WHY DID KING HENRY VIII TRY TO KILL MEDIEVAL ESTATE PLANNING?
A modern trust is more or less an imaginary person with a made-up name of your choice. Firstly, you legally transfer your property over to the ownership of this imaginary person. Then you find a real person that you are pretty sure will not steal from you and you ask them to take care of your new imaginary friend (who now owns your real property). If that sounds a little sketchy, your medieval English acquaintances would agree with you. In medieval times, it was truly a “trust” in the purest sense of the word because you were trusting someone with your most precious stuff and hoping they follow your wishes. If you have ever dealt with people, that is a lot of trust. In fact, if you wanted a trust arrangement any time before the 15th century in England, and your special trusted someone decided they were not going to follow what you agreed on, well that was too bad and now they own all of your property. It does not sound like something any self-respecting medieval landowner would want to actually do—and yet they frequently did!
Scholars debate the true origins of the English trust. Some say it was the Roman fidei-commissum, some argue for the German salman or treuhand, and some suggest that the modern trust had origins in the Islamic waqf. At any rate, some of the earliest trust-like arrangements in England were used to skirt religious vows of poverty. Franciscan friars settling down in England in the mid-13th century could not technically own anything; their religion did not allow them to accept gifts of property or land. Not to worry! They found a way around it. You see, if a piece of property was intended for the friars’ use, the ownership could be transferred to a trusted person to hold it for the friars’ benefit. This was usually accomplished by recording the details of the agreement in a signed charter (document).
It should be clarified that it was not called a “trust” then—much as that would have made sense. Legal and financial matters bring out all kinds of detailed (some might say “fussy”) terminology. This kind of ownership arrangement was called a “use,” reported by some scholars as being a version of the Latin word “opus,” meaning “benefit.” This was also called a “feoffment to uses.” An owner of property would “enfeoff” their property to the “feoffee”—what we now call the “trustee.” “Cestui que use,” is a French term for the beneficiary of this kind of arrangement.
As we were saying, feoffment to uses were very risky at first because, even though there was this agreement about who was going to benefit, uses weren’t technically protected by any specific law yet. So, if a fraudulent feoffee decided to deny the cestui que use (the beneficiary of the use) their agreed rights to the land, there was not much to be done. To be fair, in the context of the times, this may have worked out in tight-knit communities where the threat of public shame would be enough to ensure that a promise was kept or that the church’s interests were not betrayed. Also, some historians think that ecclesiastical courts often had a hand in enforcing uses because part of their jurisdiction was to hear charges relating to “breaches of oaths.” But there was really no cause of action that you could bring in the English Common Law courts. Basically, you could not sue a misbehaving feoffee in the regular court system.
Matters were improved in the early 15th century, when the English Court of Chancery gradually started enforcing uses. The English Chancery Court was a “court of equity”—equity being fairness—also known as the “keeper of the king’s conscience.” This special court provided an alternate legal venue with more lenient rules than the harsh common law courts. The protection of the Chancery very quickly increased the popularity of feoffment of uses which were in fact very useful.
All sorts of benefits could be had in a use. At the time, inheritance rights were fixed on the eldest son of the family, no matter what. The Common Law was very strict on this point. A lot of books used this as a major plot point too. However, in the face of this strict old-fashioned idea of inheritance, if you could enfeoff your property, you could name any beneficiaries you wanted. So, that’s what everyone did. By 1502, Chief Justice of the Common Pleas, Thomas Frowyk, remarked that “the greater part of the land of England was in feoffments upon confidence.”[1]
Uses were a major property tax loophole, and this is what got them into trouble with the notoriously ruthless King Henry VIII. As most political matters are, it was all about money. In previous centuries, the practice of feudalism meant that all land was owned by the king, queen or other members of the nobility. The rest of the populace only rented the land from this handful of powerful people, paying in services or goods. For example, a vassal—as the tenants were called--might pay his lord a portion of crops in exchange for the privilege of living on and farming the land. Though true feudalism had long since fallen out of fashion by the 16th century, monarch’s still enjoyed certain rights to land and its profits in what has been called “fiscal feudalism.” Under special circumstances, certain feudal “incidents” would attach to the land which could be very valuable. Chief of these rights were wardship and something called premier seisin. Both of these was a handy source of income for monarchs like Henry VII and his son Henry VIII who were in constant need of more money.
