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A Profusion of Chancery Reform A Profusion of Chancery Reform
James Oldham
Georgetown University Law Center
, oldham@law.georgetown.edu
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22 Law & Hist. Rev. 609-614 (2004)
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HeinOnline -- 22 Law & Hist. Rev. 609 2004
FORUM:
COMMENT
A Profusion
of
Chancery Reform
JAMES
OLDHAM
The refrain that law and equity cannot peaceably cohabit the same court
is familiar and persistent. In his 1790 treatise on contracts, Joseph Powell
protested that blending law and equity was "subversive
of
first principles."1
He claimed, "That a right in itself purely legal cannot be the proper sub-
ject
of
discussion in a jurisdiction purely equitable, and that a right purely
equitable, cannot be the proper subject
of
a purely legal jurisdiction, are
axioms that cannot be denied," adding for good measure:
"It
is a proposi-
tion as self-evident as that black is not red, or white black."2 Almost two
centuries later, in a provocative 1974 essay called
The Death o/Contract,
Grant Gilmore asserted that the legal doctrine
of
consideration in contract
law and the equitable doctrine
of
promissory estoppel were like "matter
and anti-matter," and "The one thing that is clear is that these two contra-
dictory propositions cannot live comfortably together: in the end
one
must
swallow the other
Up."3
Gilmore and Powell notwithstanding, law and equity have been able to
live together successfully,
if
occasionally uneasily, for well over a centu-
ry.
In England the crucial procedural event, marking the end
of
a bumpy
journey
of
at least four decades
of
fits and starts, was the Judicature Act
1873.
4
The
fact that fusion was finally achieved in 1873
5
is well-known.
6
I.
J. J. Powell, Essay Upon the
Law
of
Contracts
and
Agreements, 2 vols. (London: For
J. Johnson and
T.
Whieldon, 1790), I: viii.
2.
Ibid., ix.
3.
Grant Gilmore, The Death
of
Contract (Columbus: Ohio State University Press, 1974),
61.
4. 36 & 37 Vict., c. 66.
5. Augmented by additional provisions
in
the Judicature Act 1875.
6. See generally Patrick Polden, "Mingling the Waters: Personalities, Politics and the
Making
of
the Supreme Court
of
Judicature," Cambridge Law
loumal61
(2002): 575.
James Oldham is St. Thomas More Professor
of
Law and Legal History at George-
town University Law Center <oldham@law.georgetown.edu>.
Law and History Review Fall 2004,
Vol.
22,
No.3
© 2004 by the Board
of
Trustees
of
the University
of
Illinois
HeinOnline -- 22 Law & Hist. Rev. 610 2004
610
Law and History Review, Fall 2004
Not well-known, however, has been the story
of
exactly how this happened.
Michael Lobban tells that story in meticulous detail with commendable
clarity, starting with the early 1800s and the quarter-century when Chan-
cery was in the hands
of
John Scott, Lord Chancellor Eldon.
Lobban
has clearly spent many long hours thrashing through nine-
teenth-century parliamentary history and associated pamphlet and pop-
ular literature.
He
has put this hard labor to good use already in earlier
work describing the fate
of
the civil jury in England in the nineteenth and
early twentieth centuries.? In "Preparing for Fusion," Lobban gives read-
ers a panoramic view
of
the dominant personalities
in
and proposals for
Chancery reform in the nineteenth century, as well as
of
the many ob-
stacles, uncertainties, and vacillations. He states, for example, that when
Lord Chancellor Cottenham retired in June 1850,
"Once
more, the pro-
fession was hopelessly divided
on
how to proceed; and all the old argu-
ments were replayed."8 Yet enough momentum had by then been produced
to keep the process moving forward, and it is interesting to see the re-
formers seeking
out
in 1850-51 advice from the great American codifier,
David Dudley Field.
9
By this time, significant reform steps had already
been taken. Two new Vice Chancellors had been authorized in 1840; the
Six Clerks and the Sworn Clerks had been eliminated in 1842; and much
of
the piecework fee system for judges and court officers had been con-
verted to annual salaries.1O In 1851 a new court
of
appeal was created;
and in 1852, among other measures, the office
of
master in Chancery was
abolished.
11
This piecemeal process continued, culminating in the Judi-
cature Acts 1873 and 1875.
Yet even with the benefit
of
the voluminous parliamentary records and
secondary sources examined by Lobban, puzzles remain. Was Eldon's
fa-
mous indecisiveness truly responsible for the picture
of
Chancery decadence
painted by Charles Dickens in
Bleak House? Despite contemporary beliefs
that this was so, statistical proof was either unavailable, contradictory, or
7. Michael Lobban, "The Strange Life
of
the English Civil Jury, 1837-1914," in "The
Dearest Birth Right
of
the People
of
England": The Jury in the History
of
the Common
Law,
ed. J. W. Cairns and Grant McLeod (Oxford and Portland, Ore: Hart Publishing, 2002), 173.
8. Michael Lobban, "Preparing for Fusion: Reforming the Nineteenth-Century Court
of
Chancery, Part I,"
Law
and
History Review 22 (2004): 422-23.
