The Genesis of the Statute of Uses the Importance of the Statute of Uses Is Beyond Doubt

The English Historical Review

No. CCCXXV - October 1967

The genesis of the Statute of Uses THE importance of the Statute of Uses is beyond doubt. The effect which its provisions had upon the development of English land law was revolutionary, and from it have grown the crucial doctrines of the trust. In the political field its importance was not less - it is one of the few statutes with the distinction of having fomented an armed rebellion; when the rebels rose against Henry VH[ in 1536, they demanded not only the abandonment of the king's religious changes, but the abandonment of the statute as well. Sixteenth-century lawyers recognized the significance of the act and both Edward Coke and Francis Bacon gave their law readings upon it. Some subsequent commentators disparaged the statute as having added at most 'three words to a conveyance', but modern authorities have united to re-emphasize the important consequences it produced. To Sir William Holdsworth, the Statute of Uses was 'perhaps the most important addition that the legislature has ever made to our private law'.1 Unfortunately, the immense importance of the statute is equalled by our ignorance about its origin. The Commons' Journals do not begin for more than a decade after the act was passed; such of the Lords' Journals as survive remain silent on the matter, and the roll of parliament is no help at all. The text of the statute, a few associated papers and occasional references by contemporary observers are all that there is to work on.2 The general background, however, is clear.8 The medieval common law made little provision for the settlement of landed property, and none for the device of real estate by will. The use, however, allowed an owner to circumvent these limitations by divesting himself of the legal estate in his property in favour of one or, more 1. W. S. Holdsworth, [History of English Lav (1922-5 2)], iv. 409. 2. I am grateful to Dr. A. R. Myers for his valuable criticisms of the thesis advanced in this essay. 3. The most complete discussion of the subject of uses is found in Holdsworth, iv. 407-80. J. L. Barton, The medieval use', Law Quarterly Review, lxxxi (1965), 562-77 replaces Holdsworth at certain points; cf. R. G. Usher, The significance and early interpretation of the statute of uses', Washington University {St. Louis) Studies, i, pt. ii, no. I. (1913), 42-J5. T. F. T. Plucknett, Contist History of tin Common Lav (4th edn. 1947). PP- 544-55- © Longmans, Green & Company Limited and Contributors, 1967 VOL. LXXXII-NO. CCCXXV DU 674 THE GENESIS OF October generally, a group of feoffees who could fulfil his wishes for him. In its early history the use was clearly tainted with the suspicion of fraud, but so common did it become that by the end of the four- teenth century - probably even from the early years of Richard II's reign - the court of Chancery had to step in to protect and control the device; at common law the feoffees possessed the full legal estate, but at equity the rights of the cestuique use were enforce- able. This immense popularity of the use is readily explained; on the one hand it gave, in a period of party strife, some insurance against the consequences of political misfortune, and on the other it made it possible to escape the burdens of feudal tenure. As Coke remarked, 'there were two Inventors of Uses, Fear and Fraud; Fear in Times of Troubles and civil Wars to save their Inheritances from being forfeited; and Fraud to defeat due Debts, lawful Actions, Wards, Escheats, Mortmains etc.'1 A third factor, quite as important in popularizing the use, was the increasing complexity of society, which encouraged men to look for ways of settling their wealth far more sophisticated than the ancient rights of dower and primo- geniture recognized by the common law.2 In all this the principal sufferer was the Crown. Royal feudal rights were based upon the traditional concept of seisin, but the use made nonsense of tradition. Seisin was now vested in a self-perpetu- ating group of trustees while the control and enjoyment of the property belonged to a beneficiary who was invulnerable to the claims of any feudal overlord. In consequence, the income which the Crown received from its feudal incidents suffered severely. As early as 1391, parliament clamped down upon the evasion of the Statute of Mortmain by the granting of uses, while in 1398 uses were declared to be forfeit for treason.3 But royal dislike of the use was nullified by the king's obligation to do justice; the interests of so many people were by then expressed as uses, that a strict insistence on the letter of the common law would have been a general invitation to dis- honesty, a charter for fraudulent feoffees. The chancellor's protection of the use had to be encouraged, even though the king's rights were lost by it. And lost they were. 'By the middle of the fifteenth century the right of the cestuy que use to escape all the more disagreeable incidents of tenure was so well established that on the rare occasions when his protection failed him the Crown would refuse to take advantage of him.'4 With the revival of government in the later 1. CbudltigffsCase. Coke, Reports (1738), i. I2iv. The extent to which enfeoflEment to uses nullified the penalties of treason has not yet been explored. Lands held in use for a traitor seem to have been normally forfeited, but a use might be of more value in preserving the interests of dependents. Perhaps the greatest advantage of the use was the opportunity it gave for concealing titles in a mass of subtleties. 2. See below p. 689 and notes 2 and 3. 3. 15 Richard II, c 5 ; 21 Richard II, c. 3. 4. Barton, ubi supra, p. 574. Barton assembles evidence that Henry IV attempted to reassert royal feudal rights, unsuccessfully, ibid. 573-4. I967 * THE STATUTE OF USES 675 fifteenth century, this situation had to be resolved. The Crown followed a dual policy. On the one hand such royal rights as remained were enforced with the utmost vigour, a policy which ultimately produced the court of Wards, and on the other efforts were made to reassert, by statute, royal rights which had fallen into abeyance, a policy which gave rise to a stream of legislation from the days of Henry VH to the Statute of Uses and beyond.1 The parliament of 1489 made a start with a peripheral attack upon the problem, asserting royal rights over land held in knight service where the cestuique use died intestate leaving an heir under age, and in 1504 a further act made minor changes in the law relating to uses for villeins or socage tenants.2 Although this mild legislative activity was suspended in the early parliaments of Henry V ill's reign, with increased royal indebtedness in the 15 20s, and, apparently, a general tendency for the common law courts to admit the validity of uses, action became imperative.3 In June 1526, the council ordered the rigorous prosecution of evasions of royal rights, and when the first session of the Reformation Parliament met in 1529, a bill to remedy the king's wrongs had a high priority.4 But passage of the bill was not easy and only in the eighth and final session, in April 1536, did an act reach the statute book at last. This much is straightforward and is common knowledge. But the detailed story of the struggle over uses in the Reformation Parliament is anything but clear. To J. A. Froude, the Statute of Uses was little more than an ingredient in the Pilgrimage of Grace: A. F. Pollard treated the conflict over the act as an example of the independence of parliament, and especially of the Commons: F. W. Maitland remarked with more acuity that the statute 'was forced upon an extremely unwilling Parliament by an extremely strong-willed king'.6 Can anything further be said? Sir William Holdsworth certainly believed that it was possible to go beyond Maitland's verdict. Analysis of the evidence convinced him that the Statute of Uses began as a bargain between the Crown and the nobility but ended as a deal between the Crown and the common lawyers. Holdsworth, and his construction was powerfully supported by T. F. T. Plucknett, believed that here was a classic example of the

