1. Lord Eldon’s Chancery

After 20 years of Lord Eldon’s stewardship Chancery was a court in crisis, with both court and Chancellor being subjected to severe criticism. Attacks begun in 1810, which had led to the creation of a Vice-Chancellor to ease the Chancellor’s burdens, were renewed by that most persistent critic, the Whig barrister M. A. Taylor, and scarcely abated during the rest of Eldon’s tenure.¹ The critics charged the court with the terrible twins of the law, delay and cost, and attributed the delay largely to Eldon, but far from abating with Eldon’s resignation in 1827, complaints about Chancery continued almost without pause, finding their most vivid expression in Charles Dickens’ Bleak House in 1852.² The novel provoked plaintive remonstrances from the court’s defenders, who correctly pointed out that some of the ills it described, notably the treatment of those imprisoned for contempt, had been remedied.³However, the court was further damaged by inaccurate revelations about the Jennens litigation, cited by Dickens in support of his indictment, and the revelation in 1856 that the fabulous Thellusson fortune had been so sweated in Chancery as to barely exceed the amount it had begun with 60 years earlier.⁴

Criticism of Chancery was nothing new. It had been a favourite target for reformers in the seventeenth century and had continued to attract complaints (p.647) in the eighteenth.⁵ However exaggerated Jarndyce and Jarndyce might be, there was ample testimony from more knowledgeable and dispassionate observers to support Dickens’ condemnation. As for delay, George Spence declared that ‘[n]o man, as things stand, can enter into a Chancery suit with any reasonable hope of being alive at its termination, if he has a determined adversary’,⁶ while for a leading London solicitor, John Forster, its ‘modes of proceeding…[are] as little adapted to the ordinary duration of human life as they are calculated for the determination of differences and the quiet of possession’.⁷ Forster also testified to the excessive cost of a Chancery suit: ‘for great estates, and great fortunes, there is no security so good, and no trustee so safe, as the court of Chancery, but to little fortunes it is ruin’, and Henry Bickersteth claimed to have encountered cases like Jarndyce and Jarndyce, where the whole sum in dispute was consumed in costs.⁸

It took a succession of official inquiries, which provided a wealth of anecdotal and statistical evidence, and a series of statutes and orders to furnish Chancery with an adequate judicial staff, an efficient and uncorrupt clerical organization and a set of procedures adapted to the needs of litigants rather than officials and practitioners.⁹

The accurate diagnosis of the source of the problems was obscured by arguments over Eldon’s own judicial style and the burdens he shouldered as Chancellor. Some complained that Eldon devoted too much time to his political duties, deserting the courtroom for the cabinet; others that he was preoccupied with the judicial sittings of the House of Lords. The most wounding allegation was that he gave preference to bankruptcy cases because of the fees they brought him. Finally, his notorious ‘cunctative habit’, his obsessive concern with perfect justice, willingness to allow re-hearings and tendency to take home and pore over case papers (which gave him the nickname ‘Lord Endless’) were said to be a major cause of the delays in reaching cases which had been set down for hearing; those delays were the main subject of criticism.¹⁰

(p.648) Both critics and defenders drew extensively on statistics, but because they seldom searched back beyond the Chancellorship of Lord Hardwicke, ‘the golden age of equity’¹¹ they acquired a distorted perspective on the court’s history.¹² It enabled critics to claim that, since the number of bills filed each year was not substantially greater than under Hardwicke, three judges should be able to cope with the business; however, the great litigation decline in Chancery had bottomed out in the 1780s, so defenders could point to an increase in bills during Eldon’s time. Other indicators were equally slippery. Causes set down did not distinguish short causes from those needing a full hearing. Motions had undoubtedly increased greatly—from 37,880 (1745–55) to 57,063 (1806–16)—but it was not clear how much was due to the multiplication of motions of course. There were many more appeals outstanding than formerly, but it was disputed whether that was a natural result of the creation of a Vice-Chancellor or was aggravated by Eldon’s notorious susceptibility to encourage appeals even from his own judgments. The evidence was too crude, and its deployment too unsophisticated and partisan, to be conclusive.¹³

In suggesting remedies both parties were also on shaky ground. The Whigs never developed a coherent and consistent reform plan. Sometimes Brougham and others argued that three decisive judges could clear the arrears and handle future business; Leach’s celerity encouraged that view. At other times they said that the bankruptcy business should be removed or an appeal court formed.¹⁴ Eldon’s defenders were awkwardly placed too, since if they argued that arrears were a consequence of increased business they were confronted with Eldon’s reluctance to give up any of the work or reform the procedures of his court.

Some criticisms were certainly unjust. D. W. Harvey had to confess that he had vastly exaggerated the fees Eldon took from bankruptcy,¹⁵ while it was irresponsible and impractical of others airily to dismiss the need for the Chancellor’s presence when the Lords were sitting as a court. It was also unreasonable to expect him to give judicial work priority over cabinet meetings unless the critics were prepared to argue for a redefinition of the Chancellor’s office. Yet there was a hard kernel of truth at the heart of these accusations. Eldon was desperately and unnecessarily slow in deciding cases, and blind to the fact that such painstaking (p.649) deliberations created unacceptable delays for some litigants and deterred others altogether. It was Redesdale who wrote that: ‘[i]n very few cases comparatively ought the parties litigating to be considered as the only persons interested in the result…expense and delay are evils often severely felt by the litigating parties; but they may be evils suffered for the public good’,¹⁶ but Eldon’s practice came to much the same thing. His defence to criticism was that he aspired to deliver perfect justice and worked very hard, so hard that he had not the time to examine how the delays and costs afflicting suitors might be alleviated.¹⁷ It is notable that among the great legacy of equitable doctrines Eldon bequeathed there is no set of general orders for the court.¹⁸ He acknowledged that ‘[m]uch of modern practice will, I fear, be found inconsistent with subsisting orders, without any contradiction of them by subsequent orders; and, upon principle, repeated decisions, forming a series of practice, as it must be, against an order, may with safety be taken to amount to a reversal of that order’.¹⁹ Yet he took no action. Not until Lord Chelmsford commissioned J. W. Smith and H. Cadman Jones to consolidate the orders in 1859 did practitioners have something more authoritative than the collections of Beames and Sanders.²⁰

Eldon undoubtedly contributed to the crisis of Chancery, but institutional causes were at work too; outmoded and corrupt financial and clerical structures, and baroque practices and pleadings which were badly exposed by changes in the volume and character of business. Commentators on the growth of Chancery business tended to attribute it rather unspecifically to the general expansion of commerce and national wealth.²¹ They complained of its inability to deal effectively with complex business organizations and in the mid-century business interests were certainly among the most vocal critics,²²but a sample of Chancery cases in 1819 suggests that only around a quarter (one-sixth without including consumer debt cases) arose from commercial dealings.²³ Most of the cases (p.650)concerned partnerships and among them is one concerning a copper company which was both drawn out and complicated—very much the sort of matter which would expose the court’s shortcomings.²⁴But it is only one case; most of the other partnerships were rather modest in scale and several of the commercial cases were brought only to invoke equity’s auxiliary jurisdiction, to examine witnesses overseas or take accounts. The non-partnership cases do include two substantial and protracted matters, arising out of the business difficulties of Hamilton Murray, a London builder,²⁵ and the sons of a well-known entrepreneur, John Bell.²⁶ Most of the debt cases are simply actions for an injunction to halt proceedings at law and from this sample commercial disputes seem unlikely to have been primarily responsible for the court’s mounting arrears.

