is too hard for you bring vnto mee and I will heare it And this I take to be the intent and substance of this Charge of God and the King giuen by Moses directly to the Iudges of Israel but in them to all other Iudges and Magistrates yea all other officers all ministers and instruments of iustice for the hand of Iustice hath many fingers as Counsellors Pleaders Aduocates Sollicitors Shiriffes Iurors witnesses and the rest And it doth meerely concerne both God and King Church and Common-weale and euery state and person in them both and affords fit matter for this present occasion and profitable direction for all such purposes In speaking whereof that I may say something of euery thing I must be short in all And in all and euery thing I do most humbly craue Gods powerfull direction that I may be able to speake your fauourable attention that
to doe Euill and as Cicero doth accordingly write All iudgement was deuised eyther first for the deciding of controuersies or secondly punishment of malefactors The matters then as our reuerend Iudges also tell vs are Ciuill or Criminall that concerne right betweene man and man or punishment of crimos And therefore to giue to euery one his owne and to redresse iniuries is a principal office of iustice distributiue And to punish malefactors in causes criminall is an office of iustice vindicatiue as necessarie for the good of the common-wealth as the other Now this charge is to be obserued in all kinds of causes whether trespasses or crimes 1. heare 2. iudge righteously 2. The rule of righteous iudgement is the Law for the Law is a silent magistrate the Magistrate a speaking Law Now the Law this rule of iudgement is Humane or Diuine and the order for conformitie of iudgement must bee this Mans Law must bee subordinate to Gods Law the Iudges sentence to mans Law and therewithall to Gods Law Leges cuÌ„ fuerint institâ—tae non licebit indici de ipsissed secunduÌ„ ipsas â—â—dicare Aug. Lawes beeing once well established the Iudge must not iudge of them but by them as an Interpreter or them and the Interpreter must haue the same meaning with the Law maker otherwise wresting wordes strictly contrary to the meaning summum ius becomes summa iniuria strickt law flat iniustice These things being premised the directions or iniunctions giuen to the Iudges are two first to heare and seconde to iudge Within which three degrees of iudiciall processe which is the lawfull handling of the action are included or comprized first Hearing secondly discussing thirdly sentencing of causes vpon which as a consequent followes execution or thus first hearing of the cause secondly giuing of the sentence thirdly execution of the sentence pronounced which some take to be meant by that clause Yee shall not feare the face of man But vnder correction wee may take it thus These duties as three degrees in iudiciall processe are giuen in charge by Moses to the Iudges first to heare causes wisely and deliberately secondly to sentence the causes heard iustly and equally thirdly to execute iudgement according to sentence giuen faithfully and exactly or more briefely thus Three degrees in iudiciall processe The iudiciall processe hath three degrees to heare iustice speake iustice doe iustice To which are required three things in a Iudge an eye of knowledge a tongue of truth an hand of power And this is also the order to be obserued therein 1 There must first be hearing before the sentence be giuen else how can the sentence be iust 2 Sentence must be giuen before execution be done else how can the execution be warrantable 3. Execution must follow vppon sentence giuen else to what is such processe profitable But when causes are deliberately and discerningly heard so as the truth is seene as in the cleare glasse of wisedome when Sentence is iustly and equally giuen as the cause beares weight in the ballance of equitie And when sentence is throughly and exactly executed as with a sharpe sword of sufficient power then are these iniunctions and directions of Moses faithfully obserued and sufficiently performed The first degree To heare iustice The first degree in iudiciall processe is the hearing of iustice or of the cause to be iudged and this must needes be first else no iust sentence can be giuen Right iudgement doth presuppose sure knowledge You know the saying Si iudicas cognosce If yee will iudge Senec. Trag. take notice of the cause for the cause must be knowen before it can bee iudged and first heard that it may be knowne Qui statuit aliquid parte inaudita altera aequum licet statuerit haud aequus erit Senec. Plaut Gen. 11.5 Non humano modo hoc intelligamus sed vt per hoc erudiamur nun qâ—aÌ„ temerè fratres condemnandos neque auditu solo iudicanduÌ„ nisi pluribus argumeÌ„tis priùs certi reddamur Omnia enim ideo à Deo fiunt ob hoc tantâ ad erudiendum humanuÌ„ genus vtitur sermonis attemperaâ—ione Gen. 18. v. 20. v. 2. And he that shall giue sentence eyther partie not first herd though his sentence proue equall yet is hee not an equall Iudge The Lord himselfe obserues this order of processe where it s sayd That God went downe to see the Citie and Tower which the Nimrodians had builded On which place Chrysostome doth well obserue that Gods spirit doth declare by an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or