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The Court of Chancery in the reign of George I.

The Court of Chancery was a court of equity in England and Wales. Academics estimate its formal split and independence from the curia regis at approximately 1345, when it consisted of the Lord Chancellor and his personal staff, the Chancery. Initially merely an administrative body with some judicial jurisdiction, the Chancery had an explosion of business during the 15th century, particularly under the House of York, and academics attribute its shift to an almost entirely judicial body to this increase. From the time of Elizabeth I onwards the court was heavily criticised for its slow pace, large backlogs and high costs, which remained a problem until its dissolution despite large amounts of reform, particularly during the 19th century, which mitigated it somewhat. Attempts at fusing the Chancery with the common law courts began in the 1850s, and finally succeeded with the 1873 and 1875 Supreme Court of Judicature Acts, which dissolved the Chancery and created a new unified High Court of Justice, with the Chancery Division succeeding the Court of Chancery as an equitable body.

The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of lunatics and the guardianship of infants. Its initial remit was somewhat different; through the Lord Chancellor's role as Keeper of the King's Conscience, the Court was an administrative one primarily concerned with conscientious law. For this reason it had a far greater remit than the common law courts, possessing jurisdiction to overrule their decisions for much of its existence, and was far more flexible. Until the 19th century, it was able to give a far wider range of remedies, such as specific performance and injunctions, than the common law courts, and also had some ability to grant damages in special circumstances. With the shift of the Exchequer of Pleas towards a common law court, the Chancery was the only equitable body in the English legal system.

For much of its existence the Court was formally led by the Lord Chancellor, assisted by the judges of the common law courts. The staff of the court included a large number of clerks, led by the Master of the Rolls, who regularly heard cases on his own. In 1813 a Vice-Chancellor was appointed to deal with the Chancery's increasing backlogs, and two more were appointed in 1841. Offices of the Chancery were sold by the Lord Chancellor for much of its history, raising large amounts of money. Many of the clerks and other officials were sinecures, who, not being paid wages, charged increasingly exorbitant fees to process cases, including where the work was not done by them or could have been done more efficiently by an underclerk; this is seen as one of the main reasons that the cost of bringing a case to the Chancery was so high. The 19th century saw the abolition of many sinecure offices and the institution of a wage and pension for the Lord Chancellor to curb the selling of offices, and later the right to appoint officials was transferred from the Chancellor to The Crown.

Contents

History

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Origins

Edward I of England. Under his reign, the Chancellor's jurisdiction was established.

The Court of Chancery originated, as did the other High Courts of the time (the Court of Common Pleas and the Court of King's Bench), in the Norman curia regis, or King's Council, maintained by most early rulers of England after 1066.[1] Under the feudal system, the Council was made up of the Great Officers of the Crown (Chief Justiciar, Lord Chancellor and Lord Chamberlain), the Monarch and any who the Monarch allowed to attend. Its jurisdiction was virtually unlimited, with executive, judicial and legislative functions.[2] It soon became apparent that this large body, which regularly contained lawyers, peers and members of the Church, many of whom lived far away from London, was too unwieldy to deal with the nation's day to day business. As a result a smaller curia was formed to deal with the regular business of the country, and this soon split into various courts; first the exchequer of pleas, to deal with finance, and then the Court of Common Pleas, to deal with "common" cases.[3]

The Chancery started as the personal staff of the Lord Chancellor, "a great secretarial bureau, a home office, a foreign office, and a ministry of justice".[4] The earliest reference to legal issues being sent to him is from 1280, when Edward I of England, annoyed with the number of cases coming to him which could have been dealt with by other elements of his administration, passed a statute saying that:

all petitions that touch the Seal shall go first to the Chancellor, and those that touch the Exchequer to the Exchequer, and those that touch the justices or the law of the land to the justices, and those that touch the Jurie to the justices of the Jurie. And if the matters are so great, or so much of grace, that the Chancellor and the others cannot do what is asked without the King, then they shall take them to the King to know his will, and that no petition come before the King and his Council except by the hands of the said Chancellor and the other chief ministers; so that the King and his Council may be able, without the embarrassment of other business, to attend to the important business of his kingdom and his foreign lands.[5]

Records show dozens of early cases being sent to the Lord Chancellor and Master of the Rolls, but at the time he had no specific jurisdiction to deal with them; he was only given them as a matter of convenience.[6] Under Edward II the Chancellor dedicated set days to hearing pleas, as found in the records of the Parliament of Lincoln in 1315, and the same records show that some cases were heard by his personal staff, the Chancery, not just by the Chancellor.[7] By 1320 requests were regularly sent there, and heard by the judges of the common law courts, with the overwhelming rules used to settle cases being those of "law or reason", sometimes simply "reason", a far more liberal and adjustable approach than the common law.[8]

Rise and early years

Westminster Hall, where the Court sat almost continuously from the reign of Edward III until its dissolution.

The Chancery came to prominence after the decline of the Exchequer, dealing with the law of equity, something more fluid and adaptable than the common law. The early Court of Chancery dealt with verbal contracts, matters of land law and matters of trusts, and had a very liberal view to setting aside cases; poverty, for example, was an acceptable reason to cancel a contract or obligation.[9] Complaints were normally brought via a bill or petition, which had to show that the common law did not provide a remedy for the problem. It was in French, and later English, rather than the Latin used for common law bills.[10] In the reign of Edward III, the Court found a fixed home at Westminster Hall, where it was to sit almost without variation until its dissolution.[11] Prior to this, the disposing of justice had been made difficult by the fact that the Lord Chancellor was required to travel with the King wherever he went.[12]

