354 ADVAKClilMEKT OF lEARNlica [bOOK VllL 



for the power of supplying, extending, or moderating the 

 laws, differs but little from a power of making them. 



XXXVIII. These courts of jurisdiction should not be 

 committed to a single person, but consist of several ; and 

 let not their verdict be given in silence, but let the judges 

 produce the reasons of their sentence openly and in full 

 audience of the court ; so that what is free in power may yet 

 be limited by regard to fame and reputation. 



XXXIX. Let there be no records of blood, nor sentence 

 of capital crimes, passed in any court, but upon known and 

 certain laws : God himself first pronounced, and afterwards 

 inflicted death. Xov should a man lose his life without first 

 knowing that he had forfeited it. 



XL. In the courts of justice, let there be three returns of 

 the jury, that the judges may not only lie under no necessity 

 of absohing or condemning, but also have a liberty of pro- 

 nouncing the case not clear. And let there be, besides 

 penalty, a note of infamy or punishment by way of admonish- 

 ing others, and chastising delinquents, as it were, by putting 

 them to the blush with shame and scandal. 



XLI. In courts of justice, let the first overtures and in- 

 termediate ])arts of all great offences be punished, though the 

 end were not accomplished. And this should be the principal 

 use of such courts ; for it is the part of discipline to punish 

 the first buddings of offences ; and the part of clemency, to 

 punish the intermediate actions, and prevent their taking 

 effect. 



XLII. Great regard must be had in courts of equity, not 

 to afford relief in those cases which the law has not so much 

 omitted as despised for their levity, or, for their odiousness, 

 judged unworthy of a remedy. 



XLIII. But above all, it is of the greatest moment to the 

 certainty of the laws we now speak of, that courts of equity 

 keep from swelling and overflowing, lest, under pretence of 

 mitigating the rigour of the law, they should cut its sinews 

 and weaken its strength by wresting all things to their own 

 disposal. 



XLIY. Ko court of equity should have a right of decree- 

 ing against a statute, under any pretext of equity whatever ; 

 otlierwise the judge would become the legislator, and have 

 all tilings dependent upon his wiU. 



