Page:Harvard Law Review Volume 8.djvu/152

136 HARVARD LAW RE VIE W. XII. The attempt of the early Franciscans to live without property of any sort or kind led to subtle disputations and in the end to a world- shaking conflict. At one time the popes sought to distinguish between ownership and usufruct or use ; the Franciscans might enjoy the latter but could not have the former ; the dominium of all that was given to their use was deemed to be vested in the Roman church and any litigation about it was to be carried on by papal procurators. This doctrine was defined by Nicholas III. in 1279. In 1322 John XXII. did his best to overrule it, declaring that the distinction between use and property was fallacious and that the friars were not debarred from ownership. Charges of heresy about this matter were freely flung about by and against him, and the question whether Christ and His Apostles had owned goods be- came a question between Pope and Emperor, between Guelph and Ghibelline. In the earlier stages of the debate there was an instructive discussion as to the position of the third person, who was sometimes in- troduced as an intermediary between the charitable donor and the friars who were to take the benefit of the gift. He could not be treated as agent or procurator for the friars unless the ownership were ascribed to them. Gregory IX. was for treating him as an agent for the donor. See Lea, History of the Inquisition, iii. 5-7, 29-31, 129-154. XIII. It is very possible that the case of the Franciscans did much towards introducing among us both the word usus and the desire to discover some expedient which would give the practical benefits of owner- ship to those who could yet say that they owned nothing. In every large town in England there were Minorites who knew all about the stormy con- troversy, who had heard how some of their foreign brethren had gone to the stake rather than suffer that the testament of St. Francis should be overlaid by the evasive glosses of lawyerly popes, and who were always being twitted with their impossible theories by their Dominican rivals. On the continent the battle was fought with weapons drawn from the armoury of Roman law. Among these were usus and usufructus. It seems to have been thought at one time that the case could be met by allowing the friars a usufructus or usus, these terms being employed in a sense that would not be too remote from that which they had borne in the old Roman texts. Thus it is possible that there was a momentary contact between Roman law — medieval, not classical, Roman law — and the development of the English use. Englishmen became familiar with an employment of the word usus which would make it sand for something that just is not, though it looks exceedingly like, dominium. But we hardly nerd say that the use of our English law is not derived from the Roman 'persoiial servitude ' ; the two have no feature in common. Nor can I believe that the 'R.oxrxa.njideicommissum has anything to do with the evolution of the English use. In the first place, the English use in its earliest stage is seldom, if ever, the outcome of a last will, while the