Oxford Scholarship Online

Home , Copyhold, Feoffee, Feoffment, Livery of seisin, Seisin, Statute of Uses

Uses, Wills, and Fiscal Feudalism

University Press Scholarship Online Oxford Scholarship Online

The Oxford History of the Laws of England: Volume VI 1483–1558 John Baker

Print publication date: 2003 Print ISBN-13: 9780198258179 Published to Oxford Scholarship Online: March 2012 DOI: 10.1093/acprof:oso/9780198258179.001.0001

Uses, Wills, and Fiscal Feudalism

Sir John Baker

DOI:10.1093/acprof:oso/9780198258179.003.0035

Abstract and Keywords

This chapter examines property law related to uses, wills, and fiscal feudalism in England during the Tudor period. It discusses the conflict between landlords and tenants concerning land use, feoffment, and land revenue. The prevalence of uses therefore provoked a conflict of interests which could not be reduced to a simple question of revenue evasion. This was a major problem because during this period, the greater part of the land of England was in feoffments upon trust.

Keywords: fiscal feudalism, land use, feoffments, property law, tenants, wills, landlords

ANOTHER prolonged discussion, culminating in a more fundamental and far-reaching reform, concerned another class of tenant altogether, the tenant by knight-service. Here the debate concerned a different aspect of feudal tenure, the valuable ‘incidents’ which belonged to the lord on the descent of such a tenancy to an heir. The lord was entitled to

Page 1 of 40

wardship and marriage if the heir was under the age of 21,1 and relief when the heir assumed his inheritance. The king as lord was entitled in addition to primer seisin and livery, without respect to the age of the heir, and priority over other lords in claiming wardship (prerogative wardship).2 These profits were casual; but for a lord with numerous tenants in chivalry, such as the king, they fell in frequently enough to form a substantial part of their revenue. Their incidence, however, was becoming drastically reduced as a result of the growing practice of granting lands to trustees, or feoffees to uses. Since lands vested in multiple feoffees never descended to heirs,3 the incidents of descent could never attach. The consequent loss of revenue, especially to the king, who was always lord and never tenant, occasioned a prolonged counter-attack on the use. Seen from above, the feoffment to uses might well be regarded as a scheme for avoiding feudal revenue. But the story was complicated by the fact that uses were not designed solely, or even primarily, for the avoidance of tenurial incidents. One of their main objects was to give landowners the power to devise or charge their lands by will,4 without relinquishing any of their powers of ownership while living. Uses also gave them greater flexibility in making family settlements unencumbered by dower,5 (p.654) often to the bride's advantage, and with features (such as discretionary powers) unknown to the common law.6 And they were convenient in other contexts, for instance in creating new forms of mortgage.7 These unobjectionable aims would have been frustrated by the simple prohibition of uses, which would have restored strict primogeniture and dower. The prevalence of uses therefore provoked a conflict of interests which could not be reduced to a simple question of revenue evasion. And it was no small problem. According to Serjeant Frowyk, by 1489 ‘the greater part of the land of England was in feoffments upon trust’.8

Uses and the Common Law Before the beginning of our period uses had not been part of the law of the land. The feoffment to uses,9 or ‘feoffment of trust’,10 was a familiar situation, if not yet a legal institution.11 It was certainly a legal device, in the sense that it was frequently recommended by conveyancing counsel, in order to achieve clear legal consequences, such as the power to devise. Lawyers were therefore well acquainted with trusts and commonly served as feoffees. Nevertheless uses operated outside the law, inasmuch as the common law treated the feoffees as having an absolute title and the beneficiary— assuming he was not himself one of the feoffees12—as having no legal status.13 The trust which was reposed in the feoffees bound them by ties of (p.655) conscience and of professional fidelity but was not recognized as a legally enforceable obligation. Littleton, presumably for this reason, had barely mentioned uses at all.14 And conservative orthodoxy deemed them extra-legal even at the time of the statute of 1536. ‘The use is nothing in law’, said Fitzherbert J., ‘but is a trust, which trust might be broken … for the common law never favours the use, for a use is not a right, nor is any action given in law to recover it if someone is deforced of it …’.15 Yet the requirements of good conscience had long since brought them to the notice of the Court of Chancery, where they were well known and were coming to be governed by consistent principles.16 Uses had also been recognized by the judges for the purpose of qualifying the beneficiary to serve on juries.17 During our period, the use was transformed into a fully-fledged legal institution,

Page 2 of 40

The initial legal transformation was brought about by the very first legislative measure of Richard III.19 According to the preamble, the statute was passed to end the ‘great uncertainty’ which was increasing among purchasers, devisees, and lessees of land with respect to their title. The problem, evidently, was that title depended on seisin, and yet a great many landowners who were visibly in possession and in receipt of the rents and profits—and, we may suppose, in possession of the title-deeds20—were beneficiaries under uses and therefore did not in law have seisin. To this end, it enacted that every grant of land or other hereditament,21 by a person of full capacity, should be ‘good and effectual’ against both the grantor's heirs and those holding to his use.22 Although the object was the protection of the (p.656) person acquiring title from the beneficiary, and not the advantage of the latter,23 the effect was to give the latter a power to dispose of the freehold estate which was held to his use.24 The beneficiary could even change his own feoffees simply by entering and making a new feoffment to his own use.25 The statute was a remarkable piece of legal conjuring, since it enabled the legal estate to be transferred by someone who did not have it. Such an innovation inevitably begat new difficulties.

Although the statute gave the cestuy que use26 the power to deliver seisin of the freehold, he was still not himself seised, and therefore it was held that he could not distrain except in the name of his feoffees.27 Nor did he necessarily have possession to support an action of trespass or forcible entry.28 Such a novel division of ownership gave rise to particular problems concerning leases.29 The act specifically validated a lease by cestuy que use, but it was not clear whether he could reserve a rent to himself, since the reversion remained in the feoffees.30 The prevailing view was that a rent could be reserved to the beneficiary, but only by deed.31 The proper remedy for the beneficiary was an action of debt,32 since he could not distrain, though it may also have been possible to reserve a right of re-entry.33 On the other hand, it was for the feoffees to bring an action of waste against a lessee, since waste (p.657) was an injury to their reversion.34 If an action was brought against a tenant having a lease from cestuy que use, it was not clear that he could pray aid of the feoffees as reversioners.35 What is more, since the use was in suspense during the lease, the beneficiary could not enter and make a grant of the reversion until the lease ended.36 Another odd consequence of the division of ownership was that, although cestuy que use of an advowson could grant the next presentation to someone else,37 it was not possible for him to make a presentation himself.38

One of the effects of the 1484 act was that it gave the beneficiary what was tantamount to a legal power to devise the land. Strictly speaking, it was not the freehold but the use which was devised, as before the act; but since the devisee now acquired the power to alienate the freehold, by the equity of the statute,39 this was a distinction which only a lawyer would have understood.40 Furthermore, the beneficiary could by will empower his representatives to sell timber or grant leases.41

The orthodox view that the beneficiary had no more to do with the land than a mere

Page 3 of 40

stranger obviously did not sit very well with these legislative changes. No doubt the statute was contrary to the common law;42 but it was becoming somewhat pedantic to disentangle the common law from the statutory position. Indeed, when the ‘greatest stranger’ doctrine was propounded by Serjeant Frowyk in 1502, he was driven to concede that the beneficiary now had the power to fell timber as well as make leases.43 A cestuy que use who could alienate, lease, or (p.658) devise the land, fell timber, and exercise other powers of ownership over the freehold, could hardly be anything but the owner. And even before 1500 lawyers were referring to him as the ‘owner’,44 an English word not normally used for the tenant in fee. Moreover, the statute necessarily familiarized common-law pleaders and judges with titles traced through uses,45 thereby compelling the courts of law to take notice of the manner of devolution of a use. For instance, pleadings in the time of Henry VII make the right in use (‘jus usus’ or ‘jus in usu’) of an intestate cestuy que use descend automatically to the heir at law,46 or (in the case of land subject to local custom) to the customary heir.47 The use was therefore no longer merely an interest in conscience, nor even a mere power, but a form of property or ownership governed by legal rules noticed by the courts of common law.48

In deciding what those rules were, the courts might have interpreted the 1484 statute as requiring them to receive the doctrines that had been developed by the fifteenth- century Chancery; but there is no evidence that they overtly did so, or indeed that the Chancery had developed many clear doctrines prior to 1484.49 Certainly some of the relevant principles had already been recognized in Chancery, such as those which governed the descent of uses on intestacy; but these (p.659) were no doubt perceived as rules of law noticed by the Chancery rather than the converse. On the other hand, the requisites for a use binding at law were necessarily qualified by the terms of the statute. Thus, although in conscience feoffees were bound by a charitable use, for instance a use in favour of a parish,50 such a use was not valid at law because neither the parishioners nor the churchwardens were a corporation capable of owning real property or of making grants and leases under the statute of 1484.51 There was therefore a possibility of conflict between equity and law, such as that which beset executory interests in a later period.

Be that as it may, when the time came for the common-law courts to state the principles governing uses, they proceeded on the basis that uses were a form of property recognized by the common law. The precise relationship between uses and the law was soon to be of critical importance in relation to royal revenue;52 but the first reported debate (in 1522) is of interest for being apparently innocent of revenue implications.53 The facts of the 1522 case, as confessed by demurrer, were that feoffees to uses had granted a rent to the defendant,54 who had notice of the use; they had then enfeoffed a third party of the land, and cestuy que use had released all his right to this third party. The question was whether the rent had thereby been extinguished. For the release to be effective, under the 1484 act, the rent must have been held to the use of the releasor, and the problem was that the rent had had no existence in the hands of the feoffees. It was argued for the plaintiff that the defendant, having notice, took the rent subject to the use, since the rent followed the nature of the land. Serjeant Shelley, for the defendant,

Page 4 of 40

Uses are at common law and not by reason of the statute of Richard III.55 A use is nothing other than a trust and confidence which the feoffor puts in the person of his feoffee,56 according to his estate. And that was at common law … [and] the way in which a use shall be changed is governed by the common law, and it shall be taken and determined in accordance with reason. Every use follows the feoffees' estate.

(p.660) Broke J. agreed: As has been said, uses are at common law, and by common reason, and shall be taken and qualified accordingly. Sir, even as the feoffor puts his confidence and trust, so shall be his use. And the use is in the feoffor, in conscience, even though the feoffee has the land by the common law … Every intermeddling with the land must be at the feoffor's desire, for if the feoffee does otherwise he is chargeable in conscience … [And yet] it is not conscience which makes uses but common reason, which is common law; and common law is indifferent to all laws both spiritual and temporal.

Pollard J. agreed, but judgment was never entered because Brudenell CJ had doubts. It is not wholly clear from the report why the judges felt it necessary to assert that uses were at common law, or why Broke J. chose to insulate them from the canon law; but the majority view is clear enough: uses were not simply a matter of conscience, seen as distinct from the law, but were now fully noticed by the law.

The following year the Common Pleas had to consider the possibility of a common-law remedy for cestuy que use. An action had been brought against feoffees to use, and one of them refused to plead as his feoffor directed. We learn from a subsequent Chancery suit that the feoffor had suffered a recovery, and the action seems to have been an attempt to falsify it. The court rebuked the feoffees' attorney, who was placed in an uncomfortable dilemma, but admitted that they could do no more than exert moral pressure because they could not take judicial notice of a use which had not been pleaded.57 They did suggest, however, that an action on the case would lie against the feoffees.58 That was legally thinkable,59 but—apart from isolated experiments in a later period60—it was not to be.61 As Fitzherbert J. said in the case of 1522, it was logically consistent for the law to determine the rules for the transfer and devolution of uses while denying a remedy against the feoffees. The copyholder, it may be recalled, was currently in an analogous plight.

(p.661) Legislative Remedies Although the Statute of Marlborough 1267 had addressed the loss of incidents resulting from devices which prevented a descent of the fee, it was too narrowly drawn to catch feoffments to uses.62 One possible exception was the use which indirectly carried land to the heir, either by requiring the feoffees to convey to the heir at full age or by requiring them to perform the feoffor's will, where the will in the event required them to re-enfeoff

Page 5 of 40

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 19 January 2015 Uses, Wills, and Fiscal Feudalism the heir. Such uses might be treated as collusive feoffments within the equity of the statute.63 If, however, a feoffment was made to the use of the feoffor's last will, and then he simply failed to make a will, so that the use devolved on the heir by operation of law, this was not considered to fall within the statute.64 Closing this loophole seems to have been the sole purpose of the statute of 1490,65 which was not so much a radical innovation preparing the way for the great statute of 1536 as a supplement to Marlborough, which is recited in the preamble. The measure may have been prompted by negotiations over the estates of the earl of Northumberland, who died in 1489 leaving most of his land in use.66 But it was not new thinking. It was closely modelled on a short- lived statute of 1483, possibly penned by Empson, which had applied only to the duchy of Lancaster.67 The 1490 version provided that if feoffees were seised of land held by knight-service ‘to the use of any other person or persons and of his heirs only’,68 and cestuy que use died leaving an infant heir, ‘no will by him declared or made in his life touching the premises’, then the lord should have a writ of right of ward for the body and land of the heir just as if the cestuy que use had died seised. It also provided that if the heir was of full age the lord should have relief.

