equitable between man and man, grounded on equal subjection to moral law or equality of rights among men, whether formulated in contracts, or existing in their merely natural relations. The distinction between equity in this general sense and the justice administered by the courts, that is, between the claims of human charity or natural justice and the claims of legal justice, corresponds nearly with the distinction between imperfect and perfect rights; a distinction, however, that is merely practical, not essential.1 Equity, in its wide sense, and natural justice are coextensive, and both are synonymous with right; etymologically, the opposite of justice is injury, of equity iniquity. The notion of equity and justice limited to jurisprudence, is a narrow and inadequate view bounded by a rugged horizon; but in their large and proper meaning they expand over the whole sphere of obligation, and are equivalent to rectitude and righteousness.2 § 67. Mercy is righteous forbearance toward an offender. It implies kindness or gentleness, and is prompted by pity or compassion. These feelings, when intense, are apt to induce a sentimental aversion to the claims of strict justice. 1 Wolfius says: "Justum appellatur quicquid fit secundum jus perfectum alterius; æquum vero quod secundum imperfectum." Cf. supra, § 36, note. 2To say that there is nothing just or unjust but what is prohibited or commanded by positive laws, is like saying that the radii of a circle were not equal till you had drawn the circumference."- MONTESQUIEU, Spirit of the Laws, bk. i, ch. 1, p. 3. "It is equity to pardon human failings," says Aristotle, "and to look to the lawgiver and not to the law; to the spirit and not to the letter; to the intention and not to the action; to the whole and not to the part; to the character of the actor in the long run and not in the present moment; to remember good rather than evil, and good that one has received, rather than good that one has done; to bear being injured, rò åvéxeolai ådikoúμevov; to wish to settle a matter by words rather than by deeds; lastly, to prefer arbitration to judgment, for the arbitrator sees what is equitable, but the judge only the law, and for this an arbitrator was first appointed, in order that equity might flourish." — Rhetoric, bk. i, ch. 13. Hence mercy is popularly supposed to be in opposition to justice, implying a disposition to overlook injury, and to mitigate or even wholly remit the penalty that sanctions the law. Such displacement of justice is not righteous forbearance, and so is not true mercy, but a weak indulgence of wrong that upholds license and works injustice. True mercy forbears, whatever legal forms may allow, to exceed or to abate the claims of natural justice.1 Every man is necessarily a judge, not only of his own actions, but also of those of his fellows. Whether his judg ment find utterance in words and deeds of requital or not, he is bound to be just. Any excess of severity is injustice to the subject; any abatement of righteous rigor is injustice to society whose welfare is involved in the right judgment of 1 It may thereby come into conflict with rigorous legal justice adhering to the letter of the law. Portia's exquisite speech, Merchant of Venice, Act iv, sc. 1, 1. 181 sq., though familiar, cannot be omitted here. In court, speaking to the defendant, says It droppeth as the gentle rain from heaven It is enthroned in the hearts of kings, It is an attribute to God himself; And earthly power doth then show likest God's That, in the course of justice, none of us Should see salvation; we do pray for mercy; And that same prayer doth teach us all to render The deeds of mercy. I have spoke thus much its members. Mercy is shown in forbearing to do or even to think what is not strictly just.1 The judge on the bench must be just. Usually, by the very terms of the law which he is set to administer, he has a measure of discretion; but he must not transgress its sharply defined bounds, and within these he is to use discretion, not license. The range is allowed, not for the play of pity or of resentment, but in order that he may mercifully adjust his decree to the peculiarities of a case.2 Too great severity is injustice to a party present; too great leniency is injustice to society whose interest he is empowered to guard. Judicial mercy secures a righteous forbearance of trespass on either, thus not merely coexisting but coinciding with strict justice.3 The criminal law is merciful in holding the accused innocent until proved guilty, and in giving him the benefit of doubt; which is but just. With a chief executive or sovereign is 1 "O man, what is good, and what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God ?”