HAving heard a Report, that you are to be made a Judge; I shall, in confidence of our former Familiarity, take that Liberty, betimes; which your after-Character might re­strain; by giving my Thoughts concerning the Weights of this Post.

It's one of the most difficult, and dangerous, to the person who undertakes it, that occurs in the Government of this World; and you are entering into one of the most Capable and Best Soci­eties in Christendome, who will very narrowly observe your Halting.

The Truth of my Position will best appear, by laying down the ordinary Qualifications of a Tollerable Judge: Which may be Reduced to two main Heads; namely, Capacity, and Integrity.

Under Capacity, is Comprehended:

1mo. A Competent Knowledge of Law, Governed by Good Sense. Neither of which, separatly, will suffice.

I shall not inlarge upon this Point; because, common Subjects, must suppose, that their Rulers have taken care thereof.

2do. Courage, Tempered with Modesty, is Requisit for Exert­ing such Knowledge as is mentioned above.

Either of these, by it self, may, perniciously Deboard. For,

Natural Complexion may be such, as, on the one hand, being Heated, Swells over all the Banks of Law: Or, on the other hand, may, be so Chilled, upon the appearing of a great Party or Pub­lick Cause; as to sink under the Weight of Timidity. Both which proceed from a Secret Spring of Natural Defects; often, without any set Design of doing Injustice.

The Cure of which Diseases will be suggested under a subse­quent Head, of Self-observation.

Integrity doth Comprise many Ingredients, Reducible to Im­partiality, and Diligence.

Without these Virtues, even a solid Ʋnderstanding accompani­ed with a discreet Boldness, will not serve the Ends of Judge­ment designed by GOD and Man; but, on the contrary, may be abused to the worst purpose of perverting Justice more Effectually.

Impartiality Excluds:

1mo. All Respect of Persons (beyond Civility of Good Breed­ing) whether Parties or Pleaders, concerned in a Cause: And is intirely directed by the Merit or Demerit of the thing, pro­ven or to be proven, in Law.

Nothing is more agreeable to the nature of Judgement; and more necessary for Restraining the Arbitrary Proceedings of Judges: Which is the ground whereupon, Scripture, Reason, and Humane Authority, has fixed this Indefezible Rule. And which is to be extended even to casus pro amico; Tho', in the most dubious Case, or smallest Matter.

Because,

For discovering this great Snare (of casus pro amico) the most dangerous that is laid by the Fowler; It is to be observed,

1mo. That there are Rules in Law, for decideing the most dubious Cases which can occur. And therefore,

2do. These Rules are not to be broken, for personal Respect to any privat Freind, or publick Party, whatsomever.

The Rules are obvious in the Laws and Lawyers of all Nati­ons; Even when the Arguments on both Sides are, otherways, perfectly Equal, and the Judges Conscience cannot distinguish any difference in the Ballance: Namely, that in a matter thus doubtful, he is to give his Answer for the Defendant, or Possessor; Except in some Cases, where the Legal Favour of the Cause (not of the Person) predomines the Priviledge or Presumption which stands for the said Defendant or Possessor; as it falls out sometimes, pro pia causa, pro Libertate &c. contra fiscum, contra a­nimum donandi &c.

These Subsidiary Maxims of the Law it self, make the most un­clear Case in it self, to become most clear, as to the Issue of De­cision: [Page 3] And therefore, it's still according to Law. Or if, after all, it still remain obscure, so that the Judge cannot vote from full Conviction (which Paul calls, of Faith) then the Law it self allows a Non-Liquet.

But to Surrogate in place thereof, the Judges Personal Respect; is inconsistent with all the Principles of Nature and Religion. For, it's an Ʋsurpation; he having no Commission from GOD or the Sove­raign, to make the least Distinction betwixt his proper Friends; and those who are not so: It's Robbery; to take from another, who has the Misfortune not to be his Friend, and adjudge it to the person who happens to claim that peculiar Priviledge: It's directly opposite to Sacred Write, which forbids Respect of Persons in Judgement, without Limitation; The very favouring of the Lowness of the Poor, as well as the Lustre of the Mighty: It's Incompatible with the Oath de fideli; which reguards, Equally, all the Leidges, without Exception of the Receivers Kin▪ Freind, or Allay: It's against the common Sense of Mankind, painting Astraea, or Justice, with a Ballance perfectly equal, without those Senses, which might discover Names; And thereby Inveigle in a Byass: It does not answer that Confidence, which Prince and Subjects may and ought to expect in Judges: The Prince be­ing no more concerned in their Friends than other Leidges; And which of the Subjects would not stand in Horrour and A-gast, if the Judges Friends (whether Parties or Pleaders) might be law­fully preferred, in all such Cases as he shall imagine to be dubious?