1. J. Hurstfield, "The revival of feudalism in early Tudor England', History, xxrvii (i952). I3I-45- l. 4 Henry VII, c 17, 19 Henry VII, c. 15; if. Holdsworth, iv. 448-9. 1 Richard HI, c I foreshadowed the Statute of Uses by empowering the ctstuiqut usi to dispose of the legal estate, but this was a misguided attempt to deal with the abuse of enfeoflments to uses, not to protect royal rights. Holdsworth, iv. 444-6, and Barton, ubi supra, p. 5 74. 3. Usher argued that the common law judges increasingly accepted the use (ubi supra, pp. 44-47) and Barton detects a similar movement, except in the years immediately before the 1536 act (ubi supra, pp. 574-6). 4. See below, p. 687, n. 1. 5. J. A. Froude, History ofEngknd(i 871), ii. 502-4; A. F. Pollard, Htroy VIII (1951), pp. 210-11, 232, 235, 269; F. W. Maitland, Equity (1936), p. 34. 676 THE GENESIS OF October importance of the common lawyers at work.1 The thesis ran as follows. Henry VIll's first proposals were made to the 1529 session of parliament in two documents, a draft bill about titles to land, and an agreement with retain peers about feudal incidents.2 The draft bill set out to abolish entails in favour of estates in fee simple, and to declare uses invalid unless publicly registered. Only peers were to be exempt from the provisions abolishing entails and no land held by a peer was to be sold to a commoner without royal licence. The price for these considerable concessions to the nobility appears in the second document, by which the peers agreed to allow the king to have full wardship of all lands in knight service not held by a use, full wardship despite a use where the cestuique use had not specified any settlement, and feudal rights over a third of an estate when a settlement had been made. Such a bargain, Holdsworth argued, offended the interests of landowners who were not peers, for these would have paid feudal dues, but without enjoying the compensating right to make secure family settlements and secret conveyances. It also offended the common lawyers, for these would have lost much of their business and the value of their skill. To the combined opposition of these two interests, Holdsworth attributed the lack of royal progress in 15 29, and the known opposition of the 1532 session. Henry, however, found a characteristic way out of the dilemma; first he intimidated, and then he divided the opposition. Strict action over feudal rights, and the acceptance in 1534 of a petition complaining of the misdeeds of the lawyers, was followed in 1536 by parliamentary proposals which conceded much to the self-interest of the profession. The tactic was successful, and with the support of the common lawyers, a powerful block within the Commons, the Statute of Uses was finally passed. The king obtained his feudal rights, but uses were brought under the aegis of the common law courts-no longer of the Chancery; current legal views about uses were confirmed in the preamble of the act, and land law, although modified on the subject of uses, was left un- reformed. Although Holdsworth's argument has been unchallenged during four decades, it is open to criticism. In the first place, it fails to emphasize that major differences exist between royal proposals in 1529, and the terms of the final statute. Henry achieved in 1536 an enactment quite different from his 1529 plan, and a much more advantageous one; if Holdsworth's theories are correct, although Henry failed in 15 29 and 1532 to secure feudal rights over only a

1. Holdsworth, iv. 450-61; Plucknctt, Concin History, pp. 552-5. 1. P[ublic] R[ecord] O[ffice], SP 1/56 fos. }6-39, calendared in L[itters] and P[aptrs, Henry VIII], iv. 6043 (6), printed by Holdsworth, iv. App. in (1), pp. 572-4. B[ritish] M[uscum], Cott. Titus B iv, fos. 121-5 (L. and P. iv. 6044) printed ibid. App. HI (2), pp. 574-7- I967 THE STATUTE OF USES 677 third of the property of feudal tenants, he secured, in 1536, rights over the whole. Furthermore, the theory fails to take sufficient account of the Statute of Wills, of 1540, which deliberately abandoned much of the advantage secured by the 1536 act and reverted to the moderate 1529 scheme. It is also difficult to see how a combination of king and lawyers could force legislation on both houses of parliament in 1536, where the earlier alliance of king and Lords had failed against the combined opposition of Commons and lawyers. In any case, the evidence that Henry even attempted to win over the lawyers is circumstantial in the extreme.1 General queries apart, doubt focuses upon the crucial draft bill of 1529. The character of this document is all-important; if it was not, as Holdsworth claimed, a concession to secure the acquiescence of the peers in royal efforts to enforce feudal dues, then there was no bargain in 1529, and no alternative compact between the king and the common lawyers in 1536. Two criticisms may be made of this 1529 bill. In the first place, it may not have been produced by the Crown at all, and in the second, even if it was official, it can have had no connection with the legislation on primer seisin. The format of the bill is admittedly similar to a government draft, so that Dr. G. R. Elton prima facie allowed its official origin, but as he pointed out, although government legislation has a characteristic style, everything in that style is not of government origin.2 What does raise suspicion is not the form, but the content. The main provision of the bill, for the registration of conveyances, is complex and impracticable; all deeds of gift are to be proclaimed in the local parish church on the holy day immediately following the date of the sealing of the agreement 'att suche tyme as moste people is present', and recorded in the county town by the mayor. These methods are naive beside the known thinking of the government about enrolments a few years later, whether in the abortive bill of 1536 which proposed shire registries on a properly bureaucratic basis, or in the alternative which reached the statute book, where, characteristically for the sixteenth century, the burden was thrown upon the custos rotulorum, the J.P.s and the clerk of the peace.8 As for the recording of uses, this is to be undertaken by the court of Common Pleas, but the evident impracticability of a system where

1. Holdsworth argued from the relative advantages which the lawyers might be expected to reap under the 15 29 proposals and the 1536 act (see below, pp. 686-687), the existence of a petition of 1534 against the lawyers (sec below, p. 691), and the supposed existence of a bargain between the king and the nobility in 15 29 (see below, pp. 679-689). 2. G. R. Elton, 'Parliamentary drafts, 1529-1540', Bulletin 0/ /in Institute of Historical Research, xxv (1952), 132.Dr. Elton suggests that the distinctive sty le of the government bill was derived from a regular form of legal draft {ibid. p. 119). 3. P.R.O., SP 1/101, fos. 303-21 (L. and P. x. 246 (6)), printed by Holdsworth, iv, App. in (5), pp. 582-6. Statute of Enrolments, 27 Henry VIII, c 16. 678 THE GENESIS OF October land sales are recorded locally but interests charged upon land are recorded at Westminster is unnoticed. The fee for registration in the Common Pleas is to be 'for every viij lines, being of x inches long, j d. sterling and no more', and the record made by a mayor is to cost two shillings, provisions in marked contrast to the 1536 government bills which specify, much more equitably, charges according to the value of the land involved.1 Add to these signs of unsophistication the apparent belief of the draftsman of the bill that the estates of peers were all entailed, and a government origin for the draft becomes difficult to accept.2 Suspicion that it was produced by an amateur becomes even more active with the consideration of the clause which follows the provision for peers to sell entailed land to commoners under royal licence. And be hitt further inacted by like auctoritc thatt londes tenementes and other possescions so purchased, being the dede openly reddc in the parische or parisches where the lond lieth, subscribed by the curate, registrid and sealid in the schere towne as is afore sayd, schall not be devict evict or recoverid owte of the power and possession of hym that so hathe purchased them In no court or courtes within the kynges realme, butt thatt he thatt is so possessed as is aforesayd schall peasably possess and inioy the same of hys heyrys and assines for ever. Holdsworth took 'londes ... so purchased' as referring to property sold by nobles to commoners, and believed that the clause provided that such transfers should be in fee simple and be registered in the usual way.3 But, in fact, the clause applies to all land sales executed in the correct form, not only to sales by peers to commoners. Its intention is to give the purchaser who observes the new rules an absolute title. Such a plan was wishful thinking. It made no allowance for any challenge to registration, or any objection to a false title properly registered; even the most detailed of the 1536 bills dealing with enrolments attempted nothing more final than preventing individuals from revoking their deeds when registered, on the grounds of error or duress.* A number of other points increase scepticism about the official provenance of the bill. It provides that unchallenged possession of an estate for forty years is to convey a firm title, but when a limit upon claims was enacted eleven years later, sixty years was the appointed span.8 It is hardly likely that the Crown would have offered a more generous concession in 15 29 than was wrung from it 1. P.R.O., SP I/IOI, fos. 303—21. However, charges by length and by item were very usual, for example, in the Common Pleas. M. Hastings, Court of Common Pleas (1947), pp. 251-5. 2. A further hint of unofficial drafting may be the use of the vulgar *brode* for 'great' seal, a not impossible term but hardly characteristic of government documents. V Holdsworth, iv. 451 tnd n. 7. 4. Ibid. iv. 584, § 8. 5. 32 Henry VHI, c 2. The limit of sixty years applied to procedure by writ of right; other claims had lower limits. 1967 THE STATUTE OF USES 679 after a major rebellion. No provision is made for uses in existence before the bill becomes law, although a clause transforming fines and recoveries more than five years old into fees simple would have covered some of these. Nothing is said of more recent uses, or uses other than by fines or recovery, and nothing is said of common law conveyances for the future. All in ail, this 1529 draft looks less like an attempt of the government to simplify and reform the land law than a well-intentioned but inexperienced proposal emanating from a private individual with a grievance about concealed titles. If this is so, it would explain why so revolutionary a proposal as the restriction of entails to the peerage apparently attracted no contemporary comment.1 The fact that suggested legislation is ill-conceived does not, of course, establish that it is unofficial in origin; this bill could be a government measure scrambled together in the hasty preparations for the 1529 parliament.2 But the dismissal of the draft from the story of the Statute of Uses does not depend upon its being a private invention. Even if doubts on this score are set aside, a second line of argument plainly suggests that the bill has no connection with the royal campaign to reassert feudal rights. The purpose of the bill, the preamble declares, is the suppression of abuses arising from concealed titles, contrived by entails, uses and sheer forgery. Its proposed remedies follow this preamble exactly; entails are to be abol- ished, uses recorded openly and deeds publicly declared and registered. Both in the intention stated and in actual provisions, the 1529 bill is an attempt to prohibit sharp practice in land sales. The concession to peers of the exclusive right to entail is no part of the main bill; although Holdsworth attached so much importance to this provision, it is, in fact, an afterthought, a proviso to the clause about land registration. If the bill was part of a bargain with the peers, it was, thus, a curious example of tacking, and pointless at that. Tacking would only have made sense as a device to avoid opposition, but if the privilege for peers could not be enacted in a

