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The Chancellor, the Chancery, and the History of Law Reform
Published online by Cambridge University Press: 28 October 2011
Extract
As both James Oldham and Joshua Getzler show in their perceptive and helpful comments, much work remains to be done on the history of both the nineteenth-century Chancery and the wider law reform movement. My discussion of the inconclusive nature of the political debate about Eldon's arrears leads Oldham to ask whether the Chancellor was really overburdened and whether the appointment of the Vice Chancellor was as counterproductive as many contemporaries claimed. On the first of these issues, the data show that while Eldon was in general able to deal with the caseload before him, it was in the 1810s—when “by a series of most important decisions, [he] systematized the law of bankruptcy”—that a dramatic arrear in appeals developed (see Figure 5), which contributed to the political pressure on him in the following decade. Oldham shows from a survey of his notebooks that Eldon heard roughly fifty cases a year from 1801–13; while according to official returns, in the 1820s, he heard more than forty appeals each year. But between 1813 and 1819, the number fell to about twelve cases a year. On the second issue, the data show that the creation of a Vice Chancellor did have an impact, but a relatively modest one. Lacking the distractions of the Great Seal, he could hear more original business; and cases set down and heard in Chancery increased by about 40 percent in the decade and a half after his appointment. While the number of appeals also increased, both numerically and proportionally, they remained at manageable levels.
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References
1. See Joshua Getzler, “Chancery Reform and Law Reform,” and Oldham, James, “A Profusion of Chancery Reform,” Law and History Review 22 (2004): 601–8 and 609–14.CrossRefGoogle Scholar
2. “Chancery Reform,” Law Magazine 16 (1836): 7.
3. See Lobban, Michael, “Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery. Part I,” Law and History Review 22 (2004): 406, note 54.Google Scholar
4. John Williams's figure of under ten a year (quoted by me in “Part I,” 408 and mentioned by Oldham) was derived from a misreading of the return in PP 1822 (9) XXI.89, which showed that from 1813–21, Eldon heard under eighteen appeals each year. Williams failed to note that the return had already taken into account cases struck out.
5. In 1808–12, 446 cases were set down and 447 heard annually; in 1814–18, 607 were annually set down and 592 heard; in 1819–28, 642 were annually set down and 638 heard; in 1829–35, 921 annually were set down and 896 heard.
6. The number of appeals set down each year increased after 1813, from 17.6 in 1808–12, to 20.6 in 1814–18, 41.3 in 1819–28, and 53.7 in 1829–35. As a proportion of the causes heard and determined, appeals were 3.9 percent in 1808–12; 3.9 percent in 1814–18; 6.1 percent in 1819–23; 7.4 percent in 1819–28; and 5.9 percent in 1829–35.
7. Factors of fitness and speed explain the “dramatic variation” Oldham points to in Figure 3: the fall in arrears of cases ready for hearing in 1820–22 reflects the surge of business consequent on Sir Thomas Plumer MR's illness into Sir John Leach VC's court. He may have been “angry, neat and wrong,” but he was fast. The fall around 1832 reflects Brougham's workrate.
8. See Parl. Debs., third ser., 56: 199 (2 Feb. 1841).
9. Thus, reform of the appellate jurisdiction of the Lords, which remained a notoriously vexed question until 1876, was generally treated separately from the reform of the Chancery.
10. See, e.g., Lobban, “Part II,” 576.
11. Pollock, Frederick, The Law of Torts: A Treatise on the Principles of Obligation Arising from Civil Wrongs in the Common Law (London: Stevens and Sons, 1887), vii.Google Scholar
12. See Lemmings, David, Professors of the Law (Oxford: Oxford University Press, 2000), 32–33.CrossRefGoogle Scholar