Michael Lobban

FORUM: REFORMING CHANCERY

Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part I

In 1850, William Carpenter, a reform-minded journalist, called the court of Chancery "an instrument of oppression" and noted that "[t]he madhouses, the workhouses, and the gaols, in all parts of the kingdom, have within their walls the melancholy and heart-broken victims of the evil it does."¹ The image of the nineteenth-century Chancery as a ruinously expensive and slow court is familiar and was given its most famous expression in Charles Dickens's Bleak House. Yet the court was also a prime focus of attention for law reformers throughout the nineteenth century, until its incorporation into the Supreme Court of Judicature in the reforms of 1873–75. The process of reform was slow and complex, driven at different times by different parties, who had often divergent notions of the problems to be addressed. Chancery reform could be a highly charged political issue, involving major questions of principle; but it was also a technical matter, affecting professional interests and involving details that were both uninteresting and incomprehensible to laymen.

In the early nineteenth century, when Lord Eldon held the great seal, the language of Chancery reform was cast largely in party-political terms and concentrated on his personal abilities. In this era, political parties disagreed over the nature and size of the arrear of cases in Chancery, as well as over how to improve the effectiveness of the court. With his departure from office in 1827, the debate became much less party-political; but issues of political principle continued to be argued. In particular, the years up to 1873 saw frequent discussion over whether the various functions of the Lord Chancellor should be separated out, though the matter remained unresolved. Equally, there was periodic discussion of whether there were enough judges to handle the court's caseload, or whether new ones should be appointed. However, debates on these matters of principle did not generate a coherent reform strategy, and such structural reforms as were made—as in 1841 and 1851, when new judges were appointed—were hasty reactions to mounting arrears, and not the result of long-term planning.

By contrast to the often inconclusive nature of the high political debates, the more technical debates among lawyers and experts examining the problems of working in the court did lead to its transformation. After the appointment of a Chancery commission in 1824—in large part to shield El-don from political criticism—the focus of reformist attention shifted away from grand political themes to more mundane questions of how to improve the procedure and reform the nonjudicial personnel of the court. For many professional reformers in the period from 1830 to 1852, the Chancery's main fault was that it still functioned like an ancien régime institution and was riddled with "Old Corruption." A series of reforms in the mid-century sought to rid the court of these faults. Success in this technical area of reform in turn generated a new question of principle: whether it was necessary to have separate courts of law and equity, or whether there should be a fusion of judicatures. The debate over fusion between 1852 and 1873 did not, however, turn out to be dominated by politicians with grand, coherent visions of what fusion entailed. Instead, it was carried out in largely procedural and technical terms, with lawyers generally eschewing questions of substance, preferring to concentrate on taking forward the procedural reforms of the first half of the century. The piecemeal and technical nature of their approach in the event ensured that the "fusion" effected in 1873 would turn out to be more problematic and complex in substantive terms than they had envisaged.

This article is divided into two parts. The first sets out the problems of the early nineteenth-century Chancery and discusses the party political debates of Eldon's era and the later history of the debates over the Lord Chancellor's office and the need for more judicial staff. It also examines the reorientation of the debate toward procedural matters that commenced with the Chancery commission of 1824–26. In the second part, we will examine the "professional" movement to reform the Chancery and its procedures as it developed after 1830 and examine how its initiatives led toward the union of judicatures in the Supreme Court of Judicature Act of 1873.

1. The Problem of the Chancery

The equitable jurisdiction of the Chancery provided a central forum for both property disputes and property management in the nineteenth century.² The Chancery was a crucial court because its jurisdiction allowed it to determine matters that found no remedy at common law. Its procedure by subpoena, bill, and answer allowed the full details of a dispute to emerge, in a way not possible at common law, where the parties to the suit were until 1851 excluded from giving evidence. Equity's procedure allowed the court to consider cases in a more three-dimensional way. Since it did not seek to refine a single point for the determination of a jury, the court could handle cases involving many parties and a multiplicity of questions. It also had an administrative function not shared by the common law. Moreover, equitable remedies—notably injunctions and specific performance—were of great importance in an industrial age, where damages alone would often not be sufficient. Nevertheless, if the court was of vast importance, by the early nineteenth century it was in crisis. As Thomas Pemberton observed in 1840, "[i]f you have a legacy to recover, a trustee to call to account, a partnership difference to adjust, a mercantile account to investigate, in all these cases, and a multitude of others, a court of law can give no redress, or no adequate redress; and yet to all but wealthy suitors the doors of a court of equity are closed."³

The crisis of the Chancery was largely the result of the nature of its procedure and of its structure as a court. To begin with, the court required everyone with an interest in the matter to be a party; for nothing would be done that might diminish any common funds without all being present to defend their interests. Each party had the right to put in an answer to the bill, to be represented by his own lawyer, and to have full copies of all case papers. Moreover, it was left entirely in the hands of the parties and their lawyers as to when and how to proceed with the suit. If, during the course of the case, any interested party died, or (in the case of a woman) married, the suit would abate, and a bill of revivor would be required to resuscitate it. Equally, if a suit that had been perfect when originally instituted subsequently became defective or abated by an event occurring after the filing of the original bill, a supplemental bill would have to be filed.⁴ In suits involving a number of litigants, extending over a period of time, there might be frequent need for such bills.

Although the Chancery dealt with litigated disputes, much of the business before it required no adjudication of disputed questions of fact or law. Some matters were purely administrative, such as the appointment of new trustees or guardians. In other cases, the court was used to settle or regulate affairs between people associated in a common concern by settling accounts or winding up partnerships. Moreover, numerous cases that involved disputable claims might also require detailed "administrative" investigation. For instance, if there was a claim for a debt or legacy against the estate of a deceased person, the court had to investigate the validity of the claim, and ascertain what property the testator left, what debts he owed, and what legacies he bequeathed. Purely "administrative" work took up a great deal of the Chancery's attention.⁵ In these cases, the nature of Chancery's procedure only served to add cost and delay, since the suit was dealt with as if it were disputed litigation, with all interested parties before the court.⁶

The efficiency of the Chancery was also hampered by the nature of its personnel. To begin with, it had only two judges—the Lord Chancellor and the Master of the Rolls—as opposed to the twelve at common law. The authority of the Master of the Rolls to pronounce decrees had been called in question in the early eighteenth century but was resolved by statute in 1729.⁷ Nonetheless, he remained the junior official. In the late years of the eighteenth century, he busied himself with hearing motions and simple causes, while the more important cases went to the Lord Chancellor.⁸ Moreover, until 1829, the Master of the Rolls only sat when the Chancellor was not sitting. The problem of personnel persisted into the 1830s: for while a new office of Vice Chancellor of England was created by legislation in 1813, the Lord Chancellor soon ceased to hear original causes, so that there remained only two judges for the original business.

Unlike the common law judges, who could effectively delegate decision making to juries who would answer questions precisely defined in pleading, the Chancery's own machinery of officials had to handle all matters before the court. While the judges were to deal with all judicial matters, administrative tasks were delegated to the ten masters and their clerks. Whenever questions were raised on a defendant's answer that required fuller investigation, where accounts were to be taken or titles investigated, the judge's decree could not be final, but there would be a reference to a master to make the relevant inquiries.⁹ In purely "administrative" cases (brought by trustees, legatees, partners, creditors, and so on) where all agreed on the issues that needed investigation (called "short causes"), the proceedings were referred as a matter of course to the master, to ascertain facts or sort out accounts before a final decree was made. These cases took up little of the time of the judicial officers, but could take up much time before the masters, where the crucial proceedings took place. The master, however, had no original power of his own, deriving all his power from the decree pronounced by the judge in court that referred the matter to him. Much time could therefore be wasted by the masters in trying to understand the meaning or extent of the reference to them; and if the decree was imperfect, or if more information was needed than the master was authorized to uncover, the matter had to be referred back to the court. Cases thus oscillated expensively between master and judge.¹⁰

The masters' offices themselves were chronically inefficient. Masters had no power to compel attendance, and tardy litigants could delay the process ad nauseam. The masters themselves did not hear cases de die in diem, but worked on a system of hourly warrants, the whole time of which might be taken up by the master reminding himself of the facts at issue. Since the masters did not sit in open court, but heard all matters in their private offices, both they and the solicitors were encouraged to be idle. The masters were assisted by their chief clerks, who did the bulk of the work of pure administration, including the passing of accounts. These men were assisted by their own clerks, but since they had to pay their staff out of their own pockets, they tended to be sparing with the number they hired. This meant that, in effect, the solicitors of the parties often drafted the reports. Moreover, although the work was delegated downwards, there were endless appeals upwards. Dissatisfied parties could turn from the chief clerk to the master and, if unhappy with the master, up to the court. No decision of fact was final: it might always go back to the Chancellor. It was therefore precisely in those areas where it had developed a unique function—settling complex transactions between multiple parties—that the structure of the court made it chronically inefficient, particularly in administrative suits. These cases brought the largest amount of money into the court, and they generally took up the least proportion of the judges' time: but they gave the court the bad name it had acquired. Dickens's Jarndyce v. Jarndyce, after all, was a case about a will, and the trusts to be executed under it.¹¹

