Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/532

 518 IV. THE NINETEENTH CENTURY for the determination of controverted issues of fact, and it was constantly compelled to have recourse for that purpose to the assistance of a court of law. The common law had no jurisdiction to prevent a threatened injury; could issue no injunctions to hinder it; was incompetent to preserve property intact until the litigation which involved the right to it was decided ; had no power of compelling litigants to disclose what documents in their possession threw a light upon the dispute, or to answer interrogatories before the trial. In all such cases the suitor was driven into equity to assist him in the prosecution even of a legal claim. The Court of Chancery, in its turn, sent parties to the Law Courts when- ever a legal right was to be established, when a decision on the construction of an Act of Parliament was to be obtained, a mercantile contract construed, a point of commercial law discussed. Suits in Chancery were lost if it turned out at the hearing that the plaintiff, instead of filing his bill in equity, might have had redress in a law court; just as plaintiffs were nonsuited at law because they should have rather sued in equity, or because some partnership or trust appeared unex- pectedly on the evidence when all was ripe for judgment. Thus the bewildered litigant was driven backwards and for- wards from law to equity, from equity to law. The conflict between the two systems, and their respective modes of re- dress, was one which, if it had not been popularly supposed to derive a sanction from the wisdom of our forefathers, might well have been deemed by an impartial observer to be expressly devised for the purpose of producing delay, uncer- tainty, and untold expense. The common law tribunals of Westminster Hall con- sisted of three great courts, each with a different history and originally different functions. In the growth of time, and by dint of repeated legislation, all, so far as the bulk of the litigation of the country was concerned, had acquired equal jurisdiction, and no practical necessity was left for the maintenance side by side of three independent channels of justice, in each of which the streams ran in a similar fash- ion and performed the same kind of work. First came the Queen's Bench, composed of a chief justice and four