demurring Judges consider seriously the admirable passage of Theodorick King of the Romans as it stands related at large in the Chronicle of Alexandria There was one Juvenalis a Widow who came to him with a sad complaint that she had had a suit depending in the Court three years which might have been ended in a few dayes the King demands of her the Judges names she tels him there issues out an especiall command from the King to them to give all the speedy dispatch that was possible to this Widowes cause which they did and in two dayes determined it to her very good liking which being done Theodorick cals for these Judges and they supposing it had been to receive their applause and reward for their quick decision and excellent justice hastned to him full of joy but the King having first interrogated with them about the cause of their former delay and having sharply reprehended them he commanded both their heads to be struck off because they had spun out that cause to a three yeares length which two dayes would have ended Seventhly You must be stedfastly just a Judge should be such an one qui nec fallitur nec flectitur lenity becomes not a Judge levitas est mobilitas animi qua homines levi de causa mentes vel sermones facile mutant Judges must not be like the vulgar Jews who would this day deifie and to morrow crucify the same man nor yet like Pilate who commanded Christ to the Crosse with those very lips with which a little before he procounced him innocent A Judge he must be propositi tenax though not pecuniarum petax he must be like the needle toucht with the Loadstone of constancy ever looking one way like the unshaken rock that in the midst of the angrie foaming brine and raging billowes appears that apt emblem of stabilitie with this motto on it Immota triumphans or else like the Egyptian pyramis wearing this inscription Nec flatu Nec fluctu Eightly You must be mercifully just there must be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an ordinate rule of all affections a Judge must not come under that character that Josephus gives Herod that he was Legis dominus but irae servus Lord of the Law but yet Lorded over by his own lusts a Judg must not be too much affianced to his own will Vel. pater lib. 1. Hist not like Brutus and Cassius of whom Velleius Paterculus hath this note quicquid voluit Brutus valdè voluit nimium Cassius but he must plant his Judgement upon an even ground and as much as in him lies make inequality equal considering that merciful Aphorisme of Solomon Qui fortiter emungit elicit sanguinem the wringing of the nose bringeth forth bloud where the winepresse is hard wrought it yields a harsh wine that tastes of the grape-stone a butcher they say may not be of the Jury much lesse may he be a Judge There is just cause of relenting whether we consider our selves or others as being of the same mould and subject to the same temptations with others Though we may and must delight in justice yet say Divines to be glad of it as 't is the evill and grief of an other is very sinfull for a Judge upon the Bench to put the poor malefactor out of countenance whom he may put of life what triumph is it To jest at man in misery 't is the worst use a man can put his wit to and will come home to him nay 't is worse then brutish and beneath a beast the Lion scornes it so sayes the Poet Corpore magnanimo satis est prostrasse leoni O then my Lords be mercifull even as your Heavenly Father is mercifull and to whomsoever you think God himself if he were upon the Bench and in your place would shew mercy why to all such let your mercy extend I have read of three cases that seem to be out of the reach of civill mercy First wilfull murder prepared and projected murder here your eye is not to pitie in the time of the Law and by Gods own order such a murderer no Asylum no City of refuge Deut. 19.11 12 13. no Sanctuary no Altar could protect but he might be snatcht thence A second case is when accessaries suffer then the principall must not be spared this the voice of God Numb 24 4 5. of nature and of the Law all give assent to A third and last case is when the quarrel is laid in principles of irreconcileable enmity against true Religion and the government of Christ and yet even in all these three grand Cases Luk. 19.27 though mercy must not degenerate into a softnesse prejudiciall to Justice those Just sentences are best pronounced that are deepest drenched and most steeped in the Judges tears Ninthly and lastly You must be universally just You are called Scuta terrae the shields of the earth and the Law with us t is called Lex terrae to note the universal Benignity thereof and the equal interest that every person is to have therein to weigh one mans cause by the rule of Law and anothers by the rule of favour this is like divers weights and measures which the Lord abhorres This is not to be Scutum a shield but rather Galea a helmet to protect onely the heads of the people You must be like the Sunne whose beams shed themselves with as sweet an influence on a Garden of Cucumbers as on the Forest of Lebanon Your Justice must extend it self like the wisdom of Solomon from the Cedar to the Hysop The Apostles rule is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the