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Chancery, Court of

Chancery, Court of. The Chancery (cancellaria) began life as the royal secretariat during the Norman period. Its task was to draw up royal charters and writs under the authority of the great seal, which was in the possession of the chancellor. The chancellor, in medieval times, was often a bishop and a leading member of the royal council.

By the 14th cent. common law had become the ordinary law of the land administered through courts independent of the crown, staffed by professional lawyers. Yet the king retained the power to administer justice outside the regular system if an aggrieved party could not obtain justice from common law. Petitions were presented to the king in council setting out the details of the case and asking for relief. By the end of the 14th cent. petitions began to be addressed to the chancellor direct and by the end of the 15th cent. he was sitting alone hearing petitions and issuing decrees in his own name.

The rules of common law were bound by tradition and statute. The chancellor was not bound by such rigid procedures. Procedure was simple and informal. The Chancery could sit anywhere, at any time, and once the chancellor felt he had enough information he would arrive at a decision. It was quick and inexpensive justice which especially benefited the poor and the weak. As Lord Ellesmere explained in 1615, ‘men's actions are so diverse and infinite that it is impossible to make a general law which may aptly meet with every particular … The office of the chancellor is to correct men's consciences for frauds, breaches of trust, wrongs and oppressions of what nature soever they may be, and to soften and mollify the extremity of the law.’ Business increased steadily and by the 16th cent. the court was overwhelmed with petitions.

The chancellor's form of justice acquired the name of ‘equity’. Equity was not a new concept but the difference was that equity became distinct from common law. At first equity was not seen as a rival to common law, but resentment arose over the growth of Chancery business. In 1616, clashes over jurisdiction occurred between Coke, chief justice of King's Bench, and Chancellor Ellesmere.

After the Reformation, chancellors tended to have a background in law and lost the intuition and common sense of their ecclesiastical predecessors. Equity became bound by precedent and Chancery litigation was expensive and slow, often taking thirty years by the 19th cent. Chancery clerks depended on fees, not a salary, so it was in their interest to prolong proceedings. The backlog of cases grew acute under Chancellor Eldon (1801–27), who was too thorough to be efficient. Reform was piecemeal, a vice-chancellor appointed in 1813 and two more in 1842, the clerks were eliminated by 1852, procedure simplified, and a court of appeal established, but they were temporary measures. The 1873 Judicature Acts reduced the Court of Chancery to a division of the new High Court of Justice and judges were empowered to administer both law and equity.

In Ireland a chancellor presided over a separate court of equity which mirrored the development of the English equity system. In Scotland a chancellor existed from the 12th cent. and largely performed the same functions as his English counterpart. However, the chancellor became the chief administrator of law and not of a separate equitable system. Since the Union of 1707 there has been one lord chancellor for Great Britain.

Richard A. Smith

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