Essay by Shael Herman
Consisting of several chapters from an unpublished manuscript, this study traces the origins of the medieval use to the early church's program of consolidating its patrimony and segregating it from assets held by clerics as their personal property. To assure patrimonial integrity and permanence at a time when clerics could marry and have children, the church elaborated its own utilitarian ideal, utilitas ecclesiae (utility or advantage of the church). This doctrine had both material and spiritual dimensions: By binding the pope and his deputies to a stewardship that conferred on them the bare use and possession of church assets, utilitas ecclesiae insulated ownership of the assets from claims of a cleric's next-of-kin. Vested with the stewardship, not ownership of the assets, clerics were bound to administer them for their eternal beneficiaries, conceptualized as Christ and his faithful followers, whether deceased, alive, or still unborn. An eternal bond of trusteeship allowed the pope and his deputies to apply revenues from entrusted assets to their sustenance, not their luxury. The lofty aim of utilitas ecclesia dictated that fruits and profits yielded by the custodial assets should enrich the church treasury, not the individual clerical custodians. In possession of a benefice, a clerical grantee resembled Roman law's usuary (i.e., one who enjoyed the usus of an asset by occupying it). By limiting application of fruits exclusively to the cleric's personal maintenance, the usus assured that the cleric would conserve the asset for his successors and thus for the overall advantage of the church. A Roman law conception of usus reinforced a church doctrine that the value of things in the material universe depended upon their spiritual uses. The value of these uses depended in turn upon their role in augmenting utilitas ecclesiae, not personal enjoyment of temporary trustees. Once conceptualized, the function of steward (dispensator) and the ideal of utilitas ecclesiae could be impressed upon a variety of clerical fiduciaries, including cemetery and church custodians, chantry chaplains, testamentary executors, spiritual friends, and clerical feoffees endowed by spiritual gift to particular church activities. Such clerical fiduciaries acted in a spiritually upright manner whenever their conduct promoted utilitas ecclesiae. By behaving generously and with due regard for the welfare of the faithful, a cleric honored the sacred trust between God and men. Rich in both denotative and connotative significance, use, usus, and utilitas cooperated programmatically and etymologically to fuse the church fathers' material preoccupations with their enduring spiritual aspirations.
About the Author
Shael Herman. Professor of Law, Tulane Law School; Faculty Advisor, Tulane Law Review.
Citation
70 Tul. L. Rev. 2239 (1996)