CASES AND DIRECTIONS AGAINST INJURIOUS LAW-SUITS, WITNESSING, AND
JUDGMENT.
_Tit._ 1. _Cases of Conscience about Law-suits and Proceedings._
_Quest._ I. In what cases is it lawful to go to law with others?
_Answ._ 1. In case of necessary defence, when the plaintiff doth
compel you to it. 2. When you are intrusted for orphans or others whom
you cannot otherwise right. 3. When your children, or the church, or
poor, whom you should do good to, are like to suffer, if you recover
not your talent that God hath trusted you with for such uses, from the
hands of unjust men; and they refuse all just arbitrations and other
equal means which might avoid such suits. 4. When your own necessity
constraineth you to seek your own, which you cannot get by easier
means. 5. When your forbearance will do more hurt by encouraging
knaves in their injustice, than it will do good. 6. Whenever your
cause is just, and neither mercy, peace, nor the avoiding of scandal
do forbid it: that is, when it is like to do more good than harm, it
is then a lawful course.
But it is unlawful to go to law, 1. When you neglect just
arbitrations, patience, and other needful means to avoid it. 2. When
your cause is unjust. 3. When you oppress the poor by it. 4. When it
is done in covetousness, revenge, or pride. 5. When the scandal or
hurt to your brother, is like to be a greater harm than the righting
of yourself is like to do good; then must you not go willingly to law.
_Quest._ II. May I sue a poor man for a debt or trespass?
_Answ._ 1. If he be so poor as that he cannot pay it, nor procure you
satisfaction, the suit is vain, and tendeth but to cruelty. 2. If he
have no means to pay, but that which will deprive him of food and
raiment, and the necessaries of his life or comfort, you may not sue
him unless it be for the supply of as great necessities of your own;
or in trust for orphans, where you have no power to remit the debt;
yea, and for them no cruelty must be used. 3. If your forbearance be
like to make him abler by his diligence or other means, you should
forbear if possible. 4. But if he be competently able, and refuse to
pay through knavery and injustice, and you have better ways to use
that money, if scandal forbid not, you may seek by law to recover your
own from him.
_Quest._ III. May I sue a surety whose interest was not concerned
in the case?
_Answ._ If his poverty make it not an act of cruelty, nor scandal
prohibit it, you may; because he was willing, and declared his
consent, that you should have the debt of him, if the principal pay
not. To become surety, is to consent to this; and it is no injury to
receive a man's money by his own consent and covenant. He knew that
you had not lent it but on those terms; and you had reason to suppose,
that he who would undertake to pay another man's debt, had sufficient
reason for it, either in relation or counter-security. But as you must
use mercy to the principal debtor in his poverty, so must you also to
the surety.
_Quest._ IV. May I sue for the use of money, as well as for the
principal?
_Answ._ This dependeth on the case of usury before resolved. In
those cases in which it may not be taken, it may not be sued for; nor
yet when the scandal of it will do more harm than the money will do
good. But in other cases, it may be sued for on the terms as the rent
of lands may.
_Quest._ V. May law-suits be used to disable or humble an
insolent, wicked man?
_Answ._ You may not take up an ill cause against him, for any
such good end; but if you have a good cause against him, which
otherwise you would not have prosecuted, you may make use of it, to
disable him from doing mischief, when really it is a probable means
thereto; and when neither scandal nor other accidents do prohibit it.
_Quest._ VI. May a rich man make use of his friends and purse in
a just cause, to bear down or tire out a poor man that hath a bad
cause?
_Answ._ Not by bribery or any evil means; for his proceeding must
be just as well as his cause. But if it be an obstinate knave that
setteth himself to do hurt to others, it is lawful to make use of the
favour of a righteous judge or magistrate against him; and it is
lawful to humble him by the length and expensiveness of the suit, when
that is the fittest means, and no unjust action is done in it; still
supposing that scandal prohibit it not. But let no proud or cruel
person think, that therefore they may by purse, and friends, and
tedious law-suits oppress the innocent, to attain their own
unrighteous wills.
_Quest._ VII. May one use such forms in law-suits as in the
literal sense are gross untruths (in declarations, answers, or the
like)?
_Answ._ The use of words is to express the mind; and common use
is the interpreter of them: if they are such words as the notorious
common use hath put another sense on, than the literal one, they must
be taken in the sense which public use hath put upon them. And if that
public sense be true or false, accordingly they may or may not be
used.
