tongue is no fuller of poyson then the venemous Viper and the kindnesse of their lippes no better then the vomit â—f Aspes a prophane and degenerate geneâ—ation euer readier to find two faults in anoâ—her then to amende one in themselues But â—ecause in my other workes I haue proclaimed â—pen defiance vnto such but for modestie sake without name and meane if they persist in their impious and irreligious humour the next time to labour to purge out their poyson with a dramme of Mythredatim and anatomize their names in print In a worke which I haue in hand intituled The Anatomie of a Christian At this time I thinke them not worthie of farther speech but onely in my prayers I confesse silence had beene more secure yet may I freely protest that no conceit of mine owne gifts nor the affectatioÌ„ of the vaine applause of mens mouthes but an vnfeined desire to doe good according to my poore talent and that by all meanes in the Church of God being also heartned by the good acceptance of my former labours with the well inclined and the profite and comfort they ingeniouslie confesse they haue reaped thereby hath encouraged mee to proceede herein This Right Worshipfull I presumed to censecrate and dedicate vnto you as a pledge of my good will and thankefulnesse for many your kind fauours and especially which I shall neuer drench in obliuion your readinesse in supporting my honest and iust cause nay Gods cause against certaine ignorant W. Iohnes proud and malicious Opposites which make a shew of godlinesse but haue denied the power thereof which speake of sanctification with vnsanctified lippes For which I doubt not as also for your loue to religion good to your countrey protection of the oppressed c. there is a reward layde vp for you in heauen euen an immarcessible Crowne of glorie If this as indeede it is not be not answerable to your worth impute it not I beseech you vnto my will but rather to my want of abilitie being loth to be branded with the more then barbarous note of ingratitude which I euer detested cane peius angue knowing the old prouerbe Omnia dixeris si ingratum dixeris Now I beseech the God of peace to sanctifie you that your soule and bodie may be kept blamelesse vnto the day of the Lord. Your Worships in all duetie WILLIAM EST. THE IVDGES AND IVRIES INSTRVCTION Ioh. 7.51 Ioh. 7.51 Doth our law iudge a man before it heare him and know what he hath done TO omitte all circumstances of time place and persons This question as our Maisters of Logick say may be resolued into a proposition or as â—e Rethoritians say implieth a proposiâ—â—on with an absurditie vpon the contraâ—â—e As that Gen. 18. Gen. 18.25 Shall not the Iudge 〈◊〉 all the world doe right and Rom. 6.1 Rom. 6.1 â—hall wee continue in sinne that grace may aâ—â—und God forbid So that it is in effect â—s if hee had sayde Our law doth not â—â—dge any man before it heare him and â—now what hee hath done Wherein obserue three things The diuision 1. That the law must iudge or the Iudge by the lawe Doth our laâ— iudge and this requireth in the Iudge knowledge of the law and obedience to the law 2. What is the subiect of this iudgement which must bee iudged a Man which teacheth the Iudge to to iudge warilie and without respect of persons impartiallie 3. The order that the law requireth in iudgement To heare the maâ— speake for himselfe and to know whaâ— he hath done For the first the written law hoâ— good soeuer it bee is dead in it selfe like a sword layd vp in scabert or pretious Oyntment shut vp in a boxe Thâ— Magistrate therefore is added to reuiuâ— this dead body of the law 1. King 17.21 as Elias diâ— the childe being dead by stretching himselfe vpon it By which coniunction the law becomes a Magistrate and the Magistrate a law The Magistratâ— lendeth a mouth to the law to speake and the law teacheth him a rule to speaâ— aright So that hence this poynt is madâ— playne The law must iudge by the Magistrates mouth and the Magistrate by the law as the mouth by the heart This may be gathered by the words of Nichodemuâ— here when he maketh the law the Iudge Doth our law iudge a man beforâ— it heare him and know what he hath doâ—â— by the mouth of the Iudge or the Iudge according to the law And therefore the Lord commaundeth Ioshua to meditate in the law day and night Ioshua 1. and not to let it depart from him Which also is meant of the Iudiciall law And an argument hereof are Pauls words to Ananias Act. 23. God shall smite thee thou whited wall for thou fittest to iudge me according to the law and commandest mee to bee smitten contrarie to the law Wherein we learne two things 1. That the Magistrate is set in place of Iustice to iudge according to the law 2. That therefore the sinne is great to iudge beside the law but to iudge contrarie to the law deserues to bee smitten of God himselfe Neither must wee thinke that this law of the Iewes had onely this prerogatiue for euery good law hath the same that the Ciuill law hath lib. 40. institut de officio Iudicis As Iustinian sheweth lib. 40. institut intitulo de officio Iudicis Where in the very first words he faith Imprimis illud obseruare debet Iudex ne aliter iudicet quaÌ„legibus