Front Page Titles (by Subject) CHAPTER V.: Of the Constituent Parts of Courts.—Of the Judges. - Collected Works of James Wilson, vol. 2
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CHAPTER V.: Of the Constituent Parts of Courts.—Of the Judges. - James Wilson, Collected Works of James Wilson, vol. 2 
Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2.
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Of the Constituent Parts of Courts.—Of the Judges.
I now proceed to consider the constituent parts of courts. The judges form one of those constituent parts. Let me introduce their character by the beautiful and correct description of the magna charta of King John. A judge should know the laws: he should be disposed to observe them.
It seems to be the opinion of some, that severity should be the striking feature in a judge’s countenance. His countenance should reflect the sentiments of his heart. In his heart should be written the words of the law. If the law say, and the law does say, that, in all its judgments, justice shall be executed in mercy; on the heart of a judge will this heavenly maxim be deeply engraven; in his looks it will beam.
He ought, indeed, to be a terrour to evil doers; but he ought also to be a praise to those who do well. The more numerous as well as the more valuable part of the citizens are, we trust, of the latter description. Complacency, therefore, rather than vengeance, should habitually influence the sentiments, and habitually mark the features of a judge.
A judge is the blessing, or he is the curse of society. His powers are important: his character and conduct can never be objects of indifference.
When a judge is mentioned as the curse of society, Jefferies,2 of infamous memory, instantly starts into view. Some circumstances, which attended the fate of that odious man, place, in the strongest light, that deep detestation which is always entertained, and which is expressed whenever it can be expressed with safety, against the character and person of an oppressive and tyrannical judge.
When his master abdicated the throne, his own security lay only in flight. From the law, the law’s worst assassin could expect no protection. That he might escape unknown, he shaved his eye brows, put on a seaman’s habit, and, all alone, made the best of his way to Wapping, with a design to take shipping for a foreign country. But his countenance could not remain undiscovered under all this disguise: a man, whom, upon a trial, he had frightened almost into convulsions, no sooner got a glimpse of it, than, in a moment, he recollected all the terrours he had formerly felt. Notice was instantly given to the mob, who rushed in upon him like a herd of wolves. He was goaded on to the lord mayor: the lord mayor, seeing a man, on whom he had never looked without trembling, brought before him in this situation, fell into fits, was carried to his bed, and never rose from it. On his way to the tower, to which he was committed, he saw threatening faces on every side; he saw whips and halters held up around him; and cried out in agony, “for the Lord’s sake, keep them off.” I saw him, I heard him, says a cotemporary historian, and without pity too; though, without pity, I never saw any other malefactor.a
On the other hand—I now speak from Beccariab —a man of enlightened understanding, appointed guardian of the laws, is the greatest blessing that a sovereign can bestow on a nation. Such a man is accustomed to behold truth, and not to fear it: unacquainted with the greatest part of those imaginary and insatiable necessities, which so often put virtue to the proof, and accustomed to contemplate mankind from the most elevated point of view, he considers the nation as his family, and his fellow citizens as brothers.
Patience of hearing, says the great Lord Bacon, is an essential part of justice; and an overspeaking judge is no well tuned cymbal. It is no grace to a judge, first to find that, which, in due time, he might have heard from the bar; or to show quickness of conceit in cutting witnesses or counsel off too short; or to prevent information by questions, even by pertinent ones. In hearing a cause, the parts of a judge are four—to direct the evidence—to moderate length, repetition, or impertinency of speech—to recapitulate, select, and collate the material parts of that which hath been said—to give the rule or sentence.c
A judge, particularly a judge of the common law, should bear a great regard to the sentiments and decisions of those, who have thought and decided before him.
It may be asked—why should a point be received as law, merely because one man or a succession of men have said it is law, any more than another point should be received as reason, merely because one philosopher or a set of philosophers have said it is reason? In law, as in philosophy, should not every one think and judge for himself? Stare decisis3 may prevent the trouble of investigation; but it will prevent also the pleasure and the advantages of improvement.
Implicit deference to authority, as I have declared on more occasions than one, I consider as the bane of science; and I honour the benefactors of mankind, who have broken the yoke of that intellectual tyranny, by which, in many ages and in many countries, men have been deprived of the inherent and inalienable right of judging for themselves. But how natural it is, from one extreme to vibrate with violence to its opposite one! Though authority be not permitted to tyrannise as a mistress; may she not be consulted as a skilful guide? May not respect be paid, though a blind assent be refused, to her dictates?
A man must have an uncommon confidence in his own talents, who, in forming his judgments and opinions, feels not a sensible and strong satisfaction in the concurrence of the judgments and opinions of others, equally or more conversant than himself with the subjects, on which those judgments and opinions are formed. Society of wise men in judgment is like the society of brave men in battle: each depends not merely on himself: each depends on others also: by this means, strength and courage are diffused over all. To human authority in matters of opinion, as well as to human testimony in matters of fact, a due regard ought to be paid. To rely on both these kinds of evidence, is a propensity planted, by nature, in the human mind.
In certain sciences, a peculiar degree of regard should be paid to authority. The common law is one of those sciences. Judicial decisions are the principal and most authentick evidence, which can be given, of the existence of such a custom as is entitled to form a part of the common law. Those who gave such decisions, were selected for that employment, on account of their learning and experience in the common law. As to the parties, and those who represent the parties to them, their judgments continue themselves to be effective laws, while they are unreversed. They should, in the cases of others, be considered as strong evidence of the law. As such, every prudent and cautious judge will appreciate them. He will remember, that his duty and his business is, not to make the law, but to interpret and apply it.
[1. ]And the suppliant crowd will not fear the face of its judge, but they will be safe under the judge.
[2. ]George Jeffreys (1645–1689) was the highly political, partial, and vindictive judge who had Algernon Sidney wrongly executed.
[a. ]4. Guth. 1063.
[b. ]C. 42.
[c. ]3. Ld. Bac. 377.
[3. ]To stand with what has been decided.