humane kind of speech that men ought not to condemne their brethren before certain knowledge and notice of their cause And before the finall sentence of destruction bee passed on Sodome the Lord first takes notice of their estate saying Because the crye of Sodome and Gomorrha is great and because their sin is very grieuous I will goe downe now and see whether they haue done altogether according to the crye of it which is come to mee and if not I will know The Lord who knew all things of himselfe will also take notice as by iudiciall processe thereby as in a Table to commend to our view as in a liuely picture or perfect patterne the order to bee obserued in iudiciall proceedings for humane profit and constant imitation And thus God first heard the Israelites groane vnder the burdens of Aegypt Exod. 2. v. 22.23 24. and then and not before he sent deliuerance To teach all Iudges Doctr. who beare Gods-Image and title in their office to follow him as their patterne in the execution thereof not precipitating sentence before due consideration well-weighing and discerning the equitie of the cause for if God did so who is the knower of all things who cannot be deceyued misled or corrupted much more ought men giue diligence hereunto who are daily subiect to be mistaken through ouer-sight to bee misled by affection transported through passion precipitated with preiudice and deceyued with colourable pretences and glosses But here I shall not need to prescribe to our reuerend godly and well-experienced Moderators of Iustice but onely poynt at such things as they know and which on occasion I haue sometimes obserued to be religiously practised in their iudiciall processe and this I shall the rather be bould to speake that inferiours of lesse both knowledge experience and conscience may take notice of such vertues for due approbation of them in their betters and respectiue imitation of them in themselues Hearing is eyther 1. simple hearing 2. Discussing Now this hearing which tends to the notice of the cause is eyther a simple hearing of both the parties or else an accurate discussing and examining of their euidences and proofes The first is the equall hearing of all persons both actor reus 1. Hearing plaintife and defendant Small as well as great Ier 26. v. 2.3.4.12.16 This was obserued in the arraignement of
Ieremiah the Prophet whom the Priests and Prophets apprehended and conuented before the Iudges and accused capitally as worthie of death for denouncing Gods iudgements against Iuda at Gods command Ieremiahs defence was accordingly heard he acquitted by the Princes and Iudges Ioh. 18.29 Pilate thus farre demeaned himselfe well in the case of our Sauiour while hee would not giue credite to the high-Priests accusation but would heare the poore defendant as well as these plaintifes though men of chief place and authoritie amongst them Nicodemus did reason like a worthie Iudge and prudent Magistrate Doth our Law condemne any man before it heare him Ioh. 7.51 and know what hee doth But the rest his vniust and vnequall Brethren did take him vppe very sharpely for it and resolued to condemne Christ absent and vnheard in his iust defence whereas the most grosse and most vile malefactor ought first to be conuicted by two witnesses at the least Deutr. 19.15 before sentence of iudgement be passed against him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Demosth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ante meridiâ—m causam conscito cum perorarint ambo praesentes 12. Tab. Hee that answereth a matter before it be heard it is folly and shame vnto him saith the Wiseman Prou. 18.13 It was the equitie of the Iudges by the law of the Athenians Ne visum nec auditum hominem damnare nefas vltiâ—um censetur Ammon Marcel Nulla maior iniuria quam indictâ causâ aliquem iudicare to hear both parties alike And an Iniunction set downe in the 12. Tables at auncient Rome Before mid-day take notice of the cause when both the persons in presence haue pleaded And it was alwaies accounted a most haynous offence Lucianus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Plato in Demodico ex Poeta to sentence or condemne men their causes not first heard And prudent prouision is made by all good lawes that iudgement bee not giuen before the cause bee heard 2. Discussing Iudicantem oportet cuncta rimari et ordinem rerum pleÌ„na inquisitione decurrere quousque ad veritatem perueniatur E lentherius As there must be a simple equall hearing of both the parties so must there be an accurate examination and exquisite discussing of the cause This is the law of God Deutr. 13. ver 12.13 That if the Iudge haue heard of an abhomination done as the seducing of Gods people he must inquire make search ask and that diligently great is the emphasis and weight of the words and if it bee found certainely true then must hee punish Deutr. 