Besides inherent faults in its structure, the Chancery also suffered from the ancien régime's corruption as an institution, which guaranteed that it would be plagued with expense. "Costs in the cause" could swallow up a large proportion of the sums sought to be recovered. Suitors in Chancery had to pay fees at every step in the procedure: which were for the most part appropriated by the officers themselves.¹² While the masters had received a proportion of their emoluments from salaries paid, since the mid-eighteenth century, out of the Chancery Suitors' Fund, most of their income came from fees. The fees each master received in 1797 ranged from £834 to £1,651, while their net receipts (including salaries and other incomes) ranged from £1,041 to £1,857. By 1830, when they were in receipt of a salary of £600, their total emoluments ranged from £3,213 to £5,022.¹³ The fact that the masters received a significant fee income led to suspicions that they extended the number and length of proceedings to gain more money.¹⁴

For many, the greatest abuses were to be found in the Six Clerks' office. These officers had a record-keeping function, receiving and filing all bills, answers and replications, and entering memoranda of them in their books, as well as signing all copies of pleadings made by the Sworn Clerks.¹⁵ In practice, the office was a virtual sinecure. While the Six Clerks had originally been the attorneys of the court, they had from the sixteenth century begun to delegate work to their under clerks (or Sworn Clerks), who in 1668 were admitted as clerks of the court.¹⁶ Over time, the Sworn Clerks became the solicitors of the clients, and the active work of the Six Clerks declined to a merely formal role. Indeed, in 1785, the Six Clerks agreed that only one of them would sit each day, to sign all the records on behalf of the rest.¹⁷ However, these were still lucrative offices: a return obtained in 1840 showed the Six Clerks receiving £1,622 in 1838 and £1,702 in 1839.¹⁸

Of more pressing concern to many was the role of the Sworn Clerks, also known as Sixty Clerks. Their role was to act as solicitors for the parties in court;¹⁹ and in the later eighteenth century, they were still active as such. However, by 1824, the solicitor James Lowe could observe, "I do not know a sixty clerk of any considerable practice as a practitioner, nor do I think that they know much business of the court; in consequence of which, the solicitors have now become the attornies of the suitors, and do their business."²⁰ In the first half of the nineteenth century, Sworn Clerks thus no longer acted as solicitors, but continued to transact the business over which they had a monopoly. This involved such tasks as inspecting documents for their accuracy, making out writs and entering demurrers and pleas, filing copies, and attending the master for the taxation of costs, as well as receiving and transmitting to solicitors all notices from time to time given in a cause.²¹ They kept records of all the proceedings in a cause and made copies of all documents for the parties. In effect, they were responsible for many of the functions done by attorneys at common law; and in practice they delegated the work to their own agents. However, Chancery solicitors were still obliged to act through a Sworn Clerk, and many found this tiresome and inconvenient. William Vizard, a solicitor of twenty five years' experience, said in 1824 that they were "not only perfectly useless, but exceedingly inconvenient," for their intervention led to delay, as well as increased cost, for work that the solicitor could do for himself.²² According to Vizard, of £81 he paid out to his Sworn Clerk in 1823, over £65 could be saved by abolishing the office and having the solicitor himself doing the work.²³

The number of Sworn Clerks fluctuated. They were known as Sixty Clerks because under a rule of court, no Six Clerk was allowed to have more than ten under clerks. However, in the eighteenth century, attempts were made to reduce their number, and by the early nineteenth century, there were less than thirty Sworn Clerks.²⁴ In practice, their income depended on how many solicitors each Sworn Clerk could get to use him: and of the Sworn Clerks "only about six to eight" were "generally employed to act as clerks in court."²⁵ However, these men had extremely lucrative offices. A return obtained in 1840 revealed that in 1839, the Sworn Clerks obtained £59,967 6s 9d in fees, of which they paid £8,205 4s 6d to Six Clerks. This included over £27,000 for copies made, which were charged at 10d per folio, though they cost only 1 1/2 d per folio to make, and over £14,000 in term fees, paid merely to keep the case alive from term to term.²⁶ As Pemberton told the Commons in 1840, a Sworn Clerk could receive £7,000 a year—more money than a Cabinet minister. But if it was a lucrative office, it was also a costly one. To qualify for it, a man had to be articled to a Sworn Clerk for five years, and undergo an examination. He then had to pay a fee for the office, which was freehold,²⁷ and the purchase price could be high. In 1820, Richard Mills contracted with the estate of the Sworn Clerk J. G. Shaddick (who had been pronounced a lunatic) to purchase his office: by 1840, Mills had paid off £3,000 in capital for the office and over £18,700 in shares of profit and interest.²⁸

With this structure, the early nineteenth-century court came to be associated with chronic delays and high costs. Nor was this only due to the ancien régime structure of the court and its officers. According to one mid-century commentator, the whole point of bringing many administration suits was to ensure delay and expense: "[m]ost of such suits originate with a residuary legatee, who wishes for delay; or with a solicitor, the next friend of an infant; or the cousin of an executor, who wishes for costs."²⁹ Defenders of the court could therefore always try to shift the blame for the evils of the court onto suitors and unscrupulous solicitors. At the same time, landowners who used the court—who were used to the costs of conveyancing—may have expected the court to be expensive, but expected accurate, high quality judgments in return. Such litigants would have found Lord Eldon an ideal judge. Nevertheless, if Eldon had his defenders, in the first quarter of the nineteenth century the Lord Chancellor's inefficiency in dealing with cases became a constant refrain from those critical of the court.³⁰ The early nineteenth-century crisis in the Chancery was not all Eldon's fault. The court had seen a decline in litigation in the eighteenth century, during which time lawyers and officers spun out the work they had to maintain income; and when the business revived in the early nineteenth century, these newly acquired habits were retained. However, early nineteenth-century reformers did not notice these long term trends, but sought to target the debate in political terms on the question of Eldon's abilities.³¹

2. The Argument over Eldon's Arrears

The years between 1810 and the death of Lord Liverpool saw the first sustained discussion of the Chancery's problems since the 1730s. During this period, there remained a great deal of disagreement over whether there was any Chancery problem at all, as opposed to an Eldon problem. Much discussion now centered on the issue of judicial personnel and whether the Chancellor needed assistance. Ultimately, the question of whether there were enough judges for the court and whether they were efficient enough was not satisfactorily resolved in this era (or in the ones that followed). But in the very process of addressing this question, reformers began to look more closely at the other areas of procedure and personnel. These problems were not resolved before 1830, but the base was laid for an expert-led reform process after 1830.

One reason for disagreement over the need for new judicial staff was that there were no authoritative guides to the state of business in Chancery. No long term statistical analysis of business before the Chancery was available until a return was produced in 1836, which itself was regarded as of doubtful accuracy.³² Until then, politicians engaged in the debate drew their information from returns periodically requested by MPs to give support to an argument or to give an opportunity to open debate; from statistics gathered by select committees; or from anecdotal evidence, often looking at particular cases. This meant that the information available was often in the form of a series of snapshots of Chancery's business. In addition, few debaters had a sophisticated grasp of statistical information at this time, given that it was still something of a novelty.³³

Even the information available could be problematic or open to manipulation. Official statistics produced in the early nineteenth century clearly revealed that the number of bills in Chancery had declined from Hardwicke's era to the 1790s, before reviving in the early nineteenth century to reach the level seen in the 1750s by the end of the Napoleonic wars. The number of bills filed then remained relatively stable through the 1820s (see Figure 1). However, this information could be selectively interpreted. For instance, in 1813, the Whig Michael Angelo Taylor argued that there were at present fewer bills in Chancery than in Hardwicke's era, to support a view that the Lord Chancellor did not need any assistance from a new judge. Ten years later, by contrast, Attorney General Gifford pointed to an increase in the number of bills filed in 1822, compared with the years around 1800–1805 to show that Eldon was not negligent.³⁴ In the era of Eldon's chancellorship, the figures for the number of bills filed in Chancery could thus be used as a weapon to defend or attack Eldon, depending on which years were chosen by the speaker for comparison.