Wardship entitled the guardian to profit from a tenant’s land until they were 21 years old if they were male and until they were 16 if they were female. Moreover, the guardian could arrange a suitable marriage for their ward and marriage to a rich ward could be sold for a nice sum. This right to arrange marriage was called maritagium. Consider the example of Philip Boteler. Philip’s father, Sir Philip Boteler of Watton Woodhall, Hertfordshire, died in 1420 when Philip was about 6. Wardship and maritagium were granted to his relative John Cokayne, a justice. When Cokayne died in 1429, his executors sold the wardship and marriage right to Sir Hugh Willoughby of Wollaton. Sir Hugh then arranged for a marriage with one of his own daughters, Isabel Willoughby—effectively keeping the wealth in the family. It was a very lucrative business transaction. The Crown made a lot of money off of orphans by invoking their royal rights to wardship and maritagium. But pro-active parents discovered they could sidestep this drain on their estate with a feoffment to use. By placing the property into an adult’s hands for the benefit of their minor children. If the estate was never owned by a minor, there was no need for the Crown to step in as guardian.
Premier seisin was also called the “knight’s fee.” It gave the Crown rights to the profit of a deceased tenant’s land for up to a year before their heir took possession. But, if a landowner could keep the property ownership in a living person’s hands by transferring it to a feoffee with the benefit of use remaining with the original landowner, they could avoid triggering premier seisin. Better yet! Put it in several feofee names, so if any feofee died, there was always another left living. Very clever.
Uses kept a lot of money out of the Crown’s coffers. King Henry VIII’s eye was firmly fixed on this problem and, as was his usual approach, he eventually attempted to kill it. To be fair, he first tried to compromise, proposing a bill of law that would grant the Crown a reduced amount of taxes when property was transferred to an heir. It described rather dramatically the “grate trobull, vexacion, and unquietness amonges the kynges suggettes.” This woeful appeal was not met with sympathy and his proposal was rejected. Fine, no more Mr. Nice Guy. Henry VIII declared to the House of Commons in March of 1531, “[I]f you will not take some reasonable end now when it is offered, I will search out the extremity of the law, and then I will not offer you so much again.” That’s when he began appointing people of his choice key roles within the Court of Chancery. In 1532, Thomas Audley, a lawyer who famously denounced uses as fraudulent, was made Lord Keeper of the Great Seal and Lord Chancellor the following year. The King's Secretary Thomas Cromwell was appointed Master of the Rolls in 1534. The board was set.
In 1533, the King and his men finally pounced on a case regarding the estate of the 8th Lord Dacre, Thomas Fiennes. According to Lord Dacre’s will, he had left land to his heirs through a series of uses, thus depriving the Crown of its rights of wardship and premier of seisin. The King’s appointees in the Court of Chancery, Audley and Cromwell, summoned the common law judges to review the case in 1535. Naturally, the lawyer on behalf of the Crown argued that uses of land were deceitful and therefore improper for the Court of Chancery to enforce. At first, the court was divided on the matter, but the King eventually persuaded them to see things his way—and by persuaded we mean coerced by threatening legal inquiries into his adversaries affairs. There is no denying that to speak against Henry VIII was a terrifying matter of life and death. Audley and six of these same judges had presided a month earlier at the trial of Thomas More, a former chancellor, for high treason in denying the king’s supremacy, leading to More’s execution later the same year. So, when all justices in the case were ordered to appear before the King and deliver their final verdict, one justice was conveniently ill and the few remaining dissenters changed their mind. The King would have his way. Uses allowing for wills of land were declared fraudulent and no longer enforceable either under the Common Law or the Chancery.
Remember that the use was the only means by which the people could bypass the common law which required all inheritance to pass to the eldest child. If wills of law were now illegal, what did this mean for all of the previous wills of land that had been made throughout the country for over a century? To settle the mass confusion this ruling caused, the court of Common Law finally agreed to a new version of the King’s bill which he had attempted to pass in 1529. The Statute of Uses was passed in 1536 and it abolished the right to bequeath land by will. It conceded that all wills of land before Lord Dacre’s case would be honored, but any thereafter were fraudulent. Uses were not abolished entirely, because this would mean all the feofees holding the land for the benefit of the landowners would suddenly legally become the owners. Such a massive upset in the holdings of property would not be tolerated. The property must remain in the hands of the intended heirs. The cleverly written Statute modified the legal understanding of how a use worked, establishing that the legal title of the property was officially held by the enjoyer of the use, the beneficiary—the cestui que use—all the way up to the point of their death. Before, feudal incidents could be avoided by keeping property ownership in the name of an endless supply of adult, living feofees. But no more. The cestui que use was the owner no matter who the feofee was, feudal incidents would attach, and the estate would be required to pay these special taxes the King wished to enjoy once again.
