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

As demonstrated in Part I, the question of Chancery reform before 1827 was much debated in party terms and focused largely on Lord Eldon’s shortcomings as a decision-maker. After Eldon’s departure, it largely ceased to be a party-political issue, although by 1830 law reform in general was firmly on the political agenda. With Eldon gone, there was much common ground on the outlines of Chancery reform. This can be seen from the plan proposed in the Commons by the conservative Sir Edward Sugden in December 1830. Sugden suggested creating a court of appeal for equity, on which the Lord Chancellor, Master of the Rolls, Chief Baron, and Vice Chancellor would sit. He proposed reforms in the masters’ offices, under which they would be paid salaries rather than fees, and he wanted masters to sit in open court, with limited judicial functions. He also advocated retrenchment of sinecures and the removal of payment by fees. These ideas were all echoed in the new reformist Chancellor Brougham’s proposals for the court, which he elaborated in the spring of 1831.[1]

After 1830, debates over Chancery reform were dominated by disputes over detail, rather than disagreements on principle. If there was general political agreement on the need for law reform in general, there was much technical disagreement about what could be achieved and how. Debates were generally dominated by expert and professional opinion, and the reforms that were made were piecemeal and often lacked coherence.[2] So it was with the Chancery: reform of the court was not ideology-driven and was not informed by principled goals such as Benthamite codification or substantive fusion. Reformers were more concerned with promoting efficiency by responding to practical problems identified in the working of the court. Reforms were experimental, building on the lessons of the Chancery commission and attempting to solve the problems of the litigant and the practitioner.

With its slow and inefficient practices, immortalized by Dickens in Bleak House, the Chancery certainly attracted much public criticism. The “unhappy victims” of the court were familiarfigures in early nineteenth-century discourse. When he condemned the Chancery as a “hydra-headed monster” in 1850, H. W. Weston argued that reform could only be achieved by “bringing the evils of this Court continually before the public and showing up its abominations.”[3] For the most part, however, the Chancery entered public debate only after professional interests had put it into the public mind. Regular petitions were presented to Parliament from members of the public or from trading associations in the 1830s and 1840s on legal issues such as insolvency and bankruptcy reform, the county courts and even ecclesiastical court reform, and there were also occasional petitions for Chancery reform from individuals who had suffered at the hands of the court. But the most significant petitions for Chancery reform came from professional groups, such as the Metropolitan and Provincial Law Association (MPLA), or the Incorporated Law Society (ILS), or provincial law societies. In 1850, a short-lived Chancery Reform Association was formed to publicize the abuses of the court, and for a brief period, law reform took hold of the public mind as a pressing political issue of interest to more than just the profession.[4] However, this body was formed at a time when there was already a great deal of professional agitation for reform, and its impact was limited. For the most part, law reform did not excite the public imagination.

By contrast, law reform did interest the mercantile and trading communities, who were especially concerned about developments in the law of debtor and creditor, bankruptcy and company law. Often chambers of commerce and mercantile associations played a major role in promoting reforms in these areas.[5] Moreover, the 1850s saw growing interest in the assimilation and codification of the mercantile law of England, Scotland, and Ireland, an idea promoted by the Mercantile Law Association and the Law Amendment Society (LAS). They organized a mercantile law conference in November 1852, which was followed by the appointment of a royal commission, whose report led to legislation in 1856 to assimilate the law of England and Scotland relating to the sale of goods.[6] Another mercantile law conference was held in 1857, the year of the formation of the National Association for the Promotion of Social Science, which in turn promoted law reform of interest to the mercantile community.[7] If they were engines of law reform, however, these bodies were not interested primarily in the problems of the Chancery. Some of their concerns, such as partnership matters and the winding up of companies, of course remained part of Chancery’s business, and the law relating to them was often unsettled in the 1840s and 1850s. Nevertheless, company law continued to be regarded as a topic for reform distinct from the Chancery and was treated in a distinct way within the court.[8]

Rather than merchants, the main proponents of Chancery reform after 1830, both in and out of Parliament, were lawyers. Pressure for reform was applied in Parliament by prominent lawyer-MPs, including Thomas Pemberton, John Romilly, Richard Bethell, and George Turner, as well as those in the Lords who held (or had held) the great seal. Practitioners outside Parliament were also influential, both through pamphleteering and through professional bodies, notably the Incorporated Law Society (from 1832), the Law Amendment Society (from 1844), and the Metropolitan and Provincial Law Association (from 1847). These bodies drafted and presented reports and continued to debate proposed reforms both in meetings and in print, through their journals, the Legal Observer, the Law Review, and the Law Times.

Parliamentary select committees and royal commissions were also used as engines of reform. One select committee of the Commons reported on Chancery Offices in 1833 and another on fees in law and equity issued reports in 1847–49. The Lords also had two important select committees. One in 1840 settled the bill that led to the appointment of two new Vice Chancellors and ended the equity jurisdiction of the Exchequer. Another in 1851 considered Brougham’s bill to give primary jurisdiction to masters in Chancery. In each case, evidence was collected from the profession, and the momentum for reform grew. After a decade of parliamentary and professional pressure, a second royal commission (to follow Eldon’s) was appointed in 1850 to investigate practice and procedure in the court of Chancery. Its reports paved the way for major reform. Alongside these public bodies, there were also informal commissions of lawyers to advise the Lord Chancellor. Brougham as Chancellor was advised by a committee that included the Chancery commissioners J. H. Merivale and William Courtenay, as well as George Spence and the Solicitor General Horne.[9] A more important committee was that appointed by Cottenham LC in 1841, consisting of Lord Langdale MR, James Wigram, Thomas Pemberton, and Sutton Sharpe, which was also used by Lyndhurst when he returned to office.[10] This committee was called together to advise the Chancellor after legislation in 1840 gave him significant powers to reform his court by orders.[11] It should be noted that these various bodies were not isolated from each other: the men on the informal committee were parliamentarians who had also made an impact through the evidence they gave to select committees; and they continued to consult with professional bodies.[12] It was through such bodies, and over a period of time, that the lawyerly interest in reform became focused. Thus, by the 1850s, reform could take a clearer direction.

1. Reforming Old Corruption

As the Chancery commissioners had seen, the problems that needed addressing most urgently were those posed by the lesser, rather than the greater officials. As Lord Chancellor, Brougham proved more decisive and successful in this area than in his more ambitious reform projects for the Chancery. A bill passed in 1832 to abolish a number of Chancery sinecures; and an accompanying measure provided for a salary and pension for the Lord Chancellor.[13] In the following year, the Chancery Regulation Act passed, restructuring the offices of the court. Henceforth, masters would be appointed by the Crown (rather than being within the Lord Chancellor’s patronage) and be paid a salary.[14] It was also enacted that when vacancies occurred in the offices of the Six Clerks, they were not to befilled up until the number had been reduced to two.[15] The effect of these reforms was to remove thirteen sinecures, representing a saving of some £21,670 a year once all the offices had fallen in.[16] Brougham had originally aimed to go further, abolishing the Six Clerks and Sworn Clerks. However, in 1831, the Sworn Clerks printed a defense of their office and lobbied hard to protect their position. Faced with strong opposition from vested interests, Brougham only succeeded in reducing, rather than removing Old Corruption from the court.[17]

It was only at the end of the 1830s, with the renewed push for Chancery reform orchestrated by the profession when arrears were rising, that the nettle of the Six Clerks Office—described by a leading campaigner as “the principalfield of battle”—was grasped.[18] In August 1840, Thomas Pemberton attacked the Clerks’ Offices in a speech in the Commons, exposing the high sums they received for effectively sinecure work.[19] Despite some last minute attempts to defend the Six Clerks, Pemberton’s speech and E. W. Field’s pamphlet published in the same year in effect sealed their fate. The Six Clerks and Sworn Clerks were abolished in 1842 by an act that was the work of the informal commission called together by Cottenham.[20]

Although long desired, the benefit of abolition was soon perceived to be counterbalanced by the evils of the compensation offered.[21] Although the principle of compensating holders of abolished officers was a cornerstone of law reform, it was still argued that “annual compensation for the loss of an office purchased in a Court of Equity is unparalleled and unknown in British history—if it be not contrary to the spirit of the constitution of this country.”[22] The sums were indeed staggering: George Gatty, who had been appointed one of the new Taxing Masters in the reforms, and who received a £2000 salary from that office, obtained a further £5232-19-1 annually in compensation for his loss of office, receiving three times the emoluments of a Chancery master, and more than was earned by many judges.[23] By the end of 1853, Gatty had received almost £69,000 in compensation and salary, with the sums in compensation paid to the four Sworn Clerks amounting in all to more than £210,000.[24] Although they provoked outrage in the legal press, the compensations were defended by some as a necessary price for improvement, since the reform of these offices would pave the way for further reform of the court.

Reform of Chancery fees remained a slow process. Even after the measures of the 1830s and 1840s, a number of officers who were paid by fees remained in the Chancery.[25] Equally, the Chancery Regulation Act of 1833, having replaced the fee remuneration of many officers by salaries, did not discontinue the system of fee-paying by the litigant, but enacted that these fees should be paid into a new fund, the Suitors’ Fee Fund, out of which the salaries, compensations, and other court costs were to be paid. Besides this fund, there was the Suitors’ Fund, which had been set up in the eighteenth century to enable the court to draw on the interest of suitors’ money left idle in the Bank of England. By this mechanism, the court could use the income from idle cash to help cover its own costs. By the 1840s, the salaries of the Lord Chancellor, the two new Vice Chancellors, and the masters were paid from the dividends earned on the Suitors’ Fund.[26] By contrast, the Fee Fund paid for some compensations under the 1833 act, as well as the salaries of the masters’ clerks and salaries in the Registrar’s office, and some other matters. After the “Chancery Compensation Job,” commentators noted a sudden increase in the sums paid for by the Suitors Fee Fund and claimed there had been a huge rise in “taxes on justice.”[27] It was pointed out that in 1842, before the compensations were paid, the total amount of fees received was almost £63,000, of which £54,600 were spent on the costs of the court. However, in 1845, the fees levied had increased to almost £135,000, of which almost £45,000 was spent on compensations to those whose offices had been abolished in 1842. In a climate of anger in the profession, the problem of fees was referred to a select committee of the House of Commons.

The key architects of the compensation, Langdale and Field, appeared before this committee and defended their measure, showing that the apparent rise in fees was deceptive. Langdale noted that the reform had increased the efficiency of the court. He also claimed that the fees levied on suitors in the reformed offices were already £11,000 less than in the unreformed ones.[28] Though the returns of the state of the Suitors’ Fee Fund showed a vast increase in sums levied in fees, it was all too easy to overlook the fact that the fees levied by the Sworn Clerks—something around £60,000 a year—had not been reflected in the earlier returns.[29] The select committee, however, gave instinctive reformers like Langdale and Field the opportunity to urge a further overhaul of the fee system. In Langdale’s view, because the entire community, not just the parties, was interested in the outcome of litigation, the salaries for judges and compensations should be paid for by the state. He pointed out that if the salaries of the court’s officers were paid by the state, the rest of the court’s expenses as well as compensations and pensions could be covered by the earnings of the Suitors’ Fund.[30]

Not everyone agreed that the system of fee paying should be abolished, but most felt it needed reform. A number of objections were raised to the system preserved in 1833. To begin with, there was little supervision of the fees levied.[31] Not only was there no authoritative and comprehensive guide to fees in court, but it was perceived that junior clerks—still paid by fees—had it in their power to delay the progress of a suit if a litigant did not agree to pay for unnecessary copies. While this point was disputed by Chancery officials,[32] Field raised objections to the very system of fee payment for court documentation. Like many lawyers, he felt it acted as a poll tax, falling equally heavily on “poor” and “rich” suits, and remunerated the lawyer according to the number of tasks done rather than for the complexity of the issues. Others agreed that the very procedure of Chancery, with its profusion of handwritten documentation, generated a vicious circle of fee paying: the more documentation was needed, the more there was a need for clerks, who would in turn multiply the documentation in search of fees. In Field’s view, if fees had to be levied, it should be through a system of payment by stamps, so that Chancery officials would only have to deal with the judicial and administrative business.

