Origins , during whose reign the chancellor's jurisdiction was established The Court of Chancery originated, as did the other high courts before 1875, in the Norman
curia regis or King's Council, maintained by most early rulers of England after 1066. Under the
feudal system, the council was made up of the monarch, the
Great Officers of the Crown and anyone else the monarch allowed to attend. Its jurisdiction was virtually unlimited, with executive, judicial and legislative functions. This large body contained lawyers, peers, and members of the church, many of whom lived far from London. It soon became apparent that it 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. The Chancery started as the personal staff of the lord chancellor, described as "a great secretarial bureau, a home office, a foreign office, and a ministry of justice". 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 which touch the Seal shall come first to the chancellor; and those which touch the Exchequer, to the exchequer, and those which touch the justices, or the law of the land, to the justices; and those which touch the Jews, to the
justices of the Jews. And if the affairs are so great, or if they are of grace, that the chancellor and the others cannot do it without the king, then they shall bring them with their own hands to the king to know his pleasure; so that no petitions shall come before the king, and his Council, but by the hands of his said chancellor, and the other chief ministers; so that the king and his Council may, without the load of other business, attend to the great business of his realm, and of other foreign countries. Records show dozens of early cases being sent to the lord chancellor and
master of the rolls, but at the time the chancellor had no specific jurisdiction to deal with them; the cases were referred to him only as a matter of convenience. Under
Edward II the chancellor dedicated set days to hearing pleas, as documented in the records of the Parliament of Lincoln in 1315, which also show that some cases were heard by his personal staff, the Chancery, and not by the chancellor. By 1320 requests were regularly sent there, and heard by the judges of the common law courts, with the 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.
Rise and early years 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 when setting aside complaints; poverty, for example, was an acceptable reason to cancel a contract or obligation. 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. The Chancery
writs were in French, and later English, rather than the Latin used for common law bills. In the reign of
Edward III, the court found a fixed home at
Westminster Hall, where it sat almost continually until its dissolution. Before this, justice was difficult to dispose because the lord chancellor had to travel with the King wherever he went. , where the Court sat almost continuously from the reign of
Edward III until its dissolution in 1875 By 1345 the lord chancellor began to be seen as the leader of the Court of Chancery, rather than as a representative of the king, and writs and bills were addressed directly to him. Under
Richard II it became practice to consider the Chancery separate from the
curia; academic William Carne considers this a key moment in confirming the independence of the Court of Chancery. 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 of the common law courts.
John Baker argues that it was the late 14th century that saw Chancery procedure become fixed, citing the work done by
John Waltham as master of the rolls between 1381 and 1386, and notes that this period also saw the first complaints about the Chancery. The Chancery and its growing powers soon came to be 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. 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. Kerly suggests that many complaints from the Commons came from lawyers of the common law, aggrieved at the Chancery's extended jurisdiction that overlapped with that of the common law. These complaints from the Commons did not prevent the court from successfully functioning; in 1393, for example, it was considered prominent enough that the
House of Lords sent two cases there to be dealt with. According to many academics, the Court of Chancery really began to expand its caseload during the 15th century; Margaret Avery reports a massive increase in cases during the 1440s, while
Nicholas Pronay suggests that the real expansion came during
Yorkist rule (1461–85), when the number of cases submitted each year quadrupled. He gives complaints about the perversion of justice in the common law courts, along with growing mercantile and commercial interests, as the main reason for the growth, 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". This increasing role was assisted by the changing function of the court: until 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 many complaints in Parliament. Marsh writes that another reason for the Chancery's 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.
Chancery's role in development of Standard English Chancery English, used in official documents, can be seen as the beginnings of Standard English – a national standard of spelling and grammar. By the 15th century, the City of Westminster had been the seat of government administration for about three centuries. After about 1430, the use of English in administrative documents replaced French which had been used since the Norman conquest. Consequently, the written English that developed at the Court of Chancery eventually became a standard, both in its style of handwriting ('
Chancery hand') and in its grammar and vocabulary. By the 1440s and 1450s comparative regularisation of spelling had begun to emerge.
Competition with the common law , 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. It had been the practice under
Henry VI that plaintiffs in the common-law courts could 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. 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 whom it was risky to offend, while the judges had grown in stature.
Sir Edward Coke cites in his
Reports a case at the end of Elizabeth I'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 implied jurisdiction. At the same time, the common-law judges ruled that the Chancery had no jurisdiction over matters of
freehold. 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 over-ruled by Sir Edward Coke in the
Court of King's Bench, who demanded that Glanvil be released and issued a writ of
habeas corpus. 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". Coke and the other judges over-ruled this judgment while Ellesmere was ill, taking the case as an opportunity to completely overthrow the lord chancellor's jurisdiction. Coke's challenge to the Chancery is seen by academic Duncan Kerly as helping him lose his position as a judge, and until its dissolution the Court of Chancery could overrule judgments issued in the common-law courts. Even so, future lord chancellors were more cautious; when Francis Bacon succeeded Ellesmere, he made sure to prevent the misuse of injunctions. Horowitz 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".
Attempted reform under the Commonwealth of England By the time of the
English Civil War, the Court of Chancery was being criticised extensively 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. This was partly due to the incompetence of the judges, and partially due to the procedure used; evidence was re-heard up to three times and orders were issued and then over-ruled, 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". The Court spent a long time on each case, which, combined with the backlog, made the pursuit 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, whose exorbitant pay is more surprising considering that their duties were normally such that could be easily performed by solicitor's clerks, and that they were usually performed by underclerks, not by the officials. In 1649, during the English Civil War, Parliament published a series of orders to reform the Court. Most were from the doctrines set out by Francis Bacon as lord chancellor, but there were some more modern reforms: counsels 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. 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, and the Bar would elect 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. 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. The party that lost the case was to pay full fees to the other side; the fees would be set ludicrously low. This bill was never put into effect, as Parliament was dissolved.
