’It’s being ground to bits in a slow mill; it’s being roasted in a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains.’ So wrote one-time solicitor's clerk Charles Dickens in his masterpiece Bleak House. 

Legal scholars apart, that's probably the sum of most people's knowledge of the former court of Chancery. I'm no legal scholar, but I spent a couple of days over the summer in the Law Society's library looking at the history of an institution whose last vestige, its name, is due to disappear with the abolition of the Chancery Division of the High Court at the end of this month. 

It was a fascinating read - a reminder that campaigning arguments about the cost and accessibility of justice are by no means modern phenomena. 

As with much of the English legal system, the ‘court of conscience’ has ancient origins but came formally into being in the 12th century with Henry II's common law reforms. According to Gilbert’s History and Practice of the High Court of Chancery (1758) ‘’The King’s own court consisted of the justicier, who was the chief officer of state and the chancellor, or keeper of the seal, and such other barons and tenants in captive as the king called to their assistance.  

'The power of the justicier was eventually broken ‘into several courts, which make the ordinary jurisdictions that are now in being; (that is to say) the chancery, the King’s bench, the common pleas, and the exchequer'. One of Chancery's functions was as a court of equity.

Gilbert explains: ‘By the ordinary jurisdiction on every cause of complaint, the chancellor issued the writ after examination of the plaintiff, that the subject might not be needlessly disturbed; but when the case was extraordinary, and it was necessary to have the defendant’s own oath, the chancellor, by his extraordinary jurisdiction, had power to send for and examine him, upon the several allegations in the plaintiff’s petition; and this gave birth to the English jurisdiction of the court of chancery.’

As memorably described by Dickens, the court sat primarily in Westminster Hall, though Gilbert cites one case in which a witness was 'examined at a tavern in Chancery Lane', a practice which might appeal to certain court reporters today. 

Of its overall purpose, one lord chancellor said:  ‘Men’s actions are so diverse and infinite that it is impossible to make a general law which may aptly meet with every particular and not fail in some circumstances. The office of the chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs, oppressions of whatever nature soever they may be, and so soften and mollify the extremity of the law.’

An 1828 History of the Court of Chancery by Joseph Parkes, 'solicitor, Birmingham' paints a less complacent picture of the court's work. Parkes quotes an anonymous pamphleteer as sounding off about suits enduring 'upwards of half a century ... the lawyers tossing the ball to the hands of each other'. Other complaints include the ‘excessive length of bills and answers and their frequent tautologies; the unreasonable exceptions and unnecessary objections made by masters in Chancery… the grievous delay and expense incurred by bills of revival after the death of one party, the repeated postponement and procrastination of the hearings.'

It is easy to see where Bleak House, apparently set in the 1830s though published in 1852-53, was coming from. 

According to Parkes, apart from an attempt at abolition during the Interregnum, serious efforts to reform the court began in the mid 18th century. They came to naught, despite Royal Commissions in 1816 and 1817 ‘to examine into the duties, salaries and emoluments of the several officers, clerks and ministers of justice of all the courts of the United Kingdom, including the Court of Chancery'.

In a clarion call for wholesale reform, Parkes writes: ‘It is time that the artificial system of English law, which has for ages placed reason and justice in opposition, should be abandoned; that the interpretation of legal language should no longer be difficult propter strepitum verborum ('because of the noise of the words' - though Parkes does not see the need to translate) and equity should abandon its disgraceful maxim - in fictione juris subsistit equitas ('equity subsists within a legal fiction')’. 

Reformers, of course, had to wait nearly another half century. The Judicature Act of 1873, which came into force in 1875, consolidated the court of Chancery, the courts of King’s Bench, Common Pleas and Exchequer, the court of Admiralty, the court of Probate, the Divorce court and the London court of Bankruptcy into one Supreme Court of Judicature in England. The reform, which also led to the creation of our present day Royal Courts of Justice, was the work of Roundell Palmer, First Earl of Selborne. He was born 1812, an exact contemporary of Dickens - who would surely have approved of the reform had he not died in 1870. 

In 1984, Lord Denning observed that, for a long time old jurisdictions 'were kept separate by the practitioners who had been used to the old ways. But now, after 100 years, the fusion is complete.’ 

From next month, the start of the new legal year will bring in another fusion. A new Business and Property Division will absorb all business and property courts currently spread through the King's Bench and Chancery divisions.  Allegedly this will make it easier for court users to understand where to bring their cases and strengthen the international repurtation of the Business and Property Courts.

We don't necessarily mourn the demise of the Chancery Division, any more than Dickens would have mourned the death of the court of Chancery. But it's always nice to know how we got where we are. 

Michael Cross is the Gazette's news editor. He would lke to thank the Law Society librarians for their help with his researchers - and to point out that any errors of fact are his alone. 

 

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