-- Tit. 1. Cases of Conscience about Lawsuits and proceedings
Cases and Directions against Injurious Lawsuits, Witnessing and Judgment Tit. 1. Cases of Conscience about Lawsuits 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 entrusted 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 lawsuits 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 lawsuits oppress the innocent, and attain their own unrighteous wills.
Quest. VII. 'May one use such forms in lawsuits 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 the 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 the denial is taken to signify no more than 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 be 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 to 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