1. B.M., Cott. Titus B I, fo. 483V (L. and P. v. 394), instructions to Cromwell for the learnedcouncil,Michaelmas 15 31, includes the following: 'Item the bill of prymer Seasons to be in a redynes ayenst the begynnyng of the parliament and to put out of the same the clause concerning the lordes.' But the final phrase must refer to the clause in the agreement with the peers which preserved the rights of lesser feudal lords and not to the section of the 15 29 bill reserving the entail forpeer s of the realm, since the evidence that the bill drawn up in 15 31 was identical with the agreement seems conclusive (see below, pp. 682 and 683). The passage concerning the right to entail is, in any case, a proviso, not clause. 2. A point in favour of some official interest, if not sponsorship for the bill, is the note of the bills remaining after the 1529 session of parliament (P.R.O., SP 1/56, fo. 14 (L,. and P. iv. 6043 (3))). This lists not only 'The bill of prymier Seasons'-presumably the agreement with the peers — but also 'A bill for recoveries and fyncs to uses'. As this was almost certainly the draft bill about titles, it docs indicate that the government at least thought the suggestion worth filing, and this is confirmed by the preservation of the document, presumably among Cromwell's papers. 680 THE GENESIS OF October separate bill, it was hardly likely to pass in the disguise of a proviso, and that to a bill which, as Holdsworth pointed out, seriously offended the interests of other landowners. The concession to the peerage is far more likely to have originated with a draftsman who realised the havoc which the abolition of entails would have produced among the great landed families, than with any plan of Henry Vlll to win over his nobles. The bill, moreover, left royal objections to uses largely unaffected; the king would have known the details of his subjects' affairs, but his feudal claims would not have been assisted one iota. Holdsworth contended that royal interests were guaranteed, not by the draft bill, but by the parallel agreement with the peers. Yet the bill was drafted to come into force in January 1530, while the agreement was not intended for enactment until the second session of the parliament, whenever that was summoned. Moreover, because the peers who signed the agreement were bound by it in advance of any legislation, the 'bargain' would have produced curious discrepancies. If the draft bill had become law in 15 29, peers would have paid feudal dues but enjoyed the exclusive right to entail, while commoners, although unable to entail land, would have been able to continue evading feudal dues until whatever session of parliament put the agreement on the statute book. As it happened, the bill did not become law, but the agreement was signed, which left commoners unaffected but peers substantially open to royal demands and with no compensating privileges. The hypothesis that the draft bill and the agreement with the peers are in any way connected seems unacceptable. The text of the draft bill remains clean and unamended - it was clearly abandoned — and, even if official, it was at most an abortive attempt to remedy some of the more glaring deficiencies in the land law.1 Its affinity is more with the statute 1 Richard HI, c. 1, which gave the cestuique use power to sell his land, than with 4 Henry VII, c. 17, and its extension of feudal incidents to the lands of the intestate cestuique use. Its only possible significance in the legislative story of the Reformation Parliament is that its programme of ensuring the maximum publicity for land transfers could be the embryo of the later Statute of Enrolments; it has plainly no place in the story of the Statute of Uses. What remains from 1529 is the agreement between Henry VIII and his nobility. This is the original and single proposition of the government, and its ideas dominate royal policy through the first five sessions of the Reformation Parliament. It was, in itself, a compromise, an attempt to resolve the problem of uses by conceding to the landowning class much of the legal flexibility and fiscal exemption which they had acquired by means of the use, in return for the concession to the king of his full rights over a fraction of 1. The only addition to the bill is its title 'concerning the forging of felseevidence. ' I967 THE STATUTE OF USES 68l his theoretical claims. Normal feudal incidents were to remain applicable to land not settled by will or use but, where land had been devised, the king was to have rights over one third only. In other words, the device of land was to be allowed and evasion of feudal dues on two thirds of an estate was to be legalized, in return for the inescapable obligation to pay on the remainder. A similar principle was to govern the suing of livery. If a ward took the initiative within three months of his majority by guaranteeing to pay the Crown a third of a year's profit on the land which had been in royal hands, he was to be free from assessment on the remainder of his estate, while an adult heir offering a half of the annual profit of his whole inheritance was to be similarly exempted. The proposed accommodation is clear; provided that the king was assured against evasion, he would surrender a half or two thirds of his legal entitle- ment. Instead of the jungle law then operating — the king extorting money from his feudal tenants at the slightest opportunity, and the tenants evading royal rights with impudence and ingenuity - the Crown proposed to mitigate the full terror of fiscal feudalism in return for a limited concession of full feudal dues. The compromise nature of this agreement is nowhere more clearly seen than in the two paragraphs which attempt to outlaw legal devices which might be invented to evade the bargain. Subterfuges which benefit the tenant are predictably prohibited, but so too are 'imaginacion devise or invencion' which allow the king to make a greater claim than that agreed. The terms of this compromise were signed by the chancellor, Thomas More, and thirty peers, a majority though not all of the lay lords. This agreement was certainly not yet a bill, and it probably represents the limit of government progress in the 1529 session. Although the wording suggests that others could add their names to the document if they wished, there is no evidence that the Com- mons were asked to do so. Presumably, the government was content with the peers' promise to enact the measure 'in the next full Court [of Parliament] after the prorogacion'. But events turned out differ- ently. In the second session of the Reformation Parliament, from January to March 15 31, no attention was paid to the bill of primer seisin. This was not, it would seem, because of overwork; according to Chapuys, the Imperial ambassador, the session was occupied with trifles.1 Several other explanations are possible: that the divorce and the effort to break the spirit of convocation occupied the full attention of Henry and his advisers; that the king was not yet fully experienced in managing parliament; that the king was anxious not to alienate the Commons; or that the driving influence of Thomas Cromwell had not yet been felt. Most probably, however, the explan- 1. Cal\endar of] S[leie] P[aptrs] [S[ptmub], iv. pt. II, ijp-i})}, 646, 648 (L. and P. v. 120,124). 682 THE GENESIS OF October ation lies in the tentative character of politics early in 15 31. Henry was not yet committed to an all-out attack upon the church, nor to an unlimited encouragement of anti-clericalism in the Commons. Equally indefinite was the extent of opposition to the Crown. Even when, a year later, the king was able to press the Commons on the issue of uses, and, at the same time, inflame hostility to the church, he won onlya narrow victory over the clergy and none on the question of uses. In 1531, Henry had to tread warily to prevent Com- mons and church allying against him. As it was, the Commons were able to extort from the king the grant of a free pardon on the charge of praemunire, the church won a limited victory on the matter of the supreme headship and thereafter behaved in a notably uncowed fashion, Thomas More was still chancellor and the con- servatives had by no means been neutralired.1 But royal silence in the session of January to March 1531, was only temporary. In Michaelmas 15 31, Thomas Cromwell was giving instructions for a bill of primer seisin to be prepared for the next parliamentary session when it met in January 15$z.2 The work was ready in time and the bill was quickly introduced, for on 30 January, a fortnight after the session had opened, Chapuys was reporting an obviously garbled version of the proposal, that the king had demanded the goods of ail lords who died, even when they left an heir of full age.8 Two weeks later, on 14 February, Chapuys writes with clearer information which indicates that what the government was attempting was the enactment of the 1529 agreement between Henry and the peers: 'the King has lately been trying to pass a Bill in Parliament for the third of all feudal property to fall to the crown after the decease of its owner.'4 Chapuys seems to have believed that Henry was demanding the escheat to the Crown of a third of an estate — death duties at 3 3 per cent - but he has mistaken the royal demand for feudal rights over a third. Edward Hall also reports the measure, but with a slightly different version of Henry's demands. According to the chronicle, the government bill provided for the device of a half of an estate, and for royal rights over the remainder, but the king would have accepted the offer by the Commons of rights over only a third, or even a quarter. However, Hall also reports that all the lords had 'set their handes to the booke', which must be a reference to the 1529 articles which