_Quest._ VIII. May a guilty person plead not guilty, or deny the
fact?
_Answ._ Common use is the interpreter of words. If the common use
of those words doth make their public sense a lie, it may not be done.
But if the forensic common use of their denial is taken to signify no
more but this, Let him that accuseth me, prove it; I am not bound to
accuse myself, or, _In foro_ I am not guilty till it be proved;
then it is lawful to plead Not guilty, and deny the fact, except in
cases wherein you are bound to an open confession, or in which the
scandal will do more hurt than the denial will do good.
_Quest._ IX. Is a man ever bound to accuse himself, and seek
justice against himself?
_Answ._ 1. In many cases a man is bound to punish himself; as
when the law against swearing, cursing, or the like, must give the
poor a certain mulct which is the penalty, he ought to give that money
himself; and in cases where it is a necessary cure to himself, and in
any case where the public good requireth it: as if a magistrate
offend, whom none else will punish, or who is the judge in his own
cause; he should so far punish himself as is necessary to the
suppression of sin, and to the preserving of the honour of the laws;
as I have heard of a justice that swore twenty oaths, and paid his
twenty shillings for it. 2. A man may be bound in such a divine
vengeance or judgment as seeketh after his particular sin, to offer
himself to do a sacrifice to justice, to stop the judgment; as Jonah
and Achan did. 3. A man may be bound to confess his guilt and offer
himself to justice to save the innocent, who is falsely accused and
condemned for his crime. 4. But in ordinary cases a man is not bound
to be his own public accuser or executioner.
_Quest._ X. May a witness voluntarily speak that truth which he
knoweth will further an unrighteous cause, and be made use of to
oppress the innocent?
_Answ._ He may not do it as a confederate in that intention: nor
may he do it when he knoweth that it will tend to such an event,
(though threatened or commanded,) except when some weightier accident
doth preponderate for the doing it, (as the avoiding of a greater hurt
to others, than it will bring on the oppressed, &c.)
_Quest._ XI. May a witness conceal some part of the truth?
_Answ._ Not when he sweareth to deliver the whole truth; nor when
a good cause is like to suffer, or a bad cause be furthered by the
concealment; nor when he is under any other obligation to reveal the
whole.
_Quest._ XII. Must a judge and jury proceed _secundum allegata
et probata_, according to evidence and proof, when they know the
witness to be false, and the truth to be contrary to the testimony;
but are not able to evince it?
_Answ._ Distinguish between the negative and the positive part of
the verdict or sentence: in the negative they must go according to the
evidence and testimonies, unless the law of the land leave the case to
their private knowledge. As for example, they must not sentence a
thief or murderer to be punished upon their secret unproved knowledge:
they must not adjudge either monies or lands to the true owner from
another, without sufficient evidence and proof: they must forbear
doing justice, because they are not called to it, nor enabled. But
positively they may do no injustice upon any evidence or witness
against their own knowledge of the truth: as they may not upon known
false witness, give away a man's lands or money, or condemn the
innocent; but must in such a case renounce the office; the judge must
come off the bench, and the jury protest that they will not meddle, or
give any verdict (whatever come of it); because God and the law of
nature prohibit their injustice.
_Object._ It is the law that doth it, and not we.
_Answ._ It is the law and you; and the law cannot justify your
agency in any unrighteous sentence. The case is plain and past
dispute.
_Tit. 2. Directions against Contentious Suits, False-witnessing, and
Oppressive Judgment._
_Direct._ I. The first cure for all these sins, is to know the
intrinsic evil of them. Good thoughts of sin are its life and
strength. When it is well known, it will be hated; and when it is
hated, it is so far cured.
I. The evil of contentious and unjust law-suits.
1. Such contentious suits do show the power of selfishness in the
sinner; how much self-interest is inordinately esteemed. 2. They show
the excessive love of the world; how much men overvalue the things
which they contend for. 3. They show men's want of love to their
neighbours; how little they regard another man's interest in
comparison of their own. 4. They show how little such men care for the
public good, which is maintained by the concord and love of
neighbours. 5. Such contentions are powerful engines of the devil to
destroy all christian love on both sides; and to stir up mutual enmity
and wrath; and so to involve men in a course of sin, by further
uncharitableness and injuries, both in heart, and word, and deed.
