The ecclesiastical contributions to the development and enforcement of the English feoffment to uses, 1066-1535

Abstract

This study aims to put the medieval feoffment to uses into its broad historical context, portraying its origin as an outgrowth of the landholding "nobility's" desire to evade the burdens of post-Conquest Norman feudalism. Those burdens were, so far as they related to freehold lands and tenements, chiefly, the rule against devises, the prohibition (until 1290) of alienation by substitution, the incidents of tenure, and the prohibition of gifts of freehold into mortmain (usually to ecclesiastical institutions).The Church's involvement with the feoffment to uses occurred in various ways: Its theologians provided a Christianized epieikeia which the Chancellor appropriated to aid disappointed cestuis - who generally had no common-law rights in the freehold realty held to their use; its canonists enunciated theories of third party enjoyment-without- ownership of freehold realty especially suited to the needs of the Franciscan Friars Minor, who were also cestuis of feoffments to uses; it registered and had jurisdiction over administration of probate of wills, which often contained instructions to feoffees. There is, indeed, evidence that ecclesiastical courts were the first to enforce feoffees' obligations, and therefore to protect cestuis, relinquishing this jurisdiction as the Chancellors of England (nearly all of whom were high-ranking ecclesiastics), began to order specific performance of the "use's" purposes. This study. concludes, therefore, that ecclesiastical contributions to the development and enforcement of the feoffment to uses up to 1535 (the year of the Statute of Uses), were pervasive, if, from the standpoint of the institutional Church, largely indirect, and occurred on both theoretical and administrative planes.