Tracing Your Ancestors Through the Equity Courts: A Guide for Family & Local Historians

By Susan T. Moore

The records of the Courts of Equity, which dealt with cases of fairness rather than law, are among the most detailed, extensive and revealing of all the legal documents historians can consult, yet they are often neglected. Susan Moore's expert introduction to them opens up this fascinating source to researchers who may not be familiar with them and dont know how to take advantage of them. As she traces the purpose, history and organization of the Courts of Equity from around 1500 to 1876, she demonstrates how varied their role was and how valuable their archives are for us today. She covers the Courts of Chancery, Exchequer, Star Chamber, Requests, Palatinates and Duchy of Lancaster in clear detail. Her work shows researchers why their records are worth searching, how to search them and how many jewels of information can be found in them. This introduction will be appreciated by local, social and family historians who are coming to these records for the first time and by those who already know of the records but have found them daunting.

• Language: English
• Publisher: Open Road Integrated Media
• Release date: Oct 30, 2017
• ISBN: 9781473891678

Book preview

LIST OF ILLUSTRATIONS

1. Henry Brougham, 1778–1868, Lord High Chancellor. (Lincoln’s Inn)

2. John Scott, Lord High Chancellor of England, 1801–6, by William Cowen.

3. Reports of cases in the Court of Exchequer.

4. Layout of courts of equity in Westminster Hall.

5. An example of palaeography from Court of Star Chamber. (TNA)

6. The site of Furnival’s Inn. (author’s collection)

7. Barnard’s Inn. (author’s collection)

8. The White Hart, Wimborne.

9. Family in Taunton and Cornwall, C 6/357/16. (TNA)

10. A line drawing of Holbrook House. (Darren McGinley)

11. An Exhibit including appointment of attorney for Harvard. (TNA)

12. A typical Bill of Complaint, C 3/207/57. (TNA)

13. A typical Answer, C 3/207/57. (TNA)

14. A typical Deposition, STAC 3/80/1. (TNA)

15. A typical volume of Orders and Decrees. (author’s collection)

16. Doodling in a calendar of Orders and Decrees, IND 1/1432. (TNA)

17. A typical Master’s Report, Seamer v Johnson, C 38/262. (TNA)

18. Typical accounts in a Master’s Report, C 38/262. (TNA)

19. A typical box of Masters’ Exhibits, C 110/80. (TNA)

20. A pedigree from a box of Masters’ Exhibits, C 103/18. (TNA)

21. Detail from a pedigree from a box of Masters’ Exhibits, C 103/18. (TNA)

22. Extract from a slave list in a box of Masters’ Exhibits, C 108/174. (TNA)

23. A page from IND 1 list for C 38. (TNA)

24. A typical page from a calendar of Chancery Orders and Decrees, 1655. (TNA)

25. A typical page from a calendar of Chancery Masters’ Reports. (TNA)

26. A typical Discovery entry from Exchequer Depositions by Composition, E 134. (TNA)

27. A typical calendar of Depositions from Duchy of Lancaster. (TNA)

28. A London Gazette supplement showing Chancery cases. (TNA)

29. The London Gazette showing Chancery cases. (TNA)

30. A map of Smallbrook Farm.

31. Schedule of rents from Chancery Depositions, C 22/976/9. (TNA)

32. An Order relating to the Gifford case, C33/283. (TNA)

33. Depositions relating to Roundhill Manor, STAC 3/3/80. (TNA)

34. A plan showing the proximity of places to Jane Austen’s house. (author’s collection)

35. Ashe Rectory House. (author’s collection)

36. A map showing the location of lands held by the Lefroy family. (author’s collection)

37. The location of lands held by the Lefroy family showing names of individual holdings. (author’s collection)

38. The Lefroy family tree. (author’s collection)

39. The interior of Crondall church. (author’s collection)

40. A modern road name reflecting the Lefroy connection with Crondall. (author’s collection)

PREFACE

The records of the courts of equity are one of the most useful, if not the most useful of all sources for family history. I was first introduced to the records of the Court of Chancery many years ago when I was working as an apprentice genealogist. I was asked to make abstracts of a large number of cases relating to one family in a village in Hampshire. There were feuds and counter feuds, and that particular family’s records kept me busy and very entertained for a life-changing week. That was my first introduction to Chancery records and their value to my historical research has in no way since diminished.

Since those early days I have regularly searched these enlightening records, studying not just the pleadings like those that first enthralled me, but also the myriad of related records, all of which can unearth fascinating information. It has become clear that these records can prove invaluable, not just for family historians but also for local and social historians.

Would your ancestor sit down to dinner with his brother? Would a butcher greet a fellow tradesman in the street? The records of the equity courts tell you who were friends and who were enemies. If people interest you, then the records of the courts of equity will keep you amused, interested, informed and enthralled in ways surpassing all other records.