Source: PP 1810–11 (194) III. 23 at p. 32; PP 1836 (370) XLIII. 7.

If reformers and their opponents cited the evidence of bills filed, this was nonetheless a problematic indicator of Chancery business, for only a small proportion of bills filed were set down and went to a hearing. Bills were often filed merely to bring parties to terms. In other cases, the matter was abandoned before the cause was heard, if the parties were unable to obtain evidence.³⁵ The problems of Chancery, many felt, were better displayed by the number of causes set down. Citing these figures would show both how busy the court was and how great were its arrears. The returns obtained in 1836 showed that the number of causes set down in Chancery was more or less stable in the later eighteenth century, rising slightly in the late 1800s before increasing significantly after 1813 and again in the mid 1820s. The number of causes heard and disposed of also seemed to increase, shadowing the number of causes set down; but the figures also revealed an increase in the number of causes (as well as exceptions, further directions, and pleas and demurrers) ready for a hearing at the end of Michaelmas term after 1813, showing peaks in the late 1810s and the mid 1820s (see Figures 2–3).

Source: PP 1836 (370) XLIII. 7.

Source: PP 1836 (370) XLIII. 7.

In many ways, however, statistics on causes could be as problematic as those concerning bills. To begin with, many of the causes that came before the court were short causes, which could be disposed of quickly; and most disputed cases were of a simpler type that went to the Master of the Rolls. Raw returns that stated the number of causes in the court often failed to show what business needed the Lord Chancellor's attention and how adequately he was dealing with it.³⁶ In addition, by the early nineteenth century, many questions in contested cases were settled on interlocutory motions or petitions, rather than on a hearing of the cause. It was often pointed out that the amount of interlocutory business had grown hugely; for many motions were in effect hearings or appeals and took much time.³⁷ While the decade between 1745 and 1755 saw 37,880 motions handled by the Lord Chancellor, the period from 1806 to 1816 saw 57,063.³⁸ But it was hard to make conclusive arguments on the basis of such information for the returns requested often did not distinguish motions of course (or simple motions) and the motions that were in effect substitutes for hearings. This difficulty with the available data and its interpretation meant that parties were often at odds over the nature of the personnel problem to be solved.

The question of whether the Lord Chancellor needed assistance was first raised in 1810, when Michael Angelo Taylor made a motion for a select committee to look at the mounting arrears in Chancery as well as the number of appeals in the House of Lords. Taylor's concern was that Eldon was sitting longer than any previous incumbent, yet arrears were mounting; and he asked whether the present machinery of the court was adequate for its work. He claimed that there were 140 causes currently in Chancery, which would take eight years to clear, as well as arrears in bankruptcy cases and in appeals in the Lords.³⁹ Why was the state of the Chancery a cause of concern in 1810? The statistics published in 1836 suggest that while there had been an increase in both bills and matters before the court over the previous decade, it was not a particularly striking one. However, these returns did suggest that the number of causes set down before the Lord Chancellor had fallen in the previous decade, while those before the Master of the Rolls had increased (see Figure 4). Anecdotal evidence supported the idea that more causes were being set down before the Master of the Rolls, the respected Sir William Grant, and that they were of a more complex character; and it was clear that the Lord Chancellor was under increasing pressure.⁴⁰ While Taylor saw this as a Chancery problem, the government correctly saw the increase of arrears to have derived from a growing backlog of cases in the House of Lords, resulting from the large number of Scottish appeals, as well as the arrival of appeals from Ireland. The matter was referred to a committee of the Lords in 1811, which concluded that the only way to secure more time for the Lord Chancellor to sit in the Lords was to give him assistance in the Chancery.⁴¹ It was felt that any other scheme—such as dividing the duties of speaker of the House of Lords and Lord Chancellor—might undermine the dignity of the latter office and leave the Lords with a judge less familiar than he might be with law.⁴² In this context, the battle lines were drawn between Whigs in the Commons and Tories in the Lords. On Taylor's motion, a select committee was appointed in the Commons in June 1811 to investigate the causes of delays in Chancery. It was dismissed by the Tory Lord Redesdale as "an inquiry wholly immaterial to the important subject originally discussed in the Lords" but one "well calculated to mislead those who had not considered the real grievance."⁴³ The government duly set out to frustrate Taylor's ambitions and to shield the Lord Chancellor from any criticism: the committee was packed by Taylor's political opponents, and when it was reappointed in 1812, the committee refused to interview barristers on the causes of delay and determined not to blame any individuals for the problem.⁴⁴

Source: PP 1836 (370) XLIII. 7.

In the debates preceding the creation of the office of Vice Chancellor of England in 1813, it appears that Whigs such as Taylor and Sir Samuel Romilly saw the problem in different terms from the government. For them, there was no need for more judicial staff. Romilly argued that if the House of Lords had difficulty getting through its judicial business, it should simply sit on more days and for longer hours. Nor was the presence of the Lord Chancellor necessary, for the House also included peers who had in the past held the office and thus were knowledgeable in law. Moreover, the appointment of a Vice Chancellor would create more problems than it solved. Where Redesdale contended that the new judge would simply relieve the Chancellor of simple and routine matters, leaving all major issues still to be decided by the principal judge, Romilly and his Whig allies argued that the change would make the Lord Chancellorship into a mere political position, which would undermine the law and weaken the profession, without solving the problems of delay in Chancery.⁴⁵ At the same time, the decisions of the Vice Chancellor would be appealed, so that the Chancellor might end up spending as much time in hearing appeals as he now devoted to the judicial business.⁴⁶ The Whigs were keen to stress the need for a single decision maker in equity, seeing it as essential to the system that the person administering it should "have all its principles and doctrines constantly present to his mind, and the remembrance of them kept alive by habitual and almost daily exercise." If the Chancellor became only an occasional judge, the jurisprudence would suffer; while if the bulk of original causes were heard by two men, they might develop two separate systems of equity jurisprudence.⁴⁷

In the view of the Whigs, such problems as existed in Chancery were largely due to Eldon's indecisiveness and "over-anxiety to do strict justice."⁴⁸ The Whigs therefore stressed that the quantity of business in Chancery had not grown since Hardwicke's day and that the increase in the Chancellor's workload derived rather from the lucrative bankruptcy business, which Romilly called a "modern excrescence" on the court. They therefore tentatively proposed separating the bankruptcy business from the Chancery.⁴⁹ That apart, the solutions proposed by the Whigs were short term ones. These included using the common law judges to assist reducing arrears in the Lords, as Mansfield had done, or even using the judges to assist the Lord Chancellor; creating a separate speaker of the Lords; or improving the efficiency of the Master of the Rolls, notably by increasing his hours of sitting.⁵⁰

Against this, the government disputed the notion that the problem of mounting arrears was temporary.⁵¹ They argued that, even if there might be objections to the appointment of a Vice Chancellor, these paled when set against the magnitude of the evil and the problems with any alternative plan. First, it was argued that any change to the House of Lords would be too innovative constitutionally, and might be derogatory of the privileges of the house. Second, it was said that in a commercial country, there were dangers in divorcing bankruptcy from the Chancellor's jurisdiction. Finally, it was pointed out that the Whigs had no clear plan or strategy: as with John Leach's comments on the Master of the Rolls, theirs were ideas plucked out of the air at the last minute.⁵² The bill to create a new Vice Chancellor was duly passed.

The debate was revived in 1819, and the following decade saw renewed attacks on the Lord Chancellor's conduct and renewed uncertainty over the need for more Chancery personnel. By the 1820s, there was general agreement among Whigs and Tories that the arrear of appeals before the Lord Chancellor was in excess of 100 cases,⁵³ a level reflected in the returns of 1836 (see Figure 5). However, there was little agreement over how long it would take to clear. Taylor claimed in June 1822 that it would require at least four years, given the Lord Chancellor's rate of progress. But Gifford claimed it would take only two.⁵⁴ Still seeing the problem in terms of the Lord Chancellor having too much to do—rather than simply being slow—the government once again looked at how to free some of his time; and in 1823 a select committee was appointed to reconsider the problem of arrears in the Lords, which were perceived to have been caused both by the length of Scottish appeals and the increase in Chancery appeals demanding the attention of the Lord Chancellor. The committee, chaired by Colchester, looked at questions relevant to both the Lords and Chancery and concluded that the procedure of the Scottish Court of Session needed reform, so that it would separate out questions of law and fact more clearly than was currently done. It made some recommendations about how to reorganize the working of the House of Lords in appeals, creating a rota of lay lords to attend. It also supported the idea of using a deputy speaker to assist the Lord Chancellor, and Gifford was duly appointed, contributing importantly to a decrease in arrears in the Lords.⁵⁵ This was in effect a reversal of the policy of 1813: whereas the answer to the pressure on El-don's time was then to give him an assistant to relieve him of his time in Chancery to spend more in the Lords, it was now proposed to give him an assistant in the Lords, to allow him to devote more time to Chancery.⁵⁶

Source: PP 1836 (370) XLIII. 7.

