And so, with a stroke of a pen, a deeply romantic corner of the law, stretching back to the Normans, has disappeared into thin air. The Chancery Division of the High Court has just come to an end, after nearly 1,000 years at the heart of the English legal system. The dreary powers that be have renamed it the Business and Property Division – supposedly because it’s easier to understand.
Yes, chancery law is about business and property. But why should names be boiled down to their simple, constituent parts? Why should a word that summons up the tangled, Anglo-Norman roots of our law be reduced to a description David Brent might have dreamt up on a particularly slow day at Wernham Hogg?
It gets worse. The Chancellor of the High Court – a mighty title, straight out of medieval England or Flash Gordon – is now the President of the Business and Property Division, which hardly sets hearts racing. It’s a chilling reminder of the days when Tony Blair tried – and, thank God, failed – to get rid of the position of Lord Chancellor.
The Chancery Division was the most lucrative division for barristers. It dealt with commercial disputes, intellectual property, insolvency and the juiciest financial rows sparking off in the City of London. Top Chancery KCs earnt seven-figure sums. Even its junior members lived in an Elysian world of bumper fees, floating in a different stratosphere above the junior criminal barristers, scraping along on £30,000 a year.
These disputes can get very knotty – they need big brains to untie. They can also become pretty dry. Thus the long-standing idea of Chancery law being a hellish vortex where you’re trapped for decades and lose your life savings in the process.
Chancery law is at the heart of Dickens’s Bleak House (1853). The first chapter is ‘In Chancery’, detailing the nightmarish, but still romantic, complexities of the never-ending case, Jarndyce v. Jarndyce. ‘So complicated,’ Dickens writes, ‘that no man alive knows what it means… No two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises.’
Why should names be boiled down to their simple, constituent parts?
The book opens with the Lord Chancellor sitting in Lincoln’s Inn Hall, presiding over the Court of Chancery. Dickens declares, ‘There never was such an infernal cauldron as that Chancery on the face of the earth.’
Not much fun, maybe. But the best thing about it was the name ‘Chancery’. It grew out of the Norman Curia Regis – the King’s Council. The first legal mention was of Edward I carving up chancery cases for the Lord Chancellor, so the King’s Curia Regis could concentrate on ‘the great business of his realm, and of other foreign countries’. Chancery became the name of the department working for the Lord Chancellor.
The medieval Court of Chancery became an agreeably flexible forum, stretching beyond the common law to cover the abstruse, fast-developing fields of land law, equity and trusts – and ultimately taking over insanity and charity cases.
Under Edward III, the chancery writs, in Norman French (which survived in court into the 15th century), were dealt with in Westminster Hall, William Rufus’s colossal palace hall, given its supreme hammerbeam roof by Richard II, Edward III’s successor. Westminster Hall, and its roof, survive today. How sad the Court of Chancery hasn’t, too.
The Court of Chancery sat in Westminster Hall for 500 years, until it was dissolved in 1875. It was such a cornerstone of English law that Chancery English and Chancery hand (as in ‘handwriting’) became the foundation of standard written English.
For that half a millennium, chancery law grew ever more influential, bumping up against and clashing with the common law. The Supreme Court of Judicature Act of 1875 ended the Court of Chancery but the Chancery Division lived on as part of the High Court of Justice – until now.
As is so often the case, we gave something to the world – and they now look after it better than we do. In America, there are still chancery courts in Delaware and Tennessee.
We fling away the past with glee, thinking the old obscures the new to its detriment – when in fact the past gives weight, substance and beauty to the modern. And people of all backgrounds and ages treasure the coating of age – as they do with Latin in court.
Justin Warshaw, a family law KC, says, ‘The law is a goldmine of great Latin tags. Legal Latin was apparently abolished by Lord Woolf in 1999, acting “pro bono publico’”. Thankfully the judgment was ‘interim’ and, ‘mutatis mutandis’, major reforms have been avoided.
The ‘forum’ is still ‘conveniens’, the ‘locus’ is still ‘in quo’, ‘amicus curiae’ is still briefed, ‘habeas corpus’ invoked, a judge can be ‘functus’, legitimate reductions remain ‘pro tanto’, the ‘Carta’ remains ‘Magna’, the guilty has ‘mens rea’ for his ‘actus reus’ and adjournments can still be ‘sine die’.
Here’s hoping Chancery law will one day live on again in a similar way – here, in its birthplace, and not just in Tennessee and Delaware.
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