Yet, still, it may be said that there remains a Legal Felicity in standing Friendly with Judges: Since, thereby, 1mo. They, hav­ing a good Opinion, by Knowledge, of the Parties Character, may Watch the more narrowly that a prevailing Impression or Influence do not over-run a Cause, Just in it self. Yea 2do, In order to search out that Justice which he knew not; being overlooked by Lawy­ers; I do not see why a Judge may not borrow from his own pri­vate time, for supplying ea quae desunt Advocatis, in point of Law; or even such Facts as arise from those which are Represented in the Process.

Thus, You see the utmost that I (tho' claiming a great share [Page 4] in your Friendship) do pretend to, if my Cause ever come before you.

Diligence, ought to be versant about two main Objects: Name­ly, It's to be observant of the Judge himself; and of the Business of Judgement.

As to the first,

Tho' a Judge be possest of the forgoing good Qualities, yet he needs to have a continual Watch over his Affections and Demeanaor; least he be surprised by sudden Emergents, that may derogat from the Respect due to his Character; or, at least, bring a stain on Religion, and Diffidence in his Justice; when his Conduct ap­proaches to, or has the appearance of, Evil; tho' it fall out meerly thro' Indolence or Inadvertance, without any formed Project of wresting Justice. Thus;

When one hath a Plea to mannage with a Person of Eminency in Church or State, or of singular Parts; a Man of a consider­able Party, or one that is near in Blood-Relation, or Confidence, or of the same Fraternity, with the Judge; some are apt officiously to Pity and simpathise with the Party supposed to ly under these disadvantages: Unless the Judge disabuse them by discovering a more than ordinary tenderness to his side.

When a Man is obnoxious to the Judges displeasure; either, be­cause of his having ill Principles or Practices, Private or Publick, without doors; or upon account of by-quarrels: He's presently in a Terror that this will Sway Judgement against him; and others are too apt to go in with this Foolish Notion: Unless it be Con­futed by the Judge's distinguishing the Person from the Cause, and one Case from another.

Yea, tho' a Regular Passion be justly Excited in a Judge; as when Parties are Litigious, drive off their Causes to the End of a Session, Lawyers are weak, of suspected Character, or Ramble; it no ways alters the Rule of Judgement in the principal Cause: but only Subjects the Person to Legal Chastisements, of Expences, Fine, or Reprimand.

Nothing gives greater occasion to the Scandalous Trade of Count­ing Noses, before hand, upon the presumption of a Judge's having [Page 5] espoused a side; then the voteing of a Cause in Bulk, upon the whole Matter; As if the particular Decisive Points thereof could not abide the test. And a Judges going through to vote in every Point (tho' perhaps not tenible, by it self) of a Cause, thought, by him, to be just in the main; is equally inexcusable: For evil is not to be done that Good may come of it.

A Judges useng weak, or Impertinent, Arguments, even for a Good Cause; gives an Impression to the Audience, that he is too earnest, that it should carry, without Respect to the Justice or Merits of it: As the Passions of Anger, or Pleasure, betrayed by Words or even Gestures; give Impressions, that Affection predo­mines over Reason, in that Matter.

If one speak much, where there is no necessity in respect that the general Bent goes Right; Beholders will conclude, that it's a Vanity to be esteemed Valuable, or to inhaunce Imployment on his Depen­dants: Besides, that it's a Robbing the Leidges of that time, to which they are Intituled for dispatching their Causes.

Yea, even an Affectation of Gratifying one, or Mortifying ano­ther; tho' the Cause will bear the Decision; is acting from a wrong Principle, in an Irregular manner, and to a sinistrous End: Either of which, doth vitiat a thing, tho' good upon the Matter.

A Christian must abstain not only from Evil, but likeways from the very Appearance of it, or approaches to it. And therefore, when ever the Judge Discovers, by the Appearance, of the Parties, or Pleaders, or Cause; that the perverse Notion of a Byass may be sur­mised: He ought, with a Jealous Eye, to be upon Guard, and take a peculiar Care, for making appear to the World, that he decides from a Principle of Justice, and is not acted by any base End of Gratification, &c.

