1911 Encyclopædia Britannica/Chancery

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CHANCERY, in English law, the court of the lord chancellor of England, consolidated in 1873 along with the other superior courts in the Supreme Court of Judicature. Its origin is noticed under the head of Chancellor.

It has been customary to say that the court of chancery consists of two distinct tribunals—one a court of common law, the other a court of equity. From the former have issued all the original writs passing under the great seal, all commissions of sewers, lunacy, and the like—some of these writs being originally kept in a hanaper or hamper (whence the “hanaper office”), and others in a little sack or bag (whence the “petty-bag office”). The court had likewise power to hold pleas upon scire facias (q.v.) for repeal of letters patent, &c. “So little,” says Blackstone, “is commonly done on the common law side of the court that I have met with no traces of any writ of error being actually brought since the fourteenth year of Queen Elizabeth.”

The equitable jurisdiction of the court of chancery was founded on the supposed superiority of conscience and equity over the strict law. The appearance of equity in England is in harmony with the general course of legal history in progressive societies. What is remarkable is that, instead of being incorporated with or superseding the common law, it gave rise to a wholly independent set of tribunals. The English dislike of the civil law, and the tendency to follow precedent which has never ceased to characterize English lawyers, account for this unfortunate separation. The claims of equity in its earlier stages are well expressed in the little treatise called Doctor and Student, published in the reign of Henry VIII.:—“Conscience never resisteth the law nor addeth to it, but only when the law is directly in itself against the law of God, or law of reason.” So also King James, speaking in the Star Chamber, says: “Where the rigour of the law in many cases will undo a subject, then the chancery tempers the law with equity, and so mixes mercy with justice, as it preserves a man from destruction.” This theory of the essential opposition between law and equity, and of the natural superiority of the latter, remained long after equity had ceased to found itself on natural justice, and had become as fixed and rigid as the common law itself. The jealousy of the common lawyers came to a head in the time of Lord Ellesmere, when Coke disputed the right of the chancery to give relief against a judgment of the court of queen’s bench obtained by gross fraud and imposition. James I., after consultation, decided in favour of the court of equity. The substitution of lay for clerical chancellors is regarded by G. Spence (Equitable Jurisdiction of the Court of Chancery, 2 vols., 1846–1849) as having at first been unfortunate, inasmuch as the laymen were ignorant of the principles on which their predecessors had acted. Lord Nottingham (1621–1682) is usually credited with the first attempt to reduce the decisions of the court to order, and his work was continued by Lord Hardwicke (1690–1764). By the time of Lord Eldon equity had become fixed, and the judges, like their brethren in the common law courts, strictly followed the precedents. Henceforward chancery and common law courts have exhibited the anomaly of two co-ordinate sets of tribunals, empowered to deal with the same matters, and compelled to proceed in many cases on wholly different principles. The court of chancery could in most cases prevent a person from taking advantage of a common law right, not approved of by its own system. But if a suitor chose to go to a court of common law, he might claim such unjust rights, and it required the special intervention of the court of equity to prevent his enforcing them. In many cases also a special application had to be made to chancery for facilities which were absolutely necessary to the successful conduct of a case at common law. Another source of difficulty and annoyance was the uncertainty in many cases whether the chancery or common law courts were the proper tribunal, so that a suitor often found at the close of an expensive and protracted suit that he had mistaken his court and must go elsewhere for relief. Attempts more or less successful were made to lessen those evils by giving the powers to both sets of courts; but down to the consolidation effected by the Judicature Act, the English judicial system justified the sarcasm of Lord Westbury, that one tribunal was set up to do injustice and another to stop it.

The equitable jurisdiction of chancery was commonly divided into exclusive, concurrent and auxiliary. Chancery had exclusive jurisdiction when there were no forms of action by which relief could be obtained at law, in respect of rights which ought to be enforced. Trusts were the most conspicuous example of this class. It also included the rights of married women, infants and lunatics. Chancery had concurrent jurisdiction when the common law did not give adequate relief, e.g. in cases of fraud, accident, mistake, specific performance of contracts, &c. It had auxiliary jurisdiction when the administrative machinery of the law courts was unable to procure the necessary evidence.

The Judicature Act 1873 enacted (§ 24) that in every civil cause or matter commenced in the High Court of Justice, law and equity should be administered by the High Court of Justice and the court of appeal respectively, according to the rules therein contained, which provide for giving effect in all cases to “equitable rights and other matters of equity.” The 25th section declared the law hereafter to be administered in England on certain points, and ordained that “generally in all matters not hereinbefore particularly mentioned in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.” The 34th section specifically assigned to the chancery division the following causes and matters:—The administration of the estates of deceased persons; the dissolution of partnerships, or the taking of partnership, or other accounts; the redemption or foreclosure of mortgages; the raising of portions, or other charges on land; the sale and distribution of the proceeds of property subject to any lien or charge; the execution of trusts, charitable or private; the rectification, or setting aside, or cancellation of deeds or other written instruments; the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases; the partition or sale of real estates; the wardship of infants and the care of infants’ estates.

