discipline and tend to the awakening of the secure conscience and to the bringing of it both to a sight and sense of its crime and guilt God suffers penalties to fall sometimes upon the bodies of offenders in mercy to their souls but however if Justice should not work to the saving of their souls yet it will be sure to work to the restraining of their sinne making the measure of it the lesse which is indeed a mercy Grave is the speech of Seneca Vt nemo pereat nisi quem perire etiam pereuntis intersit That none perish but those to whom t is an advantage to perish And thus much by way of Argument Why you must be just I come next of all to discourse of the Modification How you must be just First My Lords You must be religiously just it is indeed the first required qualification in all Judges and Magistrates That they should be men fearing God there is so near an affinity between Justice and Religion that as Priests are called Judices Sacrorum so Vlpian stiles Judges Sacerdotes Justitiae Judges must not be like Cardinal Caraffa of whom it was said That he was Securus de numine out of all fear of Gods vengeance without Religion Judges will be but prophane and where the fear of God is not there the fear of man will be in too great a measure Alvarez reports it to be a custom of the Aethiopians to place twelve empty Chairs about the Judges seat and this not out of state but out of Religion supposing that their gods sit there with their Judges And the Rabbins have a saying That the Angels attend in all Judicatories how concerns it all Judges then to be religiously just having such attendants and such assessors Secondly You must be zealously just for you judge not for man but for God Now he that doth the work of the Lord negligently a curse waits on him the righteous they are compared to Palm-trees now they love hot regions and a warm soil and so doth Justice zealous hearts t is St Bernards Note Adami voluntas non habuit fortitudinem quia non habuit fervorem You must execute Justice magnanimiter there must be an ardent zeal for the maintenance of Laws and there must be an actuall application of all your endeavours and of all the forces of your minde and courage to authorize Justice to strengthen your arms against the torrents of iniquity and to put all your particular interests under the discharge of your imploiments where there is like to be great opposition there had need to be a great spirit and great resolution Odia qui nimium timet regnare nescit To resist friends and to over look enemies will be no easie work to be just under all the crosse censures of the world where some will cry out that you are too mercifull and others that you are too severe some that you do nothing and some that you do too much now surely it must be a zeal for Justice that must make you struggle thorow all difficulties Moses he grindes to powder the golden Calf Exod. 32.20 Num. 25.13 and it was his zeal constrained him Phineas he runs Zimri and Cosbi thorow with his Javelin and t was his zeal that fired him Joh. 2.17 And Christ he whips the buiers sellers out of the Temple and t was the zeal of his fathers house that eat him up but here you must be sure that this holy fervour be of the right stamp it must be pure elementary not base and culinary not feeding upon carnal respects it must be zeal for justice as an act of justice yea and it must be out of love too or else whilest it is Justice in the Law it may be murther in the Judg. Thirdly You must be impartially just like God in this he accepts no mans person he accepts not the rich because he is rich nor the poor because of his poverty 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the bane of Justice Perit omne judicium ubi res transit in affectum Judges they are as the noble Spartan said of himself Patriae legibus dati they have bestowed themselvs upon their Country and upon the Law and therfore must know neither parents nor kindred in the cause of Justice The Statues of the Thebane Judges they were they were without hands and without eyes that is without corruption without partiality The Athenians they were wont to judge in the dark that so they might know no mans face Judges they must be swayed neither with foolish pity on the one hand nor with respect to might power friendship or greatnesse on the other usually these are the two prejudices against the execution of justice either carnall pity sayes he is a poor man or else carnall fear sayes he is a great man and so outward accidents come in the Scale rather then the merits of the Cause when judgment is misted or blinded by any externall glory and appearance so that Judges cannot discerne truth or right when they suffer any cause to be overballanc'd by such forraigne circumstances as have no affinity with it this is a vicious partiality in them all corruption is not in bribes the Judges who absolved the beautifull strumpet Phryne they had their hands cleane but their eyes foule it was a gallant return which the noble Rutilius made his friend requesting of him an unlawfull favour in such language as this Quid tua mihi opus est amicitia si non impetro quod rogo I had as good be without such a friend as with him who will not let me speed in what I