Therefore, in its report of 1848, the select committee recommended that all officers in Chancery should be paid salaries rather than fees. It also stated that there should be a more effective system to supervise personnel, which was necessitated by the removal of the stimulus to exertion provided by fees. The old system of office holding was to be replaced throughout by one where subordinates were under the direct supervision of their superiors, the chain leading ultimately to the Lord Chancellor. Under the new system people could be removed for misconduct or incapacity to perform. It also recommended that fees should be paid into a single fund to be used in the most economical manner for the benefit of the suitors and that no more fees should be levied than were actually needed.[33]

A further set of reform of offices duly followed in 1852. In this year, the Suitors in Chancery Relief Act gave all officers in Chancery salaries, abolished the payment of fees to individual officers, and forbad the receipt of gratuities. The salaries of the equity judges were now to be paid from the Consolidated Fund. Moreover, a further set of offices was abolished with compensation given.[34] The act also provided that the annual surplus of the Suitors’ Fund should be transferred to the Suitors’ Fee Fund. With the passing of this legislation, which seemed to mark the end of Old Corruption in the court, even the conservative Lord Chancellor St. Leonards was confident that the hour “is not far distant, when the suitors in the Court of Chancery will have no costs whatever to pay for the administration of justice—irrespective, of course, of those costs which must always exit between solicitor and client.”[35]

It had been the aim of reformers to place the cost of salaries on the Consolidated Fund, pay for compensations from the Suitors’ Fund, and reduce fees for litigants.[36] However, the promised disappearance of court costs did not occur. Throughout the 1850s and 1860s, compensation still had to be paid for offices abolished in 1842 and 1852.[37] Moreover, both the legal profession and the government expected to use the Suitors’ Fund for other purposes than reducing fees. As early as 1841, Sir Thomas Wilde SG had spoken of the need for new law courts, which could be paid for by the Suitors’ Fund.[38] Though some, like St. Leonards, opposed using the Fund for this purpose,[39] by the mid 1860s, governments effectively gave up the goal of a cost-free Chancery because they needed cash to pay for the building of the new law courts in the Strand. In 1865, one million pounds of Chancery money were transferred for that purpose. Four years later, legislation was introduced to transfer these funds into the hands of the commissioners for reducing the national debt.[40] Lord Chancellor Hatherley noted that, until 1865, he had hoped that once the compensations were completed, the court would be able to run fee-free. But the decision to pay for the new courts using Chancery money made him abandon the aspiration.

2. Reforming Chancery Procedure

Besides the problem of sinecures increasing the cost of suits in Chancery, litigants faced the delays caused by the requirements of Chancery pleading and by the shuttling of cases between the judges and the masters. These were the major problems addressed in the two decades before 1852. As shown in Part I, the procedure by bill and answer may have been excellent in rooting out fraud, but it was highly inconvenient for those with simple administrative suits. Equally inconvenient was the number of parties who had to appear on the record and the need for bills of revivor and supplemental bills when there was any change in the parties interested in the dispute. From the 1820s, solicitors called for a more summary way of beginning cases in amicable suits.[41] In 1840, a body of solicitors petitioned the House of Commons, arguing that no sensible suitor with a claim worth less than £1000 would bring a suit into the Chancery. Partly in response to this petition, legislation was passed to give the Lord Chancellor the power to make orders to improve procedure, and in the early 1840s, rumors began to circulate that a more summary form by petition might be introduced.[42] However, by 1848, the MPLA noted that not enough had been done. It now proposed the introduction of a new optional form of procedure: when all parties consented, they should be able to proceed by petition, rather than using the bill and answer, and without obtaining evidence on interrogatories.[43] Equally, courts of equity should be able to hear special cases for the opinion of court. At the same time, the MPLA suggested that masters should have primary jurisdiction in matters where the reference was as of course, where it was only a matter of taking accounts, or where the only question was the appointment of new trustees or guardians. Moreover, for the association, “the practice of the common law courts in many instances might be usefully introduced into the Court of Chancery.”[44]

The issue of reforming procedure was closely connected with the problem of what should be done with the masters’ offices. As seen in Part I, the Chancery Commission had made a number of recommendations in 1826 about how to speed things up in these offices, and several of Lyndhurst’s orders of 1828 were designed to empower the master to proceed more quickly. Nevertheless, suitors could still prevent dispatch. As Master J. W. Farrer put it, the suitors “may compel each other and the Master to proceed, but the Master cannot propria vi compel the suitors to move.”[45] Proposals aimed at streamlining proceedings thus often entailed allowing parties to commence proceedings in the masters’ offices and giving the masters control over the progress of suits.[46] For many, the court could be made more efficient if the procedure in purely administrative suits were more clearly distinguished from that in litigated ones. J. H. Merivale thus proposed:
Let this distinction be constantly kept in view; let every suit be, ab initio, ascribed to the Master who is to have the conduct of it, and whose duty it should be at once to determine and pronounce to which of the two classes the Suit in question belongs; let those of the administrative class be then left entirely to the conduct of the Master, as a matter in Bankruptcy is left to the conduct of the Commissioner; and, with the intervention of a Court consisting of a plurality of Masters, if called for, and with the requisite appeal to a superior tribunal, Ifirmly believe that more than half the evil and oppression of the Court would be corrected.[47] The 1840s moreover saw a number of reforms in related areas of law that gave masters, or analogous officers, greater power to deal directly with administrative matters. Particularly influential was the Joint Stock Companies Winding Up Act of 1848, founded on proposals given to the Board of Trade by Edwin Field and itself influenced by the procedure in bankruptcy.[48] Similarly, the Conservatives’ Charitable Trusts Bill of 1852 proposed that cases involving charities with incomes between £30 and £100 should go before the masters in Chancery “not, however, compelling the parties, as now, to go with a petition to the Court before they could be sent to the Master, but enabling them simply to carry in a state of facts to the Master, and to have his decision on the matter.”[49]

Those in favor of reformed masters’ offices suggested that parties should have the option to commence cases either by a petition on a state of facts in the masters’ offices or by bill and answer before the judges.[50] This would allow for simplicity where there were no disputed points of law or fact and room to bring such points before the court if necessary. If this looked neat, however, there were still concerns over its practicability, given that the line between what was an administrative and what a judicial matter was often blurred and could only be determined once the case was before the court.[51] The equity committee of the LAS, which in 1847 favored commencing some cases by petition to the master, therefore argued in 1849 that all cases should still commence before the judge.[52]

There was an alternative, more radical, solution to the problem of cases moving back and forth between master and judge. This was simply to abolish the masters’ offices, leaving the judge to work out his own decrees with the aid of his chief clerk. This proposal originated in the profession and took a decade to become accepted. It was raised by Commissioner Fane in a letter to the Times in November 1840 and was echoed by other lawyers.[53] For these commentators, everything judicial should be left to the judge and everything purely administrative to a clerk. However, it was noted by some that the existing judicial staff might not be able to cope with the workload such a reform would bring. The Legal Observer therefore proposed in 1842 that four of the masters should be made into new judges, paid for out of savings effected by the accompanying retrenchment.[54] In these debates—as in those over procedure—we can perceive the early steps of the profession toward fusion: as one writer in the Legal Observer saw it, reform of the masters’ offices would be afirst step toward assimilating the procedure of the courts of equity and common law. In this writer’s view, every step should be taken “to assimilate ultimately the procedure of all judicial establishments.” Moreover he queried how it could be better “for us, in equity, to have officers of this description to decide questions of practice … while at common law it is found better that the superior judge should go to chambers and do precisely analogous business himself?”[55]

By the late 1840s, however, there remained considerable uncertainty and disagreement within the profession over whether to seek further reform of the masters’ offices or their abolition. The function of the offices was defended, not least by the masters themselves.[56] The London solicitor J. S. Gregory told the select committee on fees that their abolition would not be possible, since so many matters of detail (such as accounts) went before them; nor would it be desirable, since the matter before them was often of a nature that should not be discussed in open court or did not need judicial expertise.[57] The uncertainty can be traced in the debates and proposals discussed at this time by people within the same organizations. For instance, in August 1847, a report of the equity committee of the LAS was published in the Law Review, which favored the abolition of the offices, since any reform would have to be so substantial as to be in effect an abolition.[58] But the November edition of the journal carried another report from the committee, modifying its proposals. It now recommended reform, rather than abolition, and set out arguments explaining the differences between the method of proceeding in court and in the offices. Instead of making the Judges act as masters, they now wanted “to arm the Masters with the authority of Judges.” The masters’ courts would then become a recognized route toward the superior court.[59] But in 1850, the equity committee was once more casting its language in terms of effective abolition.[60]

Although by 1850, many in the profession preferred the notion of making the judges do the work of masters, rather than making the masters do the work of judges, thefirst legislative attempts were designed to give a primary jurisdiction to masters in certain matters.[61] Having consulted the law officers and the Lord Chancellor, the MPLA drew up a bill to this effect in 1848.[62] In 1850, Brougham presented Parliament with a similar (though narrower) bill, drawn by his brother. At the same time, John Romilly presented an analogous, but significantly different, bill for Ireland. Brougham’s bill proposed that any case concerned with the administration of an estate of a deceased person, or a trust, or the appointment of a guardian, or allowances to infants could be taken without a petition or bill before the Master in Ordinary. But Romilly’s permitted proceedings to begin by summons in every case and allowed certain cases to be referred summarily to the master. Romilly’s measure also allowed for petitions to befiled asking for the opinion of the court on a special case, which would bind all those presenting the petition.[63] At the same time, George Turner drew up a bill for England, allowing suitors tofile a special case for the opinion of the court and seeking to simplify preliminary proceedings and reform the working of suits in the masters’ offices.[64]

Romilly’s Irish bill passed.[65] However, the cautious Cottenham LC was hostile to Brougham’s measure and told him it was
not only destitute of all chance of doing good but full of the certainty of Evil making in fact the Master Judges & the Judges not Directors of their proceedings but correctors as far as possible of their Errors. Every Master would have his peculiar plan & view & the Judge would have to manage 10 unruly horses without any rein & with the whip only.[66] The Chancellor had his own plans. In May, a new set of Chancery orders was issued under which parties in certain cases were permitted to proceed byfiling a claim, rather than using the traditional bill of complaint. The orders also gave greater power to the masters to speed up proceedings in their chambers.[67] In the cases provided for, the course of proceeding was now rendered (in the words of one journal) “as simple and summary as a plaint in a County Court.”[68] It was widely realized that this reform undercut Brougham’s project, and his bill was dropped. Meanwhile, Turner’s measure, shorn of the parts relating to the masters’ offices and the manner of commencing cases, passed into law.[69] However, if Turner’s act and the new orders represented a significant advance, they did not wholly satisfy the desires of the reformers, who continued to press for reform.

