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an over-speaking judge is no well tuned cymbal.— He is diligent in discovering the merits of the cause: by his own exertions; (/i) from the witnesses, and the advocates. — He is cautious in his judgment; not forming a hasty opinion: not tenacious in retaining an opinion when formed: 'never ashamed of being wiser to-day than he was yesterday:' never wandering from the substance of the matter in judgment into useless subtlety and refinement. — He does not delay justice.
man his full scope, thinking it much better to lose time than patience.—Life of Hale. Seneca says of Claudius, "He passed sentence una tantum parte audita >epe et nulla." He is patient and attentive in hearing the pleadings and witnesses on both sides. Audi alteram partem is a maxim of which he never loses sight. One of Sir M. Hale's rules is, "That I suffer not myself to be prepossessed with any judgment at all till the whole business and both parties be heard." Another is, "That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard."
( /i) If the cause be difficult, his diligence is the greater to sift it out. For though there be mention, Psalm xxxvii. 6, of righteousness as clear as the noon-day, yet God forbid that that innocency which is no clearer than twilight should be condemned. And seeing one's oath commands another's life, he searcheth whether malice did not command that oath; yet when all is done, the judge may be deceived by false evidence. But blame not the hand of the dial, if it points at a false hour, when the fault is in the wheels of the clock which direct it, and are out of frame.—Fuller.
Sir M. Hale, in his rules of things to be continually had in remembrance, says, "That I be wholly intent upon the business I am about, omitting all other cares and thoughts as unseasonable and interruptions."
I remember that, when I wars a young man, a prisoner was tried at the Old Bailey for a capital offence in secreting a letter. I forget the judge by whom he was tried, but Sir Soulden Lawrence was on the bench, and when the judge by whom he was tried was about to charge the jury, Sir Soulden stated a point of law which had occurred to him in favour of the prisoner. This attention of Sir Soulden saved the man's life: his name was Pooley, Benjamin Pooley I think.
Lord Eldon was very much in the habit of taking home the pleadings after the case had been argued. He told me that, in reading some pleadings, he had just discovered that the counsel had omitted to notice the only point upon which the case turned. He mentioned it, and the bar saw their error. He was one of the most, if not the most pains-taking judge, it is my firm conviction, that ever existed.
— He is impartial; (b) never suffering any passion to interfere with the love of truth.— He hears what is spoken, not who speaks : (r) whether it be the sovereign, or a pauper; (e) a friend, or a foe; a favourite advocate, (f)
(A) Hobbs says, "A judge should be able in judgments to divest himself of all fear, anger, hatred, love, and compassion."
When a judge is capable of being influenced by any thing but law, or a cause may be recommended by any thing that is foreign to its own merits, we may venture to pronounce that the nation is hastening to ruin.
Denys de Cortes, advocate of the parliament of Paris, and counsellor to the Chatelet, was so renowned for his integrity, that when a man who was condemned to death by the latter court, and intended to appeal to the parliament, heard that he was one of his judges, he submitted instantly to the sentence, saying, "He was convinced he merited death, since he was condemned by Denys de Cortes."
A judge in the Isle of Man, on entering upon the functions of his office, takes the following oath : "By this book, and by the holy contents thereof, and by the wonderful works that God hath miraculously wrought in heaven above and in earth beneath in six days and seven nights, I do swear that I will without respect of favour or friendship, love or gain, consanguinity or affinity, envy or malice, execute the laws of this isle justly betwixt our sovereign lord the King and his subjects within this isle, and betwixt party and party as indifferently as the herring's back-bone doth lie in the midst of the fish."—Wood's account of the Isle of Man.
(c) Parties come differently into court. It is the duty of a judge to make this difference as little as possible. D. Lord Eldon, Gourlay v. Duke of Somerset, Jan. 26, 1824.
(e) By a decision in the House of Lords, which was delivered by Lord Rosslyn when Chancellor, a most virtuous clergyman was in a moment reduced from affluence to poverty. The moment the Chancellor had pronounced judgment, he walked from the woolsack to the bar of the house where the clergyman stood. He said, " As a judge I have decided against you: your virtues are not unknown to me. May I beg your acceptance of this presentation to a vacant living, which I happen, fortunately, to have at my disposal." It was worth about £600 a year.
(J") He has no favourites in the court. It is a strange thing to see, 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 or an intelligent judge.(g)—He decides according to law; 'jus dicere: non jus dare,' is his maxim. (A)—He delivers his judgment in public, (i) ' palam atque astante corona.'
"He discharges his duty to all persons.—To the suitors, by doing justice, and by endeavouring to satisfy them that j ustice is done: (a)—to the witnesses, (i) by patience, (c)
noted favourites, which cannot but cause multiplication of fees, and suspicion of by-ways.
Sir Matthew Hale, in his rules, says, " Not to give any undue precedence to causes: not to recommend counsel."
(g) His judgment is his own, uninfluenced by the opinions of his brethren. In England the junior judge is first to deliver his judgment. He should mix well the freedom of his own opinion with reverence for the opinion of his fellows. —Bacon. In forming his judgment he acts from the dictates of his own understanding, unbiassed by the opinions of his brother judges.