As before, the Whigs saw the problem at issue as a larger one affecting litigants in Chancery. For them, this was not merely a problem of arrears in appeals, but one of arrears throughout the court. While it might be true that the Lord Chancellor only heard appeals, it was felt that litigants with serious disputes would always wish to have his decision, but that the road to get to it was tortuous and long. Arrears in appeals, they argued, in effect translated into arrears in original causes. When Taylor raised the issue in 1819, he therefore stated that the number of original causes in the Lord Chancellor's paper had grown from 114 in 1811 to the present 289, adding that it might now take four years for a case to come to a hearing.⁵⁷ The Whigs argued that the creation of the Vice Chancellor's court had increased arrears without helping improve the court's efficiency. It was in effect "a turnpike toll" on justice: an extra court the parties had to go through before they could get the Lord Chancellor's views.⁵⁸ The growing and serious arrear was thus felt to be a combination of the need to go through another court before getting the Lord Chancellor's opinion and Eldon's own slowness when the matter arrived there. John Williams, who launched a series of strong personal attacks on the Chancellor, derided Eldon's work rate by pointing out that of 157 appeals "disposed of" between 1813 and 1821, 83 were struck out of the paper. On that basis, Eldon's rate of actually hearing cases was under ten a year. The arrear, according to Williams, resulted from Eldon's "learned doubtfulness," his search for an absolute degree of certainty that was not possible in moral reasoning.⁵⁹

However, the Tories challenged the factual premises of the Whig argument. In June 1823, Attorney General Gifford, Charles Wetherell, and Chancery Master William Courtenay all flatly rejected Williams's contention that there was an arrear of causes in the court.⁶⁰ A retired solicitor in June 1823 attacked Eldon's adversaries as not merely misinformed common lawyers, but as "men who have been professionally disappointed, or oftentimes professionally rebuked." When the Whigs talked of the serious arrear in Chancery, he pointed out, they made false statements, for "they reasoned on the delusive principle, that a cause set down to be heard is ready to be heard, and therefore it is in arrear." In only a quarter of cases set down, he argued, were the parties ready for a hearing. The author stated that where cases extended over a long period, it was often because of the nature of the suit or because parties were prepared to let them lie dormant. In any event, the delay caused by having to investigate complex matters accurately was "attended with very few, if any, very grievous inconveniences to the parties." This writer defended Eldon's efficiency, noting that he made 10,686 decisions (excluding motions of course and consent causes) between 1813 and 1822.⁶¹

While there was much dispute about Eldon's productivity, what is of note in the 1820s is the continuing absence of a clear program of reform from the Whigs. This is apparent from the often inconsistent positions put forward by their most persistent spokesman, Taylor.⁶² For instance, although one of the standard Whig criticisms of the appointment of the Vice Chancellor in 1813 was that it ended the Lord Chancellor's hearing of original causes, and made him only an appeal judge, by May 1821, Taylor suggested creating an equity court of four judges, with the Lord Chancellor being part of the court, but only hearing appeals. The advantage of this, he said, was that it would free the Chancellor for the bankruptcy jurisdiction—the very jurisdiction that he had earlier said should be shed. Six years later, in 1827, and again early 1828, he once more called for a separation of bankruptcy from Chancery, though he also argued that it might be better to appoint an additional equity judge, whose job would effectively be to handle bankruptcy.⁶³

3. Reorientating the Debate: The Chancery Commission

Although the debate over Eldon's conduct proved inconclusive, it provided the occasion for a close investigation of Chancery procedure, which would ultimately prove more fruitful. By February 1824, Sir Robert Peel for the government conceded that there was an arrear to be addressed, which he attributed to a rise in business consequent on economic growth. He defended Eldon's conduct strongly and noted "that, from whatever cause, the increase of business in the court of chancery, of late years, was too great for human strength to cope with"; and he announced that there had to be a full investigation of the matter, which would be done by a royal commission.⁶⁴ Where John Williams (whose motion had promoted Peel's announcement) had wanted a select committee to investigate, the royal commission was one of experts. The appointment of such a commission achieved the government's goal of deflecting attention away from the Chancellor's conduct, toward the minutiae of equity practice. Eldon himself made it clear to Peel that "the innumerable matters, which, in Equity Causes, retard decision" could only be understood "by persons skilled in Equity practice."⁶⁵ The Lord Chancellor was duly appointed to head the commission, which included the senior Chancery judges and officials: the Master of the Rolls (Gifford), the Vice Chancellor (Leach), and two masters in chancery (Courtenay and Cox), as well as Redesdale (former Lord Chancellor of Ireland) and the ultra conservative Solicitor General, Sir Charles Wetherell. According to Whig publicists, the commission was set up to stifle discussion and protect Eldon. Taylor later claimed he had been left off the commission since he was seen as a "plaguy, troublesome, litigious fellow" who would have asked too many awkward questions.⁶⁶

The terms of reference of the commission were narrow, the commissioners being asked to consider potential alterations in the court's practice. Importantly, it was not authorized to look at whether the political and judicial functions of the Lord Chancellor should be separated. The commissioners themselves felt that it would be inappropriate to scrutinize the merits of Eldon's own conduct—the very thing Whigs were most concerned about. The commissioners saw their primary task as devising improvements in Chancery practice: any alteration in the structure of the courts would have to be considered in due course, when the effect of these improvements could be measured.⁶⁷ Nevertheless, the importance of the commission should not be underestimated, for it proved much more fruitful than was initially realized by its opponents. Its members included more "liberal" lawyers, such as J. H. Merivale and Stephen Lushington, and as the meetings progressed, they began to get the upper hand. If a whitewash had been intended, men like Merivale ensured that progressive witnesses—such as Henry Bickersteth—were called, who helped to raise wider issues and set wider agendas. When the report was issued in 1826, the divisions of the commissioners became evident; for the biggest attack on the report came from Redesdale, who refused to sign it. Redesdale argued that most of the chronic problems in Chancery were the fault of solicitors, not the system; and he noted that, given the complication of law and society, delay was a necessary evil in a lawsuit. Merivale replied in a pamphlet whose arguments went far beyond those given in the report. Indeed, if the system was as bad as Redesdale seemed to admit it was, he wrote, there could not be much justification for retaining a separate equity jurisdiction.⁶⁸

The commissioners were cautious but reformist. They felt that care needed to be taken not to pull things down before it was known what to put in their place; but they felt confident that more fruit would come in later years from the ideas aired before the commission.⁶⁹ Although they did not consider whether a new court should be created or a new judge appointed, they did question a number of witnesses on the judicial personnel of the court. On this issue, the barrister Lancelot Shadwell famously observed that the court's business was so great that "if you had three angels," you could not get through it. Bickersteth similarly felt that the present number of judges was not sufficient. For him, the obvious solution to removing arrears was to increase the number of judges, not to remove particular areas of jurisdiction such as bankruptcy.⁷⁰ The report was itself very cautious on the question of personnel and recommended that the Vice Chancellor's court should be given an independent jurisdiction, such as that possessed by the Rolls court. Rather than recommending new judges, the commission's aim was to relieve the judges from the pressure they were under by "restraining the limits beyond which the spirit of litigation should not be suffered to proceed," for instance by limiting the scope for appeals. The commissioners also spent much time looking at the issue of bankruptcy jurisdiction, but reported that, given that bankruptcy disputes could generate very complex questions of law, it was desirable that the final jurisdiction should still lie with the Lord Chancellor.⁷¹

The Commissioners spent more time examining procedural matters largely ignored in the party-political debates. They made numerous suggestions on how to speed matters up prior to the final hearing. Aware that these recommendations might seem minor, they pointed out that the system of practice—and the efficiency of the court—rested on a series of minute regulations. In their view, many of the orders that regulated the court's proceedings were ill-adapted to the type of business generated in a modern commercial society. Furthermore, delay was often due to the carelessness or bad practice of the parties, which could be resolved by small procedural changes. Their object 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."⁷² Many of the recommendations were therefore designed to decrease the opportunities for parties to delay at various stages in the suit. The commissioners also discussed the handling of evidence in Chancery, a topic that would be discussed again at great length after mid-century. On this issue, they had no answers: admitting that viva voce evidence was preferable to paper trials, they felt that the introduction of such a system into the current Chancery, without creating a much larger structure and introducing a common law style system of circuits, would only add to delay and cost.

