When was the court of chancery established

On November 1, , a Court of Chancery was established by name. It consisted of the Governor or his designee assisted by the Council and held sessions in the Council Chamber. The court was continued by the Judicature Act of , expired by operation of law in , was revived by ordinance in , was suspended in and finally re-established in The Assembly, although aware of the need for a court of equity, opposed the Court of Chancery on the grounds that the Crown did not have the right to establish courts in the Colony.

Indeed there was a style about Marvel generally that was different. He was casual and strong willed, but with just a touch of healthy insecurity that enabled him to defer to others in a gentle manner. With Marvel, the burden was on the visitor to pick up the signals. On one occasion, while listening to an out-of-state lawyer in a repetitive and boring argument in the Wilmington Court House, he heard the fire engines roll from the fire house nearby. He promptly got up from the bench--to the chagrin of the lawyer who was still speaking--and walked over to the window.

After the last engine whizzed by, he remarked, "I've always loved to watch fire engines" and reascended the bench. The lawyer, ignoring the message that Chancellor Marvel was trying to send him, then droned on for another thirty minutes. Chancellor Marvel had an interesting internalized relationship with the Supreme Court. He had absolutely no ambition to be on the Supreme Court, which he respectfully viewed as a necessary nuisance, so there was never any trace of envy.

Marvel was content that he had the better, and the more important, job. Indeed, he quietly bristled with royal and possessive indignation when his Court was called the "Chancery Court" in appellate opinions. Before the Supreme Court was enlarged to five members, Chancellor Marvel, at least monthly and often more frequently, was asked to sit on the Court to fill a quorum.

While the Chancellor was honored to be chosen, it often required a considerable amount of rescheduling of a busy Chancery schedule to accommodate the Justices. The Chancellor usually sat with two Supreme Court Justices and sometimes it must have seemed to him that his views were not given sufficient consideration. Once when receiving a call to serve in a few days and finding that he had to reschedule several matters already scheduled, he remarked, "Maybe I'll just paint my face on a balloon and send it over.

In September , over guests gathered happily at the Vicmead Hunt Club at a black tie dinner dance to honor retired Chancellor Marvel on the occasion of his eightieth birthday.

There were numerous tributes and the Chancellor, somewhat physically weakened but mentally sharp, took to the dance floor with aged grace. Chancellor Marvel said the next morning: "Father would have been pleased. The post-Marvel Court has had a decade highlighted by judicial expansion and a litigation thicket.

Governor Pierre S. Longobardi as Vice Chancellor. Brown was the first Republican Chancellor since Chancellor Curtis; over sixty years had passed. In , the Court was expanded to four by the addition of a third Vice Chancellor and Governor du Pont happily took the opportunity to appoint Carolyn Berger of New Castle County as the first woman judge on the Court of Chancery.

Walsh succeeded Longobardi. Chancellor Brown left the bench in early to return to private practice. Brown's twelve years on the Court as Vice Chancellor and Chancellor were a marked success. To Chancellor Brown, there was no small case. His opinions dealt thoroughly with the factual details and dissected the legal issues methodically. There was no mush in a Brown opinion and the conclusion, after detailed factual and legal analysis, stood plain for all to see.

If there was an appeal, there may have been a change in the result but there was no escape by either side from the issue game plan as presented by Chancellor Brown.

He was a lawyers' judge. Chancellor Brown always characterized himself as a "country lawyer" and he would closet himself in a downstate law library and write his opinions alone in longhand in the fashion of Josiah Wolcott a half century earlier. In , he declined the opportunity to go on the Supreme Court.

The Chancellor was cordial to everyone and out-of-state counsel loved his courtesy. Nor was his cordiality restricted. There was during the period one nonlawyer who had taken it upon himself to represent the interests of men in domestic relations cases and who had founded an organization to further that purpose. Most judges and lawyers were less than enthusiastic about the man's activity. But Brown kind of enjoyed him and, after a case in which the man was involved, Chancellor Brown personally delivered the opinion to the man's office as a matter of courtesy.

