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ther, 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. 11. ‘May I sue a poor man for a debt or trespass 2' 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. 111. ‘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 countersecurity. 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 2’ 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 2' 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. v1. ‘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 pro-, ceeding 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. v11. ‘May one use such forms in lawsuits as in the literal sense are gross untruths (in declarations, answers, or the like) 2' 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. v1.11. ‘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. x 1. ‘May a witness conceal some part of the truth 2' 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. x 11. “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 land 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. 1. ‘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 lawsuits.
1. Such contentious suits do shew the power of selfishness in the sinner; how much self-interest is inordinately esteemed. 2. They shew the excessive love of the world; how much men overvalue the things which they contend for. 3. They shew men's want of love to their neighbours; how little they regard another man's interest in comparison of their own. 4. They shew 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 in- . mocent must seek out a wilderness, and fly from the face of