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The Enforcement of Legal Rights

by a Court of Equity

PAPER READ BY H. ST. GEORGE TUCKER

OF LEXINGTON, VA.

The rise of equitable principles, their incorporation into a separate and distinct system of jurisprudence alongside of and in many respects in hostility to the common law of England will always be recognized by the student of the law as one of the most instructive as well as interesting steps in the history of our great profession. When we remember the hold which the common law had upon the people, and their sacred regard for it as their protection against the encroachments of power, and the fact that in its foreign garb, ecclesiasticism, so repugnant to Saxon thought, had fastened itself on to the principles of equity, its steady growth, its marvelous expansion, and its final triumph in the Judicature Act of 1873 must be regarded as one of the most signal triumphs in the world's history. If my Lord Coke was willing to suffer imprisonment in the maintenance of the rights of the common law against the encroachment of equitable principles, we may well imagine that he would have welcomed death as but a slight oblation for his devotion to the cause of which he was so valiant a defender, in resisting the “enforcement of legal rights by a Court of Equity.” It was indeed, hard enough for the advocates of the common law to accept without murmuring the rise of equitable principles in contravention of the common law. This was wormwood and gall; was resisted in its progress as a subversion of the law of the realm, and during every step of the struggle was met by the most determined opposition. Nor did it matter that these principles were asserted as a separate system of jurisprudence; the common law lawyers were not blinded to the fact that it was in effect an appeal from the common law courts. If the judgment of a court of law could be forever enjoined, it was in effect the reversal of the judgment by a court of foreign jurisdiction. The march of equity was, however, steady, and the High Court of Chancery, backed by the king and the ecclesiastics, never lost any advantage which had been gained—but like those sustaining powers in mechanics which retain whatever they once have gained, it advanced with a step that never retrograded. Resistance was powerless, judgments were annulled, the power of the chancellor was increasing against protest, and the final outcome of the struggle was assured in the recognition and assertion of equitable principles by a court of equity as a separate and distinct system of jurisprudence. Power once acquired is seldom lest. If a court of equity could uproot the basic foundation of the common law, though protesting with deep humility at every step, that it was merely following the law, the next step was easy.

Could the courts of this new system, brought into being for enforcing only equitable principles, advance a step and enlarge its domain by enforcing legal rights.

Granted that a court of equity could enforce equitable principles, would not this be the limit of its ambition? Would it, while protesting its innocence of invading the functions of the common law courts, take upon itself, without disclaimer, the adjudication of legal rights? How could a court established under a system for the enforcement of the peculiar principles of that system, assume jurisdiction of other principles arising under a different system ? and yet so relentless and irresistible has been the march of equity that the right of a court of equity having once properly taken jurisdiction of a cause for the determination of a question properly belonging to that system of jurisprudence to determine legal rights in order to do complete justice between the parties is now fully recognized, and has been for years. Indeed, it is a principle so elementary and

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