By the middle of the 14th century, the Lord Chancellor had begun to be seen as the leader of the Court of Chancery, rather than a representative of the King as it was previously; writs and bills were addressed directly to him, and in around 1345 under Richard II it became practice to consider the Chancery separate from the curia. Carne considers this a key moment when the independence of the Court of Chancery was confirmed.[13] The Chancellor and his clerks often heard the cases directly, rather than having them referred to the council itself; occasionally a committee of lay and church members disposed of them, assisted by the judges in the common law courts.[14]

The Chancery and its growing powers were soon resented by Parliament and the nobility; Carne says that it is possible to trace a general "trend of opposition" during the Plantagenet period, particularly from members of the Clergy who were more used to Roman law than equity.[15] From the reign of Richard II, the House of Commons of England regularly complained about the work of the Court, and in 1390 it petitioned the King to announce that the Court could not act contrary to the common law, nor annul a judgment without due process. At the same time, it asked that no writ could be issued that would compel a man to appear before the Court; if it was, the clerk who issued it would lose his job and the Lord Chancellor would be fined £100; the King gave evasive answers to the requests, and made no decision.[15] The Commons did succeed in making some changes to the Court's procedure, however; in 1394 the King assented to their request that victorious defendants in the Court have their costs recompensed from the other side, and in 1341 the King, on their application, allowed the Lord Chancellor to send cases directly to the common law courts, to avoid the common law judges having to waste time travelling.[16] Kerly suggests that many complaints from the Commons came from lawyers of the common law, aggrieved at the Chancery's extended jurisdiction that impacted on that of the common law.[17] These complaints from the Commons did not prevent the Court working; in 1393, for example, it was considered prominent enough that the House of Lords sent 2 cases there to be dealt with.[18]

The 15th century, according to many academics, was when the Court of Chancery really began to expand its caseload; Margaret Avery reports a massive increase in cases during the 1440s, while Nicholas Pronay suggests that the real expansion came during Yorkist rule (1461-1485), when the number of cases submitted each year quadrupled. He gives complaints about the peversion of justice in the common law courts, along with growing mercantile and commercial interests, as the main reason for this, arguing that this was the period when the Chancery changed from being an administrative body with some judicial functions to "one of the four central courts of the realm...the growth in the number of [cases] is a primary indicator of the changing position of Chancery".[19] This increasing role was assisted by the changing function of the court; prior to the late 14th century, private parties could not bring cases to the Chancery as they could to the other courts, while by the 15th century the number of private cases had increased to the point where there were multiple complaints in Parliament.[20] Marsh writes that another reason for its growing influence was the remedies available; through orders of specific performance and injunctions, the Court could not only rectify previous wrongs but prevent future wrongs from occurring, while the common law courts were limited to awarding damages.[21]

16th century

Lord Ellesmere, who worked to maintain the Chancery's ability to override the common law courts as Lord Chancellor.

The early Elizabethan period featured a dispute between the Court of Chancery and common law courts over who held pre-eminence. Previously, under Henry VI, it had been the practice that plaintiffs in the common law courts could pursue cases not execute judgments given by the common law judges if the Lord Chancellor felt their claim was "against conscience". This had been vehemently opposed by the common law judges, who felt that if the Lord Chancellor had the power to override their decisions, parties to a case would flock to the Court of Chancery.[22] The dispute over the pre-eminence of the Lord Chancellor continued into Elizabeth I's reign, with the judges increasing in strength; the Lord Chancellor was no longer a clergyman who it was risky to offend, while the judges had grown in stature.[23] Sir Edward Coke, in his Reports cites a case at the end of Elizabeth's reign which seems to indicate that the Chancellor's prerogative had been overturned, when the judges (without opposition from the monarch) allowed a claim to proceed despite the Lord Chancellor's previous implied jurisdiction. At the same time, the common law judges ruled that the Chancery had no jurisdiction over matters of freehold.[24]

The Lord Chancellor of the time, Lord Ellesmere, was not dissuaded, and maintained that he had the jurisdiction to oversee decisions of the common law courts and matters of freehold. In 1614 he heard the case of Courtney v. Glanvil, dictating that Glanvil should be imprisoned for deceit; this was overruled by Sir Edward Coke in the Court of King's Bench, who demanded that Glanvil be released and issued a writ of habeas corpus.[25] Two years later the Earl of Oxford’s Case came before Ellesmere, who issued a judgment that directly contradicted English law based on the "Law of God".[26] Coke and the other judges overruled this while Ellesmere was ill, taking it as an opportunity to completely overthrow the Lord Chancellor's jurisdiction, and Ellesmere appealed to the Monarch, who referred the matter to the Attorney General for the Prince of Wales and Francis Bacon, the Attorney General for England and Wales. Both recommended a judgment in Ellesmere's favour, which the Monarch made, saying:

as mercy and justice be the true supports of our Royal Throne; and it properly belongeth to our princely office to take care and provide that our subjects have equal and indifferent justice ministered to them; and that when their case deserveth to be relieved in course of equity by suit in our Court of Chancery, they should not be abandoned and exposed to perish under the rigor and extremityof our laws, we.. .do approve, ratifie and confirm, as well the practice of our Court of Chancery".[27]

This bold move is seen as helping Coke lose his position as a judge, and until the dissolution of the court it was able to overrule judgments issued in the common law courts. This was not the end of the dispute, however; in his Institutes of the Lawes of England, Coke suggested the Monarch's decree was unlawful, and his contemporary David Jenkins wrote in Eight Centuries of Reports wrote that "the excess of Jurisdiction in Chancery, in examining Judgments at Common Law" was one of the largest abuses of the law. In the 17th century Robert Atkyns attempted to renew this controversy with his book An Enquiry into the Jurisdiction of the Chancery in Causes of Equity, but without any tangible result.[28] Future Lord Chancellors were more cautious, however; when Francis Bacon succeeded Ellesmere, he made sure to prevent injunctions being misused.[29] Horwitz writes that this was not just limited to Bacon, and that "after the dramatic confrontations between Lord Chief Justice Coke and Lord Chancellor Ellesmere, chancellors took care to circumscribe the Court's corrective jurisdiction and to focus more narrowly on territories they had staked out as peculiarly their own".[30]