6. Poor men are hereby robbed of their necessary maintenance, and their
innocent families subjected to distress. 7. Unconscionable lawyers and
court officers, who live upon the people's sins, are hereby
maintained, encouraged, and kept up. 8. Laws and courts of justice are
perverted to do men wrong, which were made to right them. 9. And the
offender declareth how little sense he hath of the authority or love
of God, and how little sense of the grace of our Redeemer; and how far
he is from being himself forgiven through the blood of Christ, who can
no better forgive another.
II. The evil of false witness.
1. By false witness the innocent are injured; robbery and murder are
committed under pretence of truth and justice. 2. The name of God is
horribly abused, by the crying sin of perjury (of which before). 3. The
presence and justice of God are contemned, when sinners dare, in his
sight and hearing, appeal to his tribunal, in the attesting of a lie.
4. Vengeance is begged or consented to by the sinner; who bringeth
God's curse upon himself, and as it were desireth God to plague or
damn him if he lie. 5. Satan the prince of malice and injustice, and
the father of lies, and murders, and oppression, is hereby gratified,
and eminently served. 6. God himself is openly injured, who is the
Father and patron of the innocent; and the cause of every righteous
person is more the cause of God than of man. 7. All government is
frustrated, and laws abused, and all men's security for their
reputations, or estates, or lives is overthrown, by false witnesses;
and consequently human converse is made undesirable and unsafe. What
good can law, or right, or innocency, or the honesty of the judge do
any man, where false witnesses combine against him? What security hath
the most innocent or worthy person, for his fame, or liberty, or
estate, or life, if false witnesses conspire to defame him or destroy
him? And then how shall men endure to converse with one another?
Either the innocent must seek out a wilderness, and fly from the face
of men as we do from lions and tigers, or else peace will be worse
than war; for in war a man may fight for his life; but against false
witnesses he hath no defence: but God is the avenger of the innocent,
and above most other sins, doth seldom suffer this to go unpunished,
even in this present world; but often beginneth their hell on earth,
to such perjured instruments of the devil.
III. The evil of unrighteous judgments.
1. An unrighteous judge doth condemn the cause of God himself; for
every righteous cause is his. 2. Yea, he condemneth Christ himself in
his members; for in that he doth it to one of the least of those whom
he calleth brethren, he doth it to himself, Matt. xxv. It is a
damnable sin, not to relieve the innocent and imprisoned in their
distress, when we have power: what is it then to oppress them and
unrighteously condemn? 3. It is a turning of the remedy into a double
misery, and taking away the only help of oppressed innocency. What
other defence hath innocency, but law and justice? And when their
refuge itself doth fall upon them and oppress them, whither shall the
righteous fly? 4. It subverteth laws and government, and abuseth it to
destroy the ends which it is appointed for. 5. Thereby it turneth
human society into a state of misery, like the depredations of
hostility. 6. It is a deliberate, resolved sin, and not done in
passion by surprise: it is committed in that place, and in that form,
as acts of greatest deliberation should be done; as if he should say,
Upon full disquisition, evidence, and deliberation, I condemn this
person and his cause. 7. All this is done as in the name of God, and
by his own commission, by one that pretendeth to be his officer or
minister, Rom. iii. 3-6. For the judgment is the Lord's, 2 Chron.
xix. 5-8, 10. And how great a wickedness is it thus to blaspheme, and
to represent him as Satan, an enemy to truth and righteousness, to his
servants and himself! As if he had said, God hath sent me to condemn
this cause and person. If false prophets sin so heinously who belie
the Lord, and say, He hath sent us to speak this, (which is untruth);
the sin of false judges cannot be much less. 8. It is sin against the
fullest and frequentest prohibitions of God. Read over Exod.
xxiii. 1-3, &c.; Lev.; Deut. i. 16, 17; xvi. 18; Isa. i. 17, 20, 23;
Deut. xxiv. 17; and xxvii. 19, "Cursed be he that perverteth the
judgment of the stranger, the fatherless, and widow, and all the
people shall say Amen." Ezra vii. 26; Psal. xxxiii. 5; xxxvii. 28;
lxxii. 2; xciv. 15; cvi. 3, 30; Prov. xvii. 27; xix. 28; xx. 8; xxix. 4;
xxxi. 5; Eccl. v. 8; Isa. v. 7; x. 2; lvi. 1, 2; lix. 14, 15; Jer.
