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Continuity or Change in the Court of Chancery in the Seventeenth and Eighteenth Centuries?

Published online by Cambridge University Press:  10 January 2014

Henry Horwitz  and
Patrick Polden
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Extract

No reader of Bleak House is likely to forget its scathing portrayal of the excesses of the unreformed Court of Chancery in the handling of Jarndyce v. Jarndyce. From its publication in 1852–53, it has created an indelible image of the Court, so powerfully influencing historians as well as laymen that it is sometimes hard to remember that it is fiction, and polemical fiction at that. The fiction, however, is built on a secure bedrock of fact; the voluminous testimony and submissions made by Dickens's contemporaries to a series of parliamentary inquiries on the legal system furnish ample backing for much of his “bill of complaint” on such scores as delay and expense, procedural technicality, and inconclusiveness of outcome. Thus, John Forster, a partner in one of the biggest firms in Lincoln's Inn, called the Court's delays “heart-sickening” and characterized its “modes of proceedings … as little adapted to the ordinary duration of human life as they are calculated for the determination of differences and the quiet of possessions”; in the same vein, a future master of the rolls averred that “cases have occurred, within my knowledge, in which the whole property to be administered in Chancery, has proved insufficient to pay the costs of the suit.”

As with the early nineteenth-century attacks on the unreformed House of Commons and the traditional electoral system, denunciations of the Court of Chancery's failings have a long history and, often, a repetitive quality.

Type
Research Article
Information
Journal of British Studies , Volume 35 , Issue 1 , January 1996 , pp. 24 - 57
Copyright
Copyright © North American Conference of British Studies 1996

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References

1 See Holdsworth, William, Charles Dickens as a Legal Historian (1928)Google Scholar, who depicts Dickens as a reporter in Chancery in his youth and as a successful litigant in the Court in later years. Compare Douglas Hamer's verdict that Dickens's “life-long vendetta against the Court of Chancery marks him as emotionally unstable in that context”; see Hamer, Douglas, “Dickens: The Old Court of Chancery,” Notes and Queries, n.s., 17 (1970): 347CrossRefGoogle Scholar. Hereafter place of publication is London unless otherwise indicated.

2 Parliamentary Papers (hereafter PP) 1826, vol. 143, col. 16, app. A(15) (Forster), A(10) (Henry Bickersteth).

3 For instance, see Holdsworth's comment with respect to the mid-seventeenth-century critiques of Chancery: “The defects then pointed out were substantially the same as those which existed in an aggravated form at the beginning of the nineteenth century”; Holdsworth, William, History of English Law (1922), 1:423Google Scholar.

4 Veall, Donald, The Popular Movement for Law Reform (Oxford, 1970), p. 178Google Scholar; Commons Debates 1621, ed. Notestein, Wallace, 7 vols. (New Haven, Conn., 1935), esp. 2:264–66, 7:568 ff.Google Scholar

5 Jones, W. J., The Elizabethan Court of Chancery (Oxford, 1967), p. 17Google Scholar, and “Due Process and Slow Process in the Elizabethan Chancery,” American Journal of Legal History 6 (1962): 123–50CrossRefGoogle Scholar. For a rather different perspective, see Knafla, Louis, Law and Politics in Jacobean England (Cambridge, 1977), esp. pp. 155–64CrossRefGoogle Scholar.

6 Kerly, D. M., An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (1890), p. 167Google Scholar. In some ways Kerly's generalizations appear suspect. Our data indicate a declining frequency of cases involving the use of the injunction, especially the so-called common injunction inhibiting proceedings at common law. For our 1627 sample (285 suits), fifty-two of the complainants were seeking injunctions to inhibit proceedings at law, and Chancery granted thirty-four of those requests. For our 1818/19 sample (149 suits), only eighteen of the complainants sought such injunctions, and only nine got them. Note, however, that PP 1826, vol. 143, col. 16, app. C(5) suggests that the rise in common and special injunctions (undifferentiated) between 1799–1801 and 1821–23 substantially outstripped the rise in new suits over those two decades.