Attempted reform under the Commonwealth of England

By the time of the English Civil War, the Court of Chancery was under vast amounts of criticism for its procedure and practice. During the 16th century the Court was vastly overworked; Francis Bacon wrote of 2,000 orders being made a year, while Sir Edward Coke estimated the backlog to be around 16,000 cases.[31] This was partly due to the incompetency of the judges, and partially due to the procedure used; evidence were re-heard up to three times, orders were issued and then overruled, only to be issued again; "what was ordered one day was contradicted the next, so as in some cases there had been five hundred orders and faire more as some affirmed".[32] The Court spent a long time on each case, which combined with the backlog made the pursuing of a case extremely expensive. This was exacerbated by the appointment to the Court of useless, highly-paid officials by the Lord Chancellor or Master of the Rolls, many of whom were their friends; the Chancellor and Master both openly sold these roles , with the exorbitant pay being more surprising considering that their duties were normally ones that could be easily performed by solicitor's clerks, and that the duties were usually performed by underclerks, not by the officials.[33]

In 1649, during the English Civil War, Parliament published a series of orders to reform the Court. Most are from the doctrines set out by Francis Bacon as Lord Chancellor, but there were some more modern reforms; counsel to the defendants could deliver pleas, rather than defendants in person, thus saving the cost of a Commissioner of Oaths, and cases were to be heard in the order they were accepted by the court. Parliament also fixed the fees that officers could charge in an attempt to reduce the expense of a case.[33] The following year, Parliament appointed a commission to look at court reform; this made many recommendations, but none that directly affected the Chancery. In August 1653 another debate took place in Parliament, lasting two days, in which a paper titled "Observations concerning the Court of Chancery" was circulated; this concerned the costs, workings and officers of the Court. A second paper was given out, "for the regulation or taking away of the Court of Chancery, and settling the business of Equity according to the original and primitive constitution of it; and for taking away all unnecessary fees, offices and officers and formalities now used, and for the speedy dispatch of business".[34]

Parliament eventually proposed dissolving the court as it then stood and replacing it with "some of the most able and honest men", who would be tasked with hearing equity cases. Rather than the mass of clerks on the staff, a sufficient number of godly, able, honest and experienced clerks, which be working attorneys and clerks and not overseeing officers," would be appointed, with the Bar electing two supervising Chief Clerks to advise on points of practice. A far-reaching and heavily criticised draft, this was eventually replaced by an even more thorough-going bill.[35] The judges would be six Masters, who would sit in groups of three and be appointed by Parliament, assisted by a Chief Clerk. All Justices of the Peace would be allowed to submit cases to the court, with cases to be heard within 60 days.[36] The party that lost the case was to pay full fees to the other side; fees set ludicrously low. This bill was never put into effect, since Parliament was dissolved, but Oliver Cromwell did appoint a Commission to institute similar provisions in 1654; these were never done, since the Commission refused to perform its duties.[37]

Restoration

After the English Restoration, those judges and officials sacked under Cromwell were reinstated, with little modern progression; as Kerly puts it, "unjust judges presided again, and rank maladministration invaded the offices". The situation was much improved, nonetheless, because many of the faults were down to the machinery the court rather than the spirit, which Lord Clarendon soon rectified.[38] Upon appointment as Lord Chancellor he immediately published a new issue of the Orders for the Regulation of the Practice of the Court of Chancery. This was based on the code set by the Cromwellian Commissioners, and limited the fees charged by the court and the amount of time they could take on a case.[39]

An affect of the English Civil War and resulting Commonwealth of England, particularly the "liberal" values and feelings it stirred up, was the continuous modernisation and improvement of the common law courts, something that reduced the interference of the Lord Chancellor in common law matters, except in areas where they had wildly divergent principles and law. Under Charles II, for the first time, there was a type of common law appeal where the nature of the evidence in the initial trial was taken into account, which reduced the need to go to the Court of Chancery.[40] As a result the nature of the Court of Chancery changed; rather than being a major corrective system for the common law, it became primarily concerned with the administration and protection of rights, as opposed to the common law courts which were mainly concerned with the remedy and retribution of problems.[41] This was further enforced by the Statute of Frauds, which confirmed Chancery principles across the board, allowing people to receive the same treatment in the common law courts as they did in the Chancery.[42]

A major reform to the Court happened soon after the restoration, with the introduction of a right of appeal to the House of Lords from the Chancery. Prior to this there had been no records of appeals to the Lords, and a committee had concluded that there was no precedent to give the Lords jurisdiction over equity matters, except when problems and cases were sent directly to Parliament (as occasionally had been the case). In 1660 the Convention Parliament claimed for itself the right of appellate jurisdiction over equity matters, and also the right of original jurisdiction to hear equity cases at first instance. After disputes which lasted into the next Parliament, this second measure was dropped, but the right to hear equity appeals was confirmed.[43] Horowitz writes that despite these changes, one of the academic certainties is that the problems which had dogged the court for the last two centuries persisted; Observations on the Dilatory and Expensive Proceedings in the Court of Chancery, written in 1701, listed 25 different procedures, areas and situations which contributed to the problems of high fees and slow processes.[44]

18th century

Lord Somers, following his dismissal as Lord Chancellor, introduced an Act in 1706 which "became the most important act of law reform which the 18th century produced". It significantly amended the existing law and court procedure, and while most of it was aimed at the common law courts it did impact on the Chancery. For equity, the Act provided that a party trying to dismiss his own case could not do so until he had paid the full costs, rather than the nominal costs that were previously the case; at the same time, the reforms it made to common law procedure (such as allowing claims to be brought against executors of wills) reduced the need for parties to go to equity for a remedy.[45] Wilfrid Prest writes that despite these legislative enactments, however, the tally of which "begins to look quite impressive", the same problems were felt, albeit with less frequency; one barrister of the time claimed that going to the Court with a case worth anything less than £500 was a waste of time.[46]

