| 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.
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.
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 (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.
[To be completed: the situation in relation to Elizabethan refugees]
The nature of the threat facing the Duchess and other exiles
Discussion to include: Statute of Treasons, The Duchess of Suffolk's Bill and its failure, the apparent confiscation of the Duchess's lands anyway.
Why did Herenden fail to convey the land back to the Duchess upon her return? |