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Political Refugees' Property
I'd like this topic. - Becky | |
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< | Progress note: I haven't linked to my attached documents yet, but I will figure out how to do that soon. Also I'm trying to get hold of one more source that might solve the mystery of the strange facts of this case. I'm getting it on interloan and it's taking forever. | | |
- As an interim matter I would say this is going splendidly. When you have finished the first draft you might want to do an overall edit for "linearity" of presentation, but I think your use of sub heads is effective in keeping you organized as you write. The attachments are well-chosen: they can be linked directly to your text, which makes them even more accessible for the reader.
| | | How does Bartie v Herenden fit into the historical development of the use upon a use? | |
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< | The discussion in Holdsworth’s A History of English Law (attached) of the use upon a use shows that for a period after the passage of the Statute of Uses in 1536, the accepted view was that a use upon a use was void. This position would appear to be consistent with the policy rationale supporting the Statute of Uses: the Statute of Uses aimed to remove the mechanism by which estate planners could split beneficial and legal title and accordingly avoid the incidents of use. | >
> | The discussion in Holdsworth’s A History of English Law (http://moglen.law.columbia.edu./twiki/pub/EngLegalHist/RefugeeProperty/Holdsworth.pdf) of the use upon a use shows that for a period after the passage of the Statute of Uses in 1536, the accepted view was that a use upon a use was void. This position would appear to be consistent with the policy rationale supporting the Statute of Uses: the Statute of Uses aimed to remove the mechanism by which estate planners could split beneficial and legal title and accordingly avoid the incidents of use. | | | Holdsworth contains a discussion of Tyrrell’s Case (1557) Dyer 155, which is also set out in Baker and Milsom (attached). Tyrrell’s Case was similar to Bartie v Herenden in that it concerned the validity of a use upon a use. In that case, Jane Tyrrell conveyed her lands to her son, G. Tyrrell, to hold to G. and his heirs, to the use of Jane for life, then to the use of G. and the heirs of his body, and to the use of Jane’s heirs if G. had no heirs of the body. | | | Would other political refugees have been likely to enter into similar arrangements with friends left behind in England? | |
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< | Trying to find records of similar arrangements made by other refugees would likely be a futile exercise, even if it were possible to access the relevant records. Any such arrangements would have been secret by necessity, and therefore unlikely to have been in writing. We know about the Duchess’s arrangements only because they went wrong; in all likelihood most other exiles’ arrangements proceeded more smoothly. In Women, Reform and Community in Early Modern England (attached), Melissa Harkrider notes that other Marian exiles with substantial property entered into similar arrangements to the Duchess (page 110). However, it is difficult to know what “similar” means in this sense. It is probable that many exiles transferred their properties to trusted friends, on the understanding that their friends would re-convey the properties back if and when it became safe to do so. Considering the state of the law of uses, as discussed above, it is unlikely that the parties to these arrangements considered that the trusted friends were legally obliged to re-convey the lands, although they were certainly morally obliged to do so. | >
> | Trying to find records of similar arrangements made by other refugees would likely be a futile exercise, even if it were possible to access the relevant records. Any such arrangements would have been secret by necessity, and therefore unlikely to have been in writing. We know about the Duchess’s arrangements only because they went wrong; in all likelihood most other exiles’ arrangements proceeded more smoothly. In Women, Reform and Community in Early Modern England (link), Melissa Harkrider notes that other Marian exiles with substantial property entered into similar arrangements to the Duchess (page 110). However, it is difficult to know what “similar” means in this sense. It is probable that many exiles transferred their properties to trusted friends, on the understanding that their friends would re-convey the properties back if and when it became safe to do so. Considering the state of the law of uses, as discussed above, it is unlikely that the parties to these arrangements considered that the trusted friends were legally obliged to re-convey the lands, although they were certainly morally obliged to do so. | | | Catholic exiles during the reign of Elizabeth would have had to take similar measures to protect their property. The "Acte agaynst Fugitives over the sea" (link) provided that anyone who had gone overseas without a license forfeited his or her lands. The act also contained anti-avoidance provisions, addressed towards arrangements such as the Duchess's. Elizabethan exiles therefore would have found it considerably more difficult to protect their property than the Marian exiles, but it seems reasonable to assume that a number of such arrangements existed nevertheless.
