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Trusts for Secrecy: The Case of John Dudley, Duke of Northumberland
Published online by Cambridge University Press: 16 January 2009
Extract
It is the purpose of this article to draw attention to the case of Dudley v. Ellis (1559), * discovered in the record of the Court of Chancery while searching for trust cases in the years after the Statute of Uses. Together with the now famous case of Bertie v. Herenden (1560),1Dudley v. Ellis provides a vivid illustration of the role which trusts might play in times of trouble.
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References
1 Public Record Office: Chancery and Supreme Court of Judicature, Chancery Division: Six Clerks' Office and successors: Decree Rolls (C 78): C 78/17/10. Unless otherwise indicated, all manuscripts are in the Public Record Office and all quotations are taken from those depositions of witnesses in Dudley v. Ellis which were found proved by the court: Chancery Town Depositions (C 24): C 24/47 part 1. All dates are given in new style. I am grateful to Mr. M.J. Prichard for his comments upon an earlier version of this article.
2. See Baker, J.H. “The Use upon a Use in Equity 1558–1625” (1977) 93 L.Q.R. 33.Google Scholar
3 Chudleigh's Case (1594) (also known as Dillon v. Freine), 1 Rep. 113b at 121b.
4 27 Hen. VIII, c. 10.
5 Henry Sherfield, reading on the Statute of Wills, 32 Hen. VIII, c. 1, Lincoln's Inn 1623, printed in Baker, J.H. and Milsom, S.F.C.Sources of English Legal History (London 1986), p. 126.Google Scholar
6 Baker, “The Use upon a Use”. Serjeant Barham's report is printed in Baker and Milsom, Sources, p. 121.
7 For a more detailed treatment of Bertie v. Herenden see Jones, N.G., Trusts: Practice and Doctrine, 1536–1660 (unpublished University of Cambridge PhD dissertation, 1994), pp. 121–129.Google Scholar
8 Dyer 155; N.G. Jones, “Tyrrel's Case (1557) and the Use upon a Use” (1993) 14 Journal of Legal History 75.
9 Calendar of the Patent Rolls, Edward VI, vol. 4 (London 1926), p. 368Google Scholar.
10 Conveyance of 4 February 1553 recited in letters patent of 30 January 1557: Calendar of the Patent Rolls, Philip and Mary, vol. 3 (London 1938, p. 250Google Scholar.
11 See, for example, Wilson, D.Sweet Robin (London 1981), p. 44Google Scholar.
12 Blornefield, F.An Essay Towards a Topographical History of the County of Norfolk (Lynn 1739–1775), vol. 5, pp. 1517 and 1520;Google ScholarCalendar of the Patent Rolls. Elizabeth I. vol. 3 (London 1960), pp. 336–337Google Scholar.
13 Sackville was a supporter of Northumberland, taking custody of the Earl of Arundel's heir upon the arrest of Somerset and Arundel for treason in 1551: Bindoff, S.T. (ed.), History of Parliament, The House of Commons 1509–1558. Members N-Z (London 1982, pp. 246–247Google Scholar.
14 The post-dating of Sackville's meeting with Northumberland by one year in my dissertation was based upon the assumption that the reference to Somerset's attainder was to its confirmation by Act of Parliament in April 1552: Jones, Trusts, pp. 269–273.Google Scholar For further consideration of the question of dates see n. 17 below.
15 Lease recited in Augmentation Office Miscellaneous Books (E 315): E 315/223 f 285v.
16 E 315/223 f 285v; Augmentation Office Particulars for Leases (E 310): E 310/3/19/9. It has been said that Somerset's attainder for felony and not for treason meant that his lands were not affected: Dictionary of National Biography; Pollard, A.F.England Under Protector Somerset (London 1900), p. 304 n. 2.Google Scholar In the case of felony chattels were forfeit to the Crown, and land to the immediate lord. The interest in question here was a term of years, which as a chattel real fell into the hands of the Crown upon conviction for felony.
17 In his deposition Sackville refers to Northumberland as being still Earl of Warwick when their meeting took place. This suggests a date for the meeting before 11 Oct. 1551, when Warwick became Northumberland by letters patent. But Sackville also deposed that the meeting occurred “aboute Crystmas next after the Atteyndur of the late Duke of Somerset”. Somerset was tried in early December 1551. Before his trial there could have been no lease in the hands of the Crown to be granted to Northumberland, and the lease which was granted as a result of the meeting was dated 26 Jan. 1552. So the Christmas in question must have been that of 1551, and we are driven to the conclusion that after some eight years Sackville mistook the chronology.
18 Ellis and Pleasance his wife had taken a grant of former chantry land with Northumberland and Sir George Blunt in 1548: Calendar of the Patent Rolls, Edward VI, vol. 2 (London 1924), p. 31Google Scholar.
19 The estates of Coxford Priory, a former Augustinian house, were settled upon Robert and Amy at their marriage: Wilson, Sweet Robin, p. 44.
20 Recited in C 78/17/10.
21 Above, p. 546, nn. 9 and 10.
22 C 78/17/10.
23 Chancery Proceedings, Series II (C 3): 3/81/32.
24 Beer, B.L.Northumberland, the political career of John Dudley, Earl of Warwick and Duke of Northumberland (1973, p. 136.Google Scholar
25 Calendar of Stale Papers Spanish, vol. 10 (London 1914), pp. 384–386: 18 Oct. 1551.Google Scholar
26 Jordan, W.K. (ed.), The Chronicle and Political Papers of King Edward VI (London 1966 pp. 99–100.Google Scholar
27 Manuscript emendation to 2 Leon. 14, pi. 25, printed in Baker and Milsom, Sources, p. 139.
28 Fisher, H.A.L. (ed.), The Collected Papers of Frederic William Maitland, vol. 3 (Cambridge 1911, p. 353Google Scholar
29 Blomefield, F.An Essay Towards a Topographical History of the County of Norfolk, (Lynn 1739–75), vol. 5, pp. 1517–1520Google Scholar.
30 In the period 1536–1600 there are a little over 1000 trust cases in the Chancery record.
31 Baker, “The Use upon a Use”.