small as well as the great must be heard Deu. 1.17 Laws must neither be like Nets to let out little Fishes and catch onely great ones nor yet like Cobwebs to be broken by great offenders and to catch only Flies Universal Justice is that which respects all rewarding the meanest in well-doing and punishing the greatest in evil-doing if justice be thus universal 't will cashier 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 all Partiality all Bribery and all Timidity now Timiditas judicis est calamit as innocentis And thus my Lords I have shewed you why you must be just and how you must be just I had thought in the next place to have reacht the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the obstructers of Justice but I see that cannot be without intrenching too farre upon that patience which I would not abuse or borrowing too much of that time which is allotted your other affairs I shall only therefore beg your pardon whilest in words as few as may be I take leave particularly to apply this great duty of the Text to those that shall be more immediately concerned in the Transactions of this season Justice you see is the great businesse of the Text and t is the great businesse of such a time as this And that the people may the better
war but all 's as husht and peaceable as the Halcyons nest which stills the tempests and sliks and calmes the brow of Heaven where all the Citizens entertaine one another like fingers on the hand every one taking part with the good of his fellow being all great in the obedience they render to the law being all rich in the contenment of their desires and being all well pleased in the happinesse one of another In summe for I have no more room for particulars whatsoever the Luxuriant and free fancies of Poets or the choice and delicate pens of antiquity have either conceited or written of the Elysian fields of the fortunate Islands of the felicities of a golden age of the vertues and ornaments of an Agathopolis which was drest as rich as the Ideaes of the divine Plato could make it why all these do but help to piece out that traine of blessings that follow a good government When any Land becomes blest with such Magistrates and Judges as are indeed the faithfull deputies of their Maker and whose breasts are the Oceans or sewers into which all the cares of private men empty themselves and whose vigilant eyes are the constant centinels of the peoples safety and whose steady hands have learned to hold the seales of justice try and even and to weigh right and wrong by their proper weights and whose just breath is the peoples best and wholsomest aire as being that that gives life and soul to all their proprieties rights and priviledges In a word when people have such Judges that neither turn Judgment into wormwood nor into vinegar that neither imbitter it by injustice nor sowr it by delay that suppresse as well fraud as force that only hear causes speake and not persons that are Melchisedeck-like without father or mother that hate to pay private wrongs with the advantage of their office that have so well got the rule over themselves that their passions do not unfit them to rule over others that look straight forward in a right line upon equity without glancing aside upon revenge displeasure or recompence that keep not only their hearts clean but their hands too take heed of bos in lingua that in that cause bestow diligence in sifting where the right is difficult in finding that love to have truth come naked to the bar without false bodies and disguises that neither make briars nor springes of the laws to catch every thing they lay hold of that neither crook nor bow the laws by hard constructions and strained inferences but straiten them by just expositions and if they seem to be antiquated or obsolete wipe off their dust by a judicious clearing that never browbeat a Witnesse or look an Evidence damp but with a gentle midwifery helpout the stammering tongue that his proof may not miscarry that in their callings approve themselves to be the dreadfull instruments of Divine revenge and the ministers of God for good to the people and to be legum vindices the guard of laws and as was said of Cassius reorum scopulos the Rocks or as one cals them the comets of the guilty the refuge of innocency the paymasters of good deserts the Champions of right the patrons of peace the supporters of the Church and the true Patres Patriae or Fathers of their Country being more learned then witty more reverend then plausible and more advised then confident hearing all things debated with patience and then proceeding to sentence in uprightnesse and pronouncing nothing but just judgement I say where Judges are such happy yea thrice happy are such a people and blessed is the Land that is in such a case for then such a Land becomes like the Israel of God when her Officers are peace and her Exactors righteousnesse such Magistrates God commands to be chose to be Commission'd and to be impowred even over his own people for so you see runs the Writ of election in my Text. Judges and Officers shalt thou make thee in all thy gates which the Lord thy God giveth thee throughout thy Tribes and they shall judge the people with just judgement In this great Patent and