At the end of the year, a commission was issued to consider reforms in the Chancery. Although a commission had been appointed in the spring to look at pleading and practice in the common law courts, Cottenham LC hesitated over setting up a Chancery equivalent. In April 1850 John Stuart, who had been seeking a royal commission to look at Chancery reform for at least three years, gave notice of a motion for an address to Crown on the issue; but he was persuaded by the Chancellor to desist from renewing his motion and to wait until the new orders had been promulgated. In the event, it was the new Master of the Rolls, Romilly, who persuaded the government (and the new Chancellor, Truro) of the need to appoint a commission to look in greater detail at Chancery practice.[70] However, the commission, which included Romilly, Turner, Bethell, James Parker, and William Page Wood, was not asked to consider whether to abolish or reform the masters[71]—the very issue that for many in the profession remained the most pressing one. The perception remained that the government was overly cautious.[72] In consequence, pressure was maintained from extragovernmental sources. In November 1850, for instance, the Incorporated Law Society decided to set up a committee to look at equity practice. Despite the calling of the Chancery commission in the following month, the ILS went ahead with its own committee in February 1851, which spent much time considering the masters at a time when the Chancery commissioners were only looking at procedure.[73] In May 1851, Stuart called in the Commons for two laymen to be added to the commission and for it to be instructed to look into the masters’ offices.[74] After an address from the Commons in June, J. W. Henley and Sir James Graham were appointed and the commission empowered to look into the masters’ offices.[75]

In the meantime, Brougham reintroduced the bill to give masters primary jurisdiction.[76] He was clearly of the opinion that only their abolition could lay “the axe to the root of the mischief so loudly & so justly complained of,”[77] but feared that opposition from the judges and masters would render such a reform impossible. Nonetheless, in July 1851, Sir George Turner VC and Sir John Romilly MR told the select committee on his bill that they agreed with the proposition that judges should act in chambers. In one fell swoop, the main obstacle to the abolition of the masters—the supposed opposition of the judges to doing chamber work—fell away.[78] The Chancery commission in itsfirst report duly recommended the abolition of the masters’ offices, something regarded by Graham as “the very keystone of our Report.”[79]

To the last, Truro LC remained cautious. Though the Queen’s speech announced in February 1852 that there would be bills brought to reform Chancery, he told Parliament later that he had not made up his mind on the commissioners’ report. Indeed, the government seemed to lack a clear direction: not only was there uncertainty over whether the law officers or the Chancery commissioners should draw a bill, but Truro seemed unsure whether the whole project of abolishing the masters could proceed in the way suggested.[80] It fell to the new conservative Lord Chancellor, St. Leonards, to pilot a measure.[81] Under the new legislation, all judicial functions were to be performed by a judge, while ministerial functions were to be done by chief clerks. Four masters were to retire in Michaelmas Term (though they would continue to receive their salaries), and their chief clerks would perform office for the judge. The remainingfive would complete the outstanding work in their offices.[82] The reform was especially welcomed by the Chancery clerks. “Everything has happened fortunately, and favourably to us,” the clerk Charles Pugh recorded in his diary in July 1852. “All we expected—more than we hoped or dared look for has been brought about. Increase of pay—improvement of position—full retiring allowance—to the utmost extent. Oh Lord God give me a grateful, thankful heart for these thy mercies and grant that they may draw me nearer to thee in Love.”[83]

A further measure to reform the Chancery in 1852 was an act to amend its procedure, which grew from the commissioners’ desire “to substitute in every case which admits of it, the shortest and most summary process, with the least amount of preliminary written pleadings, and to bring the parties, by themselves or their counsel, to state their cases with as little delay as possible to the tribunal which has to decide.”[84] This act simplified procedure by abolishing the writ of subpoena and by introducing the use of printed bills, which were to contain concise narratives of the material facts on which the plaintiff relied, but not interrogatories aimed at discovery or admission. This aimed to simplify the form of Chancery bills, which had hitherto contained interrogating parts, repeating the stating and charging parts of the bill in the form of questions for the defendant to answer. Henceforth, plaintiffs seeking discovery or admission couldfile interrogatories for examination of the defendant within eight days of appearance. To prevent defendants from spinning out the process, it was further enacted that a defendant who was not required to put in an answer by the plaintiff was forbidden from doing so after a certain period (to befixed by order), unless he had the leave of the court. The act also reformed the manner of taking evidence in Chancery, replacing the old system of written interrogatories with the ability to have evidence on affidavit or by oral examination before the examiners, subject to oral cross-examination. Under the old system, examination had taken place in private, in the presence only of the examiner and his clerk, on the basis of written interrogatories supplied in advance.[85] But henceforth, examination was to be conducted in the presence of the parties, and their counsel, solicitors, and agents. Questions could be put by any of these, but the evidence was to be written up by the examiner in a continuous narrative. The act also reformed the law regarding the number of parties to suits who had to be joined, allowing one litigant in many cases to represent others not before the court; and it rendered unnecessary the use of bills of revivor and supplemental bills.

The three major pieces of Chancery legislation of 1852 went a long way toward addressing the procedural problems debated since the 1820s. The legislation was the result of a combination of short-term and long-term pressures, official and unofficial. The Suitors in Chancery Relief Act had developed out of the ideas of the select committees on fees of 1847–49, itself a reaction to the compensation given to abolished offices in 1843. The Master in Chancery Abolition Act resulted from a combination of pressures from the profession over a decade, boosted by the recommendations of the Chancery commissioners, taken up by a Lord Chancellor persuaded of the need for this reform. The Improvement of the Jurisdiction of Equity Act was a more direct product of the commission. But the fact that the commission was renewed and extended (to examine the question of where to locate the testamentary jurisdiction currently exercised by the ecclesiastical courts) showed that the issue of Chancery reform was still far from settled.[86]

There were some complaints after 1852 about the slow pace of business in the chief clerks’ offices.[87] Concern was also raised that the chief clerks were beginning to take on the chamber duties of the judges, which was precisely what the Chancery commissioners had sought to avoid.[88] As the Solicitor’s Journal pointed out in 1873, it was in the judges’ interest to be relieved of as much of the irksome chamber business as possible, and in the chief clerks’ interest “to exercise the functions formerly entrusted to the Masters in Chancery.”[89] Some judges seemed happy for chief clerks to take on more tasks, even if this went against the spirit of the legislation. Romilly MR, in particular, was criticized for refusing “to interfere with ‘the discretion of the chief clerk.'”[90] It was argued by some that this increased costs and delay and threatened to reproduce the evils that had led to the abolition of the masters. In addition it was said to be essential that the clerks should remain administrative officers and that the judges spend more time in chambers.[91] However, when the Judicature Commissioners questioned the profession on chamber practice, both Bacon VC and the chief clerks in Chancery took the view that judges should not devote any more time to chamber business. According to the clerks examined, the current mode of conducting business in their chambers worked “exceedingly well,” a fact shown by the increase of business handled there.[92] By the era of the Judicature reforms, then, if there were some in the profession who were concerned about the behavior of the clerks, the prevailing view was that the reforms of 1852 had addressed some of the biggest causes of delay and expense in the court. Nonetheless, the measures of that year did not close the question of Chancery reform but instead cleared the way for discussion of a larger question of principle.

3. Toward Fusion

By 1852, a broader notion of the fusion of law and equity was on the agenda, widely debated, and increasingly accepted as a principle in the periodical press and by the profession. In November 1850, the Law Times dismissed fusion as “suicide” and said its discussion was worthy only of a Chartist meeting. But by the following August, the journal proclaimed that there was “almost unanimity” in the view that the distinction of the two systems was “the parent of most of the defects in the administration of our law.”[93] The key political impetus for fusion came from America. LAS members had followed with great interest the process of reforming New York’s civil procedure after 1847. At the end of 1850, the society invited David Dudley Field to address them on these reforms and, having met the great reformer, set up a committee chaired by Robert Lowe to consider whether law and equity could be fused in England.[94] The committee pointed out the practical difficulties caused by the division and concluded that “[t]he existence of two distinct systems of pleading and practice is of itself a great evil.”[95] The LAS and its members henceforth sought to impress the principle of fusion by all means on the government and public.[96] They had a devoted agitator for their cause in Richard Bethell, who hadfirst addressed the society on Chancery reform at a public meeting in 1846 and was nicknamed the “Galileo of fusion” by one journal.[97] On numerous occasions in the 1850s, Bethell spoke out for fusion, though he was criticized for talking about it more than promoting it through legislative proposals.[98]

In the 1850s and 1860s, the main agitators for fusion were law reformers in associations like the LAS, the Juridical Society (after 1855), and the Social Science Association (after 1857). Besides barristers like Bethell, they included county court judges, notably W. T. S. Daniel and A. J. Johnes. Reformers had long seen the county courts as the trailblazers for wider law reforms, and some felt that fusion had to take place at county court level, since there “alone are combined all the various requisites for a sound and salutary union of the Common Law and equity Jurisdictions.”[99] The LAS in particular favored extending an equitable jurisdiction to the county courts; and in 1851, a bill to effect this was introduced by Brougham.[100] While the society remained keen on this idea, others were more skeptical as to whether the county courts had the machinery to handle equitable matters in a satisfactory way.[101] An act did eventually pass in 1865 to confer an equitable jurisdiction on the court. Although not widely used, its existence served as an example to counter the arguments of those skeptical of fusion.[102]

In contrast to the enthusiastic approach of these reformers, the holders of the great seal proved more cautious. Sugden, who took the title of Lord St. Leonards on becoming Lord Chancellor in 1852, remained consistently hostile to fusion. On the other hand, R. M. Rolfe, who held the seal as Cranworth in 1852–58 and again in 1865–66, was a moderate reformer. Although considered more competent than Truro and more reformist that St. Leonards—notably after announcing a program of reforms in 1853—it was felt that he followed the tide, rather than being a leader. When it came to Chancery reform, he tended to dilute, rather than to promote, the more advanced proposals.[103] Indeed, while supporting reforms, Cranworth sometimes doubted whether “so much advantage would result from the proposed fusion of law and equity as many persons seemed to imagine.” He favored a “step by step” approach and was shy of risking theoretical changes that might involve practical problems.[104] Lord Campbell, who held the great seal between 1859 and 1861, saw the problem so clearly from the common lawyer’s point of view that he achieved little save to antagonize the equity men. In his opinion, while “a fusion of law and equity was impracticable,… still there might be an equitable jurisdiction given to Courts of law, in order that they might be enabled to terminate satisfactorily suits commenced in thefirst instance in courts of law.”[105] Even Bethell, who might have promoted the issue, showed little interest in advancing the topic when holding the great seal as Westbury from 1859 until 1865. Therefore, rather than relying on the Lord Chancellor, reformers looked to official commissions to drive the process on. In 1852, the activists in the LAS sought the appointment of a commission of equity and common lawyers to outline a measure to achieve fusion; but although Cockburn AG and Page Wood SG were sympathetic to fusion, they could not be persuaded to set up such a commission.[106] In place of a single commission, the issue was considered separately by the Chancery commissioners and the common law commissioners, who each made several reports in the 1850s that considered reforms in the procedure and practice of their courts.