But nothing is more unlike to this Spirit and Conduct; if any should lead about, industriously, those B—ts (called P—ts) as ware exposed to the People; or make a Semblance of ordering Processes so, as to Enhaunce the Perquisites of Servants. Obstinacy, likeways, in an Intenible Point, does, mostly, presup­pose such Springs, tho' often Invisible; and Tirrannical Grimaces, make a shew of Will, frequently, when Power is deficient: at least, [Page] we who are Country-men, and our Agents, make this Interpreta­tion of such Appearances: Wherein it is not fit to be more ex­plicite.

There are many other Duties, tho' some-what of different na­ture, Incumbent on a Judge; the Omission whereof doth mightily stain his Character. Thus

The useing Scripture-Phrases, meerly to make a Chime or Jest; is the worst of Sacriledge: And even Coarse Expressions, tho quaint enough in private Conversation; Expose the Gravity of a Judge's Character, to the scorn of the Mobb. Solomon sought out fitt Words.

A Court ought to beware of Covering, by a Decision betwixt two Parties; any Transaction in prejudice of a third: Or laying a Precedent, as a train; for another succeeding Case. Which is, in some degree, like the sentence against NABOTH; and a pro­stituting Judgment, to a Cloak of Intrigue. An endeavour to spoyl a just Interloquitor, by an ackward state of the Case; or stretching the words so high, (tho needlesly) as it cannot stand: and final­ly, all Captious Cunning, against the true Import of the thing, or the meaning, of the Majority; may be Ranked under the same head.

Let every one be persuaded in his own mind; for what's not of Faith (doubting) is Sin. And therefore, no reguard to the par­ty, or a fellow Judges opinion, must make one to stiffle his own, deli­berate, Sentiment; and Reasons for it. Since that would be to hold the Truth in unrighteousness; and he who doth not Endeavour to hinder wrong, when he ought, and (probably) may do it; is an Interpretative actor in it.

No Judge ought to make use of his Authority (but at most by modest and Reasoning Offices) to Induce a Transaction; whatever be his Inclination or interest therein. Least, like the Sons of Eli, he make Justice to be abhored upon the account, of what is, even, Ceded to by that Concussion.

What is premised doth agree pretty Exactly with the Scripture- and Law-Character of a Judge.

A Man of Truth, fearing GOD, able and ready to Judge the People at all Seasons; neither respecting the Person of the Poor, nor Ho­nouring [Page] the Person of the Mighty. He Searcheth out the Cause, which he knows not; and to that end, stayes Judgment, tho it seem Just, at the time, till the other party come and Search it out. Hee's never Ruffled with Passion, whatever Occurr; knowing that GOD guides the meek in Judgement; and the Wrath of Man works not the Righteousness of GOD. If the Case be too hard at present; he waits till this also be revealed to him: But Acts nothing through heast; for A furious Man aboundeth in Transgression. Tho there be a Reall, Yea unnacountable, Escape in a fellow-Judge; yet they are to Honour one another before the People. And even as to private Persons, whose Names fall to be mentioned in a Cause; the Judge is not to receive an evil Report; since Veritas convitii non Excusat in-Juriantem, except in so far as it Influenceth the Cause, being a direct Ingredi­ent in the Decision thereof. He will, likewise, commend himself to the Consciences of others; Especially those that are without. He'll Covet Respect rather from Love than fear: This last being the affection for which the Devil desires Sacrifice from the Pagans. Redeeming of others time, from his own Idle words; and speaking the Truth in his Heart; must Superceed Vain Discourses, and Ex­clude Arguments which a Man himself doth not beleive. As the wresting anothers words, is Equal to that Contention and Foolish Bab­ling, which is forbidden in Religion.

But the most dangerous Rock, to an Honest-Man; is a pretence of Equity, or Private knowledge; in Collision with Law, or Publick Know­ledge, by the Records of Proces, &c. As to which: The Ordinary Dis­tinctions will Easily dissentangle him with sufficient safety. For

As to Law: Legal Equity (called quitas Scripta) is a Law: And the Law it self hath bounded it, to Forms, Penalties, ceasing of the adequate Reason of a Statute or Custome, &c. Which therefore, the Pretorian or Chancry-power may apply. But Imaginary Cerebrine Equity that starts up upon sight, and Fancies that the Law it self is not Just in a particular Case; Turns the Judge (who is only an Executor) to a Legislator; and Sets up indigested notions or Ma­gotes, in place of the Solid Rules of Law that have been Establish­ed by the wisdom and Experience of Nations. In a word, it o­pens a Sluce to the greatest mischeifs, of Ignorance, Lasieness, or [Page 8] Affection; that would Reduce our Rights and State to a Chaos.

