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.
Thou shalt no wrest judgement, thou shalt not respect persons, neither take a gift; for a gift doth blind the eyes of the wise, and and pervert the words of the righteous.
IT were to be wished, that the dictates of reason and religion, that the rules of justice and equity, that the laws of Christianity and piety, were so generally entertained, and cordially imbraced, that the voice of oppression and injustice, of deceit and wickedness, of fraud and violence, were not so much as heard amongst us; then would primitive innocency, and neglected justice (that divine Astraea that hath left the earth so long) return, and once more take place amongst us; then would the world become [Page 2] as a garden of Eden, no forbidden fruit of what belongs not to us, would then be touched, nor would there be any serpent there, to envy at, or tempt us from our happiness: then might every one with no less satiety than content, eat the fruit of his own vine, and sit under his own fig-tree; then would each man's possession by a secure and peaceable enjoyment thereof be doubly blessed unto him. The Wolf might then (as the Prophet Isaiah speaks) dwell with the Lamb, Ch. 11. & the Leopard lie down with the Kid, and the Calf, and the young Lion, and the fatling together, they should not hurt, nor destroy in all God's holy mountain. But whilst in stead of this divine and evangelical, this calm and serene, meek and innocent temper, men (if so they may be called that cast off all reason and religion, and abandon natural justice and equity) become brutish and savage, inhumane and ravenous, the garden of Eden is turned into a wilderness, and men become serpents to each other; or as the same Prophet expresses it, Ch. 34. the wild beasts of the desert meet with the wild beasts of the island, [...], Ignat, Epist. ad Antioch. si sit Ignat. satyres and vultures, tygers and dragons, viz. men of cruelty and barbarity, of brutish and unnatural dispositions become possessours of it.
And now man that is by nature [...], (as the Philosopher terms him) a gentle and sociable creature, made for converse & society, becomes degenerate, and overthrows those very foundations [Page 3] that should uphold it: they that should be helps and supporters, become supplanters and underminers of each other: instead of Homo homini Deus, [...] Ignat. Epist. ad Ephesios. it is Homo homini Lupus, and men live together, as though they were made to bite and devour, to ruine and destroy one another. And as being impatient of all restraint and controule, the excentrick and irregular passions of such degenerate minds become so furious and headstrong, as that which was intended for their restraint, does but irritate, and stir them up, and make them oftentimes the more outragious, like the troubled sea (to which such like men are by the Prophet compared) they are continnally casting forth mire and dirt; and as the waves thereof contemne all bounds, and in anger foam, and clash, and break themselves against the rocks that keep them in, so these mens restless and raging passions overflow all banks that should bound them, —magno (que) irarum fluctuat aestu. Virg. and in contempt spit defiance in the face of laws, and lawgivers. And now when mens passions become as wild and boundless, as they are otherwise lawless and unaccountable, 'tis time for the law to take courage to it self, and double its strength to chastise the boldness of such offenders, 'tis but equal that that against which they offend, should become the instrument of their punishment. Thus by reason of offenders, laws and the execution of them become as necessary, as they would otherwise be useless, and the Magistrates power to preserve every one in his right, and defend him from the violence of another, is as requisite as the prostitution [Page 4] of laws to every extravagant and unbridled humour would be intolerably pernicious and mischievous; to prevent the sad consequences, and insufferable enormities whereof, Judges and overseers of the law are constituted and appointed for the safety and security of those that live under its protection; that there may be a due and right administration of justice, and that the people may be judged with just judgement, without wresting, or distoring that which is the common rule of every one's right; without favouring or respecting any persons, upon whom the law looks with an equal and impartial eye; without selling, or taking gifts for that which the law freely dispenses and imparts to all. This is the end and design of the law; this is the duty and employment of Judges and Officers of Justice; this is the work and business of this time; and this accordingly is the injunction and command of Moses here in his charge to, or concerning the Judges. Judges and Officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee, and they shall judge the people with just judgement, &c.
- 1. Judicum institutio, the Judge's authority, or constitution, Judges and Officers shalt thou make thee.
- 2. Judicii executio, the Judge's Office and employment, viz. the execution of Justice, they shall judge the people.
-
[Page 5] 3.
Judicandi modus, the manner how that execution of Justice is to be performed,
- 1. Positively, with just judgement.
- 2. Negatively
- 1. Without perverting of equity, Thou shalt not wrest judgement.
- 2. Without partiality, Thou shalt not respect persons.
- 3. Without bribery, Thou shalt not take a gift;
And that enforced by a twofold reason,
First, because it blinds the eyes of the wise;
And secondly, as a consequent of that, because it perverts the words (or, as some read it the matters) of the righteous.
The Charge consists of many parts, each of which might be directed to the several persons concerned in the administration of Justice.
To the Head and Chief of which, that sits in Moses's chair to hear and determine, judge and pass sentence, to him that gives a charge to others, in the first place is a Charge given, Thou shalt judge the people with just judgement.
To him that prepares and makes ready the cause for the Judge's hearing, the Advocate or Pleader to whose care and trust the state and suit of the Client is committed, when he speaks in a cause, there's a caveat for him, Thou shalt not wrest judgement.
