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
Chancry-power may apply But Imaginary Cerebrine Equity that starts up upon sight and Fancies that the Law it self is not Just in a particular Case Turns the Judge who is only an Executor to a Legislator and Sets up indigested notions or Magotes in place of the Solid Rules of Law that have been Established by the wisdom and Experience of Nations In a word it opens a Sluce to the greatest mischeifs of Ignorance Lasieness or Affection that would Reduce our Rights and State to a Chaos As to Fact Nothing is more Inconsistent then one Mans being Judge and Witness in the same Cause which plainly Excludes privat knowledge or unproven Assertions of the parties from being his Rule Besides that he 's only a single Testimony at best and frequently the Subject is not Capable of such a proof even tho there were Wittnesses Concurring Nevertheless it 's Generally thought that tho' positively he cannot Decern on his proper knowledge where there is not sufficient Legal Proof Yet Negatively he may assoilzie when the pretended Legal Evidence ei non faciunt fidem upon his proper certain assurance of the Contrary at the least he may in that Case abstain from Judging As to the second Concerning the Judges Diligence in Expediteing the Business of Judgement It may be Comprised under two Heads Namely 1mo What relates to the Discussion of Processes 2do What reguards Acts of Court or Sederunt for dispatch thereof It 's needless to Expatiat upon the Diligence requisite in Processes either as to keeping particular Legal Dyets or a careful perusal of Papers put into the Boxes Since you will see a bright Example thereof in your Colleagues Who are to the Conviction of all that have opportunity of knowing it under a surprising Fatigue and consider the several Points of Causes more Minutely and Gradually then perhaps any other Judicature in Europe There being few Cases of Intricacy or Import which want a Triple-Concoction at the Fore-Bar Side-Bar and Inner-House in a very short time And this is Equivalent with far less Dela y Trouble and Expence to the several Appeals that are made from Court to Court in other Constitutions This Industrious Study of Processes hath two Incident Advantages Namely One to the Publick For when the Ordinary Possesses the Cause he can Reduce it to nete Points Which not only abridges much Writting and time when it 's determined by himself or Reported but likewise will shortly make the Body of our Law one of the most distinct and determined in Europe by a Tract of Multiplicity and uniformity of Decisions The other good Effect thereof will Redound to the Judge himself So fixing his knowledge of the true State of the Case that thereafter he soon discovers with Ease any Fallacious Representation of it made to himself or the whole Lords and thereby is proof against the various Inventions of parties for prolonging the Plea or making the Judges Affections to Swerve in it The Convictions of Conscience upon afounded knowledge are the surest antidote against the Plague of all manner of Solicitations because this Inextinguishable Light cannot be Evaded by the Delusive Colours whereby the best Laws that ever were made for Impartiality may be incroched on Not Excepting the Excellent Fences which the Noble Bench have Sett Calling in Honour to their Assistance against this pest Notwithstanding of all which Amaseing Accurracy of our Judges Yet there is a great prejudice or Vulgar Error taken up by severals of the less-thinking at home and amongst our Nighbours against that part of the Constitution by which they may and do alter Interloquitors upon a second View of the Case before it be Terminat by an Vltimale Extract But this mistake will Evanish or rather resolve into one of the greatest Glories of that Judicatory when it 's considered 1mo That in the Nature of the thing Man is Fallible And therefore if he either shut his Eyes from a Head-strong Obdiuracy against further Light under competent Regulations or do not change upon Discovery of greater Light which afinite Mind may not have looked too with penetration enough at the first presentment It 's a Criminal Debarring of Truth or a direct Stiffling of Conscience 2do In Reputation nothing can more Demonstrate the Impartiality and self-denyal of the Judge then the giveing up of his own Imaginary Honour which some falsly think to be Interested in a former Vote as an Act of Fealty and Homage to venerable Justice which is a Ray of Divinity when it comes to appear in it's true Lustre But further 3tio In Experience these alterations for the most part Occurr upon Representations of new Fact not formerly Informed Distinctly by the Lawer or in the throng of Bussiness not narrowly noticed by the Judge Neither of which is a ground of the least Reflection upon the best Humane Vnderstanding and Memory in such a Multiplicity of Affairs as are known to flow upon that Court especially toward the End of Sessions For 4to In the Examples of other Nations there is a far greater