IX. It is desirable that parties thus cited should come to London on the day expressed in the citation. In order that, should the court not happen to meet on that day, they may be in readiness to obey the summons, and appear as soon as the court does open.

JUDGES.

Who are judges.

TITLE VI.

JUDGES, THEIR OFFICE AND DUTIES 1.

I. A JUDGE2 is a person who, either by his own proper jurisdiction, or else by a delegated authority committed to him, has a right and power of taking cognizance in such causes as are litigated before him in judgment3. And he who has this power by virtue of his own proper jurisdiction, is called an ordinary judge and he who has it by virtue of a delegated jurisdiction, is termed a delegated judge', or "judex extraordinarius." A judge is also in Latin called "jus animatum "," a mediator of justice; because he ought to be a minister and mediator of justice between both parties in a suit: for a good judge ought not to do any thing according to his arbitrary will and pleasure, but to pronounce sentence and execute other matters in law, according to the direction of the laws themselves.

This title is principally taken from Ayliffe's Parergon, pp. 309-317, and pp. 160, 161.-Ed.

2 Styled, in Latin, Judex, quasi jus dicens populo, because it is his duty and business to pronounce law to the people.-Ayliffe.

3 The distinct parts or species of the judge's office are cognizance, determination, and execution.-Ayliffe.

4 Digest. 2. 1. 5.-Ayliffe.

5 Hereunto we may add a sub-delegated judge, to whom only some part of the mesne process in a cause is committed in the second place by a delegated judge, as commissioners, or auditors, to receive and take an answer, to examine witnesses, and the like.-Ayliffe.

• This word Judex is sometimes improperly used in the digests. (D. 4. 8. 41.)-Ayliffe.

7 In the Greek tongue, μeσodikos.-Ayliffe.

II. Only such persons can appoint and make a judge who By whom have this power granted them by law', as princes or other appointed. superior and sovereign magistrates. But in some matters we ought to have a regard to custom, which has a power of delegating a judge, as in cases of arbitration, and the like3.

4

ragers of peace.

III. According to the institution both of the civil and canon Encoulaw judges ought to be so far from encouraging suits, that they ought to interpose their good offices and best endeavours between the parties litigant, in order to bring them to a good agreement if possible, pro bono pacis. And if parties are willing to adjust the matter among themselves without the assistance and mediation of the judge, they ought not to be hindered; nor ought judges to exact or demand any thing from them on this account; nor even their ministers and servants 5.

6

7

IV. By the civil law an ordinary judge cannot be recused by Recusation of judges. way of exception, how suspected soever he be. Yet if he be a suspected judge, an assessor or coadjutor shall be assigned him, and this assessor shall see that all judicial proceedings go fairly on without suspicion. But by the canon law even an ordinary judge may be recused, (though a judge recused even by this last law, cannot take cognizance of such recusation), because an exception of suspicion affects him much, provokes him to anger and resentment, and renders him incapable of judging: and therefore he shall not have cognizance either of the principal matter or of any incident thereunto belonging, lest he should injure the party recusing him, to whom nothing can happen more grievous than to litigate under a suspected judge.

1 Digest. 5. 1. 12.—Ayliffe.

2 According to Angelus.-Ayliffe.

3 If a jurisdiction does not accrue to a person either by some act of law, or by a prince's grant, or by some other means, he has nothing to do to give judgment; as the Hebrews verified against Moses, saying, "Who made thee a judge over us?" Exod. ii. 14.—Ayliffe.

4 Gregory's Decretals, book i. tit. 36, chap. 10.-Ayliffe.

s Every judge is said to be God's minister upon earth, and therefore his judgment is deemed to proceed de vultu Dei. But nothing can proceed from thence but truth and justice, for God says, "I am the way, the truth, and the life." John xiv. 6. And again, "All the paths of the Lord are mercy and truth.” Psalm xxv. 10. Therefore, whilst a judge follows truth, and justice, and mercy, he is God's minister; but if he commits injustice, he is the devil's servant, and not properly a judge.

6 Digest. 3. 1. 16.-Ayliffe.

7 Gregory's Decretals, 2. 2. 4.—Ayliffe.

Cognizance

of incidents.

Extra-judi

cial proceedings.

Judge's decision, according to the merits

of a cause.

V. A judge who has the cognizance of the principal cause, may also take cognizance of any thing incident thereunto 1, though the incident be such, touching which he could not otherwise have cognizance principally 2.

VI. Though a presumption lies in favour of a judge, when he proceeds judicially, that his proceedings are according to justice; yet it is otherwise if he shall proceed extra-judicially. And a judge by proceeding to an extra-judicial act of injustice, cannot any more proceed judicially in that cause, because he has rendered himself suspected therein, by acting as a private man.

VII. Though a judge ought always to have a supreme equity before his eyes, yet ought he not to recede and depart from written laws on the account of unwritten equity. But a judge may supply those things in law wherein the advocates of the parties are greatly deficient in their informations. As when an advocate makes allegations or quotations of law, which do not satisfy the mind of the judge, and the judge himself remembers some law or statute which rightly determines the question, he may in such a case found his sentence on such a law or statute, and not judge therein "secundum allegata et probata :" and herein he shall not be said to judge rashly, and of his own head. For though a judge is bound to enquire into the condition of a cause by informations (as the civilians style them), and to take the advice of advocates thereon: yet he is not obliged to follow the same in

1 A cause or matter is said to be an incident, when it is not moved or commenced by way of action, but only by an exception, replication, and the like. Thus in a pecuniary cause, controverted before an inferior judge, such judge may try the state of the incident matter, though he cannot try the principal cause.-Ayliffe.

