surely there be also that turn it into vinegar; for injustice maketh it bitter, and delays make it sour. The principal duty of a judge is to suppress force and fraud; whereof force is the more pernicious when it is open, and fraud when it is close and disguised. Add thereto contentious suits, which ought to be spewed out as the surfeit of courts. A judge ought to prepare his way to a just sentence as God useth to prepare his way, by raising valleys and taking down hills: so when there appeareth 10 on either side a high hand, violent prosecution, cunning advantages taken, combination, power, great counsel, then is the virtue of a judge seen to make inequality equal; that he may plant his judgment as upon an even ground. Qui fortiter emungit elicit sanguinem; and where the winepress is hard wrought, it yields a harsh wine that tastes of the grape-stone. Judges must beware of hard constructions and strained inferences; for there is no worse torture than the torture of laws: especially in case of laws penal they ought to have care that that which was meant for terror 20 be not turned into rigour; and that they bring not upon

the people that shower whereof the Scripture speaketh, Pluet super eos laqueos; for penal laws pressed are a shower of snares upon the people: therefore let penal laws, if they have been sleepers of long or if they be grown unfit for the present time, be by wise judges confined in the execution: Judicis officium est, ut res, ita tempora rerum, &c. In causes of life and death, judges ought (as far as the law permitteth) in justice to remember mercy, and to cast a severe eye upon the example but a merciful eye upon the 30 person.

Secondly, for the advocates and counsel that plead. Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge first to find that which he might have heard in due time from the bar, or to show quickness

of conceit in cutting off evidence or counsel too short, or to prevent information by questions though pertinent. The parts of a judge in hearing are four: to direct the evidence; to moderate length, repetition, or impertinency of speech; to recapitulate, select, and collate the material points of that which hath been said; and to give the rule or sentence. Whatsoever is above these is too much, and proceedeth either of glory and willingness to speak, or of impatience to hear, or of shortness of memory, or of want of a staid and equal attention. It is a strange thing to see 1 that the boldness of advocates should prevail with judges; whereas they should imitate God, in whose seat they sit, who represseth the presumptuous and giveth grace to the modest: but it is more strange that judges should have noted favourites, which cannot but cause multiplication of fees and suspicion of by-ways. There is due from the judge to the advocate some commendation and gracing, where causes are well handled and fair pleaded, especially towards the side which obtaineth not; for that upholds in the client the reputation of his counsel, and beats down 25 in him the conceit of his cause. There is likewise due to the public a civil reprehension of advocates, where there appeareth cunning counsel, gross neglect, slight information, indiscreet pressing, or an over-bold defence; and let not the counsel at the bar chop with the judge, nor wind himself into the handling of the cause anew after the judge hath declared his sentence; but, on the other side, let not the judge meet the cause half-way, nor give occasion to the party to say, his counsel or proofs were not heard. Thirdly, for that that concerns clerks and ministers. 30

The place of justice is a hallowed place; and therefore not only the bench but the foot-pace and precincts and purprise thereof ought to be preserved without scandal and corruption; for certainly Grapes (as the Scripture saith) will not be gathered of thorns or thistles; neither can justice yield her fruit with sweetness amongst the briars and brambles of catching and polling clerks and ministers. The attendance of courts is subject to four bad instruments: first, certain persons that are sowers of suits, to which make the court swell and the country pine: the second sort is of those that engage courts in quarrels of jurisdiction, and are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds for their own scraps and advantage: the third sort is of those that may be accounted the left hands of courts; persons that are full of nimble and sinister tricks and shifts, whereby they pervert the plain and direct courses of courts, and

10

e

foot-pace] Lat. subsellia. French non seulement les bancs, mais les degrés. Ital. non solamente la seggia, ma lo scabello de' piedi. Whateley interprets the word by lobby'; Mr. Wright, by 'dais, or raised platform for a chair of state.' Latham's Johnson's Dict. gives 'landing places at intervals in the course of a staircase.' Nares, Glossary, spells the word 'foot-pase,' and explains it as mat or carpet.

'precincts and purprise] i. e. the

whole area or enclosure of the court.