ask to whom he replied Imò quid mihi tua si tua causa aliquid inhonèste facturus sum I can want such a friend as you if for your sake I must do that which is not honest Memorable is the act of justice Helmodi Chrone performed by Canutus King of Denmarke who after he had examined the processe of twelve Theeves and condemned them he found one who said he was extracted of Royal bloud it is reason saith the King some favour should be done to this man therefore give him the highest Gibbet We read in the twelfth Novell of Justinian of an oath imposed upon Magistrates against inclining or addicting to either partie yea they put themselves under a deep and bitter execration and curse in case of partiality imploring God in such language as this Let me have my part with Judas and let the leprosie of Gehezi cleave to me and the trembling of Cain come upon me and whatsoever else may astonish and dismay a man Fourthly you must be sincerely just 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 incorruptnesse and integrity 't is the proper portion of Judges Judges should be known by giving not by receiving 't was Claudians elogium of Honorius Non hic privatis crescunt aeraria damnis foul hands will breed troubled consciences you must take heed of being takers he that opens his hand
war but all 's as husht and peaceable as the Halcyons nest which stills the tempests and sliks and calmes the brow of Heaven where all the Citizens entertaine one another like fingers on the hand every one taking part with the good of his fellow being all great in the obedience they render to the law being all rich in the contenment of their desires and being all well pleased in the happinesse one of another In summe for I have no more room for particulars whatsoever the Luxuriant and free fancies of Poets or the choice and delicate pens of antiquity have either conceited or written of the Elysian fields of the fortunate Islands of the felicities of a golden age of the vertues and ornaments of an Agathopolis which was drest as rich as the Ideaes of the divine Plato could make it why all these do but help to piece out that traine of blessings that follow a good government When any Land becomes blest with such Magistrates and Judges as are indeed the faithfull deputies of their Maker and whose breasts are the Oceans or sewers into which all the cares of private men empty themselves and whose vigilant eyes are the constant centinels of the peoples safety and whose steady hands have learned to hold the seales of justice try and even and to weigh right and wrong by their proper weights and whose just breath is the peoples best and wholsomest aire as being that that gives life and soul to all their proprieties rights and priviledges In a word when people have such Judges that neither turn Judgment into wormwood nor into vinegar that neither imbitter it by injustice nor sowr it by delay that suppresse as well fraud as force that only hear causes speake and not persons that are Melchisedeck-like without father or mother that hate to pay private wrongs with the advantage of their office that have so well got the rule over themselves that their passions do not unfit them to rule over others that look straight forward in a right line upon equity without glancing aside upon revenge displeasure or recompence that keep not only their hearts clean but their hands too take heed of bos in lingua that in that cause bestow diligence in sifting where the right is difficult in finding that love to have truth come naked to the bar without false bodies and disguises that neither make briars nor springes of the laws to catch every thing they lay hold of that neither crook nor bow the laws by hard constructions and strained inferences but straiten them by just expositions and if they seem to be antiquated or obsolete wipe off their dust by a judicious clearing that never browbeat a Witnesse or look an Evidence damp but with a gentle midwifery helpout the stammering tongue that his proof may not miscarry that in their callings approve themselves to be the dreadfull instruments of Divine revenge and the ministers of God for good to the people and to be legum vindices the guard of laws and as was said of Cassius reorum scopulos the Rocks or as one cals them the comets of the guilty the refuge of innocency the paymasters of good deserts the Champions of right the patrons of peace the supporters of the Church and the true Patres Patriae or Fathers of their Country being more learned then witty more reverend then plausible and more advised then confident hearing all things debated with patience and then proceeding to sentence in uprightnesse and pronouncing nothing but just judgement I say where Judges are such happy yea thrice happy are such a people and blessed is the Land that is in such a case for then such a Land becomes like the Israel of God when her Officers are peace and her Exactors righteousnesse such Magistrates God commands to be chose to be Commission'd and to be impowred even over his own people for so you see runs the Writ of election in my Text. 