c. The Iudge ought especially to obserue that he iudge no otherwise then by the lawes c. And that the lawes in seuerall countries had the same authoritie may appeare by Eschines Oration Echines wherein hee affirmeth that the Athenian Magistrates were sworne thereto Whereunto it seemeth Themistocles Themistocles in Plutarch had reference when Simonides Simonides the Poet requested him to giue sentence with him in a matter vniust answered Neque tu bonus poeta si praeter musicae modulos caneres neque ego Iudex iustus si contra leges pronunciem Neyther art thou a good Poet if thou violate the rules of musicke neither am I an vpright Iudge if I giue sentence against law I stand not heere though I might to discusse that subtile question disputed in the schooles Whether is to bee preferred before other the Law or the Magistrates Wee are rather to giue God thankes that wee haue such good lawes and with all good Magistrates to put them in execution and to iudge according to the law Neither yet do I so mussell the mouth of the Magistrates as that when the law is defectiue he should bee mute but this I say when the law is not defectiue the Magistrate should iudge according to the law And hence it followeth that the Iudge ought to know the law and to obey the law I need not Right Honourable to mention your knowledge in the law but
the thing that I woulde put you in minde of is That you would persist to be as you are obedient to the law in iudging by the law And here would I giue you but the same counsell as Claudian once gaue to the Emperour Honorius Claud. in consul 4. Hono. panegy Vt te totius medio telluris in orbe Viuere cognoscas cunctis tua gentibus esse Facta palam c. Nec tibi quid liceat sed quid fecisse decebit Occurrat mentemque domet respectus honesti RemeÌ„ber that you liue in the publique view of the world An excellent counsell that your actions are open to the eyes of all men therefore thinke not what lieth in your power to doe but what is fitte and seemely for you to doe and let the due respect of honestie rule your minde and suppresse your passions All mens eies are sixt vpon you if you keepe the law all will be the sooner induced to doe the same And as Cicero sayth Omnes legibus serui esse debemus vt liberi esse possimus Which you shall do the better if you consult and aduise often with the law and not trust too much to your habituall knowledge for though you may iudge right to others yet it may be a sinne vnto your selues and not rightly except it bee vpon your knowledge that it is law for none is iust but he that knoweth hee doth iustlie And thus much for the first point That the law must Iudge 2. The second thing is the subiect of this Iudgemeâ—t which must bee iudged A man and this requireth in you both warinesse in that you must iudge so excellent a creature as Man and imparcialitie in that you must iudge a Man without respect of any state or coÌ„dition whatsoeuer but onely as a maÌ„ for the excellencie of man To omit all coÌ„mendations that the Philosophers gather and onely as Caleb and Ioshua to shew you but a cluster of these grapes the making of the least creature in the world in that betwixt being and not being there is no proportion required as great a power as God Almightie so that each creature in the world is if not Imago yet vestigium dei a print of God Gen. 1.26 yet in Gen shal we finde that of all other creatures God said let them be and they were onely when he comes to make man doth as it were to signifie the excellencie of the worke he had in hand call a counsell and saith Let vs make man not as other creatures a darke resemblance of vs but in our owne likenes and similitude So that the whole worke of the creation is by some compared vnto a chaine reaching from earth to heauen wherein man as he lookes vp to God is ranged in order with his fellow creatures but as he lookes downe vpon the earth is Lord and chiefe of all Dyonisius But least some shuld replie that these priuiledges belonged onely to man in his estate of innocencie but now they belong not to him nor any such excellencie no more then the kingdom of Sicilia to Dionysius when he taught in the schoole I answere As it is lost in one so it is lost in euery man which is sufficient for this purpose but that it is not absolutely lost in any Ge n God himselfe witnesseth Gen 9. Who so sheddeth mans blood by man shall his blood be shed for in the Image of God hath he made him Mat 2.16 CoÌ„sider now with what warines you should iudge man such an excellent creature euen the image of God This remeÌ„bred would haue kept Herode from so hastie murthering of so many harmeles infants and the bloodie Spaniardes froÌ„ their more then sauage murthering of the poore Indians The crueltie of the Spaniards towards the Indians And surely I should hardly beleeue it were it not reported by a Bishop of their own one Bartholomeus how that in the coÌ„quest of the west Indies they were accustomed to slay the Indians to feede their dogges withall This is so horrible coÌ„trarie to mans nature that me thinkes it should be incredible But if they were so sauage towards them that were men as well as they but that they wanted a little