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Maitland's Thesis, the Crusades, and Beyond

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Maitland's Thesis, the Crusades, and Beyond THE DEVELOPMENT OF THE USE AND THE ORIGINS OF THE MODERN TRUST: MAITLAND’S THESIS, THE CRUSADES, AND BEYOND LINDSAY DEAN BREACH A thesis submitted in fulfilment of the requirements for the Degree of Doctor of Philosophy in History Department of History University of Canterbury 2018 Abstract 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. Table of Contents Abstract ........................................................................................................................i Table of Contents ..................................................................................................... ii Acknowledgements ............................................................................................... iv Abbreviations .......................................................................................................... vi Chapter 1. Introduction: Maitland’s Thesis on the Origin of the Use and its Links to the Crusade Movement ................................................................... 1 WRITING LEGAL HISTORY ..................................................................................................................................................................... 5 THESIS OUTLINE ................................................................................................................................................................................... 13 AN ARGUMENT FROM SILENCE .......................................................................................................................................................... 19 Chapter 2. Historiography: The Legacy of Maitland’s Thesis ................. 23 FREDERIC MAITLAND AND NINETEENTH-CENTURY HISTORIOGRAPHY ..................................................................................... 23 TRADITIONAL SCHOOLS OF THOUGHT .............................................................................................................................................. 29 MODERN DEBATE................................................................................................................................................................................. 39 THE PROBLEM OF DEFINITION .......................................................................................................................................................... 44 MOVING FORWARD .............................................................................................................................................................................. 50 CONCLUSION.......................................................................................................................................................................................... 54 Chapter 3. Maitland’s Thesis of the Use Re-considered in the Context of the First and Second Crusades ..................................................................... 56 CRUSADE HISTORIOGRAPHY ............................................................................................................................................................... 56 THE FIRST CRUSADE ............................................................................................................................................................................ 62 THE LEGAL ARRANGEMENTS OF CRUSADERS .................................................................................................................................. 69 ENGLISH INVOLVEMENT IN THE FIRST CRUSADE ............................................................................................................................ 72 THE FIRST CRUSADE AS A TEMPLATE FOR LEGAL DEVELOPMENT ............................................................................................... 76 A SECOND CRUSADE IN THE TRADITION OF THE FIRST.................................................................................................................. 79 DE CRUCESIGNATUS ............................................................................................................................................................................. 86 CONCLUSION.......................................................................................................................................................................................... 90 Chapter 4. Did Glanvill deal with Maitland’s notion of Use? ................... 93 THE CRUSADE MOVEMENT AND THE COMMON LAW ..................................................................................................................... 93 GLANVILL AND THE CRUSADES .......................................................................................................................................................... 99 MILITARY FEE IN THE TWELFTH CENTURY ................................................................................................................................... 104 HERITABILITY AND THE ABILITY TO CONTROL DESCENT ............................................................................................................. 110 LEGAL POSITION OF WOMEN ............................................................................................................................................................ 114 ESSOIN .................................................................................................................................................................................................. 118 CONCLUSION........................................................................................................................................................................................ 121 Chapter 5. Use-Like Legal Devices as Responses to the Third Crusade, 1187-1192 ............................................................................................................ 123 ROMANTICISM IN THIRD CRUSADE HISTORIOGRAPHY ................................................................................................................ 123 RICHARD’S CONTRIBUTION TO CRUSADE JURISPRUDENCE .......................................................................................................... 129 PRIVATE LEGAL ARRANGEMENTS DURING THE THIRD CRUSADE ............................................................................................... 135 WHY NO USE DURING THE THIRD CRUSADE? ................................................................................................................................ 139 LONG-TERM IMPACT OF THE CRUSADE MOVEMENT ON ENGLISH LAW .................................................................................... 142 CONCLUSION........................................................................................................................................................................................ 147 Chapter 6. Use-Like Devices in Cases before the Jewish Exchequer between 1198 and 1290 .................................................................................. 149 HISTORIOGRAPHY: THE INFLUENCE OF THE JEWISH FACET OF THE COMMON LAW ............................................................... 149 THE CRUSADE INFLUENCE ON THE JEWISH EXCHEQUER ............................................................................................................. 153 HALAKHA AS THE LAW OF ENGLAND .............................................................................................................................................. 159 EARLY EVIDENCE (1200 – 1250) ................................................................................................................................................. 163 ELEMENTS ASSOCIATED WITH USES FOUND IN THE JEWISH EXCHEQUER ................................................................................. 168 CONCLUSION.......................................................................................................................................................................................
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