Under Lord Eldon, the Court procedure was further reformed with a pair of orders published in 1741 and 1747, which mandated that a claimant who brought his case to court and had it dismissed immediately should pay full costs to the other side, rather than the 40s previously paid, and that parties filing bills of review should pay £50 for the privilege. At the same time, a review of the Court's costs and fees was undertaken by a Parliamentary Committee. The Committee reported that fees and costs had increased significantly since the last review under Charles I, that a number of expensive honorary positions had been created, and that on many occasions court officers had not known what the correct fees were. At the same time, proceedings had grown to several thousand pages in length, necessitating additional expense. The Committee "that the interest which a great number of officers and clerks have in the proceedings of the Court of Chancery, has been a principal cause of extending bills, answers, pleadings, examinations and other forms and copies of them, to an unnecessary length, to the great delay of justice and the oppression of the subject". They recommended that a list of permissible fees be published and circulated to the court officials.[47]

The recommendations were not immediately acted on, but in 1743 a list of permissible fees were published, and that to cut down on paperwork no party should be required to obtain office copies of proceedings. The permissible fees list contained over 1,000 items, which Kerly describes as "an appalling example of the abuses which the unrestrained farming of the Offices of the Court, and the payment of all officials by fees had developed."[48]

19th century

Thomas Pemberton, who attacked the Six Clerks in Parliament and successfully had their positions abolished.

Despite these small reforms, the 18th century ended with continuous and unrestrained attacks on the court. Although complaints had been common since the time of Elizabeth I, the problems had become more unrestrained, at the same time as politically neutral law reformers first arose in any great number. Many critics were barristers of the common law, ignorant of the court's workings, but some, such as Sir Samuel Romilly, had trained as a Chancery advocate and were well aware of the Chancery's procedure.[49] The success of the Code Napoleon and the writings of Jeremy Bentham are seen to have had much to do with this, and the growing wealth of the country and increasing international trade meant it was crucial that there be a functioning court system for matters of equity. While the upper classes had been struggling with the court for centuries, and regarded it as a necessary evil, the growing middle and merchant classes were more demanding. With increasing court backlogs, it was clear to many law reformers and politicians that serious reform was needed.[50]

The Court of Chancery in the early 19th century.

The first major reforms were the appointment of a Vice-Chancellor to hear cases in 1813, and the extension of the Master of the Rolls' jurisdiction in 1833 to hear any and all cases. In 1824 a Chancery Commission was appointed to oversee the Court, which the political opposition maintained was simply to protect it; the membership included the Lord Chancellor, the Master of the Rolls and all senior Chancery judges.[51] Some significant reforms were proposed; in 1829, for example, Lord Lyndhurst suggested merging the equity jurisdiction of the Court of Exchequer with the Chancery, and appointing a fourth judge to hear the additional cases, but this failed. A year later, when the common law courts were each gaining a judge, he proposed it again, but the bill was strongly opposed by judges who maintained that the court backlog was not bad enough to justify the additional expense of a fourth judge.[52] Eventually, however, two more Vice-Chancellors were appointed in 1841, and a decade later two Lord Justices were tasked with hearing appeals from the Court through the Court of Appeal in Chancery.[53] These are described by Lobban as "hasty reactions to mounting arrears" rather than the result of long-term planning.[54]

As a result of the new appointments, the issue of court backlogs was significantly reduced, with the court processing 1,700 cases in 1846-9 compared to 959 in 1819-1824, but it again arose after the death of Shadwell VC and retirement of Wigram VC. Shadwell, appointed under the 1831 Act of Parliament, could be replaced, but a principal in the 1841 Act (which Wigram had been appointed under) meant that it provided for two life appointments to the court, not two open positions; after the retirement or death of the judges, no more could be appointed. Again, the backlog became a problem, particularly since the Lord Chancellor was distracted with the appellate cases through the Court of Appeal in Chancery and the House of Lords, leaving a maximum of three Chancery judges who were available to hear cases. Further structural reforms were proposed; Richard Bethell suggested three more Vice-Chancellors and "an Appellate Tribunal in Chancery formed of two of the Vice Chancellors taken in rotation", but this came to nothing.[55]

The 1830s saw a reduction in the "old corruption" that had long plagued the court, first through the Chancery Sinecures Act 1832 and then through the Chancery Regulation Act 1833. The 1832 Act abolished a number of sinecure offices within the court and provided a pension and pay rise for the Lord Chancellor, with the hope being that this would reduce the need for the Chancellor to make money by selling court offices. The 1833 Act changed the appointments system so that Masters in Chancery would henceforth be appointed by The Crown, not by the Lord Chancellor, and that they would be paid wages. Through the abolition of sinecures, taking into account the wages and pension, this saved the Court £21,670 a year. The government had initially intended the 1832 bill to go further and abolish the Six Clerks, but the Clerks successfully lobbied to prevent this.[56] This did not save them, however; in 1842 the "nettle" of the Six Clerks Office was grasped by Thomas Pemberton, who attacked them in the House of Commons for doing effectively sinecure work for high fees that massively increased the expense involved in cases. As a result of this, an Act of Parliament was passed in the same year that abolished the office completely.[57]