instruction how would they thinke you deale with vs whom they count Heretikes and worse then Infidelles But to returne to the point The ancient Romanes for in the latter time they were more corrupted shall rise in iudgement against those Magistrates which regard not as they ought what they iudge Ttus 9. flam Titus Flam amongst them was put out of his office and disgraded for that he caused a man that was before condemned to be haÌ„ged in his parlour A mans life is not a matter to be plaied with or iested at and this is that which God would admonish his people of Deut 17. Deut 17. that their Iudges should be of their owne people brethren euen men like themselues and not strangers but of Gods people instructed in his law which well knewe the excellent subiect of iudgement which is Man Gods most excellent creature Psal 8.4 As did king Dauid when in the deepe consideration thereof he said What is man say I that thou art mindfull of him and the sonne of man that thou visitest him Howbeit far be it from me that I should seeke to hinder the seueritie of Iustice I knowe that there is no crueltie so bad as that which somtimes masketh vnder the name of mercy and I knowe also that our age rather requireth seueritie then lenitie fewer would doe euill vpon if they sawe punishment duly executed vpon malefactors But as the Iudges ought to be vpright in all causes so chiefely in matters of blood for feare nor fauour to winke at murther that when such a one is conuicted before them they may say with the Elders of Israel Our hands haue not shed his blood neither haue our eyes seene it Deut. 21. For if the Iudge be partiall herein though he did no violence yet his eyes haue seene it and winked at it and he said nothing A notable example to this purpose we haue 1. Reg 20. where God sent this message vnto the king of Israel because he let Benhadas goe whom God had appointed to die thy life shall goe for his life and thy pâ—ople for his people 1. Reg. 20. But this is it I commend vnto your Lo which was so much praised in Sulpicius Sulpicius of whom it is saide that he neuer iudged any man vnaduisedly nor euer tooke pleasure in the iust execution of iudgement but his teares were often seene to trickle from his eies when he pronounced iudgmeÌ„t of death vpoÌ„ any man Aâ— Eagles 〈…〉 hâ—â—d So when you come as Chirurgions to launce by law corrupt members that the souÌ„d part may be preserued you must come though with an eagles eye and a Lyons hart yet with a Ladies haÌ„d iudge man as man that
is as an excellent creature warily yet as a man without partialitie boldly In that dangerous time when Grâ—ece had almost lost her libertie Adimantus and Themistocles Animantus reproued by Themistocles because he was too slacke he answered that such were beaten commonly in the Olimpian games which were too forward yea quoth Themistocles sed nec eos quise subduâ—unt coronat quisquam but none crowneth them that conuey themselues out of the way Adimantus noted Themistocles of rash audacitie and he againe accused the other of timerousnes who detracted to fight when opportunitie serued I wished your Lo to make no more haste then good speede and now I must beseech you not to stay when you should goe forward not to stay iudgement though it be against mightie men though it may be you may haue some to lay holde on the skirt of your gowne to stay you not to punish in one what you will spare in an other A fearefull Iudge that standeth in feare of the mightie will be swaied by the authouritie of the mightie and is made such a slaue to his affections that the least thing will corrupt him Thus saith the mirrour of wisedome Pro 28. To haue respect of persons is not good for such a one will transgresse for a morsell of bread Surely there is not one point in the Iudges office whereunto the scripture speaketh more then to this Iehosophat placing iudges ouer Israel 2. Chron 19. exhorted theÌ„ saying Let the feare of God be vpon you take heede and doe it for there is no iniquitie with the Lord our God neither respect of persons nor taking reward This is also coÌ„manded by God Leuit 19. Leuit 19. Deut 1. Deut 1. You shall haue no respect of persons in iudgement but shall heare the small as well as the great ye shall not feare the face of man And the reason is added for the iudgement is Gods And it is the same that Christ saith in this chap ver 23. Iudg not according to the appearance but iudge with righteous iudgement Neither is it only vnlawfull to iudge partially but also vnprofitable in the ende for it hath euer the curse of God and the people pursuing it Pro 24. As Salomon teacheth saying It is not good for to haue any respect of person in iudgement for he that saith to the wicked thou art righteous him shall the people curse and the multitude shall abhorre him And for the curse of God Esa 5. Esa 5. Woe be vnto him that calleth good euill and euill good ver 20. which put darknes for light and light for darknes that put bitter for sweete and sweete for sower Plutarch saith that the Thebans a very prudent kinde of people in Greece were wont to painte in their temples this forme of an vpright Senate the Iudges sitting without eyes and hands