CHANCERY, in English law, the court of the lord chancellor of England, consolidated in 1873 along with the other superior courts in the Supreme Court of Judicature. Its origin is noticed under the head of CHANCELLOR.
It has been customary to say that the court of chancery consists of two distinct tribunals—one a court of common law, the other a court of equity. From the former have issued all the original writs passing under the great seal, all commissions of sewers, lunacy, and the like—some of these writs being originally kept in a hanaper or hamper (whence the "hanaper office"), and others in a little sack or bag (whence the "petty-bag office"). The court had likewise power to hold pleas upon scire facias (q.v.) for re peal of letters patent, etc. "So little," says Blackstone, "is com monly done on the common law side of the court that I have met with no traces of any writ of error being actually brought since the 14th year of Queen Elizabeth." The equitable jurisdiction of the court of chancery was founded on the supposed superiority of conscience and equity over the strict law. The appearance of equity in England is in harmony with the general course of legal history in progressive societies. What is remarkable is that, instead of being incorporated with or superseding the common law, it gave rise to a wholly independent set of tribunals. The claims of equity in its earlier stages are well expressed in the little treatise called Doctor and Student, published in the reign of Henry VIII.:—"Conscience never resisteth the law nor addeth to it, but only when the law is directly in itself against the law of God, or law of reason." So also King James, speaking in the Star Chamber, says : "Where the rigour of the law in many cases will undo a subject, then the chancery tempers the law with equity, and so mixes mercy with justice, as it preserves a man from destruction." By the time of Lord Eldon equity had become fixed, and the judges, like their brethren in the common law courts, strictly followed the precedents. Henceforward chancery and com mon law courts have exhibited the anomaly of two co-ordinate sets of tribunals, empowered to deal with the same matters, and com pelled to proceed in many cases on wholly different principles. The court of chancery could in most cases prevent a person from taking advantage of a common law right, not approved of by its own system. But if a suitor chose to go to a court of common law, he might claim such unjust rights, and it required the special intervention of the court of equity to prevent his enforcing them. In many cases also a special application had to be made to chan cery for facilities which were absolutely necessary to the success ful conduct of a case at common law. Another source of difficulty and annoyance was the uncertainty in many cases whether the chancery or common law courts were the proper tribunal, so that a suitor often found at the close of an expensive and protracted suit that he had mistaken his court and must go elsewhere for relief. "If this be equity, give me law," was said to be the cry of the disappointed suitor in chancery, while the unsuccessful de fendant in the King's Bench was heard to exclaim "If this be law, give me equity ! " Attempts more or less successful were made to lessen those evils by giving the powers to both sets of courts; but down to the consolidation effected by the Judicature Act, the English judicial system justified the sarcasm of Lord Westbury, that one tribunal was set up to do injustice and another to stop it.
The equitable jurisdiction of chancery was commonly divided into exclusive, concurrent and auxiliary. Chancery had exclusive jurisdiction when there were no forms of action by which relief could be obtained at law, in respect of rights which ought to be enforced. Trusts were the most conspicuous example of this class. It also included certain rights of married women, infants and lunatics. Chancery had concurrent jurisdiction when the common law did not give adequate relief, e.g., in cases of fraud, accident, mistake, specific performance of contracts, etc. It had auxiliary jurisdiction when the administrative machinery of the law courts was unable to procure the necessary evidence.
The Judicature Act 1873, 5. 24 (now repealed and replaced by the Judicature Act 1925, s. 37 [ID, enacts that in every civil cause or matter commenced in the High Court of Justice, law and equity shall be administered by the High Court of Justice and the court of appeal respectively, according to the rules therein contained, which provide for giving effect in all cases to "equit able rights and other matters of equity." The 44th section of the act of 1925 declares the law to be administered in England on certain points, and ordains that "generally in all matters not here inbefore particularly mentioned in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail." The 56th section specifically assigns certain matters to the chancery division.
The chancery division originally consisted of the lord chancellor as president and the master of the rolls and the vice-chancellors. The master of the rolls was also a member of the new court of appeal, but Sir George Jessel, who held that office when the new system came into force, regularly sat as a judge of first instance until 1881, when, by the act of that year (s. 2), the master of the rolls became a member of the court of appeal only. The chancery division now consists of the lord chancellor and six puisne judges, who are divided into groups of three. The judge may either hear an application in chambers, or may direct any matter which he thinks of sufficient importance to be argued be fore him in court, or a party may move in court to discharge an order made in chambers with a view to an appeal, but this is not required if the judge certifies that the matter was sufficiently dis cussed before him in chambers. Under the existing rules of court many orders can now be made on summons in chambers which used formerly to require a suit or petition in court. Bankruptcy and winding up business is now dealt with by a judge or judges of the chancery division.
In the United States "chancery" is generally used as the syno nym of "equity." Chancery courts are equity courts in the few jurisdictions where such courts are maintained separately. (See EQUITY.) For the diplomatic sense of chancery (chancellery) see CHANCELLOR; and DIPLOMATIC. (X.; W. V. B.).