The statute of 1490 was limited in several respects. It only touched wardship and relief due from tenants in chivalry and did not affect relief and heriot in respect of socage tenure, though these were the subject of a further supplemental (p.662) provision in 1504.69 Nor did it affect the king's right of primer seisin, since that was not mentioned.70 Even with respect to wardship, it was debatable whether it operated to give the king prerogative wardship, since he had that as king and not as lord.71 It did not apply to settlements, where the heir in use had a fee tail rather than a fee simple; and an heir in use in remainder was not subjected to wardship during the particular estate.72 More importantly, it applied only on intestacy. There was as yet no thought of impeding the power to devise, the main object of most uses, and since the majority of beneficiaries probably left wills the statute may not have been intended to make a major impact on seignorial revenue. Yet the statute, like that of 1484, had a more subtle intellectual impact. It familiarized lawyers with the idea that cestuy que use could be treated for certain purposes as if he were seised,73 a fiction that was to be carried to the furthest extent by the statute of 1536. And then there was a critical chink, to be ripped open in the case which led to the latter statute. Although the ‘no will by him declared’ clause suggested that the mere existence of a will ‘touching the premises’ would be enough to exclude the operation of the statute, legal opinion was inclined to give this an extensive equitable construction. Obviously the statute could not be evaded merely by making a will leaving the land to the heir,74 and it was arguable that a will of land did not in any case affect the lord's right to wardship of the body.75 More significantly, however, it was held —held, at any rate, by readers favouring the prerogative—that where a will did not dispose of the entire inheritance in fee simple, the statute could come into operation once the will was performed.76 It is not certain whether this principle bore fruit in practice, in view of the difficulty of (p.663) superintending wills,77 and in any case it did not obviously bear upon the common arrangement of a devise to the heir in tail.78 But the creeping exceptions prepared the way for the major debate of 1535.79

Page 6 of 40

The appointment of a master of the wards in 1503, and the development of his new revenue department,80 confirm the implication arising from the law reports and readings that the enforcement of revenue from tenants by knight-service was seen as a matter of major importance by Henry VII and his advisers. Nevertheless, the gaps in the legislation of 1490 were left unplugged for forty years. On the face of it the Crown already had a means of protecting its interests, because a feoffment to uses by a tenant in chief required a licence to alienate.81 However, the Crown was prevented by statute from requiring the tenant to compound for the loss of wardship, and a licence could not be unreasonably withheld.82 The best the Crown could achieve by means of licences was a stipulation that the licensee retain a portion of land held in chief, so as to preserve wardship of the body and prerogative wardship with respect to other lands.83 The lack of further legislative proposals until the 1520s may seem puzzling with hindsight, but is perhaps explained simply by the social importance and complete general acceptance of wills of land. An attempt to restore the lost feudal revenue by abolishing uses would have threatened the existence of wills and would therefore have been broadly unacceptable.84

A compromise solution had been essayed in the 1483 statute for the duchy. Although the statute contained a proviso that it should not affect wills, this was subject to a saving to the king of ‘such reasonable portion of the same lands … as shall be sufficient for the finding of such heirs during their nonage’. The statute stood in force for less than a year, and there is no evidence that the saving was ever put into effect. It would have required some kind of decision as to what proportion of a tenant's lands should reasonably be left to descend to his heir, and an (p.664) even more difficult decision about how to pare down testamentary provisions which purported to leave an unreasonable proportion elsewhere. When Richard III repealed the statute he gave as the reason ‘the great hurt and thraldom of his subjects’; but at least some of its shortcomings must have been related to the difficulty of administering the principle of the ‘reasonable portion’. The saving clause was not repeated in the 1490 statute, and the problem was shelved for forty years.

A renewed campaign to revive the lost feudal revenues was begun in 1526, perhaps prompted by heavy recent public expenditure.85 In that year the Crown began to take penal recognizances from tenants in chief wishing to make feoffments, to ensure that the Crown did not suffer financial loss,86 and the Star Chamber ordered suits to be brought in respect of unlicensed alienations which affected wardships.87 Likewise, when a common recovery was suffered, the attorney-general—or sometimes the assize judges—began to extract recognizances that the recovery would not be prejudicial to the king in respect of wardship, primer seisin, or other profits.88 Further evidence of the new policy is a document containing the heads of a proposed piece of legislation agreed between the king and the peers in 1529–30.89 The first draft clause proposed to give the king prerogative wardship of lands in use, where there was no will, thereby supplying the apparent omission in the 1490 act. The bulk of the agreement, however, would have resuscitated in a different and general form the failed experiment of Edward IV. In respect of land held by knight-service in use, where a will or jointure had been made, and the heir was under age at the time of the ancestor's death, the king was to have wardship of one-third of all

Page 7 of 40

(p.665) It has been suggested that the peers were persuaded to agree to these proposals by an exemption conceded to the peerage from the proposed legislation of 1529 which would have annulled all entails and turned them into fee simple.90 Whether or not this is correct,91 there was clearly no corresponding benefit to offer the commons, apart from a two-edged provision that uses should be invalid unless registered in the Common Pleas. In the House of Commons, therefore, the scheme foundered in 1532. According to the Imperial ambassador Chapuys, the proposals were ‘the occasion of strange words against the king and Council’ in February of that year.92 The chronicler Edward Hall, who was a member of the lower house at the time, and a barrister of Gray's Inn, says that the king originally proposed to take half of a tenant's lands in ward, so that only half could be left by will, and that this caused much grief among ‘ignorant persons’ in the House of Commons—and anger directed against the king's learned counsel. According to Hall, those with better foresight were willing to settle for a scheme allowing wardship of a quarter or even a third, which the king would have accepted. But in the event no compromise was reached, and the proposals were rejected outright. Henry VIII reacted with an angry threat. ‘I assure you,’ he warned, ‘if you will not take some reasonable end now when it is offered, I will search out the extremity of the law, and then will I not offer you so much again.’93

Doubtless the majority were untroubled by this warning, secure in the knowledge that the law was on their side. Uses had been recognized by the Court of Chancery for over a century, and wills had in consequence become accepted as commonplace. The validity of a will of land held in use had indeed been acknowledged by Parliament in the ‘no will by him declared’ clause in the statute of 1490. But, as Hall noted, wiser men foresaw that this was not necessarily an impregnable position. Such a threat from such a king might well be made good. And so it turned out, as Henry VIII and his ministers set about to undermine the commons by getting the common law changed.94 In this bold endeavour the way had already been prepared by the lawyers themselves.

The Assault on Uses The debate which began in the mid-1520s provided an opportunity for lawyers desirous of serving the Crown, and in the period when the political solution seemed beyond reach it was left to them to save the king's cause by altering the (p.666) intellectual assumptions of the profession. Thus it happened that, just as the reception of the use into the common law was gaining momentum in the early sixteenth century, it received a powerful rebuff from Thomas Audley in 1526 as autumn reader of the Inner Temple.95 Audley selected as his text the 1490 statute of uses, and it may be supposed that he seized the occasion to mark his recent entry into the Crown's service—in Empson's old

Page 8 of 40

office as attorney-general of the duchy96—and his commitment to the new campaign to improve feudal revenue. His reading began with a lecture on tenure in chivalry and its incidents, followed by an exposition of the fifteenth-century learning on collusion and the sixth chapter of Marlborough. Then came the more radical doctrine, which was to shake the very foundation of uses. He claimed that uses had been ‘imagined and compassed’ since the Statute of Marlborough in order to defraud lords of their wardships, contrary to the learning of the common law, which held repugnant any condition upon a feoffment that the feoffor should take the profits. Warming to his theme, Audley expatiated on the problems of uncertainty caused by making title to land rest on conscience rather than legal rules; and it is as well to remember that the audience would not have failed to detect the latent allusion to Wolsey C.:97

Although these wills were at first contrived for a good purpose, namely for power to make wills of land in this realm, whereas inheritances in old times were ruled and governed by the common law (which for the most part consists of ordinary and certain rules): nevertheless to a great extent they have been pursued by collusion for the evil purpose of destroying the good laws of the realm, which now by reason of these trusts and confidences are turned into a law called ‘conscience’, which is always uncertain and depends for the greater part on the whim (arbitrement) of the judge in conscience. And by reason of this no man can know his title to land with any certainty; for now land passes by words and bare proofs in the Chancery, whereas by the common law it could only pass by solemn livery on the land or something equivalent, or by matter of record or in writing. Also, the trial of title to land in this realm was never by proofs but by verdict, whereas now it is contrary.

This passage could be taken as a manifesto for the campaign to follow, though no one could yet know that in ten years Audley himself would be the ‘judge in conscience’ and in a position to practise his preaching. The survival of three old copies of the reading may indicate that it circulated more widely than most. The key passage was certainly remembered in the Inner Temple in the 1530s, when (p.667) Master Hare told how:98 ‘A use was invented in the beginning with the intention of making a fraud at common law, namely to make a declaration of a will and so to defraud the right heir and oust the wife of her dower or oust tenancy by the curtesy … And he said that Audley was of this opinion in his reading; and so he held the law.’ The same passage was also known to Robert Catlyn, who copied it out in the 1550s.99

Another exponent of Audley's teaching was the anonymous ‘serjeant at the laws of England’ who in about 1530 wrote the intemperate Replication to St German's Doctor and Student.100 St German had made the Student explain to the Doctor that uses were founded on a ‘secondary conclusion of the law of reason’, and that, although a reservation of profits on a feoffment was void in law, the arrangement was binding in conscience. He had also listed some of the deceitful objects for which uses had been employed in the past, and shown how these had been remedied by statute. The principal reasons for uses, according to the Student, were to enable wills to be made of land and to facilitate marriage settlements.101 The implication was that these were proper objects.

Page 9 of 40

But, for the serjeant, St German had been too uncritical by far:102

I say that [uses] began of an untrue and crafty invention to put the king and his subjects from that [which] they ought to have of right by the good, true common law of the realm … And though some of these inconveniences be holpen by divers statutes, as ye have said, yet there resteth many and great inconveniences, more than I can rehearse at this time, that be not yet remedied. And in especial one, and that is this: by such uses the good common law of this realm, to the which the king's subjects be inherit, is subverted and made as void. For if he claim and prove his title by deed of feoffment, the other party will say that he was but a feoffee of trust … What a falseness is this, to speak and do one thing, and think another thing clean contrary to the same. Every man may perceive, in my mind, that of this can come no goodness, but craft and falsehood. And so me seemeth that these uses began by an untrue and a crafty invention, and is continued by an untruth and for a deceit.

After more invective of the same kind, and an argument that uses were even against the law of God, since they were against truth, the serjeant's peroration was an equally close paraphrase of Audley's reading:103 … all the law that now is used is to determine which is conscience and which is no conscience; and so the common law of the realm is nowadays by you that be students turned all into conscience, and so ye make my lord chancellor judge in every matter, and bring the laws (p.668) of the realm into such an uncertainty that no man can be sure of any lands, be it inheritance or purchase, but every man's title shall be by this means brought into the Chancery …

This might have been Audley speaking, though Audley did not himself take the coif until November 1531. At any rate, it represented a view which Audley was prominent in promoting at a critical moment in the history of the use. St German's rejoinder was that, if uses were permitted by law, it could not be deceitful to take advantage of them; and, of course, until that moment they had been permitted by law—not merely in the sense that they were enforced by the Chancery, but also in that they were not contrary to the common law. That being so, it could not be unconscionable to take lawful steps to avoid the incidents of tenure, or dower. One may properly avoid, but not fraudulently evade, the legal rules which apply to particular forms of settlement. On the other hand, St German declined to debate for the time being ‘whether it were good to break all uses’, merely observing that if a remedy was needed it was not because of deceit but because of the uncertainty and trouble which they occasioned.104 Even St German, therefore, accepted that there was some kind of case to be made against uses.

That general case was formulated shortly afterwards in a tract entitled (in an endorsement) ‘Damna usuum’.105 This was a random catalogue of the ‘mischiefs, wrongs, and inconveniences’ which flowed from uses. Among the forty-three complaints, the evasion of feudal incidents appears only as the thirty-ninth item, and the financial harm to the Crown is noticeably under-stressed. This does not prove that it was of unofficial

Page 10 of 40

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 19 January 2015 Uses, Wills, and Fiscal Feudalism origin; for, if the commons were to be won over, it was necessary to make the case independently of revenue considerations. A recurrent theme, as in Audley's reading and the Replication, was the uncertainty resulting from the substitution of conscience for legal title. ‘The opinions of the justices do change daily,’ it claimed, ‘upon the sureties for lands in use’; it was doubtful whether cestuy que use in tail could bar the issue;106 a claimant to land did not know whom to sue; uses still encouraged forms of mortmain; and there were numerous doubts arising from the statute of 1484. Moreover, the common law was being subverted by ‘double law’.107 The proposed remedy is hidden away in the middle:108 ‘If the uses, which [are] but the shadow of the thing and not the thing indeed, were clean put out of the law, men that had right should hereafter rather come to their remedies.’ This tract was not a specific proposal for legislation, but shows both careful preparation of a damning indictment of the use, on a variety of counts, and also serious contemplation of a drastic remedy.