as accounting it no matter if they wanted both eies and hands if they had a tongue and eares inferring therby an incorrupt iudgement Cur sine sunt manibus capiant ne xenia Alciatus Emble 144. nec se Pollicitis flecti muneribusque sinant Why want they hands to signifie that bribes they should not take Nor yet with promises be wonne true iustice to forsake S. Bernard saith S. Berâ—ad Eugenium lib 2. that a good Iudge should feare God and nothing but him and looke for nothing in regard of his iudgement but from God Ageselaus though otherwise a good Prince yet he had this noted in him as a great blemish to his iustice A great blemish in Ageselaus that he wrote to the Iudge in the behalfe of his friend Nicias that if Nicias be not guiltie dimitâ—e hominem acquite him if he be found guiltie mihi dimitte acquite him for my sake and howsoeuer it be omnino dimitte yet acquite him Pericles was wont to say that when hee put on him the person of a Judge Pericles he put off the person of a friend so that this is plaine that no respect of man is to be had especially in matters of right wrong And this is the cause that Nichodemus raised vp this proposition from the particular to the generall not saying this man but a Man any man whatsoeuer For as the prouerbe is Let the Diuel haue his right Cyrus in Zenophon Cyrus in Zenoph being made a Iudge thought he did iustly when he gaue the longest cloake to the tallest man and the shorter to the little man but he was beaten for it and taught to giue each man his owne without regard of conueniencie I speake not this as if there should not be distinction of lawes for seuerall estates others for Noble men and others for common persons but where the law makes no difference there in Anacharsis spiders webbe the litle flies must not be caught and the great drones must goe through Galbas iudgment memorable Nay if Gentlemen offend their offence is worse Therfore Galbaes iudgment was most excellent when he was ruler of Aragon and had adiudged a gentleman to be hanged he pleaded that he was a gentleman and therefore should haue more fauour then a common person you shall saith Galbaâ— for you shall not be hanged on the coÌ„mon gallowes but you shall haue one of purpose made for you higher then the other and it shal be carued and painted too if you will I stand not on the circumstances so the substaÌ„ce be performed And so with this noble patterne of Iustice I ende this 2. point which is the subiect of iudgement a Man which teacheth the Iudge to iudge warily and without respect of persons 3. The third thing is the order to be obserued in iudgement which is expressed in these words Before it hâ—are him â—nd knowe what he hath done Where we are taught that first in generall enquirie knowledge must goe before iudgement 2. in particular that this enquirie must be to knowe what the man hath done 3. How we must come to knowe this by hearing him speake for himselfe For the first that inquirie must goe before iudgment God himselfe hath put it out of all question in conuenting Adam to knowe what he had done before he pronounced sentence vpon him Gods eyes cannot be blinded for he beholdeth all things yet herein he dealeth with man as if he himselfe were not God to teach the Gods on earth which see but in part how they should proceed in iudgement and this he teacheth Deut. 1.16 Deut 1.16 First heare and then iudge the controuersies betweene your brethren And Deut 13. they are willed in causes of idolatrie in euery Citie to make diligent enquirie whether the report be true This being so where shall the vnrighteous Iudge appeare which iudgeth before the enquirie The example of Piso is very incommendable who when a souldiour returned into the campe without his fellowe with whom he went forth coÌ„demned him forthwith to death as a murtherer of his fellowe who comming in
as he was going to execution A tyrannous and cruell senence the Centurion that led him brought both backe againe to Piso who being incensed therewith commanded all three to be put to death He shall die saith he to the Centurion because he is condemned and the other for that he was the cause that he was condemned and thou because thou diddest not obey my iudgement in putting him to death This was a cruell iudgement but the cause hereof we see to be for want of inquirie before Very memorable is the example of Phillip of Macedon Philip of Macedon who sitting in iudgement to heare the cause of Maâ—haetes but being dormitabundus drousie â—nd not sufficieÌ„t attentiue to the equitie of the lawe gaue sentence against him But when Machaetes cried out that he would appeale from that sentence Erasmus The king very angrie stood vp and saide To whoÌ„ wilt thou appeale from me He anâ—wered to thy selfe ô King if thou wilt â—wake way my cause aright finding â—hen vpon better consideration that he â—ad done him iniurie reuoked not his â—entence but payed himselfe the money wherin Machaetes was condemned What â—n example is this of patience moderaâ—ion and loue of Iustice in a Prince The inquirie must be made what a man â—ath done which is meant of open actioÌ„s traÌ„sgression of the lawe for the intention of the hart Gods law only