7 Observations on the Dilatory and Expensive Proceedings in the Court of Chancery (1701). The only known copy of this tract is at Cambridge University Library, pressmark Bb*, 10.39(E), no. 9.

8 Sparke, John, A Seasonable Warning, London Library pamphlet 616, no. 11 (1706), p. 30Google Scholar.

9 Prest, Wilfrid, “Law Reform in Eighteenth-Century England,” in The Life of the Law, ed. Birks, Peter (1993), p. 123Google Scholar. Contrast the verdict of Christopher Brooks on the abortive commission on fees set up in 1732; Brooks, C. W., “Interpersonal Conflict and Social Tension: Civil Litigation in England, 1640–1830,” in The First Modern Society, ed. Beier, A. L.et al. (Cambridge, 1989), p. 381Google Scholar. See also Shapiro, Barbara, “Law Reform in Seventeenth-Century England,” American Journal of Legal History 19 (1975): 302–3CrossRefGoogle Scholar. Parkes, Joseph, A History of the Court of Chancery (1828)Google Scholar, remains a fundamental source, not least because of his mining of printed materials.

10 Animadversions upon the present Laws of England (1750), p. 8Google Scholar. Compare the judgment of Joshua Fitzsimmonds (“barrister”) that “the common costs of carrying on a suit in Chancery to a hearing amount to at least twenty pounds”; Free and Candid Disquisitions, on the Nature and Execution of the Laws of England (1751), p. 20Google Scholar. For a detailed breakdown of costs, see [Turner, Samuel], Costs in the Court of Chancery, 2d ed. (1795)Google Scholar.

11 Brooks, , “Interpersonal Conflict,” pp. 357–99Google Scholar, and Pettyfoggers and Vipers of the Commonwealth (Oxford, 1986), esp. pp. 54–55Google Scholar.

12 This perspective was reinforced by the available data about the growth in number of accounts of funds in Chancery (see n. 54 below).

13 Jones, , Elizabethan Court of Chancery, p. 17Google Scholar.

14 The 1627 sample was compiled by Henry Horwitz (with the invaluable assistance of Dr. Charles Moreton), the 1818/19 sample by Patrick Polden. We began our work independently but in organizing and tabulating findings have, insofar as possible, used common categories.

15 Pleadings come primarily from Public Record Office (PRO) C 2–C 13, depositions are from PRO, C 21 and C 24, masters' reports are from PRO, C 38, and decisions (along with information on process) are from the Court's order books in PRO, C 33. Bills of revivor and supplement and crossbills have been treated as bills de novo. See also n. 51 below.

16 The work of taking these samples, and also that of 1627, was carried out by Horwitz and Charles Moreton. Their research, supported by grants from the National Endowment for the Humanities (RC21981-91) and the Leverhulme Trust, is incorporated into Horwitz, Henry, Chancery Equity Records and Proceedings, 1600–1800, PRO Handbook 27 (1995)Google Scholar; the samples are printed in Horwitz, Henry and Moreton, Charles, Samples of Chancery Pleadings and Suits: 1627, 1685, 1735, and 1785, List and Index Society (1995)Google Scholar. For 1785, each set of pleadings was traced through the remaining stages of litigation; for 1685, only the pleadings with plaintiffs' names in the first half of the alphabet were so traced; for 1735, only a few pleadings were so traced. The years are defined as follows: (a) 1627, 1685, and 1735 are on the Julian calendar; (b) 1785 is New Style; and (c) 1818/19 is the legal year running from Michaelmas term through Hilary term.

17 The earliest surviving cause book covers the years 1620–26 for the second division of the Six Clerks (PRO, IND 1/4127), but the first year for which cause books survive for every division is 1700. The earliest surviving bill book covers 1673/74 (PRO, IND 1/2136); there were, however, bill books (which covered all six divisions) surviving from the pre-1640 era as late as the early eighteenth century.

18 For example, the bill book for 1785 records 1,544 bills, but only 1,110 survive in PRO, C 12.

19 See text at nn. 8 and 9 above. An impressionistic survey of the entries in the books of orders suggests that delays in answers lengthened and that motions on interlocutory matters multiplied.