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 In this great Patent and Divine Charter of Magistracy or in this Theocratia or Government of Gods own setting up There is considerable First The Honour Secondly The Office First The Dignity Secondly The Duty Or if these be too generall take it in more particulars First Here is Gods mandamus from heaven for Government here is the charge of the Almighty for the erecting of a Magistracy and this is contained in the word constituito Thou shalt make or Make thou Secondly As here is the charge so here is the stile or the titles Judices Moderatores constituito Judges and Officers shalt thou make Thirdly Here are the persons invested with the right and power of electing and constituting Officers and they are the Collective body of the people or the Community in whole and these are included in the Pronown tibi Judices Moderatores constituito tibi Judges and Officers thou shalt make thee Fourthly Here is the Circuit of these Judges or the Territories of these Magistrates In singulis portis tuis quas Jehovah Deus tuus dat tibi per tribus tuas Judges and Officers shalt thou make thee in all thy gates which the Lord thy God giveth thee throughout thy tribes By Gates we are to understand all the Judicatories in Israel for Gates they were Domus Judicii the seats of Judgement They were of old placed in the Gates at the entrance of Cities for many reasons as Tarnovius notes at large upon Amos 5.10 but principally for this To let us know that Justice sitting at the Gate is a better safeguard for a City then a Corps-du-gard then either Bullwarks Percullises draw-Bridges or whatsoever else that hath most defence in it Fifthly and lastly Here is the duty of these Judges in the concluding words of the text Qui judicent populum judicio justo 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 And thus I have presented you with the Logick of the Text and shewed you how the parts lye in it I shall endeavour to slide apace through them all as intending only ut Canis ad Nilum to glance upon the former but to stop yea and to stay upon the later First then I will begin with the constituito of the Text Thou shalt make 'T is God 's mandamus to his own Israel Inde potestas unde spiritus Tertul. Apol. so saies Tertullian And an ancienter then he Cuius jussu homines ejus jussu Reges so Irenaeus Iren. lib. 5. cap. 24. And an ancienter then either of them The powers that are are ordained of God so Saint Paul Rom. 13.1 Anarchy is the peoples phrensie but Magistracie the Ordinance of the Almighty I deny not but the primitive state of the first created
man under God was free and absolute 't was his Prerogative and priviledge that he was born to Command and not to obey But alas How short lived was this primitive state Plus quam veri-simile est c. saies the Learned Vsher 'T is more then probable Annal. p. 2. that the first day that Adam possest his Paradise he was forc't to quit it And such was the guilt and misery of his first sin that it not only broke the peace between God and man but also between man and beast and between man and man and filled the creation with an universal attaxie and disorder so Government became absolutely necessary for the setting of us to rights again So that what is said of the original of Laws holds true of powers Ex malis moribus bonae leges nascuntur so Ex naturae vitiis bonae potestates As good Laws have their original from bad manners so good Government from corrupted natures and therefore he that shall but trace Government to the spring-head and first rise of it he shall finde it to be extracted from God and to be as old as the first man It hath not alwaies I confesse worn one and the same face and kept one and the same form but as the world hath altered so hath the Government at first the world was confined within one Family and then it began to widen by little and little and when the world was thus but in fasciis the Government of it was Patriarchal and the Governours of it were called Patriarchs or Father-Princes their compounded name speaking their mixt Authority and this kinde of Government continued after the death of Methuselah for we reade of him that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Joseph Antiq. l. 1. cap. 2. that he passed over his Principality to Lamech his sonne But now when this first method of Government became discomposed and disturbed through the numerosity of mankinde and by their farre dispersed habitation why then other forms of Government succeeded for men falling among themselves to doe wrong and violence they saw it necessary to set up some Authority that might restrain by force and punishment what was committed against peace and common right and this Authority and Power of self-defence and preservation before devolved being originally and naturally in every one of them and unitedly in them all they for ease and for order and that each man might not be his own partial Judge agreed to transferre and delegate it either to one whom for eminence of wisdom and integrity they preferred above the rest or else to more then one whom they judged of equal merit the first of these was called a King the other Magistrates Sometimes we read God did by his own immediate designation appoint the person make and declare the choice and invest him with a right of Soveraignty over his