Disputes over land form a larger category, nearly one-third of the sample.²⁷ They were a staple for equity courts, which offered the crucial remedy of specific performance, and the fully developed equity of redemption made them the chief forum for sorting out mortgage debts. The Chancery Commission rightly identified the intricacies of conveyancing law as the source of many suits and much expense and one of its most fruitful recommendations was that a further commission should investigate that subject.²⁸ Most of the ‘land’ cases were either suits for specific performance or concerned mortgages or annuities charged on land. Among the former it is difficult to distinguish between friendly and hostile actions, but it is striking that in only a quarter of them was the land worth more than £1000 and the median is around £500. Mellish v. Assender,²⁹ concerning the purchase of a black varnish factory at Poplar (a Dickensian echo), illustrates the pitfalls of the ‘old conveyancing’; after two years there were still uncertainties about lost documents, an outstanding legal estate and an unregistered deed. Most, however, were relatively uncomplicated, though in relation to the purchase price the costs of a Chancery suit will have been significant.

The mortgage loans in issue were also mostly between £500 and £1000, with two of £3000. In this sample, however, mortgage actions (mostly foreclosures) were the least likely of the common types of suit to get beyond the pleading stage—just four of 17 proceeded to judgment. It was just as well, for a seemingly (p.651) friendly suit (MacDonald v. Jackson) took seven years to reach its conclusion³⁰while Montgomery v. Calland provides a grim illustration of Chancery’s ponderousness when confronted with a wily and determined defendant, for it took 25 years to recover the property.³¹ It was not only mortgage cases that could take an unconscionable time. In a very straightforward action for waste, Colyear v. Lord Portmore, it took almost seven years for Master Cox to produce his definitive valuation report, and for this verdict of £250 the plaintiff’s costs were taxed at £418.³²

Bleak House has associated the court of Chancery imperishably with cases about wills, but they were never a numerical majority of suits, and samples suggest that the proportion actually fell from over 40 per cent in 1785 to 32 per cent in 1819 while cases concerning inter vivos trusts rose from 6 per cent to 10 per cent; given the almost universal adoption of settlements among landowners the latter figure is surprisingly low.³³ Most of the inter vivos cases of 1819 involved marriage settlements, with bills mostly framed in terms of breach of trust or failure to implement covenants to settle property.³⁴ Some are no doubt collusive suits, but a high proportion proceeded to a substantive hearing.

The classic administration suit, brought before the distribution of the estate, forms only a minority of the will cases. A large proportion went to trial, perhaps because compromise was impossible with infant and unborn beneficiaries, and only two or three seem to feature those small estates which could not bear the cost of Chancery.³⁵ Those are more numerous among the cases arising from more remote deaths—several more than 20 years earlier. Though most of these followed the death of a life tenant or annuitant, some are for the appointment of a new trustee or a guardian. Taking the estate cases as a whole there are some which needed a decision on a question of construction (several were felt worth reporting³⁶) and several others where circumstances such as an insufficiency of assets, the need to wind up a family business, or the insanity or disappearance (p.652) of a beneficiary made it prudent for the executors or trustees to seek safety in the court. For some there is no obvious explanation.

Although the estate and settlement cases were a minority of those coming into Chancery, they exerted a powerful influence. Some were the sort of suits which, as the Commissioners explained ‘might usefully endure for half a century’.³⁷ The Thellusson will was no doubt exceptional in generating more than 950 orders and 780 reports over 60 years, but among the sample is Morison v. Morison, which began in 1815 and was still going in 1858 after more than 100 orders.³⁸ When Chancery lost business in the eighteenth century its fee-dependent officers seem to have elaborated procedures so as to extract more from the business which remained and when business began to revive there was no attempt to prune the luxuriant growth. With a higher proportion of matters involving multiple parties (well over half in 1819), more going beyond the pleadings stage and more needing to be referred to a master for the taking of accounts, the settling of a title etc., the court was becoming clogged up. Disregarding the cases (about 22 per cent, and fairly constant) which did not get beyond the bill, more than 40 per cent were lasting more than two years, and above one-sixth more than five.³⁹ This alone was not necessarily a ground for criticism but the strain on resources meant that it was taking six or seven years to extract a simple legacy.⁴⁰ Eldon responded to the backlog by making time for urgent matters at the expense of the regular list, but that was hardly a solution.⁴¹ The court’s problem was not so much with new sorts of business for which it was ill-equipped as that more business of a familiar sort was overloading it.

2. The Chancery Commission

In 1823 the attacks on Eldon took on a sharper and more personal tone through pamphlets, articles in the Edinburgh Review and combative attacks in the Commons by ‘Johnny’ Williams, who offered several instances of apparently unconscionable delays on the Chancellor’s part.⁴² Some of Eldon’s cabinet colleagues (Peel, who wanted Eldon’s support for his own criminal law reforms, was an exception) had become noticeably lukewarm in continuing to defend (p.653) him from criticisms they privately felt were partly justified, and notwithstanding that a Lords’ select committee had only recently reviewed the arrears in their own House and in Chancery, in February 1824 an inquiry was conceded, Peel acknowledging ‘an increase of business…too great for human strength to cope with’.⁴³It was not, however, to be the select committee the opposition wanted, but a royal commission with Eldon himself at its head.

The appointment of the Commission was a sound political tactic. It saved face for Eldon, who could claim that he had himself urged such an inquiry, and temporarily disarmed the critics. Moreover its terms of reference and membership suggested that it would not damage the Chancellor.⁴⁴ It was precluded from considering large questions such as fusion with the common law courts and provincial courts of equity and from examining the most sensitive issue, the multiple functions of the Lord Chancellor.⁴⁵ It included both Chancery judges, two masters and Eldon’s ally Lord Redesdale, but no solicitors.⁴⁶ Neither Taylor nor other critics were included and since only Lushington, a civilian, and R. P. Smith could be classed as belonging to the opposition a whitewash seemed all too likely.⁴⁷

Since the Commission’s progress was leisurely, the critics were not quietened for long and when Eldon lamented that a motion of Burdett’s calling for returns in a manner that reflected on his methods had not been opposed, Liverpool made it clear that the government was impatient for the report, which was at length produced on 28 February 1826.⁴⁸

As a political expedient the Commission was a great success. The report was lengthy and being accompanied by acres of evidence and statistics it had the air of a comprehensive inquiry, with a focus on the minutiae of Chancery practice which made it rebarbative reading.⁴⁹ Though Eldon had not drafted it,⁵⁰ nor taken part in examining witnesses, critics claimed to see his hand throughout.⁵¹Lushington, no supporter of Eldon, rebutted accusations that the Chancellor had (p.654) played a decisive role in their deliberations,⁵² but Eldon probably had no need to do so; other Commissioners questioned witnesses so as to protect him from criticism⁵³ and the report’s repeated insistence on a cautious and incremental approach was characteristically Eldonian.⁵⁴ The report concentrated on the early stages of a Chancery suit and when it did approach the reasons for delays after causes had been set down for hearing, it shied away from any close examination on the specious ground that the court’s records did not give a full picture of the Chancellor’s activities.⁵⁵ The verdict of a later inquiry that it was ‘replete with information and has many suggestions, but in the main it is an elaborate defence of the status quo’⁵⁶ is understandable.