Although the Court of Chancery was the most important of the courts of equity, there were others, and this book aims to introduce historians to the records of all these courts. The principles and processes, and thus the type of documents that were created, were similar in all the courts of equity. In this book examples are principally taken from the Court of Chancery, however they could have been chosen from any of the other courts of equity.

Although my first love is the Court of Chancery, the Court of the Star Chamber comes a close second. In a case from the reign of Henry VIII we are told of the attack made by Robert Cappis on his stepmother, ‘a person of most ragyous and wilfull condicion’ accompanied by three armed men, one of whom came ‘with a vizer by cause he would not be known’. Robert suddenly plucked out his sword and threatened to run his stepmother through: ‘thou stepdame by God’s blood I care not though I thrust my sword through thee!’ but was restrained by one of his companions. The stepmother it is said was in such dread and agony of mind that she fell ill, and as long as she lived would be the worse for his ‘ragious’ demeanour.¹

In seeking examples for this book there is perhaps a preponderance of those from the West Country. This is simply because this is where I come from and what interests me most, and it does not denote any emphasis within the courts for this or any other geographical area. Examples could just as well have been taken from any part of the country.

The records of the courts of equity are all held at The National Archives (TNA) at Kew in London and although some can be identified online and copies provided from a distance, for most of the records it is necessary to travel in person to TNA or to employ the services of a specialist researcher such as myself who can undertake the research on your behalf.

My profound thanks must be offered to those who have helped with this book, in particular my postgraduates Alice Maltin, Helen Fanthorpe and Aurora Moxon who spent much of their summer transcribing and analysing records for use as examples, and all became experts on Chancery, despite now moving on to follow their own careers. Also to those who have read the text for me and offered much useful advice; I have received encouragement from many members of the staff at TNA, particularly Amanda Bevan and Liz Hore who very kindly read the text and in addition to making valuable suggestions, updated me with the online cataloguing programme. I am greatly indebted to John Wintrip for professionally indexing the book. Finally, my grateful thanks to all the friendly counter staff in the Map Room at TNA without whom none of us would be able to see any of the documents.

Susan Moore

July 2017

Chapter 1

BACKGROUND

Equity court records are one of the few that enable you to feel that you are getting to know the people involved, what sort of people they were, how they lived, what sort of disputes there were within their families and which members of the family might sit down at the dinner table together happily. But the records are not just about families, they shine a welcome light on the day-to-day life of people and businesses.

If you like reading about good people, and more particularly about bad people, people who may be telling the truth, and more certainly those who tell lies, then the courts of equity will provide some fascinating entertainment as well as useful historical information.

The records of the equity courts are of interest to family historians, house historians, local historians, social historians, business historians and legal historians.

WHAT ARE THE COURTS OF EQUITY?

Towards the end of the medieval period many citizens had grievances against other citizens which they wished to bring to the attention of the king, as they felt that the existing courts did not meet their needs. From this grew the courts of equity. The traditional courts, the Court of the King’s Bench and the Court of Common Pleas, which dealt in common law had very proscriptive processes, and grievances often did not fit these, and moreover some felt that if their grievance was against a powerful man they did not have much chance of their case being heard fairly.

Henry Brougham, 1778–1868, Lord Chancellor.

According to J.H. Baker, despite power placed in the other courts, the king retained an overriding residuary power ‘to do equal and right justice and discretion in mercy and truth’.¹ The king received so many Petitions for extraordinary relief that he could not deal with them in person. By the end of the fourteenth century officers to deal with these were the Chancellor, the Admiral and the Marshal. The most important was the Chancellor.

Equity or Law?

The courts of common law were courts of ‘law’ whereas the Court of Chancery was a court of ‘equity’. It has been said that the law was ‘no respecter of persons, and gave no relief to the foolish who fell foul of its rigid rule’.² Equity acted ‘in personam’, that is it looked to the conscience of the individual. If that individual were obliged in conscience to do something such as perform a contract or restore property, the court of equity would order him to do it on pain of committal for contempt. Likewise, if he were bound in conscience to refrain from doing something he could be ordered to desist.

The principal difference between the common law courts and the equity courts was that the equity courts were based on what is right morally, whereas the common law courts relied on the law. The view of equity of Thomas Egerton, Master of the Rolls 1594–1603, was to ‘correct mens’ consciences for frauds, breaches of trust, wrongs and oppressions of what nature soever they be and to soften and mollify the extremity of the law’.³

From a researcher’s point of view the principal difference is that the records of the courts of equity are written in English and are relatively easy to find, whereas the records of the common law courts are in Latin until 1733 and are not yet easy to navigate.