The Commissioners also looked at some more structural problems. In particular, much attention was devoted to the masters' offices, a subject that had also been too dry for party-political discussion. They proposed practical reforms in their organization—including recommending that masters set timetables for the conduct of cases and keep accurate records of every step of the proceedings in every case in a single book.⁷³ They also recommended that the master should have the power to take a more active role in cases and to proceed ex parte more frequently, when a party was neglecting a cause. In these areas, the commission was setting out an aspiration—that the master could force the pace in litigation— that was to be repeated often in later years. A second question concerned the more judicial powers of the masters. The commission recommended only very minor powers for the masters: in particular that their reports on references for scandal or impertinence, or for the insufficiency of answers, should be final, unless the master certified the case as fit for an exception. This reflected the view of a number of witnesses, including Shadwell and Bickersteth, who were careful not to suggest that anything substantially connected with the conduct of the cause should be left to the master.⁷⁴ It is notable that in this process, the commissioners considered a number of questions that would be debated again over the next decades, including whether there should be a court of masters.⁷⁵ But given the cautious opinions of men like Bickersteth, the commissioners themselves took a conservative approach.

A third question considered in relation to masters was whether they should be paid by salary or fee. The commissioners agreed that, since the principal source of their remuneration was making copies of proceedings in their offices, a perception had developed that they multiplied unnecessary proceedings to increase their incomes. They therefore recommended that the masters should not have any further interest in receiving money paid for copies, but should be remunerated by a salary. Nonetheless, insofar as much of the business of the court was administrative business done as a service for the suitor, they felt that it would be unjust to the public to discontinue the charging of fees to the suitor. Moreover, they felt that insofar as the master performed these services, he should still receive some fees.⁷⁶

The masters were of course not the only recipients of fees for copies. Yet the commissioners appeared much less concerned by the presence of the Six Clerks' office. Some witnesses, such as William Vizard, loudly condemned these offices as useless. However, even men like James Lowe, who felt that the number of Six and Sworn Clerks needed pruning, still admitted that "there will still be wanting men to office copy the records in the Six Clerks office."⁷⁷ The commissioners ultimately looked favorably on them, considering that a body of practitioners familiar with the practice of the court had to be retained to maintain it in a uniform state.⁷⁸ Some commentators subsequently argued that the Six Clerks and Sworn Clerks had been saved by political manipulation;⁷⁹ and Merivale himself later admitted that the commission had been misled—in particular by the evidence of the Sworn Clerk Richard Mills—into believing that the level of costs imposed on a suit by this office were relatively minor.⁸⁰ At the time, he had favored caution in reforming these offices, explaining that "time, which has already reduced the number of clerks actually practising in the office, from sixty to ten or a dozen, may be looked to as paving the way for its abolition, with possibly greater security than would be found consistent with the adoption of any more immediate proceeding."⁸¹ If the Chancery Commission looked into the issue of Old Corruption in the court, it nevertheless made only a cautious set of recommendations for its reform, for its attention was perhaps more focused on the problem of delay than cost.

In a number of other areas, the commissioners raised and discussed issues that would be debated for the next three decades. They supported the use of a simpler form of pleading in administrative suits and proposed that where the question for the court was one of construing documents, the parties should be able to proceed by petition, rather than by bill and answer. The commissioners also felt that in a number of cases, it was unnecessary to have all the parties before the court and favored the use of greater discretion by the court in these areas. In these cases, the commissioners identified a problem often debated by reformers, but made only weak recommendations, in the belief that the court already had the powers it required to speed up justice.⁸² Of more immediate consequence, they recommended an investigation into the law and practice of conveyancing, to help simplify the law, a call that resulted in the appointment of the Real Property Commission. If the positive recommendations were limited, the issues raised and considered—both in the report and the evidence—were broad indeed.

In May 1826, Sir John Copley MR brought a bill to implement the recommendations of the Chancery Commission, though the bill was not pressed. In the following year, he brought another bill, but rejected the Chancery Commission's ideas that the masters' decision on exceptions should be final, this proposal having met with hostility from the profession.⁸³ Once more, the bill was not pressed, for Copley had come to the view that the changes could be made by order; and in 1828, as Lyndhurst LC, he issued a series of orders making procedural reforms based on its propositions.⁸⁴ These reforms immediately resulting from the commission were seen by many more radical reformers as inadequate. The focus on speeding up the progress of suits prior to a hearing seemed to many to miss the real problem that "when causes were ready for hearing there was not a sufficient number of judges to hear them." As Taylor put it, cases failed to progress because the Lord Chancellor "was a political judge, intimately connected with a party, and therefore it was impossible for him to attend to his judicial duties." The Chancery Commission report was a "tissue of nonsense" that, Taylor felt, had not addressed these fundamental problems.⁸⁵

Despite these protestations, it is evident that after the resignation of Lord Eldon in April 1827, debate over Chancery reform became far less party-political and more informed by questions set by the Chancery Commission. Moreover, by May 1829 Lyndhurst agreed that while the recommendations of the commission had improved the efficiency of the court between the commencement of a case and its being set down for a hearing, it did not solve the problem of Chancery's efficiency after the cause had been set down;⁸⁶ and he returned to the issue of reform. On the other side, by June 1830, even John Williams admitted that the Chancery Commission had not received the praise it was due.⁸⁷ With Eldon's departure from office, Chancery reform was to become a much more technical, nonparty issue; and (as shown in Part II), the main focus of attention for reformers was now the "internal" and procedural reforms that the commissioners had shown to be necessary.

4. The Problem of Arrears and Judicial Personnel after 1827

Although the main architects of Chancery reform at mid-century were practitioners building on the foundations of the Chancery Commission, political debate also continued on the two allied issues dominating Eldon's era: whether the Lord Chancellor had too many functions, and whether new judicial personnel were needed to handle the business of the court. The question of the Chancellor's functions agitated many minds especially in the 1830s. However, attempts to reform the office faltered, since, while many agreed that he had too much to do, they could not agree on what parts could be removed. Moreover, the issue was only regarded as a pressing one when the Lord Chancellor felt under pressure from business. From the late 1830s, more attention was devoted to the question of the ability of the court to handle its caseload with its current judicial staff; but as in Eldon's era, governments continued to lack a coherent approach to this question, since they remained unsure about the level of the arrears. In the event, arrears only appeared urgent at times when illnesses on the bench provoked a large backlog, prompting solutions not fully thought through in advance.

(i) 1827–30

Uncertainty over arrears was evident from the late 1820s. In these years, reformers seemed divided over whether Eldon's removal from office had solved the judicial problems of the court, or whether there was a deeper structural problem that still required the appointment of new staff. When in May 1827 Taylor called for a separation of the bankruptcy business, Scarlett AG denied that any part of the jurisdiction needed to be subtracted, since there were now three efficient Chancery judges. Brougham, a turncoat supporter of Canning's ministry, also dismissed calls for a separate court of appeal in bankruptcy, saying that the problem lay not with the system, but with the men who had presided in it.⁸⁸ Similarly, when C. P. Cooper argued that the only way that causes could be heard within a reasonable period after being set down was if a new judge were appointed, his views were challenged by the reformist Jurist, which doubted whether arrears were rising and argued that "a temporary commission of duration sufficient to reduce the arrear of causes to a year, or a year and a half, below its present amount, would perform all that is yet proved to be wanting."⁸⁹ Clearly, this was an issue on which men were apt to change opinion: Edward Sugden, who opposed creating new judges in 1828, favored the idea by 1830; Taylor, who in 1828 seemed in favor of the project, opposed it two years later.⁹⁰

The issue of the Chancery's judicial personnel was further complicated by renewed consideration of the equity jurisdiction of the Exchequer. The question of whether to merge the equity jurisdictions of Exchequer and Chancery, or whether to use the former court to relieve the latter, had been in the air for some time.⁹¹ The equity side of the Exchequer had been losing business since the 1810s;⁹² and in 1829 the common law commissioners recommended that it could only be an efficient common law court if the equity business were removed.⁹³ In this context, Lyndhurst brought a bill to create a fourth Chancery judge, who would be able to take on the equity jurisdiction of the Exchequer. He also wanted to improve the efficiency of the Master of the Rolls.⁹⁴ However, the measure was postponed, for as Peel put it, "it formed only a part of a general system which would be introduced with respect to that court."⁹⁵ In the event, it would take another decade before the equity jurisdiction of the Exchequer was removed.