(p.669) Another extra-parliamentary approach was to attack individual wills. Audley devoted the later part of his reading to defects in wills, the point being—as he held—that, when a will was invalid, the testator could be treated as having died with ‘no will by him declared’ for the purposes of the 1490 statute.109 This had already occurred to the legal advisers of the Crown before 1526. In 1516 a traverse to an inquisition raised the issue (amongst others) whether a feoffment to the use of a last will had been made to defraud the king of his wardship and marriage; but the traverse had failed.110 It is said that in The Earl of Derby's Case (1522), the Crown actually succeeded in obtaining wardship despite the existence of a will; the grounds are unclear, though it seems that much of the land had been devised to the testator's heir.111 However, in Re Longford (1523), in which Fitzherbert J. was personally involved as a feoffee, it was accepted that if a feoffment was made to the use of a last will it could not be condemned as a collusive feoffment to deprive the king of wardship.112 Consistently with this view, wills devising uses were regularly pleaded in the common-law courts down to 1535,113 without objection to their validity.114 This orthodox position had now to be shaken, and the attack was launched just after the rejection of the king's legislative proposals in 1532.115

The first peer to die after the king's defeat in Parliament was Thomas Fiennes, seventh Baron Dacre (Lord Dacre of the South), who died in 1533 leaving an heir aged 18. His was to be the leading case. Much of his land was vested in feoffees to uses, and by his will he had charged various legacies on some parcels and had settled others. One of the provisions in the will which struck blatantly against the (p.670) king's rights was that which directed the feoffees to convey the residue of the lands to the heir when he reached the age of 24, and to maintain him out of the profits in the meantime. Inquisitions were held in January 1534, apparently at Cromwell's instance,116 and duly found that Lord Dacre's will was made by fraud and collusion between him and Thomas Polsted,117 with other legal advisers, to defraud the king of the wardship of the body and lands of the heir. The feoffees demurred to the office, and so the matter came judicially before the Court of Chancery.118 Given that the lord chancellor was now Audley, and that Cromwell conveniently became master of the rolls in October 1534, the court must have been strongly inclined to decide the case against the feoffees; but a judgment by Audley and

Page 11 of 40

Cromwell would hardly have carried conviction without the approval of the common-law judges. And so the case was adjourned into the Exchequer Chamber for argument before the assembled judiciary, an argument which is fully reported in the year book for Easter term 1535.119

Since the fact of collusion and fraud had been found by the inquisition, counsel for the feoffees had to base their submissions on the law. Their first contention was that a man on point of death had to be presumed not to have acted fraudulently; but this was matched by the argument that jurors must be presumed not to have perjured themselves. The next contention was that uses were a well-established legal institution. Indeed, it was argued, consistently with the year-book case of 1522, that uses were at common law:120

… for a use is nothing but a trust which the feoffees put in the feoffee upon the feoffment; and if we were to say that there was no use at common law, it would follow that there was no trust at common law, which cannot be: for trust or confidence is a thing which is very necessary between man and man, and at least no law prohibits or restrains a man from putting his confidence in another … Moreover, it has been held for many years that a use was at common law, by the common opinion of the whole realm; and so it seems to me that it is no longer to be disputed.

Serjeant Mountagu added that, even if this had originally been a mistake, ‘it would be a great mischief to change the law now, for so many inheritances in the realm today depend on uses that there would be great confusion if this were done’.121 (p.671) Richard Pollard, on behalf of the Crown, argued that uses could not have existed at common law, for two reasons: first, it was repugnant to make a feoffment to someone else and yet still retain the property; and, second, a feoffment before 1290 would have created a tenure, and the tenure would have been a consideration for the feoffee to hold to his own use, and so uses could not be immemorial. These were not very good general arguments, because they were directed solely at the resulting use. The first argument would not reach a feoffment to the use of a third party, and the second would not reach an express use of any kind. A rather stronger argument was that a use such as that in the present case should be treated as falling within the equity of the Statute of Marlborough. The final argument was, however, something of a bombshell. Admit that uses were at common law, then they should follow the common law—and in that case they could not be testamentary, because land could not be left by will at common law. There the year book leaves the matter.

The significance of the case emerges from Spelman's report of the secret judicial meetings with Cromwell and the king.122 According to Spelman, there was an even division among the judges at the first assembly in the Exchequer Chamber. The traditionalists, including himself, favoured the view that the beneficial interest in a use could be disposed of by will. The will was no more, they said, than a direction to the feoffees and did not itself alter their title: ‘by his will he gives nothing of the land but only his use’. It was not therefore a disposition of the land and did not fall within the common- law rule. However, three judges (Lyster CB, Baldwin CJ, and Luke J.) sided with Audley

Page 12 of 40

and Cromwell in holding that a will of the use was void, because it was ‘against the nature of land’ to pass by will, and absurd that the testator should be able to devise someone else's property. The deadlock was broken when Port J.—who ‘spoke so low’ that he was misunderstood—was counted on the wrong side, making a majority of six to four in favour of the king. Pressure was then exerted on the judges by the king in person to make their decision unanimous, and they later ‘conformed’.123 Although the ‘nature of land’ argument seems somewhat at odds with the clear legal acceptance of local customs to devise land, the decision was not necessarily a complete perversion of law; it had a certain logic once it was accepted that uses followed the rules of common law. But the conclusion that uses of land were incapable of being left by will was hardly foreseeable, and was perhaps the most disconcerting piece of judicial legislation in English legal history. There was no longer any need to find fraud by means of special inquisitions:124 since all wills were invalid, the 1490 statute would apply (p.672) automatically on every death. Strict primogeniture was back with a vengeance, and not even limited to lands held by knight-service, since the incidents of tenure were immaterial to a decision founded on the ‘nature of land’. Worst of all, as a judicial declaration of the existing law the decision was necessarily retrospective. It did not merely deprive landowners of their power of testation for the future, but unleashed the devastating legal conclusion that no will made in the past could have been valid. Any landowner whose title was traced through a will, however far back in the past, now faced eviction by the heir at law of the testator. The ‘great confusion’ which Serjeant Mountagu had predicted was now reality.

The Statute of Uses 1536 The decision in Lord Dacre's Case stunned the legal profession, and its landed clientele, by unsettling most landed titles in the country. The lawyer members of Parliament might well regret that they had declined the king's offer of 1532 and paid so little heed to his warning. Legislation was now the only way of resolving the intolerable state of confusion, and a settlement would have to be reached with the king on his own terms. The commons, who in 1532 had refused to be cowed by the forceful personality of ‘an extremely strong-willed king’,125 were now reduced into submission by the alarming legal logic of 1535. The king had, of course, already gained by the decision of the judges more than he had formerly offered to accept. But he had yet more to gain from legislation, in that uses still deprived him of prerogative rights such as primer seisin. These matters were already on Cromwell's mind, for in the autumn of 1534 he had on his agenda ‘that some reasonable ways may be devised for [the king's] wards and primer seisin’.126 The original intention may have been some extension of the 1490 statute,127 but the victory of 1535 suggested a more radical approach. A new session of Parliament began in February 1536, and a bill for dealing with uses was read and passed before it ended in April. Cromwell was doubtless the moving force.128

The statute would not only put the king's entitlement to feudal incidents on a statutory footing, ending any possible doubts about the decision in Chancery,129 (p.673) but would restore his prerogative rights to their full extent at common law. His subjects, in return, would be protected from the retrospective effects of the decision in Lord Dacre's Case. The only explicit evidence of this compromise is section nine, but its sense is clear

Page 13 of 40

once the context is understood.130 Because ‘great ambiguities and doubts may arise of the validity and invalidity of wills heretofore made’ of land, ‘to the great trouble of the king's subjects’, it was provided by section nine that all wills of persons dying before 3 May 1536:

shall be taken and accepted good and effectual in the law after such fashion, manner and form as they were commonly taken and used at any time within forty years next afore the making of this act, anything contained in this act or in the preamble thereof or any opinion of the common law to the contrary thereof notwithstanding …

The only ‘opinion of the common law’ which contradicted the previous common understanding was the decision of the judges in Lord Dacre's Case; and the section was in effect a declaration that it should not have retrospective effect. It was this protective assurance, rather than some supposed deal with the legal profession to overlook its abuses and augment its business,131 which persuaded Parliament to restore the king to all the revenue which the common law gave him. The full victory was to be short-lived,132 but even after the king's partial retreat in 1540 the newly revived feudal revenue was sufficiently substantial to justify the creation of a new department of state to handle it.133

The technical means of achieving the result was prepared with considerable skill. It was not sufficient to codify the decision of the judges—by declaring that uses could not validly be devised by will—because that would not have restored the king to his full rights. Nor did the statute merely abolish uses, because at best that would have left existing feoffees (mostly lawyers) with an unfettered discretion to deal with the freehold as they saw fit. In order to bring about the desired object it was necessary to transfer the seisin of all land held to uses from the feoffees to the beneficiaries, so that the latter would die seised, their wills would be invalid, their heirs would inherit, and feudal incidents would attach at common law. Yet it would have been impracticable to require all the feoffees in the country to make conveyances to their beneficiaries. So resort was had to the statutory magic which had been released in smaller quantities in 1484 and 1490. Any beneficiary under a use would be deemed thenceforth to be seised, not merely for the specific purposes mentioned in those statutes, but for all purposes. In other words, the seisin would be (p.674) made actually to pass to him: not by the physical delivery which at common law was requisite for the conveyance of a freehold in possession, but instantaneously by operation of law. This was accomplished by providing that whenever anyone was—or should in the future be—seised to the use of any other person or persons,134 the latter should ‘stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession … of and in such like estates as they had or shall have in use’.135 The feoffees became ‘only an instrument to cause the thing to pass’.136

Legal Consequences of the Statute Serjeant Mountagu (later Mountagu CJ) was wont to refer to the 1536 Act as ‘the statute for extinguishing uses’,137 alluding to the technical sense of extinguishment rather than to outright extinction or abolition,138 and Robert Catlyn (later Catlyn CJ) likewise referred

Page 14 of 40

to it in 1547 as ‘the statute which extinguishes uses’.139 Within twenty years, however, pleaders were calling it ‘the statute for transferring (or transmuting) uses into possession’,140 while Chancery draftsmen around the end of our period adopted the reverse form, ‘the statute for transferring (or uniting) possessions to uses’:141 a formula favoured by Mountagu as chief justice in 1550.142 Both expressions describe more exactly the essence of the operation known to later generations as ‘executing the use’.143 Although the purpose of transmuting (p.675) uses into possession was to restore feudal revenue, the device brought with it a great many tangential consequences and new conveyancing possibilities, not all of which were foreseen by the draftsman.

First, the statute did away with wills for the time being. Although section nine expressly validated the wills of testators dying before 1536, the effect of executing the use was that beneficiaries under existing and future uses would die seised at common law, so that their wills—even if made before 1536—could no longer take effect. This position, as we shall see, lasted for only five years. But it remained the case that wills of persons dying after 3 May 1536, if made at any time before 20 July 1540, were invalid, except in the case of a testator who survived until the latter date and then ratified and approved such a will.144

Second, the statute put an end to resulting uses. That was indeed necessary to its purpose, since most uses created before 1536 had been tacit resulting uses arising from feoffments made without a consideration moving from the feoffees.145 If a conveyance was made without consideration after 1536, however, the livery of seisin had no effect: the feoffees became seised to the use of the feoffor, the use was instantaneously executed by the statute, and so the seisin rebounded on the feoffor.146 The only practical consequence of this was to make conveyancers more careful to recite a consideration and to express a use in favour of the feoffees.147

The statute also executed implied uses, and this raised an awkward problem. Execution of the implied use which arose in favour of the purchaser on a bargain and sale of land would have removed the distinction between the contract to sell land and the conveyance. This would have thrown conveyancing practice into confusion, since an interval was necessary to make enquiries, to take counsel as to the best form of conveyance, for legal advisers to draw the instrument transferring title, and in appropriate cases to arrange for a common recovery or final concord to clear the title.148 The problem seems to have been spotted at a rather late stage, and a separate bill was rushed through Parliament to deal with it.149 The solution (p.676) was to provide that a bargain and sale of land should not operate to pass an estate of inheritance or freehold ‘except the same bargain and sale be made by writing indented, sealed and enrolled in one of the king's courts of record at Westminster’ or in the county where the lands were situated.150 The ‘bargain and sale enrolled’ thus became a new way of passing freehold title, without livery of seisin, on condition of public registration.151 The device had no connection with the schemes for compulsory registration of deeds which were currently under consideration but came to nothing.152 It did not even become the usual method of conveyance, though there was a marked increase in the number of deeds enrolled in the

Page 15 of 40

central courts after 1536.153 Moreover, enrolling the contract evidently did not in practice preclude a second stage in the conveyancing process, because these enrolled deeds commonly contained covenants by the vendor to make a good estate by deed, fine, feoffment, recovery, release, or otherwise, and sometimes also to make such further assurances from time to time154 as counsel learned should devise, and to hand over muniments of title. A covenant to make a good estate was not fulfilled by the enrolment alone.155

Another kind of contract fell outside the enrolment legislation. If a landowner covenanted upon good consideration to stand seised to certain uses—provided it was not an executory covenant to be performed in the future156—he was thereby immediately seised to those uses,157 and so they would be executed by the Statute of Uses; and yet there was no bargain and sale within the provisions of the (p.677) Statute of Enrolments. This conclusion was confirmed by all the judges ‘upon great deliberation’ in 1542.158 The device was very common in marriage agreements.159

A different difficulty which was foreseen in 1536 was the effect of the Statute of Uses on dower and jointures. Estates in use did not carry dower,160 and in practice dower had to a considerable extent been replaced by jointure.161 But if the husband-beneficiary was now to die seised, his widow would be entitled to dower at common law, and if provision had been made for a jointure she would be entitled to that as well. The Statute of Uses therefore provided that a widow who had a jointure or separate use could not also claim dower, save that in the case of a jointure given after marriage the woman could —after her husband's death—refuse the jointure and demand her dower at common law.162 Her common-law right to dower operated as a kind of insurance for the jointure, since, if evicted from any of the jointure lands, she could claim dower up to the value of the lands which she had lost. Although the statute gave rise to a number of conundrums,163 the general principle was that a jointure could be pleaded in bar to a writ of dower.164

The draftsman seemingly did not give so much thought to the effect of the legislation on future and contingent interests in use. Since he was principally concentrating on feudal incidents, the estates foremost in his mind were estates of inheritance: that is, the passive resulting use in fee simple and the use in fee (often fee tail) created by will or marriage settlement.165 It has been suggested that most other testamentary provisions were essentially ‘ministerial’.166 But uses were also the basis of marriage settlements and testamentary settlements with remainders; and some settlors had begun to experiment with devices unknown to the common (p.678) law, such as powers of appointment,167 shifting uses,168 springing uses,169 and perpetuities.170 The statute drew no distinctions, but stated in general terms that persons having uses in fee simple, fee tail, for life, for years, ‘or otherwise’, or in reverter or remainder, should be seised ‘of and in such like estates as they had or shall have in use’. It thus appeared to be the clear intention to turn any kind of settlement in use into a legal settlement.171 The inevitable question which was to vex future generations, namely whether this gave legal form to varieties of settlement not permitted under the rules of the common law, does not seem

Page 16 of 40

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 19 January 2015 Uses, Wills, and Fiscal Feudalism to have been ventilated and may not have been foreseen. It was a perfectly reasonable failure of foresight, since the doctrine which supported the decision in Lord Dacre's Case—that uses should follow the common law—would, if applied to future estates, have prevented the later difficulties from arising. Well might the draftsman have assumed that to be the legal position. Spelman had held in 1519—anticipating Coke's successful argument in Shelley's Case (1581)—that settlements in use followed the same rules as settlements of the legal estate (‘the land’), so that a feoffment to the use of A for life, remainder to A and his heirs, or to A's heirs, gave A an immediate fee simple which extinguished the life estate in use.172 If that had indeed become the common learning after 1535, much confusion might have been avoided. On the other hand, it was agreed in 1540—following the Chancery practice before 1536—that limitations of uses were to be construed according to the intention rather than the strict rules of law.173 And the (p.679) courts of law seemed inclined to go further. Soon after the statute we find mention of springing uses174 and shifting uses,175 which, though not recognized by the common law, were turned by the statute into legal estates.176 The same appears to have been true of powers of appointment, which are still found after 1535.177 Doubtless no one at first saw the full significance of applying the statutory magic to them. The conflicting logics were to wreak their revenge in later ages.