As illustrated by the following, Chancellor Brown let his magnificent sense of humor shine from the bench and through his opinions:.

In more than nine years as a member of the Court of Chancery I have noticed that each year seems to bring forth several new shareholder-related suits brought in the name of Harry Lewis. Over the same period, however, because of settlements, voluntary dismissals, mooted actions and the like, I have never had the good fortune to actually lay eyes on anyone claiming to be Harry Lewis.

From time to time I would check with other members of the Court. As best I can tell, none of them has ever seen this apparent champion of the minority shareholders either. I must facetiously admit that more than once the suspicion crossed my mind that perhaps no such person as Harry Lewis actually existed, that perhaps he was merely a fiction--a "street name" if you will--utilized at random by various counsel for the purpose of bringing class and derivative actions for the needed protection of shareholders interests.

Then one day not long ago I chanced to meet a respected member of the Delaware corporate bar who, apparently having become aware of my tongue-in-cheek concern, felt constrained to tell me that he had only recently attended a deposition in New York at which Harry Lewis was also in attendance.

Thus, I proceed on the assumption that, in fact, Harry Lewis lives. Lewis v. Anderson , Del. Governor Michael N. Castle in appointed scholarly William T. Allen to succeed Brown. Jacobs became a new Vice Chancellor. Summa Corp. Trans World Airlines, Inc. The final judicial structural change of the eighties came with yet another legislative expansion of the Court. Chandler shortly thereafter was offered a position on the United States District Court but, after a period of federal bureaucratic delay, he asked that his name be withdrawn because he would prefer to remain in Chancery.

The litigation barrage that hit Chancery in the s was unprecedented. In retrospect, it is not hard to understand, given the corporate litigation boom largely caused by the takeover wars, the continuing expansion of statutory remedies using the Court and the normal processing of an expanding number of cases within the traditional equity jurisdiction. In the past decade, the Court has been called upon to implement and develop significant changes or refinements in Delaware's corporate law.

The Delaware Supreme Court's revitalization of the demand requirement in derivative suits generated more than a hundred Chancery opinions on whether demand was excused or refused or the Special Litigation Committee was confused.

Each Chancellor and Vice Chancellor had to wade into the procedural thicket or Rule In his usual insightful but good humored way, Chancellor Brown pointed out in Kaplan v.

Wyatt , Del. However, he acknowledged that because Zapata 's procedure provided a means "to throw a derivative plaintiff out of Court before he has an opportunity to engage in any discovery whatever in support of the merits," the Court must not take the procedure lightly.

The Chancellor could not resist pointing out that, while the object of Zapata and later Arsonson may have been to reduce the expense and inconvenience of derivative litigation to the corporation, the result was three new layers of procedural hearings unrelated to the merits i. With tongue in cheek, the Chancellor described the tendency of the Special Litigation Committee to take on a life of its own:. To begin with, the developing rule of thumb in this jurisdiction would appear to be that a report by a Special Litigation Committee recommending dismissal of a derivative suit must be at least pages in length, exclusive of appendices and attachments.

Presumably, length is thought to be supportive of thoroughness and good faith on the part of the Committee. Correspondingly, it is apparently feared that a shorter report might be thought to be indicative of the converse. Chancellor Brown's concerns about Perot , Del. In granting a motion to dismiss the Complaint for failure to make a demand, the Vice Chancellor commented:.

First, nothing in this Opinion is intended to suggest any view, one way or another, on the merits of this admittedly controversial transaction. A perhaps unfortunate by product of Aronson is that its very application to a specific set of pleaded facts may be misinterpreted as a judicial stamp of approval or disapproval of the transaction itself. In fact, this decision, like any demand-futility adjudication, represents nothing more than a determination that the facts in a given derivative complaint are or are not sufficient to excuse the making of a demand.