What was the nature of the “fusion” under debate? Was it to be a fusion of distinct bodies of substantive law or of jurisdiction only? Occasional voices called for substantive fusion. For instance, C. F. Trower wanted “a fusion of the principles on which Legislation is to proceed, —a singleness and oneness of Jurisprudence.” For him, this meant that the “distinction between Trusts and Legal estates” should be “overthrown.”[107] However, for the most part, reformers looked only to jurisdictional fusion.[108] In the absence of a single united commission to promote this end, reform proceeded in a piecemeal way. No single coherent plan was put forward to fuse the courts, and commissioners and Lord Chancellors proved very cautious on the broader principle.[109] Instead, Chancery reformers responded to the common law changes, and vice versa, generating a mutual movement towards fusion. However, it gradually became evident that there were major problems in this approach relating to substantive law. These could not be ignored and would make fusion a more complex process than many initially assumed.

The aim of mid-century reformers was to enable both sets of courts to do complete justice in the cases that came before them by giving each certain powers hitherto exercised by the other, but without transferring the “core” business of one court to another. This meant that only certain parts of Chancery’s jurisdiction were to be transferred. In the nineteenth century, this jurisdiction comprised three aspects. First, the Chancery acted in a way auxiliary to the common law. For instance, through the use of the process of discovery it obtained information that a common law court could not acquire through its own procedures. Second, it had a concurrent jurisdiction over a number of areas, but was able to offer distinct remedies, notably injunction and specific performance, to vindicate rights recognized at common law. Third, it had an exclusive jurisdiction, for instance over trusts. Common law reformers after 1850 sought to give to their courts the Chancery’s powers in thefirst two areas, but not in the third.[110] Equally, the Chancery commissioners sought to give the Chancery the common law power to award damages and use a jury to determine disputed questions. It had already (in 1852) been given the power to determine any matter of law before it, without sending it to a common law court.[111] When promoting reform in the mid-century, reformers were thus aware that in many areas of increasing economic importance, litigants were unnecessarily forced to use both systems.[112] However, they did not seek to alter the substantive law; and indeed, the assumption was often made that there were no conflicting notions of law in the concurrent jurisdiction.[113]

The approach of the Chancery commissioners was cautious. They were diverted from the issue of fusion when they were asked, for their second report, to look at reforming the testamentary jurisdiction of the ecclesiastical courts. By the time of their third report, in 1856, piecemeal reforms both on the common law and Chancery side made them declare “that until the effect of these changes has been more fully ascertained by experience, we could not usefully prosecute our inquiries on the general subject of the jurisdiction of the Courts.”[114] Nonetheless, a number of important steps were taken. Particular attention was devoted to reforming the Chancery’s mode of taking evidence. The system introduced in 1852 had been designed to promote the use of affidavits when cross-examination was not needed and to allow an effective cross-examination when it was required. But it was soon criticized for being expensive and slow, and the commissioners were asked to look again at how to improve the taking of evidence. In a memorandum delivered in 1854, they argued that there was little need for oral evidence in Chancery and suggested tentative improvements in the new practice, including allowing evidence in chief to be by affidavit with viva voce cross-examination before an examiner. Their proposals were implemented by a General Order of 13 January 1855.

These reforms were perceived to be imperfect insofar as the evidence was still taken before examiners, who transmitted it in written form to the court. Many Chancery lawyers became increasingly convinced that its practice in this area should be assimilated to that of the common law, with evidence being given (in disputed cases) viva voce before the court.[115] W. T. S. Daniel told the Chancery Evidence Commissioners appointed in 1859 to look into the matter that wherever there was a dispute on the facts, there should be an oral examination in public, conducted by the parties in the presence of the judge who was to decide the cause.[116] For reformers like him, if the judge did not see the demeanor of the party testifying, but only read the affidavits prepared by a solicitor, he was liable to be misled, and justice would not be done. However, many saw this as incompatible with the nature of the Chancery. As the Chancery commissioners put it in 1852, not only would it be ruinously expensive to bring witnesses to London to testify, but “practically it would be impossible to carry on the business of a Court of Equity, if all the evidence were taken viva voce before the Judge.”[117] There was therefore a degree of pessimism among many lawyers as to whether the procedure of the two systems could ever be made wholly compatible; though it should be noted that county court judges had no doubts on the matter.[118] Indeed, Daniel retorted to the doubters that the number of Chancery cases involving disputed facts was small. Ultimately, he added, if the number of judges proved too few for the task, more would simply have to be appointed.[119] As it turned out, the Chancery Evidence Commissioners recommended that the trial of contested material facts should be conductedviva voce before the judge or a jury, and that no examination should be held before an examiner (save where it was taken ex parte) unless by consent of the parties interested. Cross-examination on affidavits was now to be before the court, not before the examiners. A set of orders was issued in 1860 that appeared to seal the fate of the examiners; but in fact, the practice of taking evidence out of court continued. Further orders were issued in 1861 to advance this “common law” way of proceeding in equity: but, as so often before, the ambition was frustrated by the working out of the detail.[120]

Where the Chancery commissioners were cautious, their common law counterparts were more ambitious. Indeed, they sought more extensive reforms than either Cranworth LC or the judges seemed to want. In their second report, they proposed giving to the common law courts wide powers of discovery, specific performance, and injunctions, even against threatened injuries.[121] The proposals seemed to take business away from Chancery and give it to the common law courts and St. Leonards was especially keen to remove those aspects that might promote fusion.[122] Both he and the cautious Lord Chancellor felt that the common law courts did not have the machinery to handle the investigations that might be necessary prior to the granting of equitable remedies; and in the event, the proposals to give the common law power to restrain threatened injuries was omitted. Nonetheless, the Common Law Procedure Act of 1854 did give the courts some powers of discovery, injunction, and specific performance, and conferred the power on the court to hear and consider equitable pleas and replications.[123] One reform now led to another. Thus, after the Common Law Procedure Act of 1854 passed, the Chancery commissioners recommended that their court be given the power to call a jury and to award damages.[124] Legislation to this effect wasfinally passed in 1858 by an act piloted by Sir Hugh Cairns SG, though the Chancery judges proved very cautious in exercising their new powers.[125]

In 1860, the common law commissioners reiterated their earlier view that the common law courts should have the powers of a court of equity to protect legal rights and enforce legal obligations. They reconfirmed that they were not interested in “pure” equity business, but only with equitable jurisdiction as was relevant to common law rights. They were frustrated both by the caution of the 1854 Act and by the fact that judges were taking a restrictive view of the powers it gave. Thus, the Court of Exchequer ruled in 1854 that it would only allow “such a defence as would in a Court of Equity be a complete answer to the plaintiff’s claim,” affording “sufficient ground for a perpetual injunction, granted absolutely and without conditions,” since the common law court lacked the machinery to compel the defendant to fulfil any conditions.[126] The commissioners were equally alarmed that defendants who had not raised equitable pleas in the common law courts were allowed to reopen their case on equitable grounds subsequently in Chancery; with the equity judges taking the view that it was optional, and not compulsory under the act, for a defendant at law to plead an equitable defense.[127] The commissioners wanted stronger steps to be taken to ensure that the case would be heard in one court only: the defendant should be compelled to raise any equitable plea he had at common law, with the case referred to the Chancery only if the judges felt unable to deal with it.[128] At the same time, they again proposed that there should be a power to issue injunctions against threatened wrongs. A bill embracing these ideas was drawn up by Willes and taken to the Lords by Campbell, but the common lawyers’ ambitions were to be frustrated. After being urged to do so by St. Leonards, Campbell referred the bill to the three Vice Chancellors and Master of the Rolls, whose condemnation of the measure—although answered by the common law commissioners[129]—in effect secured the fate of the bill, which passed only in emasculated form.

The debate over the Law and Equity Bill of 1860 brought into focus a number of arguments that had been made since 1850 against the possibility of fusion. Thefirst argument centered on the differences in procedure between the courts. There was some disagreement in the mid-century about whether Chancery’s pleading should be made more like that of the common law, or whether the common law should be approximated to Chancery.[130] However, many argued that the procedure in Chancery and at common law were necessarily distinct since equity dealt with administrative matters unsuitable for a jury, while the common law dealt with precise factual disputes suitable for such a body.[131] It was repeatedly argued that the common law courts did not have the machinery to consider the administrative questions that came before the Chancery[132] and that the method of pleading at common law was unsuitable for equitable questions.[133] In the eyes of the Chancery judges in 1860, the only way the common law courts could safely be given equitable powers would be to create all the offices of a court of equity within them, which would merely recreate the old inefficient Exchequer.

The second argument was more “cultural” and derived from the separation of the common law and equity bars. Even those who saw equity as “an excrescence on our system, arising from the imperfections in our Law” felt that there might be a better division of labor if there were distinct courts to deal with distinct parts of the same principles of jurisprudence.[134] If there were to be different legal and equitable rights—as the common law commissioners seemed to accept in 1860—then (in the view of the equity judges) parties should be free to choose the court best able to deal with each kind of right. Just as it was often admitted that equity barristers and judges were uncomfortable when dealing with oral evidence and juries, it was argued that common lawyers did not understand equity as well as Chancery men and would be less able to administer it. The danger of the Law and Equity Bill was that potential defendants in equity might be encouraged to get their blow infirst by becoming plaintiffs in Chancery, hoping for decisions in their favor from ignorant judges. This could result in clashing interpretations of equity in the two kinds of court. Apart being unlearned in equity, the common lawyers were also said to have a narrower, and more technical, approach to matters of doctrine, one less likely to do justice.[135]

These concerns led to a third question—could fusion only be achieved by reforming the substantive law? Although the two commissions of the 1850s proceeded by examining jurisdictional questions, they both admitted that there were also questions of substance to be addressed. The Chancery commissioners noted in 1852 that any measure of fusion “could not be effected as an isolated measure, but must be accompanied by a revision of the whole body of our laws.”[136] In the following year the common law commissioners acknowledged that there were clashes between law and equity, the remedy for which was to “make the law uniform by legislative enactment.”[137] In this debate, some commentators were skeptical over whether there could ever be an effective fusion of legal and equitable rights, while even those who were more optimistic saw it as a slow and gradual development.[138] The Law and Equity Bill alarmed many since it avoided all these questions, simply assuming that the common law judges would be able to handle questions of equity. It was seen to be “simply a bill for transferring the greater part of the jurisdiction of equity to the courts of common law.” The Chancery judges, concerned that the mere granting of parallel jurisdictions could not work—particularly if parties were barred from going to Chancery—therefore concluded that “no attempt should be made to alter our tribunals until a careful revision has been made of our whole law.”[139] St. Leonards called the proposal one for the confusion of judges rather than the fusion of law and equity. He declared that if there was to be a real fusion, “they must have a code of law” blending both together, making “the union an absolute and complete one.”[140] The common law commissioners, including Alexander Cockburn, responded by noting that this was to “put off the work to the Greek Kalends,” which was to say indefinitely.[141] If it was better to seek fusion by reforming substantive rather than ancillary law, it was not to be expected that such a code would be made in the foreseeable future. Indeed, the equity judges scarcely wanted to promote a code that would bring about substantive fusion. Theirs was an essentially defensive position: to protect their special knowledge and prevent its being eroded by greater powers being granted to the common law.

