Substitute Chancellors: The Role of the Jury in the Contest between Common Law and Equity

The common law - thought to provide an ancient constitution securing the liberties of the people from monarchical tyranny - and opposition against it, played an acknowledged part in the debates among Royalists, Parliamentarians, and Puritans during seventeenth-century England. Very little attention has, however, been devoted to the status of the jury within these arguments either for the supremacy of the common law or for the King's prerogative, institutionally embodied most prominently in the Star Chamber and the Court of Chancery. As this Article argues, the procedural virtues and the philosophical goals of the jury and of the Chancellor as expressed by their advocates were very similar, but the disparities in the origins of their authority - the jury a body designed to represent local men of the community and the Chancellor considered almost a cipher for the King - led opponents in the English Revolution and its aftermath to resist one institution or the other. Fluctuations in the relative strength and weakness of the common law jury and judges in equity thus came to depend on political struggles rather than disagreement about methods of adjudication. As a result, by the time of the Founding, opponents of the proposed Supreme Court expressed their reservations about its elevated status and its jurisdiction over fact and law by raising the specter of Chancery and its association with monarchical power.