OF JUDGMENT, AND THE OFFICE OF THE JUDGE; THAT PUNISH OFFENDERS IN RELIGION OR NO. THE EIGHTH SERMON. I SPAKE yesterday, dearly beloved, of the magistrate's ordinance there are yet behind other two parts of his office and duty, that is, judgment and punishment; of both which, by the help of God, I mean to speak as briefly as may be. Give ye attentive ear, and pray ye to the Lord to give me grace to speak the truth. ment is. Judgment is taken in divers significations; but in this pre- What judg sent treatise it importeth the sentence of judges brought in betwixt men at variance; which sentence is derived out of the laws, according to right and equity, as the case put forth of the parties required, and is pronounced to the intent to take up2 the strife betwixt them at variance, and to give to every man his own. For at sessions or assizes parties appear and sue one another for some inheritance or possession, which either party affirmeth to be his by law, laying for themselves whatsoever they can to prove and shew what right and title they have to the thing. All which the judges do diligently hear and perfectly note; then they confer the one with the other, and lay them with the law; lastly, they pronounce sentence, whereby they give the possession to the one party, and take it from the other. The like reason is also in other cases and matters. And this is judgment; yea, this, I say, is the execution of justice. But this kind of quieting and setting parties at one is very mild in comparison of revengement and punishment, which is not executed with words and sentences, but with swords and bitter stripes. And good cause why it [2 ut dirimat, Lat.] Judgment and punish to magis trate, as depending upon his office. should be so, since there be divers causes, whereof some cannot be ended but with the sword, and some more gently with judgment in words. But herein consisteth the health and safeguard of the kingdom or commonweal. Judgment and punishment therefore are in the magistrate nent pertain the most excellent offices, although peradventure they seem to be somewhat hard and cruel. But unless this which seemeth to be cruelty be put in ure, all ages, states, and sexes shall feel the smart of crueller things, and that which is most cruel indeed. For it is not cruelty, but rather just severity, which (as the Lord commandeth) is put in ure for the safeguard of the guiltless and preservation of peace within the realm and commonweal. Put case there were a commonweal well furnished with most absolute laws for politic manners and matters of religion suppose also, that in the same commonweal there were no magistrate to execute, and as it were to father' those laws, by his authority to bring and reduce all the deeds and sayings of men to the trial of those laws; and that therefore every man breaketh forth to what kind of life he list himself, and doth what he will: tell me, I pray you, what good do those written laws to the men of that country? Believe me, forsooth, not one halfpenny worth of good. The best part therefore of the magistrate's duty consisteth in upright judgment and punishing revengement. And those two points require a man of courage and princely stomach; whom the Lord in his law describeth lively, and telleth what kind of man he would have him to be, and what the office is whereto he is called: which description I will rehearse and expound, because therein the judge's person is chiefly touched. The judge's office is described. Moses, at the Lord's commandment, saith to the judges: "Hear the cause of your brethren, and judge righteously betwixt every man and his brother, and the stranger that is with him. Ye shall have no respect of any person in judgment, but ye shall hear the small as well as the great: ye shall not fear the face of any man, for the judgment is the Lord's3." The holy prophet in these words toucheth two things chiefly: he declareth what the judge's office is; and what vices or diseases do infect the judge, that he cannot fulfil his office as he ought to do. [1 qui tueatur, Lat.] [2 nihil prorsus, Lat.] a good judge is to hear and know. Now touching the office of a good judge, the first point The office of thereof is, that he repel no man, but hear every one, the small, the great, the citizen, the stranger, the known and unknown. And he must hear the parties willingly, diligently, and attentively. Herein there is admitted no sluggishness of the judge, nor a mind busied about other matters. Judgment before the matter be decided is utterly excluded, because it carrieth away the mind of the judge before the matter is known. The thing itself crieth out, that the matter must first be heard and well understood, before the magistrate proceed to judgment. And the common proverb saith, "Let the other party be heard too5." Very wisely said that judge, which told one that made a complaint, "That with the one ear he heard him, and kept the other ear for him upon whom the complaint was made." Herein we contain the perfect knowledge of the judge, and say, that he must not make too much haste in cases unknown, since he must judge them by the thing itself, and not by the parties, secret tales, and privy accusations. Secondarily, let him judge, saith he, The judge yea, let him judge uprightly. To judge is to determine and justly. pronounce truly and justly, according to the laws, what is good, what is evil, what is right, and what is wrong. We Switzers say, Urteilen, oder erteilen, oder richten; as if one should say, to distinguish a thing throughly considered, and to plane and make straight a crooked thing. Parties blinded with affections make straight things crooked, which the judge by applying the rule of equity and law doth straighten again; so that to judge is to straighten and to make plain. Moreover, to judge is, by defending and punishing, to keep in liberty. The magistrate doth judge, therefore, when he defendeth the innocent, and bridleth the hurtful person. But he must judge justly, that is, according to justice, and agreeably to the laws, which give to every man that that is his. The judge doth judge unjustly, when of a corrupt mind he pronounceth sentence contrary to all law and equity. [4 inquilinum, Lat.; omitted.] [ Λέγεται δὲ καὶ τὰς δίκας διακρίνων ἐν ἀρχῇ τὰς θανατικὰς, τὴν χεῖρα τῶν ὤτων τῷ ἑτέρῳ προστιθέναι τοῦ κατηγόρου λέγοντος, ὅπως τῷ κινδυνεύοντι καθαρὸν φυλάττηται καὶ ἀδιάβλητον.