The Statute of Wills 1540 The king's victory of 1536 was absolute but not permanent. In fact it stood for only five years. In 1540, the king ‘of his most blessed disposition and liberality’ restored the power to devise land and retreated to the one-third scheme which he had proposed in 1530.178 This volte-face—or defeat179—has generally been understood as a response to popular disquiet about the reintroduction of compulsory and unqualified primogeniture, and an attempt to appease the landed gentry.180 The duke of Norfolk had pronounced the Statute of Uses the worst statute ever made,181 and it was among the grievances listed by the Pilgrims of Grace in 1536. Robert Aske, a barrister of Gray's Inn and one of the ringleaders, had urged that landowners should be allowed to leave part of their lands by will, so that they could pay their debts and provide for their children's marriages, or else lawyers would exploit loopholes in the legislation—loopholes which, as he warned ominously, had already become apparent.182 The king loftily told the protesters that the statute did not concern them, as ‘base commons’,183 and Aske was soon afterwards executed for treason. Yet the preamble to the Statute of Wills expressed (p.680) the king's desire to make the very concession which Aske had sought. What could have brought about such a major political retreat? The principal grievances of the pilgrims were religious, and there were no concessions on that front. It therefore seems unlikely that the government were unduly perturbed by popular unrest. Much more likely it was Aske's juristic warning. Lawyers were already beginning to contemplate devices which threatened the entire working of the Statute of Uses. Aske, after his arrest, was interrogated closely as to what he had in mind, and it seems that it involved making a settlement on the landowner for life with remainders, in the manner of the later strict settlement.184 If the heir apparent or other intended beneficiary took by remainder, rather than by descent, the feudal incidents would be lost.185 If Aske was thinking of vested remainders, such a settlement would still not have given the landowner the

Page 17 of 40

By 1539 Cromwell was sufficiently worried to ask the king to seek the advice of the judges.189 He had also come to learn of settlements which turned the landowner into a lessee for a long term of years, with remainder to his eldest son, (p.681) so that he could devise the estate in possession by will.190 Leases for years, being chattels, were devisable at common law and unaffected by the statute. It was a scheme of that kind which sent four lawyers to the Tower in February 1540.191 Their imprisonment was avowedly a punishment for advising the late Sir John Shelton to settle his lands in lease, so that he could make a will,192 conduct which was regarded as a breach of their ‘oaths and duties’ as royal officials;193 but presumably the government also hoped that the secret might be suppressed until legislation could be prepared.194 The readers of the inns of court were at the same time summoned to the Star Chamber for a lecture by Lord Chancellor Audley on the evils of tax avoidance by ‘subtle practices or invention of crafty wits’, and a warning not to propagate learning which might deprive the king and other lords of their feudal incidents.195 The Statute of Wills was passed the following July.196 It was evidently the fear of lawyers' skills, rather than any alarm at popular wails of protest, which necessitated the dramatic revision of policy.197

Parliament could hardly abolish remainders as well as wills, and the best legislative strategy was to reintroduce the power to devise but with statutory restrictions safeguarding a proportion of the feudal revenue. The scheme in principle was the same as that proposed in 1530, though since the Statute of Uses was left in force it operated in a slightly different way. The statute enabled every landowner to devise hereditaments ‘at his free will and pleasure’, thereby introducing for the first time a general power to devise the legal estate in land.198 In the (p.682) case of socage land, the power was unrestricted, save that if the land was held in chief the king was to retain his right to primer seisin, relief, and livery, and was to be entitled to a fine for the alienation made by the will. In the case of land held by knight-service, only two-thirds of it could be devised by will, reserving to the lord all the feudal incidents in respect of the one-third left to descend; and the king was to have a fine for alienation of the two-thirds if the land was held in chief. Moreover, and this was some quid pro quo for the king, the one-third principle applied not only to devises but to all land of which the deceased had been at any time seised for an estate of inheritance. This was achieved somewhat obliquely, by expressing the power to devise as exercisable not only by last will but also by ‘any act or acts lawfully executed in his life’.199 The result struck at least one legal commentator as ‘very strange, for the law—which is like unto reason and equity—wills that everyone may

Page 18 of 40

do with his land as he pleases’.200

The general principle was clear enough, but the subject-matter was complex and the wording raised so many legal questions that another statute had to be passed two years later to explain it.201 The seemingly comprehensive statutory power to devise land was not intended to enable wills to be made by tenants in tail, or by those who lacked testamentary capacity.202 If a tenant by knight-service overlooked the statute and devised all his land, this would be good as to two-thirds and a division would have to be made by commissioners.203 A conveyance by way of lease for life or years, with remainders, if made by covin to defraud the king or other lords of their feudal incidents, was to be ineffective for that purpose: the limitations were not rendered void,204 but the lord was entitled to claim the incidents (and the king his prerogative rights) if the fraud was found by inquisition post mortem. This last section put beyond further doubt the fate of the two kinds of settlement which had provoked the hurried enactment of the 1540 statute in the first place.

Despite these clarifications, the Statute of Wills, like its elder sister of 1536, created many problems for posterity, not least through the generality of the words (p.683) ‘at his will and pleasure’, which would enable executory devises outside the rules of the common law.205 It appears from Dyer's reading on wills, delivered in the Middle Temple in 1552, that these possibilities were already coming into view.206 Another basic question still causing trouble in 1550 concerned a devise to the heir. Should the heir sue livery for the two-thirds devised to him as well as for the third which descended to him? According to the earl of Wiltshire, lord treasurer, it had been the standard practice since the statute to require him to sue livery for the devised portion; but the master and attorney of the Court of Wards—Keilwey and Bacon—held that the king was not entitled to livery if there was no descent.207

Trusts after the Statute of Uses The extent to which the Statute of Uses reduced the jurisdiction of the Chancery over equitable interests in land has not yet been established in quantitative terms;208 but it is clear that the wording of the statute did not turn all uses into legal estates. The statute applied where feoffees were seised to the use of someone else for an estate which could be executed. It obviously could not apply to feoffees who had duties to perform beyond passively holding an estate for another. It could not conceivably ‘execute’ purposes, such as charitable objects,209 or indeed any kind of active trust: for instance, where the profits were to be collected to pay debts,210 or even where the feoffees were directed to collect them and pay them over directly to the beneficiary.211 Not only did the freehold in such cases remain in the feoffees, so that they could carry out the trusts,212 but the trusts themselves (p.684) remained alive in conscience in order that the Chancery could compel the feoffees to carry them out.213

Since the statute spoke only of persons who were ‘seised’ to the use of others, it did not on a natural interpretation apply to possessions which did not technically amount to seisin, such as copyholds and leases for years. This was not necessarily a casus omissus,

Page 19 of 40

because at the time of the statute it was doubted whether a copyhold214 or a term215 could be impressed with a use. Doubts about terms of years lingered into the second half of the century.216 Nevertheless, it seems that by the end of our period the Chancery was prepared to enforce trusts both of copyholds217 and of terms,218 on the footing that they were not executed by the statute. In the lease for years, then, the conveyancer had —at any rate by the 1550s—found a means whereby an unexecuted trust could be deliberately created.219 The same result could be achieved by giving the feoffees active duties, and indeed most trusts found in the mid-sixteenth century were ‘active’.

It was once thought that the deliberate creation of equitable interests could not have been tolerated by the Chancery between 1535 and the abolition of feudal incidents in 1645.220 The revenue considerations were, however, irrelevant after the Statute of Wills.221 And there were various good reasons for wishing to create equitable trusts.222 One was to prevent the disappearance of the married woman's (p.685) separate use. It had been common before the statute for lands to be conveyed to feoffees for the use of a married woman, usually under the provisions of her marriage agreement, so that she could receive the profits independently of her husband;223 but the statute put an end to this device by executing the use on which it depended and turning it into a form of jointure.224 By the 1550s, the same result could be achieved by making a lease for years to the use of the married woman; such an arrangement made in 1553 for Lady Bourchier was enforced in Chancery in 1561.225 A lease in trust might also be employed to protect an estate from a spendthrift.226

In later times, equitable interests were created by means of a ‘use upon a use’, that is, a conveyance to A to the use of B to the use of (or in trust for) C. The effectiveness of this strange device depended upon the failure of the Statute of Uses to execute the second use; but the law on this point was not settled until the very end of our period. The validity of a use upon a use had been considered before the statute, usually in the context of an express use which conflicted with an implied or resulting use.227 Although the second use had sometimes been ruled repugnant,228 St German's student treated the matter as one of interpretation rather than of law, on the basis that implied and resulting uses themselves rested on rebuttable presumptions of intention.229 The matter came to a head twenty years after the statute in Jane Tyrrel's Case (1557).230 Jane Tyrrel, a widow, had in 1550 bargained and sold land for money to her son George, by indenture enrolled according to the Statute of Enrolments, to the use of herself for life and then to George in tail. The question arose in the Court of Wards, which may be considered for this purpose a court of common law, whether the uses of the settlement were not void in that they were reserved upon the implied use raised in favour of (p.686) George by reason of the consideration in the bargain. There seems little doubt that Mrs Tyrrel's legal advisers had intended the settlement to be executed by the Statute of Uses,231 and the escheators took the view that it had been.232 Whether they had all been careless in overlooking the implied use,233 or had simply taken a wrong view as to the effect of the Statute of Enrolments,234 is a matter of controversy. However, after taking the advice of the Common Pleas judges and Saunders CJ, the Court of Wards held that the second use was void, both because it was repugnant to the first and—which is not quite the same

Page 20 of 40

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 19 January 2015 Uses, Wills, and Fiscal Feudalism thing—because ‘a use cannot be engendered of a use’. The first reason might have rested merely on interpretation, but the second was evidently a rule of law. It may not have been as wide a rule of law as later generations made it, because it was limited to bargains enrolled under the Statute of Enrolments.235 The enrolled bargain could only transfer the freehold if there was an implied use executed by the Statute of Uses, and once that use was acknowledged there was no room for interpretation: the second could not override it. If, on the other hand, the enrolled bargain did not transfer the freehold, then there was no seisin to support the second use. Understood as a general rule, that a use upon a use was not good in law and therefore not executed by the statute, it opened up the possibility that the second use might be enforced by the Chancery on grounds of conscience. That possibility was presumably in the minds of counsel advising the duchess of Suffolk and a number of other protestants fleeing religious persecution under Queen Mary. To safeguard their lands from forfeiture, the departing landowners granted them away to nominees ostensibly upon valuable consideration but subject to secret trusts to reconvey.236 But there is no evidence that the Chancery pronounced on the enforceability of the second use in equity until the return of the duchess to England after the accession of Elizabeth I.

Notes: (1) i.e. in the case of a male heir. A female heir was in ward only if she was under 14 at the time of the descent, though (if she was) the lord retained his rights of wardship until she was 16: Westminster I, c. 22; Litt. s. 103.

(2) There is a full discussion of the king's prerogative incidents in Constable's reading (Lincoln's Inn, 1495), pr. in Prerogativa Regis: tertia lectura Roberti Constable, ed. S. E. Thorne (1949).

(3) The feoffees were joint tenants, so that on the death of any feoffee his share went to the others by the jus accrescendi. The incidents would only attach if, by oversight, there was a single surviving feoffee who died; and then it was, inappropriately, the feoffee's infant heir (not the beneficiary's) who would be in ward. The heir of the last feoffee was bound by the use: Tey v. Pawne (1507) KB 27/983, m. 62 (replication).

(4) This was always implied, since a feoffment to the use of A and his heirs was in law the same thing as a feoffment to perform A's will: Anon. (1549) Wm Yelv. 346, no. 72.

(5) A widow could still claim dower in respect of lands of which the husband made a post- nuptial feoffment to uses, but not of lands which were in use at the time of marriage or came to him in use: cf. Bean, The Decline of English Feudalism, 136–7.

(6) For powers of appointment see below, 678.

(7) ⁷ Below, 706.