In the spring of 1830, Lyndhurst again proposed appointing a new Chancery judge, at a time when each common law court was to be given an additional judge. Yet he was far from convinced of the need for more judicial staff, for he suspected that if the current backlog of cases were once removed, "the present establishment of the Court of Chancery might be sufficient to keep down the arrear in future."⁹⁶ The proposal to create a new judge attracted strong opposition, which included Leach MR and Shadwell VC, who (in striking contrast to his earlier views) now felt the current personnel could cope.⁹⁷ Opponents notably also included Eldon, who wrote to Lyndhurst in 1830, asserting views more usually associated with Romilly. Observing that the arrears did not seem especially high, he wrote,

There has been given to the Chancery in my Time a Vice Chancellor—an appointment, which for some years, I think I may safely say, retarded my progress at an enormous Expense to my Suitors—This, whatever was represented to the contrary was no favorite project of mine but of Liverpool & Redesdale. I foresaw for a time that that would happen, which did happen—hardly anything passed for some Time, in the Vice Chancellors Court, and under different Vice Chancellors, which was not made, almost instantaneously, the Subject of Appeal.⁹⁸

Brougham also objected to the bill, but on different grounds. He felt that instead of relieving the Chancellor (who could get through all the work if he wanted to), the suitors should be relieved by reform in the masters' offices.⁹⁹ This advocated the kinds of procedural reform suggested by the Chancery Commission, which the Whigs had earlier derided. With the political focus of Eldon's personality removed, then, politicians found themselves at a loss over how to approach the hitherto central question of judicial personnel.

(ii) 1830–41

In the 1830s, the question of the functions of the Lord Chancellor was reopened. Although the notion of separating his political and judicial functions had been debated since Eldon's day, the initiatives made by Lord Chancellors in the 1830s aimed more at providing additional time for their political functions than curtailing their judicial ones. Reforming Chancellors were clearly more concerned by potential pressures of business than with developing a principled plan reflecting a separation of powers. But as a result, their plans often lacked coherence, and they were content to let them fall.

In 1833, Brougham introduced a bill to appoint a chief judge for the Chancery, and a Court of Appeal in equity (for both Chancery and Exchequer), to be made up of the three existing Chancery judges and an Exchequer baron. His aim was to relieve the Chancellor of the ordinary business of the court, while preserving intact his political functions, and his functions as an appeal judge in Chancery and the Lords.¹⁰⁰ There was opposition to the measure, for it had the potential to remove many judges from their courts to hear appeals (generating arrears in ordinary business);¹⁰¹ and with arrears falling, he dropped the project. Both in and out of office in the 1830s, Brougham repeatedly spoke of separating the judicial and political functions of the Chancellor;¹⁰² yet he did not envisage a complete separation, for his "political" speaker in the Lords was to continue to be an appellate judge.¹⁰³

In 1836, Cottenham LC also proposed reforms in his own office. He noted that pressure of business both in the Lords and in the Chancery had led to "a sort of contest between the two jurisdictions as to which should have the services of the Lord Chancellor for the time being."¹⁰⁴ This needed addressing. At the same time, he pointed out that arrears in Chancery appeals had fallen; so that "if there were a Judge whose sole duty should be to attend to the Court of Chancery, that judge would not only be able to dispose of all the appellate cases that could be brought before him, but would also have it in his power to devote a large portion of his time to the hearing of original business."¹⁰⁵ Like Brougham, he felt that this called for a reorganization of the court, rather than a significant expansion of its personnel; and he sought to create a permanent Chief Justice for the Chancery, removing the Chancellor from that court and allowing him to preside in the Lords, which would sit as a court all year round.

Cottenham's ideas received a critical response from the law lords, who saw the proposal not as one to separate the judicial and political functions of the Chancellor, but only to remove him from the Chancery. In response, Langdale put forward a more principled plan, arguing that the Chancellor should be limited to original proceedings in Chancery and that a Lord Keeper, holding the Great Seal, should carry out the political functions of the office, taking particular responsibility for law reform. He also proposed that the Lords should constitute a court of appeal for all cases and be staffed by permanent judges consisting of a Lord President and Lords Assistant. Though perhaps the century's clearest proposal for reform of the Chancellor's role, Langdale's arguments also met with a hostile response. Romilly's views from 1813 were now rehashed by conservative defenders of the status quo. Dismissing Langdale's ideas as Benthamite theory out of tune with practice, Abinger noted that the Chancellor would lack authority in the Lords unless he had judicial power and added that, without being a regular judge in Chancery, he would lose his mastery of the law.¹⁰⁶ Opposition was amplified by Sugden and echoed in the press.¹⁰⁷ With reformers divided and conservatives determined to resist a politically accountable minister of justice without judicial functions, the proposal stalled.

Henceforth, the issue of reforming the judicial personnel of the court was much more closely related to perceived problems with arrears than with the political issue of the Chancellor's functions. In 1836, Cottenham had been largely unconcerned by the issue of arrears. By 1839, however, the problem of arrears was once more on the agenda, after practitioners claimed there were 850 cases standing for a hearing in Chancery, some of which had been ready for three years.¹⁰⁸ In the debates that ensued, commentators proved themselves much more sophisticated in their handling of statistics than they had in the 1820s, when a high level of arrears had last been the subject of political debate. They were able to show not merely that the Chancery was inefficient in dealing with litigation, but that its slow process prevented litigants from coming to the court in the first place. "[W]hen you get to a certain Point in the Delays of a Court," James Wigram pointed out in 1840, "those Delays alone operate as a Choke, if I may so call it, upon the Public, however urgent the Demand for Courts of Justice may be." This analysis suggested the need for greater judicial strength, regardless of the issue of the Chancellor's functions.¹⁰⁹ This argument was bolstered by a detailed examination of the nature of Chancery litigation made by the solicitor Edwin Field, who drew his figures directly from the Registrars' books. They revealed what was hidden in the parliamentary returns: notably how many adverse (as opposed to short) causes went to Chancery and how many of these were actually heard by the judges. He showed that in the late 1830s, an average of 1900 bills were filed each year for original causes, of which 1366 were adverse. Of these, only 300 were set down for a hearing, and only 178 heard. One thousand sixty-six cases were compromised before the period of setting down, and 122 more before the hearing. Field pointed out that the equivalent of one judge's work disappeared between the point of setting down a case and hearing it. As a consequence, parties often tried to get a judge's attention through motions, which added to the delay for hearing causes, and costs mounted as term fees had to be paid. In his view, four and a half more judges were needed, merely to handle the current business of the court. But since the new personnel might attract new business, more judges still might be necessary.¹¹⁰

It was not only the Chancery practitioners who saw the need for more judges. Noting that there had been constant arrears for twenty years, save when Brougham and Leach were hearing cases in the early 1830s, Lyndhurst told the Lords the system needed to be changed, rather than the judges.¹¹¹ He proposed appointing a permanent equity judge to the Exchequer and suggested the appointment of another Chancery judge. While he had changed his mind on uniting the equity jurisdictions of the Chancery and the Exchequer,¹¹² other reformers were now much more willing to look at the possibility of a merger, for the Exchequer's effectiveness as an equity jurisdiction had diminished in the 1830s. Reforming the equity side of the Exchequer had been much debated since the 1810s, but largely in isolation from Chancery matters.¹¹³ Even after the common law reforms of 1830, which led to a large increase in common law business in the Exchequer, there was little coordination on reforms in the two courts. Thus, when Brougham proposed a Court of Appeal for both equity jurisdictions, he failed to take up William Vizard's advice to separate the common law from the equity judges in the Exchequer and to merge the equity courts.¹¹⁴ Similarly, when Cottenham took up the issue of reform again in 1836, he decided not to address the issue of the Exchequer jurisdiction until the result of his Chancery reforms could be judged.