To him that's returned to serve as a sworn man or Juror, in matters of grand or petty inquest; or that is in any office of trust, or place of service in, or about the Courts, so as it may come within the [Page 6] verge of his power to do a suitor a courtesie, or displeasure, is the next injunction, Thou shalt not respect persons.
Lastly, to him that's bound over to prosecute for the King in a criminal cause; or that offers himself as a voluntary informer upon some penal statute, or is brought in by process to give publick testimony upon Oath; or comes of good or ill will to speak a good word for, or a contrary one against any person, is the last prohibition, Take not a gift; when he opens his mouth to give witness, he must not open his hand to receive a gift, for a gift doth pervert the words of the righteous.
But because the several corruptions of justice do often unite in the same persons, and as the Philosopher observes of moral vertues are concatenated and linked together in the same subject, that the same men Proteus-like put on several shapes, that they rather endeavour an engrossing of all abuses, than a monopoly of any particular one to themselves, and that by such a complication of them, they (as Saint James speaks in another case) in many things offend all, I shall not be so injurious to the words, as to imprison them in such narrow limits, and confine that to some sort of persons, A prima hujus versûs dictione quintam hujus libri sectionem incipiunt Hebraei, quam vocant [...] Vatab. in l. to which mens general practises have unhappily given a greater extent and latitude.
The first thing that presents it self to our view, is the Judge's authority or constitution; Judges and Officers shalt thou make thee. Moses in the precedent verses had given charge concerning religious [Page 7] matters, he now descends to civil affairs; as before he had taken care for the establishment of piety towards God, so here he endeavours the promotion of justice towards men: the affairs both of Church and State fall under the Magistrate's care and inspection, he is custos utriusque tabulae; both the Tables of the Law were given Moses to be kept, and though he once in anger broke them, yet now in zeal he takes care for restoring and preserving of them. What he here gives in charge & command to others, was the discharging of that which himself undertook, like Gideon to his followers, or Caesar to his souldiers, he bids them do no more, than what he had done before them. At first indeed he judged the people by himself, but their contentions growing as numerous as their persons, and their strifes as endless, as they were unreasonable, that soon became a burden too heavy for his shoulders alone, ch. 1. 12. How can I my self alone bear your cumbrance, and your burden, and your strife? and therefore following Jethro his father in law's advice, Exod. 1 [...]. 25. he chooses out among the people able men to perform that task with him, that they might judge of the smaller matters, whilst onely the harder causes were brought unto him; and what he then commanded, he again at this second promulgation of the law charges upon them, thereby perpetuating his care to successive generations, whom he appoints to make Judges and Officers over them.
By these two names, Judges and Officers, some think the same persons to be meant, so à Lapide, [Page 8] Judices & Magistratus constitues, i. e. praefectos, pula viros sapientes qui quasi Magistri & Magistratus praesint juri dicendo, iidem ergò sunt Judices & Magistratus. The words indeed [...] & [...] here used, are often placed together, and so by some taken for synonymous terms; but Pagnin gives a caution against this, Cave (says he) nè cum plerisque interpretum, utramque vocem confundas; and for the distinction of them, makes mention of several sorts of Judges or Magistrates among the Jews.
First, [...] Seniours or Elders.
Secondly, [...] Judges.
Thirdly, [...] Exactours (who exacted what the law required.
Fourthly, [...] Prefects or Masters, being the same which is here rendred Officers, and is distinguished from Judges, because Judex judicabat, Praefectus exequebatur quod judicatum erat, Item Executores Graecis [...] ▪ saepè [...] coactores. Latè se diffundebat eorum munus, ut non tantum ad causas injudicio decisas spectaret, sed magistratûs nomine alia populo intimarent, Jos. 1. 10, 11. v. Crit. M. P. the Judge passes sentence or determines, the Officer puts in execution what is so sentenced or determined. The Septuagint renders it, [...], Judges and Magistrates shalt thou make thee, with which agrees the Chaldee paraphrase, and vulgar latine, but according to the Syriac version it is, Judges and Scribes, Wolphius renders it Apparitores, Junius and Tremellius, Moderatores, some translate it Decanos, others Duces, Officiales, Ministros Magistratuum, or Castigatores; Apparitors, Moderators, Officials, Captains, Leaders, Virgers, or Correctours, according to the [Page 9] last of which Paulus Fagius thus distinguishes them, [...] sunt Judices, qui determinant causum, sive judicium, [...] sunt qui dominantur populo, & exequuntur mandata eorum, scilicet Judicum, cum virgâ & flagello; their office being much of the same nature with that of the Lictors among the Romans, and so rendred castigatores, those that chastise or correct the people, agreeable with the third sort of Magistrates among the Jews called [...] Exactours, to which happily that of the Prophet Isaiah alludes, Isa. 60. 17. I will make thine Officers peace, and thine Exactours righteousness.