(8) Mich. 15 Hen. VII, fo. 13, pl. 1 (misdated but identifiable as Dod v. Chyttynden, 1502), per Frowyk sjt, referring to the date of the statute 4 Hen. VII, c. 17.

Page 21 of 40

(9) In conveyances the phrase ‘use and behoof’ was already in common use, as representing the Latin doublet opus et usum: e.g. CP 40/916, m. 135 (‘youse and behoff’, 1487); BL Add. Roll 51523 (‘thuse and behove’, 1508); BL Add. Ch. 53062 (‘use and behove’, 1531); BL Add. Ch. 56692 (‘use and behouf’, 1540); Lyte v. Peny Dyer 49a; CP40/1099, m. 340d; BL Add. Ch. 48798 (‘uses and behoffe[s]’, 1547). Cf. T. Madox, Formulare Anglicanum (1702), 438 (‘behove, profet, and use’, 1487).

(10) A common expression throughout our period: e.g. Mich. 21 Edw. IV, fo. 38, pl. 1 (‘enfeffa … de trust’); Pas. 22 Edw. IV, fo. 6, pl. 18 (‘feoffement de trust’); Adgore's reading (c.1489), fo. 24 (‘feffez de trust’); Madox, Formulare, 413 (‘feoffement of trust’ in a deed of 1508); Bodl. Lib. MS. Rawlinson C.705, fo. 46v (‘feffe de trust’, 1513); KB 27/1021, m. 38 (deed enrolled by feoffees in trust, 1516); John Petit's reading (1518) BL MS. Harley 5013, fo. 18 (‘per cest feffement de confidence est implie un confidence et trust inter le feffour et feffe’); Knightley's reading (1523), fo. 91v (‘feffe de trust’); Yorke 126, no. 101; 139, no. 134; 147, no. 158; 148, no. 160; 150, no. 167; 152, no. 170 (‘feoffees del trust’, c.1520/30); BL Add. Ch. 53062 (‘feoffez of truste’, 1531); St German, Doctor and Student, ed. Plucknett and Barton, 222–3.

(11) Cf. Plucknett, CHCL (5th edn), 579, writing of the previous century.

(12) Sometimes he was: e.g. Madox, Formulare Anglicanum, 213 (1499; the endorsement states that seisin was delivered to that feoffee only).

(13) If in occupation, he was merely a trespasser or (at best) a tenant at sufferance: Anon. (1464) Pas. 4 Edw. IV, fo. 8, pl. 9; Anon. (1500) Hil. 15 Hen. VII, fo. 2, pl. 4 (tenant at sufferance); Trin. 15 Hen. VII, fo. 12, pl. 23 (trespasser); Dod v. Chyttynden (1502) 2 Caryll 395, pl. 258.

(14) Trusts are mentioned in Litt. ss. 462–4 (feoffments ‘sur confidence’).

(15) Abbot of Bury v. Bokenham (1536–7) Dyer 7b at 12a. Cf. his earlier opinion that uses were at common law: below, 659. See also Anon. (1533/4) Caryll (Jun.) 372, no. 10, per Willoughby sjt (‘a use … is not a thing in possession and is not regarded in our law’).

(16) The rules concerning the creation and transfer of express and implied trusts were expounded in Gregory Adgore's reading on uses (Inner Temple, c.1489) CUL MS. Hh.3.10, ff. 19–28 and other manuscripts (references below are to the CUL MS.); extracts pr. B. & M. 102–3, 482–3. The main principle, however, was that uses were flexible: below, 658, 678.

(17) Litt. s. 464; Mich. 15 Hen. VII, fo. 13, pl. 1 (misdated report of Dod v. Chyttynden), per Frowyk sjt. Cf. Dod v. Chyttynden (1502) 2 Caryll 395, 396, where it is said that this ‘(tr.) began by sufferance, for the benefit of the king’; and Yorke 126, no. 101, per Fitzherbert J. (not in strictness of law but ‘at the discretion of the justices’).

(18) For a useful survey of the process whereby the profits of feudalism were revived by the Crown see Bean, Decline of English Feudalism, 235–305.

Page 22 of 40

(19) 1 Ric. III, c. 1; B. & M. 101. A few years later (c.1489) the statute was the subject of the reading by Adgore noted above. Note also 1 Hen. VII, c. 1 (formedon against pernor of profits); Caryll (Jun.) 388, no. 43.

(20) Trin. 6 Hen. VII, fo. 3, pl. 2.

(21) e.g. a rent (Pas. 4 Hen. VII, fo. 8, pl. 9); or an annuity (Athowe v. Waller (1504) CP 40/969, m. 309)

(22) The statute did not refer to ‘feoffees’, and so it applied to recoveries to uses and to implied uses If the use was sold, the purchaser of the use acquired the power of disposal given by the 1484 act: Adgore's reading (c.1489), fo. 19.

(23) Anon. (1489) Mich. 5 Hen. VII, fo. 5, pl. 11; Anon. (1500) Hil. 15 Hen. VII, fo. 2, pl. 4; Trin. 15 Hen. VII, fo. 12, pl. 23. See also Milsom, HFCL, 215.

(24) For grants by particular tenants and remaindermen in use see Anon. (1488) Mich. 4 Hen. VII, fo. 18, pl. 9.

(25) Castelen v. Morleyn (1503) CP 40/963, m. 348.

(26) This shortest form is contemporary, but Adgore spoke of both ‘cestui a que use est’ and ‘cestui que ad use’: reading (c.1489), ff. 25, 27v. See also Trin. 13 Hen. VII, fo. 26, pl. 5, at fo. 27 (‘cestuy a qui use le feoffement fuit fait’ and ‘cestuy que use’). It is clear from the longer phrases that ‘use’ is here a noun and not a verb.

(27) Dokker v. Slyngesby (1488) KB 27/909, m. 37 (discontinued demurrer); Dod v. Chyttynden (1502) CP 40/960, m. 437 (judgment on demurrer); 2 Caryll 391, 395, 407; Hil. 15 Hen. VII, fo. 2, pl. 4; Trin. 15 Hen. VII, fo. 12, pl. 23; Mich. 15 Hen. VII, fo. 13, pl. 1; sim. Rast. Ent. 508v (554v), pl. 3 (wrong KB roll-reference). Cf. Atwode v. Elice (1498) CP 40/946, m. 113; Rast. Ent. 570 (629v) (pleads distraint by cestuy que use as servant of feoffee).

(28) Adgore's reading (c.1489), fo. 25v.

(29) As to whether seisin passed on a lease pur auter vie by cestuy que use for life, see Mordaunt v. Byrde (1523) CP40/1040, m.435 (undetermined demurrer).

(30) Cf. the problem of the mortgage. Edmund Knightley thought cestuy que use could as a general rule enter for breach of a condition imposed by him (cf. Mich. 5 Hen. VII, fo. 6, pl. 11, per Bryan CJ), but not upon a feoffment in mortgage: reading (1523) CUL MS. Hh.3.9, fo. 92.

(31) Moots, 132–3 (moot point in Inner Temple, mid-1480s); Anon. (1489) Mich. 5 Hen. VII, fo. 5, pl. 11, per Bryan CJ; Warre's Case (1493) Hil. 8 Hen. VII, fo. 9, pl. 1, per Keble sjt (‘peradventure’ rent can be reserved with a deed, but not without), also in Trin. 13 Hen. VII, fo. 26, pl. 5; Adgore's reading (c.1490), fo. 25v (tr. ‘… and yet the reversion is

Page 23 of 40

(32) Anon. (1493) Hil. 8 Hen. VII, fo. 9, pl. 1, per Keble sjt; Anon. (1506) Trin. 21 Hen. VII, fo. 25, pl. 2; Yorke 141, no. 139 (where there was a deed).

(33) As to distress see Anon. (1535) Trin. 27 Hen. VIII, at fo. 14, per Shelley J.; Perk. s. 692. As to re-entry for non-payment see George v. Sedler (1522) CP 40/1036, m. 469; Spelman 81, 227; (no. 2, 1527) CP 40/1054, m. 530 (right of re-entry reserved by feoffees carrying out will of cestuy que use); Bygge v. Hyett (1524–5) CP40/1045, m. 513 (right of re-entry reserved for beneficiary; undetermined demurrer); above, n. 30.

(34) Adgore's reading (c.1489), fo. 25v; Moyle's Case (1493) Hil. 8 Hen. VII, fo. 9, pl. 1; Anon. (1534) Trin. 26 Hen. VIII, fo. 6, pl. 31.

(35) Moyle's Case (1493) Hil. 8 Hen. VII, fo. 8, pl. 1; 1 Caryll 177 (plaintiff in replevin pleads lease from cestuy que use and prays aid of feoffees; aid granted); Bradbury v. Lyle (1531) CP 40/1070, m. 103 (sim.; judgment for defendant upon demurrer).

(36) Gray's Inn moot (1519) BL MS. Harley 5103, fo. 82v; HLS 125, no. 104; Rawlinson C.705, fo. 10, per Spelman; Note (c.1530) Yorke 139, n. 136 (lease for life); Anon. (1533/4) 25 Hen. VIII, Brooke Abr., Uses, pl. 45.

(37) Litton v. Harvy (1502) CP40/960, m. 102.

(38) Sandys v. Bray (1511) 2 Caryll 610; Spelman 234; 120 Selden Soc. 4, 24; Brudenell v. Abbot of St Werburgh's, Chester (1516) CP40/1014, m. 445; 120 Selden Soc. 4. The point was left undecided in Lady Hastings v. Hungerford (1492) Trin. 10 Hen. VII, fo. 29, pl. 24; Hil. 13 Hen. VII, fo. 18, pl. 24; 1 Caryll 75, 81, 102.

(39) Anon. (1494) Pas. 9 Hen. VII, fo. 26, pl. 13; Anon. (1506) Hil. 21 Hen. VII, fo. 19, pl. 30, per Tremayle J.; Anon. (c.1522/6) Yorke 144, no. 149; Anon. (1527) Trin. 19 Hen. VIII, fo. 10, pl. 4, per Shelley and Englefield JJ; Perk. s. 544; Putbury v. Trevilian (1556) Dyer 142b at 143a.

(40) Cf. Abbot of St Mary Graces v. Duplage (1495) CP 40/932, m. 349; 102 Selden Soc. 48 at 51 (lease by the devisee of a use).

(41) Anon. (1499) Hil. 14 Hen. VII, fo. 14, pl. 4, at fo. 15.

(42) Lady Hastings v. Hungerford (1492) Trin. 10 Hen. VII, fo. 29, pl. 24, per vavasour J.

(43) Dod v. Chyttynden (1502) 2 Caryll 395 at 396, per Frowyk sjt (tr. ‘by the course of the common law he has no more to do with the land than the greatest stranger in the world … And it was touched upon that cestuy que use may take trees, just as well as he may make a lease … by the equity of the new statute (query): which Frowyk conceded’);

Page 24 of 40

(44) Pas. 4 Hen. VII, fo. 8, pl. 9, per Wode sjt. Adgore repeatedly used this word in his reading (c.1489), ff. 22v, 23, 24r‒v, 25r‒v, 26.

(45) See 94 Selden Soc. 196 n. 2. Earlier examples are Rous v. Pope (1490) KB 27/916, m. 73 (use traced through devise and sale by executors; demurrer relinquished); Abbot of St Mary Graces v. Duplage (1495) CP 40/932, m. 349; 102 Selden Soc. 51 (pleads a lease for years by the devisee of a use); Stubbe v. Fletcher (1499–1502) CP 40/949, m. 415; Rast. Ent. 606v (676) (pleads sale of trees by executors as directed by will); Wagge v. Choune (1501) CP 40/958, m. 360 (pleads feoffment by cestuy que use); Brograve v. Sprever (1501) KB27/961, m. 39 (sim.); Boteler v. Lee (1502) CP40/962, m. 134 (sim.); Blechynden v. Filpot (1503) CP40/964, m.372, 370A (pleads feoffment to use of will, and terms of will); Spysour v. Grubbe (1504) CP40/969, m. 428 (pleads will by cestuy que use in 1457 directing the feoffeesto sell the land, and that they sold to G., who made a feoffment to his own use); Randall v. Eston (1510) CP 40/993, m. 541 (bargain and sale by cestuy que use pleaded in replication); Merbury v. Mordaunt (1512–13) CP 40/998, m. 437 (avowry traces use from testator to executors, and thence to the plaintiff; demurrer).

(46) e.g. Dod v. Chyttynden (1502) CP 40/960, m. 437 (‘jus usus’); Glover v. Lucas (1502) CP 40/962, m. 444 (sim.); Frebody v. Baker (1506) CP 40/978, m. 454 (‘jus in usu’); and see Sandys v. Bray (1510) CP 40/993, m. 541 (pr. 116 Selden Soc. 611). For the descent of ‘usus’ see also Atwode v. Elice (1498) CP 40/946; Rast. Ent. 570 (629v); Athowe v. Waller (1504) CP 40/969, m. 309; Carter v. Grene (1506) CP 40/974, m. 594; Anon. (1506) Mich. 21 Hen. VII, fo. 33, pl. 28; Morton v. Chippenham (1507) KB 27/983, m. 66.

(47) Parcyvall v. Phylippe (1502–4) CP40/962, m. 570 (defendant pleads that a use of gavelkind land descended to two brothers, one of whom enfeoffed the other).

(48) Even Thomas Audley, a strong critic of the development of the use, defined it as a kind of property or ownership: reading on uses (Inner Temple, 1526) BL MS. Hargrave 87, fo. 438 (tr. B. & M. 104); abstracted as ‘Diffinitio usus’ in Catlyn's precedent book, Alnwick Castle MS. 475, fo. 186v.

(49) See J. L. Barton, 81 LQR at 574–6; Simpson, Rise of Assumpsit, 327–9; Milsom, HFCL, 216.