people as Moses David and others but ordinarily God cals mediately by committing it to the people to elect both the form of Government and the Persons that are to sway it over them and of this nature is the Constituito in the Text. And thus from the charge I should have came in the next place to the stile or title Judices Moderatores and then to the Circuit or Territories but these I shall skip over as lesse material and come to the main of the Text viz. The great and important Duty of all Judges and publick Trustees of State and that is to execute judgement Non tantùm potestas Judici concessa sed fides saith Cicero pro Cluentio Judges they have not only power but a trust reposed in them not only Dignity but Duty and it is safer for mortals to hear of their duty then of their dignity Give me leave therefore my Lords to discourse freely and plainly to you concerning the great master-duty concerning the Primum and the Vltimum the Alpha and Omega of your calling viz. The execution of just judgement If the world be a Harp as saith the eloquent Sinesius then Justice windeth up the springs stirreth the fingers toucheth the instrument giveth life to the airs and maketh all the excellent harmonies If the world be a ring Justice is the diamond if it be an eye Justice is the soul if it be a Temple Justice is the Altar In a word that which the air is in the elementary world the Sun in the celestial and the soul in the intellectual that is Justice in the civil It is the air that all the afflicted desire to breathe the Sun that dispels all clouds the great principle that in a civil sense giveth life to all all yields to this virtue it is inchased in all laudable actions and all laudable actions are incorporated in it according to that of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist Eth. lib. 5. t is inclusive of all other virtues and they all run out from it as lines from their centre and they all run into it as rivers into the ocean To be just is to be all that which an honest man may be for Justice is Suum cuique tribuere to give every man his due and in a large sense t is every mans duty as well as the Magistrates but t is not to be considered in the Text in such a latitude but as t is properly the act of Judges and Officers Justice and judgement in the Scripture stile and phrase they are often Synonima's and are put for one and the same thing but sometimes they are distinct I have read of a tripple acception of Judgement intra Grammaticos as also intra Theologos First Amongst Humanists and Philologers Judgement is taken for the last act of the understanding and a conclusive resolution and thus it relates to contemplation Secondly T is sometimes Synonimous to discretion and then it relates to practice when we consider not so much the very bare act or thing that we are about as the whole frame or machine of the businesse as it stands complexioned and circumstanced with time place and beholders Thirdly Judgement it not onely relates to present practice but it enlightens and governs posterity and so it comprehends under it decrees and sentences and judgements in Courts and thus you see the word in the Criticks sense Now intra Theologos Judgment paisses first for severe and meer Justice for that which we call Summum Jus which on Gods part is alwaies just though to us it be a depth and unsearchable Secondly T is used to signifie not onely meer justice but as t is attempered and sweetned with mercy Reuch de Art Cabal lib. 1. The Cabalists as one which understood them well observes have concluded that the word Judgement applied to God hath every where a mixt and participant nature implies both judgement and mercy Thirdly The word Judgement it is used to signifie not onely the judicial part of the Law as the Talmudists would straiten it but the whole Law of God Judgement it sometimes implies
follow let me beseech you my Lords to lead them the way in this great duty I confesse I have been long speaking to you and therefore I shall onely adde these last words First Be just to your selves by subjecting within you your bodies to your souls and your souls to God the first great acts of injustice are to place Passions upon Altars Reason in Fetters and to search for the Kingdom of Heaven in the sway of our own private interests Secondly My Lords Be just to the people which you can never be unlesse you be religious in devotion fearing God moderate in your passions impartial in your affections mortified in your lusts learned in the Laws incorrupt in your Courts deliberate in your Counsels patient in hearing diligent in sifting expedite in proceeding grave and solemn in sentencing and concluding onely according to evidence For Illud tantum judex novit quod novit judicialiter And thus from you my Lords that are commissioned for the Seat of Judgement I turn to those Gentlemen that are in Commission for this County And as you at such a time as this when the Judges themselves are present have least to doe so I have least to say onely let me leave this Exhortation with you Let me beseech you to be like Jethro's Justices of peace Exod. 18.21 22 23. Or like Plato's Commonwealths-men for the Commonwealth Study your Oath more then your Commission and