Oliver Cromwell did appoint a Commission to institute similar provisions in 1654, but the Commission refused to perform its duties.
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 of the court rather than the spirit, which
Lord Clarendon soon rectified. 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. An effect of the 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. 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. 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. 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. Before 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). 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.
Further reform Lord Somers, following his dismissal as lord chancellor, introduced the
Administration of Justice Act 1705 (
4 & 5 Ann. c. 3) in 1706 which "became the most important act of law reform which the 18th century produced". The act significantly amended the existing law and court procedure, and while most of it was aimed at the common-law courts, it did affect the Chancery. For equity, the act provided that a party trying to have his case dismissed could not do so until he had paid the full costs, rather than the nominal costs that were previously required; at the same time, the reforms the act 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. Legal historian
Wilfrid Prest writes that despite these legislative enactments, the tally of which "begins to look quite impressive", the old problems continued, albeit less frequently; one
barrister of the time claimed that going to the Court with a case worth anything less than £500 was a waste of time. Under
Lord Hardwicke, Chancery 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 40 shillings previously paid, and that parties filing
bills of review should pay £50 for the privilege. The recommendations were not immediately acted on, but in 1743 a list of permissible fees was published, and to cut down on paperwork, no party was 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".
Victorian era Old Hall 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. The success of the
Code Napoleon and the writings of
Jeremy Bentham are seen by academic Duncan Kerly to have had much to do with the criticism, 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. The first major reforms were the appointment of a vice-chancellor by the
Administration of Justice Act 1813 to hear cases, 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. Some significant reforms were proposed; in 1829, for example,
Lord Lyndhurst proposed unsuccessfully that the equity jurisdiction of the
Court of Exchequer be merged with the Chancery, and that a fourth judge be appointed to hear the additional cases. A year later, when the common law courts were each gaining a judge, he repeated his proposal, but the bill was strongly opposed by judges who maintained that the court backlog did not justify the additional expense of a fourth judge. Eventually, 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. These are described by Lobban as "hasty reactions to mounting arrears" rather than the result of long-term planning. As a result of the new appointments, the court backlog was significantly reduced – the court processed 1,700 cases in 1846–49 compared to 959 in 1819–24 – but it rose again after the death of
Shadwell VC and retirement of
Wigram VC. Shadwell, appointed under the Administration of Justice Act 1813 could be replaced, but a principal in the '''''' (
5 Vict. c. 5) (under which Wigram had been appointed) 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. attacked the
Six Clerks in Parliament and successfully had their positions abolished. The 1830s saw a reduction in the "old corruption" that had long plagued the court, first through the '
(2 & 3 Will. 4. c. 111) (which abolished a number of sinecure offices within the court and provided a pension and pay rise for the lord chancellor, in the hope that it would reduce the need for the chancellor to make money by selling court offices) and then through the (3 & 4 Will. 4. c. 94). 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, the ' (
5 & 6 Vict. c. 103) was passed in the same year that abolished the office of the Six Clerks completely. 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. The '
(15 & 16 Vict. c. 87) 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. The ' (
15 & 16 Vict. c. 80) abolished the masters in Chancery, allowing all cases to be heard directly by judges instead of bounced back-and-forth between judges and masters. As a result of these reforms the court became far more efficient, and the backlog decreased; in the 1860s an average of 3,207 cases were submitted each year, while the court heard and dismissed 3,833, many of them from the previous backlog. Much of this work was carried out by the growing number of clerks, however, and members of the legal profession became concerned about the "famine" of equity judges. Despite these reforms, it was still possible for Charles Dickens, writing in 1853 in the preface to his novel
Bleak House, to bemoan the inefficiencies of the Court of Chancery. His novel revolves around a fictional long-running Chancery case,
Jarndyce and Jarndyce. He observed that at the time he was writing there was a case before the Chancery court "which was commenced nearly twenty years ago ... and which is (I am assured) no nearer to its termination now than when it was begun". He concluded that "If I wanted other authorities for Jarndyce and Jarndyce, I could rain them on these pages, to the shame of a parsimonious public".
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 existence of two separate systems was "the parent of most of the defects in the administration of our law". Much of the impetus for fusion came from pressure groups and lawyers' associations. 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. Until then, 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 authority to use equitable remedies, although it 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. After the
Chancery Regulation Act 1862 had gone some way toward procedural reform, in February 1867,
Roundell Palmer again brought the problem of having two separate 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 addressing which court would deal with the common law and which with equity, and was also silent on the structure of the court, as 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. As a result, the bill was eventually withdrawn. 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, he decided to fuse the courts and the procedure. The final draft provided that all of the existing superior courts would be fused into one court consisting 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; Section 25 of the act provided that, where there was conflict between the common law and equity, the latter would prevail. An appeal from each division went to the appellate level, the
Court of Appeal of England and Wales. These provisions were brought into effect after amendment with the
Supreme Court of Judicature Act 1875, and the Court of Chancery ceased to exist. The
Master of the Rolls was transferred to the new
Court of Appeal, the lord chancellor retained his other judicial and political roles, and the position of vice-chancellor ceased to exist, replaced by ordinary judges. The Chancery Division remains to this day part of the
High Court of Justice of England and Wales. == Jurisdiction ==