(50) See 23 Hen. VIII, c. 10. Such uses were in practice frequently constituted by last will.

(51) Baker v. Johnson (1497) KB27/945, m. 34d; Trin. 12 Hen. VII, fo. 27, pl. 7; Mich. 13 Hen. VII, fo. 9, pl. 5; 1 Caryll 361. The case turned on the validity of a lease by

Page 25 of 40

(52) See below, 661.

(53) Gervys v. Cooke (1522) Mich. 14 Hen. VIII, fo. 4, pl. 5 (119 Selden Soc. 108; quotations from 114, 115, 116); Spelman 227; CP 40/1035, m. 510 (pr. 119 Selden Soc. 123). Cf. Parker v. Pateshall (1520) 120 Selden Soc. 42, per Fyneux CJ (‘uses were at common law’).

(54) Actually to the defendant's wife, when she was married to the feoffor (who was not the cestuy que use).

(55) Cf. his statement of 1536, quoted above, 655.

(56) Cf. Anon. (1549) Wm Yelv. 347, no. 72.

(57) Cf. Anon. (1467) Hil. 7 Edw. IV, fo. 29, pl. 15, where the judges held that the feoffee was bound to plead as directed by cestuy que use; but they did not indicate the remedy. See also Trin. 27 Hen. VIII, fo. 20, pl. 7, where the judges accorded cestuy que use the privilege of a litigant; the problem of judicial notice was circumvented by taking evidence as to the use.

(58) Gresley v. Saunders and Sprott (1522) Pas. 14 Hen. VIII, fo. 24, pl. 2 (119 Selden Soc. 170); Spelman 22; Brooke Abr., Feffements al uses, pl. 48; CP 40/1037, m. 413; CP 40/1038, m. 112d. Actions were also brought in the King's Bench (KB 27/1043, m. 78) and Chancery (C1/513/35, 36). Similar issues were raised in Holwey v. Hale (1529/32) C1/642/16; Browne v. Coke (1531/2) C1/614/32.

(59) See also The Serjeants' Case (1531) Wm Yelv. 294 at 299, per Cholmley sjt (‘by the common law, if the feoffees execute some other estate than [cestuy que use] wishes them to have, an action upon his case lies against them, because he put his confidence and trust in them to do it, and the action on the case lies for the deceit’).

(60) e.g. Megod's Case (1586) B. & M. 497, identified by N. G. Jones as Meggott v. Broughton and Davy (1586) KB 27/1298, m. 342; KB 27/1299, m. 57; 4 Leon. 60, 225.

(61) See 94 Selden Soc. 197–8. See also Fitzherbert J.'s dictum of 1536 quote above, 655.

(62) Statute of Marlborough 1267, c. 6. See 94 Selden Soc. 193.

(63) So held John Baldwin (Gray's Inn reading, c.1454) CUL MS. Hh.2.6., at fo. 67v (tr. 94 Selden Soc. 193); and Thomas Audley (Inner Temple reading, 1526) CUL MS., at fo. 5v. (For fourteenth-century case-law on the point, see Bean, Decline of Feudalism, 183, 203–4.) For other difficulties with c. 6, see John Grene's reading (Inner Temple, 1499) Port 169–73.

Page 26 of 40

(64) Baldwin's reading (last note). A passive use in fee simple was found to be collusive in 1487: CIPM Hen. VII, i. 143, no. 339.

(65) 4 Hen. VII, c. 17. The legal date was 1489, since the Parliament began in Jan. 1489, but the statute applied to persons dying after Easter 1490 and was probably passed in the 1490 session: Bean, Decline of Feudalism, 242. It is more convenient to assign it to 1490. A contemporary copy in the Paston Letters, BL MS. Add. 27446, fo. 7, has the commencement date miscopied as ‘mcccclxxx’.

(66) Bean, Decline of Feudalism, 245–7.

(67) C49/40, no. 3; RP, vi. 207b (Jan. 1483; not printed as a statute); W. Hardy, Charters of the Duchy of Lancaster (1845), 337–40. Empson was at this time A.-G. of the duchy. The measure was repealed by Richard III in Jan. 1484 (RP, vi. 261b).

(68) i.e. in fee simple, not in tail.

(69) 19 Hen. VII, c. 15, s. 2. The statute also made the land of cestuy que use liable to execution for a judgment debt.

(70) Constable's reading (1495) on Prerogativa Regis, ed. Thorne, 53–4; Thomas Frowyk's reading (1495) ibid. 54 n. 135; reading in the Inner Temple (perhaps by John Port, 1507) BL MS. Hargrave 87, fo. 171 (pr. ibid.); notes by Serjeant Caryll (1514) 2 Caryll 531, pl. 373B; (1516) ibid. 669, pl. 486; John Spelman's reading (Gray's Inn, 1521) Gray's Inn MS. 25, fo. 305v.

(71) Re Stonor (1497) KB 27/938, Rex m. 4; Trin. 12 Hen. VII, fo. 19, pl. 1; Mich. 13 Hen. VII, fo. 11, pl. 12; tr. in 64 Selden Soc. 161; 1 Caryll 363, pl. 226; 2 Caryll 530, pl. 373A; Robert Constable's reading (Lincoln's Inn, 1495) on Prerogativa Regis, ed. Thorne, 20 n. 48; Gray's Inn reading (before 1514) Spelman 176, pl. 6. By 1514, the king seems to have won in practice: see 2 Caryll 531, pl. 373B. Priority between other lords was likewise governed by the common law: Earl of Rutland v. Constable (1529) Spelman 143.

(72) Abbot of Bury v. Bokenham (1536–7) CP 40/1088, m. 420; Dyer 7b; Benl. 16; 1 And. 2.

(73) This led to some curious puzzles: e.g. Spelman 146.

(74) Yorke 143, no. 147 (tr. ‘… and the reason why he shall be in ward is because such a will is void, because if he had not made such a will the son would have had the land anyway’).

(75) Constable's reading (1495) on Prerogativa Regis, ed. Thorne, 36; Abbot of Bury v. Bokenham (1536–7) Dyer 7b at 10b, per Willoughby sjt. See also n. 78, below.

(76) Constable's reading (1495) on Prerogativa Regis, ed. Thorne, 20–1; reading in the Inner Temple (perhaps by John Port, 1507) BL MS. Hargrave 87, fo. 174v (pr. in

Page 27 of 40

Prerogativa Regis, ed. Thorne, 21 n. 49); Spelman's reading (1521) GI MS. 25, fo. 303 (pr. ibid.). This was expressly provided for in the 1483 statute: RP, vi. 207b.

(77) Bean, Decline of Feudalism, 253–4.

(78) See Yorke 143, no. 147, per Hesketh and Spelman (tr. ‘if he makes his will that the feoffees should make an estate tail to the son … the body shall be in ward (for the fee simple) and not the land’).

(79) Re Lord Dacre (1535) below, 669.

(80) See above, 229. For the tightening of central control over inquisitions post mortem see D. Luckett, ‘Henry VII and the South-Western Escheators’ in The Reign of Henry VII: proceedings of the 1993 Harlaxton symposium, ed. B. Thompson (1995), 54–64.

(81) See J. A. Guy, 40 CLJ at 161. Fines could be imposed on tenants in chief for making feoffments to uses: e.g. CCR 1485–1500, p. 205, no. 700 (1494); ibid. 281, no. 949 (1497). That licences were essential is indicated by 14 Edw. IV, c. 1, and 7 Hen. VII, c. 2/3 (exempting tenants in chief from obtaining licences when going on war service).

(82) 1 Edw. III, stat. 2, c. 12. Constable held that the reasonable fine was one-third of the annual value of the land: reading (1495) on Prerogativa Regis, ed. Thorne, 155–6. Spelman held that it was one half: Yorke 176, no. 224. The fine for alienating without licence was a whole year's profits: ibid.; Anon. (1529) Pollard 269, no. 54.

(83) Bean, Decline of Feudalism, 198–200, 207–9.

(84) See further ibid. 255–6.

(85) Bean associates the campaign with the appointment of William Paulet as joint master of the wards in 1526: Decline of Feudalism, 237. Elton did not think Cromwell was involved until the 1530s: Reform and Renewal, 143. For Audley's possible involvement see below, 666.

(86) J. Guy, Christopher St German on Chancery and Statute (1985), 78, citing unsorted fragments of Supplementary Close Rolls.

(87) Order of 30 June 1526, cited ibid. 79. The lawyers present were Fyneux and Brudenell CJJ, Sir Thomas More (as chancellor of the duchy), and Sir Thomas Nevill (bencher of Gray's Inn).

(88) By the end of the 1520s these are enrolled in CP 40 on the attorney-general's rolls.

(89) BL Cotton MS. Titus B. IV, ff. 114–118 (LP, vi. 6044, at p. 2694). For the date, see Bean, Decline of Feudalism, 265–7. The text is printed in Holdsworth, HEL, iv. 574–7 (dated 1529). For comment, see Plucknett, ‘Some Proposed Legislation of Henry VIII’, 121–4; Holdsworth, HEL, iv. 449–61; E. W. Ives. ‘The Genesis of the Statute of Uses’

Page 28 of 40

(1967) 82 EHR 673 at 677–80; Bean, Decline of Feudalism, 258–70; S. E. Lehmberg, The Reformation Parliament 1529–36 (1970), 95–6.

(90) Holdsworth, HEL, iv. 450–1; Bean, Decline of Feudalism, 259–61. The provision is in cl. 1 of the bill (SP 1/56, fo. 36), pr. Holdsworth, HEL, iv. 572.

(91) Ives, ‘Genesis of the Statute of Uses’, 680, argues against a connection between the bill (which was abandoned) and the agreement with the peers. This view is followed by Lehmberg, Reformation Parliament, 94–5.

(92) Letter to the Emperor, LP, v. 805.

(93) Hall's Chronicle, 785.

(94) For the constitutional significance of this event see above, 66.

(95) The three extant texts are virtually identical: BL MS. Hargrave 87, ff. 427–457; CUL MS. Ee. 5. 19, ff. 1–17v; Univ. Illinois at Urbana-Champaign MS. 27, ff. 69–95v.

(96) Somerville, Duchy of Lancaster, 407. He was also a member of Princess Mary's Council in the Marches: above, 104 n. 31. He joined Wolsey's household in 1527.

(97) From the text in B. & M. 104 (and cf. 94 Selden Soc. 198), including the suggested emendation to remove an obscurity in the texts.

(98) Inner Temple moot (c.1533) Caryll (Jun.) 374–5, no. 13. Hare curiously omitted to mention the loss of feudal incidents.

(99) ‘Diffinitio usus’, Alnwick Castle MS. 475, fo. 186v.

(100) For this text, and speculations about its authorship, see above, 43–4.

(101) St German, Doctor and Student, ed. Plucknett and Barton, 222–5.

(102) Replication of a Serjeant, ed. Guy, 103–4 (sp. mod.).

(103) ibid. 105 (sp. mod.).

(104) Little Treatise concerning Writs of Subpoena, ed. Guy, 113–15. He particularly mentioned the trouble caused by uses in tail: ibid. 114.

(105) SP 1/101, fo. 282; pr. Holdsworth, HEL, iv. 577–80 (sp. mod. in quotations here). It is also endorsed ‘Inconveniences for sufferance of uses’.

(106) See below, 695–6.

(107) See HEL, iv. 579–80, nos. 32 (‘uses make double law’), 36 (‘uses subvert the laws and customs of this realm’). Double here means deceitful.

Page 29 of 40

(108) HEL, iv. 578, no. 15.

(109) CUL MS. Ee.5.19, ff. 11v‒13.

(110) Re Sir Christopher Wroughton, Hungerford v. Regem (1516) KB 27/1021, Rex m. 11.

(111) 2 Caryll 731, pl. 524. Thomas Stanley, first earl of Derby, died in 1504. For his will see PCC 19 Holgrave; Testamenta Vetusta, ed. N. H. Nicolas (1826), ii. 460.

(112) Re Ralph Longford (or Langforth) (1513–26) Spelman 212 (pleadings drawn on this assumption); C142/79/173 (inquisition); KB 27/1047, Rex m. 3 (traverse); E159/304, Hil. 17 Hen. VIII, mm. 23–25 (ousterlemain); S. M. Wright, The Derbyshire Gentry in the Fifteenth Century (1983), 41, 162 nn. 94–7, 242. See also Port 136, no. 102.

(113) Late examples are Basse's Case (Hil. 1535) CP 40/1084, m. 442 (issue on terms of will); Capell v. Pygot (Trin. 1535) CP 40/1086, m. 537 (sim.); reported in Pas. 27 Hen. VIII, fo. 11, pl. 28; Tylden v. Lylle (Mich. 1535) CP 40/1087, m. 601 (devise of use confessed by pleading; judgment for plaintiff after verdict). Note also Roberts v. Sadler (1527) CP 40/1054, m. 530 (issue concerning Lady Frowyk's will).

(114) Three such cases in 1525–7 produced demurrers, but not on the ground that wills were collusive: Bele v. Benet (1527) CP40/1054, m. 316 (judgment); probably Spelman 228, pl. 3; Archbishop of Canterbury v. Wyatt (1524–5) CP40/1044, m. 419, and Archbishop of Canterbury v. Morley (1527) CP 40/1054, m. 615 (demurrers concerning will of Robert Morley; no judgments).

(115) Cf. a case of 1534 in which Cromwell became involved in the selection of an inquisition post mortem to prevent the king's rights being ‘cloaked’: LP, vii.383; Holdsworth, HEL, iv.454n.4.

(116) Cromwell's remembrances, LP, vi. 1382; Bean, Decline of Feudalism, 276–7.