The difficulty of attempting separate reforms in each system was seen again in 1862 when Sir John Rolt brought a bill to make it compulsory for Chancery to try every question of fact and law on the determination of which title to relief at equity depended. The bill was brought since judges were still sending issues of fact for trial before common law judges, in spite of their powers granted in 1852. The bill was controversial with both branches of the profession. First, many common lawyers expressed the view that a clever plaintiff would choose to go to equity on a common law issue, banking on having his case heard by a less well-informed judge. Second, Chancery practitioners disliked the fact that it promised to generate more jury trials in Chancery, which they felt were time-consuming and unhelpful. As it turned out, the bill was watered down by allowing cases to be referred to the assizes.[142]

The question of fusion now went into abeyance. By the mid 1860s, it was generally agreed that any system that required a litigant to use two fora was deeplyflawed;[143] and yet the reforms hitherto attempted had clearly failed. The question returned to the agenda only after Roundell Palmer’s speech in February 1867 alerted Parliament to the unsatisfactory state of the courts. In fact, Palmer’s primary aim was not to resurrect the issue of fusion (on which his proposals were quite modest),[144] but to reform the common law courts and the appeal procedure. There had for some years been complaints about the common law courts, which were unfavorably compared with the Chancery. The whole question of reforming the superior courts was referred to the Judicature Commissioners, who realized that the traditional approach of giving each court the other’s powers would not work. A new, united court had to be created.[145] Nevertheless, the legal profession remained very keen on preserving a divisional structure that would echo the current division of courts.[146] On the basis of the recommendations of the commission, Lord Chancellor Hatherley introduced a bill in March 1870. It sought to create a single High Court of Justice with separate divisions, but left the details of the distribution of business between the divisions and of procedure to be determined by rules made by a majority of the judges.[147] However, the principle was included that all proceedings were to be instituted in the High Court and should be transferable from one division to another, and that procedure in each division should, as far as possible, be assimilated. Significantly, the bill was silent on matters of substance, for it was premised on an assumption (shared by the chairman of the Judicature Commission, Cairns) that the essential difference between law and equity was one of procedure and not of substance.

The bill provoked opposition both from those who thought it too cautious and from those who challenged the procedural assumption. For many, the bill seemed designed simply to perpetuate the old system. Lord West-bury pointed out that until the new procedure was agreed, the divisions would operate as if the legislation had not passed; and he seriously doubted whether equity and common law judges would agree on a code.[148] Moreover, the bill did not even make it clear whether law or equity was to prevail in case of a clash. In response to this problem, Lord Penzance introduced a new clause that said that any jurisdiction exercised hitherto by the Chancery or Admiralty “is declared to be part of the common law of England and to modify such common law to the extent which it differs therefrom.” This was a clumsy attempt to solve the problem. A number of lawyers accepting the “procedural assumption” argued that the clause was unnecessary: judges left to their own devices would easily resolve any problems, for they would all agree that in any clash, equity would be followed.[149]

Penzance’s amendment raised more complicated issues and provoked similar reactions from two senior men from both systems. Cockburn, the Lord Chief Justice, in stark contrast to his views in 1860, now observed that the difference between law and equity was essentially one of substance rather than one of procedure and that Penzance’s amendment was a bad way of dealing with matters of substance in a procedural bill. Converting equity into law by the stroke of a pen was “a somewhat rude and inartistic manner of dealing with so complicated a matter,” he wrote, suggesting that instead fusion needed to be preceded by a “careful collation of the two systems.”[150] In making this point, he was supported by a set of resolutions of all the common law judges save Willes, who declared that if this was not possible, at least the principles should be set out. Cockburn’s position seemed an odd one for a man professing to favor fusion, and a number of critics argued that this proposal was itself postponing fusion to the Greek Kalends.[151] In fact, Cockburn had identified a real problem with the broadly drafted clause, and his own position was less ambitious than it seemed. For as he told Selborne in 1873, when endorsing the principle of fusion, what he sought was a clause that “wherever Law and Equity are in conflict, Equity should supersede the law.”[152] In his hostility to the clause, he was echoed by Lord Romilly, longtime Master of the Rolls, who argued that “[y]ou will never get a perfect union of Law and Equity unless you make a code of laws which will, to a considerable extent, alter the character of the laws that now exist.” Romilly pointed out that there were areas of doctrine in which clashes between the approaches in the two systems needed resolution.[153] In response to these attacks, the clause was amended by Westbury. The new clause stated that equity “shall henceforth be blended and united with the common law of England, and (so far as there is any difference) shall control and modify” the common law; and in case of any conflict, equity was to prevail.[154]

Hatherley’s skeletal bill was ultimately withdrawn in the face of sustained hostility to the fact that its details were left to be worked out through a process of delegated legislation. The measure then lay dormant—and apparently abandoned[155]—until resurrected by Lord Selborne, the new Lord Chancellor, in 1873. Selborne’s handling of the bill was more diplomatic than that of Hatherley, and his bill fuller in its detail. Like Hatherley’s, his bill looked cautious. It was evident to both Selborne and Cairns that there would not be the kind of substantive fusion that would distinctly abolish equitable estates. To do so, Selborne pointed out, would be to abolish trusts, which was not what he had in mind. The distinction between law and equity, he said, was “real and natural, and it would be a mistake to suppose that what is real and natural ought to be disregarded.”[156] Attorney General Coleridge argued that, rather than attempting to fuse the two systems by enactment, it was “more philosophical … to say, not that the distinction should not exist, but that the Courts should administer relief according to legal principles when these applied, or else according to equitable principles.”[157] The bill once again distributed the business of the court under different divisions, with the Chancery division having jurisdiction over the traditional matter of equity, which required a distinct set of officers for its administration. Indeed, Fitzroy Kelly even told the Lord Chancellor that the “provisions respecting the assignment of Causes to the different divisions, will tend to keep alive the separation between Law and Equity which it is the object of the Bill to unite & amalgamate.”[158] A number of other commentators argued that it would have little short term effect on business; though some saw it as a useful precursor of a codification that might later follow.[159]

In response to concerns such as those earlier expressed by Romilly, the 1873 act enumerated which rule should prevail in a number of clashes and provided generally that in any cases of clashes not specifically dealt with under the act, the equitable rule was to prevail. However, that lawyers were not concerned with the issue of substantive fusion is shown by the fact that this clause, 25 (11) of the Judicature Act, was not regarded as especially significant.[160] Commenting on the act, the Solicitor’s Journal observed that the changes introduced by the bill were “of form or procedure merely” and that any changes in the substantive rights of litigants would “be the result of accident, arising merely from the change of personnel in the judges, by whom certain classes of questions will have to be decided, and not from the intention of producing any such effect on the part of the Legislature.”[161]

As in 1860, however, it was soon found that a bill that appeared to be procedural had great substantive ramifications; and once more, it was the equity lawyers who felt more under threat.[162] By the 1870s, it was becoming apparent that common lawyers and equity men had divergent views on matters falling within their concurrent jurisdiction. The clash of views was made clear by Bramwell, who declared in 1872 that “to relieve a man from his obligations on some supposed equitable considerations, seems to me a mischievous thing.”[163] The idea that there were rival cultures was vigorously challenged by many in the periodical press. It was argued that equity was not a set of mysterious principles, but a body of positive law capable of being understood by any lawyer.[164] However, equity lawyers remained worried. In a series of articles in the Saturday Review, G. W. Hemming argued that common law had largely ossified since Coke’s day and that English law had grown subsequently through the development of equitable principles. For him, since the spirit of law lay in the minds of living men, if the new system was to be dominated by common lawyers, the supremacy of equity and the development it brought would be ended.[165] The equity silks wrote a letter of protest, claiming that the bill endangered “the very existence of Equity jurisprudence.” Their juniors echoed these fears, declaring that the bill aimed “to occupy the Judges who have studied Equity mainly with administrative work, and to intrust litigation involving the gravest equitable questions to tribunals unfamiliar with the doctrines and out of harmony with the traditions of that branch of Jurisprudence.”[166] What they wanted was to ensure that there would be sufficient equity men in each branch of the court, so that men who understood the principles of equity could maintain them. When their spokesman in the Commons, Osborne Morgan, sought to include a provision in the bill requiring an equity man to be appointed in each division, the government resisted, asserting that such a provision would enshrine in a statute the very distinction they were seeking to eradicate.[167] Promises were made that equity men would be appointed throughout the system, but in the event, the effort to “mingle the waters” failed. Despite initial attempts to mix together judges from different backgrounds in the different divisions of the Supreme Court, cross-division appointments ceased by the 1880s. The fate of fusion would depend in the end on the attitudes and behavior of the personnel of the Supreme Court, and as the most recent historian of the reforms of 1873–75 has observed, “it is remarkable how rapidly and thoroughly the divisional divide was recreated.”[168] If reformers hoped in the early 1870s that fusion would naturally occur once the judges who had been trained in two separate jurisdictions had to apply both, they were to be disappointed.

The act of 1873 did not set out to effect substantive fusion. In spite of Jessel MR’s famous contention in Walsh v. Lonsdale that “legal and equitable estates are now one,”[169] most judges and commentators agreed that the act dealt with remedies, and not rights, and that law and equity could continue to develop along separate lines.[170] Equity and common lawyers continued to see their areas as distinct.[171] Indeed, the “fusion” of 1873 did as much to show up the rival approaches of common law and equity as to resolve them. From the middle of the nineteenth century, reformers had been motivated by the idea that what divided law and equity was essentially their different machinery and procedures, rather than their principles. According to that vision, making a single court should have led to a natural fusion. But, as it turned out, men trained in the different branches retained different ideas about substantive questions. And because the personnel of the divisions and the bars remained distinct, a “separate equity consciousness [remained] alive and functioning in English law.”[172]

In tracing the ongoing history of fusion, it is perhaps wise to look to 1852 as a starting point. It was only after the chronic inefficiencies of Chancery’s procedure and structure had been addressed that it was possible to contemplate how to achieve fusion, which now seemed to be the logical path to follow. This demanded careful consideration of questions of principle. Yet, as we have seen, Chancery reformers often failed to reach clear conclusions when they were asked to consider issues of broad policy or principle. Whether it involved looking at the number of judges needed, what role the Lord Chancellor should perform, or how to unite the substantive rules of law and equity, they were all too often content to leave it to another time to resolve. They were at their strongest when it came to pragmatic, piecemeal reforms that would benefit the solicitor or his client in speeding up litigation or reducing court costs. Moreover, lawyers remained in control of the process of reform: no Benthamic invective was ever strong enough to sweep away the separate institutions of the common law and Chancery. If the path to fusion wasfirst taken in 1852, it did not end in 1875. Along the way, subtle and complex questions were raised that had not hitherto been fully thought through and needed a breadth of vision that pragmatic lawyers all too often lacked.