1. M. Kelly, The submission of the deigy', Transactions oftbt Royal Historical Society, jth sex., xv (1965), 97-119. 2. B.M., Cott. Titus B I, fo. 483', see above p. 679, n. 1. 3. Cal. S.P.S., ij)i-ij)), 897: Chapuys to Charles V, 30 Jan. 1532 (L. and P. v. 762). Even the designers of the agreement between the king and the peers seem to have anticipated misconception on this point for a late clause specifically declares that royal rights shall apply 'onely in cases where the Auncestor shall dye, his heire beinge within age'. Holdsworth, iv. 576, § 20. 4. CalS.PS., rjji-ijjj, 899: Chapuys to Charles V, 14 Feb. 1532 (L. and P. v. 805). I967 THE STATUTE OF USES 683 they had signed, and these certainly specify royal rights over one third of an estate. It is, therefore, likely that the ambassador's report is correct, unless Hall is recording a government finesse, the demand of a half, with the intention of conceding a reduction.1 Chapuy's letter of 14 February, also gives the first indication that the royal proposal was not having an easy passage. [The King] has hitherto met with a good deal of opposition, so much so that several members of the said Parliament have made use in public of very strong language indeed against the King, his Privy Council, and Government. The centre of opposition was clearly the Commons, and as the session progressed, criticism of the bill mounted; the Lords might have agreed in 1529, not so the Commons in 1532. The climax was reached on 18 March in a face-to-face encounter between the king and a Commons delegation; Hall gives a long account of this, and part of Henry's speech.2 The Commons had come to present the Supplication against the Ordinaries, no doubt a visit to Henry's taste, but he used the opportunity to issue an ultimatum to them about their opposition to the bill on feudal incidents. I have sente to you a byll concernynge wardes and primer season, in the which thynges I am greatly wronged: wherfore I have offered you reason as I thynke, yea, and so thynketh all the Lordes, for they.have set their handes to the booke: Therfore I assure you, if you wyll not take some reasonable ende now when it is offered, I wyll serche out the extrcmitie of the lawe, and then wyll I not offre you so much agayne. Ten days later, parliament was prorogued for Easter and reassembled on 10 April. No doubt hoping that his own strong language and the interval fot reflection would have produced a more tractable frame of mind, Henry again submitted his bill. Chapuys reported the move to the Emperor on 2 May.3 The ambassador, however, added that Henry had again failed, but here it seems that his information was at fault. Certainly the king did make some progress in the second session of 1532, for Cromwell, when preparing for the next session of parliament called for February 1533, was able to record that the bill of primer seisin had been given two readings.4 Thus Henry's intervention had had some effect, though this progress must have been much less than he had hoped for. It is not easy to see the reason why this bill only passed its second reading in the Commons in five months of keen government 1. Edward Hall, Cbroniclt (1809), p. 785. Another possibility is that Hall was referring to the provision for the payment of a half of a year's income for livery of lands by adult heirs. 2. Hall, Chronicle, pp. 784-5. 3. Cal.S.PS., i))i-ij}), 948: Chapuys to Charles V, 2 May 1532 (L. and P. v. 989). 4. P.R.O., SP 1/74 fo. 146 (L.amJP. vi. I2o(i)). THE 684 GENESIS OF October activity when the Lords had despatched it in less than two. Perhaps the social character of the two houses explains something of the difference. It was much more difficult for a peer widi large estates to evade royal claims; a compromise with the king would have paid off. But a small landowner might well feel that he was better served by existing methods of evasion, and that any change in the law would benefit others at his expense. The government had certainly removed one possible cause of offence before the session began. The 1529 agreement had confirmed the rights of lesser feudal lords over a third of the land of their tenants, a concession which, since these rights were uniformly evaded, amounted to the reintro- duction of feudal incidents for the benefit of the greater landowners. But in Michelmas 1531, specific royal instructions to the drafts- men of the bill removed the offending clause, and Commons opposition to the bill was, at least, not on this ground.1 Whether anything more should be read into this modification is not certain. Had the peers been influenced by the abandoned clause to accept the 1529 agreement (they stood to benefit more than the Commons), counting on their own feudal income to offset the demands of the king ? If so, was Henry going back on his word, and would the peers also have opposed the bill if it had reached the upper house ? Was the king assuming that the Lords, having signed the agreement, would be unable to object to the bill, although mutilated, if it came from the Commons with strong royal backing ? Or is the opposite true, that the clause had been temporarily dropped to win over the Com- mons with the intention that the Lords should reintroduce it ? Some parliamentary tactic appears to be at work here, but the details remain obscure.2 What seems clearer at this stage is the attitude of the Commons to existing law, and to their own position in legislation. However much the royal proposals were a compromise in theory, the Crown surrendering most of its legal claim, their intention was, in fact, to facilitate the collection and to increase the yield of the king's feudal rights. To demands for taxation, Tudor parliaments were characteristically hostile; to this demand for what amounted to the reimposition of feudal dues, they were intransigent. A substantial number of the House clearly felt that the king was blurring — the law was on their side, it was fixed and certain, and without the consent of the Commons it could not be changed. Perhaps this was an issue where the new gospel of the supremacy of statute seemed to work in the subject's favour. Many members of parliament felt that they could afford to defy, or at least to delay, royal policy with impunity. 1. See above, p. 679, n. 1. 2. The king's claim to primer seisin cut out the rlnimi of other overlords, and it has been argued that the value of their feudal rights was by the sixteenth century very small. But this change in the proposed bill indicates that these rights retained some importance. 1967 THE STATUTE OF USES 685 By the midsummer of 1532, government efforts had brought the bill of primer seisin past its second reading, and it might have been expected that when parliament met again in 15 3 3, a final effort would have been made by the Crown to secure a measure it so much desired. Strangely enough, however, although Cromwell's note of the progress made in 1532 shows that the government had the matter in mind as it prepared for the new session, there is no evidence of any attempt to push it further once parliament had assembled in February 15 3 3.1 Admittedly, the bill may have been taken up anew and once more repudiated by the Commons, but such a government defeat would hardly have escaped some comment; in all probability, the Crown withheld the bill. Why this course was taken is a matter for speculation only. The principal business of the session was the important issue of appeals to Rome, but, apart from this, there was no significant legislation to impede discussion of the problem of uses.2 Decisive, perhaps, was once more the fear that opposition to the bill of primer seisin might help the opponents of the king's divorce. The Commons' rejection of the bill in 15 32 had been accom- panied by some plain speaking about Henry's marital imbroglio, and in 15 3 3, Eustace Chapuys does report that critics of government policy were again vocal.3 But whatever the reason, the Crown kept quiet about uses, and parliament was prorogued in April 1533. Five sessions, and nearly three and a half years had now elapsed since the government had launched the campaign to protect its feudal rights. The first session had secured the support of the Lords but, in 1531 and 1533, political discretion had inhibited action, while the efforts of two sessions in 1532 had only yielded a second reading in the Commons. Faced with this poor progress, the Crown changed its policy. At his meeting with the Commons in March 1532, Henry had threatened to 'search out the extremity of the law' if they persisted in obstructing his wishes, and to this alternative he now turned; he would obtain in the courts what he had failed to secure in the Commons. Details of this change of policy are few, but the fact of the change is clear. Hall's Chronicle gives one account4: after this [the opposition in the Commons] the Kyng called the Iudges and best learned men of his Realme, and thei disputed this matter in the Chavwcery, and agreed that lande coulde not be wylled by the ordre of the common law.