(117) Probably the well-established attorney practising in Sussex since the 1490s, who died in 1529. His son, the barrister Thomas Polsted (A.-G. of the Wards 1540–1), was a protégé of Cromwell: HPHC 1509–58, iii.126–8.

(118) Re Lord Dacre of the South (1533–5) C142/80/24–5 (inquisition); C43/2/32 (traverse); Pas. 27 Hen. VIII, fo. 7, pl. 22 (arguments in the Exchequer Chamber), part tr. B. & M. 105–10; Spelman 228 (judicial conferences); Bean, Decline of Feudalism, 275– 83.

(119) Pas. 27 Hen. VIII, fo. 7, pl. 22. The year book does not state the outcome, and misled Holdsworth, who—mistakenly assuming that Serjeant Mountagu was already CJKB —thought the feoffees had won: HEL, iv. 447–8.

(120) Pas. 27 Hen. VIII, fo. 7, pl. 22, at fo. 9, per Yorke sjt.

Page 30 of 40

(121) ibid., at fo. 10.

(122) Spelman 228–30; B. & M. 110–11.

(123) By this stage the king did have a majority, because another of the ‘traditionalists’ was absent on grounds of illness. See also above, 418.

(124) Bean's statement to the contrary (Decline of English Feudalism, 284) seems to rest on a misapprehension that the finding of fraud was necessary to the final decision.

(125) F. W. Maitland, Equity (1936), 34. Maitland's point was that the preamble could not be taken at face value.

(126) BL Cotton MS. Titus B.I, fo. 159v (LP, ix. 725) (sp. mod.). For the date see Ives, ‘Genesis of the Statutes of Uses’, 692.

(127) See the draft bill pr. Holdsworth, HEL, iv. 580–1, which also deals with a number of other points. For the three successive drafts see SP 1/101, ff. 252–291; LP, x. 246; Lehmberg, Reformation Parliament, 236–7.

(128) See LP, ix. 725(ii); Elton, Reform and Renewal, 143 (where the context is misunderstood). Lehmberg says the final draft of the statute bears some stylistic improvements in Cromwell's hand. See also the earlier notes in LP, iv. 6043(3); v. 394; vi. 120(1).

(129) In Tylden v. Lylle (Mich. 1535) CP 40/1087, m. 601, after the decision in Lord Dacre's Case, a devise of a use was pleaded by the defendant and confessed by the replication.

(130) 27 Hen. VIII, c. 10 (sp. mod.); B. & M. 112.

(131) Holdsworth, HEL, iv. 450–61; Plucknett, CHCL (5th edn), 583–7. Neither was aware of Spelman's report.

(132) For the Statute of Wills 1540, which reverted to the one-third principle, see below, 679.

(133) For the Court of Wards and Liveries (1540) see above, 229. The feudal revenue was further augmented by the conversion of monastic land to knight-service, but this was effective chiefly because of the Statute of Uses.

(134) Including corporations.

(135) Statute of Uses 1536, s. 1; B. & M. 113.

(136) Anon. (1550) Wm Yelv. 351, no. 79, at 352, per Mountagu CJ.

(137) Dyer 23, §148 (1536); Dyer 32, §3 (1537). Cf. Anon. (c.1540/8) Wm Yelv. 358, no.

Page 31 of 40

96, per Shelley J. (‘by the vesting and execution of the possession where the use was, the use is gone and confounded’).

(138) The first reader on the statute, John Boys of Gray's Inn (1536), was said to have been in ‘trouble’ for interpreting the statute as an abolition of uses for the future: The Learned Reading of Francis Bacon on the Statute of Uses (1642), 34; Baker, Readers and Readings, 36.

(139) Reading in the Middle Temple (1547) BL MS Lansdowne 1133, fo. 4 (‘lestatute anno 27 H. 8. que extinct uses’).

(140) e.g. Baker v. Conyngesby (1555) CP 40/1164, m. 921 (‘statutum de usibus in possessionem transfer-endis’); Padyham v. Gerves (1555) ibid., m. 937 (‘statutum de usibus in possessionem transmutandis’); Chamberleyn v. Darry (1556) CP40/1168, m. 1460; Lady Mountjoy v. Cokysworthye (1556) CP40/1169, m. 743. Cf. Anon. (c.1540/8) Wm Yelv. 358, no. 96, per Shelley J. (‘in the place where the use was there shall be the possession’).

(141) N. G. Jones, ‘Trusts in England after the Statute of Uses: a view from the 16th century’, in Itinera Fiduciae, ed. R. Helmholz and R. Zimmermann (19 CSC; 1998), 173– 205, at 191 n. 115 (citing cases from 1566 to 1584).

(142) Anon. (1550) Wm Yelv. 351, no. 79, per Mountagu CJ (‘by the operation of the statute the feoffee's possession was hoc instante transposed and conveyed to the use’). Cf. Re Townsend (1554) Plowd. 111 at 112 (tr. ‘the statute gives the feoffees' possession to cestuy que use according to the estate, quality, and form of the use’).

(143) Contemporaries preferred to speak of executing the possession: Anon. (1542) 121 Selden Soc. 448, no. 26, per Portman sjt (‘the statute of 27 [Hen. VIII] which executes possession to the use’); Wimbish v. Tailbois (1550) Plowd. 38v at 46v, per Whiddon sjt (tr. ‘when the statute of 27 Hen. VIII executes the possession …’).

(144) The ratification was effective as a new will: Putbury v. Trevilian (1557) Dyer 142b at 143b (testator made will in 1531 and died in 1545).

(145) The resulting use was accepted Chancery doctrine by the beginning of our period. Some lawyers nevertheless thought it repugnant to the express words of grant: see John Hynde's reading (Gray's Inn, 1518) HLS MS. 125, case no. 170, per Broke sjt and Fyneux CJ; Anon. (1542) 121 Selden Soc. 448, no. 26, per Baldwin CJ (referring to the position before1536); pr. Baker, The Law's Two Bodies, 104, 107.

(146) Cf. Catlyn's reading (Middle Temple, 1547) BL MS. Lansdowne 1133, fo. 4 (tr. ‘if he makes a feoffment to his use, the possession reverts [reverse] immediately in him’).

(147) It was held sufficient before the statute to limit the use expressly to the feoffee: Anon. (1535) Benl. 16.

Page 32 of 40

(148) The written contract of sale commonly contained, besides the covenant to make an estate (i.e. convey the title), a covenant to make such further assurance as counsel should advise: e.g. the precedent of 1499 in Madox, Formulare Anglicanum, 287–8.

(149) For the haste see Elton, Reform and Renewal, 146–7 (where the purpose is misunderstood). The draftsman may have been Robert Urmeston, clerk of the House of Commons, and a barrister of Gray's Inn.

(150) Statute of Enrolments 1536, 27 Hen. VIII, c. 16; B. & M. 115. See J. M. Kaye, ‘A Note on the Statute of Enrolments 1536’ (1988) 104 LQR 617–34. For the first draft see Lehmberg, Reformation Parliament, 238.

(151) For the manner of pleading title through the statute see Omer v. Lord Cromwell (1539) CP 40/1102, m. 357 (defendant in replevin pleads bargain and sale enrolled in Chancery according to the form of the statute, as a result of which he entered and was seised).

(152) As to these see Elton, Reform and Renewal, 144–6; Lehmberg, Reformation Parliament, 238. For the proposed registration of uses see above, 665.

(153) e.g. in Mich. 1538 the clerk of the enrolments in the Common Pleas had over 30 membranes of enrolled deeds, mostly bargains and sales: CP 40/1099, sub nom. Hord.

(154) It was important to use a phrase such as ‘whenever and as often as he shall be requested’, or else the covenant would be executed by the first conveyance made: Caryll (Jun.) 376, no. 15 (note, c.1530).

(155) Anon. (1552) Benl. 36; 3 Leon. 1, pl. 2. Cf. Anon. (c.1538) Wm Yelv. 355, no. 90 (enrolment void unless both parties present, but in that case each party can require enrolment under the original covenants).

(156) Hil. 21 Hen. VII, fo. 18, pl. 30; Anon. (1530) Yorke 146, no. 154; Anon. (1532/3) Pollard 276, no. 72; Lord Burgh's Case (1543) Dyer 54; Bainton v. Reginam (1553) Dyer 96; Constable's Case (1554) Dyer 101b; Lady Wingfield v. Littleton (1557) Dyer 162. Cf. Anon. (1550) BL MS. Hargrave 4, fo. 110 (effect of covenant to make a feoffment to uses, where covenantor dies before performance).

(157) Drax's Case (c.1501/6) 2 Caryll 501; Note (c.1520/30) Yorke 135, no. 124; Anon. (c.1525/35) Caryll (Jun.) 401, no. 74 (conditional covenant changes use when condition performed); Lord Burgh's Case (1543) Dyer 55a. Cf. Anon. (1502) 2 Caryll 395, where Frowyk sjt argued that a covenant could not make a use. As to whether a past or continuing consideration would suffice, see Anon. (1544) Brooke Abr., Feffements al Uses, pl.54.

(158) Mantell's Case (1542) Brooke Abr., Feffements al Uses, pl. 16, ad finem; BL MS. Harley 1691, fo. 91v, per Broke CJ (cited, 1554); followed in Anon. (Serjeants' Inn, 1553) Dalison's reports, BL MS. Harley5141, fo. 15; Anon. (1556) Brooke Abr., Feffements al

Page 33 of 40

Uses, pl. 59.

(159) See further below, 688.

(160) It was, however, doubtful whether a jointure in use ‘in satisfaction of all dower’ could operate as legal recompense: Anon. (1533/4) Caryll (Jun.) 371, no. 10, at 372, per Fitzherbert J.

(161) See below, 689.

(162) This reproduced the previous law: Anon. (1533/4) Caryll (Jun.) 371, no. 10.

(163) In The Duchess of Somerset's Case (1554) Dyer 97b, a jointure in tail was held to bar dower, though not within the words of the statute. See also Anon. (1551) BL MS. Hargrave 4, fo. 117v, where Hales J. agreed with counsel that the wording of the statute was obscure. Legal ingenuity would in due course uncover situations in which a widow might claim both jointure and dower, or neither: John Brograve's reading on jointures (Gray's Inn, 1576), pr. in Three Learned Readings (1648), at 83–6.

(164) e.g. Hanmer v. Hanmer (1546) CP 40/1129, m. 456 (life estate ‘in name of all dower and jointure’ pleaded in bar; demurrer); Elryngton v. Rowe (1556) CP 40/1165, m. 425 (jointure of copyhold, granted by surrender and admittance, pleaded in bar; demurrer).

(165) Sometimes the feoffees would be directed to make a conveyance, but often the entail was left in use. John Norwode in 1493 directed his feoffees that if their numbers fell to three or four they were to take more in, and never to make an estate to the heirs: CIPM Hen. VII, i. 518, no. 1169.

(166) See Milsom, HFCL, 226–7.

(167) Baker, IELH (4th edn), 289. Examples of powers in settlements: CIPM Hen. VII, i. 439, no. 1025 (1482; life tenant given power of sale if heir disobeyed will); iii. 92, no. 172 (1501; similar); BL Add. Ch. 59344 (1501; lands to be divided at discretion of feoffees, or of others chosen by them); CIPM Hen. VII, ii. 397, no. 628 (1503; power for settlor to nominate ultimate remainderman in fee simple); Dyer 136, §17 (1505; power to appoint remainders on failure of issue); CCR 1500–9, no. 509 (1505; power for tenant in tail to assign jointure to future wife). The common law recognized powers given to executors (who were often given a power of sale) and powers of attorney (e.g. to deliver to seisin). Some members of Gray's Inn around 1510 even held good a remainder to such person as the tenant for life would assign: Trinity, fo. 89.

(168) e.g. CCR 1485–1500, pp. 357–60 (1499; to use of settlor in tail until son marries); Madox, Formulare Anglicanum, 413 (1513; fee to shift when first feoffee has received £24.10 s.).

(169) Executors were often directed to raise money from the land for a fixed term, in order to carry out bequests, before they transferred the fee. See also CIPM Hen. VII, ii.

Page 34 of 40

1, no. 1 (1496; to use of wife for life, remainder for 21 years after testator's death, if wife dies within that term, for benefit of younger children, then to convey to eldest son in tail male).

(170) Below, 699.

(171) The execution of uses in tail was pleaded in Robertys v. Lynke (1538) CP 40/1099, m. 644; Smalham v. Hawke (1539) CP40/1101, m. 519 (plaintiff replies that it was barred by recovery, and juryso finds); Reyner v. Rayner (1548) CP 40/1137, m. 452 (plaintiff replies that feoffees had notice of prior use); Garneys v. Browne (1548) Brooke Abr., Formedon, pl. 49. For uses in tail see further below, 695–6.

(172) Moot in Gray's Inn (1519) BL MS. Harley 5103, fo. 82v; HLS MS. 125, no. 104; Bodl. Lib. MS. Rawl. C.705, fo. 10. Note also Bele v. Benet (1527) below, 680 (sim. settlement in will). The same conclusion seems to have been made by the escheators in CIPM Hen. VII, i. 380, no. 888; ii. 355, no. 562 (will of Elizabeth Russell, 1481).

(173) Anon. (1540) Brooke Abr., Conscience, pl. 25, per Lord Audley C. (the words ‘for ever’ may create a fee simple in use, without the words ‘his heirs’). Cf. (before the statute) Anon. (1532) Benl. 11 (devise ‘to A. to do his will therewith’ creates a fee simple).

(174) Anon. (1538/9) Brooke Abr., Feffements al Uses, pl. 50 (tr. B. & M. 120); Anon. (1554) Dyer 99b, §64; 110 Selden Soc. 400, pl. 2. There is here no mention of the statute.