Or by Judges and Officers may be distinguished the Supreme Judge from the rest, either in the great Councel or Sanhedrim of the Jews consisting of 70 Elders, or 71, Godwin l. 3. c. 8. Edit. Lat. or sometimes 72 if the High Priest were there, in which he that sat chief, in the place of Moses was called [...] Praefectus, and [...] Excellens; or else in the less Councel consisting of 23 which were in the smaller cities, except those that had not 120 men in them, and then onely three Judges were placed there. Or these Officers might be those that attended at those Councels to be taught and instructed in their proceedings, (called, [...] scholars of the wisemen) like young students at the law that come to hear the Judge's sentence in doubtfull and controverted cases, or as St. Paul that sat at the feet of Gamaliel to be instructed in the law; So Grotius upon the words, Ad pedes sedebant discipuli, ut ipso usu jus addiscerent, & in morientium aut [Page 10] decrepitorum locum surrogarentur, that so those who sat at their feet to learn the law, might be so skilfull therein that they might at length be made Heads or Governours.
Or perhaps these Officers were onely those that waited on those Courts, as preco's or cryers, scribes or notaries; Ad [...]rant (as the fore-cited Authour adds) duo scribae, praecones totidem, &c. of which scribes or notaries, one stood at the right hand to write the sentence of absolution, and what was spoken in defence of the party, and the other at the left hand to write the sentence of condemnation, and the objections made against him; to which, some think, Mat. 25. 33. Christ speaking of the last Judgement, had reference, he shall set the sheep on the right hand, but the goats on the left.
Or lastly, these Officers most probably were those that were in manner of Sheriffs, who were present to execute what the Judge determined, whence they carried up and down their staves and whips, as the Consuls at Rome had their rods and axes carried before them, for the more ready execution of justice. To this seems to allude that of Saint Luke, Ch. 12. 58. When thou goest with thine adversary to the Magistrate, as thou art in the way, give diligence that thou mayest be delivered from him, lest he hale thee to the Judge, and the Judge deliver thee to the Officer.
But however these two may differ as to their kind and dignity, their subordination or dependance upon each other, yet they agree as to their common [Page 11] aim and end, their design and institution, in promoting justice, and executing Judgement. These are the powers which are ordained of God, and are (as the Apostle speaks) his Ministers continually attending upon this very thing. Rom. 13. 6. The Magistrate's power hath the stamp of divine authority impressed on it, (and that more firmly, than Phidias's image was on Minerva's statue) and therefore they that resist this power, resist the Ordinance of God; and of such there are a generation in the world, impeaching Magistracy with the titles of tyranny and usurpation, and branding all justice with the names of cruelty and oppression; such there were in the Apostle's time: 2 Ep. 2. 10. Saint Peter makes mention of some, who despise government, and are not afraid to speak evil of dignities; Jude 8. and Saint Jude of such whom he calls [...], filthy dreamers, who despise dominion. Such were the Manichees of old, who conceived that Magistracy was a constitution of their bad god. Of the like stamp were the Weigelians and Swenkfeldians of later years; and such 'tis to be feared, if we may guess by their practises, are too many amongst us at this day, whose principles (durst they so far vent themselves) would animate them not onely to pluck the sword of the Spirit, (the word of God) out of the mouthes of Ministers, but the sword of Justice too (had it not too sharp an edge for them) out of the hand of the Magistrate, that so their licentiousness might escape the punishment of the latter, as well as the reproof of the former. Thus it was with those [Page 12] famous (or rather infamous) leading rebels, Corah, Dathan & Abiram, who set themselves up, not onely against Aaron the Priest, but against Moses the Magistrate, and thought both of them took too much upon them, to lift themselves above the congregation of the Lord, and therefore they both envied Aaron his Priesthood, and Moses his Authority, they would neither hear Aaron's bells, nor kiss Moses's rod, neither give ear to the one nor obedience to the other. But let these spurn at this authority in their pride, or reject it in their folly, yet it is the power of God, and the ordinance of God. Governours (says the Apostle) are sent by God; Pe [...]. 2. 14. this is their commission; By me Kings reign, and Princes decree justice: By me Princes rule, and Nobles, even all the Judges of the earth. Prov. 8. 15. The Magistrate is, [...], Rom. 13. 4. the Minister of God (says Saint Paul) a revenger to execute wrath upon him that doeth evil.
It is the divine authority which makes that justice in the Magistrate, which would be cruelty and murder in another, and who shall tax his obedience to that authority to be criminal or faulty? The divine providence hath not intrusted the Sword of Justice in every private man's hand; if it were so placed, how soon would each man, (like Cain) upon any distast sheath it in his Brothers bowels, and make it drunk with the blood of revenge? If every one might be the righter of himself, and revenger of his own wrongs, the world would soon become an Aceldama, a field of blood; [Page 13] and therefore God, who hath prohibited all private Christians (who are naturally partial in their own causes) to avenge themselves, hath authorized the publick Magistrate with his Commission to be the avenger of wrath, or (as Saint Peter speaks) to be for the punishment of evil doers, and for the praise of them that do well: for this end are Judges and Officers constituted and appointed: Judges and Officers shalt thou make thee, and they shall judge the people; which is the second thing propounded.
