THE COURT OF CHANCERY.
ENGLAND will hardly be England without the Court of Chancery, which will be swallowed up, as far as its title and dignity are concerned, in the gulf of the Judicature Act next November, The Long Vacation commenced this week, and one or two of the Equity Judges curtly mentioned, as the Court broke up, that " they would not meet again in the Court of Chancery." This is not strange ; much more strange would it have been if Sir George Jessel had indulged in an elegiac strain, or if Lord Justice James had softened into tears, over the disappearance of the most imposing and in- scrutable of English tribunals. It is the iron age, and even Eldon's weeping would only move laughter now. Yet if the mortality of human institutions should move the human heart, some one should be found to lament the annihilation of Chancery as a living spring of action in the English legal system. No doubt. there are such mourners in Lincoln's Inn, —perhaps, too, among the perennial suitors who frequent the dingy passages that surround the sheds where Chancery till this week sat in " original and unaccommodating" state. But for the world at large, the epitaph of Chancery is brief and un- sympathetic. Modern Judges do not seem to be impressed with the dignity of the tribunal in which they sit as their predecessors of the last century were, though they are possibly more seriously weighted with the responsibility of doing justice. Before these new ideas, the old reverence for the name above the thing has taken flight, and when the wisdom of jurists and of practical lawyers has determined that the authority of the Court of Chancery should be merged in that of a new tribunal, with a wider scope of action and a more elastic method of working, the cry is all but unanimous, "Le soi est wort, vine le roi I" In reality, we ought to say, there is no cry at all. No one makes a fuss about a matter on which everybody who has a mind to make up has long since made up his mind. The inevitable revolution is accepted as if it were a simple change in a railway time-table, and the Bench, bidding the Bar good-bye for the Vacation, murmurs placidly, " When we meet again there will be no Court of Chancery."
We do not certainly wish that it should be otherwise, for we believe the change that will be accomplished (unless some malignant influence should intervene, which is still possible) in November is for the advantage of the country, and will ulti- mately redound to the credit of English jurisprudence. Yet
" Chancery " has been a word largely written upon the political history of this country and deeply impressed on its social life. With the history of the Court of Chancery we are not here concerned ; we may remark only that it maintained indirectly, but very effectually the current of ecclesiastical influence upon our legal system,—an influence that modified the interpretations of legal doctrine in the Court of Chancery long after the Chan- cellors had ceased to be ecclesiastics by profession. It is probable that only the predominance which the House of Commons acquired in the State after the Revolution of 1688 prevented the Court of Chancery from becoming a mainspring in the political system. But no such obstacle interfered with the development of its social authority. The original function of Chancery was to supplement the short- comings of the Courts of Common Law, and to do justice where they failed to provide a remedy for wrong ; but this function, as it was recognised by the community at large, con- trolled as well as supplemented the power of the ordinary tribunals. The enormous authority involved in the writ of injunction silenced the litigant who dared to appeal to any other Court when Chancery claimed any right of interference. The absurdities of interpretation to which the Common Law Courts were driven by the attempts of the Legislature to ex- tinguish fiduciary interests, gave the Court of Chancery an exclusive jurisdiction over Trusts. But in England, with its com- plicated system of landed property, its primogeniture, its entail, Trusts are indispensable mitigations of strict legality, and with Trusts to give Chancery a footing and the power of injunction as a weapon, the authority attained by this tribunal over the public mind may be readily understood. Moreover, the ad- ministrative business of the Court increased the permanence of its power. Estates came into Chancery, and were administered in Chancery until the period for which they were tied up by settlement had expired. Probably these administrative suits supplied Dickens and other fict•ionists with their examples of unending Chancery litigation, yet there can be no doubt that under Eldon and other Chancellors ordinary business was grievously delayed. The cause of this delay was very simple. The Lord Chancellor remained the only Judge in Equity down to the middle of the last century, but the extension of Trusts and the development of proceedings in Equity, as sup- plying relief in various cases where the Common Law was cruelly hard, had choked Chancery with business. The rivalry between the Chancellors and the Common-law Judges has re- sulted in several defeats for the latter, after the admission of the former as members of the political Administration. But the greater the power, the less were its administrators disposed to share it. The judicial authority of the Master of the Rolls was at length reluctantly admitted ; then, in 1813, the scandal of enormous arrears compelled Parliament to ap- point a Vice-Chancellor, and a generation later two more Judges with the same title were called into existence. In 1850, on the resignation of Lord Cottenham, the obvious necessity of creating a strong Court of Appeal to make up for the acknowledged deficiencies of Lord Truro led to the pro- vision for the permanent appointment of two Lords Justices. But again and again the business of Chancery has overpowered the ablest and most industrious Judges. Arrears are still the rule, and it is rather a hope than an expectation that they will become an exception when all the business of the Court of Chancery has passed to the High Court created by the Judica- ture Act.
The Court of Chancery, in the popular mind, has been identified with certain methods of procedure from which the other tribunals of this country have been debarred. The severity with which the writ of injunction and the decree of specific performance are enforced has produced a vague terror of Chancery proceedings. If a vexatious litigant be forbidden by the Court of Chancery to resort to proceedings at Common Law, and should be venturesome enough to disobey, he goes to prison; if a dishonest party to a contract declines to carry out his bargain the Court of Chancery will order him to do so, and if recalcitrant, he goes to prison. But these peculiar powers which have impressed the authority of Chancery on the popular imagination will not come to an end, because the name of the Court is changed. The High Court will have all the authority that any English tribunal, in constitutional times, has ever enjoyed. Yet so much is in a name, that we shall not be surprised if the, new Court has to put forth its strength vigor- ously, not once, but many times, before the mass of English- men will be convinced that any other institution can wield the same powers as the Court of Chancery,—which, as they have this week been told, will never sit again.
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