variation allowed Thus not only does one Court alter upon Appeal what another had determined all which Gradations are Comprised in the Constitution of our Seffion as aforesaid but likewise even the same Supream Court does frequently overrule what was Established before as appears by their Printed Reports and Decisions And there is a Revisio Revisionis at least allowed of the same individual Cause in those Soveraign Tribunals which pretend to be the most Nice and Expeditious There is an Obvious Advertisement which arises naturally from this prodigious Toyl in takeing up at first or Subsequent Review of Causes amongst us and from many other greater Drudgeries incident to Ordinaries on the Bills Witnessess Compts and Rankings c. Namely that the Judge do his duty with Chearfulness without fretting at so great a Labour For he has Sworn this Fealty to his GOD and Prince And therefore must not Grudge in paying that Redendo of Homage and Service There is a Natural and Religious Delight in doing good with all the might whence it Follows That the greater fatigue Especially when it 's Successful will Enhance and Aggrandize the allacrity Besides that such Common Offices being Transmuted to Acts of Religion towards GOD and Man they look forward to proportional Degrees of Glory at the last Recompence of Reward Lastly this Rational Exercise of the Soul is the most Manly and Noble that Exists in Humane Civil Society Not being Subject to the uncertainties of the Philosophers and Physitians nor obnoxious to the Variety of Humors which disturb the Lawyer and Statsman c. And therefore the most Ingenious and Sensible Man must be Enamoured with it In reflecting upon Acts of Sederunt I remember to have heard that by your Institution you have sufficient Powers for making us Easy without troubling the Legislative Who may mistake and thereby marr so nice a Constitution as to such Forms which by their mutual Dependance are like the Wheels of a Clok one whereof being altered tho' in Appearance to the better makes the whole Machine to reel I doubt not but so eminent a Set of Judges as you 're to enter too will exerce their Legal Faculty Especially with Reguard to what does not Lese the Substance of the Establishment Such as the Cuting off some needless Scrupulosities of Formes which served rather to make the Law a Mistery or Trade than for a Regular vehicle of Justice and whereof the wise Romans were weary at last Tit. C. de antiquis formulis tollendis and which has been the genius of Proceedings with us since the Revolution Of the same kind is the Restraint by gradual Penalties of Bills found to be Groundless Or of unnecessary Bills upon Subjects which an Ordinary might be impowered to expede And it will be a Glory to the Honourable Bench if they fall upon a Measure for Removing the Reproach by the Dispatch of Compts and Rankings which at present irremediably stick I mean for want of Power in the Auditor of appointing proper Assistants to Clerks according to the Nature of the Respective Subjects for ordering the Fact in Minuts and a competent Reward of these Pains Reserving to the Ordinary himself both the power of Supervising those Minuts and pronuncing the Law Interloquitors thereon c. which Sort of Method has been found necessary and expedient by all rhe Soveraign Judicatories Abroad and our Neighbours at Home and has been sometimes successfully used amongst our selves in our Supream Courts c. But there is one Caution which I presume to hint if you come to be concerned Namely that when such Acts are offered upon Deliberation of some of your Colleagues you do not obstruct Tho' the Matter or Expression answer not precisely to what you think best For such Peculiarities are an Embargo for the most part upon any Proceedings there being commonly in Subjects not already determined as great a Variety of Opinions as of faces Yet if you are truely afraid that the Rule proposed will upon the Matter be pernicious in it's Consequences but not able to perswade the Majority thereof Then why may it not be tryed for a Session or a Year To expire at a determined Time unless if be continued Of which kind of Temporary Acts for Experiment There are many Precedents in the Records even of the Legislative Wisdom here and in England I suppose that er'e now you desire to be Relieved from the impertinent length of my Address Tho' there are a great many other Things in which it might be useful for you to know the Sense of the Country But to supply the rest without running back to Examples of Antiquity Civil or Sacred or incroaching on the Modesty of Living Instances I leave with you two recent Patterns one in our own and the other in our Neighbouring Nation Namely the Lord Cheif Justice Hales and the Lord President Stair as possest of all that Learning Wisdom and Religion which their excellent Works derive doun to late Posterity And that you may possess the Spirit which Inligthned and Conducted those Illustrious Heroes is the earnest Wish of SIR Your most Faithful Friend and most Humble Servant c.