Franciscan Studies

OCKHAM ON TRUSTS The medieval English friars used goods by means of a distinctive legal instrument, namely, by the use. This is different from their continental brothers' means, the tools ofcivilian law, although it depended upon the civilian court of chancery for enforcement. The friars were the first to employ uses in a widespread manner.1 But this was developed into English common law's most significant contribution to the holding of property, the legal trust. Given that the English friars ofthe thirteenth century were recognized both as the most observant of their brethren, and also as the most scholarly,2 it would be surprising if these characteristics developed apart. One would expect the poor brothers' holdings to be grist for the learned brothers' philosophy, since property holding served more than anything else as a norm for their group identity. No explanation would be needed for this occuring. But to explain why it did not, if such were the case, would require torturous indirection to locate denial, defensiveness or shame which turned the friars' attention off of themselves . Such diffidence is not one of their faults. Did they attend to their employment ofthe trust? The trust properly so called, or the use upon a use, does not appear until the sixteenth century, and then as a response to the Crown's remedies for the losses of revenue which uses brought about. But of course by then the En1 F. W. Maitland, Collected Papers, ed. H. A. L. Fisher (Cambridge UP, 1911) 408; also in F. Pollock and F. W. Maitland, The History ofEnglish Law Before the Time of Edward 1 2 ed. (Cambridge UP, 1923) 231. 2 Thomas de Eccleston Liber de adventu minorum in Angliam (c.1260), in Monumentafranciscana, vol. 1 of Rerum britanicarum medii aevi scriptores ed. J. S. Breuer (London: Longman, 1858). 142CHRISTOPHER B. GRAY glish friars' fame for observance and for scholarship had passed, anyway. In the thirteenth and fourteenth centuries, however, with which we are concerned, Adam Marsh, Robert Grosseteste, Alexander Hales, John Pecham and Roger Bacon can be expected to reflect upon their property norms as well in their moral philosophies as in their defences of poverty. Curiously, this does not seem to have occurred. Less surprise would be occasioned by the fact of a continental Bonaventure not so reflecting on English property tools, or even a Duns Scotus who would have experienced them later than the Scots' civilian tools. But any overt reflection is hard to find even in Ockham where we would most expect it, being both born and bred to the use, and being plunged into property law on the other hand. Since no explicit discussion of the English use has been found in Ockham, the only way to develop even a framework of plausibility for the initial expectation is to examine the state ofdevelopment which the use had reached by the time of Ockham. By seeing whence this state of the use had come, it can be tested whether this could have led to Ockham's understanding of property. And by seeing whither the use was going, it can be tested whether this could have been moved along by Ockham's understanding of property. Even if the case can be made in this way, it remains only conjectural . In order for it to approach demonstrativeness, other explanations for both Ockham's thinking and for the development of the use must be set aside. But each has already been explained in terms of other factors; so demonstration is an unlikely goal. What might bring it closer is an awareness on the part ofthe friars' superiors or their patrons that the property transactions they were undertaking needed to be understood in terms akin to those the friarphilosophers were using. More of this at the end. The origins of the use are not perspicuous because, on the one side, it is not derived from non-English models and, on the other, it is in no great evidence until the friars use it as an already well developed instrument. Its homegrown nature is both its pride and its frustration. The use is an arrangement whereby goods are transferred from one person to a second...