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THE EVOLUTION OF CHANCERY AND THE JUDI-
“The fame of to-day is infamy to-morrow ;
The office of Chancellor had its origin in the reign of Edward the Confessor. After the Norman Conquest and the establishment of the Curia Regis, this official supervised the issue of Royal Charters and sealed the writs by which proceedings in the Court of the Chief Justiciar were instituted. He, also, was Secretary of the different departments of State, conducting the King's correspondence and occasionally acting as an itinerant Justice. At first the Chancellor held a subordinate position, only ranking sixth in order of the great Officers of State, coming after the Chief Justiciar, the Constable, the Marshal, the Seneschal and the Chamberlain. After the establishment of the three superior Courts of the King's Bench, the Common Pleas and the Exchequer, offshoots of the Curia Regis, and after the abolition of the office of the Chief Justiciar, the Chancellor became the standing legal adviser of the Council.
His equitable jurisdiction arose in manner following: It was early felt the Common Law Courts in many cases could give no redress, or no adequate redress, on account of their limited powers and formal rules of procedure and, consequently the Suitor, virtually without remedy, was compelled to appeal to the King, by petition for relief as the head and fountain of justice, who held in reserve the power to afford aid according to very right and good conscience. These petitions were from time to time referred to the Chancellor, the keeper of the King's conscience, and at length came to be presented to this official in the first instance, either to investigate and report upon to the King and Council for consideration, or, in ordinary cases, to mete out such justice as he might deem proper. It would seem fitting such questions should be referred to the King's Chaplain or one in Holy Orders, who, by his training in canon and ecclesiastical law, would be better versed in matters that savoured rather of ethics than of such as were interpreted by the strict letter of the law. Increase of business gradually led to a regular mode of procedure; also to the appointment of Masters in
Equity, to whom references were directed and by whom reports were made in collateral questions; and also to the appointment of a judicial officer, generally the chief of the Masters, called the Master of the Rolls. Finally the Chancellor acquired a status of rank and dignity, as exalted as that formerly employed by the Grand Justiciar, and One eagerly sought after by judicial aspirants. And thus gradually were laid the foundations upon which the modern system of the Court of Equity has gradually been built. The range and variety of the Chancellor's duties were thus briefly summarized by Mentham, in the early part of the nineteenth Century, “He is (1) A single Judge controlling in civil matters the several jurisdictions of the twelve great Judges. (2) A necessary member of the Cabinet, the chief and most constant adviser of the King in all matters of law. (3) The perpetual President of the highest of the two Houses of Legislature. (4) The absolute proprietor of a prodigious mass of ecclesiastical patronage. (5) The competitor of the Minister for almost the whole patronage of the law. (6) The keeper of the Great Seal; a transcendant, multifarious, and indefinable office. (7) The possessor of a multitude of heterogeneous scraps of power, too various to be enumerated.” During the reign of Edward III., Chancery began to be regarded, not merely as a department of State, but as a Court. It was not till the end of the 15th Century that the Chancellor got a jurisdiction clearly distinct from that of the Council. Under the Tudor dynasty a strong executive government was formed, by a reorganization of the Council, a new classification of its powers and a settlement by well defined limits of the jurisdictions of the different Courts. The Chancellor then became the Judge of the Court of Chancery. In the earlier years of its existence, the Court of Chancery was looked upon with disfavour by the Common Law Courts. Its Chancellors, who were men for the most part in Holy Orders, and wanting in proper legal training, sought to magmify their office and made bold incursions in the regions of the settled principles and decisions of the Common Law Courts. It had grown into a trite aphorism, that Equity acted by and upon the conscience. This was accepted in a double sense. In one sense it claimed to grant right and justice in all cases brought under the consideration of the Court, according to the conscience of the Chancellor. It was this that gave point to Seldon's stinging criticism: “Equity is a roguish thing: for law we have a measure. Equity is according to the conscience of him who is Chancellor, and as that is larger or narrower, so is equity. It is all one as if they should make the standard for the measure we call a foot, “a Chancellor’s foot.” What an uncertain measure would this be? One Chancellor has a long foot; another a short foot, a third, an indifferent foot: It is the same thing in the Chancellor’s conscience.” And to the like effect was the following stricture of Lord Camden: “The discretion of a Judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best it is oftentimes caprice; in the worst it is very vice, folly and passion to which human nature is liable.” In another sense its exercise from the standpoint of equity was claimed to exert a salutary influence in reforming the morals of the defendant and in the purification of his conscience. It likewise claimed to preserve his conscience from the taint of pollution consequent upon the retention of benefits or advantages acquired by fraud, undue influence and double dealing with persons standing in fiduciary relationship: In other words, its carthartic process tended,
“To cleanse the stuff'd bosom of that perilous stuff,
In the early part of the seventeenth century, during the reign of James I., occurred the notable dispute between the Courts of Equity and Law, when Lord Ellesmere was Lord Chancellor, and Lord Coke, Chief Justice, both Judges of surpassing ability and unyielding disposition. The contest waxed so warm that indictments were preferred against the suitors, solicitors, counsel and a Master in Chancery, for having incurred a praemunire, by seeking to stay by injunction the execution of a judgment obtained in the Court of King's Bench, on the ground of fraud and perjury. It was a struggle, like that of the fabled Titans, which shook the judicial pillars of the State.
