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RefugeeProperty 9 - 22 Dec 2008 - Main.BeckyPrebble
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Political Refugees' Property
| | | The core of the answer to this question is the case of Bartie v Herenden, found at pages 121-123 of Baker and Milsom (pdf to be attached soon). However, instead of conclusively resolving the issue of how refugees managed their property, the case presents a number of questions for which it is difficult to find a satisfactory answer. | |
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< | The facts of _Bartie v Herenden_ WHY WON'T THIS GO ITALIC?? I AM FRUSTRATED. | >
> | The facts of _Bartie v Herenden_ | | | Factually, Bartie v Herenden is relatively straightforward. Katherine Willoughby, the Duchess of Suffolk, was a Protestant reformer. After the Catholic Queen Mary became queen in 1553, the Duchess's position was suddenly very precarious. In 1555 she escaped to Poland with her husband, Richard Bertie, and their children. She conveyed some of her land to Walter Herenden, her lawyer, with the words of the instrument being "to the only use and behove of the seid Walter Herenden and of his heyres". The conveyance therefore took the form "to A to the use of A";. Since this conveyance was after the passage of the Statute of Uses, the use immediately executed and the result was a direct transfer of the fee simple to Herenden. As Baker points out in J.H. Baker, The Use upon a Use in Equity, 93(1) LQR 33, 34 (1977) (http://moglen.law.columbia.edu./twiki/pub/EngLegalHist/RefugeeProperty/93LQR33-38(1977).pdf), "Nothing more could have been done at common law to vest the fee simple beneficially in Herenden." However, there was more to this conveyance than met the eye: the unwritten condition was that Herenden would convey the Duchess's land back to her when it became safe for her to return to England. | | | 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. | |
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< | [To be completed: the situation in relation to Elizabethan refugees] | >
> | 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. | | | | |
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< | The nature of the threat facing the Duchess and other exiles | >
> | Why was Katherine afraid that her property would be confiscated? | | | | |
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< | Discussion to include: Statute of Treasons, The Duchess of Suffolk's Bill and its failure, the apparent confiscation of the Duchess's lands anyway. | >
> | 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.
Inter | | | Why did Herenden fail to convey the land back to the Duchess upon her return? |
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