systems in 1840, adopting the Field Code, and, as Morton J. Horwitz has written, fi- nally “submitted to the long-standing criti- cism that judicial enforcement of substan- tive conceptions of justice was contrary to the rule of law.” By the beginning of the nineteenth century, he wrote, equity was “almost completely subordinated to the common law, as even the chancellors be- gan to maintain that the substantive doc- trines of the law and equity were the same; only their remedies were different.” 30
In
other states, where merger was the rule, merger was seen as a way of revitalizing equity, which had become too discretion- ary.31
This was a reaction to a lack of codi-
fied standards. But Vermont’s history with equity was the reverse of this trend. Why then should Vermont go the other way? By isolating equity from law, its im- portance was elevated, and its justice de- livered more efficiently, if for no other rea- son than that a chancellor was more avail- able than having to wait on the Supreme Court for relief. Chancellors visited the shires twice each year; the Supreme Court came but once. Chancellors were available throughout the year; the high court worked term by term, with rare exceptions, such as capital trials. In the new system, county clerks became clerks of the court of chan- cery, and would serve as masters and exam- iners in chancery, with the power to admin- ister oaths and perform accountings, with jurisdiction throughout the state. Chancery was also more flexible, in that a chancel- lor had authority to “do any act, make any order or decree, short of a final order or decree” in chambers. Free of the machin- ery of managing a jury, the chancellor, at a desk rather than a bench, could render jus- tice quickly and decisively, contouring the remedy to the situation. To avoid a deluge of business, the 1839
act required the court of chancery to dis- miss any suit concerning property valued at less than fifty dollars, as a way of limit- ing the Court’s docket to matters of great- er magnitude, although the act exempted foreclosures from this threshold.32
How It Worked
William Brayton published an early col- lection of decisions of the Supreme Court in 1821, and included the “Rules of the Su- preme Court and Court of Chancery” in the volume.33
hearing, solicitors were required to submit briefs,
fairly written, to contain the point or points of law, equity and fact, intended to be relied on, distinctly and concise- ly noted, and properly arranged, with fair distinct references to the case, book and page, and as far as shall de- pend on the confession or proof, with distinct and concise references to the concession, document or other proof in the cause.
In chancery, a case did not begin with service on the opposing party. The orator presented a bill to the Court; the Court made an order, directing personal notice of the bill and order, or ordering publication in a newspaper less than four weeks from the session of the chancery court of where the defendant should appear. The defen- dant had to answer on the second day of the term.
Equity pleading was at least as cumber-
some and exacting as common law plead- ing, and the Vermont Reports are full of cases where parties paid dearly for mis- takes in form, expression, and a lack of thoroughness in their paperwork. As with law, there was a contrary urge to keep the process efficient and accessible to the non- lawyer. If a solicitor was too wordy, “for purposes of increasing the costs,” for ex- ample, the chancellor could require him to pay the costs “occasioned by such unnec- essary prolixity, to the party injured there- by.”34 Three-fourths of all equity cases were
foreclosures in 1912. Equity had jurisdic- tion over reformation, specific perfor- mance, trusts, nuisances, fraud, contracts, and agreements where performance was the issue.35
Confusion over chancery’s re-
lationship to other courts, particularly pro- bate court, was common. In 1906, the Su- preme Court dismissed a case appealed to chancery from probate court where the or- ator was attempting to have the judgment in probate revised. Appeals should come directly to the high court.36
“The court of
This provides a window into how the system of chancery operated. At that time, civil law actions were filed before the opening of the Court’s term, on the first day of the session. In chancery, the orator delivered his bill on the second day of the term, signed by some solicitor of the Court, “who shall be answerable for the propriety of the form, and language of the same, and the correctness of the decree.” Before any
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chancery can only exercise its functions in proper cases in regard to probate matters. It can only aid that court, and merely fur- nishes auxiliary powers when the functions of the probate court are inadequate,” the Court explained. Chief Judge Charles K. Williams, in 1838, stated flatly, “Courts of chancery sometimes enjoin proceedings at law, but courts of law never stay proceed- ings in chancery.”37 But where chancery had original juris- diction, the Supreme Court had to bow to that court’s authority, and served only an appellate function. The chancery’s author- ity came from precedent, custom and tradi- tion; the Supreme Court’s appeal role was
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Ruminations: The Vermont Court of Chancery
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