Court of Chancery

From Wikipedia, the free encyclopedia

Jump to navigation
Jump to search
This article is about the English civil court. For other uses, see Court of
Chancery (disambiguation).
A large number of wigged, robed figures in a wood-covered courtroom. A large royal
crest decorates the rear wall, with four judges sitting in front of it. Below them,
a group of scribes sit writing, along with a large jewelled sceptre and cushion.
The Court of Chancery in the reign of King George I

The Court of Chancery was a court of equity in England and Wales that followed a
set of loose rules to avoid the slow pace of change and possible harshness (or
"inequity") of the common law. The Chancery had jurisdiction over all matters of
equity, including trusts, land law, the estates of lunatics and the guardianship of
infants. Its initial role was somewhat different: as an extension of the Lord
Chancellor's role as Keeper of the King's Conscience, the Court was an
administrative body primarily concerned with conscientious law. Thus the Court of
Chancery had a far greater remit than the common law courts, whose decisions it had
the jurisdiction to overrule for much of its existence, and was far more flexible.
Until the 19th century, the Court of Chancery could apply a far wider range of
remedies than common law courts, such as specific performance and injunctions, and
had some power to grant damages in special circumstances. With the shift of the
Exchequer of Pleas towards a common law court and loss of its equitable
jurisdiction by the Administration of Justice Act 1841, the Chancery became the
only national equitable body in the English legal system.

Academics estimate that the Court of Chancery formally split from and became
independent of the curia regis in the mid-14th century, at which time it consisted
of the Lord Chancellor and his personal staff, the Chancery. Initially an
administrative body with some judicial duties, the Chancery experienced an
explosive growth in its work during the 15th century, particularly under the House
of York, which academics attribute to its becoming an almost entirely judicial
body. From the time of Elizabeth I onwards the Court was severely criticised for
its slow pace, large backlogs, and high costs. Those problems persisted until its
dissolution, despite being mitigated somewhat by reforms, particularly during the
19th century. 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 � one of three divisions of the High Court � succeeding
the Court of Chancery as an equitable body.

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, in lieu of wages,
charged increasingly exorbitant fees to process cases, one of the main reasons why
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 sale of offices, and later the right to appoint
officials was transferred from the Chancellor to the Crown.
Contents

1 History
1.1 Origins
1.2 Rise and early years
 1.2.1 Chancery's role in development of Standard English
1.3 Competition with the common law
1.4 Attempted reform under the Commonwealth of England
1.5 Restoration
1.6 Further reform
1.7 Victorian era
1.8 Dissolution
2 Jurisdiction
2.1 Trusts and the administration of estates
2.2 Insanity and guardianship
2.3 Charities
3 Remedies
4 Officers
4.1 Lord Chancellor
4.2 Other officers of the Court
5 See also
6 References
7 Bibliography
8 External links

History
Origins
A pale, brown-haired man holding a sceptre and wearing a crown. He is clothed in a
black and robe over a white shirt, and is wearing pale gloves
Edward I, 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.[1] 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.[2] 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.[3]

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".[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 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.[5]

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.[6] 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.[7] 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.[8]
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.
[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. The Chancery writs were 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
sat almost continually until its dissolution.[11] Before this, justice was
difficult to dispose because the Lord Chancellor had to travel with the King
wherever he went.[12]
A very large room, with a high vaulted ceiling, mostly empty save for a few small
groups of people.
Westminster Hall, 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.[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 of the common law courts.[14] 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.[15]

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.[16] From the reign of Richard II, the House of
Commons regularly complained about the work of the Court, and in 1390 it petitioned
the King to pronounce that the Court could not act contrary to the common law, nor
annul a judgement 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.[16] 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.[17] 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.[18] 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.[19]
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".[20] 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.[21] 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.[22]
Chancery's role in development of Standard English

Chancery English, used in official documents, can be seen as the beginnings of

Standard English[23] � 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.[24]
Competition with the common law
Painting of a pale man with a pointed grey beard, in black Elizabethan dress, with
a large white ruff and black hat. He is holding some papers in his left hand and a
glove in his right. There is a red cloth bag with the royal coat of arms beside his
right hand, in the foreground of the picture.
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. 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.[25] 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.[26] Sir Edward Coke cites in his
Reports 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 implied
jurisdiction. At the same time, the common-law judges ruled that the Chancery had
no jurisdiction over matters of freehold.[27]

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.[28] 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".[29] 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.[30] 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.[30] 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 extremity of our
laws, we ... do approve, ratifie and confirm, as well the practice of our Court of
Chancery.[30]