But four centuries before 1470, around the time of the Norman Conquest, England had neither a national judicature nor a legislature in any developed sense, and there were no lawyers. There were decision-making bodies, from the king’s council down to the village meeting; but in such assemblies no clear separation could have been made between the processes of adjudication, legislation, and administration. Most decisions settled the matter in hand and were not expected to do more. They could not reach far into the future, or rest upon precedents set in the past, because no official records were kept. That is not to suggest that there was no law. People spoke of law, and of custom. Some of this law was written down; most of it was shared memory as to the way things were done. But it was a long way from the kind of jurisprudence known to lawyers in later medieval England as the common law.
The Chancery (cancellaria) began as the royal secretariat. In origin it was not a court of law but a department of state, descended from the Anglo-Saxon scriptorium where royal writs and charters were drawn and sealed. The head of the department, the chancellor, had the custody of the great seal of England, which was used to authenticate the documents which his clerks prepared. Royal grants of property, privilege, dignity, or office, and all writs and commissions in the king’s name, had to ‘pass the seal’ in Chancery. The everyday original writs of the common law were no exception; they were prepared in the Chancery and required the touch of the great seal on a blob of wax. Through them the chancellor was associated with the ordinary administration of justice.
The chancellor has always been primarily an officer of state and a minister of the Crown, and the office was formerly one of great eminence. Most medieval chancellors were also bishops or archbishops. Some powerful chancellors, notably Cardinal Wolsey (1515–29) and Lord Clarendon (1658–67), were prime ministers in all but name. Appointments to the office are still made on political grounds, on the nomination of the prime minister, before whom the lord chancellor takes a nominal ceremonial precedence.
The Chancery approached matters differently. In exercising his informal jurisdiction the chancellor was free from the rigid procedures under which inconveniences and injustices sheltered, because he was free to delve into the facts at large. His court was a court of conscience, in which defendants could be coerced into doing whatever good conscience required, given all the circumstances of the case. Such a court obviously proceeded in a very different fashion from the Common Pleas.
No original writ was necessary, and all actions were commenced by informal complaint, either by bill or by word of mouth. The common first process, the writ of subpoena, was a simple summons to appear in Chancery or else forfeit a penalty. There was only one form, and it did not tie the plaintiff to a cause of action. In practice – at any rate, in later practice – the penalty was never exacted, but a disobedient defendant was subject to proceedings for contempt. Pleading was in English and, although common-law phraseology was adopted where convenient, it was free from undue technicality. There was no need for a single issue. And there was no jury; evidence was taken by written deposition and evaluated by the court. The Chancery was always open; it was not tied to the terms and return-days, though for convenience it observed them as far as possible. It could sit anywhere, even in the chancellor’s private house, and issues of fact could be tried out of court by commissions of dedimus potestatem (‘we have given power’) to country gentlemen. These advantages enabled early chancellors to provide swift and inexpensive justice, especially to the poor and oppressed. Sheriffs and juries could be bypassed where undue pressure was feared, so that corruption could not prevent a fair hearing. The chancellor’s eyes were not covered by the blinkers of due process, and he could go into all the facts, to the extent that the available evidence permitted. He could order parties not to enforce bonds and other writings if it would be unjust, and he could order the discovery of documents which were needed to enforce legal rights. He could order parol contracts to be performed, and fiduciary obligations discharged. He could ensure that unfair advantage was not taken of the weak and foolish. And defendants could not easily evade this new and powerful justice, since for contumacy they could be imprisoned or their property sequestered. Decrees were also enforced by making the parties execute penal recognizances, payable to the chancellor or masters.
Sir John Baker: An Introduction to English Legal History
By exercising this jurisdiction in conscience, the chancellor was not causing any of the ‘inconvenience’ which the law eschewed. In Chancery each case turned on its own facts, and the chancellor did not dispute or interfere with the general rules observed in courts of law. The decrees operated in personam; they were binding on the parties in the cause, but they were not judgments of record binding anyone else and they did not alter or contradict the law.
This honestly sounds like an excellent system, no lawyers, all powerful Lord Chancellors with full inquisitorial powers to investigate the facts and provide inexpensive justice for the poor or deputise such powers, without being blinkered by cumbersome and arbitrary procedures which confounds the courts or waste everyone’s time and resources with smokescreens. Specifically tailored solutions to particular problems for each case without needing to worry about swelling or complicating the law by precedent.
England should totally Retvrn to Tradition and restore chancellery officers with inquisitorial powers to investigate the truth and abolish lawyers, and subsume the judiciary into the executive, so that the courts become nothing more than a department of state.