17.4.5.6 Ioshuah 7.22 1. Sam. 14.43 Ionah 1.8.10 Ioshuah would not condemne Achan vpon Gods Lot and his owne confession vntill hee found by search his confession to be true Not Saul Ionathan nor the Mariners Ionah taken by lot vntill examination and hearing of their answer and defence Ioh. 7. and Nicodemus doth take it an expresse poynt in Gods Law That a man ought not to be coÌ„demned vpon bare hearing no not till it bee knowne what hee hath done Thus did righteous Iob in his legall processe The cause that I knew not I searched out Iob. 29.16 And thus farre did Pilate well in the cause of Christ Act. 25.27 Act. 24 22.27 Ioh. 18.30 And Festus the President of Caesaria and Foelix his Predecessor in the case of St. Paul And Salomons wisedome was experienced and admired in that first case of the two harlots who contended for the child 1 King 3. when after strict examination through a wise inuention and semblance of diuiding the quicke childe he did extort a confession from the true mother by strange commotion of her naturall affection And God himselfe doth often inculcate this as the dutie of the Iudge The Iudges shall make diligent inquisition Deutr. 29.18 and for this cause they had neede both to haue and vse those excellent parts of wisdome and vnderstanding which God requireth of them and bestoweth vpon them Deutr. 1.13 How needfull and helpfull in iudiciall processe is the exquisite and accurate discussing of the cause it may appeare by this that the more exactly the cause is discerned and knowne the more iust sentence may thereof be giuen as Great Demosthenes did well obserue Wherefore there are required as you know right well in a Iudge or Magistrate in hearing of causes that they may be equally heard and exquisitely discussed Things to be obserued in hearing of causes sundry things to be obserued and practised Serious attention to the matter in hand that no materiall proofe or important reason tending to euince the equitie of the cause through heedles neglect be omitted or let passe without obseruation and notice taken thereof For as one well learned and experienced saith well In eo sape quod aures praetervectum est status causae versatur Joan. Bodin de repub In that oft-times which passeth by the eare doth the state of the cause consist Wise moderation and ordering of the processe that impertinent digressions odious invectiues and calumnious imputations among pleaders or witnesses vsed to prejudice the contrary person or cause be seasonably interrupted and sharply rejected and that neither party be hindred by his aduersaries rash interruptions and caused to omit or conceale what may make for his purpose and to cleare the equitie of his iust and equall cause It is the part of the Pleader or Aduocate Arist lib. Rhet. onely to declare whether the thing be so or not so done or not done whether iust or vniust the Iudge himselfe must know And here I desire the learned and experienced Moderators of iustice to consider whether for the most part the wrong-doer be not the more peeuish and clamorous and best armed with Pleaders and Aduocates against the innocent There must be invincible patience and vnweariable forbearance of the slownesse of speach dulnesse of conceit rudenesse of behauiour and other infirmities and weaknesses of many the meaner and inferior sort whose testimonies for others or defences for themselues in iudiciall processe are of necessitie required Such wants and defects must be passed by with charitable forbearance and compassionate respect All vnquiet affections and inordinate passions of hatred loue enuie an ger rash zeale or the like must be quite put off and wholy laid aside Desire and anger are ill Counsellors worse Iudges Consultores sunt pâ—ssimi cupido ira Salust Amor turbat constia Hieron Loue troubleth counsels Enuie neuer speakes well that is iustly saith our common Prouerbe Yea all inordinate affections blind the eyes and preiudice iudgement and therefore all dealers in iudgement especially the chiefe swayers must speake 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 without affections It was the oath of the Heathen Iudges as the Orator doth report Audiam accusatoreÌ„ râ—um fine affectibus personarum râ—spectione Demosth I will heare the plaintiffe and defendant with an equall mind without affections and respect of persons Not
commanded You shall heare the small as well as the great Acceptation of persons 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vnjust and vnlawfull is such by and outward respect had of the person as doth nothing make for the equitie of the cause and yet drawes the Iudge Iuror or witnesse or other ministers of iustice to doe vnequally in case of iudgement by reason of his vnequall respect to the person as when mens vnjust and vnequall causes are fauoured and furthered for amitie enmitie hatred or loue for bribes wealth kindred authoritie or the like and where causes are ouerthrowne and persons condemned for want of friends money or such outward respects though their causes be iust or persons innocent or not deseruing such seueritie of censure This accepting of persons is iudiciorum pest is the plague of iudgements and flatly forbidden in Gods sacred word Leuit 19.15 Yee shall not doe vnrighteously in iudgment thou shalt not respect the person of the poore nor honour the person of the mighty but in righteousnesse shalt thou iudge thy neighbour Partiall pitie is not to be shewed to the poore and base because he is poore and base and partiall fauour is not to be shewed to the rich and honorable because he is rich or honorable but according to the equitie of the cause must be the equitie of the iudgment Prohibitions of the contrary are frequent in Gods word Thou shalt not speake in a cause to decline after many to wrest iudgement Exod. 22.2 3. neither shalt thou countenance a poore man in his vnrighteous cause It is not good that is it is very ill to accept the person of the wicked Pron 18.5 to ouerthrow the righteous in iudgemeÌ„t The like is found Prov. 24.23 24. Prov. 28.21 The Lord doth detest this abhominable sinne Esa 61.8 I the Lord loue iudgment and hate robbery for burnt offering that is though a thing gotten by peruerting iudgement were put to the best vie that can be as to a sacrifice to God yet God doth abhorre it Yea the Lord accurseth to the pit of Hell such as peruert the iudgment of the stranger fatherlesse and widow Deutr. 