Of Judicature: the Four Parts of a Judge's Duty

On capital cases. The sentence to know for any question about mercy:

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 person.

How to explain that last clause. Be severe about the conduct, because the sentence is a public example; be merciful about the human being in front of you. It is the same distinction the trial chapters of this paper keep running into, and it is worth setting beside Portia's mercy speech and beside the jury in Adam Bede who added no recommendation to mercy.

Head two: the advocates who plead

The governing sentence.

Patience and gravity of hearing, is an essential part of justice; and an overspeaking judge is no well-tuned cymbal.

What an overspeaking judge does wrong. Bacon lists it: it is no grace to a judge to find out for himself what he might have heard in due time from the bar; to show quickness of wit by cutting off evidence or counsel too short; or to forestall information by asking questions, even pertinent ones.

The second set of four, and this is the one candidates confuse. The parts of a judge in hearing are four:

1. To direct the evidence.
2. To moderate length, repetition, or impertinency of speech.
3. To recapitulate, select, and collate the material points of what has been said.
4. To give the rule or sentence.

"Whatsoever is above these is too much", and Bacon says the excess comes from one of four causes: from glory and a willingness to speak, from impatience to hear, from shortness of memory, or from want of a staid and equal attention.

On advocates who overbear the court. It is strange, he says, that the boldness of advocates should prevail with judges, who should imitate God, "who represseth the presumptuous, and giveth grace to the modest". And it is stranger still that judges should have noted favourites among counsel, which cannot but cause multiplication of fees and suspicion of by-ways.

On praising and rebuking counsel. The judge owes an advocate some commendation where a cause is well handled and fairly pleaded, "especially towards the side which obtaineth not", because it preserves the client's confidence in his counsel and lowers his own opinion of his case. He also owes the public a civil reprehension of advocates where there is cunning counsel, gross neglect, slight information, indiscreet pressing or an overbold defence.

On the moment of decision. Counsel must not "chop with the judge", that is, bandy words with him, nor try to reopen the case after sentence has been declared; and on the other side the judge must not meet the cause half way, nor give a party occasion to say that his counsel or his proofs were not heard.

Head three: the clerks and ministers of justice

The principle. "The place of justice is an hallowed place", and not only the bench but the floor and the precincts of it ought to be preserved without scandal and corruption. Justice cannot yield her fruit, he says, among "the briars and brambles of catching and polling clerks, and ministers." To poll means to fleece.

The four bad instruments. This is a list an examiner can ask for by itself.

The image for the last one. It "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." A person who runs to a court for shelter leaves some of himself behind in the branches. That is the most quotable sentence in this part of the essay.

And the good officer. Bacon balances it: "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."

Head four: the sovereign and the State

The governing maxim. "Salus populi suprema lex", the safety of the people is the supreme law, which Bacon attributes to the conclusion of the Roman Twelve Tables. Laws that are not directed to that end, he says, are "but things captious, and oracles not well inspired."

Consultation, both ways. It is a happy thing in a State when kings and states often consult with judges, and when judges often consult with the king and state: the first where a matter of law arises in business of state, the second where a consideration of state arises in a matter of law.

Where the line falls. Many things brought to judgment may be meum and tuum, mine and thine, that is, an ordinary private dispute, while the reason and consequence of them may touch a point of state. By matter of state Bacon means not only the parts of sovereignty but whatever introduces a great alteration or a dangerous precedent, or manifestly concerns a great portion of the people.

That just laws and policy are not enemies. "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."

The most famous image in this part.

let judges also remember, that Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne.

What it means, and the argument about it. A judge should be a lion, that is, strong, and a lion under the throne, that is, not setting himself against the sovereign power. Bacon adds that judges should be "circumspect that they do not check or oppose any points of sovereignty."

This is the part of the essay a modern law student should argue with. Judicial independence, as it is now understood, requires exactly the capacity to check the executive that Bacon warns against. A good answer states Bacon's position, notes that he wrote under a king who claimed to rule by divine right, and observes that his own contemporary Sir Edward Coke fell out with James I precisely by refusing to be a lion under the throne. An answer that simply praises the image has not thought about it.

