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Page:Harvard Law Review Volume 1.djvu/122

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It seems, therefore, that an action in rem, founded upon ownership, may be regarded as a substitute for an infinite or an indefinite number of actions founded upon the tort of depriving the plaintiff of the possession of the res, which is the subject of the action; and that such an action may, therefore, be regarded as in a large sense founded upon the tort just referred to, and the recovery of the thing itself as a specific reparation of that tort.

Thus far, in speaking of actions and remedies, it has been assumed that the law of any given country is a unit; i. e., that there is but one system of law in force by which rights are created and governed, and also but one system of administering justice. Whenever, therefore, any given country has several systems, whether of substantive or remedial law, what has been thus far said is intended to apply to them all in the aggregate,—not to each separately. Thus, in English-speaking countries there are no less than three systems of substantive law in force, each of which has a remedial system of its own; namely, the common law, the canon law, and admiralty law. There is also a fourth system of remedial law, namely, equity. What has been said, therefore, of actions and remedies applies to all of these systems in the aggregate.

It follows, therefore, that in English-speaking countries civil jurisdiction is parcelled out among the four systems just referred to; and it is the chief object of this paper to ascertain what portion of this jurisdiction belongs to equity, and for what reasons.

But here an important question arises as to the nature of equity jurisdiction. If we have three systems of substantive law, each exercising jurisdiction over those rights which are of its own creation, and if equity is a system of remedial law only, how does it happen that equity has any jurisdiction? Do not the other three systems divide among themselves the entire field of jurisdiction, and how then is there any room for equity? The answer is that the term “jurisdiction,” as applied to equity, has a very different meaning from what it has as applied to courts of law; and the failure to recognize that fact has caused much confusion of ideas. As applied to courts of law, the term is used in its primary and proper sense; as applied to equity, it is used in a secondary and improper sense. For example, when two courts of law, created by the same sovereign, are independent of each other, the jurisdiction of each is either exclusive of the other, or concurrent with it, or it