can take holde of and they intrude themselues into Gods office which seeke to enquire of this But this is it I say that the lawe of maÌ„ is to iudge of the outward action and yet I graunt that the action is to be considered as it comes from the heart for one and the same thing may be done by one well and by an other ill so that we must in the action consider the substance with the qualitie and therefore we enquire whether a man did take a thing away felloniously or not for somtime and in some case the intention may alter the consideration of the action as in case of defence but this is true sine causa nemo iustâ— punitur sine culpa nemo 3 The maner to know what the man hath done is by hearing him speake for himselfe for it is not iust onely to hearâ— the plaintiffe speake but the defendanâ— must also This God taught in comming downe to see Gomorah before he destroyed it Ioshua 7. So Ioshua could not iudge Achan before he had confessed the fault and this is not onely Gods lawe but thâ— lawe of Nations Act 24. as of the Romanes aâ— Festus proceeding against Paul sheweth Act 24. And of the Athenians as Demosthenes noteth in an Oration Where he vrgeth it as part of the dutie of a Iudge to heare both parties Audi alteram partem and this is it which Alexander was so much commended for who was wont to stop one eare when he heard the Plaintiffe and being asked why he did so answered alteram â—eâ—ntegram seruo I keepe the other free for the Defendant And this is the practise in matters of right and wrong Wherein I would beseech you Lo to put in minde these skilfull pleaders and Lawyers that they remember the trust that is reposed in them that they doe not as many that will not speake at all and why 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bos in lingua Or as the prouerbe that sprang of Demosthenes ArgentanginaÌ„ patiuntur they are sicke of the siluer sicknes For as Aul Gellius reporteth when he pleaded very sharpely against the Milesian Ambassadours which came to Athens to craue some aide so that they were like to haue the repulse the matter being referred till the next day the Ambassadours went in the meane time to Demosthenes gaue him a great summe of money to holde his peace and not to pleade against them The next day when the matter was to be heard he fained himselfe 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is anginum pati to be sicke of the squinancie and therefore could not speake Then one who had smelled out his hypocrisie cried out that Demosthenes non 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pati that is argentanginam pati that he was siluer-sicke or a right muck-worme So as one saith of such pestifera est causidicoriâ—m lingua nisi funibus argenteis vincias the Lawyers tongue is dangerous and pestileÌ„t vnles thou binde it with siluer cords for not onely their speech but also their silence is venall I hope there be no such pestileÌ„t cankers of the common-wealth if there be any such which set their wit eloquence and conscience all to sale to boulster out vniust causes I câ—unsaile them betimes to repent for God himselfe hath alreadie denounced woe against them Woe be vnto them that speake good of euill euill of â—ood c. And others there are which speake so coldly Isai 5. as if it nothing concerned them which was so heynous a thing among the Romanes that they counted it no better then plaine theft as Tullie saith in his Oration for Roscio To reason a little this point I haue chosen thee to speake for me in my cause and it may be the vndoing of me lies in thy hands Is it then ignorance or negligence that thou doest not speake so as thou shouldest If thou pleade ignorance then why doest thou deceiue an other man by selling that which thou hast not If thou saiest that thou wouldest learne lawe by pleading it is all one as if a Chirurgion should kill men to learne skill by practise If thou be ashamed of ignorance pleade negligence then thou makest thy fault greater and deseruest the punishment of a false witnes Is it then to maintaine thy estate and to leaue thy posteritie rich Knowest thou not that the spirit of God saith Pro 21. The gathering of riches by a deceitfull tongue is vanitie tossed too fro of them that seeke death First tossed like a tennis ball from one heire to an other purchaseth death to the gotter And it is the iust iudgement of God that they that prey vpon their inferiours as the great fishes vpon the small shall in the end be a fatter prey vnto a greater then themselues Dum praedo vis esse minoris Praeda es maioris I would therefore beseech your Lo as I saide often to put in minde these Pleaders of their dutie in that behalfe and this is the manner of iust proceeding in matters of right and wrong The Iuries charge 2. Chro 1â— 7 NOw to the Iurie and witnesses not I but the Lord speaketh by the mouth of good king Iehosophat as I saide before Let the feare of the Lord be vpon you take heede and do it for there is no iniquitie with the Lord our God neither respect of persons nor receiuing of reward for if for feare fauour hatred or to gratifie some great man ye giue wrong verdite besides the execrable and damnable sinne of periurie ye