Nonetheless, with mounting Chancery arrears by the late 1830s, and an ineffective equity side of the Exchequer, it became clear to the government that steps were needed to reform both courts. In Cottenham's view, the Exchequer's jurisdiction was doomed since "[t]he system of having one court for the administration both of equity and of law was not consonant with the spirit of these times." A bill was duly introduced in the Lords in March 1840 to transfer its equity business to the Chancery and to create two new Vice Chancellors. However, the bill was not the result of a clearly coordinated strategy of reform. For instance, Abinger CB, who had not been consulted, told the Lords that he "considered that if that court were abolished, it would be one of the greatest injuries to the public that could be inflicted." In an age of retrenchment, there also remained considerable uncertainty over how far to expand personnel. Cottenham suggested that there should be two new judges appointed and that the Master of the Rolls should be made vice president of the Judicial Committee of the Privy Council, sitting in that court for fifty days a year.¹¹⁵ When the matter was referred to a select committee, there was much discussion of whether one new judge might suffice, though most witnesses rejected this idea. Yet despite strong professional opinion in favor of more judges, some in Parliament—including Brougham —remained cautious, challenging the assumptions of those arguing for significant judicial expansion.¹¹⁶ The bill was withdrawn at the end of July in the face of opposition from Sir Edward Sugden in the Commons (who was concerned that the bill did not consider the issue of appeals in the Lords) but was reintroduced in the following year. Sugden maintained his opposition, challenging the interpretation of the arrear provided by witnesses to the select committee and arguing that a more systematic reform of the masters' offices was needed before new judges were appointed.¹¹⁷ In the debates that followed, there was still disagreement over whether one judge should be appointed or two. The final decision—taken in 1840—was a compromise: to appoint two new Vice Chancellors, only one of whom would be reappointed without the need for fresh legislation.¹¹⁸

(iii) 1841–51

With the appointment of the two new Vice Chancellors, the problem of arrears—and with it the issue of the various tasks of the Lord Chancellor—fell into abeyance once more. Early in 1842, Lyndhurst LC told Peel that the arrears would soon be disposed of and "every cause will be heard as soon as it is ripe for hearing."¹¹⁹ With its new personnel, the Chancery was indeed able to hear more causes than previously, averaging 1700 a year from 1846–49, compared with 1249 for 1834–39 and 959 in 1819–24, at a time when other matters to be dealt with in court were also growing exponentially.¹²⁰ However, arrears began to rise again after Cottenham fell ill in 1849. The problem was exacerbated in 1850 with the death of Shadwell VC and Wigram VC's retirement, for while the former (appointed under the 1813 act) could be replaced, the latter (appointed under the 1841 act) could not. It was now argued that the arrears in Chancery exceeded the level that had caused the appointment of the new Vice Chancellors.¹²¹ Given the mounting arrears of appeals, there was particular concern at the ability of the Chancellor to handle his judicial business, both in Chancery and in the Lords.

In this context, it was evident that further structural changes were called for, in both jurisdictions. Some in the profession looked for extensive reforms. In 1851, Richard Bethell, for instance, wanted "at least three more working Judges (Vice Chancellors) in Equity" and "an Appellate Tribunal in Chancery formed of two of the Vice Chancellors taken in rotation," with "all causes being carried at once by appeal to the House of Lords, which must be made a cheap & easily accessible general Court of Appeal for the whole Empire, having a proper staff of Judges presided over by the Lord Chancellor, absorbing the business of the Privy Council & sitting regularly."¹²² With concern over arrears in Chancery and the Lords mounting, the issue of the Lord Chancellor's functions was revived; but the government proved less ambitious than it first promised to be. When Cottenham retired in June 1850, the great seal was briefly put into commission while it was again considered whether to divide the functions.¹²³ Once more, the profession was hopelessly divided on how to proceed; and all the old arguments were replayed. Sir John Romilly, for instance, impressed on Russell firstly "the importance of making the House of Lords the great final Court of Appeal & secondly which is auxiliary to the other that the Principal Judge of Appeal must also perform judicial duties other than mere appellate ones."¹²⁴ Wigram VC told Langdale that he felt that the judicial head of the Chancery should be judicial head of the Lords as well, but have no political functions.¹²⁵ Brougham meanwhile resurrected his bill to create a Court of Appeal in Chancery, though largely for the purpose of stimulating debate, since he admitted that he was himself unsure what to do.¹²⁶

Initially, the government "resolved upon a separation of the office of Lord Chanc[ello]r into two offices, one comprising the political Office, the Appellate Judgeship in the H[ouse] of Lords, & the presidency of the Judicial Committee of Privy Council; the other solely consisting of the duties at present performed by the Lord Chancellor in the Court of Chancery."¹²⁷ But by the time Russell brought in a bill in March 1851, he had appointed Wilde as Lord Chancellor (with the title of Lord Truro), and changed his plan. Although he stressed that the main problem to be tackled was not the acknowledged arrears in Chancery, but the position of the Lord Chancellor, his plan maintained the unity of the judicial and political offices and merely sought to relieve the Chancellor from some equity business by creating a Court of Appeal in Chancery, in which he would sit with the Master of the Rolls and a common law judge. The latter two could hear cases in the absence of the Chancellor.¹²⁸ Truro was insistent that the Lord Chancellor could not be removed from the Chancery, since he needed to be in a position to advise the government on the appointment of judges.

In a manner typical of nineteenth-century law reform, the approach was piecemeal and lacked coherence. The legislation to create a Court of Appeal was dealt with separately from that empowering the reappointment of the third Vice Chancellor, while it was decided also to handle the Lords appellate reform separately. Russell's bill faced strong opposition from those who pointed out that if the Master of the Rolls were on the court, both his court and that of the Lord Chancellor would be closed when any appeal was heard. The government's initial thinking had been influenced by an awareness that the Commons would not vote the money for new personnel; but they now withdrew the bill and replaced it with one that proposed two wholly new judges for the court of appeal, who would sit with the Lord Chancellor, to decide cases appealed from the Vice Chancellors or the Master of the Rolls. Even during the bill's passage, there continued to be uncertainty over the very need for such legislation; but the bill passed and the new Court was created.¹²⁹ This act, making the most important changes to the judicial personnel of the court, was effectively passed in a hurry, at the same time that a royal commission was looking into broader questions of Chancery reform.¹³⁰

(iv) 1851–73

After the procedural reforms of 1852 (to be examined in Part II), complaints about the evils of Chancery's delays diminished. Judicial Statistics, which became more comprehensive after 1859, revealed a more efficient court. In the 1860s, an average of 3207 suits were instituted annually, of which an average of 2010 were set down each year and 1823 disposed of. In this era, politicians saw the common law courts as more a cause for worry than the Chancery, which was now praised in comparison.¹³¹ When Vernon Harcourt in 1872 attempted to revive the public's interest in Judicature reform, pointing out evils caused by the law's delay, he observed that the Chancery was "far in advance of the Courts of Common Law" in dispatching business: "[t]his is simply due to its better organization."¹³² Indeed, in the mid 1860s, there were calls for retrenchment on the Chancery bench, both at the level of judges of first instance (by making the Master of the Rolls into an appellate judge)¹³³ and in the Court of Appeal.¹³⁴ Many lawyers, however, remained concerned about the court, for while the business transacted before the judges appeared largely static, that done in the chambers of the new clerks had grown significantly.¹³⁵ In the late 1860s, the profession reacted with alarm at what they saw as a "famine" of judges: in their view, more judges were needed to carry out much of the business currently transacted by their clerks.¹³⁶

As had so often been the case, governments keen on keeping a tight rein on spending remained reluctant to increase judicial staff. In 1870, the government failed to fill the vacancy on the Court of Appeal occasioned by the death of Sir Charles Selwyn, waiting instead to see the fate of its projected reforms. This led to howls of protest from the profession, which complained of mounting arrears in that court.¹³⁷ In the debates over the Judicature reform, the profession returned to what it perceived to be a crisis of personnel and mounting arrears.¹³⁸ They gained support in April 1873 from Malins VC who observed that there was more business in his branch than two men could do.¹³⁹ At the same time, Lord Cairns complained that the Supreme Court of Judicature Bill, which allocated to the Chancery Division the four existing judges of first instance, in effect reduced the personnel by giving the Master of the Rolls a place on the Court of Appeal.¹⁴⁰ In the Commons, Sir George Osborne Morgan insisted that more equity judges were needed, both to keep down arrears and to supply enough personnel to allow the project of fusion to be carried through properly.¹⁴¹ But such alarmist cries did not impress a Lord Chancellor and law officers who were skeptical over whether an arrear in fact existed and who feared for the efficiency of the court if more judges were appointed than were needed.¹⁴² The debates over the Judicature Bill thus failed to resolve the age-old problem of the number of equity judges needed: instead, it was left in the hands of the government to make such future appointments on the new unified court as was felt would be promote the project of fusion.¹⁴³

The 1870s also saw renewed discussion of the Chancellor's functions.¹⁴⁴ In 1872, Vernon Harcourt urged that the political and judicial functions of the Chancellor should be divided.¹⁴⁵ Nonetheless, at the time of the Judicature Bill, Cairns opposed removing the Chancellor's political functions since they gave "breadth to the views of the holders of the G[rea]t Seal, & to their administ[ratio]n of equity, not found in the heads of the other Courts."¹⁴⁶ In the debates over the bill, he did his best to ensure that the Chancellor should remain part of the High Court as head of the Chancery Division. In his view, this was essential for two reasons. First, he felt that the Chancellor's political role had served the court well, for it had allowed "changes and alterations" to be made "in the mind of that Court more rapidly than could have been the case if those changes and alterations had to depend on the ordinary duration of Judicial life."¹⁴⁷ His position was secured by tradition; but if he were severed from the court, his political role would need to be independently defended, which might be difficult. Second, Cairns saw the Chancellor's presence in the court as giving a kind of moral support to the equity men. In this view, he was supported by members of the equity bar, who protested that equity jurisprudence had been maintained by the paramount authority of the Chancery, whose essence derived from its association with the Chancellor.¹⁴⁸ For Chancery men, who felt under siege, given the numerical predominance of common law judges, the Chancellor's position was vital to ensure the ultimate supremacy of the principles of equity.¹⁴⁹ Cairns's views prevailed; and the office of Lord Chancellor, combining legislative, judicial, and executive functions, would outlive the twentieth century, as well as the nineteenth.