If the report was not the condemnation of the Chancellor that his critics had been seeking, it certainly did not vindicate his court, and by implication (though nowhere overtly), it criticized his slackness in not revising the court’s procedures to cope with increasing business.⁵⁷ Even Williams later conceded that the report was useful, and it reshaped the debate on Chancery into a more fruitful form, albeit one which did not eliminate areas of political dispute.⁵⁸ It may be somewhat overstating the case to claim that the more critical element in the Commission (notably Lushington and Merivale) began to get the upper hand,⁵⁹ but the summoning of witnesses likely to be critical of the court—the boastful solicitor James Lowe and his more discreet fellows William Vizard, James Winter, and John Forster, along with the Benthamite barrister Henry Bickersteth—does suggest a more open-minded approach than might have been predicted. It was too adventurous for Redesdale, who did not sign the report and voiced his dissent through a pamphlet rather than a note to the report itself.⁶⁰

The most impressive feature of the Commission’s report is the concluding list of no fewer than 187 propositions, though a detailed perusal rather detracts from this imposing corpus, revealing some to be very minor.⁶¹ The sum of the whole, if (p.655) not so trivial as critics alleged, fell far short of a revolution in Chancery practice. While correctly maintaining that ‘although some of the alterations which we propose may appear at first sight minute, yet it is upon the operation of the system of practice made up of numerous minute regulations, that the dispatch or delay and the expense of a Chancery suit, so far as can be effected by any precise rules, must in a great degree depend’,⁶² the Commissioners displayed a marked reluctance to prescribe changes in practice rather than merely to commend them to practitioners. That was hardly bold enough if, as they alleged, much of the court’s delay was ‘imputable, neither to the Court, nor to its established rules of practice; but to the carelessness of some parties, the obstinacy or knavery of others, or the inattention or ignorance of agents’.⁶³ As for removing business, it was never on the cards that they would contest Eldon’s insistence that bankruptcy appeals must remain,⁶⁴ and having noticed that lunacy occupied much of the masters’ time as well as the Chancellor’s, they conspicuously ignored it in their subsequent discussion of possible burdens to be shed, contenting themselves with following the Lords’ committee in advocating that judicial functions imposed by new statutes should in future be entrusted to the Exchequer rather than Chancery.⁶⁵

It was never likely that the Commission’s report would silence Eldon’s critics, but within a year of its publication he finally relinquished the great seal. 1827 marked the effective beginning of more than 30 years of intermittent reform of Chancery, enlarging its judiciary, remodelling its procedures, and modernizing its financial and bureaucratic structure.

3. Judicial Manpower

Uncertainty over how much Eldon’s judicial style contributed to delays so obscured the picture that Chancery’s judge-power needs could hardly be assessed while he remained on the Woolsack. It was compounded by two wider considerations; what the proper role of the Lord Chancellor should be, and the future of the equity side of the Exchequer.

The Commission was not entrusted with considering judge-power other than obliquely, by ascertaining whether any business (particularly bankruptcy) might be removed; nevertheless several witnesses strayed onto the topic, notably when Lancelot Shadwell gave his much-quoted view that the quantity of business was such that ‘I think if you had three angels they could not get through it’.⁶⁶ The Commission contented itself with suggesting that restrictions upon the Vice-Chancellor’s court be removed⁶⁷ and that the ‘unceremonious mode’ of appeal (p.656) from the Master of the Rolls or Vice-Chancellor to the Lord Chancellor by motion should be discouraged. They were too timid to propose removing the facility altogether and their proposed safeguard against abuse was flimsy.⁶⁸

Even after Eldon’s departure, opinion remained divided over the need for more judges. Eldon himself felt that it would be sufficient if the facility to obtain temporary assistance from common law judges or Chancery masters were restored. Lyndhurst, unwilling to overtax his strength by exhausting sessions on the bench, wanted an additional judge, while Brougham was initially anxious to demonstrate that his energy and intellect could clear the arrears and prevent new ones from arising. However, having proved that (to his own satisfaction at least) he became more concerned to avoid being detained in Chancery when he wished to be elsewhere.⁶⁹

In 1829 Lyndhurst, endorsing the Common Law Commissioners’ recommendation that the Exchequer should lose its equity business, proposed a fourth Chancery judge to conduct it, but not only found Peel doubtful because of the compensation claims it might generate, but to his annoyance, was also opposed by Leach MR and Shadwell VC. Leach’s obstructiveness extended to resisting provisions designed to make the Master of the Rolls devote more time to Chancery with such success that the most Lyndhurst could achieve was to induce him to replace his evening sittings with morning ones.⁷⁰Brougham reduced the workload by sending bankruptcy appeals to his new court but his ideas for a court of masters and a court of Chancery appeals both came to nothing, and the impetus for change was lost.⁷¹

Thereafter the remodelling of the equity bench tended to be driven mostly by sporadic panics over pressure of business, usually aggravated by the illness of the Lord Chancellor, resulting in remedies for the immediate problems rather than any direct grappling with the intractable question of the Chancellor’s place in courts and cabinets. Whenever that was considered, in the mid-1830s, around 1840, and again around 1850, it proved impossible to arrive at any solution commanding a sufficient consensus among politicians and lawyers to be practicable. No one who became Lord Chancellor, or who had ambitions in that direction, would sacrifice the Chancellor’s place in government and Parliament for him to become a judge pure and simple, while Chancery lawyers were equally unwilling(p.657) to have a ‘political’ Chancellor (or equivalent) as head of the court but removed from the bench in order to concentrate on the political and judicial functions of the House of Lords. No Chancellor wanted to admit that the workload was already more than he could handle and none would recognize that in a society whose population and commercial activity were visibly growing, Chancery business would outgrow his capacity to deal with it. Provincial courts of equity were regarded with horror by most equity lawyers, yet a court which could cope only because its own delays and costs artificially dampened demand, as James Wigram pointed out in 1840, was hardly defensible.⁷² This created a deadlock. Proposals to reconstruct the Chancellor’s role, whether, like Brougham’s in 1833 and Cottenham’s in 1836, they envisaged taking him out of Chancery or, like Langdale’s in 1836 and the Russell ministry’s in 1850, they sought to confine him there, were never practical politics.⁷³

When delays in Chancery again became an issue in 1839 less ambitious solutions to the shortage of judge-power were advanced. Cottenham justified the proposed addition of two judges by the abolition of the equity side of the Exchequer and the installation of the Master of the Rolls as vice-president of the Judicial Committee of the Privy Council, but he had not prepared the ground properly. Sir Edward Sugden made Cottenham’s failure to consider the impact on appeals to the Lords a plausible excuse for opposing the expansion of the judiciary generally, and the Chief Baron predictably led opposition to the dismemberment of his court.⁷⁴