Unsurprisingly, this new law was enormously unpopular, as were a great many aspects of Henry VIII’s infamous reign. A public outcry in 1536 called the Pilgrimage of Grace started in Yorkshire and spread throughout the North, protesting the King’s dissolution of monasteries, the break with the Roman Catholic Church, as well as the Statute of Uses. In the end outright protest of the Pilgrimage was unsuccessful and the Statute of Uses remained standing. It was the lawyers who were more successful, slyly looking for chinks in the statute that would allow them to evade the requirements of the Statute. Clever words to bend clever words. Some lawyers were even imprisoned in the tower for giving advice on how this might be done.
Fearing the loss of revenue yet again, the King offered a compromise. After all, all he cared about was the money, so he answered the problem of the Statute of Use with the Statute of Wills, passed in 1540. This law finally gave landowners the right to make common law wills and name their heirs according to their wishes. The compromise was that they could only do so with two thirds of their land. One third would be inherited by their heirs as the common law designated, thus preserving one-third of the feudal incidents. The King had to be content with securing this one third revenue.
But, at that point, since wills of property to others were allowed, where did that leave uses? Active uses which were already in existence when the Statute of Uses was passed were allowed to continue. This included uses where the feofee had continuing duties manage property, collect and distribute income, etc. The Statute of Uses also made it possible to buy land from a distance and with much less ceremony. The transfer of land up to that point had required the exchange of some symbolic object, such as a key, while physically possessing or standing on the land itself. Under the Statute of Uses, a use was created immediately when a bargain for sale was made and the cestui que use (i.e. the buyer) was automatically the legal owner of the property. (Later, another law—the Statute of Enrollments—added the requirement that the transfer must be made by a written deed which would then be enrolled in a Common Law Court.) The convenience of transferring property from afar, particularly in a time period when travel was difficult, made uses incredibly helpful.
Of course, at some point the ever evolving “feoffment to use” was renamed as a “trust,” the term we know and use today. The word “trust” was mentioned in relation to uses in cases as early as the mid-15th century. Over time, references to property being “held in trust” and similar phrasing became more commonplace. Today, trusts are still one of the major ways estate planning and property management is handled. There are now very specific types of trusts for specific purposes—and appropriately enough, many trust structures are meant to prevent paying too many taxes to the government. Times change, but not so much.
RESOURCES
SIR WILLIAM SEARLE HOLDSWORTH, A HISTORY OF ENGLISH LAW, 450-51 (1924).
JOHN BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY, 276-77 (5th ed. 2019).
SIR JOHN BAKER, BAKER AND MILSOM SOURCES OF ENGLISH LEGAL HISTORY: PRIVATE LAW TO 1750, 121-123 (2nd ed. 2019).
DAVID J. SEIPP, TRUST AND FIDUCIARY DUTY IN THE EARLY COMMON LAW. 91 B. U. L. Rev. 1011 (2011).
DAVID T. SMITH, THE STATUTE OF USES: A LOOK AT ITS HISTORICAL EVOLUTION AND DEMISE, 18 W. Rsrv. L. Rev. 40 (1966).
DOD V CHYTTYNDEN (1502) Y.B. Mich. 15. Hen. VII, f. 13, pl. 1; J.H. Baker (ed.), REPORTS OF CASES BY JOHN CARYLL. PART II: 1501–1522 (110 Selden Soc.) (London 2000).
HALL’S CHRONICLE 784 (1809), reprinted in SIR JOHN BAKER, BAKER AND MILSOM SOURCES OF ENGLISH LEGAL HISTORY: PRIVATE LAW TO 1750, 121-123 (2nd ed. 2019).
MARRIAGE SETTLEMENT BETWEEN PHILIP BOTELER AND ISABEL WILLOUGHBY. TITLE DEEDS OF THE WILLOUGHBY FAMILY OF WOLLATON, NOTTINGHAMSHIRE, MIDDLETON, WARWICKSHIRE AND BIRDSALL, YORKSHIRE; 12th century-1662. Ref. ID: Mi D 4792. THE UNIVERSITY OF NOTTINGHAM. https://www.nottingham.ac.uk/manuscriptsandspecialcollections/learning/medievalwomen/theme5/marriagearrangements.aspx
ROBERT N. CONNERS, THE STATUTE OF USES AND SOME OF ITS IMPORTANT EFFECTS, 1 HASTINGS L.J. 72 (1949). Available at: https://repository.uclawsf.edu/hastings_law_journal/vol1/iss1/8