. МІСАН, 6: 8. 2 Observe that penal justice is quite commonly miscalled justice to an offender. He has a right to fair trial, that is justice to him. But condemned and punished, this cannot be called justice to him; for, he having forfeited certain of his rights, the penalty inflicted is not a concession to these, but to the rights of society, and so his just punishment is in justice to the community whose welfare is involved. For the ethical ground of punishment, see infra, § 136. 8 "Mercy but murthers, pardoning those that kill." Isabella. - Romeo and Juliet, Act iii, sc. 1, 1. 212. "Mercy is not itself, that often looks so; Pardon is still the nurse of second woe." Angelo. I show it most of all when I show justice; For then I pity those I do not know, Which a dismiss'd offence would after gall; And do him right that, answering one foul wrong, - Idem, Act ii, sc. 2, 1. 99 sq. 4 A strict construction, a rigid adherence to the letter of the law, is required, lest liberty in adjudication become license. Hence culprits are not infrequently discharged with impunity, an injustice to society for which lodged a pardoning power. This prerogative of clemency is not for sentimental exercise, but for the equitable adjustment of penal desert and general welfare. It is mercy, but also it is justice.1 there seems no remedy; but, indeed, it is accounted more wholesome for society that a culprit escape condemnation, than that the innocent suffer. See Genesis, 18: 20-33. Beside this, our laws abound in mercies. See trial by jury secured by our Constitution, Article iii, § 2, and certain other merciful provisions in the Amendments, Articles iii-viii. 1 The suffering engendered by injustice is worthy of note. Suppose two persons thoroughly alike in character and standing, condemned for like crimes to like terms of imprisonment, but the one innocent, the other guilty. Which would you prefer to be? The innocent one. In Xenophon's Apology, 28, Appolodorus` exclaims: "To me, Socrates, the hardest part is to see you suffer death without just cause. To which Socrates, stroking the other's hair, replies: "Would you then, dearest Appolodorus, prefer to see me suffer death for a just cause?" Yet which suffers more? The innocent one. For in the penalty of guilt there is the solace of expiation, which consolation is not with the innocent sufferer. "So it is that to the unregenerate Prometheus Vinctus of a man," says Carlyle, "it is ever the bitterest aggravation of his wretchedness that he is conscious of virtue, that he feels himself the victim, not of suffering only, but of injustice."Sartor Resartus, ch. 7. But, apart from penalty, which is the greater evil, to do or to suffer injustice? To do injustice. This is Plato's answer in the Gorgias and in the Republic; also Aristotle's in Nic. Eth., bk. v, ch. 11, 6 sq., where he says: "To injure is the worse of the two; for to injure involves depravity, and is culpable." This is the ground of Plato, who says: "Assuming the three-fold division of the soul, must not injustice be a kind of quarrel between these three, a meddlesomeness and interference and rising up of a part of the soul against the whole soul, an assertion of unlawful authority, which is made by a rebellious subject against a true prince, of whom he is the natural vassal? The confusion and error of those parts or elements is injustice. For the doing of justice is the working of a natural order and government of one another in the parts of the soul, and the doing of injustice is the opposite." Republic, bk. iv, 444 Step., Jowett's trans. Trendelenburg, in Naturrecht, § 39, advocates this view. See Lorimer, Institutes of Law, p. 152. So Brutus, in Julius Cæsar, Act ii, sc. 1, 1. 63 sq., says: "Between the acting of a dreadful thing And the first motion, all the interim is Shall not the judge of all the earth do right? Justice and judgment are the habitation of his throne, mercy and truth go before his face. He is long-suffering and of great mercy, forgiving iniquity and transgression, yet in no case clearing the guilty. Justice, no less than mercy, is an essential attribute to God. He, as absolute sovereign, decrees unbounded mercy to the penitent, and vindicates the claim of immutable justice by a vicarious sacrifice. Such is the Christian scheme; such is divine mercy. |