v. 1; vii. 5; ix. 24; Ezek. xviii. 8; xlv. 9; Hos. xii. 6; Amos
v. 7, 15, 24; vi. 12; Mic. iii. 9; Zech. vii. 9; viii. 16; Gen. xviii. 19;
Prov. xxi. 3, 7, 15. I cite not the words to avoid prolixity. Scarce
any sin is so oft and vehemently condemned of God. 9. False judges
cause the poor to appeal to God against them, and the cries of the
afflicted shall not be forgotten, Luke xviii. 5-8. 10. They call for
God's judgment upon themselves, and devolve the work into his hands:
how can that man expect any other than a judgment of damnation, from
the righteous God, who hath deliberately condemned Christ himself in
his cause and servants, and sat in judgment to condemn the innocent?
Psal. ix. 7-9, "The Lord hath prepared his throne for judgment, and he
shall judge the world in righteousness; he shall minister judgment to
the people in uprightness; he will be a refuge for the oppressed."
Psal. xxxvii. 6, "He will bring forth thy righteousness as the light,
and thy judgment as the noon-day." Psal. lxxxix. 14, "Justice and
judgment are the habitation of his throne." Psal. ciii. 6, "The Lord
executeth righteousness and judgment for all that are oppressed."
Psal. cxlvi. 7. In a word, the sentence of an unjust judge is passed
against his own soul, and he calleth to God to condemn him
righteously, who unrighteously condemned others. Of all men he cannot
stand in judgment, nor abide the righteous doom of Christ.
_Direct._ II. When you well understand the greatness of the sin,
find out and overcome the root and causes of it in yourselves;
especially selfishness, covetousness, and passion. A selfish man
careth not what another suffereth, so that his own ends and interest
be promoted by it. A covetous man will contend and injure his
neighbour whenever his own commodity requireth it. He so much loveth
his money that it can prevail with him to sin against God, and cast
away his own soul; much more to hurt and wrong his neighbour. A proud
and passionate man is so thirsty after revenge, to make others stoop
to him, that he careth not what it cost him to accomplish it. Overcome
these inward vices, and you may easily forbear the outward sins.
_Direct._ III. Love your neighbours as yourselves: for that is
the universal remedy against all injurious and uncharitable
undertakings.
_Direct._ IV. Keep a tender conscience, which will not make light
of sin. It is those that have seared their consciences by infidelity
or a course of sinning, who dare venture with Judas or Gehazi for the
prey, and dare oppress the poor and innocent, and feel not, nor fear,
whilst they cast themselves on the revenge of God.
_Direct._ V. Remember the day when all these causes must be heard
again, and the righteous God will set all straight, and vindicate the
cause of the oppressed. Consider what a dreadful appearance that man
is like to have at the bar of heaven, who hath falsely accused or
condemned the just in the courts of men. What a terrible indictment,
accusation, conviction, and sentence must that man expect! If the
hearing of righteousness and the judgment to come made Felix tremble,
surely it is infidelity or the plague of a stupified heart, which
keepeth contentious persons, perverters of justice, false witnesses,
and unjust judges from trembling.
_Direct._ VI. Remember the presence of that God who must be your
final Judge. That he seeth all your pride and covetousness, and all
your secret contrivances for revenge, and is privy to all your deceits
and injuries. You commit them in his open sight.
_Direct._ VII. Meddle not with law-suits till you have offered an
equal arbitration of indifferent men, or used all possible means of
love to prevent them. Law-suits are not the first, but the last
remedy. Try all others before you use them.
_Direct._ VIII. When you must needs go to law, compose your minds
to unfeigned love towards him that you must contend with, and watch
over your hearts with suspicion and the strictest care, lest secret
disaffection get advantage by it: and go to your neighbour, and labour
to possess his heart also with love, and to demulce his mind; that you
may not use the courts of justice, as soldiers do their weapons, to do
the worst they can against another, as an enemy; but as loving friends
do use an amicable arbitration; resolving contentedly to stand to what
the judge determineth, without any alienation of mind, or abatement of
brotherly love.
_Direct._ IX. Be not too confident of the righteousness of your
own cause; but ask counsel of some understanding, godly, and impartial
men; and hear all that can be said, and patiently consider of the
case, and do as you would have others do by you.
_Direct._ X. Observe what terrors of conscience use to haunt
awakened sinners, especially on a deathbed, for such sins as false
witnessing, and false judging, and oppressing, and injuring the
innocent, even above most other sins.