The Origins of the Trust

By Gilbert Paul Verbit

Frederic W. Maitland, the pre-eminent Anglo-American legal historian, said that the trust "perhaps forms the most distinctive achievement of English lawyers. It seems to us almost essential to civilization and yet there is nothing quite like it in foreign law." This book is an updating of Maitlands work, first looking at his suggested foreign sources for the trust -- Roman law, German (Salic) law, and Franciscan law. It then considers a source Maitland did not Islamic law and finds that the Islamic waqf is not only quite like the trust, but predated it by at least five hundred years.

• Language: English
• Publisher: Xlibris US
• Release date: Sep 9, 2002
• ISBN: 9781462807680

Gilbert Paul Verbit

After receiving his law degree from Yale, Gilbert Paul Verbit has been a law clerk to a Federal Appellate judge, a Fulbright Scholar, Legal Advisor to the Foreign Ministry of Tanzania, a Senior Research Associate at Columbia Law School, a Director of the International Legal Center in New York and Professor of Law at Boston University specializing in the law of trusts. Following his retirement from teaching Professor Verbit settled in Cambridge (U.K.) where he is presently engaged in translating a ninth century Arabic treatise on the law of trusts.

Book preview

Copyright © 2002 by Gilbert Paul Verbit.

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

This book was printed in the United States of America.

To order additional copies of this book, contact:

Xlibris Corporation

1-888-7-XLIBRIS

www.Xlibris.com

Orders’Xlibris.com

12885

Contents

PREFACE

INTRODUCTION

CHAPTER ONE

CHAPTER TWO

CHAPTER THREE

CHAPTER FOUR

CHAPTER FIVE

CHAPTER SIX

CHAPTER SEVEN

CHAPTER EIGHT

CHAPTER NINE

CHAPTER TEN

SOURCES

FOR CAROL

Who turned a ten-month Cambridge sabbatical

into a lifetime of joy

I do not consider the student of the history of legal doctrine bound to have a practical end in view … It is perfectly proper to regard and study the law simply as a great anthropological document … It is proper to study it as an exercise in the morphology and transformation of human ideas.

0. W. HOLMES

Lawin Science and Science in Law

XII HARVARD LAW REVIEW 443,444 (1899)

As in so many branches of scholarship the most that any single scholar can hope to do is to lay his course in the ediface … .

S. V Fitzgerald

The Alleged Debt of Islamic to Roman Law

67 LAW QUARTERLY REVIEW 81 (1951)

PREFACE

I was fortunate in being located at the University of Cambridge for most of the research and writing of this book. Cambridge offered me not only the opportunity to work in the unmatched collections of the University Library, but also the opportunity to meet many of the scholars whose work is cited in the book. I am particularly grateful to Professor John Hatcher for sharing with me his expertise on the impact of the Black Death in England and Professor David Johnston whose study of the fideicommissum forms the bulk of Chapter Two. Both men were kind enough to look over what I had written in their respective fields and to warn me off any egregious errors. I also had the chance to make of acquaintance of Patricia Crone before she left for the greener pastures of the Institute for Advanced Study at Princeton. The chance to audit her introductory course in Islamic History was a unique opportunity to see a great mind and a great teacher at work. And I have had incalculable help from Professor David Powers of Cornell University who is not only the outstanding scholar of classical Islamic law but fortunately for me had a current interest in the waqf. In the area of legal history I had particular help from Paul Brand of All Soul’s College, Oxford, who, among other things, allowed me to present my research before an audience of rather skeptical legal historians. And whenever a name or reference stumped me, my old colleague David Seipp was always there with a prompt reply to my desperate emails. I began this study with some expertise in the Anglo-American law of trusts. But I could not have moved beyond that into legal history, medieval history, Islamic history and Islamic law without the help of these colleagues and friends.

Gilbert Paul Verbit

Le Château

St. Denis Maisoncelles

Summer, 2001

INTRODUCTION

The origin of the trust is a subject that once engaged the interest of leading legal scholars such as F. W. Maitland1 and Oliver Wendall Holmes2 but one which has not been treated comprehensively for over 100 years.3 The present study is therefore at first instance an attempt to update their work by incorporating material produced since Maitland and Holmes wrote.

Maitland said that the trust perhaps forms the most distinctive achievement of English lawyers. It seems to us almost essential to civilization and yet there is nothing quite like it in foreign law.4 A generation later W. S. Holdsworth continued to proclaim the trust as quintessentially English. The unique character of the English use or trust is the direct consequence of the unique manner in which the principles of equity were developed in England … . 5 And Holmes identified the trust as the greatest contribution to the substantive law which has ever been set down to the credit of the Chancery.6

The utility and importance of the trust has been well established over the years. It is with the question of its English origins that the present study is concerned. Is the trust as uniquely English in origin as Maitland, Holdsworth and others have asserted? And is there really nothing quite like it in foreign law? Or might it have in fact been based on a pre-existing foreign model?