Abinger found little support for his ‘bastard court’ as Pemberton called it.⁷⁵ Although Lyndhurst, in whose time as Chief Baron the common law side had begun a remarkable revival, advocated two new equity judges, one apiece for Chancery and Exchequer, the features which put solicitors off the Exchequer had not been tackled; the suggestion that new types of statutory business should be sent there rather than to Chancery had never been implemented, and the Tithe Commutation Act 1836 virtually ended the only branch of business where it was routinely preferred to Chancery.⁷⁶ When the Whig bill, shorn of the Master of the Rolls clauses, was referred to a select committee in 1840 the antipathy of the legal profession came across strongly in evidence and although it seemed a paradoxical response to cure delays in one court by abolishing another, the equity (p.658) side of the Exchequer was condemned almost without debate in the Lords. In the Commons Sugden maintained his opposition, disputing the statistical evidence furnished to the Select Committee by E. W. Field, but without finding much support.⁷⁷

This infusion of Exchequer business was the justification for giving Chancery two extra vice-chancellors, but the Whig administration fell and Lyndhurst, who took up the bill, gave ground; one vice-chancellorship would be renewable on the death or resignation of the incumbent, while the other would lapse on a vacancy. In October 1841 James Knight-Bruce and James Wigram became first and second vice-chancellor, respectively; Henry Jacob, who would have been a strong candidate, had recently died.⁷⁸ This enlarged judiciary enabled Chancery to cope with a considerable increase in business, from some 7300 ‘matters in total’ to 8450, for most of the 1840s, though the railway mania of 1845–6 strained its capacity.⁷⁹ While Lyndhurst was Chancellor there was general harmony among the judges. He sat almost exclusively on appeals and generally endorsed the decisions of his juniors,⁸⁰but when Cottenham returned in 1846 he proved almost equally prone to reverse them, especially Knight-Bruce.⁸¹ It became established that suitors were allowed to choose their court, while the leaders limited themselves to a single one.⁸² This had the potential to unbalance the workload and initially some of Shadwell’s cases were transferred to Knight-Bruce to ease his burdens; otherwise it seems to have worked fairly well.

The great weakness in the new structure was that there were now four judges from whom an almost unrestricted appeal lay to the Chancellor. With a Chancellor like Cottenham, known to be ever ready to re-examine a case from first principles,⁸³ and a court which allowed great latitude to counsel in the way of long speeches,⁸⁴ this could create acute congestion at the appeal stage, as it did when Cottenham became gravely ill.

(p.659) When Cottenham resigned in June 1850 the great seal was put into commission while new arrangements were considered,⁸⁵ but further complications soon arose with the death of Shadwell, the Vice-Chancellor of England, and the resignation through ill-health of Wigram, ‘the second Vice-Chancellor’. These vacancies opened the way for the sort of ambitious restructuring that Bethell and others advocated, but the same lack of consensus which had stifled reforms in the mid-1830s prevailed and anxiety to prevent arrears from mounting led the government into expedients. Shadwell’s vacancy was filled by the transfer of Mouncey Rolfe from the Exchequer and a bill was hastily passed to enable the other vacancy to be filled with a further ‘one-off’ appointment, George Turner in April 1851.⁸⁶

Since Sir Thomas Wilde (Lord Truro), who became Chancellor in July 1850, was no more willing than his predecessors to break up the office, the government’s initial idea, to relieve the Chancellor of sitting in Chancery and create a new judge for that purpose, had to be dropped and Russell reverted instead to the idea of a court of appeal for Chancery. Brougham had already dusted off his old bill, which likewise envisaged a court composed of existing judges: the Chancellor, the Master of the Rolls, and a common law judge, with the latter pair able to sit without the Chancellor.⁸⁷ The great merit of courts like these (such as the Exchequer Chamber on the common law side) was economy in manpower, but their concomitant drawback was that suitors would find courts of first instance, especially the Rolls, closed for business while the judge sat on appeals.⁸⁸ In the face of a rising tide of complaint about hearing delays that would be very impolitic, and finding the House of Commons in an unusually generous frame of mind, Russell presented a revised bill establishing a court with two wholly new judges, styled lords justices of the court of Appeals in Chancery. They might sit together, or one or both of them with the Chancellor, and though the Chancellor’s own appellate jurisdiction was not displaced, it was expected that a common lawyer like Truro would welcome the assistance of at least one lord justice.⁸⁹

(p.660) This arrangement enabled two co-eval courts of appeal to sit simultaneously. The decision on their composition lay with the Lord Chancellor, though it was open for the appellant to request a full court. Rolfe and Knight- Bruce were promoted to lords justices and when Rolfe (as Lord Cranworth) soon afterwards became Chancellor, he frequently sat in a full court at first; however this practice soon ceased and was only revived on a regular basis by Campbell, a pure common lawyer. Masterful equity Chancellors like St. Leonards and Westbury spurned assistance and would not brook contradiction, with the consequence that parallel sittings became usual.⁹⁰ In 1867 provision was made for a single judge of the court to hear many classes of appeal, which caused some concern in the profession when Giffard LJC several times overruled the Master of the Rolls during a protracted vacancy in the other lord justiceship.⁹¹

Between 1853 and 1866, while there was a rapid turnover of Lord Chancellors,⁹² Chancery experienced a period of unusual stability among its other judges. Sir John Romilly had succeeded Langdale in 1851 and remained Master of the Rolls until 1873; Knight-Bruce and Turner were lord justices from 1853 until 1866; Kindersley, Stuart, and Page Wood were vice-chancellors until Kindersley’s resignation in November 1866, Page Wood having succeeded Turner as vice-chancellor under the terms of an Act which, unlike its predecessor, made the position permanent.⁹³ Whatever its other defects, Chancery had become a court with an adequate number of judges, mostly chosen from the handful of leaders who dominated a close-knit bar, and sometimes bullied the less assertive judges too.

4. Procedure: The Pre-Trial Stage

Among the defects of Chancery was the cumbersome and elaborate procedure which it imposed upon cases of every sort. Designed for real disputes, where the plaintiff needed to be able to quiz the defendant and to compel full responses from men who might be dishonest and evasive, and where the defendant needed strong safeguards against abuse of process and ample time to shape an appropriate response, it was applied also, with little variation, to uncontentious matters; to plaintiffs seeking an authoritative ruling on the construction of a document; to schemes for charitable bequests; to the appointment of a new trustee; to the dissolution of a partnership and the taking of accounts. True, when these reached (p.661) the hearing stage some might be disposed of fairly rapidly as short causes, but the time and expense taken to reach that stage was quite disproportionate.⁹⁴

Eldon’s Commission proposed only a timid remedy, a minor enlargement to the Legacy Act, and rejected the complaint that it had become the almost invariable practice for questions of construction in a will or settlement to be dealt with by an order for the administration of the estate in court, maintaining that this was usually because the executor/trustee desired it for his own security.⁹⁵

Most proceedings in Chancery were commenced by a bill, which had achieved such a degree of ill-fame, partly through Bentham’s celebrated scathing description of it as ‘a volume of notorious lies’⁹⁶ that even one of its ablest defenders, Sir John Mitford, acknowledged that it was ‘a common reproach to practitioners in this line that every bill contains the same story three times told’.⁹⁷ A bill was divided into nine parts, and it was the charging and interrogating parts which gave rise to the ‘thrice told’ gibe. Not only was it prolix and repetitious, it was necessarily deceitful in charging the defendant with a fraud even when the suit was amicable and in contested cases the pleader routinely inserted allegations he knew to be false as a means of extracting information.⁹⁸ Some bills were, as the solicitor James Lowe admitted, pure ‘fishing bills’ while bills for injunctions were frequently bereft of any semblance of truth.⁹⁹