The Vice Chancellor's comments seem particularly appropriate in the context of the litigation surrounding General Motors' buy out of Ross Perot, since the various cases surrounding that transaction may set a record for most opinions on demand related issues. The concerns of the Chancellor and the Vice Chancellor are consistent with the historical roots of Chancery as a court of equity that should not get bogged down in procedural matters, but should focus on what justice requires in the particular case.

In the takeover field, the Court had to apply the doctrines enunciated in Unocal Corp. Mesa Petroleum Co. In addition to his opinion in Revlon enjoining a white knight transaction based on its lock-up option and bust-up features, Justice Walsh during his relatively brief stay in Chancery upheld the poison pill rights plan as a takeover defense in Moran v.

Household International, Inc. Chancellor Brown let Bendix hold a rapid stockholders' meeting as part of its defense against Martin Marietta's Pac-Man takeover attempt, which in turn was a defense to Bendix' tender offer for Martin Marietta. Martin Marietta Corp. Bendix Corp. Newmont Mining Corp. The use of employee stock ownership plans as a defensive tactic was examined by Vice Chancellor Berger twice in Shamrock Holdings, Inc.

Polaroid Corp. As takeover fever continued to mount and the array of takeover techniques and defenses continued to expand, the Court was called upon to arbitrate marathon takeover battles with multiple expedited applications for equitable relief.

In the MacMillen takeover fight, Vice Chancellor Jacobs wrote opinion after opinion as one hostile bidder followed on the heels of another. The contests not only got longer, but the transactions got larger, as illustrated by Chancellor Allen's opinions on the mega-mergers of R.

Reynolds with Nabisco and Time-Warner. In re R. Nabisco, Inc. Shareholders Litig. Time, Inc. July 14, , aff'd , Del. The fever finally broke in the early s. However, the Court's body of opinions deciding, usually within a few days, complex legal issues arising from extremely complicated transactions stands as a remarkable judicial achievement. Under intense scrutiny, the Court proved it was up to the task of deciding quickly and coherently whatever corporate America and its advisors could concoct.

The Court approached these modern takeover fights with the "let 'em play" attitude of a good NBA basketball referee, ignoring the "incidental contact" inevitable in such contests and only "blowing the whistle" when a participant was unfairly impeded from the goal. Like all referees, the Court was subject to second guessing by the players, their "coaches" and commentators. The opinions of the Court deciding the ultimate questions without an advocate's freedom to take a position or a commentator's opportunity for leisurely analysis are the best refutation of such criticisms.

During the s and s, applying fiduciary duty concepts to mergers and other fundamental transactions has continued to be a significant part of the Court's corporate role. Vice Chancellor Hartnett's seven year series of opinions in the Shell Petroleum litigation, from Joseph v. Shell Oil Co. Smith , Del. May 26, , provide a comprehensive view of the range of fiduciary duty issues of disclosure, fair dealing and fair price that frequently confront the Court.

Panhandle Eastern Corp. One shift in the Court's approach to fiduciary duty cases is the increased emphasis placed on the significance of full disclosure of all material facts. Consistent with its desire to let business decisions be made by the directors and stockholders of Delaware corporations rather than by the Court, there has been enhanced focus on whether the stockholders have been provided with the information needed to make an informed choice.

While the Court's corporate opinions have attracted the most attention, the Court continues to function as a traditional court of equity. The Court still determines whether specific enforcement of an agreement is warranted. Each of the judges of the Court is a chancellor doing equity according to long established maxims and principles.

The Court's willingness to devote its careful attention to and ability to provide justice in simple cases involving ordinary people is as important a justification for its survival as a court of equity as its capacity to decide corporate disputes. Chancellor Allen has completed his seventh year and has proven an outstanding success. Erudite and engaging, Chancellor Allen has achieved a national reputation that makes him a frequent invitee to scholarly symposia, professional conferences, and university campuses.

He enriches professional life at the bar through his challenges in substantive ethics. His opinion writing reflects his intellect and his appreciation of his Court's heritage. See E. HEM Research, Inc. Weiner , Del. The Court's heritage, to say the least, is in good hands.