—Plutarch. in Vit. Alexandri. Lond. 1723. Tom. IV. p. 60. See also Early Writings of Bp. Hooper, Parker Soc. ed. page 408.] must judge judges. Respect of persons. Vehement affection. Now therefore we have to consider the vices which The faults of usually are wont to reign in judges. The vices that are in judges be many, and the diseases of their minds are sundry: but two special diseases there are, and chief of all the rest. The one of these two vices, which so infecteth the minds of judges that they cannot execute their office as they should, is the accepting of faces, or respect of persons; that is, when the judge in giving judgment hath not his eye set upon the things themselves, or upon the causes or the circumstances of the causes as they are indeed; but hath a regard either of dignity, excellency, humility, poverty, kindred, men of honours, letters1, or some such like stuff. The Lord excludeth this evil, and saith: "Ye shall judge justly; ye shall have no respect of any person in judgment; ye shall hear the small as well as the great." The other disease of these twain is fear; a very vehement affection of the mind, which disturbeth the very best and most excellent counsels, and choaketh up virtue before it come to light. Under fear we do contain hope also, I mean, of commodity; and so by that means by fear we understand the corruption of bribes. judge that stands in fear to lose his life or goods, or is afraid to displease a nobleman, or is loath to lose the common people's good will; he also that taketh bribes, or is in hope to be rewarded at one of the parties' hands, doth pervert equity and advance iniquity. The Lord saith therefore, Ye shall not fear any mortal man: ye shall not look for any reward at any man's hand. He addeth the reason why: Because the matter is not yours, neither were ye called in to do your own business; but the judgment is the Lord's. The will and law of God therefore must be respected. For God is able to defend just judges from the unjust hatred of any, whatsoever they be, and against all wrong and open violence. Moreover, where it is said that the judgment is the Lord's, thereby are the judges. warned that they ought to imitate the example of the most high God. But what, and of what sort, that example of God is, the same Moses, in the first of Deuteronomy 2, expresseth and saith: "God doth accept neither person nor gift; he doth for a pattern justice for the fatherless and widow, and loveth the stranger to The good judge ought before him to have God to follow. The [1 vel clientelam is the Latin, which is here translated, men of honours, letters.] [2 It is Deut. x. 17-19.] give him meat and clothing; and therefore shall ye love the stranger." And so must godly judges do in the judgment which is God's. Josaphat, without all doubt a very godly prince, speaking to them whom he had made judges, did say: "Take heed what ye do; for ye execute not the judgments of 2 Chron. xix. man, but of God, which is with you in judgment, Let therefore the fear of the Lord be upon you, and take heed, and be diligent. For there is no unrighteousness with the Lord our God, that he should have any respect of persons, or take any reward." To these I will yet add a few places of the holy scripture more, which shall partly make manifest those that went before, and partly expound and more plainly express the office of the judge. In Deuteronomy we read: "The judges shall judge the people with equity and justice. Thou shalt not pervert judgment, nor have respect of persons, nor take a reward: for a reward doth blind the eyes of the wise, and perverteth the words of the righteous. Thou shalt do judgment with justice, that thou mayest live and possess the land3." Again, in Exodus we find: "Thou shalt not follow a multitude to do Exod. xxiii. evil, neither shalt thou speak in a matter of justice according to the greater number for to pervert judgment. Neither shalt thou esteem a poor man in his cause. Keep thee far from false matters, and the innocent and righteous see thou slay not; for I will not justify the wicked. Thou shalt take no rewards, for rewards blind the seeing, and pervert the words of the righteous." In Leviticus also we have this: "Ye shall do Levit. xix. no unrighteousness in judgment; thou shalt not favour the person of the poor, nor honour the mighty, but in righteousness shalt thou judge thy neighbour." Again: "Ye shall do no unrighteousness in judgment, in meteyard, in weight, or in measure. True balances, true weights, a true epha, and a true hin, shall ye have. I am the Lord your God," &c. I suppose verily, and am thus persuaded, that in these few words of the Lord our God are comprehended all that which profound philosophers and lawyers of great learning do scarcely absolve in infinite books and volumes of many leaves. Beside all this, the most holy prophet Jeremy crieth to the king, and saith: "Keep equity and righteousness, deliver the oppressed Jer. xxii. from the power of the violent; do not grieve nor oppress the [3 Deut. xvi. 18-20.] |