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RefugeeProperty 15 - 23 Aug 2014 - Main.EbenMoglen
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Political Refugees' Property


RefugeeProperty 14 - 27 Dec 2008 - Main.BeckyPrebble
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Political Refugees' Property

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I'd like this topic. - Becky

  • 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?
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 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).
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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. In 1563 a bill was brought before Parliament to enforce the transfer.
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Bartie and the Duchess were permitted 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. In 1563 a bill was brought before Parliament to enforce the transfer.
 Questions raised by the case
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 2. Would other political refugees have been likely to enter into similar arrangements with friends left behind in England?
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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?
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3. What power did Mary have to confiscate the property of political refugees?
 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?

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The discussion in Holdsworth’s A History of English Law 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.
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The discussion in Holdsworth’s A History of English Law 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. Permitting a use upon a use to be effective would defeat this purpose.
 Holdsworth contains a discussion of Tyrrell’s Case (1557) Dyer 155, which is also set out in Baker and Milsom. 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.
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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.
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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), was 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.
 
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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. Baker (at page 35) suggests that this result might be explained by the "overtones of politics" of Bartie v Herenden. However, what these political overtones might be is still somewhat murky.
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According to Holdsworth (at page 472), the rule that there could be no use upon a use survived at least until the early seventeenth century. The existence of Bartie v Herenden 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. Baker (at page 35) suggests that this result might be explained by the "overtones of politics" of Bartie v Herenden. However, what these 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 Marian 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, 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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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", described in Patrick McGrath's Papists and Puritans Under Elizabeth I at page 104, 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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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", described in Patrick McGrath's Papists and Puritans Under Elizabeth I (at page 104), 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 similar to 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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Why was Katherine afraid that her property would be confiscated?
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What power did Mary have to confiscate the property of political refugees?
 
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Jennifer Loach's discussion of the Parliament of 1555 describes at pages 138-142 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 (although the bill itself seems to have been lost, the Duchess is mentioned by name in the Journal of the House of Commons). 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 justifiably afraid of this kind of measure being taken.
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Jennifer Loach's discussion of the Parliament of 1555 describes at pages 138-142 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 (although the bill itself seems to have been lost, the Duchess is mentioned by name in the Journal of the House of Commons). 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 justifiably afraid of that kind of measure being taken.
 
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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. The biographies are Lady Georgina Bartie's Five Generations of a Loyal House, at page 36, and Evelyn Read's My Lady Suffolk, at page 139. These statements suggest that despite the defeat of the bill targeting refugee property, Mary nevertheless found a way to confiscate the Duchess's property. Jennifer Loach, at page 142, 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. It is possible that after the failure of the bill Mary decided that the appearance of legality was not so important that it would prevent her from confiscating the Duchess's land.
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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. The biographies are Lady Georgina Bartie's Five Generations of a Loyal House, at page 36, and Evelyn Read's My Lady Suffolk, at page 139. These statements suggest that despite the defeat of the bill targeting refugee property, Mary nevertheless found a way to confiscate the Duchess's property. Jennifer Loach (at page 142) 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. It is possible that after the failure of the bill Mary decided that the appearance of legality was not so crucial that it would prevent her from confiscating the Duchess's land.
 Why did Herenden fail to convey the land back to the Duchess upon her return?
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Herenden's failure to convey the Duchess's land back 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.
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Herenden's failure to convey the Duchess's land back 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 an 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 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, Cecilie 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).
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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. In 1553, Katherine married Richard Bertie, who had previously been one of her servants. Making such a marriage would have been a bold move at that time, but it demonstrates 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.
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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. In 1553, Katherine married Richard Bertie, who had previously been one of her servants. Making such a marriage would have been a bold move at that time, but it demonstrates that at this juncture in her life, as a wealthy and well-connected widow, Katherine was able to exercise a degree of independence that was far beyond the reach of most women in Tudor England.
 
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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 (at pages 109-110) 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.
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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 (at pages 109-110) 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 have been an opportunistic challenge from a relative to the Duchess's inheritance of certain lands.
 
