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established solely by statute, with the as- sistance of the common law.38


laws relating to the court of chancery were decidedly silent on most of the details, pro- cedures, or principles guiding that court’s actions, the jurisdiction of chancery was of- ten questioned, and rarely contained on appeal. An appellant in 1898 claimed that there was no authority for equity courts to regulate public nuisances in 1786, when the Constitution first authorized the court of chancery. Judge Russell Taft, in 1898, disagreed,


seeing in the constitutional


phrase authorizing the creation of the court “as shall appear for the interest of the com- monwealth” sufficient express authority to exercise that power and extend by decree and injunction the jurisdiction of the court of chancery over novel areas of law, with- out the need for statutory authorization. If abatement of a public nuisance is “for the common weal,” chancery may enforce it.39 This question of jurisdiction continued to frustrate petitioners. Reformation of deeds and contracts were clearly within chan- cery’s room, but was the re-establishment of a will, once it is “spoliated, suppressed, [or] destroyed”? Looking back to prece- dent in England and early Vermont case law, the court ruled in 1896 that the court of chancery could exercise concurrent but interlocutory powers over the estate, when probate’s powers proved inadequate to protect the rights of the orators for the re-


lief available in equity.40 Because the


Judge Laforrest


Thompson recognized that probate courts also had an “extensive chancery jurisdic- tion to adjust claims … in some respects of purely equitable cognizance.”41 The greatest criticism of equity is a lack of standards. From the beginning, Vermont legislatures were never reluctant to cod- ify parts of the common law, but when it came to chancery, the legislature routine- ly deferred to precedent. Because Ver- mont failed to publish regular reports of decisions before 1826, there were no tools to serve this function. Early on the court turned to authority for direction, and there was no greater authority than James Kent. His Commentaries on American Law was first published in 1827, and he quickly be- came an authority of unequaled preemi- nence within the decisions of the Vermont Supreme Court, particularly on issues in chancery.42


Early reports are peppered with


citations to Kent. His work provided a nec- essary foundation on which to exercise eq- uitable powers, essential not only because he was current and familiar with English precedent, but because he was an Ameri- can scholar.


In 1835, Chancellor Charles K. Williams


wrestled with the question of whether chancery’s jurisdiction included the regu- lation of legacies to charities.43


He found


an historical basis for the exercise of that power, because the remedies available at


equity, necessary for determining on the le- gitimacy of certain charitable devises, were beyond the powers of the law courts.44 Judge John Mattocks dissented, arguing, “Chancery cannot properly decide what are objects of piety and charity, that ought to be favored and treated with more benig- nity in equity, than they are viewed in the austere courts of the law.”45


Separation was not universally applaud- ed. Doubts remained about the wisdom of a binary system of courts. The 1869 Coun- cil of Censors resolved to “inquire and re- port as to whether evils and defects exist in the present chancery system of the State; and whether the action of this Council un- der the provisions of the Constitution may and should be invoked to remove or ame- liorate such evils and defects if found to ex- ist.” But nothing came of this proposal that year.46


During the last part of the 1870s, the


court of chancery had to confront the bank- ruptcy of the Central Vermont Railroad. In receivership, which had been closely mon- itored by the court, the railroad’s future was unclear for many years. Not all were respectful of the court’s procedures. The St. Johnsbury Vermont Farmer, in March of 1874, put this on the first page:


Any person who has had anything to do with the Court of Chancery, and has seen the technical and round-about


14


THE VERMONT BAR JOURNAL • FALL 2012


www.vtbar.org


Ruminations: The Vermont Court of Chancery


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