During the period of the Commonwealth an attempt was made to remedy the alleged abuses and defects of this Court.
In a debate in Parliament, in 1653, it was reported: “The Court of Chancery was called by some members the greatest grievance in the nation. Others said, that for dilatoriness, changeableness, and a faculty for bleeding the people in the purse vein, even to their utter perishing and undoing, that Court might compare with if not surpass any Court in the world. That it was considently affirmed by knowing gentlemen of worth, that there were depending in that Court, 23,000 cases, some of which had been there depending five, some ten, some twenty, some thirty years and more; that there had been spent therein many thousand pounds to the ruin, may utter undoing of many families. That what was ordered one day was counternanded the next, so, as in some causes, there had been 500 orders and more; so that some members did not stick to term the Chancery a mystery of wickedness, and a standing cheat, and that in short so many horrible things were affirmed of it, that those who were or had a mind to be advocates for it, had little to say on the behalf of it.” The organization of the Court as then existing was abolished and a bill introduced to reconstitute it. Parliament, however, was dissolved before the bill became law. Cromwell, in 1654, embodied many of its provisions in a set of Ordinances, which he directed the Commissioners to enforce. One of the rules was, that all causes should be heard and examined on the day on which they were set down. This, however, was found impracticable. On reading what was said in the Commonwealth Parliament, in 1653, regarding proceedings in the Court of Chancery, who can say, the following description of this Court, by Dickens, in the famous cause of Jarndyce v. Jarmdyce, in Bleak House, was overdrawn? The great novelist says: “The lawyers have twisted it into such a state of bedevilment that the original merits of the case have long disappeared from the face of the earth. It’s about a will, and the trusts under a will—or it was, once. It's about nothing but costs, now. We are always appearing and disappearing, and swearing, and interrogating, and filing, and cross-filing, and arguing, and sealing, and motioning, and referring, and reporting, and revolving about the Lord Chancellor and all his satellites, and equitably waltzing ourselves off to dusty death—about costs. All through the deplorable case the parties to the suit must go down the middle and up again, through such an infernal country dance of costs and fees and nonsense and corruption, as was never dreamed of in the wildest visions of a witch's Sabbath. Equity sends questions to law. Law sends questions back to equity. Law finds it can’t do this. Equity finds it can’t do that. And thus, through years and years, and lives and lives, everything goes on, constantly beginning over and over again, and nothing ever ends. And we can’t get out of the suit on any terms, for we are made parties to it, and must be parties to it whether we like it or not.” Notwithstanding the many difficulties encountered in carrying the system into practical effect, yet by a succession of able chancellors, after a struggle for many centuries, the Court of Chancery won its way to the crowning triumphs of the passage of the Supreme Court Judicature Act of 1873 and amending Acts, whereby the distinction between Courts of Equity and Courts of Law was abolished and a full recognition of the usefulness and wisdom of its principles demonstrated. By this Act, the justice of its rules was strikingly illustrated by the general rule, that wherever there is any conflict or variance between the rules of equity and those of the common law with reference to the same matter, the rules of equity shall prevail. Its success in mitigating the rigour of the common law and in moulding its decrees to suit the exigencies of particular cases, where injustice had been done by strict adhesion to the unbending rules of the common law, contributed materially to its growth and constantly increasing popularity. The system was perfected under the hands of some of the most learned and distinguished jurists that ever adorned a seat of justice—Ellesmere, Nottingham, called the father of Equity, Hardwicke, Eldon, Westbury and Selborne. Although severely criticised, it has been the subject of emphatic laudation by some of the most famous jurists of the day. Lord Ellesmere, in his treatise on Equity, thus extols its merits: “As the Chancellor is at this day the mouth, the ear, the eye, and the heart of the prince, so is the Court whereof he hath the most particular administration, the oracle of equity, the storehouse of the favour of justice, of the liberality royal, and of the right pretorial which openeth the way to right, giveth power and commission to the Judges, hath jurisdiction to correct the rigour of the law by the