Some further procedural reforms were undertaken in the 1850s. In 1850, a new set of Chancery orders were produced by the Lord Chancellor, allowing Masters to speed up cases in whatever way they chose and allowing plaintiffs to file a claim, rather than the more expensive and long-winded bill of complaint.[58] The Suitors in Chancery Relief Act 1852 gave all court officials salaries, abolished the need to pay them fees and made it illegal for them to receive gratuities; it also removed more sinecure positions.[59] The Master in Chancery Abolition Act 1852 abolished the Masters in Chancery, allowing all cases to be heard directly by judges instead of bounced back-and-forth between judges and Masters.[60] As a result of these the court became far more efficient, with the backlog decreasing; in the 1860s 3207 cases were submitted each year, with the Court hearing 2010 and dismissing 1823.[61] Much of this work was carried out by the growing number of clerks, however, with members of the legal profession becoming concerned about the "famine" of equity judges.[62]

Dissolution

The idea of fusing the common law and equity courts first came to prominence in the 1850s; although the Law Times dismissed it as "suicide" in 1852, the idea gained mainstream credibility, and by the end of the year the Times was writing that there was "almost unanimity" of opinion that the separate systems was "the parent of most of the defects in the administration of our law".[63] Much of the impetus for fusion came from pressure groups and lawyers associations, and they partially succeeded with the Common Law Procedure Act 1854 and Chancery Amendment Act 1858, which gave both courts access to the full range of remedies. Prior to these, the common law courts were limited to granting damages, and the Chancery was limited to granting specific performance or injunctions. The County Courts (Equity Jurisdiction) Act 1865 gave the County Courts the ability to use equitable remedies, although this was rarely used. The Lord Chancellors during this period were more cautious, and despite a request by the lawyers associations to establish a Royal Commission to look at fusion, they refused to do so.[64]

In February 1867 Roundell Palmer again brought the problem of two court systems to Parliament's attention, and in March 1870 Lord Hatherley introduced a bill to create a single, unified High Court of Justice. The bill was a weak one, not containing any provision for which court would deal with the common law and which with equity, and was silent on the structure of the court since Hatherley believed the difference between the common law and equity was one of procedure, not substance. As a result the bill was heavily opposed from two sides; those who opposed fusion, and those who supported fusion but felt the provisions were too weak and vague to be of any use.[65] As a result, the bill was eventually withdrawn.[66]

In 1873 the idea was resurrected, again by Palmer who was now Lord Selborne and the new Lord Chancellor, as the Supreme Court of Judicature bill. While still cautious, Selborne's bill was far more structured than Hatherley's, and contained more detail on what was to be done. Rather than fusing the common law and equity, which he saw as impracticable since it would destroy the idea of trusts, but rather to fuse the courts and the procedure.[67] The final draft provided that all of the existing superior courts would be fused into one court made of two levels; one of first instance, one appellate. The court of first instance, to be known as the High Court of Justice, would be subdivided into several divisions based on the old superior courts, one of which, the Chancery Division, would deal with equity cases. All jurisdiction of the Court of Chancery was to be transferred to the Chancery Division, with Section 25 of the Act providing that, where there was conflict between the common law and equity, equity would prevail. An appeal from each division went to the appellate level, the Court of Appeal of England and Wales. These plans were, after amendment with the Supreme Court of Judicature Act 1875, brought into effect, with the Court of Chancery ceasing to exist. The Master of the Rolls transferred to the new Court of Appeal, the Lord Chancellor retained his other judicial and political roles and the Vice-Chancellors ceased to exist, instead being replaced by normal judges. The Chancery Division still exists as part of the High Court of Justice.[68]

Jurisdiction

Trusts and the administration of estates

The idea of a trust originated during the Crusades of the 12th century, when noblemen travelled abroad to fight in the Holy Land.[69] Since the noblemen would be away for years at a time, it was vital that somebody could look after the land, and do so with the authority of the original owner. As a result, the idea of joint ownership of land came about. The common law courts did not recognise such trusts, and as a result it fell to equity and to the Court of Chancery to deal with them,[70] as befitting the common principle that the Chancery's jurisdiction was for matters where the common law courts could either not enforce a right or not administer it.[71] The use of trusts and uses became common during the 16th century, although the Statute of Uses "deal a severe blow to these forms of conveyancing" and made the law in this area far more complex. The court's sole jurisdiction over trusts lasted until its dissolution[72]

From its foundation, the Court of Chancery was able to administer estates, due to their jurisdiction over trusts. While the main burden in the 16th century fell on the ecclesiastical courts, their powers over administrators and executors was limited, regularly necessitating the Court of Chancery's involvement. Prior to the Statute of Wills, many people used feoffees to dispose of their land, something that fell under the jurisdiction of the Lord Chancellor anyway. In addition, in relation to the discovery and accounting of assets, the process used by the Court of Chancery was far superior to the ecclesiastical one; as a result, the Court of Chancery was regularly used by beneficiaries. The common law courts also had jurisdiction over some estates matters, but their remedies for problems were far more limited.[73]

Initially, the Court of Chancery would not entertain a request to administer an estate as soon as a flaw was discovered, rather leaving it to the ecclesiastical courts, but from 1588 onwards the Court did deal with such requests, in four situations: 1) where it is alleged that there are insufficient assets, 2) where it was appropriate to force a legatee to give a bond to creditors (which could not be done in the ecclesiastical courts), 3) to secure femme covert assets from a husband and 4) where the deceased's debts had to be paid before the legacies were valid (again, something the ecclesiastical courts could not do).[74]

Insanity and guardianship

The Chancery's jurisdiction over "lunatics" came from a mixed origin; first, the King's prerogative to do so, which was exercised regularly by the Lord Chancellor, and second, the Lands of Lunatics Act, which gave the King (and therefore the Chancellor) custodianship of lunatics and their land.[75] The first right was exercised by the Lord Chancellor, the second by the Lord Chancellor in his role as head of the Court of Chancery.[76] This jurisdiction applied to any "idiots" or "lunatics", regardless of if they were British citizens or if their land was within England and Wales. They were divided into two categories; idiots, "who have no glimmering of reason from their birth and are, therefore, by law, presumed never likely to attain any",[77] and lunatics, "who have had understanding but have lost the use of it".[78] Lunatics and Idiots were administered separately by the Lord Chancellor under his two prerogatives, with the appeal under the King's prerogative going directly to the King, and under the Lands of Lunatic Act to the House of Lords.[79]

