The development of the use and the origins of the modern trust : Maitland's thesis, the crusades, and beyond
Degree GrantorUniversity of Canterbury
Degree NameDoctor of Philosophy
This thesis advances a new theory to explain the origin of the use in English law. It defines a use, in the absence of consensus about definition, as occurring when a person (the feoffor) makes an enforceable grant of land (called a feoffment) to another (the feoffee) to hold for the benefit of a third party. The thesis is a reassessment of an accepted truth that crusaders were the first to make uses. Frederic Maitland, the father of legal history, lent his authority to this idea when he suggested that English crusaders employed uses in case of their demise abroad. Subsequent legal historians have put forward other explanations but none have supplanted Maitland’s authoritative account. Therefore, it is necessary to return to and re-examine the development of the use. This thesis shows how the legal concept of crusading that developed in the twelfth century attracted both papal and secular legal privileges, which effectively fulfilled the function Maitland had ascribed to uses. Neither the canon law nor English common law created the use in response to the crusading ideology. The current author instead used the crusade lens to move beyond Maitland’s thesis to show the first germs of the use are found in the thirteenth-century practices of the Exchequer of the Jews. This court stretched the limits of the common law to give effect to the intentions of feoffors. While the use is absent during the Ninth Crusade, a watershed moment in its development is found in legislation (13 Edw. I, c 1) enacted to give paramountcy to legal intention. In moving beyond the Crusades, the thesis comfortably strips away an assumed connection to equity to prove that the use is a species of common law feoffment with a condition.