222 The Period of Constitution
prominent until the peculiar need of the friars led to its
rapid extension after their coming to England. In its
early use, its success depended entirely upon the good
faith of the legal owner of the property; when the con-
tract was made between him and the grantor, he was
bound in honour to hold the land to the use stipulated.1
Because the device had been so seldom used before the
thirteenth century, it had obtained no recognition in the
common law; for when it came into more frequent use that
law had passed its receptive period. So if the owner chose
to disregard his honourable understanding, there was no
legal remedy for the party to whose use the property had
been given. However, the beneficiaries being for the most
part clergy, it is probable that the church courts sometimes
took account of such breach of contract. At any rate,
the friars could always invoke the terrors of excommunica-
tion and interdict against unfaithful legal owners.
The king took little account of this method of benefiting
the friars, but he was becoming greatly alarmed at the
amount of land passing into the ownership of the church
in general. Hence the Statute of Mortmain, 1279, which
prohibited further alienation of land to the clergy.2 The
problem of dodging this statute immediately arose. The
method was at hand. Friars could not own land because
of their rule; by the Statute of Mortmain, the rest of the
clergy3 could own no more land than they already had.
To meet the second case, as the first, legal ownership
might be vested in a person or persons, who, for substan-
tial reasons, entered into a private understanding to allow
the use of the land to the church. Thus the practice of
uses was greatly extended as the fourteenth century pro-
gressed. An act of 1392 effectually put a stop to it as far
1 When friars were the beneficiaries, the legal owner was very often a
borough.
a A. and S., pp. 71, 72.
3 The language of the statute limited its application to the monastic
clergy but in its later interpretations this limitation was not observed.
See Gross, Mortmain in Medieval Boroughs. American Historical Review
Ğiğ 741,