court of chancery with the power to grant new trials, “under such restrictions, and regulations, as to them shall be deemed lawful, or equitable.”10


Here the legislature


was extending a power formerly withheld from the courts, but regularly exercised by the legislature through private acts. The 1820 Council of Censors found this judicial authority antithetical to the separation of powers, and condemned it.11


The practice


was eventually abandoned, as one more disentanglement of the branches. In 1813, the Council of Censors pon-


dered whether law and equity should be divided into separate courts. Law was tak- ing all the court time, and there were de- lays in handling equitable issues. A sepa- rate court would be more focused, and fair- er. The Council was firm.


Chancery powers cannot, from their nature, be accurately defined or lim- ited; and are therefore, in some mea- sure, dangerous; yet, when reduced to system, by practice and precedent, highly, useful, important and neces- sary. The inconvenience of the exer- cise of those powers, by the Judges of a court of common law jurisdiction, has been unhappily experienced by the suitors in our Courts. Great delay in causes in Chancery has been occa- sioned by want of time, and hurry of business, on the law side of the Court. Necessary rules and orders for bring- ing causes to a hearing and decision, cannot be adopted and maintained in our present system: And the unavoid- able precipitancy, in the proceedings, forbids the expectation of the attain- ment of correct decisions, by the prop- er discussion of the parties, and due deliberation of the Court. The Coun- cil has, therefore, recommended the establishment of a Court, with Chan- cery powers, distinct from the Courts of law.12


That recommendation was not adopted by the Constitutional Convention the fol- lowing year, but the idea that chancery is best addressed by a chancellor rather than a group of judges began to take hold. In 1821, the legislature first recognized the authority of a single chancellor (who was also a judge of the Supreme Court) to make interlocutory orders and decrees re- lating to the final hearing before the full Court.13


Although the court of chancery


remained within the powers of the full Su- preme Court, the amendment was one sure step toward a separate court, the ef- ficacy of having a single chancellor ever more apparent. For sixty years, law and equity were


merged in the high court. Chancery and the Supreme Court were the same. It was a


www.vtbar.org What Is Equity? We must answer that question. I’ve put


it off long enough. It is a long story. The system of justice is broken into two parts— the common law and equity. These are the foundations of the judicial function. They are separate systems, in origin, and in long practice in England and America before there was a United States or a Vermont. But “equity” has many definitions. In this con- text, it’s a system of jurisprudence that pro- vides what the common law cannot offer, available when remedies at law are inade- quate. Equity has a “superior sanctity,” ac- cording to Henry Maine, in relation to the law.14


istotle.15


Its origins can be traced back to Ar- Joseph Story, in his Commentar-


ies on Equity Jurisprudence (1836), defined it as that “which in human transactions is founded on natural justice, in honesty and right, and which properly arises ex œquo et bono.”16


Equity is not antagonis-


trial court for equitable claims, high crimes, and other issues, and an appellate court for the rest. What started out as a poli- cy of expediency and efficiency, however, turned sour, as the workload of the Court increased and the travel and intellectual burdens of the judges took their toll. The arc of history began to bend toward sepa- ration.


Blackstone called it the “soul and spirit of all law … synonymous with justice; in that, to the true and sound interpreta- tion of the rule.”17


tic to the common law; it descants on law. As Henry Harmon, author of a 1912 man- ual on court procedure for Vermont attor- neys wrote, “The frequently quoted maxim that ‘Equity follows the law’ means that it is never opposed to the common law, tho it may often go beyond it; and the differ- ence between them was that procedure in equity sometimes allows for a larger mea- sure of justice than the contracted scope of the common law would permit.”18


To some,


equity is a series of platitudes, which by their nature are adaptable enough to em- brace any situation and may result in differ- ences in decisions, depending on the con- science, or lack of conscience, of the par- ties, as seen through the eyes of the court. Frederic William Maitland, in his Lectures on Equity, wrote, “I do not think that any one has expounded or ever will expound equity as a single, consistent system, an ar- ticulate body of law. It is a collection of ap- pendixes between which there is no very close connection.”19 In chancery, a judgment is a decree. A lawyer in chancery is a solicitor. A judge in an equity court is a chancellor. A plain- tiff is an orator. A vituperative denial of an answer is a replication in equity. But more than language separates law and equity. At the heart of the difference is conscience.


THE VERMONT BAR JOURNAL • FALL 2012 11


Ruminations: The Vermont Court of Chancery


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