Idiots and lunatics both had their land looked after by a court-appointed administrator, with any profits going into a trust fund to support the insane person. Due to the vested interest of the King (who would hold the lands) the actual lunacy or idiocy was determined by a jury, not by an individual judge.[80] Under the Lunacy Act 1845 the Lord Chancellor had a right to appoint a commission to investigate the insanity of an individual; as part of his role as keeper of the King's conscience, however, he would only do this when it was beneficial to the lunatic, not simply because somebody had been found insane.[81]

The law courts' jurisdiction over the guardianship of children is said to have come from the King's prerogative of parens patriae. The Chancery had administered this from an early age, since it primarily concerned the holding of land - a form of trust. Since these were mainly dealt with orally there are few early records, with the first reference coming in 1582, when a curator was appointed to deal with the property of an infant. While the common law courts regularly appointed guardians, the Chancery had the right to remove them, replace them or create them in the first place. Similarly, while there were actions against guardians which the child could undertake in the common law courts, these were regularly undertaken in the Court of Chancery.[82] This jurisdiction was first regularly recognised from 1696 onwards, with the main focus being the welfare of the child.[83] As such, wards of the court had certain principles; their estates must be administered under the supervision of the Court, they must be educated under the supervision of the Court and any marriage must be sanctioned by the Court.[84]

Charities

The Lord Chancellor had, since the 15th century, been tasked with administering to estates where the estate was to be used for charitable purposes. In Bailiff of Burford v Lenthall, Lord Hardwicke opined that the jurisdiction of the Court over charity matters came from its jurisdiction over trusts, as well as from the Charitable Uses Act 1601. Carne suggests that, with the Court long able to deal with such situations, the 1601 act was actually just the declaration of pre-existing custom.[85] This is illustrated by the Chancellor's original jurisdiction over feoffments to uses, which came from his original status as a Clergyman, since the idea of charity had been originally enforced by the Church and the ecclesiastical courts.[86] Essentially, an owner of land could dispose of it by granting the right to use it and collect fees to another, not just by selling it. This was not valid at the common law, but was in the Court of Chancery; the Lord Chancellor is reported as having said, in 1492, "Where there is no remedy at common law there may be good remedy in conscience, as, for example, by a feoffment upon confidence, the feoffor has no remedy by common law, and yet by conscience he has; and so, if the feoffee transfers to another who knows of this confidence, the feoffor, by means of a subpoena, will have his rights in this Court".[87] After the reign of Edward IV, if the charitable land was to be sold (or land was to be sold to create the charity) the Court of Chancery was the only place this could be done, with ecclesiastical and probate courts not having a valid jurisdiction.[88]

Remedies

The Court of Chancery could grant three possible remedies; specific performance, injunctions and Damages. The remedy of specific performance is, in contractual matters, an order by the court which requires the party in breach of contract to perform his obligations.[89] The validity of the contract as a whole was not normally considered, only whether there was adequate consideration and if expecting the party that breached the contract to carry out his obligations was viable.[90] Injunctions, on the other hand, are remedies which prevent a party from doing something (unlike specific performance, which requires them to do something).[91] Until the Common Law Procedure Act 1854, the Court of Chancery was the only body qualified to grant injunctions and specific performance.[92]

Damages is money claimed in compensation for some failure by the other party to a case.[93] It is commonly believed that the Court of Chancery could not grant damages until the Chancery Amendment Act 1858, which gave them that right, but in some special cases they had been able to provide damages for over 600 years. The idea of damages was first conceived in English law during the 13th century, with the Statute of Merton and Statute of Gloucester providing for damages in certain circumstances. Despite what is normally assumed, it was not just the common law courts who could grant damages under these statutes; the Exchequer of Pleas and Court of Chancery both had the right to do so. In Cardinal Beaufort's case in 1453, for example, it is stated "I shall have a subpoena against my feoffee and recover damages for the value of the land."[94] A statute passed during the reign of Richard II specifically gave the Chancery the right to award damages, stating:

"For as much as People be compelled to come before the King's Council, or in the Chancery by Writs grounded upon untrue Suggestions; that the Chancellor for the Time being, presently after that such Suggestions be duly found and proved untrue, shall have Power to ordain and award Damages according to his Discretion, to him which is so troubled unduly, as afore is said."[95]

This did not extend to every case, merely those where the case had been dismissed because one party's "suggestions [are] proved untrue", and was normally award to pay for the innocent party's costs in responding to the party that had lied. Lord Hardwicke, however, claimed that the Chancery's jurisdiction to award damages was not derived "from any authority, but from conscience", and rather than being statutory was instead due to the Lord Chancellor's inherent authority. As a result, General Orders were regularly issued awarding the innocent party additional costs, such as the cost of a solicitor on top of the costs of responding to the other party's false statements.[95]

The Court became more cautious about awarding damages during the 16th and 17th centuries; Lord Chancellors and legal writers considered it a common law remedy, and judges would normally only award damages where no other remedy was appropriate. Damages were sometimes given as an ancillary remedy, such as in Browne v Dom' Bridges in 1588, where the defendant had disposed of waste inside the plaintiffs woods. As well as an injunction to prevent the defendant doing this, damages were also awarded to pay for the harm to the woods."[96] This remained the cause until the 18th and early 19th centuries, when the attitude of the Court towards awarding damages became more liberal; in Lannoy v Werry, for example, it was held that where there was sufficient evidence of harm, the Court could award damages in addition to specific performance and other remedies.[97] This changed with Todd v Gee in 1810, where Lord Eldon held that "except in very special cases, it was not the course of proceeding in Equity to file a Bill for specific performance of an agreement; praying in the alternative, if it cannot be performed, an issue, or an inquiry before the Master, with a view to damages. The plaintiff must take that remedy, if he chooses it, at Law." This was followed by Hatch v Cobb, in which Chancellor Kent held that "though equity, in very special cases, may possibly sustain a bill for damages, on a breach of contract, it is clearly not the ordinary jurisdiction of the court".[98]

