by Paul S. Gillies, Esq. RUMINATIONS The Vermont Court of Chancery In the midst of trying an adverse posses-


sion case this summer, before a jury, where damages were part of the relief of the coun- terclaim, it occurred to me that I was not so sure I understood the difference between the role of the jury and that of the pre- siding judge. Those of us who have been practicing for less than forty years have known only one civil action, composed of legal and equitable parts, depending on the relief requested, and separating those two functions, particularly when a trial is of mixed parentage, takes some effort and study, when we think about it. Vermont was one of the last of the states


to merge its common law and chancery courts, by statute in 1969 and formally by the adoption of the first rules of civil pro- cedure in 1971. The merger of law and eq- uity had at least as dramatic impact on the way we sought justice in Vermont courts as did the latest reforms of the judiciary, which centralized the administration of the court system, wrested it from the previous- ly county-based organizational conundrum, and made it into a wholesome unity. It is too late to object to that change, and most would celebrate the merger com- pared to the previous system, which had been first implemented in 1839. Vermont had a merged judiciary for sixty years of ex- perience before separation, during which the judges of the Supreme Court also served together as the court of chancery. But merger has cost the system its clarity. Too often there is confusion over what as- pects of a case should be addressed in le- gal or equitable terms. Some days, to me, it looks like mud; lately, considering the his- tory of the court of chancery in Vermont, some parts of the hydra are clearer.


The First Experiment The first Vermont Constitution (1777)


provided for limited equity power within the courts of the state:


The supreme court, and the several courts of common pleas of this State, shall, besides the powers usually exer- cised by such courts, have the powers of a court of chancery, so far as relates to the perpetuating testimony, obtain- ing evidence from places not with- in this State, and the care of persons and estates of those who are non com- potes mentis, and such other powers


10


as may be found necessary by future General Assemblies, not inconsistent with this constitution.1


The first reported exercise of equitable


powers in Vermont came in 1778, when the superior court decided Galusha v. Griffin, a suit over the ownership of a horse, and ordered the mare returned to Jacob Galu- sha following a trial on the merits.2


Dam-


ages were also awarded Galusha, without a jury. Plaintiffs could reap both money and recovery of property in a single action. Law and equity were one system. In 1779 the legislature created the first court of chancery as the equitable comple- ment of the Supreme Court. The act ex- plained, “on consideration of the several pleas and allegations made by either party, [the court of chancery] may moderate the rigor of the law, decree and enter up judg- ment therein agreeable to equity and good conscience, and … award execution there- of.” Equity was necessary, according to the act, because, “from the universality of the law, many cases will arise, wherein it is nec- essary that some further provision be made for relief in equity, than can be obtained by the rules of common law.” 3


The question of whether this joining of law and equity was the right choice was first raised in 1785. That year the Council of Censors recommended amending the con- stitution, to read, “A future legislature may, when they shall conceive the same to be expedient and necessary, erect a court of chancery, with such powers as are usually exercised by that court, or as shall appear for the interest of the commonwealth. Pro- vided they not constitute themselves the judges of said court.”4


This recommenda-


tion became Section V of the 1786 Consti- tution. It did not mandate a separate court, but it was an option. The prohibition against the legislature constituting a court was a course correc- tion. The legislature made itself a court of last resort, with sole jurisdiction over some disputes. In October of 1779, the legisla- ture set itself up as a court with legal and equitable powers—absolute powers, out of reach of the judiciary.5


That act gave the


court powers to decide cases where the amount in dispute was over 4,000 pounds and “for the decision of all disputes be- tween proprietors holding under different charters issued by the same authority.” If the whole idea seems appallingly insensi-


THE VERMONT BAR JOURNAL • FALL 2012


grasp at the agreeable desideratum of uncontrolled dominion; trials by jury, in the most important disputes concern- ing property, wholly thrown aside: the Legislature assuming to themselves the judicial power, so far as respect- ed all the permanent property in the State, and casting aside all restraints of law in their decisions, they were to determine every cause, without being shackled with rules, but by their crude notions of equity; or in other words, according to their sovereign will and pleasure …


So the legislature stepped back into bal- ance, and left equity to the courts. Instead of “crude notions of equity,” the court would be guided by hundreds of years of English equity jurisprudence. In 1788, the legislature further defined the authority of the court of chancery, and provided it with authorities on which to hang its decision, including, “such powers as are usually exer- cised in the Kingdom of Great-Britain and the neighboring States, and not repug- nant to the Constitution,” with procedures “conforming as near as may be to the rules & presidents [sic], established in the courts of chancery in the Kingdom of Great Brit- ain.”6


From 1779 until 1839, because the


courts were the same, there was no appeal from a judgment of the court of chancery.7 A court cannot review itself. One persona of the Court cannot review another perso- na.


tems, but equity, where there is jurisdic- tion, prevails over the common law.


Law and equity are complementary sys- In


1797, the legislature built this preemp- tive authority into statute, expressly em- powering chancery to moderate the rigor of the law in cases of forfeiture of agree- ments, altering jury verdicts and granting “so much as is due according to equity and good conscience, and award execution ac- cordingly.”8


cluded an express limitation on chancery’s authority, conditioning the statute’s for- mer respect for English authority, “so far as shall be consistent with the constitution and laws of this state.”9 In 1802, the legislature endowed the


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tive to the separation of powers, remem- ber there was no separation of powers clause in the Constitution prior to 1787. The Council was clearly troubled by this


The changes made in 1797 in-


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