A real bonus is that the records are all held at TNA rather than being divided amongst a host of local record repositories.

There were a number of courts of equity:

•Chancery.

•Star Chamber.

•Requests.

•Exchequer.

•Duchy Chamber for Duchy of Lancaster.

•Palatinate of Durham.

•Exchequer of Chester.

•Welsh courts of equity.

The Court of Chancery

The Court of Chancery was the principal court of equity. Many of the examples of cases used in this book will be from the Court of Chancery, although they could equally well be taken from the other courts. Its origins are in the reign of Richard II (1377–99), and it continued to operate until 1876 when the courts were reorganised. Until that date the records are held under TNA reference C.

The Chancery was not a law court originally but was rather an administrative department with secretaries for the writing of treaties, grants and other public business over whom the Chancellor presided, and had no connection with any court of justice. It is thought that the word Chancery (cancellaria in Latin) originated with the latticed screen or chancel behind which the Chancery clerks worked. The Chancellor had custody of The Great Seal and much of the effort of the Chancery was administrative work such as authenticating royal grants. Until the reign of Henry VIII the Chancellors were Church men and ‘served at the altar in spiritual things’.⁴ Because of its Church origins the Court of Chancery dealt with ‘conscience’ rather than ‘law’. It was said to gain its authority from the king who was God’s representative. This type of court, based on conscience, was known as a court of equity rather than a court of common law.

There was considerable rivalry between the common law courts and the Court of Chancery as the lawyers who worked in the common law courts felt that the Chancery clerks did not have any legal training and so were unfit to dispense justice. By the midsixteenth century there was a move to change this and Sir Thomas More (1478–1535) was the first Chancellor with a legal background.

Advantages of the Court of Chancery

There were four categories of case where the Court of Chancery would be preferred over one of the common law courts.

1. Not under the jurisdiction of common law:

• The case concerned a mortgage or a trust.

• Cases where specific information, usually held by the other side, is required to make a case. This might be in the form of supplying a copy of grant of land, or accounts or copy of a will.

John Scott, Lord High Chancellor of England, 1801–6, by William Cowen.

• An injunction could be sought by the plaintiff to prevent the defendant from carrying out an action such as cutting down valuable trees on a property which the plaintiff believed should be his.

• The plaintiff was not in possession of the relevant documents to establish his title to lands or property.

• If a creditor died before a debt was repaid, the executors of the deceased creditor could not be sued under common law, but the plaintiff could bring a case against the creditor in the Court of Chancery.

• An agreement had been made verbally with no supporting documents.

2. The case could be heard under common law but it was felt that no remedy could be obtained:

• Plaintiff might be too poor to afford common law courts.

• Plaintiff might be a weak person compared with the defendant, such as when a tenant was bringing a case against a mighty landlord.

3. The common law was being used oppressively or fraudulently:

• Plaintiff feared local corruption or a prejudiced jury.

• Plaintiff was afraid of being harmed by the defendant.

4. Case brought on the grounds of forgery or duress:

• Plaintiff could not recover money which the defendant had improperly deprived him of under the common law.

• Where the plaintiff was owed money by the defendant, but the defendant might have obtained a release or receipt from the plaintiff by fraud.

One of the principal differences in the jurisdiction of the common law courts and the Court of Chancery was that the Court of Chancery was concerned with the possession or occupation of land whereas the common law courts were concerned with the legal ownership of land, whereas generally the possession of the land, rather than the ultimate legal owner was what concerned people, as so much land was held in trust or mortgaged.

Star Chamber

This court dealt principally with equity cases where violence was involved and these records make for lively reading. The court had a much shorter lifespan than the Court of Chancery, also coming into being in the late medieval period but abolished in 1641. The court has an emotional appeal to many researchers such as: ‘Lambarde’s rosy view of the Star Chamber this most noble and praiseworthy court the beams of whose bright justice, equal in beauty with Hesperus and Lucifer . . . do blaze and spread themselves as far as the realm is long and wide’.⁵

The origin of the name ‘Star Chamber’ has many theories. Many believe that it derives from the stars that adorned the ceiling of the room in which it met. Others believe that it comes from the Anglo-Saxon ‘steoran’ meaning to steer or govern. There are those who think that it came from the fact that the room where the court sat was the depository of the Jewish bonds called ‘Starra’, others again think that it derives from the judges who, like stars, shone in the legal world deriving light from the royal sun!

The starred chamber was known in the reign of Edward III as a place where the king’s Council met to do justice on great offenders who were too powerful for the ordinary courts to deal with effectively. Although the court was active intermittently until the start of the reign of Henry VII, the effective starting date for the court was an Act of Parliament in 1487 and a further Act in