27. And denounceth a fearefull woe against them who iustifie the wicked for a reward and take away the righteousnesse of the righteous from him And for such sins God sends most fearefull visitations Icrem 5. Amos 6. Whence this abhominable sinne doth spring is better knowne by bad experience then by tongue or pen can bee expressed It commonly sprowts out from the poysoned root of bribery and therefore they both are ordinarily forbidden in one period of speach by one breath of the Lord Deut. 16. v. 18 19 20. Thou shalt not respect persons nor take a gift for a gift doth blinde the eyes of the wise and peruert the words of the righteous and therefore couetousnesse the roote of all euill is the stepmother of iustice 1 Tim. 6.10 as Augustine well speakes It ariseth also from many other grounds as from loue friendship hatred or enuie wrath and rash zeale impatience and such like affections and passions which blind the eye or transport the will so farre that the person affected therwith doth swerue from the rule of equitie and iudgement Let him put off the robe of a Iudge Exuat personant iudicis qui induit amiâ—i who putteth on the cloake of a friend it s Ciceroes prouerbiall sentence They cannot iudge worthily of such as are vnder them Dignè de subditis iudicare ne queunt qui non merita causaruÌ„ sed personâ—rum odium gratiam sequuntur Greg. moral who follow not the merit of the causes but the hatred or loue of the persons Whencesoeuer it ariseth or whatsoeuer is the ground of it sure it is a great and grieuous sin and requires both speedy and exact reformation For the remedying whereof some of former times would haue causes propounded without mention of the parties others had their Iudges couered with a vaile that neither plaintiffe not defendant should come in their sight others did exercise iudgments in the night others did iudge before the Attars of their Gods But to omit those heathen deuices for reformation of these euils and that famous example of Traiane the Emperor of whom it is recorded that he did neuer man wrong in iustice neither at any time had affection or passion in giuing iudgment we who are Christians haue better grounds of restraint namely the feare of God and the direction of his word and the examples of godly and conscionable men Consider two of Moses and Samuel who could in good conscience appeale to the Lord for the clearing of their vprightnesse and vncorrupted integritie and whom I perswade my selfe you reuerend Iudges do religiously imitate and desire to be like vnto Moses Lord I haue not taken one Asse from them saith Moses neither haue I hurt one of them Deutr. 16.15 And thus Samuel pleadeth for his integritie Samuel Behold here I am saith he to the people witnesse against me before the Lord and before his annoynted whose Oxe haue I taken or whose Asse haue I taken or whom haue I defrauded or whom haue I oppressed or of whom haue I receiued any bribe to blind mine eyes therewith and I will restore it you And they sayd thou hast not defrauded vs nor oppressed vs neyther hast thou taken ought of any mans hand Be therefore continue such as you should be and such as I doubt not but you are men fearing God Exod. 18.21 and hating couetousnesse O let the feare of God be in your hearts and these godly examples before your eyes and pray with Dauid for your selues vnto God Psal 26. v. 9.10.11 Lord gather not my soule with sinners nor my life with bloudie men in whose hands is mischiefe and their right hand is full of bribes And keepe that holie resolution of Dauid and thus promise vnto God As for mee I will walke in mine integritie redeeme mee and bee mercifull vnto mee The second impediment of justice The other impediment and enemie of iustice against which these admonitions and cautions are giuen is feare of mens greatnesse who will be offended at iustice yee shall not be afraid of the face of Man Great men are not alwayes good men and great-good-men are not alwayes so good as not to defend or fauor any vnrighteous cause Sometimes they grow partiall in cases of judgement and if Iudges and ministers of justice be fearefull to offend them they shall hardly deale well for good causes of meane men for feare of the persons of great men Pilate hearing Ioh. 19. v. 12. In hominum gratiam iustitiam peruertit ius inflectit Pluris facit imperatoris Romani quam Dei gratiam Facit contra propriae conscientiae testimonium oris sui enunciatum and fearing that he should not bee accounted Caesars friend if hee should let our Sauiour Christ goe was so quelled with