1. See above, p. 68}, and n. 3. 2. Apart from the Act of Appeals, the only substantial measure passed in this session was the Statute of Apparel, 24 Henry VIII, c 15. The Lords' Journal for 15 33 is extant and contains no mention of action on the bill of primer seisin. 3. For the sessions of 1552, see Cal.S.PS., if)i-i})}, 948: Chapuys to Charles V, 2 May 1532 (L. and P. v. 989), and Hall, Chronicle, p. 788. For 1533, see CaJJ.PS., i})), 1057: Chapuys to Charles V, 31 Mar. 1533 (L.tmdP. vi. 296). 4. Hall, Cbroniclt, p. 785. 686 THE QENESIS OF October The substantial accuracy of Hall's account is confirmed by Henry's own answer to the complaints of the Lincolnshire rebels in 15361: the ground*/ of those uses were false, and neuer admytted by any law, but usurped uppon the prynce, contrary to all equyte and iustice, as it hathe ben openly both disputed and declared by all the well lerned men of England in Westminster halL The Commons had frustrated royal wishes, but the king outflanked their opposition by securing a favourable decision from the courts. Although the accounts given by the king and by Hall are brief, they do show that royal tactics must have amounted to an attack upon the Chancery. Only there were uses and the device of land protected; if the Crown could compel the chancellor to withdraw this recognition, royal rights would be adequately enforced by the common law. If the outcome of the debate in Westminster Hall was, as these reports indicate, that uses were outlawed and, consequently, the device of land by will made impossible, Chancery must have abandoned its protection of the use and accepted the strict common law doctrine. After more than a century of enforcement by Chancery, uses now reverted to the twilight of legal chicanery. With most of the land of England held by use, this was extremity of the law with a vengeance; the compromise offered in 1529 was defunct: the Crown had been awarded its full pound of flesh.2 The reason for the success of the Crown in its appeal to the courts may be gathered from Edward Hall's hint that the judges were deeply involved. For Henry to get his way by outlawing uses, was for the common law courts to triumph over the court of Chancery. It was not a victory for common lawyers over equity lawyers, but for one group of tribunals over another. Holdsworth assumed that a transfer of uses from the sphere of equity to the sphere of common law would be in the interest of the common lawyers as a whole, and would explain their support for the Statute of Uses of 1536. But this assumption is invalid; only the serjeants-at-law, and their close colleagues, the judges, benefitted - the one because of their theoretical monopoly of civil litigation, and the other by the increased fees which the business transferred from Chancery brought. The rest of the profession were not affected by the particular court in which they appeared. A Serjeant who wrote condemning uses, admitted that common lawyers in general were not in the least unhappy about appearing in Chancery on questions arising from

1. P.R.O., E 56/118, fo. 99T. (L. ami P. xi. 780(2)), cf. Hall, ChronicIt, p. 821. Although Hall prints the king's letter, he had additional sources for his account of the judges' meeting which told him that this was held in Chancery and prohibited the device of land by will. 2. The predominance of uses was generally accepted. Usher, ubi supra, 41. j. Anon., 'Replication of a Serjaunte at the Lawes of England', printed in Hai- gravc, Lam Tracts (1787), p. 329. I967 THE STATUTE OF USES 687 ye, that be students of the common lawe of the realme, maintains this untrue and crafty invention in the chauncery by colour of conscience, contrarie to the studie and learning of the common lawe, and contrary to reason, and also to the lawe of God.

But if the interests of the common lawyers at large were not served by royal attacks on the protection of uses by equity, those of the common law judges most certainly were. If uses were no longer enforced in Chancery, the common-law courts would recover much of the litigation about land which they had lost, indeed, much which they had never enjoyed before. Even before legislation on the uses problem, the common-law judges seem to have been repent- ing their complete surrender in the early years of the century to Chancery, and Henry Vill's new policy of seeking a decision in the courts fitted this new mood perfectly.1 With powerful royal support, the judges might well take advantage of the disarray of Chancery so soon after Wolsey's fall, and of the presence on the woolsack of a quisling, the common lawyer Thomas Audley, to depress the pretentions of a business rival.2 As Holdsworth saw, the support of the legal profession was a key factor in the uses struggle, but it was not the support of the lawyers in the Commons that carried the day but the exploitation by Henry of the partisan interests of the common-law judges. Henry certainly divided in order to conquer, but he divided not the common lawyers from the rest of the Lords and Commons, but common-law judges from the judges of Chancery. The evidence of the king's letter to the Lincolnshire rebels and the report of Edward Hall establish the fact that the Crown turned from promoting a parliamentary measure on uses to seeking a favourable decision in the courts. But further light upon the matter depends upon the discovery or identification of that legal decision. Consultation between the Crown and the judges to decide points of law with political or administrative implications was by no means novel. Such discussion usually took place before all the judges and Serjeants sitting as the court of Exchequer Chamber and, in common

1. Barton, ubi supra, 576. The hardening of judicial attitudes towards the use may have been connected with the council's instructions of 30 June 1526 to the law officers to prosecute evasions of livery and primer seisin. Phillipps MSS., lot 581, sold at Sotheby's, 26 June 1967. 2. The account of the case of The Feoffees of Lord Dacrs of the South, discussed below, establishes that Audley was a prime mover in the campaign against uses, even though, as Chancellor, his court stood to suffer. On the other hand, not all the common law judges wanted to restrict uses. Many, possibly half, had to be brought round by threats and blandishments, perhaps an explanation of the advantages which would accrue to them. I am grateful to Mr. A. W. B. Simpson for drawing my attention to the manuscript report by Spelman on this case, B.M., Hargrave MS. 388, fos. 96-97, which augments the Year Book account so significantly. Part of the record is printed in his article, "The equitable doctrine of consideration, and the law of uses', University of Toronto Laa>JournaJ, xvi (1965), 1-36. 688 THE GENESIS OF October with other dicta of that court, the decision reached was carefully recorded by the profession as definitive. But, strangely, this important decision about uses is missing. There are several possible explanations for this: the printed Year Books of the period are fragmentary; the decision was soon replaced by the 1536 statute; reporters collecting notes later in the century would have passed by a pronouncement so quickly outmoded; the ruling may exist in one of the unexamined manuscript Year Books. But the correct explanation seems to be that the decision about uses was not taken at a special policy discussion at all, but was the judgement in the chancery case between the crown and the feoffees of Thomas Fiennes, Lord Dacre of the South, pronounced in Exchequer Chamber in the Trinity term of 15 3 5 -1 This suit specifically concerned the employment of uses and a will to evade royal rights of wardship, the very point which Henry had been attacking in his abortive legislation. What is more, the royal lawyers claimed that Dacre's settlements were void, not simply on the ground that the will was a deliberate attempt to defraud the king, but because land could not be devised by common law, and the judges came round to that view. This tallies exactly with Hall's account of a question in chancery and a ruling 'that lande coulde not be wylled by the ordre of the common law'. When Henry turned to the law to establish his feudal rights, he did so by prosecut- ing a test case, and the meeting of 'the Judges and best learned men' which gave him what he wanted was the Exchequer Chamber court, giving judgement in The Feoffees of Lord Dacre v. Rex. Not only the issues but the timing of the Dacre action supports this identification. Government interest in the will of Lord Dacre coincides with the cessation of parliamentary activity on primer seisin, and Cromwell's memoranda show that the quest after a legal ruling on uses and the suit against Dacre's feoffees ran side by side in 15 34 and 15 3 5.2 It is possible that the state mounted both cases together, but it is much more likely that the case against the feoffees was used by the Crown to test the law. Finally, there is the evidence of Henry's own participation in the Dacre business. He interviewed the judges, offered them favour in return for support (perhaps the quid pro quo was the mutilation of chancery), and sent them back to agree together. He was able to be so specific in his letter to the Lincolnshire rebels because he had himself taken a hand in the affair. The identification of the lawsuit, to which the Crown turned after its parliamentary defeats, as the case of Lord Dacre's will, allows

