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FORUM: RESPONSE
The Chancellor, the Chancery, and the History of Law Reform
Michael Lobban
| As both James Oldham and Joshua Getzler show in their perceptive and helpful comments, much work remains to be done on the history of both the nineteenth-century Chancery and the wider law reform movement.1 My discussion of the inconclusive nature of the political debate about Eldon's arrears leads Oldham to ask whether the Chancellor was really overburdened and whether the appointment of the Vice Chancellor was as counterproductive as many contemporaries claimed. On the first of these issues, the data show that while Eldon was in general able to deal with the caseload before him, it was in the 1810s—when "by a series of most important decisions, [he] systematized the law of bankruptcy"2—that a dramatic arrear in appeals developed (see Figure 5), which contributed to the political pressure on him in the following decade. Oldham shows from a survey of his notebooks that Eldon heard roughly fifty cases a year from 1801–13; while according to official returns, in the 1820s, he heard more than forty appeals each year.3 But between 1813 and 1819, the number fell to about twelve cases a year.4 On the second issue, the data show that the creation of a Vice Chancellor did have an impact, but a relatively modest one. Lacking the distractions of the Great Seal, he could hear more original business; and cases set down and heard in Chancery increased by about 40 percent in the decade and a half after his appointment.5 While the number of appeals also increased, both numerically and proportionally, they remained at manageable levels.6 In the 1820s, Eldon was thus able to keep arrears stable, though he had no time for original causes. Before 1840, the court seemed able to cope with its workload, provided the judges were physically fit; and judges lacking El-don's doctrinal scrupulousness were indeed able to clear backlogs with their speed.7 It was this that led some to question whether the Vice Chancellor was necessary. But such questioning overlooked both the increase of original business handled by the court and the fact—increasingly evident to better informed lawyers by the late 1830s—that the shortage of judicial personnel served as a disincentive to potential litigants. |
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Getzler first wonders about the constitutional implications of reforming the Chancellor's office. Nineteenth-century reformers were not generally concerned to preserve a single Chancellor to ensure political accountability; their priority was the maintenance of doctrinal unity. Lawyers feared the impact on equity of any reform that might produce a legally incompetent "political" Chancellor. But there were also problems with putting the "political" tasks of the Chancellor in other hands: for such an officer would be not merely de facto minister of justice, but also Speaker of the Lords and the most important appellate judge in the highest court. He therefore needed to be a first rate lawyer, not just a politician. Many, including Sugden (whose reforming credentials Getzler rightly draws attention to), therefore felt that reform of the wider appellate jurisdictions was a prerequisite to reforming the Chancellor's office.8 This well illustrates Getzler's more general point that Chancery reform must be seen in its broader context. In many areas—not least the Chancellor's appellate jurisdiction—reform was certainly hampered by the participants' own inability to see the broader picture.9 But the historian of fusion must bear in mind the parallel reforms in the Common Law side, while the historian of Chancery should not forget the reforms on company law, bankruptcy law, and lunacy law, which both channeled away much business from the Chancery judges and in some ways provided reformist models for emulation.10 |
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As Getzler rightly observes, a wider doctrinal history of fusion remains to be written. My article is deliberately entitled "preparing for fusion." The priority for most reformers between 1850 and 1875 was to simplify procedure, in order to make courts cheaper and faster for litigants, rather than to settle substantive doctrinal concerns. Substantive fusion could hardly be expected in an age when criminal law codification—for which firm foundations had been laid—was stoutly resisted by the judiciary. Nor should it be forgotten that, in the era of jurisdictional fusion, much substantive law was still developing, in response both to the procedural reforms and to new problems posed by social and economic development. The "really scientific treatment of principles," Frederick Pollock wrote in 1887, only began in "that classical period of our jurisprudence" between 1852 and 1875.11 But even at the end of the century, there remained profound disagreement on the basic principles underlying such areas of the law as torts. Substantive fusion was thus left to lawyers who were in many areas still figuring out their own doctrines, in ways owing strong debts to the gravitational pull of the old categories, theoretically consigned to history in 1873–75. Moreover, these lawyers now had a sense of their own distinct cultures, far more than had been the case a century earlier.12 Little wonder the fusion project was to prove so problematic. The history of the fusion of law and equity must be part of a broader modern history of the substantive law; and in such a history, 1875 may seem a date closer to the beginning than to the end of the process. |
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Notes
1. See Joshua Getzler, "Chancery Reform and Law Reform," and James Oldham, "A Profusion of Chancery Reform," Law and History Review 22 (2004): 601–8 and 609–14.
2. "Chancery Reform," Law Magazine 16 (1836): 7.
3. See Michael Lobban, "Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery. Part I,"Law and History Review 22 (2004): 406, note 54.
4. John Williams's figure of under ten a year (quoted by me in "Part I," 408 and mentioned by Oldham) was derived from a misreading of the return in PP 1822 (9) XXI.89, which showed that from 1813–21, Eldon heard under eighteen appeals each year. Williams failed to note that the return had already taken into account cases struck out.
5. In 1808–12, 446 cases were set down and 447 heard annually; in 1814–18, 607 were annually set down and 592 heard; in 1819–28, 642 were annually set down and 638 heard; in 1829–35, 921 annually were set down and 896 heard.
6. The number of appeals set down each year increased after 1813, from 17.6 in 1808–12, to 20.6 in 1814–18, 41.3 in 1819–28, and 53.7 in 1829–35. As a proportion of the causes heard and determined, appeals were 3.9 percent in 1808–12; 3.9 percent in 1814–18; 6.1 percent in 1819–23; 7.4 percent in 1819–28; and 5.9 percent in 1829–35.
7. Factors of fitness and speed explain the "dramatic variation" Oldham points to in Figure 3: the fall in arrears of cases ready for hearing in 1820–22 reflects the surge of business consequent on Sir Thomas Plumer MR's illness into Sir John Leach VC's court. He may have been "angry, neat and wrong," but he was fast. The fall around 1832 reflects Brougham's workrate.
8. See Parl. Debs., third ser., 56: 199 (2 Feb. 1841).
9. Thus, reform of the appellate jurisdiction of the Lords, which remained a notoriously vexed question until 1876, was generally treated separately from the reform of the Chancery.
10. See, e.g., Lobban, "Part II," 576.
11. Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligation Arising from Civil Wrongs in the Common Law (London: Stevens and Sons, 1887), vii.
12. See David Lemmings, Professors of the Law (Oxford: Oxford University Press, 2000), 32–33.
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