Katherine Willoughby's marriage to Richard Bertie, in whose name Bartie v Herenden was brought (a married woman could bring proceedings only in her husband’s name), was her second. Her first marriage was to the Duke of Suffolk. The Duke’s position during the reign of Henry VIII meant that Katherine was involved in a number of significant historical events. In A Woman of the Tudor Age, (link) Cecile Goff describes the scene where Henry first met Anne of Cleves, his fourth wife. Katherine was one of the ladies sent as part of the welcoming party to meet Anne. Later, after the marriage proved unsuccessful and Henry sought to rid himself of Anne, the Duke of Suffolk was one of the two unfortunate men tasked with giving Anne the news (Goff, page 120). The Duke of Suffolk was also involved in the removal of Henry’s next wife, Katherine Howard: he, with the Duke of Southampton, was sent to extract a confession of adultery from her. It was Henry’s next wife, however, that the Duchess had the most to do with. The Duchess was one of the few people present at the marriage of Henry to Katherine Parr, and the two women were good friends (Goff, page 150-151).

The Duke of Suffolk died in 1545, when the Duchess was only 26. Even more tragically, the Duchess's two sons died in 1551, within minutes of each other. Wilson's Arte of Rhetorique contains a letter of comfort to the Duchess (link). In 1553, Katherine married Richard Bertie, one of her servants. Making such a marriage would have been a bold move at that time (her other main suitor seems to have been the King of Poland – Goff page 167), but it is also possibly true that at this juncture in her life, as a wealthy and well-connected widow, Katherine was able to exercise a degree of independence that must have been beyond far beyond the reach of most women in Tudor England.

The Duchess of Suffolk, then, was an important player in social and political life of the period. One possible explanation for Herenden's behavior is that on her return to England she was not as popular with the new administration as might be supposed. This relationship between the Duchess and Elizabeth was not without tension at times, primarily due to the Duchess's hard-line puritanism and Elizabeth's more moderate middle religious way (reference). Nevertheless, it seems unlikely that this tension could have resulted in any serious political ill-will against the Duchess, and it certainly does not appear to have affected the Duchess's and Bertie's position in other ways. For example, Georgina Bartie reports that Richard Bartie sat in Parliament for four years, and also attended Elizabeth in 1564 (link).

Inter

Holdsworth contains a discussion of Tyrrell’s Case (1557) Dyer 155, which is also set out in Baker and Milsom (attached). Tyrrell’s Case was similar to Bartie v Herenden in that it concerned the validity of a use upon a use. In that case, Jane Tyrrell conveyed her lands to her son, G. Tyrrell, to hold to G. and his heirs, to the use of Jane for life, then to the use of G. and the heirs of his body, and to the use of Jane’s heirs if G. had no heirs of the body.

The court of Common Pleas held that all the uses after the first to G. were void (the first transfer to G. and his heirs implied a use, although it appears that this use was not explicitly set out in the instrument of transfer). The reasoning of the court, according to Holdsworth (at page 470), that “in no case could a use be executed which would contradict a use which arose by implication of law”. The initial transfer to G. implied a use, so all subsequent uses contradicted G.'s use and were therefore void.

According to Holdsworth, the rule that there could be no use upon a use survived at least until the early seventeenth century (at page 472). The existence of Bartie v Herenden of course shows that this statement is not entirely correct. However, it is certainly interesting that the case contradicts what appears to have been a firm rule backed by substantial policy considerations, particularly as Bartie v Herenden followed so closely after Tyrrell's Case. In his Law Quarterly Review article, Baker suggests that this result might be explained by the "political overtones"; of Bartie v Herenden. However, what these political overtones might be is still somewhat murky.

Would other political refugees have been likely to enter into similar arrangements with friends left behind in England?

Trying to find records of similar arrangements made by other refugees would likely be a futile exercise, even if it were possible to access the relevant records. Any such arrangements would have been secret by necessity, and therefore unlikely to have been in writing. We know about the Duchess’s arrangements only because they went wrong; in all likelihood most other exiles’ arrangements proceeded more smoothly. In Women, Reform and Community in Early Modern England (attached), Melissa Harkrider notes that other Marian exiles with substantial property entered into similar arrangements to the Duchess (page 110). However, it is difficult to know what “similar” means in this sense. It is probable that many exiles transferred their properties to trusted friends, on the understanding that their friends would re-convey the properties back if and when it became safe to do so. Considering the state of the law of uses, as discussed above, it is unlikely that the parties to these arrangements considered that the trusted friends were legally obliged to re-convey the lands, although they were certainly morally obliged to do so.

[To be completed: the situation in relation to Elizabethan refugees]

The nature of the threat facing the Duchess and other exiles

Discussion to include: Statute of Treasons, The Duchess of Suffolk's Bill and its failure, the apparent confiscation of the Duchess's lands anyway.

Why did Herenden fail to convey the land back to the Duchess upon her return?