1. Year Book (ed. J. Maynard, 1679), Pasch. 27 Henry Vm, plea 22, pp. 679-682. B.M. Harg. 588, fos. 96-^97. 2. Most of these memoranda refer to the Dacre case, but notes of Nov. 1534, and June 1555 (see below, p. 691 and notes 4 and 6), refer to legal discussions of the general issue of uses. 1967 THE STATUTE OF USES 689 the story of the Statute of Uses to be continued in some detail.1 The abortive 1533 session of parliament ended in April; Lord Dacre died on 9 September following. He left an estate valued at over £1,000 per annum, principally in Sussex and East Anglia, settled with considerable ingenuity. Deductions for his widow and two younger sons swallowed up a third of the income, assignments to his executors to perform the terms of his will took up over £200 more, and the residue of £500 a year was assigned to them also until the heir reached the age of twenty-four, out of which they were to raise a marriage portion for Dacre's niece.2 The effect of this settlement was to rob the Crown entirely of its feudal rights, and it seems that it was intended to do so. Dacre asserted that his dis- positions were 'for the fartheryng of my swuantw and such other persons as my mynde and conscience moveth me to do for', and his counsel at the trial made play with the fact that a desire to provide for one's children was not, of itself, evidence of fraud; but the will indicates that Dacre was well aware of the controversy over primer seisins, although he himself had not signed the 15 29 agreement.3 He even seems to have contemplated his feoffees taking advantage of the legislation impending.* But, if deliberate, his plans were not a more flagrant evasion of royal rights than had been common for a century. What gave them importance was their timing. In the existing state of feeling over the king's feudal rights, the Crown chose to regard Dacre's settlement as an open challenge, and it acted accordingly. Although the will was not to be proved until May 1534, the Crown knew of its contents within days of his death.6 So prompt, indeed, was royal reaction that prior information about the settlement must be suspected, most probably through the relationship between Thomas Polsted, Dacre's servant, part author of the scheme, and Cromwell's receiver, Henry Polsted.6

1. Spelman's account (fo. 96"), that 'plus dt U^justictt' held that a use by parole was recognised at common law, conflicts with Henry's, that the use was declared illegal. Either the king conflated the case his lawyers put with the final judgement, or Spelman's guarded remarks indicate a general yielding by the judges to the king. 1. Prerogative Court of Canterbury Wills, 13 Hogan. P.R.O., SP 1/81, fo. 61 (L. and P. vi. 1590). The executors had also to raise substantial cash legacies. The will contains elaborate devices to prevent the heirs from changing Lord Dacre's provisions. Sec below, n. 4. j. So the testament; the will reads 'for the helpe wele and comforte of my childern smiant// and other frends'. For the argument of Dacre's counsel, see especially Serjeant Montague. The will was drawn up to meet the circumstances of Dacre being succeeded by his grandson, almost certainly as a minor. 4. If the heirs attempted to sell any land, the feoffees were to enter and make 'their claymc and demaunde in the kynges court for the same accordyng to the due order of the lawe and as is or shalbe appoynted and assigned by any estatuus therof made or to be made.' 5. The first memorandum to mention 'the boke conteynyng my lorde of Dacrcs wyll oftheSouthe'-BJvl., Cott. Titus B I, fo. 490 (L. and P. vi. 1194), can be dated before 25 Sept. 153}, since it refers to the order for the arrest of the cellarer of Christchurch, Canterbury, who was in custody by that date (L. and P. vi. 1149). 6. L. and P. viii. g 962 (22).

VOL. LXXXII-NO. CCCXXV XX 690 THE GENESIS OF October Although royal interest in Lord Dacre's settlement was immediate, the government did not at once abandon its legislative' efforts in favour of litigation. There was a possibility that parliament would sit again at the beginning of November and, in its preparations for the meeting, the Crown clearly explored both avenues of approach to the problem of uses; the royal lawyers were set to work both on a new bill about royal wards and on a scrutiny of Lord Dacre's will.1 The baron's executors, however, led by Thomas, Lord de la Warr, were well aware of this unhealthy government interest, and before the end of October they were offering to come to terms with the king.2 The issues in the Dacre settlement were not novel, and timely concessions might encourage the Crown to forget its displeasure. Their offer is noted five times in Cromwell's memoranda, but the golden opportunity to challenge Dacre's will, and with it the whole doctrine of uses, was not to be missed.8 The king rejected the proposals of the executors, parliament was put off until the New Year, and the government began to collect evidence that the Dacre settlement was fraudulent; the decision to proceed by test case rather than legislation had been made.* When parliament assembled in January there was no more talk of a new bill about royal wards, and silence again surrounded the bill in the following November session.6 Instead of legislative activity, the royal attack upon uses was pressed home with vigour in the law courts. The first necessity was that the juries which would be called by the escheators in the various shires where Dacre had property should return that his will was fraudulent.6 Kent was selected as the particular point of government attack; not that Dacte had had most property there, but presumably because the attorney-general, Christopher Hales, came from the county. Certainly Hales was in charge of proceedings

1. B.M., Cott. Titus B I, fos. 453,478(1,. and P. vi. 13 81). "Thingcs .. .to be put.. .in order ... ayenst the next... rxzrliament.' This memorandum may indicate that legislative action was contemplated on the Dacre case. The document can be dated between 1 Oct. 1533, when the truce with Scotland was concluded (L. and P. vi. 1196), and 24 Oct. when the anchorite of Canterbury was examined by the archdeacon's official (ibid. vi. 1336). 2. P.R.O., SP 1/83, fo. 198 (L.andP. vii. 583), dated before 26 Oct. by the reference to Sir James Carre's bitt(ibid. vi. 1383 (24)). 3. P.R.O., SP 1/82, fo. 238 (L.andP. vii. 263), dated before 28 Oct. by the reference to William Lylgrave's bill (ibid. vi. 1383 (29)). P.R.O., E 36/143, fo. 29 and B.M., Cott. Titus B I, fo. 456 (L. and P. vi. 1370, vii. 143 (2)), both before 11 Nov. when the pass- ports to the ambassadors were issued (ibid. vi. 1481 (10), (n), (12)), and the related P.R.O., E 36/143 fo. 40 (L.andP. vi. 1371). P.R.O., SP 1/83, fo. 198, see above n. 2. 4. B.M., Cott. Titus B I, fo. 465 (L. and P. vi. 1382), memorandum to find 'offycys of the Cohisyon of my lorde Acres'. This can be dated before 17 Nov. when Henry Ellington arrived in Antwerp (ibid. vi. 1448), but after the death of Lord Scrope. Scrope left no will, and his inquistion post mortem does not survive, but he was still alive on 14 Oct. (ibid. vi. 1291). 5. A list of proposed measures for the first session of 1534 makes no mention of primer seisin. B.M., Cott. Titus B I, fo. 161 (L.andP. vi. 1381 (3)). 6. See above, n. 4. I967 THE STATUTE OF USES 69I and before 1533 was out he was busy with his task.1 The jury assembled at Canterbury on 9 January 1534, the escheator placed before it 'certain articles and matters' and the jurors duly returned the desired verdict: Lord Dacre, in collusion with two of his servants and executors - Thomas Polsted and William Threle - had made his will with the intent to defraud the king of his rights, should Dacre die leaving an heir under age.2 This verdict gave the Crown a valuable tactical advantage. On the strength of the jury's finding, the Crown could enter upon the property and it was up to Dacre's feoffees to traverse the office if they could. They duly appeared in Chancery, and battle was joined.3 By November 1534, Thomas Cromwell is consulting the judges about 'feoffamentw uses and prymer seasyns', and the hearing itself began in the Easter term of 15 3 5 .* The Year Book only records the pleading of counsel, but notes kept by John Spelman, J.K.B., complete the story with the Exchequer Chamber debate in the Trinity term. Despite pressure from Cromwell and Lord Chancellor Audley to accept royal arguments, the judges were evenly divided. Henry then summoned them to his presence, promised bon thanke' to the cooperative and sent them out to think again. Under the eyes, once more, of Cromwell and Audley, the dissenters 'conformed'.6 In June 1535, Cromwell took his last report to Henry of 'the procedynges in his cause of uses and wilkv'.6 The terms of the Dacre will evading wardship had been set aside, and with them the legality of the use. Long before the end of the royal lawsuit, certain members of the Commons at least were becoming disturbed at the turn of events, and the autumn session of 1534 seems to have considered some approach to Henry Vili on the question of wills and uses. One factor in reconciling members to the inevitability of reform was the growing realization of the grave scandals which could arise from the unrestricted employment of the use. Previous parliaments had outlawed certain fraudulent uses, but the time for further action had obviously come. This feeling was strong, indeed bitter, for if the evidence can be accepted, the 1534 sessions went beyond general criticism of uses to an attack upon the chicanery of the lawyers at