Divine Charter of Magistracy or in this Theocratia or Government of Gods own setting up There is considerable First The Honour Secondly The Office First The Dignity Secondly The Duty Or if these be too generall take it in more particulars First Here is Gods mandamus from heaven for Government here is the charge of the Almighty for the erecting of a Magistracy and this is contained in the word constituito Thou shalt make or Make thou Secondly As here is the charge so here is the stile or the titles Judices Moderatores constituito Judges and Officers shalt thou make Thirdly Here are the persons invested with the right and power of electing and constituting Officers and they are the Collective body of the people or the Community in whole and these are included in the Pronown tibi Judices Moderatores constituito tibi Judges and Officers thou shalt make thee Fourthly Here is the Circuit of these Judges or the Territories of these Magistrates In singulis portis tuis quas Jehovah Deus tuus dat tibi per tribus tuas Judges and Officers shalt thou make thee in all thy gates which the Lord thy God giveth thee throughout thy tribes By Gates we are to understand all the Judicatories in Israel for Gates they were Domus Judicii the seats of Judgement They were of old placed in the Gates at the entrance of Cities for many reasons as Tarnovius notes at large upon Amos 5.10 but principally for this To let us know that Justice sitting at the Gate is a better safeguard for a City then a Corps-du-gard then either Bullwarks Percullises draw-Bridges or whatsoever else that hath most defence in it Fifthly and lastly Here is the duty of these Judges in the concluding words of the text Qui judicent populum judicio justo Judges and Officers shalt thou make thee in all thy gates which the Lord thy God giveth thee throughout thy tribes and they shall judge the people with just judgement And thus I have presented you with the Logick of the Text and shewed you how the parts lye in it I shall endeavour to slide apace through them all as intending only ut Canis ad Nilum to glance upon the former but to stop yea and to stay upon the later First then I will begin with the constituito of the Text Thou shalt make 'T is God 's mandamus to his own Israel Inde potestas unde spiritus Tertul. Apol. so saies Tertullian And an ancienter then he Cuius jussu homines ejus jussu Reges so Irenaeus Iren. lib. 5. cap. 24. And an ancienter then either of them The powers that are are ordained of God so Saint Paul Rom. 13.1 Anarchy is the peoples phrensie but Magistracie the Ordinance of the Almighty I deny not but the primitive state of the first created
discipline and tend to the awakening of the secure conscience and to the bringing of it both to a sight and sense of its crime and guilt God suffers penalties to fall sometimes upon the bodies of offenders in mercy to their souls but however if Justice should not work to the saving of their souls yet it will be sure to work to the restraining of their sinne making the measure of it the lesse which is indeed a mercy Grave is the speech of Seneca Vt nemo pereat nisi quem perire etiam pereuntis intersit That none perish but those to whom t is an advantage to perish And thus much by way of Argument Why you must be just I come next of all to discourse of the Modification How you must be just First My Lords You must be religiously just it is indeed the first required qualification in all Judges and Magistrates That they should be men fearing God there is so near an affinity between Justice and Religion that as Priests are called Judices Sacrorum so Vlpian stiles Judges Sacerdotes Justitiae Judges must not be like Cardinal Caraffa of whom it was said That he was Securus de numine out of all fear of Gods vengeance without Religion Judges will be but prophane and where the fear of God is not there the fear of man will be in too great a measure Alvarez reports it to be a custom of the Aethiopians to place twelve empty Chairs about the Judges seat and this not out of state but out of Religion supposing that their gods sit there with their Judges And the Rabbins have a saying That the Angels attend in all Judicatories how concerns it all Judges then to be religiously just having such attendants and such assessors Secondly You must be zealously just for you judge not for man but for God Now he that doth the work of the Lord negligently a curse waits on him the righteous they are compared to Palm-trees now they love hot regions and a warm soil and so doth Justice zealous hearts t is St Bernards Note Adami voluntas non habuit fortitudinem quia non habuit fervorem You must execute Justice magnanimiter there must be an ardent zeal for the maintenance of Laws and there must be an actuall application of all your endeavours and of all the forces of your minde and courage to authorize Justice to strengthen your arms against the torrents of iniquity and to put all your particular interests under the discharge of your imploiments where there is like to be great opposition there had need to be a great spirit and great resolution Odia qui nimium timet regnare nescit To resist friends and to over look enemies will be no easie work to be just under all the crosse censures of the world where