Sir M. Hale would never suffer his opinion in any case to be known till he was obliged to declare it judicially; and he concealed his opinion in great cases so carefully, that the rest of the judges in the same court could never perceive it. His reason was, because every judge ought to give sentence according to his own persuasion and conscience, and not to be swayed by any respect or deference to another man's opinion; and by his means it hath happened sometimes that when all the barons of the Exchequer had delivered their opinions, and agreed in their reasons and arguments, yet he coming to speak last, and differing in judgment from them, hath expressed himself with so much weight and solidity, that the barons have immediately retracted their votes and concurred with him.
(6) Etenim optima est lex, quse minimum relinquit arbitrio judicis: optimus judex, qui minimum sibi.—Justitia Universalis, Aph. 94, vol. ix. p. 94.
(i) Nec decreta exeant cum silentio; sed judices sententiae suae rationes adducant, idque palam, atque astante corona: ut quod ipsa potestate sit liberum, fama tamen et existimatione sit circumscriptum.—Justitia Universalis, Aph. 38, vol ix. p. 92.
(a) The duty of a judge is not only to do justice, but to satisfy the parties that, to the best of his ability, justice has been done. He may err in discovering what is just; but, in satisfying the parties of his anxiety to be just, he need never err. Cicero says of Brutus, "Etiam quos contra statuit aequos placentas que dimisit."
He was not satisfied barely to give his judgment in causes, but did
(*) See note (/i), next page.
(r) See note (r), next page.
kindness, and by encouragement:—to the jurors, by being a light to lead them to justice:—to the advocates, by hearing
especially in all intricate ones, give such an account of the reasons that prevailed with him, that the counsel did not only acquiesce in his authority, but were so convinced by his reasons, that I have heard many profess that he brought them often to change their opinions; so that his giving of judgment was really a learned lecture upon that point of law; and which was yet more, the parties themselves, though interest does too generally corrupt the judgment, were generally satisfied with the justice of his decisions, even if they were made against them.—Hale's Life, p. 91.
(6) If any shall browbeat a pregnant witness, on purpose to make his proof miscarry, he checketh them, and helps the witness that labours in his delivery. On the other side he nips these lawyers who, under a pretence of kindness to lend a witness some words, give him new matter, yea clean contrary to what he intended.—Fuller.
(c) He is patient and attentive in hearing the witnesses, though tedious. He may give a waking testimony who hath but a dreaming utterance; and many country people must be impertinent before they can be pertinent, and cannot give evidence about a hen, but first they must begin with it in the egg. All which our judge is contented to hearken to.—Fuller.
He meets not testimony half way, but stays till it come at him: he that proceeds on half evidence will not do quarter justice. Our judge will not go till he is lead.—Fuller.
Let not the judge meet the cause half way, nor give occasion to the party to say his counsel or proofs were not heard.
Patience is the lawyer's gift.—Lloyd's Life of Sir John Jeffrey, 223.
"Prudens qui patiens," was Lord Burleigh's saying, and Sir Edward Coke's motto. Lord Burleigh is said to have carried matters prudently and patiently as became so great a statesman.—Lloyd.
But nothing was more admirable in him than his patience: he did not affect the reputation of quickness and dispatch, by a hasty and captious hearing of counsel. He would bear with the meanest, and give every man his full scope, thinking it much better to lose time than patience. In summing up an evidence to a jury, he would always require the bar to interrupt him if he did mistake, and to put him in mind of it, if he did forget the least circumstance; some judges have been disturbed at this as a rudeness, which he always looked upon as a service and respect done to him.
Hale's Life, p. 177.
As his majesty was secured by his loyalty, so his subjects were by his patience, a virtue he carried with him to the bench, to attend each circumstance of an evidence, each allegation of a plea, each plea in a cause; hearing what was impertinent, and observing what was proper. His usual them patiently; (d) correcting their defects, not Buffering justice to be perverted by their ingenuity, and encouraging their merits:—to the inferior officers by rewarding the virtuous, skilful in precedents, wary in proceeding, and understanding in the business of the court; and discountenancing the vicious, sowers of suits, disturbers of jurisdiction, impeders, by tricks and shifts, of the plain and direct course of justice, and bringing it into oblique lines and labyrinths: and the poller and exacter of fees,(y") who justifies the common resemblance of the courts to the bush, whereunto while the sheep flies for defence in weather, he is sure to lose part of his fleece: —to himself, by counteracting the tendency of his situation to warp his character, and by proper use of times of recreation:—to his profession, by preserving the privileges of his office, and by improvement of the law:— and to society by advancing justice and good feeling, in the suppression of force and detection of fraud;(A) in
saying (as Serjeant Mandevil reports it), being, " We must have two souls, as two sieves: one for the bran, the other for the flour; the one for the gross of a discourse, the other for the quintessence."—Lloyd's Life of Fitzjames.
The errors of patience are on the one side slowness, on the other dispatch.
(rf) 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 quickness of conceit in cutting off evidence or counsel too short, or to prevent information by questions, though pertinent.
(_/.) His hands, and the hands of his hands (I mean those about him) must be clean; and uncorrupt from gifts, from meddling in titles, and from serving of turns, be they of great ones or small ones.
One of Sir M. Hale's rules is, "To charge my servants, 1st, not to interpose in any business whatsoever; 2ndly, not to take more than their known fees.
(k) Force the vice of strength: cunning the vice of weakness. 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. 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