1. L. and P. vi. 1499, 1574. 2. Inquisition post mortem, Thomas Lord Dacre, Kent. P.R.O., E 150/488, no. 3. 5. Year Book, Pasch. 27 Henry VIII, plea 22, p. 7. The opening statement by Dacre's counsel confirms the narrative of events. 4. B.M., Cott. Titus B 1, fo. 422 (L.tmdP. vii. 1436 (2)), dated by the reference to the bill of oaths in the upper house, i.e. 26 Henry ViU, c. 2. 5. B.M., Harg. 388, fos. 96T, 97. Holdsworth, iv. 447-8 and Usher, ubi supra, 46, refer to a Year Book decision in Dacrt's Cast, and especially to the ruling of Montague, C.J. In 1535, Edward Montague was a serjeant-at-law, and his remarks are part of the argument for Dacre; Montague did not become C.J. until 1539. 6. B.M., Cott. Titus B I, fo. 475 (L. and P. viii. 892), dated by a reference to Bishop Fisher's forthcoming execution (22 June 1535). 692 THE GENESIS OF October large.1 The second factor at work was fear of the king. At all events, a list of parliamentary proposals copied for Thomas Cromwell, belonging to the autumn session of 15 34, includes among the measures to be prepared 'betwixt this and next session', 'that it may please the kyages highnes that some reasonable wayes may be devised for his wardes and prymer seasyne'.2 Such a bill, reflecting both a desire to placate the king, and also to reform the worst excesses of the use does, in fact, exist among the papers of 1536.3 It would have prevented evasion by means of a use of curtesy and debt and have rescued some of the feudal incidents by treating the cestmque use 'to all ententes and purposez' as tenant 'to the chife lordes of whom the londes . . . shalbe holden', and by recapitulating that uses were forfeitable for treason or felony. But the power to devise land by will would have remained, and it is not clear how far royal rights would have been defeated by the more complicated type of family settlement. But any change of heart amongst the Commons came too late; once the judges had declared that by the common law land was not devisable, and that the Crown was entitled to its full rights, the time for any compromise was past. The king was able to rail the last session of the Reformation Parliament for February 1536, with the assurance of success at long last in the battle over uses. He still wanted parliamentary confirmation to put his feudal rights beyond cavil, but the judicial decision that uses were of no legal validity gave him the whip hand. Until the use was legalized, hundreds of families remained without protection for their estates; public interest would compel the Commons to come to heel. And so it transpired. When the Crown initiated legislation to make the use once more legitimate, by transferring it from an equitable into a legal estate, it met with little delay.4 The king needed to make few concessions. The cestuiqut use did not obtain the partial exemption from feudal incidents offered in 1529, nor was the right to devise land by will restored; the beneficiary of a use was once more given the protection of a court, and this was enough to secure the sub- servience of parliament. How slight was the influence of either 1. A number of papers and bills attacking the lawyers exist for the years 15 34-6, but none seems to have any official origin. P.R.O., SP 1/85, fo. ico, 'Bills to be drawn against the next Parliament' (L.. and P. vii. 1043). SP 2 fo. Q, fos. 138-40, petition to the king and the Lords against the lawyers (L. and P. vii. 1611(3)). B.M., Cott. Titus B I, fo». 160, IJ9V proposals for parliamentary measures (L. and P. ix. 725 (i), (ii)), see below, n. 2. P.R.O., SP 1/101, fos. 281-4, inconveniences arising from uses (JL. and P. x. 246 (3)), printed by Holdsworth, iv. App. HI (3), pp. 577-80. 2. B.M., Cott. Titus B I, fo. 159* (L. and P. ix. 725 (ii)). The reference to 'this session' clearly dates this document to the autumn of 1534, and not as calendared. The list was certainly made for Thomas Cromwell, but the impossible nature of the legislation proposed indicates that it originated with private persons in the Commons. 3. P.R.O., SP 1/101, fos. 286-91 (L. and P. x. 246 (4)), printed by Holdsworth, iv, App. HI (4), pp. 5 80-1; cf. ibid. iv. 45 6-7. 4. 27 Henry Vili, c. 10. The session lasted 4 Feb. to 14 Apr. 1536. I967 THE STATUTE OF USES 693 House upon the measure, contrary to the conjecture of A. F. Pollard, is clear from the two successive drafts of the bill which survive.1 If these were government redactions prior to introducing the measure (and there is no evidence that they were anything more) then parliament's impotence is clear, since the second of the drafts is virtually identical with the statute as passed. Even if (though this is less likely) the drafts were produced during passage of the bill, and if all the changes were made at parliament's request, the conclusion is much the same. Between the first draft and the final statute, differences are no more than improvements in wording or else elabora- tions and extensions to cover specific points of detail: an addition . to clause II preserved the rights of feoffees, clause HI was inserted to execute the interest of persons in receipt of an income jointly under a use, and provisions for the interests of married women were elaborated from a single clause to four.2 As for the second draft, only a number of deleted amendments to clause X, concerning the king's feudal revenue, could suggest any dispute. It is difficult to reconstruct what changes were proposed, but the emendations could be construed as an attempt to limit the rate of feudal dues.3 But if this attempt was made, it was abortive; the original text of the draft substantially survived, and royal rights suffered no diminution. Previous legislative efforts had been spumed by the Commons, time and again, but by bringing in the common-law judges to undermine the opposition, the king had secured a far more severe measure that he had ever proposed before, almost for the asking. The statute duly recognized Henry's debts to those judicial allies. Uses passed from the aegis of the chancellor and the staff of the Chancery into the control of the judges of the common-law courts. There is, perhaps, a touch of irony in the king's assertion to the rebels of 15 36 that his action against uses had parliamentary author- ity behind it.4 We marvailc what madnes is in yo«r bray/w, or uppon what grounde ye wold take auctoryte uppon you to cause us to breke those lawes and Statute, which by all the Nobles, knightw and gentilmen of this realme whom the same chiefely toucheth hath ben graunted and assented to: seenginno mannwof thing it toucheth you the basse comens of our realme. 1. Pollard, Henry VIII, p. 269. Pollard's suggestion (ibid.) that Henry's skill and success had so impressed parliament that it was prepared in 1536 to yield on the matter of uses is not tenable. 2. P.R.O., SP 1/101, fos. 252-60. (L. and P. x. 246 (1)). This draft ends after the provisions about dower, and die whole of clauses VIII to XV of the final statute are missing. But this is more likely to have been the result of damage to the document than the omission from the original draft of some mention of these points. Yet if all these clauses were added by parliament, they amount to little more than administrative improvements. (Clauses cited as in Statutes of tbe Realm.) 3. P.R.O., SP 1/101, fos. 261-81 (L. and P. x. 246 (1)). One alteration would, apparently have revived the 1529 limitation of a third of a year's income. 4. P.R.O., E 36/118, fo. 99 and v. 694 THE GENESIS OF October It remains to consider who was primarily responsible for the manoeuvres which won for the Crown the victory it sought, and the effect which these tactics had upon the working out of the statute. Popular resentment, it seems, saddled the king's minister, Thomas Cromwell, with responsibility for the act, but it is not certain that this was justified.1 Cromwell was obviously deeply involved in the actual execution of government policy on uses, but it does not follow that he originated the policy or the tactics used. The decision to circumvent legislative delay by recourse to a legal decision seems uncharacteristic of a statesman whose preference for preceding by statute has been very strongly argued.2 In favour of a view which, in this case, would see Cromwell as an agent, is the hint that he supported the efforts of Dacre's executors to reach a compromise with the king, evidence that the decision to prosecute was Henry's own and Spelman's eye-witness account of royal intervention with the judges.3 Later happenings suggest a royal vindictiveness towards the Fiennes family that may, in part, spring from a feeling that Lord Dacre had tried to cheat his sovereign. Dacre's son-in-law, executor and feoffee, Henry Norris, was trapped in the fall of Anne Boleyn, and his grandson and heir was gratuitously denied mercy when condemned, on technical grounds, for murder, and the king showed a personal interest in mulcting the Dacres on that occasion of as much as he possibly could.4 Also in favour of exonerating Cromwell are the impression given in one of his memoranda that he was considering parliamentary action on the Dacre matter, and his persistence with a new wardship bill in October 1533.6 Another