20 Assuming the same ratio in the late 1620s as in the mid-1680s between ongoing cases and new bills submitted yields an estimate of 6,030 new bills for 1629/30. It should be noted that the sample bills, save for those of 1818/19 (where Polden drew all bills for the year where the first plaintiff's name began with the letter M), were selected with ease of access to the documents as prime consideration. So, in selecting those for 1627, the procedure followed was to draw the items from those boxes in PRO, C 2 and C 3 which preliminary explorations (of some eighty boxes) indicated did contain at least five bills of the requisite date.

21 It is also necessary to point out that in a significant minority of cases (166 of the 720 suits [23 percent] traced; see table 4 for a further breakdown) we have only the plaintiff's bill and so depend wholly on that for the description. However, we are not aware of any systematic bias such dependence would produce, save perhaps in the size of the amount being claimed. Unfortunately, many plaintiffs did not state their claims in terms of specific amounts (especially complainants in land-related matters) so that it has not been possible to calculate figures for the average or range of amounts in controversy. All that we can say, impressionistically, is that we were surprised, especially in light of the allegedly heavy Court costs, how often relatively small sums appear to be at stake.

22 Then, too, in a limited number of instances where suits seem to overlap two main categories, we have recorded them under both.

23 These estimates are derived by taking the subject matter percentages from table 5 and applying them to the active case estimates of table 2.

24 For a brief account of Mansfield's measures, see Baker, John H., An Introduction to English Legal History, 3d ed. (1990), pp. 398–99Google Scholar. For complaints as to the masters' skill and dispatch in these matters, see PP 1826, vol. 143, col. 16, app. A(13) (Henry Lowe). As far back as the early 1670s, Lord Chancellor Shaftesbury was, reportedly, contemplating a scheme to bring in accounting specialists to aid the masters: see Aubrey on Education, ed. Stephen, J. E. (1972), p. 104Google Scholar.

25 Deane, Phyllis and Cole, W. A., British Economic Growth 1688–1959, 2d ed. (Cambridge, 1967), table 19, p. 78Google Scholar: index numbers of eighteenth-century real output. Combined industry and commerce rose from 100 to 387; agriculture, by contrast, rose from 100 to 143, while total real output rose from 100 to 251.

26 Hamburger, Philip, “The Conveyancing Purposes of the Statute of Frauds,” American Journal of Legal History 27 (1983): 354–83CrossRefGoogle Scholar. James Oldham has suggested to us that if the writing required by the statute constituted or contained a warranty of good title, this would support the hypothesis that the statute did have a significant impact in this sphere. At the same time, suits for specific performance of contracts to convey land certainly did not disappear from Chancery after 1677.

27 Lord Nottingham's “Manual of Chancery Practice” and “Prolegomena of Chancery and Equity” ed. Yale, D. E. C. (Cambridge, 1965), p. 203Google Scholar; Simpson, A. W. B., A History of the Common Law of Contract (Oxford, 1975), pp. 121–22Google Scholar.

28 It has, however, been suggested that the 1670 and 1685 acts governing intestacies led to a fall in the provision of accounts by representatives of the deceased—a development indicating that Parliament was eroding ecclesiastical jurisdiction in this sphere. See Erickson, Amy Louise, Women and Property in Early Modern England (1993), p. 38Google Scholar.

29 Spence, George, The Equitable Jurisdiction of the Court of Chancery, 2 vols. (1846), 1:580Google Scholar. Spence also observes that the “jurisdiction of the Ecclesiastical Court being … defective in the case of creditors, rendered it necessary for them” to resort to Chancery in order to contest the accounts of the representative of the deceased (1:581). And see Story, Joseph, Commentaries on Equity Jurisprudence, as administered in England and America, 2d ed., 2 vols. (Boston, 1839), 1:479Google Scholar, suggesting that Lord Kenyon's assertion that the jurisdiction over questions of legacies was not exercised in equity until the time of Lord Chancellor Nottingham was somewhat exaggerated, there being “traces” of an exercise in the jurisdiction as early as the time of Ellesmere. And see n. 53 below.