It is interesting to note that the de facto modern Court of Chancery one Chancellor, four Vice Chancellors at least one resident in each county is quite similar to the de jure Superior Court model in the original Constitution one Chief Justice, four associate justices at least one resident in each county.

No longer is the Court the Chancellor working in solitude. Like its English ancestor, the Delaware Court of Chancery has matured. Growth is necessary for survival in a complex world. But the English lesson is clear. Survival is useless if it comes at the sacrifice of the reason for being. Equitable judging still requires an individual craftsman to analyze the facts, apply the ancient principles, carve the specific remedy and communicate the result.

The product is human art; it cannot be scientifically produced. As the Court of Chancery enters its third century, its art is a scarce commodity in a coarse, crowded and complex world. For a positive contribution to life in , we salute today's artists: Chancellor William T. Allen; Vice Chancellor Maurice A. Jacobs; and Vice Chancellor William B.

Chandler, III. Reprint from William T. Terry, Jr. Graduate of the college, law school, and business school of Columbia University. The Court has been the subject of numerous profiles in the national press and national news and business magazines.

Everton, What is Equity About? Montague and F. Putnam's Sons, N. It is important to remember the cleric origin of the English Chancellor. It was not until that the English Chancellorship was held by a lawyer. Thomas More was the first lawyer Chancellor. He succeeded Cardinal Wolsey described by Maitland as "the last of the great ecclesiastical Chancellors.

See F. Maitland, Equity Cambridge University Press ed. For a recent example of the Court applying broad principles of fairness in determining that a transaction could not in equity be allowed to stand, see Chancellor Allen's recent opinion in Ryan v.

Wiener , Del. May 13, The discussion of colonial equity is based on a thesis submitted in partial fulfillment of the requirements for the degree in Master of Laws in the Judicial Process at the University of Virginia.

See W. A shorter published article, W. Laws 18 Spring Both sources also point out a Provincial Court established in had appellate jurisdiction "in equity. DeValinger, Jr. An earlier ruling of the Court of Assizes during the Duke of York period had attempted to introduce Chancery practice with no evident effect. See Loyd, supra note 9, at , , Judge Richard S. Rodney on Early Delaware G. Gibson ed. Compare Lunt, supra note 9, at , There is some uncertainty about the date of the Gordon statute in case law.

Franklin and D. See Quillen, Historical Sketch , supra note 8, app. See infra discussion of Glanding v. The cases in this paragraph are discussed in some detail at Quillen, Historical Sketch , supra note 8, at , , The original case records are in the Hall of Records in Dover.

Much of the material in this paragraph is based on Mr. Bevan ed. The reporter for this volume was Chancellor Daniel M. Bates, Delaware's sixth Chancellor. The account is reproduced at 1 Scharf, History of Delaware, See Hanrahan, Delaware's Peculiar Institution , supra note 20, at William Thompson Read helps complete the story: "In the graveyard of the Presbyterian church, Dover, Delaware, which I lately visited to see the monuments of two distinguished citizens of my native State, recently erected there, while scanning with interest July 5th, the tombs around me, I came upon an ancient stone, which covers the grave of William Killen, and read upon it that 'he was born in Ireland A.

Died October 5th, , aged 85 years. The resignation year should be The stone is still in the graveyard but unfortunately it is now largely illegible. See, e. Hurley , 2 Del. Redden , 2 Del. Adkins , 2 Del.

Polk , 1 Del. Allee , 1 Del. Attis , 4 Del. Gimbel v. Laws c. The current provision is 8 Del. The authors are grateful to S. Samuel Arsht, Esquire Mr. Arsht and The Honorable G. Burton Pearson, Jr. Judge Pearson , for sharing valuable thoughts about the Court of Chancery and its history in the twentieth century.

In addition, Mr. Arsht was kind enough to read and make editorial comments on an early draft. Larcom is very helpful in explaining the competitive aspects of the statute.