Lat. praecinctus sedis. French le circuit et pourprix. Ital. i precenti e tutti li confini. There does not seem to be any distinction intended between the two words. For purprise conf. 'Daiphantus... perswaded the Phocians... for to go forth and encounter the Thessalians but their wives and children to assemble all together unto a certain place in Phocis, and environ the whole pourprise and precinct thereof with a huge quantity of wood,' &c. Plutarch's Morals. 'On the ver

tuous deeds of women. The Dames of

Phocis,' p. 399. The Greek of this passage is: ἔπεισε τοὺς Φωκεῖς μὲν, αὐτοὺς ἀπαντήσαντας, τοῖς Θετταλοῖς μάχεσθαι, τὰς δὲ γυναῖκας ἅμα τοῖς τέκ νοις, εἰς ἕνα που τόπον συναγαγόντας ὕλην τε περινῆσαι ξύλων καὶ φυλακὰς καταλιπεῖν. Littré explains 'pourpris' as = enceinte, habitation. Eh morbleu, c'est dans le pourpris du brillant palais de la Lune qu'un honnête homme fait fortune' (Voltaire). 'Comme Romulus feist faire un fossé à l'entour du pourpris qu'il voulait enfermer de murailles' (Amyot, Rom. 15).

of catching and polling clerks &c.] Lat. scribarum et ministrorum rapacium et lucris inhiantium. These words are explained and amplified in the passage which follows, where Bacon speaks of the fourth bad instrument of the court -the poller and exacter of fees. So Cowell speaks of 'catchepolle' as being 'now used as a word of contempt.' Interpreter, sub voce,

bring justice into oblique lines and labyrinths: and the fourth is the poller and exacter of fees: which justifies the common resemblance of the courts of justice to the bush, whereunto while the sheep flies for defence in weather he is sure to lose part of his fleece. On the other side, an ancient clerk, skilful in precedents, wary in proceeding, and understanding in the business of the court, is an excellent finger of a court, and doth many times point the way to the judge himself.

Fourthly, for that which may concern the sovereign and 10 estate. Judges ought above all to remember the conclusion of the Roman Twelve Tables, Salus populi suprema lex; and to know that laws, except they be in order to that end, are but things captious and oracles not well inspired: therefore it is a happy thing in a state when kings and states do often consult with judges; and again, when judges do often consult with the king and state: the one when there is matter of law intervenient in business of state; the other when there is some consideration of state intervenient in matter of law; for many times the 20 things deduced to judgment may be meum and tuum, when the reason and consequence thereof may trench to point of estate: I call matter of estate not only the parts of sovereignty, but whatsover introduceth any great alteration or dangerous precedent, or concerneth manifestly any great portion of people: and let no man weakly conceive that just laws and true policy have any antipathy; for they are like the spirits and sinews, that one moves with the other. Let judges also remember that Salomon's throne was supported by lions on both sides: let them be 30 lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.

8 may trench to point of estate] i. e. may go near to touch some matter of state. Lat. ad rationes statûs penetret.

B b

The words which follow define exactly what 'point of estate' means.

Let not judges also be so ignorant of their own right as to think there is not left to them, as a principal part of their office, a wise use and application of laws; for they may remember what the apostle saith of a greater law than theirs; Nos scimus quia lex bona est, modo quis eâ utatur legitime.

NOTES AND ILLUSTRATIONS.

P. 365, l. 1. their office is jus dicere and not jus dare] This statement is balanced at the end of the Essay by the remark that judges must remember that they have left to them, as a principal part of their office, a wise use and application of laws. The Antitheta on 'Verba Legis' will shew the sense in which these rules are to be understood. On the 'Pro' side we have 'Non est interpretatio, sed divinatio, quae recedit a litera. Cum receditur a litera, judex transit in legislatorem.' On the 'Contra' side, 'Ex omnibus verbis eliciendus est sensus, qui interpretetur singula.' Works, i. 706. We may take Bacon's meaning, therefore, to be that though judges are to be guided by the words of the law, they are to have regard to the whole of it, and not unduly to press some single point or to follow an interpretation of it out of accord with the rest. So, in King James' speech in the Star Chamber (1616) he directs the judges 'not to take upon them to make law, but joyned together after a deliberate consultation, to declare what the law is.' King James, Works, p. 551. In the course of the speech, he again bids them 'remember you are no makers of law, but interpreters of law, according to the trew sence thereof: for your office is jus dicere and not jus dare.' p. 555. But we find presently much the same balance as that on which Bacon insists. 'Laws are ordained as rules of vertuous and sociall living, and not to be snares to trap your good subjects; and therefore the law must be interpreted according to the meaning and not to the literal sense thereof.' Basilicon Doron, bk. ii. Bodin, de Republica, bk. vi. 6, endeavours to define and reconcile these two duties of a judge. He deals with the matter at much greater length than Bacon has done, but comes to no very precise conclusion. For the result of a breach of Bacon's first rule, conf. 'Concerning the civill justice here (i. e. in France) it is nowhere more corrupt nor expencefull ... The Presidents are not bound to judge according to the written law, but according to the Equitie drawn out of it, which Libertie doth not so much admit conscience as leave wit without limits.' Overbury, Obs. on XVII. Provinces &c., p. 18.

1.7. Judges ought to be &c.] On the first of these points conf. Speech to Justice Hutton: 'The first (line and portraiture of a good