Michael Lobban is professor of legal history at Queen Mary, University of London <[email protected]>. Thefirst part of this article appeared inLaw and History Review 22.2 (Summer 2004).

Notes

1.Parl. Debs., third ser., 1: 1268 (16 December 1830). One crucial difference was that Sugden opposed separating the bankruptcy from the equity jurisdiction, which was one of Brougham’sfirst measures.

2. For the wider contexts of law reform, see my articles “Henry Brougham and Law Reform,” English Historical Review 115 (2000): 1184–1215 and “‘Old Wine in New Bottles’: The Concept and Practice of Law Reform, 1780–1830,” in Rethinking the Age of Reform: Britain 1780–1850, ed. Arthur Burns and Joanna Innes (Cambridge: Cambridge University Press, 2003), 114–35.

3. H. W. Weston, Chancery Infamy; or a plea for an Anti-Chancery League (London: Effingham Wilson, 1850), 4; cf. [Charles Purton Cooper] Lettres sur la cour de la chancellerie et quelques points de la jurisprudence angloise (London: Longman et Compagnie, 1827), 7. Until reforms piloted by Sugden in 1830 (1 Wm. 4 c. 36), stories abounded of poor suitors being jailed for contempt of Chancery, which was condemned as “the archinvader” of people’s liberty: Law Magazine 4 (1830): 410. See also Parl. Debs, new ser., 14: 1178 (Joseph Hume, 7 March 1826); ibid., 15: 298 (Hume, 18 April 1826); ibid., 22: 369 (Sir Edward Sudgen, 11 February 1830). See also Law Times 33 (1859): 233 for the death of a prisoner committed by Eldon for contempt of Chancery.

4. See Weston, Chancery Infamy, and William Carpenter, The Equity Jurisdiction of the Court of Chancery (London: Effingham Wilson, 1850); both reviewed in Law Review 13 (1850): 193–208. Weston had petitioned the Commons individually in 1850 complaining of delay in a Chancery case he was engaged in and calling for reforms; and in 1851 the Chancery Reform Association petitioned (with one formal signatory) for the abolition of the equity jurisdiction of the Chancery; while petitions for Chancery reform were also received from Aberystwyth and Exeter. By contrast, 1850 saw seven petitions for law reform from various law societies.

5. See, e.g., V. Markham Lester, Victorian Insolvency: Bankruptcy, Imprisonment for Debt and Company Winding Up in Nineteenth-Century England (Oxford: Clarendon Press 1995), 64–67, 126ff.

6. 19 & 20 Vict. cc. 60, 97.

7. See Law Times 28 (1856): 181, 251. For the Social Science Association, see Lawrence Goldman, Science, Reform and Politics in Victorian Britain: The Social Science Association, 1857–1886 (Cambridge: Cambridge University Press, 2002).

8. The Joint Stock Companies Act of 1844 (7 & 8 Vict. c. 110) set up a system of registered companies and was followed by the Joint Stock Companies Winding Up Act of 1848 (11 & 12 Vict. c. 45), which gave masters in Chancery powers (analogous to those held by commissioners of bankrupts) to wind up the affairs of companies and to appoint official assignees to control the assets of companies being wound up.

9. Lobban, “Henry Brougham,” 1193.

10.Legal Observer 23 (1841): 18.

11. The act was 3 & 4 Wm. 4 c. 94, which gave the powers for a five-year period. See also the comments in Legal Observer 23 (1841): 81

12. For instance, the Chancellor’s informal commission consulted in 1841–42 with a committee set up by the Incorporated Law Society on how to reform the court. See Field’s comments in Legal Observer 27 (1844): 238.

13. 2 & 3 Wm. IV cc. 111, 122.

14. Brougham wanted to retain a proportion of payment by fee, in order to stimulate exertion. However, he was defeated in the Commons on this, after the Select Committee on Chancery Offices favored salaries: P[arliamentary] P[apers] 1833 (685) XIV 1 at p. 3. In order to stimulate the masters, it was enacted that they provide annual returns of work done in their offices.

15. 3 & 4 Wm. IV. c. 94.

16.Parl. Debs., third ser., 20: 829 (22 August 1833). Further savings were to be effected in the masters’ offices, including a cut of £14,000 in the total payments to be made to the masters.

17. See Legal Observer 6 (1833): 501; E. W. Field, Observations of a Solicitor on defects in the offices, practice, and system of costs of the Equity Courts (London: William Pickering, 1840), 23.

18. Field, Observations, 5.

19.Parl. Debs., third ser., 55: 1317 (5 August 1840).

20. 5 & 6 Vict. c. 103. This reform turned out to be the only concrete result of their deliberations; but it was itself urged on them by the profession: see Legal Observer 27 (1843): 177; Parl. Debs., third ser., 86: 186 (Sir F. Thesiger, 7 May 1846); Law Magazine 29 (1843): 308–35.

21. There was much anger at the detail: since the compensations were to be paid out of the Suitors Fee Fund, rather than out of the Consolidated Fund, their level was not determined by the Treasury (under 3 & 4 Vict. c. 94), but by orders issued on 6 December 1843 by the Lord Chancellor (under 5 & 6 Vict. c. 103). These orders based the calculation of compensations on an average of the receipts in their offices over the previous three years, an era agreed to have been one of unusually high receipts: Legal Observer 27 (1843): 145, 161, 193; ibid., 28 (1844): 1. Romilly claimed that the sworn clerks had for many years hidden the actual amount they received, fearing that the Chancellor would reduce their fees, and so obtained a higher level of compensation than they were really entitled to: Parl. Debs., third ser., 86: 211 (7 May 1846).

22.Legal Observer 25 (1842): 5.

23. W. H. Watson pointed out, when calling for a select committee in 1846, that the Chief Justice of England had a salary of £10,000 but only currently drew £8,000: Parl. Debs., third ser., 86: 181 (7 May 1846).

24.Law Times 23 (1854): 43. Though there was a great outcry over the sums these men received, it was generally overlooked that the purchasers of these offices continued to pay for them out of the compensations received: John Wainewright continued to pay one half of the compensation on the parts of the business he bought from S. H. Lewin to his personal representatives. PP 1846 (219) XXXIII 225, p. 67.

25. Nonetheless, by 1849, the number of offices paid by fees was relatively small: see Report from the Select Committee on Fees in Courts of Law and Equity PP 1849 (559) VIII.

26. These dividends ran to nearly £83,000 in 1842 and almost £100,000 three years later: PP1843 (64) XLIV 153; PP1846 (43) XXXIII 215. The Master of the Rolls and the Vice Chancellor of England were paid from the consolidated fund under 6 Geo. IV c. 84.

27. See William Challinor, The Court of Chancery; Its inherent defects, as exhibited in its system of procedure and of fees; with suggestions for a remedy. Also an appendix, containing extracts from evidence taken before the select committee on fees, 2nd ed., (London: Stevens & Norton, 1849), 20; Letter from ‘R’ in Legal Observer 36 (1848): 427.

28. First Report of the Select Committee on Fees in Courts of Law and Equity, PP 1847–8 (158) XV.1, p. 148. A series of orders in the 1840s reduced fees on office copies. In 1846, Thesiger AG had put the saving to suitors, thanks to the reduced fees, at £16,000: Parl. Debs., third ser., 86: 191 (7 May 1846).

29. Using Aglionby’s return, Pemberton had told the Commons in 1840 that in the previous year, the Sworn Clerks received some £60,000 in fees. Parl. Debs., third ser., 55: 1317 (5 August 1840). Field estimated their income at between £58,000 and £80,000 a year: Observations, 13ff.

30. PP 1847–48 (158) XV.1, pp. 146–49. See also Field’s views at PP 1847 (643) VIII.25, p. 34; cf. Legal Observer 27 (1844): 225; and Law Review 7 (1848): 361–72.

31. Report from the Select Committee on Fees in Courts of Law and Equity: PP 1849 (559) VIII.289, xvii–xviii.

32. See PP 1847–8 (158) XV.1, pp. 1–5. However, the report in 1849 noted that junior clerks did demand payment for unnecessary “excuse copies”: PP 1849 (559) VIII.289, p. 11.

33. See Second Report of the Select Committee on Fees in Courts of Law and Equity, PP 1847–8 (307) XV; Legal Observer 36 (1848): 45.

34. 15 & 16 Vict. c. 87. See Legal Observer 43 (1852): 286; Parl. Debs., third ser., 122: 833 (St. Leonards LC, 17 June 1852).

35.Parl. Debs., third ser., 123: 178 (16 November 1852). See also his evidence to Select Committee on Official Salaries, PP 1850 (611) XV 179, p. 219, qq. 2150–51.

36. See Aglionby’s comments in Parl. Debs., 118: 166 (3 July 1851). St. Leonards LC, hoping for the disappearance of all fees, also wanted the Suitors’ idle money to be invested on their behalf, after a period of two years during which it could be drawn on by the state: Parl. Debs., third ser., 123: 175 (16 November 1852).

37. In 1868, thirteen Sworn Clerks still received over £14,300 in compensation: PP 1868–9 (34) LI. 107. This was half that paid in 1860: PP 1861 (84) LI. 477.

38.Parl. Debs., 57: 1162 (27 April 1841). The Suitors’ Fund had, of course, been drawn on at numerous points in the eighteenth century for erecting new buildings. Wilde’s motion had been prompted by the ILS, and a select committee subsequently investigated. For a history and comments on the potential use of the Suitors’ Fund, see Legal Observer 44 (1852): 23.

39.Parl. Debs., 130: 726 (16 February 1854). His opinion was doubtless also informed by his hostility to the idea of moving the common law courts from Westminster.

40.Parl. Debs., third ser., 198: 1061 (2 August 1869).

41. See PP 1852 (216) XLII. 541.

42.Legal Observer 25 (1842): 143.

43. The ILS echoed these demands in its report three years later, also seeking an optional alternative, simpler system, than commencing cases by bill and answer: PP 1852 (216) XLII. 541, at p. 5.

44.Law Review 8 (1848): 406.

45.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), 8.

46. See Law Review 9 (1848): 1–22. Among Field’s suggestions in 1840 was “To require one master, or a court of masters … to sit as a Court to hear all such matters as are attended by counsel, and also all applications as to bringing in documents, or for time, for enlarging publication, and execution of documents.” Observations, 47–48. Those in favor of simpler procedures for initiating cases in administration suits included George Spence. Legal Observer 25 (1842): 149, 184.

47. J. H. Merivale, Letters to a Chancery Reformer, occasioned by the withdrawal of the late bill for facilitating the administration of justice (London: William Pickering, 1841), 17–18.

48. See the comments of T. E. Headlam, chairman of the LAS’s equity committee in Law Review 8 (1848): 245.

49. Charitable Trusts Bill: Parl. Debs., third ser., 120: 208 (26 March 1852). Compare also the proposals to give masters in lunacy original powers. See Parl. Debs., third ser., 120: 348 (3 March 1852). Both measures were overtaken by the Chancery reforms of 1852, and both saw regulation acts pass in 1853: the Lunacy Regulation Act (16 & 17 Vict. c. 70) and the Charitable Trusts Act (16 & 17 Vict. c. 137).