The Constitution took effect on June 10, The Constitution, in its original form as adopted, is appended to the published debates. See id. I, at See Del. The new temporary restraining order and preliminary injunction provision also empowered the senior Associate Judge to act if the Chief Justice was out of the State or disabled.

The discussion included hypothetical visits of the Chancellor to Saratoga, Atlantic City, and Wanamakers in Philadelphia, the view being expressed that "the Chancellor should not be tied home like a dog It is clear from the last citation at that Chancellor Nicholson participated by discussing the matter with two of the Constitutional Convention delegates. IV Constitutional Debates , supra note 49, at The Constitution prohibited any judge who sat below from sitting on appeal.

Strangely, at least to the modern view, this prohibition had not been the case with respect to writs of error at law under the Constitution. The Chancellor and judges held their offices "during good behavior" and the Governor made all appointments for offices established under the earlier Constitutions.

The original Constitution gave the President and General Assembly joint power to appoint judges. The unique power of the Governor of Delaware under the Constitution was noted early in the debates. II Constitutional Debates , supra note 49, at There was strong sentiment for Senatorial confirmation and fixed terms at the convention.

There was considerable debates on whether confirmation should require a supermajority ultimately rejected ; and on whether there should be a limit on the number of judges from one political party ultimately approved for law judges. A supermajority provision for Senate confirmation had been included in the original draft of the Judiciary article and the Chancellor had also been included in the political balancing. The Chancellor was excluded early on during the subsequent debates.

III Constitutional Debates , supra note 49, at It seemed to be assumed that the Chancellor would be of the same political persuasion as the party holding the appointive power. See particularly the comments of Woodburn Martin. The case is Lieberman v.

First Nat'l Bank of Wilmington , 8 Del. The courts agreed on the substantive issues raised by a suretyship contract on a teller's official bond after the teller's defalcations. Both opinions are thorough explorations of agency, reasonable reliance in fraud, and the effect of alleged negligence in supervision good faith and not diligence was required. The point of difference related to date from which interest was allowed. Chancellor Nicholson's note as reported as 8 Del. Editorial Note : Beginning with 8 Del.

The former practice was to include the court Ch. For the purposes of this essay, we thought the Del. But we chose the modern Delaware usage Supr. See the account of Addicks' political career in John A. Other early cases seemingly in line with Chancellor Nicholson's view were: Beeson v.

Elliott , 1 Del. Tunnell , 2Del. Early cases seemingly taking the opposite view were: Fox v. Wharton , 5 Del. Caldwell , 8 Del. Victor B. The quotation appears at page 35 of Volume I. See the Preface in each of the volumes covering the period of the Curtis Chancellorship. See the memorial tribute to Chancellor Curtis by Hugh M. Morris in 32 Del. Prime reliance is placed on Daniel O.

Hastings' delightful short book Delaware Politics , at hereinafter Hastings, Delaware Politics. Hastings, a Republican U. Senator from Delaware from to , characterized Wolcott as the Democrats' "young idol. Douglas Buck, in The Arlington Hotel case , 11 Del.

Coleman duPont. Hastings, Delaware Politics , supra note 64, at Senator Hastings' comment about Chancellor Wolcott's reversal record is not totally accurate but, for present purposes, close enough. Judge Pearson says simply, "He put Delaware on the map.

Judge Pearson recalls that Chancellor Wolcott did not even have an office in Dover, his home county, but rather worked at a table in the basement stacks of the law library. Chancellor Wolcott's daughter, Rebecca Dashiell Wolcott Terry, through a letter dated June 19, , pinpoints the "office" as a room with a long table in what is now the Visitors' Center behind the Old State House, the building at the time being connected by passageway to the Old State House.

Chancellor Wolcott had no secretary and relied on his court reporter, Albert L. Massey, who was stationed in Wilmington, to type his letters and opinions. Judge Pearson feels that Chancellor Wolcott was deterred from asking for the help he needed and deserved by his hurt from the negative "Dirty Deal" publicity in About the judiciary About the judiciary The judiciary, the government and the constitution The justice system Who are the judiciary?

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