Fact Finding in the English Court of Chancery: A Rebuttal

Abstract

In a recent article in this Journal Harold Chesnin and Geoffrey Hazard presented a breathtaking thesis: English Court of Chancery lacked the power to itself . . . until some time after 1800, at least a decade after the effective date of the Seventh Amendment.1 By fact issues the authors mean contested of fact.2 The authors hypothesize that the office of the Lord Chancellor was not originally endowed with the power to decide questions of fact, though it assumed that power by the nineteenth century.3 This might mean that the Seventh Amendment requires a federal court sitting in equity to submit disputed questions of to a jury.4 Because their thesis is couched as an interpretation of the right to jury trial under the American Constitution, it has a potential for mischief in our courts and requires a swift rebuttal. Section I of this article shows that the historical sources contradict the authors' contentions. First, the Court of Chancery did indeed have and exercise finding power. Second, when the court delegated factual disputes for trial at law, the verdict was advisory and nonbinding. Section II points to the larger context of the relations between equity and law for an understanding of the Chancery's practice of referring of to common law trial.