Essays, or discourses, vol. 2 (of 4)

by Benito Jerónimo Feijoo

XII. I am inclined to think, Spain is more free from this pestilence than other kingdoms; at least in ministers of your class, this meanness has rarely been observed. It has ever been remarked, that with us, the higher people have been raised on the seats of justice, they have seemed the further removed from the baseness of avarice.

XIII. Would to God, our tribunals were as deaf to recommendations, as they are untainted with bribes! It is on this side, their credit is most tarnished in the public opinion. There is scarce a sentence given in a civil controversy, which the malice of grumblers, and the voice of neutral people, does not impute to have been the effect of some powerful recommendation. The presumption of the influence, which the protection of men of weight has with the Judges, is so prevalent, that many who have been despoiled by an unfair decision, and who are persuaded of the justness of their cause, are afraid to appeal, if they know their opponent has great connections.

XIV. We should hope, the world is greatly mistaken in this matter. The ministers of justice, as far as they are able, and they most commonly can do this, must discharge and comply with the duties of their function in judicial phrases, and according to the words of the law; and although there may have been positive promises made, when they come to the sentence, they must consult and conform to the books of jurisprudence, and not the letters of recommendation. God defend us, however, from the serious misfortune of the protector of either party, having, or ever being able to have, influence in the seats of justice! For then we may have reason to apprehend, that to the shame of the law, the motive of the conduct of the partial Judge may be betrayed by his countenance, and that the dread of such motive being known, may be the torturer who presses out and exposes the secret, or else, that the thing may be unravelled by conjectures, or proved by some transactions in the business; and these are the sort of cases, which, after many years study, make people understand the law in a sense they never understood it before, and which, in the same instant, increases and lessens their esteem for the same authors, and causes the breath of favour to incline the balance, with which they weigh probabilities, to the side where there is the least weight in the scale. I remember that great lawyer, Alexander of the family of the Alexanders, in his treatise called Dias Geniales, says of himself, that he abandoned the profession of an advocate in disgust, from having observed in his own practice, that neither the wisdom or abilities of a counsellor, nor the goodness of a cause, were of any avail in courts, when the opposite parties were espoused by people of power.

XV. But excepting these instances, which have weight with those only, who had rather rise to the highest seats on the bench than ascend to heaven, other modes of favour in courts are trifling and of little use or consequence; but to speak the truth, we ourselves give occasion to their being thought useful and of consequence. If when a person of authority intercedes on behalf of a suitor, we give him hopes and encouragement; or if our answers to such applications, are in terms which exceed what is necessary in a judicial reply; and if afterwards, when that person obtains a sentence in his favour, we seem desirous, or behave so as to make it be thought, our suffrage was a compliment to the great man who interested himself in the suitor’s behalf, in order that he should think he was obliged to us; we are the authors of this error in mankind, and the cause of the injury, which, in consequence of it, our credit suffers with the world.

XVI. This notion of the utility of recommendations, is an impediment to our business, as well as injurious to our reputation; for it is the occasion of our being interrupted with visits, and puts us under the necessity of answering letters of intercession, by which means we waste a great part of that time, which we ought to employ in study. If they knew they were taking all this pains to no purpose, they would not embarrass us with their applications, nor rob us of our time.

XVII. How then are we to act? That is easily determined; speak plain, and undeceive all the world. Let them know, that the sentence depends upon, and is ruled by the law, and not by solicitations and private friendships; that we can serve no man at the expence of justice and our conscience; and that that which they call being favourable, the pretence with which they cover all their petitions, upon a practical examination of things, is a chimera; for a Judge can never shew favour, or at most the cases in which he can do it are metaphysical; even in doubtful and obscure cases, and in those where the probabilities are equal, the laws prescribe rules of equity, which we are strictly and rigorously bound to follow. Oh! but some cases are left to the discretion of the judge! It is true, but they are not for this reason to be determined by his absolute will. Prudential maxims, and rules of equity, point out the road we should pursue; and it is not lawful for us to follow any other course, either for the sake of obliging great men or friends. When it is said, this or that is left to the will and pleasure of the Judge, it should not be understood to mean his absolute uncontrolable will, but to imply, that he is to be guided in his decision by the dictates of reason, and the principles of law. This definition, is conformable to the sense of the Latin verb arbitror, which signifies an act of the understanding, and not of the will.

XVIII. I am well aware, that objections may be made to this frank mode of acting: the first is, that we may be called blunt and ill-bred; but, besides that the reflection would be unjust, it would last no longer, than till it was generally known, we had resolved to adopt this method of acting, and till it was become common and familiar among us. While there shall be but one or two judicial ministers who act in this open ingenuous manner, their candid behaviour may pass among the ignorant for want of breeding and courtesy; but if all the rest were to do the same, even the ignorant would become sensible, that what they had called want of breeding, was integrity; and they would also be convinced, that this is beneficial to them, and a great saving both of money and trouble, which are both wasted in running after, and seeking for friends and patrons, whose assistance and protection is useless to them.

XIX. The second objection is, that judicial ministers would lose a great part of the respect and homage which is now paid them, it being certain, that civilities of this sort, are not so much the result of the reverence due to the character of a Judge, as the effect of the imagined dependance on his favour. It is established upon the credit of good authors, that Epicurus did not, as it is vulgarly thought, deny the existence of the deities, but only their influence or power to do good or harm; but this was sufficient, to cause the tenet to be held as atheistical in practice; for he who denies the power of the Gods, denies them adoration also. Men do not sow obsequies, but with the expectation of reaping a harvest of benefits, and dependance is the only stimulus or first mover to worship; therefore, when men come to consider the tribunal as the mere organ of the law, where every thing depends upon the intention of the legislature, and nothing upon the inclination of the Judge, the applications to the ministers of justice, would be very few and very slight.

XX. This objection would have great weight with those Judges, who desire to be regarded and addressed as deities: but do you, my Son, contemplate yourself as placed on the bench, and not on the altar; and remember, that you are not an idol destined to receive worship and offerings, but an oracle ordained to articulate truths. This is the manner in which you should explain yourself, and undeceive the world; assure the great of your respect, and your friends of your esteem; but intimate both to one and the other, that neither esteem nor respect can gain admittance into the cabinet of justice, because the fear of God, who is the door-keeper of the conscience, requires that they should remain in the antichamber.

XXI. But there may still rest with Judges a discretionary power of shewing courtesies, if not in points that concern the substantial parts of the cause, in the mode of administering justice; I mean, if not in the essence of the sentence, in the brevity of dispatch. This is an error, which I have observed some of our Judges to have fallen into; and I call it an error, because with regard to myself, I have no doubt of its being one. It is an obligation upon us, to give the quickest dispatch possible to causes: and we do not shew favour to him, whose business is done with all possible speed; but to him we do not dispatch with the same expedition, we do injustice. The preference given to people in priority of dispatch, is partiality; and the minister who is the author of it, ought to make good the damages occasioned by the delay to him who was next in turn; in this matter, attention should be had to the nature of the cause, to the time the suit was commenced, and to the injury that would attend procrastination in the decision of it.