Tan leather binding with raised banding, red title plate and gilt title on the spine.
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A unique book from which a cursory read illustrates how far English legal procedure has changed. English procedural law in the 18th century would still have been recognised by a 14th century lawyer. True, procedural law had evolved but the coming of the 19th century witnessed a great legal revolution.
The 19th century began on 1 January 1801 (represented by the Roman numerals MDCCCI), and ended on 31 December 1900 (MCM).
The 19th century was characterized by vast social upheaval. Slavery was abolished in much of Europe and the Americas. The First Industrial Revolution, though it began in the late 18th century, expanded beyond its British homeland for the first time during this century, particularly remaking the economies and societies of the Low Countries, the Rhineland, Northern Italy, and the Northeastern United States. A few decades later, the Second Industrial Revolution led to ever more massive urbanization and much higher levels of productivity, profit, and prosperity, a pattern that continued into the 20th century.
It was, in the Middle East, an era of change and reform. The Islamic gunpowder empires fell into decline and European imperialism brought much of South Asia, Southeast Asia, and almost all of Africa under colonial rule. Reformers were opposed at every turn by conservatives who strove to maintain the centuries old Islamic laws and social order. The century also saw the collapse of the large Spanish and Mughal Empires. This paved the way for the growing influence of the British, French, German, Russian, Austro-Hungarian, Italian, and Japanese Empires along with the United States. The British boasted unchallenged global dominance after 1815.
After the defeat of France in the Napoleonic Wars, the British and Russian Empires expanded greatly, becoming two of the world’s leading powers. Russia expanded its territory to Central Asia and the Caucasus. The Ottoman Empire underwent a period of Westernization and reform known as the Tanzimat, vastly increasing its control over core territories in the Middle East. However, it remained in decline and became known as the sick man of Europe, losing territory in the Balkans and North Africa.
The remaining powers in the Indian subcontinent such as the Maratha and Sikh Empires suffered a massive decline and their dissatisfaction with the British East India Company’s rule led to the Indian Rebellion of 1857, marking its dissolution. India was later ruled directly by the British Crown through the establishment of the British Raj.
Britain’s overseas possessions grew rapidly in the first half of the century, especially with the expansion of vast territories in Canada, Australia, South Africa, India, and in the last two decades of the century in Africa. By the end of the century, the British controlled a fifth of the world’s land and one-quarter of the world’s population. During the post-Napoleonic era, it enforced what became known as the Pax Britannica, which had ushered in unprecedented globalization on a massive scale. Such globalization meant that UK procedural law had to change to keep pace with Britain’s expanding world role.
Westminster Hall, where the Court sat almost continuously from the reign of Edward III until its dissolution in 1875
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a 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 differed somewhat: 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 (r. 1461–1485); academics attribute this to its becoming an almost entirely judicial body. From the time of Queen Elizabeth I (r. 1558–1603) 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 vice-chancellors were appointed in 1841. Lord chancellors sold offices of the Chancery for much of its history, raising large amounts of money. Many of the clerks and other officials held sinecures; the holders, in lieu of wages, charged increasingly exorbitant fees to process cases – one of the main reasons for the high cost of bringing a case to the Court of Chancery.
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.
The Court of Chancery in the early 19th century, sitting in Lincoln’s Inn Old Hall
Despite small reforms, the 18th century ended with continuous and unrestrained attacks on the Court. Although complaints had been common since the time of Elizabeth I, the problems had become more unrestrained, at the same time as politically neutral law reformers first arose in any great number. Many critics were barristers of the common law, ignorant of the court’s workings, but some, such as Sir Samuel Romilly, had trained as a Chancery advocate and were well aware of the Chancery’s procedure. The success of the Code Napoleon and the writings of Jeremy Bentham are seen by academic Duncan Kerly to have had much to do with the criticism, and the growing wealth of the country and increasing international trade meant it was crucial that there be a functioning court system for matters of equity. While the upper classes had been struggling with the Court for centuries, and regarded it as a necessary evil, the growing middle and merchant classes were more demanding. With increasing court backlogs, it was clear to many law reformers and politicians that serious reform was needed.
The first major reforms were the appointment of a vice-chancellor in 1813 to hear cases, and the extension of the Master of the Rolls’ jurisdiction in 1833 to hear any and all cases. In 1824 a Chancery Commission was appointed to oversee the Court, which the political opposition maintained was simply to protect it; the membership included the lord chancellor, the master of the rolls and all senior Chancery judges. Some significant reforms were proposed; in 1829, for example, Lord Lyndhurst proposed unsuccessfully that the equity jurisdiction of the Court of Exchequer be merged with the Chancery, and that a fourth judge be appointed to hear the additional cases. A year later, when the common law courts were each gaining a judge, he repeated his proposal, but the bill was strongly opposed by judges who maintained that the court backlog did not justify the additional expense of a fourth judge. Eventually, two more vice-chancellors were appointed in 1841, and a decade later two lord justices were tasked with hearing appeals from the Court through the Court of Appeal in Chancery. These are described by Lobban as “hasty reactions to mounting arrears” rather than the result of long-term planning.