As to Fact. Nothing is more Inconsistent then one Mans being Judge and Witness in the same Cause; which plainly Excludes pri­vat knowledge, or unproven Assertions of the parties, from being his Rule. Besides, that he's only a single Testimony at best; and, frequently, the Subject is not Capable of such a proof, even tho there were Wittnesses Concurring. Nevertheless; it's Generally thought, that tho', positively, he cannot Decern on his proper knowledge; where there is not sufficient Legal Proof: Yet, Ne­gatively, he may assoilzie; when the pretended Legal Evidence ei non faciunt fidem, upon his proper certain assurance of the Contrary: at the least he may, in that Case, abstain from Judging.

As to the second; Concerning the Judges Diligence in Expedite­ing the Business of Judgement: It may be Comprised under two Heads; Namely 1mo. What relates to the Discussion of Processes. 2do. What reguards Acts of Court or Sederunt, for dispatch thereof.

It's needless to Expatiat upon the Diligence requisite in Pro­cesses; either as to keeping particular Legal Dyets, or a careful per­usal of Papers put into the Boxes: Since you will see a bright Ex­ample thereof in your Colleagues. Who are, to the Convicti­on of all that have opportunity of knowing it; under a surprising Fatigue; and consider the several Points of Causes, more Minutely and Gradually, then, perhaps, any other Judicature in Europe. There being few Cases of Intricacy or Import, which want a Triple-Concoction (at the Fore-Bar, Side-Bar, and Inner-House) in a very short time: And this is Equivalent, with far less Dela y, Trouble, and Expence; to the several Appeals that are made from Court to Court in other Constitutions.

This Industrious Study of Processes hath two Incident Advan­tages; Namely, One, to the Publick; For when the Ordinary Possesses the Cause, he can Reduce it to nete Points: Which not only abridges much Writting and time, when it's determined by himself, or Reported; but, likewise, will shortly, make the Body of our Law, one of the most distinct and determined, in Europe; by a Tract of Multiplicity and uniformity of Decisions. The other [Page 9] good Effect thereof will Redound to the Judge himself: So fixing his knowledge of the true State of the Case, that, thereafter, he soon discovers, with Ease; any Fallacious Representation of it, made to him­self or the whole Lords: and thereby, is proof against the vari­ous Inventions of parties; for prolonging the Plea, or making the Judges Affections to Swerve, in it.

The Convictions of Conscience, upon afounded knowledge, are the surest antidote against the Plague, of all manner of Solicitations: be­cause, this Inextinguishable Light cannot be Evaded by the Delusive Colours, whereby the best Laws that ever were made for Impartiali­ty, may be incroched on; Not Excepting the Excellent Fences which the Noble Bench have Sett; Calling in Honour to their As­sistance; against this pest.

Notwithstanding of all which Amaseing Accurracy of our Judges: Yet there is a great prejudice or Vulgar Error; taken up by severals of the less-thinking, at home, and amongst our Nighbours; against that part of the Constitution, by which they may, and do, alter Interloquitors; upon a second View of the Case: before it be Terminat by an Ʋltimale Extract.

But this mistake will Evanish, or rather, resolve into one of the greatest Glories of that Judicatory; when it's considered: 1mo. That, in the Nature of the thing; Man is Fallible: And therefore, if he either shut his Eyes, from a Head-strong Obdiuracy; against further Light (under competent Regulations) or do not change upon Discovery of greater Light, which afinite Mind may not have looked too with penetration enough, at the first presentment: It's a Criminal Debarring of Truth, or a direct Stiffling of Consci­ence. 2do. In Reputation; nothing can more Demonstrate the Impartiality and self-denyal of the Judge; then the giveing up of his own (Imaginary) Honour (which some, falsly think to be Interested in a former Vote) as an Act of Fealty and Homage to venerable Justice; which is a Ray of Divinity; when it comes to appear in it's true Lustre. But further 3tio. In Experience; these alterations, for the most part, Occurr upon Representations of new Fact; not formerly Informed Distinctly by the Lawer; or, in [Page 10] the throng of Bussiness, not narrowly noticed by the Judge. Neither of which is a ground of the least Reflection upon the best Humane Ʋnderstanding and Memory; in such a Multiplicity of Affairs, as are known to flow upon that Court, especially toward the End of Sessions. For 4to. In the Examples of other Nations; there is a far greater variation allowed. Thus, not only does one Court alter, upon Appeal, what another had determined (all which Gradations, are Comprised in the Constitution of our Seffion as aforesaid) but likewise, even the same Supream Court does, fre­quently, overrule what was Established before; as appears by their Printed Reports and Decisions. And there is a Revisio Revi­sionis at least, allowed of the same individual Cause; in those Sove­raign Tribunals which pretend to be the most Nice and Expeditious.

