Political Refugees' Property

• 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.

• When you are done and ready for a further evaluation, please remove your "take" above, and these notes of mine, so I can see that you consider it finished. Thanks.

*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 (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.

The facts of _Bartie v Herenden_

Factually, Bartie v Herenden is relatively straightforwar 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) (pdf attached), "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.

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?

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.

[more to follow. Have to go out now]