D.P. Waddilove, Notre Dame Law School, has posted Aspects of Equity in 1600: Wills, Forfeitures, and Trusts, which is forthcoming in Essays on the History of Equity, edited by David Foster and Charles Mitchel:
--Dan ErnstThe Court of Chancery in 1600 stood somewhere on the bridge between medieval dispenser of ad-hoc justice and sclerotically rigid Regency court of punctilio. Equity was in an uncertain state, no longer unpredictably free-form, but not yet driven to the regularity of fully precedential lawlikeness.
At the time, the Great Seal was in the hands of Sir Thomas Egerton, Lord Keeper from 1596 to 1603, and Lord Chancellor (as Lord Ellesmere) from 1603 to his death in 1617. Although recognized in his own day and immediately afterward as particularly significant for the development of equity, legal history has tended to disregard him thanks to overreliance upon printed reports, which begin to cover the court meaningfully only after his tenure.
This paper, based on a comprehensive review of the daily record of the court, the Chancery Register, for the legal year beginning 1600 (9 October 1600 - 8 October 1601), considers aspects of equity to assess their state of development and shed light on Egerton's influence. Supplemented with the manuscript Chancery reports first printed by Professor Hamilton Bryson in Selden Society volumes of 2000-2001, it considers three major areas of equitable jurisdiction. Two of these, securities (such as bonds and mortgages) and trusts, are often considered the main jurisdictions of Chancery. The third, disputes over testamentary matters and decedents’ estates, became stereotypically associated with Chancery in Dickens's Bleak House, and also formed a major aspect of equitable jurisdiction. This paper thus sheds light on the nature of equitable development in these major areas in an under-studied period.