And the closing balance. Bacon does not leave judges powerless. He tells them not to be ignorant of their own right, since there is left to them "as a principal part of their office, a wise use and application of laws", and he ends on a line of Paul's: we know that the law is good, if a man use it lawfully.

A worked answer

Question. "Set out the four parts of a judge's duty according to Bacon."

A model answer. Bacon divides the office of a judge by the people to whom the duty is owed. First, to the parties who sue: his principal duty is to suppress force and fraud, to spew out contentious suits, to make inequality equal where one side comes with power and great counsel, to avoid hard constructions and strained inferences because there is no worse torture than the torture of laws, to see that penal laws meant for terror are not turned into rigour, and in causes of life and death to cast a severe eye upon the example but a merciful eye upon the person. Second, to the advocates who plead: patience and gravity of hearing are an essential part of justice, and an overspeaking judge is no well-tuned cymbal; his parts in hearing are four, to direct the evidence, to moderate length and repetition, to recapitulate and collate the material points, and to give the rule or sentence, and whatever is above these is too much. Third, to the clerks and ministers below him: the place of justice is a hallowed place, and he must keep it free of the four bad instruments, the sowers of suits, those who engage courts in quarrels of jurisdiction, the officers full of sinister tricks, and the exacters of fees, while valuing the ancient clerk who is an excellent finger of a court. Fourth, to the sovereign and State above him: the safety of the people is the supreme law, kings and judges should consult one another, and judges should be lions, but lions under the throne.

The mark of a first-class answer. It gives the heads in Bacon's own order and quotes one phrase under each, and it does not confuse the four heads with the four parts of a judge in hearing, which belong under the second head only.

Quick revision

Head one, the parties: injustice makes judgment bitter and delay makes it sour; suppress force and fraud; spew out contentious suits; make inequality equal; no hard constructions, for there is no worse torture than the torture of laws; penal laws meant for terror not turned into rigour; in life and death, a severe eye on the example and a merciful eye on the person.

Head two, the advocates: patience and gravity of hearing; an overspeaking judge is no well-tuned cymbal; the four parts in hearing are to direct the evidence, moderate speech, recapitulate and collate, and give sentence; no noted favourites; commend the losing counsel; counsel must not chop with the judge.

Head three, the officers: the place of justice is a hallowed place; the four bad instruments; the sheep that loses part of its fleece in the bush; the ancient clerk as an excellent finger of a court.

Head four, the State: salus populi suprema lex; mutual consultation; meum and tuum against matter of state; just laws and true policy like spirits and sinews; lions, but lions under the throne; and a wise use and application of laws is still the judge's own.

Test yourself

1. Distinguish Bacon's two sets of four. The four HEADS of duty are owed to the parties, the advocates, the clerks and ministers, and the sovereign or State. The four PARTS of a judge in hearing, which fall under the second head only, are to direct the evidence, to moderate length, repetition or impertinency of speech, to recapitulate, select and collate the material points, and to give the rule or sentence.

2. What does Bacon mean by making inequality equal? That where one party comes to court with power, money, cunning advantages and great counsel, the judge must correct the imbalance, as God prepares his way by raising valleys and taking down hills, so that judgment can be planted on even ground.

3. Explain "there is no worse torture, than the torture of laws". It follows his warning against hard constructions and strained inferences. To torture the law is to twist its words or force an inference until it yields the answer one wants, and Bacon says this is the worst form of torture a court can practise.

4. List the four bad instruments and give the image Bacon attaches to the fourth. Sowers of suits; those who embroil courts in quarrels of jurisdiction, who are parasites of the court rather than friends of it; officers full of sinister tricks who bend straight proceedings into labyrinths; and the exacter of fees. Of the last, Bacon says courts are like the bush to which a sheep runs for shelter in bad weather and is sure to lose part of its fleece.

5. What does "lions, but yet lions under the throne" mean, and what can be said against it? That judges should be strong but should not set themselves against the sovereign power or check any point of sovereignty. Against it, a modern student should say that judicial independence now requires precisely that capacity to check the executive, that Bacon wrote under a king claiming divine right, and that his contemporary Sir Edward Coke fell from office for refusing to be such a lion.