New Research in Early Modern Legal History

UCL’s Legal History Research Group (LHRG) is pleased to host presentations of recent research in Early Modern English Legal History.
 
This workshop comprises presentations by: Dr Joanna McCunn (Bristol) and Dr David Foster (UCL).

The Papers

‘Trusty ankers’? Tudor reforms and faith in legal documents
Dr Joanna McCunn (Bristol)
Legal documents, wrote Thomas Phayer in 1543, were a ‘trusty anker’, which ‘holdeth ye right of every mans possessions safely and surely agaynst all troublous and stormy tempestes’. For early modern English people, land was a source of both money and power, and they had come to trust in written records to keep their estates secure.

Yet as John Baker has observed, ‘precariousness of titles… pervades the Tudor law reports’. Wills, conveyances and settlements were frequently litigated, to the alarm of common lawyers. Judges fretted that one wrong step might ruin many landowners, and hoped that each case would quiet a raft of disputes over titles.

This paper argues that radical changes to property-holding in the 1530s and -40s had a lasting impact on attitudes to legal documents. The uncertainty caused by the Statutes of Uses and Wills, and the dissolution of the monasteries and chantries, reverberated through lawsuits across the following century, creating unforeseen problems and shaking landowners’ faith that their ‘trusty ankers’ would ultimately hold.

Myths of Equity: Inside and Out
Dr David Foster (UCL)
Over the last 500 years, the nature of equity has been continuously debated by those regarded as ‘common lawyers’ or ‘equity men’, each camp viewing the other as the ‘outsider’ or minority view on the subject. Successive ructions between the competing camps have resulted in a general view of equity as an inherently contestable concept.

Sir Edward Coke was the arch common law ‘insider’ and the architect of many of the classic criticisms of equity jurisprudence. Coke regarded equity courts as bound by common law judgments, their jurisdiction severely limited by notion that they were not 'courts of record' and acted purely in personam. Whilst Coke’s contemporaries fought strenuously (and successfully) against these reductive ‘myths of equity’, Coke’s success as a legal writer and law reporter ensured their dissemination to later generations. With the resurgence of interest in equity scholarship in the later nineteenth century under CC Langdell and JB Ames, aspects of Coke’s conceptions of equity were revived and recycled in the new analytical jurisprudence of the period.
By contrast, the views of the ‘equity insider’ provide a lineage of ideas and arguments which have supported a more expansive conception of equity jurisprudence from the time of Coke to the modern day. Principal amongst these are the views of Coke’s great rival, Lord Ellesmere, whose manoeuvres in the Earl of Oxford’s case ensured the supremacy of equity jurisprudence in the face of the common lawyers’ objections. For Ellesmere, equity was a necessity in any legal system; it was the ‘sweet mercy’ which tempered the rigour of the law occasioned by unconscionable reliance upon its strictures. Elements of this line of thought were embraced by early twentieth century writers – WN Hohfeld, RP Pound, WW Cook and CA Huston – in their responses to the scholarship of Langdell, Ames and Maitland. In tracing the historical lineage of this intellectual tradition, the paper concludes with a reminder that, in debate over the nature of equity, we are all – whether ‘equity insiders’ or ‘common law outsiders’ – beholden to the views of some defunct jurist.

Schedule:
16:45 Registration
17:00 Presentations begin
19:00 Event ends

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