This article is dedicated to the memory of Chief Justice William Muecke Barker of Chattanooga (1941-2023), a jurist of great integrity, ability, kindness and love of law, justice and history. Justice Barker was also a great student of the history and culture of Great Britain.

Charles Dickens, a popular and important writer during the Victorian era, was arguably one of the most significant writers in history, not only because of the power and perception of his works but also for their effect on the English society of his time and on ages and places far beyond his own.

Young Charles Dickens (1812-1870)

While rejecting conventional writing precepts, Dickens employed his literary talent, informed by his past, as in his somewhat autobiographical David Copperfield, and his observations of people and places, especially the inhabitants of the teeming city of London, to draw attention to human suffering, cruelty, greed, indifference and the desperate need for personal reclamation and societal reform.

Yet Dickens rarely suggested specific reform measures, leaving such conclusions to his readers and society. He typically fixed upon a need or institution, like poverty, child labor, debtors’ prison or an abusive judicial system, around which to construct his atmospheric stories of sorrow, humor, colorful characterization and surprising plot twists (for instance, a character dying by spontaneous combustion). His works usually resulted in an inspiring ending reflecting his belief in the ultimate triumph of reason and kindness.

Dickens at the height of his career.

Dickens in Chancery

Dickens’ utmost reforming impact would be on the English legal system and, in particular, the High Court of Chancery. Even though not a lawyer, it was a subject he knew well. At 15, in 1827, he was employed as a junior clerk in the law office of Ellis and Blackmore, where he was required to frequent jails such as Newgate Prison and the Marshalsea, the debtors’ prison where his father had been confined and where he would set much of his novel, Little Dorrit. After learning shorthand, the young Dickens left the law firm to become a court reporter in the prestigious Court of Chancery.

Almost two decades later, the renowned author returned to Chancery as a litigant. On Dec. 19, 1843, he self-published the wildly popular novella A Christmas Carol, selling 15,000 copies in just two weeks. But three weeks after publication, a furious Dickens directed his solicitors to file five different suits in Chancery against publishers accused of stealing his work. The most significant of these suits was against Richard Egan Lee and John Haddock, who had published A Christmas Ghost Story by Henry Hewitt, a boldfaced pirating of Dickens’ yuletide tale of a haunting culminating in the miserly Ebenezer Scrooge’s redemption.¹

An ex parte preliminary injunction barring distribution of the Lee and Haddock version was swiftly granted by a Vice Chancellor sitting at Westminster. Although the respondents shamelessly defended their version as a “re-originated” work with the addition of Tiny Tim singing a song, a defense motion to dissolve the injunction was denied. An exuberant Dickens proclaimed: “The pirates are beaten flat. They are bruised, bloody, battered, smashed, squelched and utterly undone.”² Before trial, the case was settled on Dickens’ terms, including an apology and agreement to pay his attorney fees, but the judgment-debtors went bankrupt and thus paid nothing, and his profits from A Christmas Carol were depleted by his litigation costs.³ Moreover, piracy of his story continued to “flourish.”⁴ Years later, when faced with another infringement, a bitter Dickens recalled “the expense, and anxiety and horrible injustice of the Carol case,”⁵ and resolved “it is better to suffer a great wrong than to have recourse to the much greater wrong of the law.”⁶ He would mirror this warning in his serialized 1852-1853 novel centered on Chancery, Bleak House, saying: “Suffer any wrong that can be done you, rather than come here!” ⁷
Nonetheless, a Chancery lawyer, who had known Dickens’ lead counsel, studied the Carol litigation and Dickens’ career in the legal realm. He concluded the writer’s souring on Chancery was more the consequence of his time as a court reporter than from his disappointing lawsuits.⁸

Bleak House and Judicial Reform

Bleak House revolves around the fictional Chancery lawsuit of Jarndyce v. Jarndyce. The ceaseless case and its costs consume the lives and the fortune its participants yearn to win. It commences with an ominous description of the fogbound court:

On such an afternoon, if ever, the Lord High Chancellor ought to be sitting here — as here he is — with a foggy glory round his head, softly fenced in with crimson cloth and curtains, addressed by a large advocate with great whiskers, a little voice and an interminable brief, and outwardly directing his contemplation to the lantern in the roof, where he can see nothing but fog. On such an afternoon some score of members of the High Court of Chancery bar ought to be — as here they are — mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horsehair warded heads against walls of words and making a pretence of equity with serious faces, as players might. . . . with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense, piled before them.⁹

The original cover of Bleak House.