1. R. B. Merriman, Ufe end Letters of Thomas Cromwell (1902), i. 157-8, presumably referring to L. and P. xi. 705. Action against uses antedated Cromwell's entry into royal service (see above p. 675, n. 1, and p. 687, n. 1), and Henry clearly supervised the campaign in 1551 and 1532, see above p. 679, n. 1, and p. 683. 2. However, in 1535 Cromwell obtained from the judges a confirmation of the legality of proclamations which was enacted in 15 59 by a reluctant parliament (G. R. Elton, Tbe Tudor Constitution (1960), pp. 26-30, and ante, lxxv. 208 ff.). The tactical parallel with the Statute of Uses may be significant. 3. L.. and P. vii. 12: Thomas, Lord de la Warr to Thomas Cromwell, 2 Jan. 1534. One of Cromwell's memoranda reads 'touching my lordc Dacrcs will of the South and whether the King will have any ende taken therein or not'. See above p. 690, n. 2. 4. P.R.O., SP 1/166 fos. 114 143, I5ov, 151 (L. and P. xvi. 978, 1019, 1028). Counsel had advised that the will of Lord Dacre (ob. 1533) had established an entail, not forfeitable for felony, that, that since little of the Dacre land was held in chief, wardship of the whole estate by primer seisin would give the Crown more than forfeiture which would benefit most the mean lords. Henry rejected the idea that Lord Dacrc's will could be "so perfect* and sent for second counsel's opinion, whether he could not have wardship of all entailed land, escheat of all land in fee simple and barring of other escheats. The king's severity to the young peer was notorious. JL. and P. xvi. 932: Paget to Wriothes- ley, 27 June 1541; ibid. xvi. 954: Chapuys to the queen of Hungary, 2 July 1541. By contrast, Cromwell was Dacre's patron, feed by him L.. and P. xiv (ii), pp. 322, 324. He assisted the young peer in negotiations with his grandfather's executors. P.R.O., SP 1/128, fos. 155, 205, 207 (L. and P. xiii (i), 143, 197, 198). However, Dacre had previ- ously been in similar trouble, which may explain some of Henry's ruthlessness. L. and P. xii(ii). 1169. j. See above, p. 690, n. 1. I967 THE STATUTE OF USES 695 point in the minister's defence is the apparent lack of planning behind the 1533 change of policy; the decision to litigate looks much like a piece of opportunism following the fortuitous demise of Lord Dacre. Certainty is impossible, but it seems likely that Henry was directing policy on the uses issue in person. A good deal turns on the estimate of the wisdom of government policy. As an exercise in parliamentary tactics, the passage of the Statute of Uses was brilliantly successful; politically, however, it was most unwise. Henry had himself described the 15 29 compromise as reasonable, but the judges' decision enabled the Crown to force through in 1536 a bill which was decidedly unreasonable. The statute deprived men of powers which had been common right for more than a century and left them unable to meet some of the most serious obligations which morality and natural affection placed upon them. The 1540 Statute of Wills extolled Henry's grace, goodness and liberality in recognising that his subjects, denied the right to devise land: cannot . . . bear themselves in such wise as that they may conveniently keep and maintain their hospitalities and families, nor the good'education and bringing up of their lawful generations . . . but that in manner of necessity, as by daily experience is manifested and known, they shall not be able of their . .. moveable substance, to discharge their debts, and after their degrees set forth and advance their children and posterities. but royal recognition had been recent, and forced by the sharp lesson of the Pilgrimage of Grace.1 In 1536, the Crown committed the crass error of pushing its success too far, and rebellion was the penalty. It would have been more statesmanlike to have used the judges' decision to compel parliament to accept the 1532 primer seisin bill; without the exacerbation provided by the uses measure, agitation in 1536 would have been a good deal less serious. The gentry would probably have held aloof. But Henry had threatened the Commons with the full rigour of the law, and the temptation to- pull off a major coup was irresistible. Outflanking the Commons by recourse to the law was a clever move, but the insistence in the statute upon the full feudal right of the Crown was a piece of short- sighted political vindictdveness. Such an attitude seems more characteristic of Henry than of Cromwell. In the event, once the Pilgrimage of Grace had been suppressed, the government began to retreat. In 1540, a Statute of Wills was passed which repealed much of the Statute of Uses.2 The legal changes which the latter had made were, it is true, not affected; the use remained a legal estate and the common-law judges kept the

1. Preamble to 32 Henry VIII, c. 1 (spelling modernised). 2. Ibid. 696 THE GENESIS OF October rewards of their alliance with king.1 Thus far the Statute of Uses survived, with immense significance for the growth of the common law. But the political and social consequences of the earlier act were entirely reversed in 1540. Land was once again made devisable by will, and the royal claim to complete feudal rights on all occasions was abandoned; instead, the king's rights were restricted to a third of that part of any estate held by knight service. In fact, the Statute of Wills virtually enacted the original compromise proposals of 1529. The opportunism so evident in 15 36 was abandoned in favour of the moderate policy which had been followed from 1529 to 1533. With the damage done by the Statute of Uses thus repaired, royal feudal rights after 1540 were much as they had been proposed in the agreement between the king and his nobility, eleven years earlier.2 In the fourth decade of the sixteenth century, enormous changes took place in England, many as a consequence of parliamentary legislation. Paucity of evidence normally inhibits certainty about the political struggle which lies behind any bill, and the story of the Statute of Uses is no exception. But the argument of this paper is that it is at least possible to go beyond Maitland's generalization and the reconstruction suggested by Sir William Holdsworth. Royal efforts to rescue the king's feudal income from gradual extinction began, in 1529, as a compromise offer to the landowning classes, which was accepted by the Lords but rejected by the Commons. After this legislative effort, which occupied several years, the government, probably at the personal direction of Henry VDI himself, changed its policy and appealed to the law. Here it was able to secure a favourable decision, apparently in a test case brought against the feoffees of Lord Dacre, by playing off the common-law judges against the Chancery. This decision enabled the Crown to force upon parliament the very severe terms of the Statute of Uses, but in doing so the government overplayed its hand, precipitating, in part, the armed opposition of the Pilgrimage of Grace. In consequence, 1540 saw the retreat of the Crown from the untenable position established by the statute of 1536, to the compromise originally proposed at the opening of the Reformation Parliament. On this construction, the Statute of Uses was politically ephemeral. It was important in law because it ended the separation of the legal from the equitable estate; it was important for the legal system because it annexed uses to the common-law courts. But politically and socially the case is different. The Statute of Uses is not the measure for which the Crown toiled during its campaign to secure legislation against the evasion

1. It is significant that the provisions of the Statute of Uses which survived were those which also met the objections of the Commons to the corruption of feofftnent to uses. 2. Holdsworth (iv. 464-5) noted this point but failed to remark on the effect of the Statute of Wills repealing much of the Statute of Uses. 1967 THE STATUTE OF USES 697 of feudal incidents—it was impossibly severe in effect, and was politically inept; as the definitive pronouncement on feudal incidents it endured for a bare four years. 27 Henry VXH, c. 10 was an extremist act, carried by force majeure in a moment of opportunism but rapidly abandoned in the face of determined opposition. Aske and the Pilgrims did not protest entirely without effect.

University of Liverpool E. W. IVES