Here again, the Commission recoiled from any interference with the pleader’s art. In their view ‘terms of strong recommendation are…all that can be safely or usefully applied to the prevention of unnecessary prolixity’.¹⁰⁰ The Chancery leaders, Bell and Heald, were strong defenders of the status quo and even for common injunction bills the Commission was persuaded that no affidavit of truthfulness should be demanded of the client, only one from him and his solicitor affirming that it was not brought merely for delay.¹⁰¹

A subpoena obliged the defendant to collect an office copy of the bill, and an elaborate sequence of sanctions—from attachment through to sequestration—had evolved to compel his appearance; another complicated series of steps dealt with the defendant who was reluctant to put in his answer.¹⁰²Declaring that their (p.662) objective was ‘to provide that every party should be compelled to take that step in a suit, which the nature of the proceeding calls for, in as short a time as will enable him to be fully advised with respect to the particular act, and to perform what is required of him’,¹⁰³ the Commission plunged into this labyrinth with some fortitude. They proposed to remove one or two stages and to simplify the granting of time to answer, substituting an eight-week period (15 for a country defendant) for the existing practice involving several orders of course.¹⁰⁴

However, many plaintiffs were faced with several defendants, all of whom had to be served and answer before the suit could proceed. The doctrine of ‘necessary party’ lay at the heart of equity’s mission to deliver comprehensive justice and required everyone with an interest in the property in question, however remote, to become a party to the suit;¹⁰⁵ as John Jarndyce gloomily remarked, ‘we are made parties to it, and must be parties to it, whether we like it or not’.¹⁰⁶ Occasionally, mostly in cases involving large industrial or commercial concerns, Eldon had relaxed the rule because it was simply impracticable, and the Commission contented itself with the pious wish that this dispensation should be extended, without feeling able ‘to specify particular instances’.¹⁰⁷ For technical reasons connected with pleadings it was the common practice to have only a single plaintiff, making all other parties co-defendants, which aggravated the problem of securing prompt answers.¹⁰⁸

It was all too easy for the plaintiff to overlook someone, especially where his knowledge of the defendants was limited; thus in one of the many Jennens suits the plaintiffs, in a hurry because several of their key witnesses were very old, were frustrated when the defendants objected to the absence of a personal representative of the long dead Lady Andover, forcing them to file a supplemental bill against a dummy defendant who had taken out a grant for this purpose.¹⁰⁹

Another frustrating possibility was that at some point one of the parties would die, or marry, that someone would be ‘born into the suit’ or that in some other way the interests to be represented would change. Such a change would necessitate a bill of revivor, or supplement, or both, enabling a recalcitrant opponent to employ the full range of delaying tactics. Except where the suit had already(p.663) been referred to a master the Commission did not feel able to curb such obstructiveness.¹¹⁰Without quite matching the elaboration of common law pleadings, the rules governing the use of bills, including the cross-bill which a defendant needed to file if he sought relief or discovery on his own account, had accumulated enough fine distinctions to make the choice of the appropriate bill a matter of careful consideration.¹¹¹

As at law, a defendant might demur or plead rather than answer and here too great complexities had developed.¹¹² Bills were so artfully drawn that although the defendant was allowed to demur or plead to part and answer the remainder, any plea that touched upon the truthfulness of the bill invalidated the whole plea. Pleaders had become so adept that some thought it impossible successfully to counter the prayer for discovery by a plea, nor by any answer to obviate the need to disclose documents (such as lengthy accounts) which might be ruinously expensive.¹¹³ The Commission tentatively sketched a rule change to make things easier for the defendant but with little faith in its efficacy;¹¹⁴ in truth, equity did not favour pleas and demurrers and had made their employment very difficult.¹¹⁵

Once the answers were in there remained ample opportunities for delays and obstructions on both sides and some of these the Commission endeavoured to reduce. The Law Magazine summed up the main ones:

The plaintiff is allowed two terms, with the vacations (about three quarters of a year) to file exceptions, that is, to object to the sufficiency of the answer. To these exceptions the defendant either submits, in which case he is allowed six weeks to put in a better answer, or he suffers them to be referred to the master, who hears the parties by their counsel, and reports his opinion upon the question to the court—from this decision an appeal lies to the court itself. The second answer, which may also be excepted to, having been put in, the plaintiff is allowed to amend: for this no period is limited, and he may in fact do so at any time before the bill is open to dismissal for want of prosecution…, by a simple allegation that he is advised to amend. In some cases he may, even after replication, move for leave to withdraw his replication and amend, though nearly six terms have elapsed since the answer. Amendments generally require a further answer, and are a repetition of the proceedings above noticed. After the bill has been fully answered, although no step be taken by the plaintiff, the defendant is not entitled to call for a dismissal of the bill until the expiration of a period of three-quarters of a year; the plaintiff may then, by filing a replication, gain a further delay of equal duration; after which he undertakes to ‘speed his(p.664) cause’, and at the expiration of another term, ‘to speed his cause with effect’, and not until then is he compelled to proceed, or lose the benefit of his suit.¹¹⁶

The procedural changes which followed the Commission’s report did little to counter continuing criticisms, but when the Lord Chancellor was given renewed powers to make general orders the small standing committee created by Cottenham drafted a set which made significant changes.¹¹⁷ Among other improvements, the writ of attachment with proclamation and writ of rebellion were removed from the succession of stages compelling appearance, which was also simplified in other respects; moreover after service of a subpoena the plaintiff might enter an appearance for the defendant and continue with the suit.¹¹⁸ The committee also grappled with necessary party. In future purely formal parties (other than infants) against whom no relief was sought, might choose not to take part in the suit, which promised ‘a saving under that formidable head “Costs out of the estate”’.¹¹⁹ The orders were nothing if not ambitious, proposing ‘to prevent vexatious delays, unnecessary expense, and proceedings not really required by the occasion; to increase the prospect of bringing litigation to a speedy issue; to facilitate the prosecution of a suit from its commencement to its termination; to throw expense, not duly created, upon those who cause it; to deprive suitors of unfair advantages, and to check tricks and contrivances, which bring as much discredit upon the Court and practitioners, as mischief and heart-burnings upon the suitors’.¹²⁰ They evidently fell far short of these noble objectives, for in 1850 another royal commission listed many of the defects noted by its predecessor.¹²¹

The legislation which followed that second Commission’s report transformed the pre-hearing stages of a Chancery suit in three main ways. First, it provided the summary procedures which solicitor witnesses had wanted in 1824 and which had been insistently demanded since then;¹²² secondly, it greatly simplified (p.665) the pleadings and process in cases which were still to start by a bill; thirdly, it drastically pruned the doctrine of necessary party.