some will cry out that you are too mercifull and others that you are too severe some that you do nothing and some that you do too much now surely it must be a zeal for Justice that must make you struggle thorow all difficulties Moses he grindes to powder the golden Calf Exod. 32.20 Num. 25.13 and it was his zeal constrained him Phineas he runs Zimri and Cosbi thorow with his Javelin and t was his zeal that fired him Joh. 2.17 And Christ he whips the buiers sellers out of the Temple and t was the zeal of his fathers house that eat him up but here you must be sure that this holy fervour be of the right stamp it must be pure elementary not base and culinary not feeding upon carnal respects it must be zeal for justice as an act of justice yea and it must be out of love too or else whilest it is Justice in the Law it may be murther in the Judg. Thirdly You must be impartially just like God in this he accepts no mans person he accepts not the rich because he is rich nor the poor because of his poverty 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the bane of Justice Perit omne judicium ubi res transit in affectum Judges they are as the noble Spartan said of himself Patriae legibus dati they have bestowed themselvs upon their Country and upon the Law and therfore must know neither parents nor kindred in the cause of Justice The Statues of the Thebane Judges they were they were without hands and without eyes that is without corruption without partiality The Athenians they were wont to judge in the dark that so they might know no mans face Judges they must be swayed neither with foolish pity on the one hand nor with respect to might power friendship or greatnesse on the other usually these are the two prejudices against the execution of justice either carnall pity sayes he is a poor man or else carnall fear sayes he is a great man and so outward accidents come in the Scale rather then the merits of the Cause when judgment is misted or blinded by any externall glory and appearance so that Judges cannot discerne truth or right when they suffer any cause to be overballanc'd by such forraigne circumstances as have no affinity with it this is a vicious partiality in them all corruption is not in bribes the Judges who absolved the beautifull strumpet Phryne they had their hands cleane but their eyes foule it was a gallant return which the noble Rutilius made his friend requesting of him an unlawfull favour in such language as this Quid tua mihi opus est amicitia si non impetro quod rogo I had as good be without such a friend as with him who will not let me speed in what I ask to whom he replied Imò quid mihi tua si tua causa aliquid inhonèste facturus sum I can want such a friend as you if for your sake I must do that which is not honest Memorable is the act of justice Helmodi Chrone performed by Canutus King of Denmarke who after he had examined the processe of twelve Theeves and condemned them he found one who said he was extracted of Royal bloud it is reason saith the King some favour should be done to this man therefore give him the highest Gibbet We read in the twelfth Novell of Justinian of an oath imposed upon Magistrates against inclining or addicting to either partie yea they put themselves under a deep and bitter execration and curse in case of partiality imploring God in such language as this Let me have my part with Judas and let the leprosie of Gehezi cleave to me and the trembling of Cain come upon me and whatsoever else may astonish and dismay a man Fourthly you must be sincerely just 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 incorruptnesse and integrity 't is the proper portion of Judges Judges should be known by giving not by receiving 't was Claudians elogium of Honorius Non hic privatis crescunt aeraria damnis foul hands will breed troubled consciences you must take heed of being takers he that opens his hand
to catch after a reward cannot choose but let fall his rule out of it Men have a touchstone says one to try gold but gold is a touchstone to try men I have read of one Ichis a Polonian Judge that having long stood up for a poor plaintiff against a rich defendant he at last received from the defendant a great sum of mony stamped with the usual stamp of that Country which is a man in compleat armour and at the next Sessions he in open Court adjudged the cause in favour of the defendant and being sharply blamed by his friends he shewed them his large fee and demanded of them Quis posset tot armatis resistere Who could stand out against so many in compleat armour witty was the reply was that returned Demosthenes who having been well feed by the adverse party to be silent in a cause being called to plead pretended the Squinsie his Client came hansomly over him saying 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 non est ista angina sed argentumgina 't is the silver Squinsie Mazarinus complaineth of forraign Iudges that they too much resembled the Haimatites or bloud-stone which hath a special property to stanch bloud but as Jewellers observe it puts not forth this virtue unlesse it be let in or covered over with silver and so applyed to the vein whereas Judges they should be men hating covetuousnesse if they be not they will be