Courts of Chancery - History - Victorian Era

Victorian Era

Despite these small reforms, the 18th century ended with continuous and unrestrained attacks on the Court. Although complaints had been common since the time of Elizabeth I, the problems had become more unrestrained, at the same time as politically neutral law reformers first arose in any great number. Many critics were barristers of the common law, ignorant of the court's workings, but some, such as Sir Samuel Romilly, had trained as a Chancery advocate and were well aware of the Chancery's procedure. The success of the Code Napoleon and the writings of Jeremy Bentham are seen by academic Duncan Kerly to have had much to do with the criticism, and the growing wealth of the country and increasing international trade meant it was crucial that there be a functioning court system for matters of equity. While the upper classes had been struggling with the Court for centuries, and regarded it as a necessary evil, the growing middle and merchant classes were more demanding. With increasing court backlogs, it was clear to many law reformers and politicians that serious reform was needed.

The first major reforms were the appointment of a Vice-Chancellor in 1813 to hear cases, and the extension of the Master of the Rolls' jurisdiction in 1833 to hear any and all cases. In 1824 a Chancery Commission was appointed to oversee the Court, which the political opposition maintained was simply to protect it; the membership included the Lord Chancellor, the Master of the Rolls and all senior Chancery judges. Some significant reforms were proposed; in 1829, for example, Lord Lyndhurst proposed unsuccessfully that the equity jurisdiction of the Court of Exchequer be merged with the Chancery, and that a fourth judge be appointed to hear the additional cases. A year later, when the common law courts were each gaining a judge, he repeated his proposal, but the bill was strongly opposed by judges who maintained that the court backlog did not justify the additional expense of a fourth judge. Eventually, two more Vice-Chancellors were appointed in 1841, and a decade later two Lord Justices were tasked with hearing appeals from the Court through the Court of Appeal in Chancery. These are described by Lobban as "hasty reactions to mounting arrears" rather than the result of long-term planning.

As a result of the new appointments, the court backlog was significantly reduced – the court processed 1,700 cases in 1846–49 compared to 959 in 1819–24 – but it rose again after the death of Shadwell VC and retirement of Wigram VC. Shadwell, appointed under the 1831 Act of Parliament, could be replaced, but a principal in the 1841 Act (under which Wigram had been appointed) meant that it provided for two life appointments to the court, not two open positions; after the retirement or death of the judges, no more could be appointed. Again, the backlog became a problem, particularly since the Lord Chancellor was distracted with the appellate cases through the Court of Appeal in Chancery and the House of Lords, leaving a maximum of three Chancery judges who were available to hear cases. Further structural reforms were proposed; Richard Bethell suggested three more Vice-Chancellors and "an Appellate Tribunal in Chancery formed of two of the Vice Chancellors taken in rotation", but this came to nothing.

The 1830s saw a reduction in the "old corruption" that had long plagued the court, first through the Chancery Sinecures Act 1832 and then through the Chancery Regulation Act 1833. The 1832 Act abolished a number of sinecure offices within the court and provided a pension and pay rise for the Lord Chancellor, in the hope that it would reduce the need for the Chancellor to make money by selling court offices. The 1833 Act changed the appointments system so that Masters in Chancery would henceforth be appointed by The Crown, not by the Lord Chancellor, and that they would be paid wages. Through the abolition of sinecures, taking into account the wages and pension, this saved the Court £21,670 a year. The government had initially intended the 1832 bill to go further and abolish the Six Clerks, but the Clerks successfully lobbied to prevent this. This did not save them, however; in 1842 the "nettle" of the Six Clerks Office was grasped by Thomas Pemberton, who attacked them in the House of Commons for doing effectively sinecure work for high fees that massively increased the expense involved in cases. As a result, an Act of Parliament was passed in the same year that abolished the office completely.

Some further procedural reforms were undertaken in the 1850s. In 1850, a new set of Chancery orders were produced by the Lord Chancellor, allowing Masters to speed up cases in whatever way they chose and allowing plaintiffs to file a claim, rather than the more expensive and long-winded bill of complaint. The Suitors in Chancery Relief Act 1852 gave all court officials salaries, abolished the need to pay them fees and made it illegal for them to receive gratuities; it also removed more sinecure positions. The Master in Chancery Abolition Act 1852 abolished the Masters in Chancery, allowing all cases to be heard directly by judges instead of bounced back-and-forth between judges and Masters. As a result of these reforms the court became far more efficient, and the backlog decreased; in the 1860s an average of 3,207 cases were submitted each year, while the Court heard and dismissed 3,833, many of them from the previous backlog. Much of this work was carried out by the growing number of clerks, however, and members of the legal profession became concerned about the "famine" of equity judges. Despite these reforms, it was still possible for Charles Dickens, writing in 1852 in the preface to his novel Bleak House, to bemoan the inefficiencies of the Court of Chancery. His novel revolves around a fictional long-running Chancery case, Jarndyce and Jarndyce. He observed that at the time he was writing there was a case before the Chancery court "which was commenced nearly twenty years ago ... and which is (I am assured) no nearer to its termination now than when it was begun". He concluded that "If I wanted other authorities for Jarndyce and Jarndyce, I could rain them on these pages, to the shame of a parsimonious public".