第27章 13(2)

Wherever such charges are brought against a man, the question is whether he is or is not guilty of a criminal offence. It is deliberate purpose that constitutes wickedness and criminal guilt, and such names as 'outrage' or 'theft' imply deliberate purpose as well as the mere action. A blow does not always amount to 'outrage', but only if it is struck with some such purpose as to insult the man struck or gratify the striker himself. Nor does taking a thing without the owner's knowledge always amount to 'theft', but only if it is taken with the intention of keeping it and injuring the owner. And as with these charges, so with all the others.

We saw that there are two kinds of right and wrong conduct towards others, one provided for by written ordinances, the other by unwritten. We have now discussed the kind about which the laws have something to say. The other kind has itself two varieties. First, there is the conduct that springs from exceptional goodness or badness, and is visited accordingly with censure and loss of honour, or with praise and increase of honour and decorations: for instance, gratitude to, or requital of, our benefactors, readiness to help our friends, and the like. The second kind makes up for the defects of a community's written code of law. This is what we call equity; people regard it as just; it is, in fact, the sort of justice which goes beyond the written law. Its existence partly is and partly is not intended by legislators; not intended, where they have noticed no defect in the law; intended, where find themselves unable to define things exactly, and are obliged to legislate as if that held good always which in fact only holds good usually; or where it is not easy to be complete owing to the endless possible cases presented, such as the kinds and sizes of weapons that may be used to inflict wounds-a lifetime would be too short to make out a complete list of these. If, then, a precise statement is impossible and yet legislation is necessary, the law must be expressed in wide terms; and so, if a man has no more than a finger-ring on his hand when he lifts it to strike or actually strikes another man, he is guilty of a criminal act according to the unwritten words of the law; but he is innocent really, and it is equity that declares him to be so. From this definition of equity it is plain what sort of actions, and what sort of persons, are equitable or the reverse. Equity must be applied to forgivable actions; and it must make us distinguish between criminal acts on the one hand, and errors of judgement, or misfortunes, on the other. (A 'misfortune' is an act, not due to moral badness, that has unexpected results: an 'error of judgement' is an act, also not due to moral badness, that has results that might have been expected: a 'criminal act' has results that might have been expected, but is due to moral badness, for that is the source of all actions inspired by our appetites.) Equity bids us be merciful to the weakness of human nature; to think less about the laws than about the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his intentions, nor this or that detail so much as the whole story; to ask not what a man is now but what he has always or usually been. It bids us remember benefits rather than injuries, and benefits received rather than benefits conferred; to be patient when we are wronged; to settle a dispute by negotiation and not by force; to prefer arbitration to motion-for an arbitrator goes by the equity of a case, a judge by the strict law, and arbitration was invented with the express purpose of securing full power for equity.

The above may be taken as a sufficient account of the nature of equity.