The Court's right to confirm damages was again confirmed, however, in Phelps v Prothero in 1855, where the Court of Appeal in Chancery held that if a plaintiff starts an action in a court of equity for specific performance and damages are also appropriate, the court may choose to award damages.[99] This authorisation was limited to certain circumstances, however, and was again not regularly used. Eventually, the Chancery Amendment Act 1858 gave the Court full jurisdiction to award damages; the situation before that was such that lawyers at the time commented as if the Court had not previously been able to do so.[100]

Officers of the Court

Lord Chancellor

The Lord Chancellor was, officially, the head of the Court of Chancery. For much of its early existence he was closely linked with the curia regis; even after the Court became independent in around 1345, with petitions addressed to "the King and others". By the time of Edward IV, however, petitions were issued in the name of the Lord Chancellor and the Court of Chancery. In the early years, the Lord Chancellor made most of the decisions himself; he summoned the parties, set a date for hearings, addressed questions from the parties to the case and announced the verdict.[101] He regularly called for assistance from the common law judges, who complained that this prevented them from doing the work of the common law courts, and early records frequently say that the decision was made "with the advice and consent of the justices and servants of our Lord the King in the Chancery."[102]

In one period, particularly under Edward III, the Lord Chancellor also possessed some common law jurisdiction, able to hear cases for petitions of right and the repeal of letters patent, as well as other cases in which the King was a party. He heard cases on recognizances, the execution of Acts of Parliament and any case in which an officer of the Court of Chancery was involved.[103] Records show that he enrolled recognizances and contracts, and also issued writs commanding a sheriff to enforce them. Carne considers that this common law jurisdiction was likely down to a failure to separate the common law jurisdiction and the equity jurisdiction possessed by the Lord Chancellor, a failure that continued into the 16th century; Sir Edward Coke wrote that in the Chancery there was both an ordinary court and an "extraordinary" one.[104]

The early Lord Chancellors were mostly members of the Clergy; the first legal Lord Chancellor was Robert Parning SL, who was appointed in 1341 and held the office for two years. His successors, however, were clerics until the appointment of Robert Thorpe in 1371, probably due to the pressure from Parliament. The precedent of appointing legal Lord Chancellors was not followed strongly, although others such as Nicholas Bacon did hold the office; one Lord Chancellor is said to have been appointed because the Queen was impressed with his skill at dancing.[105] Thomas Egerton is said to have been the first "proper" Lord Chancellor from the Court of Chancery's point of view, having recorded his decisions and followed the legal doctrine of precedent.[106] Marsh writes that the use of Clergymen as Lord Chancellors had a tremendous influence on the Court's actions, tracing the idea of following natural law in the court back to the Chancellors' Christian roots.[107] Following the dissolution of the Court of Chancery in 1873 the Lord Chancellor failed to have any role in equity, although his membership of other judicial bodies allowed him some indirect control.[68]

Other Officers of the Court

John Romilly, the last Master of the Rolls to sit in the Court of Chancery.

When the Court was a part of the curia regis, the Officers were fluid; it could include Doctors of Civil Law, members of the curia and "those who ought to be summoned". As the members of the curia ceased to sit as Officers, however, the composition of the court became more solid. From an early period, the Lord Chancellor was assisted by 12 Clerks in Chancery, known as the Masters in Chancery. It was said that these had existed since before the Norman Conquest, sitting as part of the Witenagemot. After the conquest they gradually lost their dignity, and became advisers and assistants to the Lord Chancellor. It was the Masters who started court cases, issuing the initial writs without which parties could not begin cases in the common law courts. In addition, they took depositions and acted as secretaries to the Lord Chancellor, maintaining the plea rolls. In the early years they were almost always members of the Clergy and were called the "clericos de prima forma"; it was not until the reign of Edward III that they were referred to as Masters in Chancery.[108]

The 12 Masters in Chancery were led by one of their number, known as the Master of the Rolls. He was almost as powerful as the Lord Chancellor, and had judicial power since the time of Edward I; he was sometimes known as the "Vice-Chancellor", and was given the title "The Right Worshipful". The Master of the Rolls assisted the Court's judges in forming judgments, and regularly sat in place of the Lord Chancellor.[108] The first reference to the Master of the Rolls comes from, although it is believed he probably existed before that;[109] the first reference to him having independent judicial authority is from 1520.[110] The Master of the Rolls had 6 clerks of his own, simply known as the Six Clerks, who helped keep the records; they were independently accountable for any mistakes. These were initially solicitors for the people suing in the Court, with no other counsel allowed, but by the time of Francis Bacon claimants were allowed their own counsel. The Master of the Rolls and his clerks were housed in the Rolls Office, along with the Six Clerks' clerks, who numbered sixty. The Six Clerks were abolished in 1843, the Masters in Chancery in 1852,[56] and when the Court of Chancery was abolished, the Master of the Rolls moved to the newly established Court of Appeal of England and Wales.[111]