50. See the proposals of the LAS equity committee in Law Review 7 (1847): 70. The committee added that if the parties chose to use a bill and answer, the court should be able merely to declare the rights of the parties, leaving it to the parties to go to the master “there to adduce such evidence as might enable him to apply the decision to the particular facts.”

51. Farrer, Observations, 19.

52.Law Review 10 (1849): 109.

53.The Times, 21 November 1840, quoted in Legal Observer 21 (1840–41): 52. See also the letter of “Peter Purge” in January 1841, in ibid., 179. The idea that a judge should work out his own decrees was also put forward in James Stewart’s Suggestions as to reforms in some branches of the law (London: Longman, Brown, Green, and Longmans, and E. Spettigue, 1842) and was suggested to Langdale by William Brougham in February 1842: W. Brougham, A Letter to Lord Chancellor Cottenham upon the Bill to give primary jurisdiction to the masters in ordinary of the Court of Chancery in Certain Cases (London: William Pickering, 1850), 4–5. According to Langdale, the question was debated at length by the Lord Chancellor’s informal commission, but no conclusions were reached: PP 1847–8 (158) XV.1, p. 159. See also M. D. Lowndes, Delays in Chancery considered, with Practical Suggestions for their prevention or removal (London: S. Sweet, 1843); Legal Observer 21 (1841): 269.

54.Legal Observer 25 (1842): 161. This would not however entail new courts, for the judges would sit alternately in court and in chambers. Stewart, Suggestions, 52, proposed six judges.

55.Legal Observer 21 (1841): 227.

56. See, e.g., Farrer, Observations, 28.

57. PP 1847–48 (158) XV.1, pp. 167–68. The select committee ultimately recommended a reduction in the number of masters, rather than their abolition.

58.Law Review 6 (1847): 122–42 at 133.

59. Ibid. 7 (1847): 69; cf ibid., 10 (1849): 107.

60. Ibid. 9 (1850): 446–48.

61. This was not, however, seen as a rival principle: see William Brougham, Letter, 5–8.

62.Legal Observer 38 (1849): 41. See also Law Review 8 (1848): 402–12, reviewing the MPLA’s memorial to the Lord Chancellor on desired reforms.

63. See Law Review 12 (1850): 162–67.

64.Parl. Debs., third ser., 111: 1128 (12 June 1850). Turner himself preferred giving judges greater powers to handle cases in chambers rather than referring them to masters: Parl. Debs., third ser., 110: 121 (9 April 1850).

65. 13 & 14 Vict. c. 89. It allowed for cases to commence by petition, for opinions of the court to be given on a special case, and for masters to have greater powers and proceedings in their offices to be facilitated. For comment, see Law Review 13 (1850): 321–22.

66. Brougham MSS, University College, London MS WB: Cottenham to Henry Brougham (1 June 1850). Brougham, when later stressing to Russell the need to abolish the masters, dismissed Cottenham as one of the “enemies of all change in the Law.” The National Archives, London, PRO 30/22/9C, f. 5 (18 April 1851).

67.Law Times 15 (1850): 124. The claim procedure was to be used in cases of creditors and legatees of deceased persons, administrators seeking court protection, as well as mortgages, trusts, and partnerships.

68.Legal Observer 40 (1850): 1.

69. 13 & 14 Vict. c. 35. Turner’s act was a significant step in Chancery reform, since it allowed a decision to be obtained without the expense of a suit involving all interested parties, where there were no facts in dispute and the sole question between the parties was how a document applied to them. It also provided some facilities to executors and administrators to protect themselves from liability for future claims. See Law Review 13 (1850): 324. Another important piece of legislation of this year simplifying procedure was the Trustee Act (13 & 14 Vict. c. 60), for which see Chantal Stebbings, The Private Trustee in Victorian England (Cambridge: Cambridge University Press, 2002), 51.

70. Stuart to Russell, Cottenham to Russell, TNA PRO 30/22/6C, ff. 118, 116 (April 1847); Parl. Debs., third ser., 119: 1468 (J. Stuart, 16 March 1852), 1463 (Sir W. P. Wood).

71.Parl. Debs., third ser., 118: 648 (14 July 1851).

72. See Sir James Graham’s comments in Parl. Debs., third ser., 118: 1373 (27 June 1851). Truro’s caution is reflected in his observation that it should not be the aim to reform the complex Chancery all at once. Ibid., 1771 (31 July).

73. PP 1852 (216) XLII. 541.

74.Parl. Debs., third ser., 117: 98 (27 May 1851); ibid., 118: 1359 (27 June 1851).

75. Both men had been active on the select committee on fees and saw that the need for reform in the masters’ offices was crucial: see Parl. Debs., third ser., 117: 719 (Henley, 13 June 1851); ibid, 118: 1374 (Graham, 27 June 1851).

76.Parl. Debs., third ser., 117: 446 (5 June 1851).

77. TNA PRO 30/22/9C, f. 5 (Brougham to Russell, 18 April 1851).

78. Select Committee of the House of Lords on the Masters Jurisdiction in Equity Bill, PP 1852 (564) XIII 131, qq. 774–75, 855. In fact, in 1848, Langdale had already told the select committee on fees that “a Judge sitting out of court and without the attendance of counsel, might do several things which would prevent a good deal of expense in the Masters’ Office; and as far as I am concerned, I have been and am perfectly ready to make the experiment.” PP 1847–8 (158) XV.1, p. 158. Another obstacle to this reform was removed with the appointment to the Court of Appeal in Chancery of Knight Bruce, who had positively declared “he never will demean himself to step down from his exalted Position to demean himself by going into Southampton Buildings.” Diary of Charles Pugh, Bodleian Library, MS Eng Misc d 467, f. 244.

79. First Report of the Commissioners appointed to inquire into the Process, Practice and System of Pleading in the Court of Chancery: PP 1852 (1437) XXI 1 at p. 31. Parl. Debs., third ser., 119: 600 (16 February 1852).

80.Parl. Debs., third ser., 119: 412 (12 February 1852), 1463 (W. P. Wood, 22 March 1852); ibid., 142: 9 (St. Leonards, 6 May 1856). Truro did not seem on top of the issue of Chancery reform: he admitted in June 1851 (for instance) to being unfamiliar with Romilly’s Irish measure: ibid., 117: 331.

81. St. Leonards saw the abolition of the masters as the root of Chancery reform. See Parl. Debs., third ser., 119: 950 (12 March 1852); ibid., 120: 802 (19 April 1852).

82. 15 & 16 Vict. c. 80; Legal Observer 44 (1852): 1; Parl. Debs., third ser., 120: 798 (19 April 1852).

83. Bodleian Library, MS Eng misc d 467, f. 328.

84. PP 1852 (1437) XXI 1 at p. 14. This resulted in the act 15 & 16 Vict. c. 86. See also St. Leonards’s comments in Parl. Debs., third ser., 119: 952 (12 March 1852).

85. Under the old system, parties were able to cross-examine, but since they could not see the evidence in chief until the moment of publication, they had to submit their questions to the examiner in ignorance of the evidence in chief. Few litigants chose to cross-examine, since they ran the risk of inadvertently elicting information damaging to their case. However, where matters came before the court by petition, claim, or on interlocutory matter, evidence was by affidavit. See PP 1852 [1437] XXI 1 at p. 7.

86.Parl. Debs., third ser., 123: 179 (16 November 1852: St. Leonards).

87. See Parl. Debs., third ser., 151: 162 ff. (22 June 1858). Cf. Law Times 32 (1859): 183; Solicitor’s Journal 9 (1865): 874.

88.Parl. Debs., third ser., 160: 1635 (21 August 1860, Sir James Graham).

89.Solicitor’s Journal 17 (1873): 265.

90.Solicitor’s Journal 14 (1870): 568. Romilly’s decision was taken to the court of appeal, where James LJ ruled, “I do not think that I ought to interfere with the discretion of a Judge as to the degree of weight he thinksfit to give to the conclusion of his Chief Clerk, provided he looks into the matter himself, which, of course, he is bound to do, since he cannot delegate his judicial functions”: Re Albert Average Assurance Association (1870) LR 5 Ch App 597 at 600.

91.Solicitor’s Journal 13 (1868): 91; ibid. 14 (1869): 3.

92. PP 1874 [C. 984 – I] XXIV. 191, PP 38, 41, 42, 43.

93.Law Times 16 (1850): 206; ibid. 17 (1851): 165; cf. ibid. 20 (1853): 192.

94.Law Review 8 (1848): 387–401; ibid. 12 (1850): 366–98; ibid. 13 (1850): 65–87; ibid. 13 (1851): 213–50. See Lobban, “Henry Brougham,” 1212. Field visited again in 1851 and gave more information: Law Times 20 (1852): 10.

95. Society for Promoting the Amendment of the Law, First Report of the Special Committee on the Policy of the Distinction between Law and Equity Procedure (London 1851), 7.

96. John Pitt Taylor lobbied the Peelites in late 1851, hoping to make fusion “a very popular husting cry.” Brougham MS 16543: December 1851.

97.Law Times 32 (1859): 170; ibid. 7 (1846): 242; Parl. Debs., third ser., 117: 716–17 (6 June 1851). Bethell himself claimed to have raised the matter with judges and lawyers in the mid 1850s: Law Times 32 (1859): 140; Parl. Debs., third ser., 199: 523 (18 February 1870). From 1855, he regularly called for fusion at the Juridical Society as well as in parliament: Parl. Debs., third ser., 144: 1246 (24 February 1857); Law Times 48 (1870): 445.

98. Much of Bethell’s legislative attention as Solicitor General after 1855 was devoted to the question not of fusion, but of whether the testamentary jurisdiction of the ecclesiastical courts should be transferred to a new Court of Probate (as proposed in the Second Report of the Chancery Commissioners, in 1854) or whether it should be given to the Chancery (as Bethell himself favored). See Brian G. Hutton, “The Reform of the Testamentary Jurisdiction of the Ecclesiastical Courts, 1830–1857” (Brunel Univ. Ph.D. thesis, 2002).

99. A. J. Johnes, Popular Proofs of the fallacy of recent Government plans for the reform of the Superior Courts, and of the unjust application of the public taxes on which they are founded; with remarks on the necessity of a local administration of the law in Chancery, common law, bankruptcy and other cases. In a letter to Lord Brougham and Vaux (London: V. & R. Stevens and G. S. Norton, 1853), 17.

100.Parl. Debs., third ser., 118: 421 (10 July 1851). For comment, see Law Times 16 (1851): 545. Brougham dropped the bill in order to smooth the passing of the legislation to reform the Chancery in 1852. His hesitation to press this bill in 1852–53 was also linked to his awareness that the matter would be considered by the Chancery and County Court Commissioners. See his letter to Denman in Law Review 17 (1852): 141–44 and Parl. Debs., third ser., 122: 1353 (29 June 1852).

101. E. W. Cox’s Law Times was very keen on the measure: vol. 24 (1854): 25; ibid. 26 (1856): 173, 245. But the Solicitor’s Journal 3 (1859): 462 was less enthusiastic.

102. 28 & 29 Vict., c. 99. See Patrick Polden, A History of the County Court, 1846–1971 (Cambridge: Cambridge University Press, 1999), 59–60.