There is an Obvious Advertisement which arises, naturally; from this prodigious Toyl, in takeing up at first; or Subsequent Re­view of Causes, amongst us; and from many other greater Drudg­eries incident to Ordinaries, on the Bills, Witnessess, Compts, and Rankings, &c. Namely, that the Judge do his duty, with Chearfulness; without fretting at so great a Labour. For; he has Sworn this Fealty to his GOD and Prince: And therefore must not Grudge in paying that Redendo of Homage and Service. There is a Natural and Religious Delight in doing good, with all the might; whence it Follows, That the greater fatigue, Especially when it's Successful; will Enhance and Aggrandize the allacrity Besides that, such Common Offices being Transmuted to Acts of Religion towards GOD and Man: they look forward to proportional Degrees of Glory, at the last Recompence of Reward. Lastly, this Ra­tional Exercise of the Soul, is the most Manly and Noble, that Exists in Humane, Civil, Society: Not being Subject to the uncertainties of the Philosophers, and Physitians; nor obnoxious to the Variety of Humors, which disturb the Lawyer, and Statsman, &c. And there­fore, the most Ingenious and Sensible Man must be Enamoured with it.

In reflecting upon Acts of Sederunt: I remember to have heard, that, by your Institution, you have sufficient Powers for [Page 11] making us Easy; without troubling the Legislative: Who may mistake, and thereby marr, so nice a Constitution; as to such Forms, which, by their mutual Dependance, are like the Wheels of a Clok, one whereof being altered, (tho', in Appearance, to the better) makes the whole Machine to reel.

I doubt not but so eminent a Set of Judges as you're to enter too, will exerce their Legal Faculty: Especially with Reguard to what does not Lese the Substance of the Establishment. Such as; the Cuting off some needless Scrupulosities of Formes; which served rather to make the Law a Mistery or Trade, than for a Regular vehicle of Justice; and whereof the wise Romans were weary at last (Tit. C. de antiquis formulis tollendis) and which has been the genius of Proceedings, with us, since the Revolution. Of the same kind is the Restraint, by gradual Penalties; of Bills: found to be Groundless: Or of unnecessary Bills; upon Subjects which an Or­dinary might be impowered to expede. And it will be a Glory to the Honourable Bench, if they fall upon a Measure, for Re­moving the Reproach, by the Dispatch, of Compts, and Rankings: which, at present, irremediably stick: I mean, for want of Power in the Auditor; of appointing proper Assistants to Clerks (according to the Nature of the Respective Subjects) for order­ing the Fact in Minuts; and a competent Reward of these Pains: Reserving to the Ordinary himself, both the power of Supervising those Minuts, and pronuncing the Law Interloquitors thereon &c. which Sort of Method has been found necessary and expedient; by all rhe Soveraign Judicatories Abroad, and our Neighbours at Home▪ and has been, sometimes, successfully used amongst our selves, in our Supream Courts &c.

But there is one Caution, which I presume to hint, if you come to be concerned; Namely, that when such Acts are offered, u­pon Deliberation of some of your Colleagues; you do not obstruct: Tho' the Matter or Expression answer not, precisely, to what you think best. For, such Peculiarities are an Embargo, for the most part, upon any Proceedings; there being, commonly, in Subjects not already determined; as great a Variety of Opinions as of faces, [Page 12] Yet, if you are truely afraid, that the Rule proposed will, upon the Matter, be pernicious in it's Consequences; but not able to perswade, the Majority, thereof: Then, why may it not be try­ed for a Session, or a Year? To expire at a determined Time, unless if be continued. Of which kind of Temporary Acts for Experiment; There are many Precedents; in the Records, even, of the Legislative Wisdom here and in England.

I suppose that er'e now, you desire to be Relieved from the im­pertinent length of my Address; Tho' there are a great many other Things, in which it might be useful for you to know the Sense of the Country: But, to supply the rest; without running back to Examples of Antiquity Civil or Sacred, or incroaching on the Modesty of Living Instances; I leave with you two re­cent Patterns, one in our own, and the other in our Neighbour­ing Nation: Namely, the Lord Cheif Justice Hales, and the Lord President Stair; as possest of all that Learning, Wisdom, and Religion, which their excellent Works derive doun, to late Poste­rity. And that you may possess the Spirit which Inligthned and Conducted those Illustrious Heroes; is the earnest Wish of,