2 Gibson remarks, "In later days, when that right has been contended for, we find it absolutely denied. The incident point is separated from the principal, and wrested out of the hands of the spiritual judges, and ofttimes the incident draws the principal along with it." Introd. Discourse, vol. i. p. 20.-Ed.

3 Digest, 13. 4. 4.-Ayliffe.

Unless it be through the authority of him to whom this alone belongs, in order to limit and restrain a severe written law. As when there is a multitude of delinquents in a case, since a multitude cannot be punished without great scandal; and then a punishment inflicted by some statute or written law, may be moderated by the judge upon good cause assigned. For though a judge may not extend a punishment beyond the letter of the law, yet he may mitigate the same according to the equity of the case; and if he cannot warrantably do this, he is to report the same to the prince for his mercy.— Ayliffe.

such a manner as to give entire credit to them. And when he has satisfied his own conscience thereby, he may put an end to the informations and allegations of advocates whenever he pleases. A judge ought to take care that all solemnities of law be observed'; but by a consent of parties he may hear and determine causes in a summary way of proceeding.

Every judge in pronouncing sentence ought to have a principal regard to truth and equity, always adhering thereunto, and despising the quirks and subtilties of the law: for though these may sometimes be tolerated in pleading, yet in pronouncing a sentence and judgment in law they ought to be entirely rejected and set aside.

In cases not expressly specified by law, a judge ought always, in inflicting punishments, to be inclined to the more humane and equitable part.

2

lors.

VIII. Chancellors were first introduced into the Church by Chancelthe second canon of the council of Chalcedon. They were men trained up in the civil and canon law of those ages to direct the bishops in matters of judgment relating as well to criminal as to civil affairs in the Church. It appears from several laws in the Justinian code, that bishops in their episcopal audience had the cognizance of all matters relating to the Church, whether they were of a civil or criminal nature, and to this end and purpose they had their chancellors and officials to assist them in points of law, and to defend the rights of the Church. Though some think these officers were of a very late date, and introduced by the sloth and negligence of bishops, unwilling to hear and determine those causes wherein they had jurisdiction. These ecclesiastical lawyers were not at first deputed and assigned unto any certain place, but supplied the office of the bishop at large in hearing ecclesiastical causes which were of a contentious jurisdic

1 Digest, 2. 15. 8. 17.—Ayliffe.

2 Or bishops' lawyers, in Latin called Ecclesiecdici, or Episcoporum Ecdici. -Ayliffe.

3 Some of which laws were of Justinian's own making, and other emperors before his time, even from the days of Constantine the Great.-Ayliffe.

St. Ambrose, St. Augustine, and other holy fathers in the primitive Church, were continually employed in the decision of secular causes; and the emperor Constantine, by an imperial decree, confirmed their sentences, and gave to all litigants (both parties agreeing) the option of referring their causes to lay or ecclesiastical judges. Eusebius de Vit. Constant. lib. iv. c. 27. Sozomen, lib. i. c. 9. Bingham's Antiquities, 2. 7. 3.-Ed.

5 See Gothofred, in his Annotations on the Law (c. 1. 3. 33. 2.) who collects the matter from Papias.-Ayliffe.

Commis

saries.

Vicars-general.

officials.

tion, or at least they assisted the bishop therein: and therefore they were required to be well skilled both in the civil and canon law. They carry the bishop's authority every where in matters of jurisdiction and as they and the bishop make but one consistory, they are sometimes styled the bishop's vicars-general, extending their authority throughout the whole diocese'. Herein they are distinguished from the commissaries of bishops, whose authority is only in some certain place in the diocese, and in some certain causes of the jurisdiction limited to them by the bishop's commission, and therefore the law calls them judices or officiales foranei'.

IX. Chancellors, as distinguished from vicars-general', commissaries, and principal officials, are they who have the cognizance of all causes both of voluntary and contentious jurisdiction committed to them; whereas, properly speaking, vicars-general have only all causes of voluntary jurisdiction delegated to them *, Principal and principal officials only causes of contentious jurisdiction 5. Thus the power of vicars-general differs from that of principal officials, since officials are said to be those persons to whom the cognizance of causes' is generally committed by such as have ecclesiastical jurisdiction; and on such persons the cognizance of causes is transferred throughout the whole diocese, but not the power of inquisition, nor the correction of crimes, nor can they remove persons from their benefices, nor collate to benefices, without a special commission. For a general commission alone

1 According to the common law a bishop cannot be a judge in his own consistory, except in some particular cases, wherefore if a bishop will not choose a chancellor, the metropolitan may and ought to do it.-Ayliffe.

2 In other words, officiales astricti cuidam foro diocasios tantum. Gloss. in Clementin. lib. ii. tit. 2, cap. 1.—Ayliffe.

"In fact," observes Gibson, "there are two offices united in those whom we now commonly call chancellors of bishops, which offices the law hath carefully distinguished." Introd. Discourse, p. xxii.

+ Such as visitation, correction of manners, and granting institution, with a general inspection of men and things, in order to the preserving of discipline and good ecclesiastical government. Gibson's Tracts, 108.

5 That is, concerning wills, legacies, marriages, &c. Sexti Decretal, lib. i. tit. 13, cap. 2.-Ed.

6 Gibson (p. 990,) wishes that these offices were kept separate: the office of vicar-general to be vested in the hands of some grave and prudent clergyman, usually resident within the diocese; and that of official (as being conversant about temporal matters) in the hands of a layman well skilled in the civil law. Ed.

7 In officialem Episcopi, per commissionem officii generaliter factam, causarum cognitio transfertur. Sexti Decretal, lib. i. tit. 13, cap. 2.-Ed.