During the first half of the 19th century, England’s courts were beset with outrageous costs and delay, resulting from archaic procedures, the purposes for which were either long forgotten or irrelevant. The situation was worsened by indecisive and overburdened judges, a bar profiting from meaningless complexities and calculated sloth, and even out-and-out corruption by hated and irremovable court clerks who literally owned their positions. The most infamous court was Chancery, ironically a civil court born in the Middle Ages to offer flexible in personam relief, especially to the weak, from the severe technicalities and unresponsive in rem remedies of the common law courts seen as favoring the wealthy and powerful.¹⁰

Chancery, an innovative and uniquely English tribunal of ethics and equity, originally represented the king’s conscience but evolved into that of his chief minister, the Lord Chancellor and the precedential equitable jurisprudence designed by Lord Chancellor Thomas More and his successors. Yet by Victoria’s reign, Chancery was a quagmire of legalities, delay and fees. Litigation took generations to resolve, bankrupting litigants and estates alike. Even the ultra-traditionalist, anti-reformer Duke of Wellington called Chancery “that damned court.”¹¹

Dickens’ Bleak House animated the necessity for reform more than the argument of any do-gooding politician, jurist, scholar or lawyer ever could, giving meaning, emotion and urgency laymen could imagine and understand, even if they had never been caught in Chancery’s web. Nevertheless, those benefiting from the status quo resisted.

At a large gathering attended by Dickens, one Chancery official, while looking at the author, announced to the influential crowd that the court’s record was “almost immaculate,” and delay was “exaggerated” by the “parsimony of the public.”¹² Dickens replied by publishing an account of an uncontested 20-year-old suit, in which 30 to 40 lawyers had appeared, and its end was still nowhere in sight.¹³

In piecemeal but deliberate fashion, judicial reform, structural and procedural, of all England’s courts was achieved by Parliament, due in no small part to Charles Dickens, placing him in the ranks of British legal reformers with Jeremy Bentham and William Wilberforce. Dickens’ reality shaped his fiction and his fiction, in turn, shaped reality.

The common law trial courts and Chancery were merged into one court on the surface: The High Court of Justice. However, equity jurisdiction was lodged in the distinct Chancery Division of the High Court, and thereby the wholesome separation between law and equity, structural and procedural, remained, with the expertise, efficiencies and desirable separation of judicial powers that afforded.¹⁴

More importantly, Chancery was restored to its accessible, useful and creative original mission, and many of the reforms were emulated around the globe in nations that had inherited the common law legal system and read Dickens, including the United States.

Tennessee Governor Andrew Johnson

Impact in Faraway Tennessee

Distant Tennessee had a Chancery Court too and a reformed-minded governor, Andrew Johnson of Greeneville, anxious to advance the cause of the common people over the monied planter class he despised. In 1853, the same year as the appearance of Bleak House, and probably influenced by the novel widely read in America (clearly the newspaper editors supporting Johnson’s proposal were readers), the non-lawyer-governor undertook to abolish Chancery by asking the General Assembly to merge the states’ law and equity courts, as was done in numerous states and only superficially in England.¹⁵

But unlike Dickens, Johnson could point to no examples of abuse, corruption or delay. There were no Jarndyce v. Jarndyces in Tennessee. In fact, Tennessee Chancery remained accessible, efficient and well-liked by litigants and lawyers. It was founded in 1827 to aid “widows and orphans” and address the rise of business disputes by the great reform Gov. William Carroll of Nashville (who also won abolition of the state’s debtors’ prisons), and the court was fast becoming a model to the nation, especially following publication of Knoxville Chancellor Henry R. Gibson’s monumental Gibson’s Suits in Chancery in 1891 and currently in its eighth updated edition. Hence, the eminent legal scholar V.A. Griffith of Mississippi noted that Tennessee “is one of the great chancery states.”¹⁶

Furthermore, the governor failed to appreciate the Americanization and modernization of equity practice advanced by the seminal treatises of New York Chancellor James Kent and U.S. Supreme Court Justice Joseph Story. Johnson’s proposal went nowhere. And he may have seen the error of his ways while serving as military governor during the Civil War. When reconstructing Tennessee’s courts, Chancery was the first he placed back in operation.

In 1868, Charles Dickens met President Andrew Johnson. Dickens said Johnson exuded purposefulness but no “genial sunlight.”¹⁷ |||

RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET), and since 1999 he has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has written many publications on law and legal history, and is a regular columnist for the Journal. He received the TBA’s Justice Joseph W. Henry Award for Outstanding Legal Writing for 2023.

NOTES

1. See Edward Tyrell Jaques, Charles Dickens in Chancery 13-16 (1914).
2. Id. at 39.
3. See id at 47, 57.
4. Id. at 59.
5. Sir Willian Searle Holdsworth, Charles Dickens as a Legal Historian 80 (1995).
6. Jaques at 62.
7. Charles Dickens, Bleak House 3 (Oxford 1987) (1853).
8. See Jaques at 61.
9. Dickens at 2.
10. See Russell Fowler, “Courts” in 1 Encyclopedia of the Victorian Era 315 (James Eli Adams ed. 2004).
11. L. B. Curzon, English Legal History 132 (2nd ed. 1979).
12. Dickens at xiii.
13. Id.
14. See Fowler at 315-17.
15. See Andrew Johnson, “Legislative Message of Dec. 19, 1853,” in 4 Messages of the Governors of Tennessee 555-57 (Robert H. White, ed. 1957).
16. V.A. Griffith, Mississippi Chancery Practice 15 (2nd ed. 1950).
17. John A. Garraty, The American Nation (4th ed. 1979).