common-law legal-history
How when and why were the chancery and common law courts merged?
<p>What had previously been the respective roles of each? Was chancery court system the last one to finally be subsumed by the common law courts? What social and political forces drove this change and what political implications did it have?</p>

<p>Any authoritative textbook on Equity and Trusts can answer this question.</p>
<blockquote>
<h2>1.2.2 The effect of the Judicature Act 1873</h2>
<p>The distinction between equity and the common law was both practically
and intellectually significant before the Judicature Act 1873. Before
that Act came into full effect in 1875 it was necessary for a litigant
to decide whether her claim related to common law or to equity. To
select the wrong jurisdiction would mean that the claim would be
thrown out and sent to the other court. So, if a claim for an
equitable remedy were brought before a common law court, that common
law court would dismiss the claim and the claimant would be required
to go to the Court of Equity instead. This problem was explained in
Charles Dickens’s Bleak House in the following way:</p>
<blockquote>
<p>Equity sends questions to Law, Law sends questions back to Equity; Law finds it can’t do this, Equity finds it can’t do that; neither can
so much as say it can’t do anything, without this solicitor
instructing and this counsel appearing.</p>
</blockquote>
<p>      So it was that the litigant trudged
disconsolately between the various courts seeking someone who could
deliver judgment on her claim. Judges like Lord Eldon and Lord
Cottenham were well-known for the delays in reaching their judgments
which could take several years. This was a part of the ‘groping and
floundering condition’ which Dickens observed in the High Court of
Chancery. It should also be recalled, as outlined above, that Lord
Macclesfield was convicted of embezzlement while acting as Lord
Chancellor and Lord Bacon was also found to have accepted ‘presents’
(which today we would consider to be bribes) in office. 74
Consequently, the reputation of the chancery courts was very low by
the late 19th century. The popular conception of equity – and one
which accords with the reality – was that the chancery courts were
expensive and caused extraordinary delays.<br />
      By 1873 pressure had built for reform, and Dickens played an important
part in that.75 This led to the enactment of the Judicature Act 1873.
There were two particular objectives: one to fuse equity and common
law, and the second to reorganise the courts. The fusion of common law
and equity took the shape of permitting any court to award common law
remedies or equitable remedies without the need to petition one
particular court or another. 76 Instead proceedings were simply begun
in the High Court, which was divided into the divisions we recognise
today. Lord Watson explained that the purpose of the Judicature Act as
being ‘to enable the parties to a suit to obtain in that suit and
without the necessity of resorting to another court, all remedies to
which they are entitled in respect of any legal or equitable claim or
defence properly advanced by them, so as to avoid a multiplicity of
legal proceedings’.77<br />
      The result of the Judicature Act 1873 was that the practical distinction between common
law and equity disappeared. However, it is vitally important to
understand that the intellectual distinction remains. Significantly s
25 of the Supreme Court of Judicature Act 1873 provided:</p>
<blockquote>
<p>Generally, in all matters not hereinbefore particularly mentioned in which there is any conflict or variance between the rules of equity
and the rules of common law with reference to the same matter, the
rules of equity shall prevail.</p>
</blockquote>
<p>      Thus the principles of equity prevail over the
principles of common law. The decision in the Earl of Oxford’s Case
thus received a statutory form. So, in cases like Walsh v Lonsdale78
where there was a clash between a failure to comply with a common law
rule as to the proper creation of a lease (which would have held the
lease to be unenforceable) and the equitable doctrine of specific
performance of contracts, it was held that the equitable principle of
specific performance would give effect to the agreement to provide a
lease.<br />
      The passage of this legislation was not
without its own perturbations. This fusion of common law and equity
raised concerns from many equity practitioners. Previously,
practitioners and judges before the chancery courts had been
specialists in equity. Now, or so the argument ran, there would be
practitioners and judges dealing with the culturally different
principles of equity who had only previously been trained in common
law. Such people referred to this process of fusion of common law and
equity as being, in truth, a confusion of common law with equity.
Whether or not that has turned out to be the case can only be
established from a study of the materials in this book. There has not,
it is suggested, been any obvious step-change between the
rigidification of the principles of equity under Lord Eldon in the
early 19th century and the decisions reached after the 1873 Act.
Equity clearly functions now on the basis of the doctrine of
precedent, but that is not due in particular to the 1873 Act. As
considered below, the intellectual sophistication necessary to reach
judgments on the basis of conscience on a case-by-case basis and yet
in accordance with general principles has emerged in the late 20th
century and at the beginning of the 21st century, as considered at the
end of the next section.<br />
      As considered below, there remains a division between certain claims and remedies which are
available only at common law, and other claims and remedies available
only in equity.</p>
</blockquote>
<p>Alastair Hudson, <em>Equity and Trusts</em> (2022, 10 edn, Routledge), pages 15-6.</p>