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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. The relationship between the Duchess and the new queen was not without tension at times, primarily due to the Duchess's hard-line puritanism and Elizabeth's more moderate middle religious way, as reported by Evelyn Read (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, Georgina Bertie reports (at page 37) that Richard Bartie sat in Parliament and also was one of Elizabeth's attendants. 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.
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One possible explanation for Herenden's behavior is that on her return to England the Duchess 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. The relationship between the Duchess and the new queen was not without tension at times, primarily due to the Duchess's hard-line puritanism and Elizabeth's more moderate middle religious way, as reported by Evelyn Read (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, Georgina Bertie notes (at page 37) that Richard Bartie sat in Parliament and also was one of Elizabeth's attendants. 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.
 
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Herenden's motives in refusing to re-convey the Duchess's lands back to her may remain obscure forever. Herenden died soon after Bartie v Herenden was heard, so one possibility that occurred to me was that he was suffering from some kind of degenerative brain disease and his actions were attributable to undiagnosed madness. This suggestions seems far-fetched, but I have been unable to think of anything that would explain Herenden's actions better.
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Herenden's motives in refusing to re-convey the Duchess's lands back to her may remain obscure forever. Herenden died soon after Bartie v Herenden was heard, so one possibility that occurred to me was that he was suffering from some kind of degenerative brain disease and his actions were attributable to undiagnosed madness. This suggestion seems far-fetched, but I have been unable to think of anything that would explain Herenden's actions better. Unfortunately, the factual situation that produced Bartie v Herenden is likely to remain a puzzle.
 

RefugeeProperty 13 - 24 Dec 2008 - Main.BeckyPrebble
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Political Refugees' Property

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 Jennifer Loach's discussion of the Parliament of 1555 describes at pages 138-142 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 (although the bill itself seems to have been lost, the Duchess is mentioned by name in the Journal of the House of Commons). 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 justifiably afraid of this kind of measure being taken.
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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. The biographies are Lady Georgina Bartie's Five Generations of a Loyal House, at page 36, and Evelyn Read's My Lady Suffolk, at page 139. These statements suggest that despite the defeat of the bill targeting refugee property, Mary nevertheless found a way to confiscate the Duchess's property. Jennifer Loach, at page 142, 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. It is possible that after the failure of the bill Mary decided that the appearance of legality was not so important that it would prevent her from confiscating the Duchess's land.
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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. The biographies are Lady Georgina Bartie's Five Generations of a Loyal House, at page 36, and Evelyn Read's My Lady Suffolk, at page 139. These statements suggest that despite the defeat of the bill targeting refugee property, Mary nevertheless found a way to confiscate the Duchess's property. Jennifer Loach, at page 142, 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. It is possible that after the failure of the bill Mary decided that the appearance of legality was not so important that it would prevent her from confiscating the Duchess's land.
 Why did Herenden fail to convey the land back to the Duchess upon her return?

RefugeeProperty 12 - 24 Dec 2008 - Main.BeckyPrebble
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Political Refugees' Property

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 How did political refugees protect their property during the reigns of Mary and Elizabeth?
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The core of the answer to this question is the case of Bartie v Herenden, found at pages 121-123 of Baker and Milsom (http://emoglen.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.
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The core of the answer to this question is the case of Bartie v Herenden, found at pages 121-123 of Baker and Milsom. 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_
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The facts of Bartie v Herenden
 
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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 (http://emoglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/HairbreadthEscape.pdf).
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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 John King's Voices of the English Reformation.
 
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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) (http://emoglen.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.
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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, "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).
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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.
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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. In 1563 a bill was brought before Parliament to enforce the transfer.
 Questions raised by the case
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 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 (http://emoglen.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.
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The discussion in Holdsworth’s A History of English Law 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.
 
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Holdsworth contains a discussion of Tyrrell’s Case (1557) Dyer 155, which is also set out in Baker and Milsom (http://emoglen.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.
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Holdsworth contains a discussion of Tyrrell’s Case (1557) Dyer 155, which is also set out in Baker and Milsom. 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.
 
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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.
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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.
 
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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.
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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. Baker (at page 35) suggests that this result might be explained by the "overtones of politics" 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?