Summary process had in fact been creeping in for some time. A succession of statutes, beginning with Romilly’s Act of 1812 in charity cases¹²³ and extending through Sugden’s of 1831¹²⁴ and Cottenham’s Trustees’ Relief Acts of 1847 and 1849¹²⁵ (both extensively used) had introduced proceedings by petition, which were also adopted in the Trustee Act 1850 for the appointment of new trustees.¹²⁶Turner’s Act of 1850 carried matters further, by providing a procedure by way of special case for executors and administrators who wanted to ascertain the estate’s liabilities.¹²⁷ More wide-ranging than any of these was Cottenham’s introduction of a procedure by claim which dispensed with pleadings altogether and was heard on affidavits.¹²⁸ This was available in a wide range of cases and proved instantly popular, used for almost 2000 suits in 18 months.¹²⁹ It had, however, unfortunate drawbacks, for when employed in inappropriate cases, where the form of the claim and summons gave insufficient information, the affidavits on each side had to serve the function of pleadings, for which they were ill-adapted.¹³⁰ Furthermore, claims, petitions, and special cases alike had the common disadvantage of not giving any facility for compelling the production of evidence.¹³¹

Despite these drawbacks the Commissioners were anxious ‘to substitute in every case which admits of it the shortest and most summary process, with the least amount of preliminary written pleadings, and to bring the parties, by themselves or their counsel, to state their cases with as little delay as possible…’.¹³² Accordingly, they proposed a procedure by originating summons, enabling a next of kin, legatee or creditor to seek in chambers an order that the personal representative administer the personal estate. Real estate was less straightforward, but the same procedure could be invoked where it was held by trustees with a power of sale,¹³³ and it was also available, and much used, when a guardian or maintenance for infants was sought in an original proceeding.¹³⁴

(p.666) Alongside the summons, the special case was retained for the purposes envisaged in Turner’s Act, that is for obtaining a ruling on a question of construction, but this apparently became less popular, perhaps because it did not meet the greatest need, a procedure short of full administration.¹³⁵

Despite these innovations many suits would still follow the traditional course of bill and answer, but it would be a very different bill from Bentham’s monstrosity, printed in numbered paragraphs and shorn of its interrogatories.¹³⁶ Served on the defendants, it would displace the apparatus of subpoenas and would not require an answer unless accompanied or followed by interrogatories in a separate paper.¹³⁷ The complexities of rules governing appearance were simplified by substituting a straightforward eight days, though in practice solicitors’ undertakings were apparently often accepted in lieu of formal service.¹³⁸ The answer must still deal fully with all matters raised in the bill and interrogatories, and exceptions might be filed for insufficiency, but no longer for impertinence.¹³⁹After any further pleadings or amendments—the use of supplemental bills to update the original bill being also discontinued—the plaintiff would as before file his replication,¹⁴⁰ but the Chancery Amendment Act 1852¹⁴¹ offered him an alternative which proved popular, that is, to file a motion for a decree, which would be set down after a month on the evidence of the pleadings and affidavits listed on the notice; the defendant had two weeks to file affidavits of his own and the plaintiff one further week for affidavits in response.¹⁴²

In the view of the Commissioners, ‘[t]here is probably nothing in Chancery procedure which has tended so much to augment expense and delay as the rules of the Court as to parties’.¹⁴³ So far the only statutory modification of the rigid ‘necessary party’ rule was in the Winding-Up Act, which dealt with partnerships of more than six,¹⁴⁴ but with Cottenham’s order ‘falling more and more into disuse’¹⁴⁵ it was now to be put on a statutory basis and broadened. In suits for administration or concerning trusts and in injunctions for preserving property (p.667) or preventing waste no objection for want of parties could be taken.¹⁴⁶ Trustees might now represent their cestuis que trustjust as personal representatives did the beneficiaries and instead of being made parties to a suit, ‘formal parties’ might merely be served notice that they would be bound by proceedings unless they wished to join the action.¹⁴⁷ This latter provision was not much used, since the removal of the requirement that all parties must put in an answer served much the same purpose in distinguishing the real parties from others.¹⁴⁸ The thorniest problem was mortgages, where both redemption and foreclosure suits often involved a whole mass of competing interests. It was not felt possible to dispense generally with the participation of them all, but anyone interested in the equity of redemption might seek an order for sale during foreclosure proceedings.¹⁴⁹

These were only the most important of the procedural reforms to the preliminary stages of a Chancery suit brought about by the Act of 1852. It is a mark of how things had changed that the Commission’s report attracted little criticism from conservatives and the bill as little opposition in Parliament.

5. Evidence

Holdsworth pronounced that ‘it may safely be said that a more futile method of getting at the facts of the case, than the system in use in the court of Chancery from the seventeenth century onwards, never existed in any mature legal system’.¹⁵⁰ It differed fundamentally from common law in two respects; first, Chancery not only allowed, but required, testimony from interested parties, including the parties themselves; secondly, that evidence was almost invariably in written form.¹⁵¹

This second feature attracted strong criticism, and not only from Bentham and other proponents of rationality. In 1799 Lord Alvanley MR said ‘it is impossible to sit here any time without seeing, that aviva voce examination of witnesses is much more satisfactory than depositions, where a possibility of doubt can be raised’,¹⁵² but such a change was already too late in Hardwicke’s day.¹⁵³ Even within the inherent limitations of written testimony, however, Chancery practice managed to combine costliness, delay, and inefficiency in a most discreditable fashion.

(p.668) Witnesses in London and its environs gave their evidence to one of the court’s examiners. He administered a series of questions drawn up by counsel for the party calling the witness and, if they chose, by counsel for other parties. The examination was in private with neither lawyers nor parties in attendance, and from the witness’s answers the examiner produced a narrative of events. Country witnesses attended four examiners chosen by the parties, each nominating four persons from whom the other side would strike out two names. The examiners and a clerk would quarter themselves at an inn and conduct the examination along London lines. In either case the depositions would be sealed, and when all the examinations had been completed the plaintiff would obtain an order for them to be opened (‘publication’), after which a trial date could be sought. There was, however, ample opportunity for interlocutory proceedings by way of motions to strike out evidence alleged to be inadmissible and to extend the time for more evidence to be taken.

Like most aspects of Chancery procedure, the time allowed for taking evidence was generous and where one party was in no hurry he had ample opportunity for tactical delay. It was also expensive, in particular in the country, where, as the commissioners were paid two guineas a day plus living expenses, their sitting day tended to be very short.¹⁵⁴ Worse, it was strikingly inefficient. First, since solicitors could not be certain what a witness’s testimony would be, they had to cover any potentially fatal gap in their evidence by calling several witnesses, even to establish the provenance of a document or entry in a register.¹⁵⁵ Secondly, because the interrogatories had to be drawn up in advance, the draftsman had to provide against a range of initial answers, so the interrogatories were lengthy and often irrelevant. Effective cross-examination was not only difficult but potentially dangerous, since a line of questioning could not be curtailed if it was eliciting unfavourable testimony; it was therefore seldom used, and witnesses’ statements tended to go unchallenged.¹⁵⁶ Furthermore, the questions were often phrased in technical language; their meaning might be unclear to the witness and since the examiners, prudently perhaps, did not usually consider it their duty to offer explanations, the ‘wrong’ answer might be given.¹⁵⁷ As Lancelot Shadwell commented, ‘you are almost morally sure that you have not got upon the written deposition the answers the witness gave’.¹⁵⁸ The quality and style of the narrative varied and in country cases might be the product of wrangling and compromise.¹⁵⁹