(175) Anon. (1546) Brooke Abr., Assuraunces, pl. 1; Anon. (1552) Brooke Abr., Feffements al Uses, pl. 30 (tr. B. & M. 134). In both cases, the use was held to be executed by the statute.

(176) The Chancery took the same view, in cases on the legal title in the 1540s and 1550s: see Henderson, ‘Legal Rights to Land in the Early Chancery’, 97 at 110–17. See also below, 706.

(177) e.g. The Pudsay Deeds, ed. R. P. Littledale (56 Yorks. Arch. Soc. Rec. Ser.; 1916), 269, no. 290 (1542; power reserved for settlor, as tenant for life, to give lands to younger sons). See also below, 680.

(178) Statute of Wills 1540, 32 Hen. VIII, c. 1; B. & M. 115. Cromwell was executed in 1540, but the bill may originally have been his: Elton, Reform and Renewal, 143–4. Cf. below, n. 197.

(179) Bean, Decline of English Feudalism, 301, called it ‘a compromise which marked a real and substantial defeat’.

(180) See T. E. Scrutton, Land in Fetters (1886), 94; Holdsworth, HEL, iv. 465; Plucknett, CHCL (5th edn), 587; Simpson, History of the Land Law, 191.

(181) M. H. Dodds and R. Dodds, The Pilgrimage of Grace (1915), i. 266. Lord de la

Page 35 of 40

Warr said it was ‘a very sore act’, and he ‘grudged much at it’: LP, xiii. II. 822.

(182) M. Bateson, ‘Aske's Examination’ (1890) 5 EHR 550–73, at 563; LP, xii. I. 406; D. S. Berkowitz, Humanist Scholarship and Public Order (1984), 228–9, 232–3.

(183) Dodds and Dodds, Pilgrimage of Grace, i. 137. Cf. LP, xi. 780, where he retorted that ‘the rude commons of one shire’ ought not to dispute a piece of law reform approved by Parliament.

(184) Such an arrangement was already common in respect of jointure land, settled on the husband and wife for lives with remainder to the heir, but this was not necessarily a true remainder (see above, 678 n. 172).

(185) Bateson, ‘Aske's Examination’, 565; LP, xii. I. 901. For the relevant interrogatory, see LP, xii. I. 945. Aske doubtless assumed that a remainder to an heir in the singular, or by name, was not a limitation but the designation of a person intended to take by purchase.

(186) The word ‘remainder’ itself was seldom applied to uses, the usual formula being ‘to the use of A for life, and after his death to the use of …’.

(187) Cf. Bele v. Benet (1527) CP 40/1054, m. 316; as reported in Spelman 228, pl. 3 (‘to the use and intent to perform his last will as follows, namely, to his own use for term of his life, and he willed that after his death the tenement should remain to B. his son …’); Trin. 19 Hen. VIII, fo. 11, pl. 5, and fo. 13, pl. 11; 120 Selden Soc. 58; Wm Yelv. 365, no. 105. However, the record shows that the ‘will’ was expressed in the deed of feoffment itself (tr. ‘to the use, intention and performance of the last will of the same John Benet … namely, to the use of the aforesaid John Benet for term of his life, and after his decease he willed by the same charter that’ the feoffees should stand seised to the use of the defendant in tail, with remainder over). A majority of judges held that the defendant—the testator's son—took by purchase and not by descent.

(188) Reading in Gray's Inn (1530) BL MS. Harley 5103, ff. 24–25; part tr. in The Law's Two Bodies, 142–3. It was argued that the remainder was too uncertain, but the reader held it good.

(189) LP, xv. 439.

(190) LP, xv. 1028 (a young lawyer assures Cromwell that he has not ‘devised any estates to bring a term of years to the owner of the inheritance with a remainder over to declare a will’). It is ambiguous whether the power to declare the will related to the term or the remainder. Holdsworth (HEL, iv. 465) assumed it was the term; but cf. Bean, Decline of English Feudalism, 297. The similarity to Shelton's arrangement suggests that Holdsworth was right.

(191) Lost register of the Star Chamber, 23 Feb. 1540, pr. 94 Selden Soc. 351–2; Hall's Chronicle, 837; repr. from Hall, Henry VIII, ii. 303 in Bean, Decline of English Feudalism,

Page 36 of 40

296; C. Wriothesley, A Chronicle of England, ed. W. D. Hamilton (1877), ii. 116. Cf. Spelman 183, which (contrary to what is stated there andin 94 Selden Soc. 203) relates to Serjeant Browne's earlier dismissal in 1532.

(192) The nature of Shelton's settlements is set out in the statute 33 Hen. VIII, c. 26, which annulled them; Bean, Decline of English Feudalism, 296–7. Shelton had died on 21 Dec. 1539, and Hall referred to a fraudulent will; the will is filed in PCC (PROB 10/8).

(193) The decree recited that Humphrey Browne was a king's serjeant, Sir Nicholas Hare a privy councillor, and William Conyngesby attorney of the duchy. The fourth prisoner (one ‘Grey’) was doubtless Edmund de Grey, barrister of Gray's Inn, steward of the sheriffs' court, Norwich.

(194) The prisoners were released in March, but only on giving heavy sureties.

(195) 94 Selden Soc. 351; above, 472.

(196) HLJ, i. 154–7.

(197) Cf. Bean, Decline of English Feudalism, 297–301, who argues convincingly against the statute being a response to the Pilgrimage of Grace, and against any connection with the statute erecting the Court of Wards, but suggests some unspecified connection with Cromwell's fall in June 1540.

(198) It had always been allowed by local custom, such as the customs obtaining in most cities. The statute did not validate other wills (i.e. those made between 1536 and 1540) retrospectively: Putbury v. Trevilian (1555) Dyer 142.

(199) On this provision see Anon. (1549) Brooke Abr., Testament, pl. 24. Its interpretation was later narrowed by the courts: J. L. Barton, 82 LQR at 222–3.

(200) Lady Long's Case (c.1546/50) Wm Yelv. 344, no. 68.

(201) 34 & 35 Hen. VIII, c. 5; B. & M. 118–20. For problems of interpretation see M. C. Mirow, ‘Readings on Wills in the Inns of Court, 1552–1631’ (Cambridge Ph.D. diss., 1993); P. Vines, ‘Land and Royal Revenue: the Statute for the Explanation of the Statute of Wills, 1542–1543’ (1997) 3 Australian Jnl of Legal History 113–30.

(202) For incapacity see M. C. Mirow, ‘Monks and Married Women’ (1997) 65 RDH 19– 39.

(203) This provision was held to apply to wills made since 1540: Hyde v. Umpton (1556) Dyer 150b; Brooke Abr., Testament et Volunt, pl. 26.

(204) This was confirmed by Anon. (1547) Brooke Abr., Testament et Volunt, pl. 24. Cf. Lady Long's Case (c.1546/50) Wm Yelv. 344.

(205) This was not meant as innovation, since the pre-1536 law was that wills should be

Page 37 of 40

(206) See Three Learned Readings (1648), 5 (term of years devised to a man and his heirs, passes to the heir), 7 (springing devise). See also Warren v. Lee (1555–9) KB 27/1174, m. 115; Dyer 51 (the words ‘free will and pleasure’ permit a devise upon condition).

(207) Anon. (1550) BL MS. Hargrave 4, ff. 105v‒106.

(208) The question is complicated by the fact that, before and after the statute, the Chancery was often concerned with legal title: see above, 189.

(209) See Gray's Inn reading (c.1536) BL MS. Hargrave 253, fo. 5v, per Fitzherbert J. A charitable use, created by will, is pleaded (without mention of the statute) in Cawston v. Mounford (1538) CP 40/1097, m. 506.

(210) Smalham v. Hawke (1539) CP 40/1101, m. 519 (feoffees to use of will; testator wills that executors should take profits for seven years to pay debts and legacies; feoffees enter after the Statute of Uses claiming the profits to this use: it is notable that the statute is pleaded, even though it did not execute any use).

(211) Gray's Inn reading (c.1536) BL MS. Hargrave 253, fo. 5v, per Fitzherbert J. (feoffees directed by will to find younger son at Oxford, which they cannot do without taking the profits); Anon. (1544) Brooke Abr., Feffements al Uses, pl. 52.

(212) Anon. (1557/8) BL MS. Hargrave 4, fo. 129 (feoffment in trust that if the feoffor did not pay £20 by a certain day the feoffees would sell the land and use the proceeds to pay the money).

(213) For a list of bills in Chancery for the enforcement of charities between the 1530s and the 1550s, see G. H. Jones, History of the Law of Charity 1532–1827 (1969), 184–9. The disputes mostly arose from wills, the commonest object being a chantry.

(214) Brooke v. Payntour (1526) CP 40/1050, m. 415 (undetermined demurrer); moot in Gray's Inn (1530s) Bodl. Lib. MS. Rawlinson C. 705, fo. 126 (tr. ‘Of lands held by copy of court roll one may not be seised to the use of another …’).

(215) Moots in Gray's Inn (c.1520) BL MS. Harley 5103, fo. 82, per Spelman, and fo. 85, per Hendley. The reason given in both cases is that a use is real, whereas a lease is but a chattel; but there are contrary arguments (and see Spelman at fo. 33). Trusts of chattels personal were common in practice: see e.g. R. H. Helmholz, ‘Trusts in the English Ecclesiastical Courts 1300–1640’, in Itinera Fiduciae, ed. Helmholz and Zimmermann (1998) 153 at 160–5.

(216) Simpson, History of the Land Law, 194; Jones, ‘Trusts in England after the Statute of Uses’, 178–9, 180–1. Cf. Anon. (1556) Brooke Abr., Feffements al Uses, pl. 60 (tr. ‘A

Page 38 of 40

(217) See Byllyngesley v. Barons (1548/9) C78/5/24 (decree in favour of beneficiary); cited in Jones, ‘Trusts in England after the Statute of Uses’, 180 (and see 184).

(218) For cases in 1558–9, see Jones, ‘Trusts in England after the Statute of Uses’, 184 n. 73, and 185 n. 77. There are less clear cases in the later 1540s: ibid. 181 n. 57.

(219) An example is BL Wolley Ch. XII. 119 (1553), a lease of a manor for 90 years in trust for the lessor.

(220) See Holdsworth, HEL, iv. 471–3.

(221) See N. G. Jones, ‘The Influence of Revenue Considerations upon the Remedial Practice of Chancery in Trust Cases, 1536–1660’, in Communities and Courts in Britain, 1150–1900, ed. C. Brooks and M. Lobban (1997), 99–113.

(222) In later terminology, the word ‘trust’ was used to distinguish an interest which was not executed by the statute and therefore subsisted in equity, whereas a ‘use’ was executed by the statute. This verbal distinction was not clearly in place in our period.

(223) See Anon. (1467) Trin. 7 Edw. IV, fo. 14, pl. 8; B. & M. 98; Moots, 298 (Inner Temple, 1496); John Petit's reading (Gray's Inn, 1518) BL MS. Harley 5103, fo. 18. There are some examples in CCR 1485–1500, pp. 83 (no. 304), 88 (no. 322), 225–6 (no. 770), 269 (no. 915), and 343 (no. 1157).

(224) The statute expressly mentions a feoffment ‘to the use of the wife’ as a species of jointure. The conveyancing practice continued: e.g. BL Add. Ch. 39244 (feoffment ‘ad solum opus et usum’ of feoffor's wife for life, and then to the feoffor and his heirs for ever, 1560).

(225) Anne, Lady Bourchier v. Walgrave (1561), discussed in Jones, ‘Trusts in England after the Statute of Uses’, 186–9.

(226) For an example of 1558 see Jones, ‘Trusts in England after the Statute of Uses’, 184 n. 73. For a possible earlier example (c.1536/9) see LP, xv. 1028, para. 1.

(227) Cf. CIPM Hen. VII, i. 453, no. 1055 (feoffment to the use of A and his heirs to the use of A's last will): this looks like a use upon a use, but ‘and his heirs’ were words of limitation, merely indicating that A could devise the fee simple and that if A made no will the use would be to his heirs. The usual form was ‘to the use of A and his heirs to perform A's last will’.

(228) e.g. uses implied from the consideration in a bargain and sale: Anon. (1532) Brooke Abr., Feffements al Uses, pl.40; Anon. (1544) ibid., pl.54.

(229) St German's Doctor and Student, ed. Plucknett and Barton, 220–1x.

Page 39 of 40

(230) Jane Tyrrel's Case (1557) Dyer 155a; 1 And. 37; Benl. 61. See N. G. Jones, ‘Tyrrel's Case (1557) and the Use upon a Use’ (1993) 14 JLH 75–93.

(231) Cf. Milborn v. Ferrers (1555) Dyer 114b, where there is an express use upon an express use, but no decision. For this case see Jones, ‘Tyrrel's Case’, 78.

(232) Jones, ‘Tyrrel's Case’, 92 n. 14 (citing inquisitions post mortem in Bucks. and Oxon.).

(233) This was the older view: Plucknett, CHCL (5th edn), 600; Simpson, History of the Land Law, 202.

(234) The statute may have been seen as making the bargain and sale equivalent to a feoffment, the implied use being somehow spent upon enrolment. See Jones, ‘Tyrrel's Case’.

(235) Note Dyer CJ's opinion that it might not apply to the use implied upon a render in a final concord: Anon. (1563) Moo. K.B. 45, pl. 138; B. & M. 123.

(236) The best-known case was that of Katharine Bertie, dowager duchess of Suffolk, in which the Chancery made an important general pronouncement in 1560: Baker, ‘The Use upon a Use in Equity, 1558–1625’ (1977) 93 LQR 33–8; Bartie v. Herenden (1560) B. & M. 121. But there were several similar cases: Jones, ‘Trusts in England after the Statute of Uses’, 185.

Access brought to you by: University of Cambridge

Page 40 of 40