way of doing business, must wonder how any set of men have run a railroad for years under the superintendence of that cumbersome machinery. Every- body, except those who make money at the expense of the state and her people, feels that the court ought to be abolished, and its powers exercised by tribunals that can act promptly with only the intent of doing justice. The machinery of the court is a great hin- drance to business of the Central Ver- mont railroad, and a source of much loss to its creditors, and if it can be relieved of the judicial load that saps away its vitality, it will be a happy event for all concerned.47
When the logjam finally broke, and the
railroad was relieved of chancery’s over- sight, in 1878, the Vermont Farmer con- demned the court for the way it had han- dled the receivership. It quoted one critic with approval who had said,
If the soiled ermine of the judiciary of Vermont is becoming as loathsome to the people of the state as it is to the people of other states, let us have as little as possible to do with the court of chancery in Vermont. We respect the individual honesty of its citizens, but have little confidence in the decisions of its courts.48
The laws relating to chancery changed that year with the enactment of a law pro- moted by Luke P. Poland, then in the leg- islature, authorizing the Court to appoint three special masters to try and determine all issues of fact, based on oral testimony, depositions, and written evidence, reduc- ing the pressure on the Chancellor’s time and energy. Judge Asahel Peck is said to have complained that this act “destroyed the Court of Chancery—the growth of and the product of the wisdom of thousands of years.”49
ed the superior court in 1906, making the high court largely appellate. In the process superior court judges became chancellors, freeing the judges of the Supreme Court from serving in dual roles.50
This separation
of levels of the judiciary allowed greater objectivity in the now exclusively appellate functions of the Supreme Court. A court can more easily review the work of a judge who is not also a member of the review- ing court. If there are hard feelings about a reversal, at least there was no need for a confrontation the next time the Court sat together.51 The relationship between chancery and the Supreme Court was curious. Until 1937, the orders of the Supreme Court from a re- view of a court of chancery decision were not final, but usually required a remand for the decree to take effect. That year the leg- islature finally recognized that allowing the high court to finalize decrees was more effi- cient. As the Supreme Court explained, the purpose of this change was to “expedite fi- nal disposition of chancery matters without the necessity for innumerable remands for final action followed by consequential ap- peals to test compliance with the mandates involved.”52
Chancery had a bad reputation for inefficiency and officiousness. Coupled with the natural suspicions of parties that a decree or injunction might be decided by a system without a spine, largely dependent on the digestion and temperament of the chancellor on that day, the court of chan- cery was remarkable for having survived as long as it did, before its demise in 1969.
Merger (1969)
Peck was resistant to the change, no doubt because it took away the Chan- cellor’s independence in finding the facts on which to base a decree.
The evolution of the judicial system over the nineteenth century can be seen as an attempt to deliver justice as efficiently as possible within the available resources. At first, the Supreme Court was a trial court; after 1814, individual Supreme Court judg- es would hear cases at law, leaving the re- mainder of the Court to hear appeals from those judgments. That was one object of the 1839 law, but even then the trial and appellate responsibilities of the individual judges of the high court were taxing physi- cally, requiring twice as much travel, and an increasing workload, that led to delays and rancor from parties and lawyers. To relieve the Supreme Court, the legislature creat-
www.vtbar.org
In the 132-year period from the creation of the first court to 1969, you would not be allowed to request equitable relief in the county courts. For that remedy you need- ed to file a petition in the Supreme Court, until 1839, and in the court of chancery af- ter that date. In this, Vermont was unusual. New York started its judicial system with a separation, but then abolished the court of chancery and merged common law and eq- uity in its courts in 1840, as noted earlier, the year after Vermont created its first sep- arate equity court, and other states quick- ly followed New York’s lead.53 merged its systems in 1873. 54
England The feder-
al judiciary merged law and equity in 1938, with the adoption of the Federal Rules of Civil Procedure.55
Today, only five states—
Arkansas, Delaware, Mississippi, Tennes- see, and New Jersey—maintain separate courts of chancery.56
Act 129 of the Laws of 1969 merged law and equity. “The powers and jurisdiction of the courts that were heretofore vested in the courts of chancery are vested in the su- perior court.”57
The other sections of the former chapter on the court of chancery THE VERMONT BAR JOURNAL • FALL 2012 15
Ruminations: The Vermont Court of Chancery
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