2. Judicii executio, the execution of Judgement. The original word [...] to Judge, signifies both jus dicere and exequi, to determine what's right, and to execute what's so determined; the first is a decree of Judgement, the second is the execution of that decree; the first is an act of skill or understanding, the second an act of courage and resolution; both which are requisite in him that judges: the act of judging supposes ability and skill in him that undertakes it; hence Judges were anciently called Cognitores, Epise. nup. Linc. and cognoscere in approved Authours is as much as to do the office of a Judge, as Seneca, si judicas cognosce; 'tis a necessary qualification to be able to know the truth, Med. 2. 2. Ignoranti [...]. judicis saepè fit calamitas innocemis. that so in difficult and intricate cases covered with darkness and obscurity, perplexed with windings and turnings, overlaid with cunning and crafty conveyances, they may extricate and find out that which would otherwise be lost in a maze and labyrinth, set free and deliver that truth which otherwise [Page 14] would be shackled and imprisoned; necessary to which is the examination of witnesses, and hearing evidences, and considering allegations, and weighing circumstances, and putting in cross interrogatories, and making queries, and raising doubts to overweigh and out-balance the craft and subtilty of those who of purpose involve the truth of things with falshoods and deceits; In animis hominum multae latebrae. all which as they are necessary to a right determination, so they are onely subservient to a due execution; the other acts are lame and imperfect without this to compleat and finish them. This is that which adds life and strength to the laws, without which, notwithstanding all the other formalities, they would die and languish: by execution the Judge breaths life into them, and is therefore called by the Philosopher [...], and by some of the Ancients [...], the living law; Execution of laws is as necessary as the promulgation, or constitution of them; God hath put a sword into the Magistrate's hand for this end, Rom. 13. 4. and he expects he should not bear it in vain; not bear it onely for honour, or safety to himself, but to strike fear and terrour into offendours. Rulers are not a terrour to good works, but for evil; v. 3. not to bear it as a badge and ensigne of authority, but to draw it out as an instrument of justice and severity. Where there wants execution, there wants not transgression, impunity encourages to all iniquity, Maxima peccandi illecebra est impunitatis spes. not to light slips onely, but to gross enormities, so that according to the Rabinical proverb, [...] transgressours need a [Page 15] Session-house, the laws suffice not to keep men in due bounds, In severit [...] judicis, sita e [...]i legum authoritas the Judge must necessarily exert his power to execute the laws; and he that does not this, at the same time both robs the law of that defence which should secure it, and himself of that innocency which should protect him; for he that punishes not those faults which are in offendours, thereby transferrs them upon himself; the guilt is devolved upon his head, Qui par [...] mali [...] laedit bonos. Parcendo saevit. who by punishing it in some should have prevented it in others. To which purpose is that story of Lewis King of France, who being at his devotions, was solicited by a Courtier to pardon a malefactour, that was found guilty of death, the King without any more ado, made a sign with his head, that he granted his suit; but presently after, chancing to read a verse of the 106. Psalm, containing these words, Blessed are they that keep judgement, and he that doth righteousness at all times; v. 3. he bid call him again to whom he had granted the pardon, and disanulled it with this memorable Apophthegm, viz. The Prince that can punish a fault, and doth not punish it, is no less guilty before God, Camerar. p. 398. than the offender himself. According to which was the wise answer of a certain fool or Jester made to a King of the same land, who found fault with a Courtier that had begged pardon of him, saying that this was the third murder he had committed, nay King, quoth the Jester, this suiter hath committed but one of the murders, it is thou that art guilty of the second and third, for if thou hadst [Page 16] not granted him pardon for the first, Camer. p. 400. he had not lived to have done any more. It was his first pardon which promised him so much security, as encouraged him to commit the like enormity. Thus according to that principlein moral policy, an ill executour of the laws is worse in a state, than a great transgressour of them. It is the non-execution of laws that is the cause of so frequent breach of them, for those, the neglects whereof are the severeliest punished, are the least violated, else why are murders and robberies (though too oft, yet) more rarely committed, than those common sins of drunkenness, whoredom and the like, but that the laws are put in execution against the former, but scarce, or not at all against the latter, such a connivence at misdemeanours makes offendours, and (as the Royal Psalmist speaks) frames mischief by a law; this is rather to stifle and suppress the law, than to execute it, and to make it partial in its proceedings, than to judge according to just judgement, which is the third thing proposed.
3. Judicandi modus the manner of its execution, and that
1. Positively, [...] judicio justitiae, with the judgement of justice, summâ aequitate (as Vatablus) or as the Syriac version may be rendred, that he may teach the people the judgement of equity. That is just or equitable, which is regulated according to the law, proportioning punishments to the nature of the offence, neither giving more nor less than that deserves; to punish less, gives too much [Page 17] encouragement to others to offend, to punish more, gives too great cause of complaint of injustice to the offendour, for innocency it self suffers so far as any is punished beyond the demerits of the offence. The Romans had their fasces or bundle of rods with an axe in the midst to signifie the equity of the Magistrates in punishing some onely with a rod, others with an axe, the one for petty, the other for capital crimes; and the Poet in the Greek Epigram taught the silver axe of justice carried before the said Roman Magistrates to proclaim,
If thou be an offender, I am an axe to punish thee; but if innocent, I am onely silver not to affright thee.
When judgement is justly executed, there is no fear of punishment to the innocent, nor flattering hopes of escaping justice to the delinquent; when Judgement is thus laid to the line, and righteousness to the plummet, when every fact is laid to the rule of the law, and sentenced according to its rectitude, or obliquity to it, when every action is weighed in the balance of justice, and receives sentence according as it is found wanting, then the people are judged with just Judgement. Justitia jus suum cuique tribuit.
