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Chapter 10: Litigation - William Paley, The Principles of Moral and Political Philosophy [1785]

Edition used:

The Principles of Moral and Political Philosophy, Foreword by D.L. Le Mahieu (Indianapolis: Liberty Fund, 2002).

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Chapter 10

Litigation

“If it be possible, live peaceably with all men”; which precept contains an indirect confession that this is not always possible.

The instances* in the fifth chapter of Saint Matthew are rather to be understood as proverbial methods of describing the general duties of forgiveness and benevolence, and the temper which we ought to aim at acquiring, than as directions to be specifically observed; or of themselves of any great importance to be observed. The first of these is, “If thine enemy smite thee on thy right cheek, turn to him the other also”; yet, when one of the officers struck Jesus with the palm of his hand, we find Jesus rebuking him for the outrage with becoming indignation; “If I have spoken evil, bear witness of the evil; but if well, why smitest thou me?” (John xviii. 43.) It may be observed, likewise, that the several examples are drawn from instances of small and tolerable injuries. A rule which forbade all opposition to injury, or defence against it, could have no other effect, than to put the good in subjection to the bad, and deliver one half of mankind to the depredation of the other half; which must be the case, so long as some considered themselves as bound by such a rule, whilst others despised it. Saint Paul, though no one inculcated forgiveness and forbearance with a deeper sense of the value and obligation of these virtues, did not interpret either of them to require an unresisting submission to every contumely, or a neglect of the means of safety and self-defence. He took refuge in the laws of his country, and in the privileges of a Roman citizen, from the conspiracy of the Jews (Acts xxv. 11.); and from the clandestine violence of the chief captain (Acts xxii. 25.). And yet this is the same apostle who reproved the litigiousness of his Corinthian converts with so much severity. “Now, therefore, there is utterly a fault among you, because ye go to law one with another. Why do ye not rather take wrong? why do ye not rather suffer yourselves to be defrauded?”

On the one hand, therefore, Christianity excludes all vindictive motives, and all frivolous causes of prosecution; so that where the injury is small, where no good purpose of public example is answered, where forbearance is not likely to invite a repetition of the injury, or where the expense of an action becomes a punishment too severe for the offence; there the Christian is withholden by the authority of his religion from going to law.

On the other hand, a law-suit is inconsistent with no rule of the Gospel, when it is instituted,

1. For the establishing of some important right.

2. For the procuring a compensation for some considerable damage.

3. For the preventing of future injury.

But since it is supposed to be undertaken simply with a view to the ends of justice and safety, the prosecutor of the action is bound to confine himself to the cheapest process which will accomplish these ends, as well as to consent to any peaceable expedient for the same purpose; as to a reference, in which the arbitrators can do, what the law cannot, divide the damage, when the fault is mutual; or to a compounding of the dispute, by accepting a compensation in the gross, without entering into articles and items, which it is often very difficult to adjust separately.

As to the rest, the duty of the contending parties may be expressed in the following directions:

Not by appeals to prolong a suit against your own conviction.

Not to undertake or defend a suit against a poor adversary, or render it more dilatory or expensive than necessary, with the hope of intimidating or wearing him out by the expense.

Not to influence evidence by authority or expectation;

Nor to stifle any in your possession, although it make against you.

Hitherto we have treated of civil actions. In criminal prosecutions, the private injury should be forgotten, and the prosecutor proceed with the same temper, and upon the same motives, as the magistrate; the one being a necessary minister of justice as well as the other, and both bound to direct their conduct by a dispassionate care of the public welfare.

In whatever degree the punishment of an offender is conducive, or his escape dangerous, to the interest of the community, in the same degree is the party against whom the crime was committed bound to prosecute, because such prosecutions must in their nature originate from the sufferer.

Therefore great public crimes, as robberies, forgeries, and the like, ought not to be spared, from an apprehension of trouble or expense in carrying on the prosecution, from false shame, or misplaced compassion.

There are many offences, such as nuisances, neglect of public roads, forestalling, engrossing, smuggling, sabbath-breaking, profaneness, drunkenness, prostitution, the keeping of lewd or disorderly houses, the writing, publishing, or exposing to sale, lascivious books or pictures, with some others, the prosecution of which, being of equal concern to the whole neighbourhood, cannot be charged as a peculiar obligation upon any.

Nevertheless, there is great merit in the person who undertakes such prosecutions upon proper motives; which amounts to the same thing.

The character of an informer is in this country undeservedly odious. But where any public advantage is likely to be attained by information, or other activity in promoting the execution of the laws, a good man will despise a prejudice founded in no just reason, or will acquit himself of the imputation of interested designs by giving away his share of the penalty.

On the other hand, prosecutions for the sake of the reward, or for the gratification of private enmity, where the offence produces no public mischief, or where it arises from ignorance or inadvertency, are reprobated under the general description of applying a rule of law to a purpose for which it was not intended. Under which description may be ranked an officious revival of the laws against Popish priests, and dissenting teachers.

[* ]“Whoever shall smite thee on thy right cheek, turn to him the other also: and if any man will sue thee at the law, and take away thy coat, let him have thy cloak also; and whosoever shall compel thee to go a mile, go with him twain.”