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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 (http://emoglen.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.
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Trying to find records of similar arrangements made by other Marian 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, 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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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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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", described in Patrick McGrath's Papists and Puritans Under Elizabeth I at page 104, 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 (http://emoglen.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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Jennifer Loach's discussion of the Parliament of 1555 describes at pages 138-142 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 (although the bill itself seems to have been lost, the Duchess is mentioned by name in the Journal of the House of Commons). 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 justifiably afraid of this kind of measure being taken.
 
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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 (http://emoglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/FiveGenerations.pdf at page 36 and http://emoglen.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 (http://emoglen.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?
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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. The biographies are Lady Georgina Bartie's Five Generations of a Loyal House, at page 36, and Evelyn Read's My Lady Suffolk, at page 139. These statements suggest that despite the defeat of the bill targeting refugee property, Mary nevertheless found a way to confiscate the Duchess's property. Jennifer Loach, at page 142, 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. It is possible that after the failure of the bill Mary decided that the appearance of legality was not so important that it would prevent her from confiscating the Duchess's land.
 
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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.
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Why did Herenden fail to convey the land back to the Duchess upon her return?
 
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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).
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Herenden's failure to convey the Duchess's land back 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.
 
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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.
>
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Katherine Willoughby's marriage to Richard Bertie 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, Cecilie 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).
 
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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 http://emoglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/atherineWilloughby.pdf).
>
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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. In 1553, Katherine married Richard Bertie, who had previously been one of her servants. Making such a marriage would have been a bold move at that time, but it demonstrates 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.
 
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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 (http://emoglen.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 (http://emoglen.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.
>
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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 (at pages 109-110) 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.
 
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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. The relationship between the Duchess and the new queen was not without tension at times, primarily due to the Duchess's hard-line puritanism and Elizabeth's more moderate middle religious way, as reported by Evelyn Read (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, Georgina Bertie reports (at page 37) that Richard Bartie sat in Parliament and also was one of Elizabeth's attendants. 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.
 
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Herenden's motives in refusing to re-convey the Duchess's lands back to her may remain obscure forever. Herenden died soon after Bartie v Herenden was heard, so one possibility that occurred to me was that he was suffering from some kind of degenerative brain disease and his actions were attributable to undiagnosed madness. This suggestions seems far-fetched, but I have been unable to think of anything that would explain Herenden's actions better.
 

RefugeeProperty 11 - 23 Dec 2008 - Main.BeckyPrebble
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Political Refugees' Property

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 How did political refugees protect their property during the reigns of Mary and Elizabeth?
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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 core of the answer to this question is the case of Bartie v Herenden, found at pages 121-123 of Baker and Milsom (http://emoglen.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_
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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://emoglen.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.
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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 (http://emoglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/HairbreadthEscape.pdf).
 
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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.
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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) (http://emoglen.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.
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 The discussion in Holdsworth’s A History of English Law (http://emoglen.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.
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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.
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Holdsworth contains a discussion of Tyrrell’s Case (1557) Dyer 155, which is also set out in Baker and Milsom (http://emoglen.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.
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 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 (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.
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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 (http://emoglen.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.
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 Jennifer Loach's discussion of the Parliament of 1555 (http://emoglen.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.
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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 (http://emoglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/FiveGenerations.pdf at page 36 and http://emoglen.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 (http://emoglen.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.

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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).
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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.
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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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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 http://emoglen.law.columbia.edu/twiki/pub/EngLegalHist/RefugeeProperty/atherineWilloughby.pdf).
 
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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 (http://emoglen.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 (http://emoglen.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.
 
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META FILEATTACHMENT attachment="PapistsAndPuritans.pdf" attr="" comment="" date="1230058504" name="PapistsAndPuritans.pdf" path="F:\PapistsAndPuritans.pdf" size="171481" stream="F:\PapistsAndPuritans.pdf" user="Main.BeckyPrebble" version="1"

RefugeeProperty 10 - 22 Dec 2008 - Main.BeckyPrebble
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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.
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 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.
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The discussion in Holdsworth’s A History of English Law (http://emoglen.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.
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 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.
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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 (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.
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Jennifer Loach's discussion of the Parliament of 1555 (http://emoglen.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.
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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.
 

