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).
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