(p.669) The Commissioners were palpably uneasy with this subject. They could not advocate a wholesale move to oral evidence, since that would require fundamental changes in procedure and by prolonging hearings would aggravate delays at the trial stage. However, they virtually acknowledged the inadequacy of the existing practice by pointing to the facility of sending feigned issues to be tried at law.¹⁶⁰ Equity judges had been increasingly resorting to this device, which enabled them to obtain a common law jury verdict on a disputed matter of fact, but as it increased cost and delay it was hardly satisfactory.¹⁶¹ The Commissioners’ only concession was to give masters the power to hear evidenceviva voce on certain matters.¹⁶²

The Commissioners followed leading counsels’ unconvincing assertions that injustice was seldom done by the defective mode of taking evidence,¹⁶³ but if so, it was only because those same counsel and experienced solicitors had learned to seek what they wanted from another source. Complaints that the interrogatories in a Chancery bill were otiose overlooked the fact that they had been elaborated precisely to fill the gap left by relinquishing oral evidence. Heald admitted that they were unnecessary in simple cases, but he and the ultra-conservative Bell were right to claim that interrogatories were usually needed;¹⁶⁴ as Lowe boasted, it was through these that he could ‘scrape the defendant’s conscience’, driving him to admit unpalatable facts.¹⁶⁵

The Commissioners’ suggestions for improvement were limited to reducing the time limits for examinations and curbing the extravagance of country commissions. They also hoped to raise standards by requiring that examiners, and at least one Commissioner on each side, must be barristers of ten years’ standing.¹⁶⁶ The report of the Chancery Commission 25 years on suggests those recommendations which were implemented accomplished little. Cottenham’s orders made some improvement in interrogatories, requiring them to be numbered and directed at only those parties with knowledge of the matter under question,¹⁶⁷ but the role of the examiners and the taking of evidence were at the forefront of the new Commission’s instructions.

The Law Society claimed that ‘it is admitted on all hands, that the present mode of taking evidence in Chancery, by written interrogatories before an officer of the court, is extremely defective and unsatisfactory’.¹⁶⁸ Its proposals formed the basis (p.670) of the Commission’s recommendations, but such was the delicacy and complexity of the issue that the revised system was twice investigated, and twice altered, within the same decade. There was widespread support for change, but not all equity lawyers favoured aligning their practice as closely with the common law as enthusiasts for procedural fusion wished. The Commission itself maintained the old position that a wholesale move to viva voceexamination in open court was impossible without more judges.¹⁶⁹ Instead, noting that affidavit evidence was now the dominant mode in interlocutory proceedings, and that in practice many cases were effectively determined on motions, they proposed to encourage affidavits in final hearings too. The defects of affidavits were acknowledged—coaching of witnesses, prolixity, and the inclusion of inadmissible matter among them—but it was felt that the way interrogatories were taken was in practice little better, as well as being a great deal slower and costlier. To meet the needs of the minority of cases where a witness’s testimony was contested, any of the parties might require him to give oral evidence instead, or to be examined or cross-examined on his affidavit; it was felt that the prospect of this would do much to ensure honesty in affidavits. As a fallback the judge might himself require viva voce evidence at the hearing.¹⁷⁰ Examinations before the hearing, where demanded, would still take place, but before a ‘Master or other competent person accustomed to the examination of witnesses and practically conversant with the law of evidence’; he would sit in public, in the presence of the parties, their solicitors and counsel, and it was the last-named who would do the questioning. The examiner would still present the evidence in narrative form as hitherto and would rule on admissibility.¹⁷¹ As for the evidence of the parties themselves, the interrogatories were removed from the bill and must be administered separately in a more straightforward format.

Within a couple of years pressure from within the legal profession forced the Commissioners to review the working of the new system. In the end the examiners had not been abolished and it was alleged that there were long delays in getting appointments with them, partly because many parties failed to show up for theirs, having presumably settled out of court. Evidence taken in this fashion was felt unsatisfactory because the judge could not see the demeanour of the witness, and there was uncertainty over the line where inadmissibility (which the examiner could rule on) met materiality (on which he could not).¹⁷² The Commission sought some changes (implemented through a general order early (p.671) in 1855), notably encouraging even the parties to give their evidence by affidavit, but without acceding to the pressure for a more decisive shift towards orality.¹⁷³ Still dissatisfied, the reformers pressed for a further investigation. Lyndhurst claimed that too many affidavits were ‘cooked’, Chelmsford that the retention of the examiners had been a mistake.¹⁷⁴ It was said, no doubt with some truth, that certain judges were reluctant to have viva voce evidence in their court, or to call a jury to resolve disputes (still preferring to send it to law by an issue), while the equity bar disliked conducting cross-examination.¹⁷⁵

Yet another investigation was started, and duly recommended that viva voce examinations should henceforth be held before the judge or a jury, as indeed should cross-examination on affidavits. The role of the examiners would be restricted to taking ex parte examinations and those for which the parties agreed to use their services. It appears, however, that practitioners were tenacious of the old ways and general orders to this effect seem not have had the intended effect. In the matter of taking evidence Chancery had edged towards the common law without embracing it.¹⁷⁶

6. The Trial Stage

Criticism of Eldon’s court was chiefly concentrated on the delays in hearing causes which had been set down. Arguments over the extent of these delays continued—not every cause set down was in fact ready to be heard—but delays were real and serious and especially bad when a cause was referred to a master and had to climb up the lists twice; in 1840 Cottenham LC reckoned this would take three years though, like Leach before him, Cottenham was said to be particularly prone to order references almost as a matter of course.¹⁷⁷

The leisurely course of Chancery proceedings had a bad effect on solicitors who regularly practised there.¹⁷⁸ In some it induced a corresponding lethargy, while others followed the example of Mr Vholes in Bleak House and manufactured interlocutory business to persuade their clients of their zeal, so that to revivors and supplements necessitated by the occurrences of everyday life were added(p.672) motions and petitions of doubtful value.¹⁷⁹ The materials were readily to hand. Maddock’s practice book listed an inviting number of motions¹⁸⁰ and the growing resort to them is illustrated by their rise from 4684 to 6730 in Eldon’s first decade as Chancellor.¹⁸¹ Many were simply motions of course, but those overflowed the time allotted to them, giving rise to further discontent because of the practice, adopted by the bar with the acquiescence of the judges, of allowing counsel to bring forward motions in order of seniority rather than the order in which they were filed. This obliged solicitors and barristers to hang about in court in a state of uncertainty and encouraged resort to expensive leaders to ensure progress. The number of motions each counsel might make in his turn was eventually restricted, but it remained a grievance.¹⁸²

A more helpful trend (particularly useful in friendly suits) which Eldon had encouraged was the use of motions as a short cut to obtain an opinion.¹⁸³ By contrast Cottenham was said to have been scrupulous to avoid touching on the merits of a suit at any interlocutory stage and was unwilling to offer any short cuts; his system ‘held out till very lately, the practitioners priding themselves much less in justice than in technicalities’. ¹⁸⁴