Why was Katherine afraid that her property would be confiscated? | |
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< | Jennifer Loach's discussion of the Parliament of 1555 (link), at pages 138-142 describes a bill introduced by Mary that would have allowed the property of refugees to be confiscated. The bill was defeated in the House of Commons, however. According to Loach's description, the Duchess herself was the major target of the bill. The bill's defeat meant that it could not have been used as a mechanism for confiscating the Duchess's lands, but the fact that it was introduced in the first place shows that she was right to be afraid of this kind of measure being taken. | >
> | Jennifer Loach's discussion of the Parliament of 1555 (http://moglen.law.columbia.edu./twiki/pub/EngLegalHist/RefugeeProperty/MaryTudorParliament.pdf), at pages 138-142 describes a bill introduced by Mary that would have allowed the property of refugees to be confiscated. The bill was defeated in the House of Commons, however. According to Loach's description, the Duchess herself was the major target of the bill. The bill's defeat meant that it could not have been used as a mechanism for confiscating the Duchess's lands, but the fact that it was introduced in the first place shows that she was right to be afraid of this kind of measure being taken. | | | | |
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> | Interestingly, Lady Georgina Bertie (a descendant) reports in Five Generations of a Loyal House (link) at page 36 that when the Duchess and her husband returned to England, they were restored to their lands. This statement seems a bit odd if The Duchess and Bartie never had any of their lands confiscated, but perhaps all Georgina Bartie means is that they were able to return to their property with no resistance. | | | Why did Herenden fail to convey the land back to the Duchess upon her return? | |
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< | Discussion to include: Herenden was a lawyer so this action surely marked the end of his career. The Duchess was a hugely big deal, as shown by her biographies. Also, all the time that the Duchess was away it seems that Herenden was very helpful and conscientious. Was the Duchess out of favor when she returned, and was some pressure put on Herenden to refuse to re-convey the lands? Although some sources suggest that the Duchess wasn't exactly Elizabeth's favorite person (she was a bit too hard core Protestant), it does not appear that there was any serious tension between the two. Also it looks like Elizabeth restored the rest of the Duchess's lands to her, so to have pressure put on Herenden to the opposite effect seems bizarre. | >
> | Herenden's failure to convey the Duchess's land badk to her upon her return to England is mystifying from a number of different points of view. First, Herenden was a lawyer, so effectively stealing from one of his clients certainly would have ended his career. What makes his action even more remarkable though is that Katherine Willoughby was a very important figure in English society. Although her social fortunes rose and fell to some extent, she was nevertheless a formidable target.
Katherine Willoughby's marriage to Richard Bertie, in whose name Bartie v Herenden was brought (a married woman could bring proceedings only in her husband’s name), was her second. Her first marriage was to the Duke of Suffolk. The Duke’s position during the reign of Henry VIII meant that Katherine was involved in a number of significant historical events. In A Woman of the Tudor Age, (link) Cecile Goff describes the scene where Henry first met Anne of Cleves, his fourth wife. Katherine was one of the ladies sent as part of the welcoming party to meet Anne. Later, after the marriage proved unsuccessful and Henry sought to rid himself of Anne, the Duke of Suffolk was one of the two unfortunate men tasked with giving Anne the news (Goff, page 120). The Duke of Suffolk was also involved in the removal of Henry’s next wife, Katherine Howard: he, with the Duke of Southampton, was sent to extract a confession of adultery from her. It was Henry’s next wife, however, that the Duchess had the most to do with. The Duchess was one of the few people present at the marriage of Henry to Katherine Parr, and the two women were good friends (Goff, page 150-151).
The Duke of Suffolk died in 1545, when the Duchess was only 26. Even more tragically, the Duchess's two sons died in 1551, within minutes of each other. Wilson's Arte of Rhetorique contains a letter of comfort to the Duchess (link). In 1553, Katherine married Richard Bertie, one of her servants. Making such a marriage would have been a bold move at that time (her other main suitor seems to have been the King of Poland – Goff page 167), but it is also possibly true that at this juncture in her life, as a wealthy and well-connected widow, Katherine was able to exercise a degree of independence that must have been beyond far beyond the reach of most women in Tudor England.
The Duchess of Suffolk, then, was an important player in social and political life of the period. One possible explanation for Herenden's behavior is that on her return to England she was not as popular with the new administration as might be supposed. This relationship between the Duchess and Elizabeth was not without tension at times, primarily due to the Duchess's hard-line puritanism and Elizabeth's more moderate middle religious way (reference). Nevertheless, it seems unlikely that this tension could have resulted in any serious political ill-will against the Duchess, and it certainly does not appear to have affected the Duchess's and Bertie's position in other ways. For example, Georgina Bartie reports that Richard Bartie sat in Parliament for four years, and also attended Elizabeth in 1564 (link).
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< | Herenden died soon after the case was heard. My current thesis is therefore that he was suffering from some sort of degenerative brain disease that made him irrational, if not noticeably mad. It seems a bit far-fetched I know, but really I can't think of anything else that would explain these facts. | | | |
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