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Oxford Scholarship Online 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 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 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 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 chiefly as a result of legislation which compelled the judges to notice its existence and determine its characteristics.18 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 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com).
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