apt cunningly to divert the strait current of the Law to bring water to their own Mill some Judges there have been who for the cleanlinesse of the conveyance would like mendicant friers touch no mony themselves but have a boy with a bag to receive it for them but O let all such corrupt Judges who it may be buy justice by whole-sale sell it by retale let them consider seriously what is said Iob 15.34 Fire shall consume the Tabernacle of Bribery the Septuagint reads it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of men that take guifts a gift transforms the Judge into a party and as Buxtorf upon the Hebrew word here notes makes the Judge and pary to be but one person there is much gotten but nothing gained by injustice men give bribes to undo others and they that receive them undo themselves I have read of a Travellour who coming to Rome and seeing many curious piles and goodly structures he was inquisitive to know who built them it was told him that they were peccata Germanorum the sins of Germany meaning thereby that the mony brought for pardons out of Germany built those houses and may not we make the same answer when we look upon the Stately houses and Magnificent palaces of corrupt Judges may not we call them peccata Judicum and say that bribes and oppressions bought such Seats and built such and such houses but alas if the actor of Justice lives not to see the melting of such gettings and the spending of such earnings yet the heir finds a fire in the foundation he hears the stones in the wall to cry out that the morter in which they were layed was tempered with the tears of widdowes and Orphans and the blood of innocents and the beam out of the timber answers it that that was set up by pulling down the poor and therefore it cannot stand in Gods Court there is no man can buy off a hell not a year or a day for millions of worlds my Lords it should be so in yours I beseech you let nothing stick to your fingers that should make your faces to gather palenesse in the day of the Lord Jesus Fifthly you must be deliberately just Truth is the daughter of time dies diem docet Justice hath not a giddy running hast but a sober grave pace it was an ancient decree of the Areopagites Orat. de Coron as Demosthenes relates it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that Judges should hear both parties with equall indifferency and attention their full time And 't was the custom of Philip of Macedon to stop one of his ears whilst the accuser was speaking that he might reserve it for the defendant never was any Romane Emperor so much taxed of injustice and folly as Claudius Caesar and the reason of his so frequent mistakes was because he often sentenced causes upon the bare hearing of one side only and sometimes upon the full hearing of neither True is that of Seneca Sweton in claud Qui aliquid statuit parte inaudita altera aequum licet statuerit haud aequus est The eare is not only the sense of discipline and learning according to the Philosopher and of faith according the Apostle but also of truth and Justice He that proceeds on halfe-evidence he will not do quarter-Justice Judges they must be attentive harkning with just and patient ears to the pleadings of both sides witnesses should be heard out though tedious Judges should not meet evidences half way but stay till they come at them some persons must be impertinent before they can be pertinent and as one sayes if they tell the story of a hen you must give them leave to begin at the egg it is no grace to a Judge first to find that which he might have heard in due time from the Bar or to shew quicknesse off conceit in cutting of evidence or counsel too short for sometimes a man of a dreaming utterance may give a waking testimony Judges they should not prevent informations by questions though pertinent In this sense an over-speaking Judge is no well tuned Cymbal It is related of Theodosius that when he had killed many men rashly which did much trouble him it was afterwards enacted by him that thirty dayes should use to intervene between the sentence and the execution for potest dilata paena exigi exacta revocari non potest punishment deferred may be executed at pleasure but if once executed cannot be recalled we may read how God himself though he needs no intelligence from his creatures yet in his two great acts of justice when he confounded the builders of Babel and destroyed Sodom he would not only hear but he would go and see and Christ he prescribeth a rule to all Judges Sicut audio sic Judico John 5.30 Sixthly You must be speedily just see Ezra 7.26 you must execute Judgment in the morning Jer. 21.12 Noon justice and evening justice 't is not so seasonable 't is not so acceptable to God as morning justice delays break the spirits of the innocent and harden the hearts and strengthen the hands of the guilty Lewes the twelfth of France he was wont to taxe the delayes reverences and neglects of Judges and to say that he did not love this stretching of leather with the teeth A man shall come into few of our Courts but he shall hear those that wait on them crying out with him in the Poet Quem das finem Rex magne laborum When shall we leave turning Ixions Wheel and rowling Sisyphus his stone I would have all