think of your Duty more then your Dignity and doe not decline the burdens that cleave to your Honours and if the calling come upon you before you are grown up to it let double diligence make you old and experienced in the Law though you be tender and green in years and consider that whatsoever swervings or stumblings any part of the Body politick makes within your verge or under your eye the blame will be sure to light upon you And thus from you the Justices let me addresse my self to those that shall be Counsellours and Pleaders and Advocates at this Assize And let me beseech you to be just and never to plead that cause wherein your tongue must needs be confuted by your conscience nor again to set the neck of the Suit that hath once been broken by a definitive sentence Remember what answer Papian the Oratour made to Caracalla the Emperour when he was requested by him to defend the fratricide of his brother Geta Non tam facile est excusare fratricidium quà m facere It is more easie to commit it then to defend it Take heed you doe not Per verborum aucupia tendicula as Tully speaks by cunning construction either of Laws or Actions protect injurie and wrong innocence When any Client comes to you be sure you not onely hear but examine and pinch his cause there most where you fear t is foundred if the cause be doubtfull warrant no more then your own diligence and whatsoever privacies have past between your Clients and you let them sleep between you and not take air at your tongue Take heed of tediousnesse and as one saies doe not make a Trojan Siege of a Suit but what you doe doe it seriò and doe it subitò Be not like to those fickle and unstable Lawyers that Salust so bitterly inveigheth against condemning them for their floating and uncertainty Qui fluctuantes huc illuc agitantur who deny that to be Law this Term which they pleaded to be Law the last And be sure to look to your hearts and to look to your hands and keep them both cleane Be not like Ayat the Jew who could Vtrâque manu tanquam dextrâ uti Take bribes on both sides and doe Justice on neither Remember what Aegardus adviseth you to Magis apud vos valeat amor veri quam lucri Love Justice above your fee. Lastly Be faithfull to the side that first retains you and not like Demosthenes who as Plutarch tels us secretly wrote one Oration to Phormio and another in the same matter for Apollidorus his adversary And thus from the Councellours and Pleaders I come to the Jurors It were well if they would learn too not to goe like Sheep one after another Qua itur non qua eundum but to be lead by the sacrednesse of their Oath and the light of their Evidence and to proceed Secundum allegata probata and not suffer themselves to be blindely overruled by another mans prejudice It many times fals out that a tame Jury by the craft of some one cunning fellow in the company who happily comes possest with prejudice to the cause or ill will to the person are made to swallow any thing and to give in a Verdict to the Oppression of innocence whereas their sinne is never the lesse because they sinne with company Let me beseech all those therefore that shall be of the Jury at this Assize to doe no otherwise then as God shall put into their hearts and the Evidence shall lead them If crafty Fore-men or subtil and wily After-men will doe that that is not just and to make quick work of it conclude of a Verdict before they hear the Evidence Let the honest Jury man keep pace with the Evidence and his own conscience and think it not pride but Justice to be honester if not wiser then his Leaders I have now onely one word more to them that are to be Witnesses and then I am at an end Let me beseech all such to be just let them consider how that upon their Testimony depends the issue of every Cause if the Judges sentence or the Juries Verdict point at a false hour the fault may not be in the hand or gnomon either in the Judge or the Jury but onely in these wheels of the Clock the Witnesses it concerns you therefore to be just you must not dare to think your Oath Volaticum jusjurandum a slip-knot neither must you dare out of ill will or fear or any base end to forge a Testimonie as Gashmu did Nehem. 6.6 7. nor yet to stretch a tender truth beyond measure on purpose to do mischief Psa 52.3 4. as Doeg did Great is the sin of a false Witness First He sins against God Cujus veritatem annihilat Secondly He sins against the Judge Cujus judicium perturbat Thirdly He sins against the party accused Quem suo testimonio condemnat Lastly He sins against himself first against his fame and credit for what more infamous then for a man to be Punica or Graecafide to be such an one whom neither word nor wax can binde and which is worst of all he sins against his own soul for a false Witnesse shall not be unpunished and he that speaketh lies shall not escape so saies Solomon Prov. 19.5 Let every Witnesse therefore be just and speak the truth and the whole truth As God shall help him And thus I have discharg'd all my Task in the Pulpit save onely putting up my hearty praier to God for you all that from the highest to the lowest from the Judge to the Witnesse you may all discharge yours in the Court which I shall next proceed to FINIS