one can be found to give such a decision, and which, as regards
their relation to rights, belong, as it were, to the "Intermundia"
of Epicurus. These we must at the outset take apart from the special
exposition of the science of right, to which we are now about to
advance; and we may consider them now by way of supplement to these
introductory explanations, in order that their uncertain conditions
may not exert a disturbing influence on the fixed principles of the
proper doctrine of right.

          F. Supplementary Remarks on Equivocal Right.

                       (Jus Aequivocum).

  With every right, in the strict acceptation (jus strictum), there is
conjoined a right to compel. But it is possible to think of other
rights of a wider kind (jus latum) in which the title to compel cannot
be determined by any law. Now there are two real or supposed rights of
this kind- equity and the right of necessity. The first alleges a
right that is without compulsion; the second adopts a compulsion
that is without right. This equivocalness, however, can be easily
shown to rest on the peculiar fact that there are cases of doubtful
right, for the decision of which no judge can be appointed.

                          I. Equity.

  Equity (aequitas), regarded objectively, does not properly
constitute a claim upon the moral duty of benevolence or beneficence
on the part of others; but whoever insists upon anything on the ground
of equity, founds upon his right to the same. In this case, however,
the conditions are awanting that are requisite for the function of a
judge in order that be might determine what or what kind of
satisfaction can be done to this claim. When one of the partners of
a mercantile company, formed under the condition of equal profits,
has, however, done more than the other members, and in consequence has
also lost more, it is in accordance with equity that he should
demand from the company more than merely an equal share of advantage
with the rest. But, in relation to strict right- if we think of a
judge considering his case- he can furnish no definite data to
establish how much more belongs to him by the contract; and in case of
an action at law, such a demand would be rejected. A domestic servant,
again, who might be paid his wages due to the end of his year of
service in a coinage that became depreciated within that period, so
that it would not be of the same value to him as it was when he
entered on his engagement, cannot claim by right to be kept from
loss on account of the unequal value of the money if he receives the
due amount of it. He can only make an appeal on the ground of equity,-
a dumb goddess who cannot claim a bearing of right,- because there was
nothing bearing on this point in the contract of service, and a
judge cannot give a decree on the basis of vague or indefinite
conditions.

  Hence it follows, that a court of equity, for the decision of
disputed questions of right, would involve a contradiction. It is only
where his own proper rights are concerned, and in matters in which
he can decide, that a judge may or ought to give a hearing to
equity. Thus, if the Crown is supplicated to give an indemnity to
certain persons for loss or injury sustained in its service, it may
undertake the burden of doing so, although, according to strict right,
the claim might be rejected on the ground of the pretext that the
parties in question undertook the performance of the service
occasioning the loss, at their own risk.

  The dictum of equity may be put thus: "The strictest right is the
greatest wrong" (summum jus summa injuria). But this evil cannot be
obviated by the forms of right, although it relates to a matter of
right; for the grievance that it gives rise to can only be put
before a "court of conscience" (forum poli), whereas every question of
right must be taken before a civil court (forum soli).

                II. The Right of Necessity.

  The so-called right of necessity (jus necessitatis) is the
supposed right or title, in case of the danger of losing my own
life, to take away the life of another who has, in fact, done me no
harm. It is evident that, viewed as a doctrine of right, this must
involve a contradiction, For this is not the case of a wrongful
aggressor making an unjust assault upon my life, and whom I anticipate
by depriving him of his own (jus inculpatae tutelae); nor consequently
is it a question merely of the recommendation of moderation which
belongs to ethics as the doctrine of virtue, and not to
jurisprudence as the doctrine of right. It is a question of the
allowableness of using violence against one who has used none
against me.

  It is clear that the assertion of such a right is not to be
understood objectively as being in accordance with what a law would
prescribe, but merely subjectively, as proceeding on the assumption of
how a sentence would be pronounced by a court in the case. There
can, in fact, be no criminal law assigning the penalty of death to a
man who, when shipwrecked and struggling in extreme danger for his
life, and in order to save it, may thrust another from a plank on
which he had saved himself. For the punishment threatened by the law
could not possibly have greater power than the fear of the loss of
life in the case in question. Such a penal law would thus fail
altogether to exercise its intended effect; for the threat of an
evil which is still uncertain- such as death by a judicial sentence-
could not overcome the fear of an evil which is certain, as drowning
is in such circumstances. An act of violent self-preservation, then,
ought not to be considered as altogether beyond condemnation
(inculpabile); it is only to be adjudged as exempt from punishment