30 Bryson, Hamilton, The Equity Side of the Exchequer (Cambridge, 1975), pp. 33CrossRefGoogle Scholar, 24–27, followed by Ball, R. M., “Tobias Eden, Change and Conflict in the Exchequer Office, 1672–1698,” Journal of Legal History 11 (1990): 70CrossRefGoogle Scholar. Suggestions that Exchequer's emergence as a general court of equity (i.e., that it had ceased to enforce the requirement that the plaintiff was a debtor to the crown) came some decades earlier are not confirmed by a review of the Court's decrees for 1627 (E 126/142): in over two-thirds the plaintiff was the attorney general, and of the remaining a substantial proportion involved lands in which the crown had some kind of interest.

31 Figures on Exchequer bills are derived from Bryson, p. 168; from PP 1836, 32, col. 43:7 ff.; and also from independent calculations from the Court's bill books, PRO, IND 1/16842–47. In the 1820s and 1830s, the level of Exchequer bills fell off sharply.

32 That each—at a party's request—would enjoin proceedings relating to the same matter in the other when the matter had been initiated in the court issuing the injunction is an indication not of competition but comity.

33 Decrees, not bills (i.e., suits), are used for this comparison since Exchequer bills have not been sampled; for Exchequer decrees, see PRO, E 126.

34 The author of The Compleat Solicitor Performing his Duty (1672) observed that while practice in Exchequer was “in effect one and the same with the Chancery,” it was “a little more chargeable” (p. 61). However, the most significant variants remarked in later practice manuals were (1) that Exchequer decrees eschewed the lengthy recitals of pleadings and proofs common to Chancery decrees and (2) that in Exchequer exceptions taken to a defendant's answer were not referred to a master but decided by the court itself (again making for a savings in time and cost); see Fowler, David Burton, The Practice in the Court of Exchequer (1795), l:ix, 2:2, 193Google Scholar. Note, however, the occasional assertion of Chancery's greater authority; thus, Richard Boote, a Chancery practitioner, stated that (1) an Exchequer decree, even one upheld by the House of Lords on appeal, could be reversed in Chancery, (2) it was possible for foreclosure proceedings in Exchequer to be countered by a Chancery bill to redeem the property, and (3) dismissal of a bill in Exchequer did not prevent its being brought in again in Chancery; see The Solicitor's Compleat Guide in the Practice of the High Court of Chancery (1776), p. 41Google Scholar.

35 We have not tabulated the data for 1627 because of the narrow range of subject matter in Exchequer at that time; see n. 30 above.

36 A limited number of affidavits also attest to occasional errors made by plaintiffs in identifying a defendant's place of residence.

37 For some halfway houses between the two choices, see table 11 and table 12. And cf. Erickson, pp. 114–15; and Stretton, Tim, “Women and Litigation in the Elizabethan Court of Requests” (Ph.D. diss., Cambridge University, 1993), p. 256.Google Scholar

38 For example, the first five representative parties (and the deceased, or real party in interest) encountered in the 1785 sample are a provincial trader representing a provincial gentleman, a London merchant representing a London trader, a metropolitan gentleman representing his late wife (allegedly, a separate trader), a provincial grazier representing a provincial carrier, and a metropolitan esquire representing a metropolitan esquire.

39 There are a total of thirty-two representative plaintiffs in the 1627 sample, nine in the 1818/19 sample.

40 Brooks, , “Interpersonal Conflict” (n. 9 above), p. 385Google Scholar, also p. 397. And for the decline in the proportion of gentlemen and above litigating in Common Pleas, see p. 384.

41 Of the fifty-eight suits initiated in 1785 by those identifiable as residents of London and the metropolis (thirty-three of them businessmen or the widows and/or children of businessmen), only thirteen related to commercial transactions, fifteen related to matters of realty (most metropolitan and some commercial property), while an additional twenty involved estate-related matters.