RefugeeProperty 9 - 22 Dec 2008 - Main.BeckyPrebble
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Political Refugees' Property

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 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.
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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://emoglen.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.
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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.
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[To be completed: the situation in relation to Elizabethan refugees]
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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
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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.
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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.

Inter

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

RefugeeProperty 8 - 08 Dec 2008 - Main.BeckyPrebble
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Political Refugees' Property

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 The facts of _Bartie v Herenden_ WHY WON'T THIS GO ITALIC?? I AM FRUSTRATED.
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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) (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.
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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://emoglen.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.

RefugeeProperty 7 - 05 Dec 2008 - Main.BeckyPrebble
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META TOPICPARENT name="PaperTopics"

Political Refugees' Property

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 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.

  • 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.
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*How did political refugees protect their property during the reigns of Mary and Elizabeth? *
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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 (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_
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The facts of _Bartie v Herenden_ WHY WON'T THIS GO ITALIC?? I AM FRUSTRATED.
 
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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.
>
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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) (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.
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 How does _ Bartie v Herenden_ fit into the historical development of the use upon a use?
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Would other political refugees have been likely to enter into similar arrangements with friends left behind in England?
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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.

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?

 
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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.
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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.
 
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[more to follow. Have to go out now]
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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.
 

META FILEATTACHMENT attachment="93LQR33-38(1977).pdf" attr="" comment="" date="1226528429" name="93LQR33-38(1977).pdf" path="H:\93LQR33-38(1977).pdf" size="1112153" stream="H:\93LQR33-38(1977).pdf" user="Main.BeckyPrebble" version="1"

RefugeeProperty 6 - 05 Dec 2008 - Main.BeckyPrebble
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Political Refugees' Property

I'd like this topic. - Becky
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META FILEATTACHMENT attachment="Holdsworth.pdf" attr="" comment="" date="1228501520" name="Holdsworth.pdf" path="H:\Holdsworth.pdf" size="1259175" stream="H:\Holdsworth.pdf" user="Main.BeckyPrebble" version="1"

RefugeeProperty 5 - 02 Dec 2008 - Main.EbenMoglen
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META TOPICPARENT name="PaperTopics"

Political Refugees' Property

I'd like this topic. - Becky
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  • 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.

RefugeeProperty 4 - 28 Nov 2008 - Main.BeckyPrebble
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META TOPICPARENT name="PaperTopics"

Political Refugees' Property

I'd like this topic. - Becky
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The most celebrated political refugee from the reign of Mary Tudor seems to have been Katherine Willoughby, the Duchess of Suffolk, who fled to Poland when Mary came to the throne. Worried that her lands would be confiscated, she transferred some of the to her lawyer, William Herenden, apparently on the understanding that he would eventually transfer them back to her. The Duchess returned to England when Elizabeth became queen, but, very oddly, Herenden did not transfer her lands back. The result was the case Bartie v Herenden, at pages 121-123 of Baker and Milsom (Bartie was Katherine's second husband).
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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 (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 questions I'm thinking about now are:
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The facts of _Bartie v Herenden_
 
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1. Why was the Duchess worried that her lands would be confiscated? What power did Mary have to do that? 2. Why did the "use upon a use" structure work? From the Baker LQR note (attached in PDF), it seems that similar structures had been declared void. Furthermore, the second use in this case was a secret one. How could the Duchess have proved anything? 3. The Duchess of Suffolk was not the only political refugee to flee England. What sort of arrangements did the rest of them make? 4. If the facts reported in Bartie v Herenden are correct, what on earth was William Herenden thinking when he refused to transfer the land back to the Duchess? Surely he didn't think he could get away with it - once Elizabeth became queen, people like the Katherine Willoughby were very much in favor. It just seems completely insane to refuse to transfer the land back.
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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]

 
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Also when I started looking at this I got a bit sidetracked by the personality of Katherine Willoughby herself - it sounds like she was pretty awesome. Very tulmultuous life though - her two sons died within hours of each other of "the sweating sickness" (whatever that is), then all the religious persecution. And her second marriage was to a commoner, which must have caused a few ripples at the time. So I've ended up attaching more resources about Katherine Willoughby herself than about her legal arrangements. More legal stuff to come though.
 