[Page 18] This is that, which is both the peoples safety, and the laws security, it is that which both conveys and entails a blessing upon a State or Nation; it is both columna & corona reipublicae, a prop to make it firm in it self, and a crown to render it glorious in the eyes of others; this is that which (as the Psalmist speaks) when the foundations of the earth are out of course, upholds the pillars of it; it is as the cement in a building to unite and hold together the several parts of it. Jus & aequitas (as the Oratour phrases it) sunt vincula civitatum: it is in the body politick, as joynts and ligaments, as nerves and sinews in the body natural, by this is its strength derived and preserved, for by righteousness (according to that of the wise man) is a nation exalted, and by judgement is the Throne established. Justice and Judgement are such inseparable adjuncts of the Throne and Nations happiness, Remotâ justitiâ, quid sunt regu [...], nisi magna la [...]oci [...]ia. that they who subvert and undermine the one, do thereby necessarily destroy and raze the very basis and foundation of the other, and there can be no greater enemies to a King or Kingdom, than those that by thus doing set themselves against both, nor scarce can there be any sadder symptoms of a declining and decaying nation, than when justice is thus obstructed, and Judgement is turned backward. No wonder therefore that Moses the King in Jesurun, strengthens his command concerning Judgement, with a threefold caution, that like a threefold cord it might not easily be broken, which is the Negative part of the injunction, Thou shalt not wrest [Page 19] Judgement, nor respect persons, nor take a gift. All which prohibitions were so necessary to be observed in Judgement, that, Rabbi de Cozi. as Simeon de Muis notes from some of the Rabbins, when Solomon ascended the several steps of his Throne (mentionned, 1 Kings 10. 19.) there was a praeco or herald appointed to cry when he entred upon the first step [...] Thou shalt not wrest Judgement; when he ascended upon the second: [...] Thou shalt not respect persons; when he ascended upon the third [...] Thou shalt not take a gift.
The first prohibition is,
1. Thou shalt not wrest Judgement. The Septuagint renders it, [...] they shall not decline Judgement; so the vulgar Latine, nec in alteram partem declinent, [...] (as the Chaldee paraphrase) thou shalt not pervert, or (according to the Syriac) thou shalt not bend Judgement, nec prece, nec precio, in loc. as Lyra. Wresting of Judgement is here immediately opposed to just judgement, which seeing it is that which proceeds according to the standard of justice, viz. the law, which is the rule of right and wrong, when that rule is distorted, then is Judgement wrested; And to do this, as it is contrary to the nature of the law, so to the office of those, to whose protection the law is committed. Judices, (as one descants on the word) are juris indices, they must jus dicere, as their name signifies, and jus dare too, as their office imports. The Judge is the laws interpreter, he [Page 20] must not make it speak, but what it means, to do otherwise is to make it act a part of Jesuitism, to declare one thing, and by a mental reservation to understand another. Jus wrested is turned into vis, the letters transposed, and justice perverted; the former of which is not so obvicus, as the latter is pernicious, for this does not onely enervate and weaken the law, but thwarts and crosses the very end and design of it; it makes it patronize that which it chiefly opposes and contradicts, and under a pretence of justice, to do the greater injustice more plausibly and securely. This was one of those great evils which Solomon saw under the sun, that in the place of judgement, Eccl. 3. 16. wickedness was there, and in the place of righteousness that iniquity was there; This is so much the greater iniquity, by how much it shrowds it self more closely under the covert and pretext of equity: simulata aequitas, duplex iniquitas. This is to make the sword of Justice turn its edge, and do execution upon those whom it should protect and defend; it is to make the law instead of being an hedge of defence, become as so many thorns and briars to rend those whom it should preserve; it is to convert a medicine into poyson, to turn the rod into a serpent, to make that an instrument of cruelty, which is the rule of equity, and is so much the more intollerable, by how much it cuts off all the means and methods of redress.
Scepters born by Kings, and the Maces of Magistrates are all straight emblems, of that justice [Page 21] which is held forth by them; [...] the Scepter carrieth a kind of instruction with it, the straightness thereof should be a memento to shun crooked and perverted judgement: he that wrests the law, crooks the Kings Scepter, and falsifies that which more lively than his coin, bears his Royal impress on it; to do thus is to make the Kings laws (like the Pope's Canons) plumbeas & cereas (as one speaks) waxen and leaden laws, to bend and bow this way or that, and (by perverting them besides or contrary to their genuine sence) to make them become guilty of the same soloecism with that of the Canonist, Statuimus, id est, abrogamus, we command this, that is, we do the contrary.
And as Judgement is wrested by perverting the law, so likewise by perverting those actions of which the law takes cognizance; and this is too often done by Jurours who give in a verdict besides or contrary to the nature of the fact, or matter that's brought before them, as though a verdict had its name given by an Antiphrasis, like Diogenes his man, manes à manendo, because he would oft be running away; so a verdict from verum dicere, because they make it speak the contrary.