9. Ibid., "Part II," n. 94 and 584.
10. Ibid., 568, 570, 573.
11. Ibid., 582-83. In passing, it could be noted that a chronology
of
enacted reform mea-
sures would be extremely helpful to readers. Lobban's narrative moves through a blizzard
of
proposals, some
of
which succeeded, but most
of
which did not, and it is easy to get lost
in the many parliamentary meanderings.
HeinOnline -- 22 Law & Hist. Rev. 611 2004
A Profusion
of
Chancery Reform
611
at best, inconclusive. Not until 1840, long after Eldon's departure from
office, did anyone actually inspect the Registrars' books to produce reliable
data on the number
of
cases actually heard by the Lord Chancellor.
12
Each
of
Lord Eldon's judicial notebooks begins with the following hand-
written admonition to himself:
"Thou shal't do
no
unrighteousness in judg-
ment."13
Eldon was clearly a conscientious judge who deliberated long,
often to excess. A story circulated in the nineteenth century that barrister
George Rose was asked one day to substitute for the regular note-taker in
Eldon's court, and to give an account
of
any decision made, and the fol-
lowing lines were Rose's only entries:
Mr. Leach made a speech,
Angry, neat, but wrong:
Mr. Hart, on the other part,
Was heavy, dull, and long:
Mr. Parker made the case darker,
Which was dark enough without:
Mr. Cooke cited his book,
And the Chancellor
said-"I
doubt."14
Despite Eldon's "learned doubtfulness,"15 was he overburdened? His sur-
viving judicial notes supply some useful data. Eldon became Lord Chan-
cellor on April 14, 1801 (though continuing simultaneously as Chief Jus-
tice
of
Common Pleas until May 21); he resigned on February 7, 1806, but
resumed office on April
1,
1807, continuing until his resignation on April
30, 1827. Except for a small sprinkling
of
cases, Eldon's judicial notes
cease in early 1814, which coincides with Parliaments's creation
of
the
office
of
Vice Chancellor in 1813, after which, according to Lobban, "the
Lord Chancellor soon ceased to hear original causes."16 For the ten full
calendar years from 1801-14 during which Eldon was Lord Chancellor,
his judicial notes show the following:
12. Ibid., 569 (describing the documentary research
of
Edwin Field, which supported the
case being made for additional judges).
13. Emphasis added. Eldon's notebooks, manuscripts, and monographs are in the collec-
tion
of
the Georgetown University Law Library.
14. Croake James
[J.
Paterson], Curiosities
a/the
Law
and
Lawyers (London: Low, Mar-
ston, Searle, and Rivington, 1882), 86-87. Leach, Hart, Parker, and Cooke were leading
barristers
of
the day. Cooke was the author
of
a well-known treatise on bankruptcy, which
is undoubtedly the book he was citing.
15. Lobban, "Part I," 408 (quoting critic John Williams).
16. Ibid., 393.
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612 Law and History Review, Fall 2004
Table 1.
New
and
Continued
Cases
in
Chancery
Heard
by
Lord
Chancellor
Eldon
No.
of
cases continued
Year
No.
of
new cases from earlier year(s)
1802
96
3
1803
45
9
1804
61
4
1805
44 6
1808 48
0
1809
28 7
1810
29 6
1811
27 3
1812
38 2
1813
52 3
Total:
468 43 Grand total:
511
Source: Eldon MSS, Georgetown University Law Library, Washington, D.C.
Apart from the burst
of
activity in the first year, these figures do indeed
reflect a deliberative pace, especially the years showing only seven or eight
cases per term, and tend to confirm the critics who pointed to Eldon's "over
anxiety to do strict justice."I? The pattern for 1801-13
of
about fifty cases
per year, however, is substantially higher than the ten cases per year that
critic John Williams claimed Eldon heard during the years 1813-21.
18
Per-
haps this was due to the change from hearing original causes to hearing
appeals once the Vice Chancellor arrived in 1813. Alternatively, there may
discrepancies in sources used to count cases. Many
of
the cases recorded
in Lord Eldon's judicial notes, for example, are unreported.
In 1810, another critic, Michael Taylor, claimed that there were 140
Chancery causes pending, which would take eight years to resolve. Taylor
and other Whig activists, according to Lobban, sought to have a commit-
tee formed to get to the bottom
of
the delays, but the Tory resistance
of
Lord Redesdale
19
and others forestalled this effort and persuaded the re-
formers
of
the moment that what was needed was another judge, eventu-
ally resulting in the creation in 1813
of
the office
of
Vice Chancellor. Re-
desdale, the former John Mitford,
is
described by Lobban merely as the
former Lord Chancellor
of
Ireland, but it is worth noting that Redesdale
(Mitford) had a large investment in Chancery procedures as they stood.
Redesdale (Mitford) was called to the bar in 1777, and three years later,
he published
A Treatise on Pleadings in Suits in the Court
of
Chancery
by
17. Ibid., 404, quoting The Times, S March
lSI!.
IS. Ibid., 40S.
19. Ibid., 409.