42 See Sec. I above.

43 It is also worth noting that while in 1627 only nine of the 100 complainants styled or styling themselves “gentleman” or higher resided in London or its environs, by 1818/19 of the forty-three English complainants styled or styling themselves as gentlemen or higher only twenty-six resided in the provinces.

44 In categorizing parties' locales, we have borne in mind that the boundaries of the metropolis did grow very considerably over the two centuries in view. Overall, the City contributed forty-four of the first-named parties in 1627 and thirty in 1818/19; the rest of the metropolitan area contributed twenty-one in 1627 and no fewer than eighty in 1818/19.

45 For regional breakdowns of the English and British population in the eighteenth and early nineteenth centuries, see Deane and Cole (n. 25 above), table 27, p. 178; and Lee, C. H., The British Economy since 1700: A Macro-economic Perspective (1986), table 7.1, p. 127Google Scholar.

46 Similarly, the sharpest downturns in King's Bench were on the Midland and Norfolk circuits.

47 Brooks, , “Interpersonal Conflict” (n. 9 above), p. 370Google Scholar.

48 Examination of the pleadings for the Duchy of Lancaster reveals the same sharp drop in suits filed between the later seventeenth and later eighteenth centuries as in Chancery: see PRO, DL 1/444, 492, 502. For similar findings for Durham, see Emsley, K. and Fraser, C. M., The Courts of the County Palatine of Durham (1984), pp. 81–85Google Scholar; and see also Knight, Marcus, “Litigants and Litigation in the Seventeenth Century Palatine of Durham” (Ph.D. diss., Cambridge University, 1990), esp. pp. 101, 109Google Scholar.

49 Of the fifty-six City and metropolitan first-named plaintiffs of 1818/19, twentyseven were commercial/artisanal, twenty styled themselves “gentlemen” or “esquire,” and three were professionals.

50 In absolute terms, however, we may compute that the number of new estate suits in Chancery declined over the intervening century and one-half, for the rise in proportion of estate cases was more than counterbalanced by the sharp fall in the total volume of new bills.

51 The numbers of nonoriginal bills (i.e., amended, supplementary, and crossbills, and bills of revivor) in these samples are two, zero, ten, and thirty-two, respectively. If bills of revivor were traced backward as well as forward, the number of cases lasting more than five years in the 1818/19 sample would be more than forty.

52 Eight of the fourteen prolonged estate cases of 1785 involved minor legatees and devisees; Chancery supervision would terminate only when the youngest received his or her inheritance. Thus, the average length of time these eight estates were in Chancery was fifteen years.

53 By contrast, failure to invoke the Court's assistance might bring a harsh response; note the treatment meted out by the Irish Court of Chancery under Lord Redesdale (author of the standard manual on English Chancery pleading who made a systematic effort to import English equity practice into Ireland) to the executors in Doyle v. Blake (1804); Schoales, John and Lefroy, Thomas, Reports of Cases … in the High Court of Chancery in Ireland during the Time of Lord Redesdale 2 (1811), 231Google Scholar, at 243.

54 PP 1826, vol. 143, col. 16, app. C(5).

55 Note, however, Cooper, Charles P., A Brief Account of Some of the most important Proceedings in Parliament, relative to … the Court of Chancery … (1828), pp. 85–86Google Scholar, who observes that it required a minimum of five years for a common suit by legatees (or by creditors) because there were two lengthy waiting periods before hearings could be secured—after the pleadings, and then after the reference to the master to take accounts.

56 For the rise in bankruptcy (and lunacy) petitions see PP 1826, vol. 143, col. 16, app. B(6) (with bankruptcy doubling, and lunacy more than doubling, between 1800 and 1820).

57 See n. 48 above. Brooks, to be sure, would give some weight to the expanding courts of request in provincial towns, but with very substantial qualifications: see Brooks, , “Interpersonal Conflict,” pp. 372–78Google Scholar. Similarly, arbitration—though sometimes invoked as a partial explanation—does not really get us very far forward; see Horwitz, H. and Oldham, J., “John Locke, Lord Mansfield and Arbitration in the Eighteenth Century,” Historical Journal 36 (1993): 137–59CrossRefGoogle Scholar.