From an early period, the Court was also assisted by two Registrars, who enrolled decrees of the court and orders; their books documented the legal precedent set by the court. At the same time, two Examiners were appointed, who would assist the Master of the Rolls in examining witnesses.[112] The positions were regularly and openly sold by the Master of the Rolls and Lord Chancellor, with Masters in Chancery going for £6,000 in 1625. For that purpose, and due to the corruption of many court officials, an Act was passed that year requiring that fees be paid directly into the Bank of England, and creating an Accountant-General to oversee the financial aspects of the court.[113] In 1813 the first Vice-Chancellor was appointed to deal with the increasing number of cases submitted to the Court.[114] With the backlog growing larger, two more were appointed in 1841 under a second Act of Parliament, although this provided for two life appointments, not two new positions; when the new Vice-Chancellors died, there could be no replacements. With the dissolution of the Court in 1873, the Vice-Chancellor ceased to exist.[55]

See also

References

  1. ^ Marsh (1890) p.6
  2. ^ Carne (1927) p.391
  3. ^ Carne (1927) p.392
  4. ^ Carne (1927) p.400
  5. ^ Parkes (1828) p.29
  6. ^ Kerly (1890) p.26
  7. ^ Kerly (1890) p.27
  8. ^ Kerly (1890) p.28
  9. ^ Carne (1927) p.403
  10. ^ Carne (1927) p.404
  11. ^ Kerly (1890) p.30
  12. ^ Kerly (1890) p.31
  13. ^ Carne (1927) p.405
  14. ^ Carne (1927) p.410
  15. ^ a b Carne (1927) p.413
  16. ^ Carne (1927) p.414
  17. ^ Kerly (1890) p.37
  18. ^ Kerly (1890) p.40
  19. ^ Tucker (2000) p.792
  20. ^ Tucker (2000) p.800
  21. ^ Marsh (1890) p.46
  22. ^ Kerly (1890) p.107
  23. ^ Kerly (1890) p.108
  24. ^ Kerly (1890) p.109
  25. ^ Kerly (1890) p.110
  26. ^ Kerly (1890) p.111
  27. ^ Kerly (1890) p.114
  28. ^ Kerly (1890) p.115
  29. ^ Kerly (1890) p.116
  30. ^ Horowitz (1996) p.25
  31. ^ Kerly (1890) p.154
  32. ^ Kerly (1890) p.155
  33. ^ a b Kerly (1890) p.156
  34. ^ Kerly (1890) p.157
  35. ^ Kerly (1890) p.158
  36. ^ Kerly (1890) p.159
  37. ^ Kerly (1890) p.161
  38. ^ Kerly (1890) p.163
  39. ^ Kerly (1890) p.164
  40. ^ Kerly (1890) p.166
  41. ^ Kerly (1890) p.167
  42. ^ Kerly (1890) p.171
  43. ^ Kerly (1890) p.168
  44. ^ Horowitz (1996) p.26
  45. ^ Kerly (1890) p.173
  46. ^ Horowitz (1996) p.27
  47. ^ Kerly (1890) p.178
  48. ^ Kerly (1890) p.179
  49. ^ Kerly (1890) p.264
  50. ^ Kerly (1890) p.265
  51. ^ Lobban (Spring 2004) p.409
  52. ^ Lobban (Spring 2004) p.416
  53. ^ Kerly (1890) p.272
  54. ^ Lobban (Spring 2004) p.390
  55. ^ a b Lobban (Spring 2004) p.422
  56. ^ a b Autumn (Spring 2004) p.569
  57. ^ Lobban (Autumn 2004) p.570
  58. ^ Lobban (Autumn 2004) p.579
  59. ^ Lobban (Autumn 2004) p.573
  60. ^ Lobban (Autumn 2004) p.582
  61. ^ Lobban (Spring 2004) p.424
  62. ^ Lobban (Spring 2004) p.425
  63. ^ Lobban (Autumn 2004) p.584
  64. ^ Lobban (Autumn 2004) p.585
  65. ^ Lobban (Autumn 2004) p.594
  66. ^ Lobban (Autumn 2004) p.595
  67. ^ Lobban (Autumn 2004) p.596
  68. ^ a b Kerly (1890) p.294
  69. ^ Hudson (2001) p.41
  70. ^ Hudson (2001) p.42
  71. ^ Adams (1855) p.153
  72. ^ Carne (1928) p.599
  73. ^ Carne (1928) p.599
  74. ^ Carne (1928) p.600
  75. ^ Carne (1928) p.607
  76. ^ Carne (1928) p.608
  77. ^ Adams (1855) p.653
  78. ^ Adams (1855) p.654
  79. ^ Adams (1855) p.655
  80. ^ Adams (1855) p.656
  81. ^ Adams (1855) p.657
  82. ^ Carne (1928) p.605
  83. ^ Carne (1928) p.606
  84. ^ Adams (1855) p.637
  85. ^ Carne (1928) p.601
  86. ^ D (January 1862) p.141
  87. ^ D (January 1862) p.142
  88. ^ D (April 1862) p.321
  89. ^ McKendrick (2007) p.451
  90. ^ Adams (1855) p.243
  91. ^ McKendrick (2007) p.455
  92. ^ Ramjohn (1998) p.6
  93. ^ Peel (2007) p.992
  94. ^ McDermott (1992) p.652
  95. ^ a b McDermott (1992) p.653
  96. ^ McDermott (1992) p.654
  97. ^ McDermott (1992) p.656
  98. ^ McDermott (1992) p.657
  99. ^ McDermott (1992) p.658
  100. ^ McDermott (1992) p.659
  101. ^ Carne (1927) p.411
  102. ^ Carne (1927) p.412
  103. ^ Carne (1927) p.414
  104. ^ Carne (1927) p.415
  105. ^ Carne (1928) p.591
  106. ^ Carne (1928) p.592
  107. ^ Marsh (1890) p.71
  108. ^ a b Carne (1927) p.416
  109. ^ Sainty (1993) p.144
  110. ^ Hanworth (1935) p.327
  111. ^ Carne (1927) p.417
  112. ^ Carne (1927) p.418
  113. ^ Kerly (1890) p.174
  114. ^ Kerly (1890) p.271

Bibliography

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