The chancery division originally consisted of the lord chancellor as president and the master of the rolls, and the three vice-chancellors. The master of the rolls was also a member of the court of appeal, but Sir George Jessel, who held that office when the new system came into force, regularly sat as a judge of first instance until 1881, when, by the act of that year (sec. 2), the master of the rolls became a member of the court of appeal only, and provision was made for the appointment of a judge to supply the vacancy thus occasioned (sec. 3). Sir James Bacon (1798–1895) was the last survivor of the vice-chancellors. He retained his seat on the bench until the year 1886, when he retired after more than seventeen years’ judicial service. For some reason the solicitors, when they had the choice, preferred to bring their actions in the chancery division. The practice introduced by the Judicature Act of trying actions with oral evidence instead of affidavits, and the comparative inexperience of the chancery judges and counsel in that mode of trial, tended to lengthen the time required for the disposal of the business. Demand was consequently made for more judges in the chancery division. By an act of 1877 the appointment of an additional judge in that division was authorized, and Sir Edward Fry (afterwards better known as a lord justice) was appointed. In August 1899 the crown consented to the appointment of a new judge of the High Court in the chancery division on an address from both Houses of Parliament, pursuant to the 87th section of the Appellate Jurisdiction Act 1876. The chancery division, therefore, consists of the lord chancellor and six puisne judges. The latter are styled and addressed in the same manner as was customary in the old common law courts.[1] Formerly there were only four judges of this division (being the successors of the master of the rolls and the three vice-chancellors) to whom chambers were attached. The fifth judge heard only causes with witnesses transferred to him from the overflowing of the lists of his four brethren. In each set of chambers there were three chief clerks, with a staff of assistant clerks under them. The chief clerks had no original jurisdiction, but heard applications only on behalf of the judge to whose chambers they belonged, and theoretically every suitor had the right to have his application heard by the judge himself in chambers. But the appointment of a sixth judge enabled the lord chancellor to carry out a reform recommended by a departmental committee which reported in 1885. The great difficulty in the chancery division always was to secure the continuous hearing of actions with witnesses, as nearly one-half of the judge’s time was taken up with cases adjourned to him from chambers and other administrative business and non-witness actions and motions. The interruption of a witness action for two or three days, particularly in a country case, occasioned great expense, and had other inconveniences. It was a simple remedy to link the judges in pairs with one list of causes and one set of chambers assigned to each pair. This reform was effected by the alteration of a few words in certain rules of court. There are therefore, only three sets of chambers, each containing four chief clerks, or, as they are now styled, masters of the Supreme Court, and one of the linked judges, by arrangement between themselves, continuously tries the witness actions in their common list, while the other attends in chambers, and also hears the motions, petitions, adjourned summonses and non-witness cases.

Although styled masters it does not appear that the chief clerks have any larger or different jurisdiction than they had before. They are still the representatives of and responsible to the judges to whom the chambers are attached. The judge may either hear an application in chambers, or may direct any matter which he thinks of sufficient importance to be argued before him in court, or a party may move in court to discharge an order made in chambers with a view to an appeal, but this is not required if the judge certifies that the matter was sufficiently discussed before him in chambers.

Under the existing rules of court many orders can now be made on summons in chambers which used formerly to require a suit or petition in court (see Order LV. as to foreclosure, administration, payment out of money in court and generally). The judge is also enabled to decide any particular question arising in the administration of the estate of a deceased person or execution of the trusts of a settlement without directing administration of the whole estate or execution of the trusts generally by the court (Order LV. rule 10), and where an application for accounts is made by a dissatisfied beneficiary or creditor to order the accounts to be delivered out of court, and the application to stand over till it can be seen what questions (if any) arise upon the accounts requiring the intervention of the court (Order LV. 2, 10a). Delay and consequent worry and expense are thus saved to the parties, and, at the same time, a great deal of routine administration is got rid of and a larger portion of the judicial term can be devoted to hearing actions and deciding any question of importance in court. The work of the chambers staff of the judges has probably been increased; but, on the other hand, it has been lightened by the removal of the winding-up business. The chancery division has also inherited from the court of chancery a staff of registrars and taxing masters.

In the United States “chancery” is generally used as the synonym of “equity.” Chancery practice is practice in cases of equity. Chancery courts are equity courts (see Equity). For the diplomatic sense of chancery (chancellery) see Chancellor.

  1. The comte de Franqueville comments on the misuse of the title “Lord” in addressing judges as another anomaly which only adds to the confusion, but perhaps unnecessarily. According to Foss (vol. viii. p. 200) it was only in the 18th century that the judges began to be addressed by the title of “Your Lordship.” In the Year Books (he adds) they are constantly addressed by the title of “Sir.” “Sir, vous voyez bien,” &c.}}