META FILEATTACHMENT attachment="93LQR33-38(1977).pdf" attr="" comment="" date="1226528429" name="93LQR33-38(1977).pdf" path="H:\93LQR33-38(1977).pdf" size="1112153" stream="H:\93LQR33-38(1977).pdf" user="Main.BeckyPrebble" version="1"
META FILEATTACHMENT attachment="HairbreadthEscape.pdf" attr="" comment="" date="1226528510" name="HairbreadthEscape.pdf" path="H:\HairbreadthEscape.pdf" size="1117836" stream="H:\HairbreadthEscape.pdf" user="Main.BeckyPrebble" version="1"

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Political Refugees' Property

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The most celebrated political refugee from the reign of Mary Tudor seems to have been Katherine Willoughby, the Duchess of Suffolk, who fled to Poland when Mary came to the throne. Worried that her lands would be confiscated, she transferred some of the to her lawyer, William Herenden, apparently on the understanding that he would eventually transfer them back to her. The Duchess returned to England when Elizabeth became queen, but, very oddly, Herenden did not transfer her lands back. The result was the case Bartie v Herenden, at pages 121-123 of Baker and Milsom (Bartie was Katherine's second husband).

The questions I'm thinking about now are:

1. Why was the Duchess worried that her lands would be confiscated? What power did Mary have to do that? 2. Why did the "use upon a use" structure work? From the Baker LQR note (attached in PDF), it seems that similar structures had been declared void. Furthermore, the second use in this case was a secret one. How could the Duchess have proved anything? 3. The Duchess of Suffolk was not the only political refugee to flee England. What sort of arrangements did the rest of them make? 4. If the facts reported in Bartie v Herenden are correct, what on earth was William Herenden thinking when he refused to transfer the land back to the Duchess? Surely he didn't think he could get away with it - once Elizabeth became queen, people like the Katherine Willoughby were very much in favor. It just seems completely insane to refuse to transfer the land back.

Also when I started looking at this I got a bit sidetracked by the personality of Katherine Willoughby herself - it sounds like she was pretty awesome. Very tulmultuous life though - her two sons died within hours of each other of "the sweating sickness" (whatever that is), then all the religious persecution. And her second marriage was to a commoner, which must have caused a few ripples at the time. So I've ended up attaching more resources about Katherine Willoughby herself than about her legal arrangements. More legal stuff to come though.

META FILEATTACHMENT attachment="93LQR33-38(1977).pdf" attr="" comment="" date="1226528429" name="93LQR33-38(1977).pdf" path="H:\93LQR33-38(1977).pdf" size="1112153" stream="H:\93LQR33-38(1977).pdf" user="Main.BeckyPrebble" version="1"
META FILEATTACHMENT attachment="HairbreadthEscape.pdf" attr="" comment="" date="1226528510" name="HairbreadthEscape.pdf" path="H:\HairbreadthEscape.pdf" size="1117836" stream="H:\HairbreadthEscape.pdf" user="Main.BeckyPrebble" version="1"
META FILEATTACHMENT attachment="KatherineWilloughby.pdf" attr="" comment="" date="1226528539" name="KatherineWilloughby.pdf" path="H:\KatherineWilloughby.pdf" size="2967968" stream="H:\KatherineWilloughby.pdf" user="Main.BeckyPrebble" version="1"
META FILEATTACHMENT attachment="MaryTudorParliament.pdf" attr="" comment="" date="1226528574" name="MaryTudorParliament.pdf" path="H:\MaryTudorParliament.pdf" size="1367860" stream="H:\MaryTudorParliament.pdf" user="Main.BeckyPrebble" version="1"
META FILEATTACHMENT attachment="ArteOfRhetorique.pdf" attr="" comment="" date="1226528625" name="ArteOfRhetorique.pdf" path="H:\ArteOfRhetorique.pdf" size="2701607" stream="H:\ArteOfRhetorique.pdf" user="Main.BeckyPrebble" version="1"

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Political Refugees' Property

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I'd like this topic. - Becky

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Political Refugees' Property


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