Law must be indifferent, hard, fast, and certain; equity may be compassionate, re- demptive, considerate, and sometimes im- perious in requiring parties to act or not act. Equity provides the relief that the law cannot provide, either remedial or preven- tive. Remedial relief is by decree; preven- tive relief is by injunction or specific per- formance, available when money damages won’t address the problem, or to prevent an action, such as preventing the occupa- tion of land from ripening into a right, or to avoid multiplicity of suits.20
Curiously,
when separation occurred, chancery actu- ally doubled the number of suits by requir- ing separate filings, fees, and dockets, at least in cases requiring mixed remedies. Counter-intuitively, but in keeping with its history, money damages are also available in chancery.21
Equity is the source of many procedures now commonly governed by statute or rule, including the subpoena, discovery, specific performance, foreclosure, cross- claims and counterclaims, injunctions, and indispensable party rules. These are now familiar parts of the civil rules or the funda- mental law of Vermont. Equity gave relief from the law, but it was risky. Predicting outcomes was often impossible, and so much depended on the character, temperament, and digestion of the chancellor. As John Seldon wrote in
1689,
Equity is a roguish thing. For law we have a measure, know what to trust to: equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make the stan- dard for the measure, a Chancellor’s foot.22
There is another fundamental difference. Equity cases are not tried by jury.23
Jury tri-
als are guaranteed by the Vermont Consti- tution for all prosecutions for criminal of- fenses and “when any issue in fact, proper for the cognizance of a jury is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred.”24 “Court of law” is not a court of equity. Al- though the two were merged with the first judiciary act in 1779, the constitutional guarantee of a right to a jury trial did not include equitable cases, which were exclu- sively the province of the high court for the next sixty years.
Government had just begun in Vermont. Its leaders were still learning what a legisla- ture can do, what role the judiciary should play, or the governor. What couldn’t be borrowed from Connecticut or Massachu- setts, Vermonters invented, and made cor- rections as the need for them became man-
ifest. The history of the court of chancery in Vermont is the evolution of an idea on how courts should be run, and on what is effi- cient and what will ensure justice.
The Separation (1839)
In 1839, the legislature finally created a separate court of chancery.25
Each judge
of the Supreme Court would be a chancel- lor, and appeals from those decrees would be heard by the high court. Although each judge of the Supreme Court was a chancel- lor, the Supreme Court was not chancery, as before 1839. The chancellors would not act together, but as individual judges. A chancellor would hold two sessions each year, during the time he was also presiding in county court on legal cases; equity and law were treated separately, in separate dockets. Law cases could be taken out of the trial courts and filed in chancery, when the law did not provide an appropriate remedy. Attorneys had to be admitted to the Supreme, chancery, and county courts by separate applications, and approved by a committee of lawyers before admission.26 As with the law before the separation, the court of chancery was given powers coextensive with that of the English chan- cery, subject to “the exceptions, additions and limitations created and imposed by the constitution and laws of this state.”27
Ap-
peals to the Supreme Court were at last available, to “examine all errors” and “af- firm, reverse or alter such order or decree as justice shall require.” Unlike appeals from the county courts, the chancellor re- mained in charge of interlocutory motions while the appeal was pending, and cases on appeal would necessarily need to be remanded to him, rather than having final judgment in the Supreme Court.28 Judge Hiland Hall described the change
to the jurisdiction of the Supreme Court this way under the 1839 act:
The supreme court is not denominated a court of chancery, but is an appellate court from the final decrees, and those only, of the court of chancery; and its powers are limited to the correction of errors found in such decrees. Upon the hearing of the case here, this court does not, as in cases arising at law, ren- der such judgment as the court below ought to have rendered, and enforce it by process upon the parties. But the finding of this court, whatever it may be, is remitted to the court of chan- cery, that such proceedings may be had there, as may be necessary to car- ry the finding of this court into effect.29
Vermont’s decision to separate the Court
into two was contrary to the experience of other states. New York merged the two
12 THE VERMONT BAR JOURNAL • FALL 2012
www.vtbar.org
Ruminations: The Vermont Court of Chancery
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