103. Cranworth’s speech is in Parl. Debs., third ser., 124: 41 (14 February 1853). On reactions to him, see Law Review 18 (1853): 1–32; ibid. 28 (1857): 290.

104.Parl. Debs., third ser., 130: 1343 (22 February 1854); ibid., 124: 48 (14 February 1853); ibid., 133: 793 (23 May 1854).

105.Parl. Debs., third ser., 150: 1444 (3 June 1858).

106. See Parl. Debs., third ser., 118: 847 (Cockburn, 16 July 1851); John Pitt Taylor to Brougham; Brougham MS 13160 (31 July 1851) and Brougham MS 13169 (1 September 1852); and E. W. Cox to Brougham, Brougham MS W.B. (19 July 1851).

107. Charles Francis Trower, The Anomalous Condition of English Jurisprudence (London: J. Hatchard & Son, 1848), 73, 77.

108. See Bethell’s view in Law Times 16 (1851): 353; and the LAS equity committee’s view in First Report, 16.

109. Chancery Commission, PP 1852 [1437] xxi 1 at pp. 2–3; Cranworth LC in Parl. Debs., third ser., 124: 48 (14 February 1853).

110. This was not a new idea: see J. H. Merivale, A Letter to William Courtenay Esq, on the subject of the Chancery Commission (London: John Murray, 1827), 33.

111. 15 & 16 Vict. c. 86.

112. One prominent example that saw statutory reform was the law of patents: 15 & 16 Vict. c. 83, s. 42.

113. Brougham was said to have noted “that equity is the same as the law on the same state of facts and the same question and only differs when either the facts differ or there is a different and larger question raised”: Law Times 55 (1873): 40.

114. Third Report of Her Majesty’s Commissioners appointed to inquire into the Process, Practice and System of Pleading in the Court of Chancery, PP 1856 [2064] XXII 1 at p. 3.

115.Law Times 33 (1859): 62. See also Solicitor’s Journal 3 (1859): 733.

116. PP 1860 [2698] XXXI 279 at pp. 34–35.

117. PP 1852 [1437] XXI 1 at 21. See also Lord St. Leonards’s dissenting report to the Chancery Evidence Commission: PP 1860 [2698] XXXI 279 at p. 12.

118. Compare Solicitor’s Journal 3 (1858): 22 and 966.

119.Solicitor’s Journal 3 (1859): 967.

120. PP 1860 [2698] XXXI 279 at pp. 8–9. The proposals were implemented by a General Order of 5 February 1861, issued under the authority of 23 & 24 Vict. c. 128. See the comments of the Law Times 36 (1860): 14, and the Judicature Commissioners, PP 1868–9 XXV [4130] 1, p. 6.

121. PP 1852–3 [1626] XL 701 at p. 43.

122.Law Times 23 (1854): 101.

123. Common Law Procedure Act 1854 (17 & 18 Vict. c. 125), ss 50ff (discovery), 68–70 (specific performance by mandamus), 79 (injunctions), 83, 85 (equitable defenses and replications).

124. A bill to that effect was brought in 1854 (after the commissioners had made the recommendation to the Lord Chancellor) but not pursued. Parl. Debs., third ser., 135: 1369 (7 August 1854); Law Times 23 (1854): 169.

125. 21 & 22 Vict. c. 27. See Michael Lobban, “The Strange Life of the English Civil Jury, 1837–1914,” in The Dearest Birthright of the People of England: The Jury in the History of the Common Law, ed. John Cairns and Grant McLeod (Oxford: Hart Publishing, 2002), 182. On the doctrinal difficulties raised by equity’s jurisdiction to give “damages in equity” experienced after the passing of the Judicature Acts, see J. A. Jolowicz, “Damages in Equity—A Study of Lord Cairns’s Act,” Cambridge Law Journal 34 (1975): 224–52; Joshua Getzler, “Equitable Compensation and the Regulation of Fiduciary Relationships,” in Restitution and Equity, vol. 1, Resulting Trusts and Equitable Compensation, ed. Peter Birks and Francis Rose (London: Mansfield Press, 2000), 235–57; see also P. M. McDermott, “Jurisdiction of the Court of Chancery to Award Damages,” Law Quarterly Review 108 (1992): 652–73.

126. This was Parke B’s view in Mines Royal Society v. Magnay (1854) 10 Exch 482 at 493, though it was described as “a rather narrow construction” by Crowder J in Chilton v. Carrington (1855) 16 CB 206 at 210.

127.Phelps v. Prothero (1855) 7 De G. M. & G. 722; Kingsford v. Swinford (1859) 28 LJ Rep (Eq) 413; and Gompertz v. Pooley (1859) 28 LJ Rep (Eq) 484, 4 Drewry 448. Cf. Wild v. Hillas (1858) 28 LJ Rep. (Eq) 170.

128. PP 1860 [2614] XXXI 341, pp. 12–13.

129. For the texts, see Solicitor’s Journal 4 (1860): 408, 639.

130. Contrast, e.g., Farrer, Observations, 17, with Law Times 16 (1851): 352.

131. Chancery Commission, PP 1852 [1437] xxi 1 at p. 2.

132. Thus, St. Leonards pointed out in 1853 that if the common law were to have the same jurisdiction as Chancery, it would need this machinery, but in the meanwhile, it was better to send cases from one court to another. Parl. Debs., third ser., 124: 66.

133. These arguments were marshaled against the Law and Equity Bill in 1860, as they had been against a preceding bill brought by Atherton in 1858 to secure the original aims of the Common Law Commissioners. Solicitor’s Journal 2 (1858): 597; ibid. 4 (1860): 359. Cf. ibid. 3 (1858): 21; Law Times 32 (1859): 170. See also Cranworth’s speech in Parl. Debs., third ser., 158: 12 (24 April 1860).

134. Collier: Parl. Debs., third ser., 123: 766 (29 November 1852).

135. The Solicitor’s Journal 4 (1860): 444 argued that this was evident from the rival interpretations of the Patent Law Amendment Act (15 & 16 Vict. c. 83 s. 42) in Patent Type Founding Co. (Ltd.) v. Lloyd (1860) 5 H. & N. 192 (before the Exchequer judges) and Patent Type-Founding Co. v. Walter (1860) Johns 727 (before Page Wood VC).

136. Chancery Commission, PP 1852 [1437] xxi 1 at p. 2.

137. PP 1852–3 [1626] XL 701 at p. 45.

138. E.g., Law Times 32 (1859): 171; Solicitor’s Journal 2 (1858): 597.

139.Solicitor’s Journal 4 (1860): 358, 409.

140.Parl. Debs., third ser., 158: 12, 8 (24 April 1860). See also ibid., 178: 1182 (28 April 1865).

141.Solicitor’s Journal 4 (1860): 664.

142. 25 & 26 Vict. c. 42. See also the debate in Parl. Debs., third ser., 166: 115 (26 March 1862).

143. See H. J. Francis’s speech to the MPLA Solicitor’s Journal 10 (1866): 206.

144. See Parl. Debs., third ser., 185: 848 (22 February 1867).

145. PP 1868–9 XXV [4130] 1, p. 6. They went further than the solicitors of the ILS and MPLA, who still in 1869 wanted a cautious assimilation of procedure in the two systems: see Solicitor’s Journal 14 (1869): 69.

146. In February 1868, the Associated Committees of Law Societies noted that “The general division of legal business effected by the present system is very convenient; and … it is desirable that the work of the Courts shall as much as possible continue to pass through its present channels.” Quoted in Parl. Debs., third ser., 214: 342.

147. The original bill is printed in Law Times 48 (1870): 393.

148.Parl. Debs., third ser., 200: 176 (18 March 1870).

149.Solicitor’s Journal 14 (1870): 548; Law Times 48 (1870): 488.

150. A. Cockburn, Our Judicial System: a letter to the Lord High Chancellor on the proposed changes in the judicature of the country (London: William Ridgway, 1870), 27.

151.Solicitor’s Journal 14 (1870): 613, 605.

152. Selborne MSS, Lambeth Palace Library, MS 1865, ff. 215–16.

153.Parl. Debs., third ser., 200: 2039 (29 April 1870). He pointed to the different treatment of estates for life without impeachment of waste.

154. PP 1870 (180) II 187.

155. See the attitudes to the question of Sir George Jessel SG and Sir John Coleridge AG in Parl. Debs., third ser. 212: 1929, 1941 (26 July 1872) .

156.Parl. Debs., third ser. 214: 339 (13 February 1873). Cf. Cairns’s comments at ibid., 361.

157.Parl. Debs., third ser., 216: 645 (9 June 1873).

158. Selborne MSS, Lambeth Palace Library, MS 1865, f 221v.

159. See Solicitor’s Journal 17 (1873): 361, 389; Law Times 55 (1873): 302, 132, 267.

160. See F.W. Maitland, Equity: A Course of Lectures, ed. A. H. Chaytor and W. J. Whittaker, rev. John Brunyate (Cambridge: Cambridge University Press, 1936), 152; R. P. Meagher, J. D. Heydon, and M. J. Leeming, Equity: Doctrines and Remedies, 4th ed. (Sydney: Butterworths LexisNexis, 2002), 50.

161.Solicitor’s Journal 16 (1873): 662.

162. There were, however, some who saw in the bill an “intentional subordination” of the common law to the Chancery: Law Magazine and Review, new ser., 2 (1873): 538. Cockburn had taken a similar view in 1870.

163.Preston v. Dania (1872) 8 L.R. Exch 19 at 22.

164.Law Times 55 (1873): 40; Solicitor’s Journal 17 (1873): 552–54.

165. G. W. Hemming, Thoughts on the Fusion of Law and Equity suggested by the Lord Chancellor’s Bill (London: Macmillan & Co., 1873), 15–20.

166.The Times, 28 April 1873, 8f.; 1 May 1873, 12d.

167.Parl. Debs., third ser., 216: 647–48 (9 June 1873). See also Fitzroy Kelly’s letter to Selborne, 11 Feb. 1873, Selborne MSS, Lambeth Palace Library, MS 1865, f. 221v.

168. Patrick Polden, “Mingling the Waters: Personalities, Politics and the Making of the Supreme Court of Judicature,” Cambridge Law Journal 61 (2002): 592.

169.Walsh v. Lonsdale (1882) 21 Ch. D. 9 at 14–15. But compare his statement in Salt v. Cooper (1880) 16 Ch D 544 at 549 and Joseph v. Lyons (1884) 15 QBD 280 at 286.

170. Per Lord Watson in Ind. Coope & Co v. Emmerson (1887) 12 App Cas 300, 308. See also Maitland, Equity, 148, Ashburner’s Principles of Equity, 2nd ed. by Denis Browne (London: Butterworths, 1933), 18, and Meagher, Heydon, and Leeming, Equity: Doctrines and Remedies, 52ff. on the “fusion fallacy.”

171. See Simon Gardner, “Equity, Estate Contracts and the Judicature Acts: Walsh v. Lonsale Revisited,” Oxford Journal of Legal Studies 7 (1987): 60–103.

172. Joshua Getzler, “Patterns of Fusion,” in The Classification of Obligations, ed. P. B. H. Birks (Oxford: Clarendon Press, 1997), 159.

 

By: Michael Lobban

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