As a result of the new appointments, the court backlog was significantly reduced – the court processed 1,700 cases in 1846–49 compared to 959 in 1819–24 – but it rose again after the death of Shadwell VC and retirement of Wigram VC. Shadwell, appointed under the 1831 Act of Parliament, could be replaced, but a principal in the 1841 Act (under which Wigram had been appointed) meant that it provided for two life appointments to the court, not two open positions; after the retirement or death of the judges, no more could be appointed. Again, the backlog became a problem, particularly since the lord chancellor was distracted with the appellate cases through the Court of Appeal in Chancery and the House of Lords, leaving a maximum of three Chancery judges who were available to hear cases. Further structural reforms were proposed; Richard Bethell suggested three more vice-chancellors and “an Appellate Tribunal in Chancery formed of two of the vice chancellors taken in rotation”, but this came to nothing.
Thomas Pemberton attacked the Six Clerks in Parliament and successfully had their positions abolished.
The 1830s saw a reduction in the “old corruption” that had long plagued the court, first through the Chancery Sinecures Act 1832 (which abolished a number of sinecure offices within the court and provided a pension and pay rise for the lord chancellor, in the hope that it would reduce the need for the chancellor to make money by selling court offices) and then through the Chancery Regulation Act 1833. (which changed the appointments system so that masters in Chancery would henceforth be appointed by the Crown, not by the lord chancellor, and that they would be paid wages.) Through the abolition of sinecures, taking into account the wages and pension, this saved the Court £21,670 a year. The government had initially intended the 1832 bill to go further and abolish the Six Clerks, but the Clerks successfully lobbied to prevent this. This did not save them, however; in 1842 the “nettle” of the Six Clerks Office was grasped by Thomas Pemberton, who attacked them in the House of Commons for doing effectively sinecure work for high fees that massively increased the expense involved in cases. As a result, the Court of Chancery Act 1842 was passed in the same year that abolished the office of the Six Clerks completely.
Some further procedural reforms were undertaken in the 1850s. In 1850, a new set of Chancery orders were produced by the lord chancellor, allowing masters to speed up cases in whatever way they chose and allowing plaintiffs to file a claim, rather than the more expensive and long-winded bill of complaint. The Suitors in Chancery Relief Act 1852 gave all court officials salaries, abolished the need to pay them fees and made it illegal for them to receive gratuities; it also removed more sinecure positions. The Master in Chancery Abolition Act 1852 abolished the masters in Chancery, allowing all cases to be heard directly by judges instead of bounced back-and-forth between judges and masters. As a result of these reforms the court became far more efficient, and the backlog decreased; in the 1860s an average of 3,207 cases were submitted each year, while the Court heard and dismissed 3,833, many of them from the previous backlog. Much of this work was carried out by the growing number of clerks, however, and members of the legal profession became concerned about the “famine” of equity judges. Despite these reforms, it was still possible for Charles Dickens, writing in 1853 in the preface to his novel Bleak House, to bemoan the inefficiencies of the Court of Chancery. His novel revolves around a fictional long-running Chancery case, Jarndyce and Jarndyce. He observed that at the time he was writing there was a case before the Chancery court “which commenced nearly twenty years ago … and which is (I am assured) no nearer to its termination now than when it was begun”. He concluded that “If I wanted other authorities for Jarndyce and Jarndyce, I could rain them on these pages, to the shame of a parsimonious public”.
After the Chancery Regulation Act 1862 had gone some way toward procedural reform, in February 1867, Roundell Palmer again brought the problem of having two separate court systems to Parliament’s attention, and in March 1870 Lord Hatherley introduced a bill to create a single, unified High Court of Justice. The bill was a weak one, not containing any provision addressing which court would deal with the common law and which with equity, and was also silent on the structure of the court, as Hatherley believed the difference between the common law and equity was one of procedure, not substance. As a result, the bill was heavily opposed from two sides: those who opposed fusion, and those who supported fusion but felt the provisions were too weak and vague to be of any use. As a result, the bill was eventually withdrawn.
In 1873, the idea was resurrected – again by Palmer, who was now Lord Selborne and the new lord chancellor – as the Supreme Court of Judicature bill. While still cautious, Selborne’s bill was far more structured than Hatherley’s, and contained more detail on what was to be done. Rather than fusing the common law and equity, which he saw as impracticable since it would destroy the idea of trusts, he decided to fuse the courts and the procedure. The final draft provided that all of the existing superior courts would be fused into one court consisting of two levels; one of first instance, one appellate. The court of first instance, to be known as the High Court of Justice, would be subdivided into several divisions based on the old superior courts, one of which, the Chancery Division, would deal with equity cases. All jurisdiction of the Court of Chancery was to be transferred to the Chancery Division; Section 25 of the Act provided that, where there was conflict between the common law and equity, the latter would prevail. An appeal from each division went to the appellate level, the Court of Appeal of England and Wales. These provisions were brought into effect after amendment with the Supreme Court of Judicature Act 1875, and the Court of Chancery ceased to exist. The Master of the Rolls was transferred to the new Court of Appeal, the lord chancellor retained his other judicial and political roles, and the position of vice-chancellor ceased to exist, replaced by ordinary judges. The Chancery Division remains to this day part of the High Court of Justice of England and Wales.
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