Essay by Shael Herman
This Essay extends an inquiry begun in “Utilitas Ecclesiae: The Canonical Conception of the Trust.” In the earlier Essay, the author sketched a clerical standard of fiduciary duty that medieval churchmen elaborated to assure the integrity of the Church's growing patrimony. An inspirational talisman for clerics bound to steward church assets for God's glory, utilitas ecclesiae (welfare of the Church) animated for laymen, as well, a number of medieval trust institutions such as the use, the perpetual rent, and the chantry foundation. The present study focuses upon the commendatio, a medieval trust device that may be traced to the commendatio morientum, an informal Roman arrangement in which an aging patriarch confided to a loyal friend the protection of both kin and possessions. More versatile than its Roman ancestor, the medieval commendatio traveled several different paths and fulfilled both sacred and profane missions. The medieval commendatio's concept of divided ownership enabled churchmen to confide the custody of a vacant see to a caretaker until the vacancy could be properly filled. A divided title also permitted a clerical possessor to claim enjoyment of a benefice incommendata without violating a poverty vow by holding the estate intitulata. By means of theological rationalization, wayward churchmen also exploited the commendatio for profane uses such as evading a canonical ban against holding more than one benefice with cure of souls (cura animarum). Seeking to extend the Church's grip over Christendom, the medieval papacy turned the commendatio to political advantage by throwing a mantle of protection over faithful vassals as well as their subjects. In the feudal hierarchy, commendatio became a ceremony of self-entrustment in which a weaker man surrendered to a stronger man and pledged him fealty in exchange for the latter's protection. Among medieval Italian merchants, the commendatio figured in a commercial arrangement in which a sleeping or passive investor entrusted capital to an active partner who promoted the financial interests of both associates. As a special kind of commercial trust, the commendatio, also called commenda, flourished in medieval English financial arrangements. The incidence of the commendatio for both sacred and profane purposes invites us to ask whether this device may have influenced clerical thinking on the use and the trust.
About the Author
Shael Herman. Professor, Tulane Law School; Faculty Advisor, Tulane Law Review.
Citation
71 Tul. L. Rev. 869 (1997)