This is done too by those, whose profession they think obliges, or at least allows them to make the best they can of their Clients, and the worst of their adversaries cause, against whom upon some plausible pretence they usually run descant at [Page 22] pleasure, perverting what is said or done, either to make their matters ill when they are not, or else aggravating them to make them seem worse than indeed they are; and thus nimium altercando, they are like that Rhetorician that could mirificè res exiguas verbis amplificare, wonderfully amplifie small matters with great words, for which Agesilaus thought he deserved no more commendation, than the shoemaker that made great shoes for little feet: and though these may count it the glory of their profession (as Protagoras, and the old Greek Sophisters were wont to do) by dexterity of wit, and volubility of tongue [...], to make the worse side the better, yet a good Oratour as well as good man (which Cicero joyns together, vir bonus dicendi peritus) should make use of both the one and the other, to decry injustice and defend equity, to protect innocency and crush oppression, to detect fraud and advance truth, De Consid. 1. 4. c. 2. to succour the distressed and help them to right that suffer wrong. They that make use of their rhetorick or eloquence, The famous Oratour Pericles (when Advocate in Greece) from the principles of nature, ever before he pleaded a cause, entreated his gods that not a wo [...]d should fall from him besides his cause. reasons or arguments for or against any person should not be as the Roman Advocates (of whom St. Bern. complains, Hi sunt qui docuerunt linguam suam grandia loqui, &c. these are they that have taught their tongues to speak lies, nimble-tongued against righteousness, skilfull to defend falshood, wise to do evil, eloquent to oppose the truth) but rather be as St. Paul, able to do nothing against, but for the truth.
The second prohibition is,
2. Thou shalt not respect persons; though a civil respect of persons be elsewhere commanded, yet a judicial one is here forbidden; though respect of persons is due in offices of humanity, and overtures of love, yet in the Gate, in the seat of Judicature, [...] Thou shalt not acknowledge; or (as the Syriac version) thou shalt not honour faces. The Septuagint changes the person, [...], they shall not know a face, or person. The Greeks usually render it by [...], which word non personam significat sed personae attributa, & circumstantias, in Eph. 6. 9. it is properly verbum forense, & de judicibus propriè praedicatur, as Zanchy. Respecting persons is a sin incident to those who are conversant about matters of judicature and transactions of law, and ('tis to be feared) is as frequently practised, as 'tis seldom rightly understood; When Jurours consider not so much the cause, as the persons betwixt whom it is depending, when respect to the latter sways more than equity in the former; when the verdict speaks the language of their affection, not of their judgement, and is the result of their malice or prejudice, not of their knowledge or Conscience. When the authority of the Foreman (whom the rest usually follow as sheep) or the awe of some great person, vir gregis. qua itur, non quâ eundum. or interest of some relation, or suggestion from some friend, or consciousness of self-guilt, or hopes of favour in the like case, prevails with any of them more than the justness and merits of the cause it self.
[Page 24] When witnesses swear home in one man's cause, but nicely or not at all in another, because they fear some men's persons, or bear ill will to, and maligne others, making their love or hatred a rule of their evidence, rather then the obligation of their oaths, or sense of duty.
When an Advocate or pleader argues the cause of the indigent faintly and coldly, but that of the rich with a great deal of zeal and ardour; when the one is narrowly and strictly examined, the other sleightly and perfunctorily passed over: when all dilatory courses are used to protract and delay the one, but all means made use of, to expedite and dispatch the other.
When by him that passes sentence, a cause is weighed in the balance not of equity, but of favour and affection; when the person commends the cause, not the cause the person, like that of Caesar, Causa Cassii melior, sed Bruto nil denegare possum; such a mans cause is the better, but the other is more my friend, such a case is equitable, but another's person is more considerable; so that the respect and reverence which is due to right and equity, is given to the rich and mighty, and laws hereby (as Zeleucus, or Anacharsis complained of old) become like cobwebs, wherein the smaller flies are caught, but great ones are not ensnared by them; petty thieves wear chains of iron, but grand robbers chains of gold; manacles and halters lay hold on less transgressours, whilst the great ones break these bonds asunder; small offenders receive [Page 25] severe correction, whilst the great ones escape unpunished. To prevent which partiality, and respect of persons, the Areopagites, the Athenian Judges, had their judicatures in some dark rooms, and passed their sentence in the night, that they might not be byassed by prejudice or affection to those upon whom they passed judgement, but that sentence might be given equally upon all, poor or rich, small or great. In pursuance of which impartiality, Torquatus a Roman, and Zaleucus a Grecian, spared not to sentence even their own sons. Favour must not be shewed by any, onely [...], as the Heathen speaks, onely to the altar, so far as Religion and piety will admit; and by the Magistrate [...], onely to the Judgement seat, so far as Justice (which confines affection) will give leave. Exuat (says the Oratour) personam Judicis, qui induit amici, which likewise was the apophthegme of Pericles an eminent Judge and Chieftain in Athens, that when he put on him the person of a Judge, he put off the person of a friend: the affection of a friend suits not the function of a Judge; hence was that renowned act of Brutus, who condemned his two sons to be executed for conspiring with Tarquin's Embassadours against the Common wealth, sacrificing their lives for the preservation of that justice which was more dear unto him, so exactly was he observant of what's here prohibited, not to respect persons.
