Political Refugees' Property

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How did political refugees protect their property during the reigns of Mary and Elizabeth?

The core of the answer to this question is the case of Bartie v Herenden, found at pages 121-123 of Baker and Milsom (https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/BakerAndMilsom.pdf). 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.

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. A sensational account of the Duchess's escape, written in 1576, can be found in Foxe's Book of Matyrs, and is reprinted in Voices of the English Reformation (https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/HairbreadthEscape.pdf).

In order to protect her land, the Duchess conveyed some of it 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) (https://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.

When Mary died in 1558 and Elizabeth become queen, Katherine returned to England. Herenden, however, did not stick to the plan and refused to convey the land back. Katherine's husband, Richard Bartie, sued Herenden in Chancery for the return of the lands (at the time, a married woman could bring proceedings only in her husband's name).

Bartie and the Duchess were allowed to prove that the original conveyance had included a secret use, being to the use of the Duchess and Richard Bartie. That is, the conveyance had been of the form "to A for the use of A for the use of B". The court found that this second use was both proved and legally effective, and ordered Herenden to convey the land back to the Duchess.

Questions raised by the case

Bartie v Herenden is in some respects a textbook answer to the question of how political refugees protected their property. In other respects, however, the case is decidedly odd. The questions that Bartie v Herenden prompted me to try to answer are:

1. How does the case fit into the historical development of the use upon a use?

2. Would other political refugees have been likely to enter into similar arrangements with friends left behind in England?

3. What was the nature of the threat that Mary might take the Duchess's lands? That is, what power did Mary have to do this?

4. Why did Herenden fail to convey the land back to the Duchess upon her return?

How does Bartie v Herenden fit into the historical development of the use upon a use?

The discussion in Holdsworth’s A History of English Law (https://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 (https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/BakerAndMilsom.pdf). 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.

The court of Common Pleas held that all the uses after the first to G. were void (the first transfer to G. and his heirs implied a use, although it appears that this use was not explicitly set out in the instrument of transfer). The reasoning of the court, according to Holdsworth (at page 470), that “in no case could a use be executed which would contradict a use which arose by implication of law”. The initial transfer to G. implied a use, so all subsequent uses contradicted G.'s use and were therefore void.

According to Holdsworth, the rule that there could be no use upon a use survived at least until the early seventeenth century (at page 472). The existence of Bartie v Herenden of course shows that this statement is not entirely correct. However, it is certainly interesting that the case contradicts what appears to have been a firm rule backed by substantial policy considerations, particularly as Bartie v Herenden followed so closely after Tyrrell's Case. In his Law Quarterly Review article, Baker suggests that this result might be explained by the "political overtones"; of Bartie v Herenden. However, what these political overtones might be is still somewhat murky.

Would other political refugees have been likely to enter into similar arrangements with friends left behind in 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 (https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/KatherineWilloughby.pdf), 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?

Jennifer Loach's discussion of the Parliament of 1555 (https://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.

Interestingly, two biographies of Katherine Willoughby report that when Katherine and Bartie returned to England, Elizabeth restored their lands to them, after their confiscation by Mary (https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/FiveGenerations.pdf at page 36 and https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/MyLadySuffolk.pdf at page 139). These statements suggest that despite the defeat of the bill targeting refugee property, Mary found a way to confiscate the Duchess's property regardless. Jennifer Loach suggests that the bill might not have been the only legal means by which refugee property could be confiscated, and that its purpose was rather to ensure certainty (https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/MaryTudorParliament.pdf at page 142). Why did Herenden fail to convey the land back to the Duchess upon her return?

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. She would surely have been an unlikely victim for an unscrupulous lawyer. A further complicating factor is that it seems that Herenden was not an unscrupulous lawyer at all, at least not while the Duchess was in exile. Rather, he was a model administrator. Melissa Harkrider reports that the Duchess and Bartie were often in contact with Herenden and that Herenden sent them funds regularly. Furthermore, Herenden was helpful in disposing of what appears to be an opportunistic challenge to the Duchess's inheritance of certain lands (pages 109-110 https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/atherineWilloughby.pdf).

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, and some sort of pressure was brought to bear on Herenden to withhold her land. 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 (https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/MyLadySuffolk.pdf at pages 168-169). 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, Richard Bartie sat in Parliament and also was one of Elizabeth's attendants (https://moglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/FiveGenerations.pdf at page 37). More fundamentally, Elizabeth would surely not have restored Katherine and Bartie to the lands that Mary confiscated if she intended to ensure that they could have no access to their other lands.