In Lord Eldon's era, while political debates over Chancery reform centered on the arrears and delays in the court, there was little political agreement about whether those arrears were caused by the Chancellor's own failings, the nature of his office, or the increasing demands of litigants, and the debates often remained inconclusive. After his departure from office, reformers continued to debate the multiple functions of the Chancellor and whether the Chancery required more judges. Like their predecessors, they often remained uncertain about whether (and how) the functions of the holder of the Great Seal should be divided and whether there was such a pressure of litigation as to require an expansion of personnel. The expansion of judicial personnel that was effected in 1841 and 1851 thus resulted not from principled and coherent programs of reform, but from sudden realization that the court could not manage the amount of litigation coming to it. In effect, for much of the mid-century, politicians did not see the shortage of judicial personnel or the mixed functions of the Lord Chancellor as being urgent problems. Yet it was evident to most litigants and practitioners in the 1830s and 1840s that the unreformed Chancery was indeed in need of urgent attention, and much was done to address its problems. As shall be seen in Part II, the crucial reforms that transformed the Chancery did not develop out of high political debates about the role of the Chancellor and his judicial assistants but grew from the technical and procedural questions which had been raised by the Chancery commission, and taken up in the 1830s by professional bodies and pressure groups.

Michael Lobban is professor of legal history at Queen Mary, University of London <m.j.lobban@qmul.ac.uk>. He would like to thank Patrick Polden and Henry Horwitz, as well as the anonymous reviewers for this journal, for their helpful comments. Earlier versions of the article were delivered at University College London in 1998, at the Conference of the American Society for Legal History in 2002, and at the Institute of Advanced Legal Studies in London in 2002. The comments and suggestions of participants at those events are gratefully acknowledged. Part II of this article will appear in Law and History Review 22.3 (Fall 2004).

Notes

^1. William Carpenter, Chancery Reform. The Equity Jurisdiction of the Court of Chancery; a lecture (London: Effingham Wilson, 1850), 7. See also W. C., A 'Bleak House' Narrative of Real Life; being a faithful detail of facts connected with a suit in the Irish Court of Chancery, from the year 1826 to 1851 ... to which is added (by permission,) Letters on Chancery Reform, by Locke King, Esq., MP (London: H. Elliot, 1856).

^2. See Law Magazine 44 (1850): 34; A. H. Lynch, A Letter to the Rt Hon. Viscount Melbourne, on the present state of the Court of Chancery and appellate jurisdiction of the House of Lords (London: J. Ridgeway and sons & A. Northcroft, 1836), 36.

^3.Parliamentary Debates, third ser., 55: 1310.

^4. See [John Mitford], A Treatise on Pleadings in Suits in the Court of Chancery by English Bill (London: W. Owen, 1780), 24–32. The standard nineteenth-century manual was E. R. Daniell's The Practice of the High Court of Chancery, 2nd ed. (London: V. & R. Stevens and G. S. Norton, 1845).

^5. The solicitor Edwin W. Field claimed that over half of 340 cases going through his office in 1838–39 were administrative suits: Observations of a Solicitor on defects in the offices, practice, and system of costs of the Equity Courts (London: William Pickering, 1840), 84. See also "Peter Purge," "Letters on the Court of Chancery," Legal Observer 21 (1840): 33.

^6. George Spence, An Address to the Public and more especially to members of the House of Commons, on the present unsatisfactory state of the Court of Chancery, and suggestions for an Immediate Remedy (London: W. Walker and Ridgways, 1839), 5.

^7. See the issue debated in [P. Yorke], A Discourse of the Judicial Authority belonging to the Office of Master of the Rolls in the High Court of Chancery (London: R. Williamson, 1727) and [Samuel Burroughs], The Legal Judicature in Chancery stated (London: J. Walthoe, 1727). 3 Geo. II c. 30 enacted that all orders and decrees of the Master of the Rolls should be valid, subject to an appeal to the Lord Chancellor.

^8. See [John Mitford, Lord Redesdale], Observations occasioned by a pamphlet, entitled, 'Objections to the Project of Creating a Vice-Chancellor of England' (London: J. Hatchard, 1813), 43; [Sir Samuel Romilly], Objections to the Project of Creating a Vice Chancellor of England, 2nd ed. (London, T. Cadell and W. Davies, 1813), 16. The Master of the Rolls heard no pleas or demurrers until after the passing of legislation in 1833: 3 & 4 Wm. IV c. 94 s. 24. However, in the early nineteenth century, when Sir William Grant was Master of the Rolls, more important business was attracted to his court.

^9. For the masters' tasks, see P[arliamentary] P[apers] 1816 (428) VIII 91 at p. 10.

^10. Daniell, Practice of the High Court of Chancery, 979–98, 220; [James William Farrer], Observations on the offices of the Masters in Chancery, with extracts from the books and notes of one of the Masters (London: V. & R. Stevens & G. S. Norton, 1848), 9. See also the evidence of P. W. Rogers and Sir John Romilly to the Select Committee of the House of Commons on Fees in Courts of Law and Equity, PP 1847–8 (158) XV.1, p. 100, q. 936, pp. 167–8, q. 1586.

^11. Patrick Polden has explored the complexity of nineteenth-century Chancery litigation in Peter Thellusson's Will of 1797 and Its Consequences on Chancery Law (Lewiston, N.Y.: E. Mellon Press, 2002) and in "Stranger than Fiction? The Jennens Inheritance in Fact and Fiction," Common Law World Review 32 (2003): 211–47 and 338–67.

^12. Besides the income he received as Speaker of the House of Lords, the Lord Chancellor received an income derived from fees, many of which came from the bankruptcy business. By contrast, the Master of the Rolls and Vice Chancellor were not remunerated from court fees: the Master of the Rolls was paid at various times by income generated from the Rolls Estate and from the Consolidated Fund. See Sir John Sainty The Judges of England 1272–1990 (London: Selden Society, 1993), 144. For the Vice Chancellor's salary, see ibid., 157.

^13. These figures are taken from the Twenty-Seventh Report of the Finance Committee of 1797: House of Commons Sessional Papers of the Eighteenth Century, ed. Sheila Lambert (Wilmington, Del.: Scholarly Resources, 1975), 111:56; George Spence, Summary of documents and propositions relating to the Masters Offices and propositions relating to the Six Clerks Office and Registrar's Office submitted to the Lord Langdale ... in answer to Langdale's letter 24 December 1841 (London: privately printed, 1842), 7; and PP 1830 (361) XX 1. The masters were also paid £200 a year from the Suitors Fund, under 5 Geo. 3 c. 28.

^14. This point was made by Sir John Copley, Parl. Debs., new ser., 16: 704 (27 Feb. 1827).

^15. PP 1816 (428) VIII 91, at p.45. See also Henry Horwitz, "Record-keepers in the Court of Chancery and Their 'Record' of Accomplishment in the Seventeenth and Eighteenth Centuries," Historical Research 70 (1997): 34–51.

^16. They were then required to take an oath, which gave rise to their name of sworn clerks. For contemporary understandings of the history of these offices, see [James Lowe], Observations on Fees in Courts of Justice (London: Joseph Butterworth & Son, 1822) and Lowe's evidence to the Chancery Commission: Report made to His Majesty by the Commissioners appointed to inquire into the Practice of Chancery, PP 1826 (143) XV 1, p. 160. See also Ex p Six Clerks (1798) 3 Ves Jr 589 at 598.

^17. Evidence of James Lowe to the Chancery Commission, PP 1826 (143) XV 1, p. 162; Horwitz, "Record Keepers,"