The last prohibition is,
3. Thou shalt not take a gift. Omnia venalia, the [Page 26] complaint of old, that all things are set to sale, grows yet but slowly out of date, being still too much verified amongst us, whilst scarce any office or place is to be had without Judas his question, what will ye give? We have not onely of old had the Pope's ridiculous merchandise, sale of pardons; and of late the Poet's venales manus, sale hands, or mercenary souldiers; and still sale Churches, by those who are rather the Plagues, than Patrons thereof, selling their own and the people's souls for Balaam's reward; but venalem Justitiam, sale justice, (or rather injustice under that name) by those that are [...], Heluones patriae, & p [...]cuniae. or [...], enhansers of fees, bribe-eaters or ravenous devourers of gifts, who hasten to the Tribunal as Dramoclidas & Stratocles in the Historian, tanquam ad messem auream, as to a golden harvest, hoping for such Clients that shall come to them, Sicut hydropicus, Quò plus sunt potae, plus sitiuntur aquae. Non missura cutem, nisi plena cruoris hirudo. as Jupiter came into Danae's lap, per impluvium in a shower of gold, after which they have a constant thirst continually crying out with the greedy daughters of the Horsleech, give, give.
This is a sin which hath both multitude of offenders to plead for it, and the greatness of the delinquents to grace and countenance it; insomuch as it is made a note of a generous and heroick mind to receive great gifts, and not stoop unto any mean or sordid prey; and it's counted a badge of folly, and sottish stupidity to be bashfull in exacting bribes, when the party is backward in tendring of them; [Page 27] few being of Epaminondas his resolution, Neque in mala causa ne (que) in bona fieri debet, de mala vix quisquam dubitat. Qui autem bonam habet causam, & sibi injuriam facit & judici si munus offerat. Rivet. in Exod. c. 23. who (though poor, yet) refused great presents sent to him, saying, If the thing were good, he would do it without any bribe, because good; if not honest he would not do it for all the goods in the world. Of the like mind was Phocion, to whom an hundred talents being brought as a gift from Alexander, he demanded of the messenger, wherefore 'twas sent to him, rather than to any other of the Athenians, and upon this answer returned, because he knew him to be an honest and just man, then, said he, I would entreat your master, that he would suffer me to continue in my honesty and justice; implying, that he could not possibly be such an one, if he suffered himself to be corrupted with rewards; which when they are entertained, the receivers of them are so far animated, Non hospes ab hospite tutus, non s [...]cer à genero, fratrum quoque gratia rara est, &c. Lucrum in arca damuum in consci [...]tia. as they will adventure upon any villany, suborn witnesses, distort justice, oppress the innocent, devour widows and orphans, betray their friends, enervate God's laws, and the King's, violate equity and conscience, and whatsoever is, or should be dearest to them.
These and many more are the mischiefs that are effected by the unsatiable thirst after that, Eò etiam sacra illa sames nonnul [...]os adigit, vt patriae preditores fiant, ut Philippu [...]. Macedo non tam armis quàm auro libertatem Graeciae expugnavit. Diffidit urbium portas vir Macedo, & subruit aemulos Reges muneribus: munera nav [...]ium Savos illaqueant duc [...]. Horat. l. 3. which (as the Apostle speaks) is the root of all evil: all the other corruptions of justice are small and inconsiderable, if compared with this. This is more dangerous [Page 28] in its enterprises, more successfull in its event, more pernicious in its practises, more bewitching in its allurements, more secret in its workings, and more universal in its infection, than all the other intercepters of justice and judgement; and therefore whereas they are mentioned with a single prohibition, this is urged with a double enforcement, for
First, It blinds the eyes of the wise.
Secondly, It perverts the words of the righteous.
1. It blinds the eyes of the wise: Crescit peccandi libido, ubi redimendi spes datur, & facilè ad culpam itur, ubi venalis est innocentium gratia. Ecclus 20. 29. A sword is put into the Magistrate's hand, but a bribe turns the edge thereof; though the law bids strike, yet a gift stays the hand; when the law should give sentence, if there be bos in lingua, it stops its mouth; so the wise son of Sirach, Presents and gifts blind the eyes of the wise, and stop up his mouth that he cannot reprove. Wresting of Judgement distorts and draws the eyes aside, Ut lances in eam partem vergunt in qu [...] plus ponderis, ita magistratus in [...]am, in quâ plus aeris. and favour makes them pore-blind, but gifts quite blind, and put them out. The Ancients painted justice, peplo oculis obducto, with a veil drawn over her eyes to signifie that no partiality by bribes, or other means should be admitted in the administration of justice; and the Statues of the Judges in Egypt were without hands, and with their eye lids closed, against those two soloecisms, Cambyses Persarum Rex Sesamen unum ex Judicibus, quòd injustè ob pecuniam judicâss [...]t, interemit, & interempto detractum corium in lora cons [...]idit, quibus tribunal in quo deinceps sedens judicaret, operuit, ili (que) filium ejus Otanem sedere judicem praecepit, atque in memoria habere ex quo tribunali judicaret. respecting persons, and taking gifts: so also the Judges Oath in Athens protested against both, with imprecation and wish of destruction to himself, and his house, if he transgressed [Page 29] in either; to prevent both which was Jethro's direction to Moses, The Kings of England also when they put the sword of Justice into the Judges hand, speak the same words in effect, and the Judges solemnly protest and swear, that they will use the same sword indifferently between the King and the subject. So it was the saying of Trajan the Emperour, Hunc tibi trado gladium, ut pro me utaris cum justa facio, contra me verò utaris si injusta facio. And the Egyptian Kings presented this Oath to their Judges, not to swerve from their consciences though they should receive a command from themselves to the contrary. to choose out for Judges those that were men fearing God, and hating covetousness; fearing God, that they might not respect the persons of men, and hating covetousness, that they might not receive a gift, which as it does blind the eyes of the wise, so
Secondly, It perverts the words of the righteous, verbainnocentium, or justorum (as some) Causas justas (as others) verbarecta [...] (as the Chaldee paraphrase) right words, or the words of those that would seem to be, or are, or should be righteous.
