A Quote by W. Somerset Maugham
There was once a professor of law who said to his students. When you are fighting a case, if you have facts on your side hammer them into the jury, and if you have the law on your side hammer it into the judge. But if you have neither the facts nor the law, asked one of his listeners? Then hammer the hell into the table, answered the professor.
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The song 'If I Had a Hammer' is geared toward people who don't have a hammer. Maybe before I had a hammer I thought I'd hammer in the morning and hammer in the evening. But once you get a hammer, you find you don't really hammer as much as you thought you would.
Law is no explanation of anything; law is simply a generalization, a category of facts. Law is neither a cause, nor a reason, nor a power, nor a coercive force. It is nothing but a general formula, a statistical table.
When you have the facts on your side, argue the facts. When you have the law on your side, argue the law. When you have neither, holler.
If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell
In our system, we leave questions of fact to a jury. But to render a verdict, a jury must know the law. For this, we rely upon jury instructions. Instructions are supposed to translate the law into lay terms that the jury can apply to the facts as they determine them.
Personally, I think government is a tool, like a hammer. You can use a hammer to build or you can use a hammer to destroy; there is nothing intrinsically good or evil about the hammer itself. It is the purposes to which it is put and the skill with which it is used that determine whether the hammer's work is good or bad.
I'm a common law judge. I believe in deciding every case on its facts, not on a legal philosophy. And I believe in deciding each case in the most limited way possible, because common law judges have a firm belief that the best development of the law is the one that lets society show you the next step, and that next step is in the new facts that each case presents.
Yet, when these facts are seen side by side with other facts in the case, it is difficult not to become lost in superstitious awe. Their very absurdity seems to prohibit the use of the words 'chance' and 'coincidence.' For the sceptic there remains only one consolation: if there should be such a thing as superhuman Law, it is administered with sub-human inefficiency.
My approach to deciding cases is I look at the law, I look at the facts, and I do my best to apply the law to the facts and make a decision based on the law and the facts.
I am sure from my experience of juries that, in a criminal case especially, they will obey the law as declared by the Judge; they will take the law from the Judge, whether they like it or do not like it, and apply it honestly to the facts before them.
But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence.
Newton's law is nothing but the statistics of gravitation, it has no power whatever.
Let us get rid of the idea of power from law altogether. Call law tabulation of facts, expression of facts, or what you will; anything rather than suppose that it either explains or compels.
Jurors have found, again and again, and at critical moments, according to what is their sense of the rational and just. If their sense of justice has gone one way, and the case another, they have found "against the evidence," ... the English common law rests upon a bargain between the Law and the people: The jury box is where the people come into the court: The judge watches them and the people watch back. A jury is the place where the bargain is struck. The jury attends in judgment, not only upon the accused, but also upon the justice and the humanity of the Law.
Reaching a conclusion has to start with what the parties are arguing, but examining in all situations carefully the facts as they prove them or not prove them, the record as they create it, and then making a decision that is limited to what the law says on the facts before the judge.
Friend, my enemy, I call you out. You, you, you there with a bad thorn in your side. You there, my friend, with a winning air. Who pawned the lie on me when he looked brassly at my shyest secret. With my whole heart under your hammer. That though I loved him for his faults as much as for his good. My friend were an enemy upon stilts with his head in a cunning cloud. -Dylan Thomas
You want a judge who makes objective decisions, and that's why temperament is such an important component of being a judge. You have to earn people's respect, because they know that you are deciding the case based on the facts and the law, not because they're trying to be your friend.
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