Even after the hearing of a cause there was always the possibility of a re-hearing or an appeal. Much of the argument over the creation of a Vice-Chancellor centred upon whether, as opponents claimed, any benefit would be nullified by a proliferation of appeals from his decisions.¹⁸⁵ Reviving the debate in 1819, Taylor claimed that their predictions had been fulfilled, with serious arrears at the appeal stage, and though estimates of the scale of the problem varied widely, it became common ground that, whatever the merits of the establishment of the Vice-Chancellorship, appeals from him made an appreciable addition to the Lord Chancellor’s burdens.¹⁸⁶ The propensity of unsuccessful litigants to appeal was encouraged by several factors. Decisions of the first Vice-Chancellors, Plumer, Leach and Shadwell, failed to give satisfaction, Plumer because his appointment was criticized and he started with a poor reputation, Leach because of his notorious haste, and Shadwell because he was in thrall to a succession of powerful (p.673) leaders.¹⁸⁷ Eldon so lacked confidence in his own judgments that he positively invited rehearings and appeals, even when the latter were in effect, as critics maintained, appeals from the Chancellor in his own court to the Chancellor and two mute lay peers in the House of Lords.¹⁸⁸ His reputation for minute scrutiny of documents also encouraged the hope that he would find something overlooked by the trial judge,¹⁸⁹ though he was provoked into uncharacteristic imprudence when James Abercromby was reported as having said that he admitted new evidence on appeals.¹⁹⁰ It was, however, open to the judge to look at evidence available at the hearing but not referred to. On appeals from interlocutory decisions upon motion there was no restriction at all. ¹⁹¹

In fact the court was remarkably generous in reviewing decisions. Even when the court of Appeals in Chancery was set up it remained possible for the suitor to have his cause reheard by the judge first and it was not until 1852 that orders imposed a time limit of five years from the order or decree;¹⁹² until then only the doctrine of laches set any bounds to appeals. It is no wonder that nothing was ever considered final in Chancery. The only safeguard against frivolous or vexatious appeals was the requirement that the petition be signed by counsel and £20 be deposited as security for costs, and that was probably ineffective.¹⁹³ Moreover, with an increasing amount of Chancery business involving a fund in court appellants were comforted by the knowledge that the costs of the appeal would generally be directed to be met from that source.

Few Chancery barristers supported restrictions upon the right of appeal, not just from interested motives but because they saw appeals as an essential security for the coherence of equitable doctrines, always vulnerable to the old jibes about their arbitrary and whimsical character. Moreover, with no juries, all decisions were reasoned decisions whose flaws, if not exposed, might form the basis for further errors.

If Chancery was much criticised for slowness in producing a verdict and generosity in allowing it to be challenged, it also came under strong attack for the treatment of those who disobeyed an order of the court. The process of enforcing orders was, like so much else in Chancery, ponderous and stately, but if it progressed to a writ of sequestration and the contemnor had no property to (p.674) sequestrate, then he might be imprisoned indefinitely if no one would purge his contempt.¹⁹⁴ Lyndhurst attempted to alleviate the plight of such persons, which had been well publicized and perhaps rather exaggerated but there were doubts whether it was lawful to do so through orders, so Sugden successfully introduced a bill which prescribed a quarterly return from the warden of the Fleet and examination by a master which might result in a discharge upon terms.¹⁹⁵ This reform did not prevent Dickens from excoriating the court in The Martyrs of Chancery and again in Bleak House,¹⁹⁶ unfairly perhaps but to good effect, for the procedures were improved in 1860 with the institution of a quarterly visit by a court official who would report to the Lord Chancellor. ¹⁹⁷

7. Organization: Masters and Registrars

The ten masters in Chancery played an increasingly important role in the court as a fact-finding agency to whom judges referred a whole range of matters germane to the outcome of a suit but too time-consuming or mundane to warrant investigation in open court.¹⁹⁸ Their duties included: taking accounts of executors, trustees, mortgagees, partners, agents etc.; appointing receivers, guardians, and trustees; dealing with maintenance and advancement; arranging sales of land and settling schemes to administer charities.¹⁹⁹ As the proportion of Chancery business from wills and settlements, sales and mortgages of land and partnerships and other multi-party commercial transactions and from charitable endowments, grew at the expense of bonds and straightforward commercial disputes, so did the number and complexity of references. A crude index is the number of volumes of their reports, which rose from 245 (1701–50), to 335 (1750–1800) and 1400 (1800–52). This represents a much faster rate of increase than causes, and indicates also a change in practice, with parties increasingly seeking interim reports on a particular issue and delaying the final report, sometimes to settle an urgent matter, sometimes to procrastinate.

The masters practised out of the public gaze and initially it was only their fees (particularly from office copies) that engaged parliamentary attention.²⁰⁰ However, the Chancery Commission also delved into the ways in which delays (p.675) and expense in the masters’ offices contributed to the court’s bad reputation. Some masters freely acknowledged that ‘those evils exist, and to a very great extent’,²⁰¹but denied that they were at fault, blaming the parties and their solicitors for such systemic weaknesses as were not, in their view, an unavoidable consequence of the equity jurisdiction and the sort of business that came into Chancery.²⁰² With two of their number on the Commission, it was always likely that this view would be adopted,²⁰³ and in any event, the masters had a plausible case. There were suits brought by a ‘friendly’ creditor purely to obstruct the real creditors and where inactivity was the whole purpose.²⁰⁴ It was also common for executors or those entitled to the residue of an estate to delay paying simple contract debts and legacies (which carried no interest) in order to accumulate income for themselves.²⁰⁵

Most commonly, however, proceedings were leisurely because solicitors’ clients were either indifferent to haste or unable to penetrate the obfuscation of their solicitor—and the worse Chancery’s reputation for delay, the more plausibly the solicitor could blame the court. Solicitors and counsel operated a ‘system of accommodation’,²⁰⁶ where none would complain of another’s absence from a master’s appointment or failure to produce material for it in order to ensure the like indulgence when he needed it. Attendance was often through a clerk, and not always the expert managing clerk whom most of the bigger firms employed, but a junior without the knowledge or authority to progress the suit.²⁰⁷ When faced with the absence of the representative of one or more parties the master would usually adjourn rather than proceed ex parte. The party with conduct of the suit determined its pace, and if he allowed it to lag he seldom faced the serious consequences that would arise at common law. In theory another party might petition to have ‘carriage of the suit’ transferred to him, but the solicitors’ mutual courtesy, the cost and the onerous nature of the burden in administration cases combined to make such applications a rarity.²⁰⁸

Accordingly, the masters claimed to be helpless to accelerate the progress of causes. Even Stephen, one of the more enterprising, told the Commission at length of his experience in Silcox v. Bell, an inheritance suit with over 100 claimants, many of them poor Dorset folk, which had slumbered from 1811 to 1820 because (p.676) (he inferred) the previously active solicitor had become too prosperous and busy to pursue it. Some of the bewildered claimants had journeyed to London to see the master, who could offer little but sympathy.²⁰⁹

Not surprisingly, Stephen’s bewildered claimants could not grasp the notion that a judge was helpless in his own court, and indeed the blame for this state of affairs did not rest wholly with the solicitors and parties. The masters had become too detached from their judges. In part this was geographical, for they had moved their offices to Southampton Buildings in 1795,²¹⁰ and in part procedural, for after 1826 they no longer attended in court to hear the reference being drawn, and so lacked knowledge of the case.²¹¹ Successive Chancellors had made no attempt to improve their operations—Master Stratford more or less openly deplored Eldon’s neglect to do so²¹²