It perverts the words of him whose tongue is hired to speak what another pleases; of the Pleader that shall argue indifferently for right or wrong, Justus Advocatus à nullo injustas causas accipit. as his fee emboldens him; that shall palliate and smooth over any cause, though he speaks against his own and the judgement of the law, which is venalis Advocatorum perfidia; (as was sometimes said of the Roman Advocates) such being like the Oracle of Delphos, whereof Demosthenes complained in his time, that it did speak nothing, but what [Page 30] Philip would have it, who had given a double fee.
It perverts the words of the Jurours, who often weigh out their sentence proportionable to the gift that's received, [...] pollet [...] with whom the greatest evidence often times is not half so convincing as a secret gift; a bribe shall be more perswasive than all the evidentest testimony that can be brought; their mouthes will be open for him, whose hand is so towards them, and that cause shall be best, which brings the best reward with it; Ibifas est, ubi maxima merces.
Lastly, It perverts the words of the witness, who will swear or forswear at what rate his briber will have him, who regards not so much what Oath, as what gift he hath taken, Qui [...] amentum à malo viro postulat, insanit. for which either Naboth's blasphemy, or Susannahs adultery shall be attested, though neither the one was spoken, nor the other done; [...]mp oborum [...]uramentum [...]n aquâ scribe. like knights of the post that make a jest and sport of an Oath, a play and pastime of a deposition, that will exchange a testimony (which is verborum munus as some paraphrase upon the words) with a brother of the same fraternity, as they used to do in Greece, Hodie mihi, cras tibi. [...], swear for me to day, I'le do as much for thee to morrow.
Thus they justifie the wicked for reward, and condemn the innocent without offence; they invert the nature and order of justice and equity, they make a sinner just, Isa. 5. 23. and a just man a sinner, they take away (as the Prophet speaks) the righteousness of the righteous man from him, not considering that God shall come in vengeance as a swift witness against them; Mal 3. 5. Job 15. 34. that fire shall consume the tabernacles [Page 31] of bribery, and that the habitations of such men shall be desolate.
And now seeing there are so many corruptions of Judgement, and so many hands through which justice must necessarily pass, every one of which are ready to receive gifts, Prov. 17. 23. and thereby to respect persons, and so to wrest Judgement (the latter of which Solomon makes the consequent of the former, A wicked man taketh a gift out of the bosom to pervert the ways of Judgement) it is no wonder if a good cause hath not always the happiness to succeed well, nor is seconded with an event proportionable to its equity. If thou seest (says the same Solomen) the oppression of the poor, Eccl. 5. 8. and violent perverting of judgement and justice in a province, marvel not at the matter; but yet as it follows there, he that is higher than the highest regardeth, and there be higher than they.
Wherefore let all that have any hand in the administration of justice, Psal. 82. 1. consider (as the Psalmist speaks) that God standeth in the Congregation of the mighty, [...] [...]. and that he judgeth among the Gods; let them bear in mind that great account they must e're long make unto him, Epist. ad Heron. sub nom. Ignar. and remember that a day is coming, wherein all (both small and great) must appear before the Judgement seat of Christ, and with what judgement they here judge others, 2 Cor. 5. 10. themselves must then be judged, and with what measure they mete to others, Mat. 7. 2. it shall then be measured to them again.
And if the consideration of that future Judgement will not deter men from acting injustice, the [Page 32] immediate address, next under God, must be to your Lordship' s wisdom, and integrity, to regulate and over-rule, and by present judgement to correct and punish such offenders, that so the obstacles of justice being removed, Job 29. 17. Judgement may run down as waters, and righteousness as a mighty stream; that the jaws of the wicked (as Job speaks) being broken, and the spoil plucked out of their teeth; the ear that hears you, Chap. 1. 1 [...]. may bless you, and the eye that sees you may give witness to you. I shall end all with Moses s charge to the Judges; Hear the causes between your Brethren, and judge righteously between every man and his brother, and the stranger that is with him, you shall not respect persons in judgment but you shall hear the small, as well as the great, 2 Chr. 19. 6, 7. you shall not be afraid of the face of man, for the judgement is God's; or with that charge of famous Jehoshaphat, as parallel to the text, Take heed what you do, for you judge not for man, but for the Lord, who is with you in the judgement. Wherefore let the fear of the Lord be upon you take heed, and do it, for there is no iniquity with the Lord our God, nor respect of persons, nor taking of gifts.