In testing the proposition of whether a particular institution has been borrowed from another society, the identification of a previous analogous form is only a first step. For a great gulf separates a parallel from an influence.7 As S.F.C. Milsom observed, [t]he favorite method of partisans of this kind is … to enumerate coincidences. And by that method our English medieval law could with little ado be proved to be Greek, Slavonic, Semitic, or, for aught one knows, Chinese … [so] the mere coincidence of particulars in early bodies of law proves nothing beyond the resemblance of all institutions in certain stages.8 Similar conditions may give rise to similar institutions even though there has been no contact with or even knowledge of the respective societies within which the institutions arise.9 And this observation has been made specifically with regard to the origins of the trust. The fact that one man trusts another … naturally appears in any sort of society which has progressed so far as to possess even the most rudimentary system of law. A very small amount of legal development will necessitate some sort of institution by which effect can be given to the desire to create trusts … .10

Thus any exercise in the search for the origins of the trust ought properly to begin with the premise that the institution is indigenous and has developed in response to a particular need in the host society.11 This seems a safe a priori assumption, but it can easily be buttressed by arguments dealing with difficulties of communication, particularistic sentiments, etc.

The need that gave rise to the trust is death. More particularly, the issues arising with regard to the disposition of the property owned by the decedent. Every organized social group will develop rules with regard to the passage of property at death. Moreover, most, if not all, governments see the act of the transfer of property at death as a convenient time to levy a charge, if only because of the notoriety that attaches to the death of the property owner. A natural and unsurprising reaction to this situation is the realization that it can be avoided if property does not pass at death.

Thus the reason for the trust—an institution that avoids the situation where legal ownership of property passes at death. And since death and the ensuing property issues are universal phenomena, one would expect to find that most societies had developed institutions analogous to the trust as an indigenous response to the issues arising from property passing at death.

Home-grown legal institutions are the norm, borrowing from foreign sources probably the exception. Yet despite these unstartling observations, there is a rich literature attempting to establish that the idea of the trust was in fact borrowed from a foreign source. Chapter Two of the present study examines theories on the source being Roman law, Chapter Three German law and Chapter Four Islamic Law. It is with particular regard to the latter source and an institution of classical Islamic law—the waqf—that the present study is primarily concerned.

In pursuing this research the author has attempted to keep in mind the following admonitions. First, as noted above, that to establish at least a prima facie case of influence, as opposed to parallelism, a scholar must produce a theory of how the seed was planted in new ground. Second, the warning of Professor C. H. Haskins that where sources of information are as scanty as they are in the twelfth century, nothing is harder to prove than the direct borrowing of institutions, and in no field of historical inquiry is it easier to be mislead by superficial resemblance’s.12 Next, the observation of Professor H. Berman that Surprisingly … there seem to have been virtually no direct contemporary … Islamic influences on the development of Western legal systems in their formative era, that is, in the late eleventh and twelfth centuries.13 While Europeans were interested in Islamic civilization, they limited their studies of it at that time primarily to astronomy, astrology, mathematics, and medicine.14

The most recent full scale inquiry into this area by J.M.W. Bean found that [a] number of historians have put forward theories explaining the origins of uses [trusts]. But none of them is satisfactory, since in each case our attention is drawn to a legal institution or doctrine which, although analogous to the use, is in basic respects distinctly different from it .15 Nonetheless, the reader of this study should come away with the view that if the concept of the trust was borrowed from another legal system, it is more likely than not that that lender was the Islamic legal system. And even if that fails, the author can at least take solace from the fact that he has pursued the theory of borrowing from Islamic law further than previous efforts in this direction—in Fitzgerald’s words, laid his course upon the edifice—in the hope that a future scholar will find enough promise in the present work that he or she will pick up the tools and carry on the research.

Finally, in carrying out this study there has been an attempt to heed the warning of Professor H. R. Gibb:

It is, however, true, and probably a universal phenomenon, that when, for any reason, some particular body of ideas, or technique, or theory has begun to attract men’s interest, they will readily take advantage of all other sources which may be available to them for developing this particular activity. It seems to me to be in these circumstances almost exclusively that the factor of ‘influence’ by other cultures arises. I should go so far as to say that it is rarely, if ever, that any element from a foreign culture is introduced or taken over as an entirely new constituent in the receiving culture. We may almost formulate it as our First Law, therefore, that cultural influences (by which I mean, of course, not purely superficial adjuncts, but genuinely assimilated elements) are always preceded by an already existing activity which creates the factor of attraction without which no creative assimilation can take place. 16

CHAPTER ONE

A BRIEF HISTORY OF THE TRUST IN ENGLAND

English common law is generally accepted as having developed during the period beginning with the appearance between November 1187 and July 118917 of THE TREATISE ON THE LAWS AND CUSTOMS OF THE REALM OF ENGLAND COMMONLY CALLED GLANVILL (Tractatus de Legibus et Consuetudinibus Regni Anglie Qui tempore Glanvilla Vocatur) and ending with Henry of Bracton’s De Legibus ey Consuetudinibus Angliae in 1258.18 For those not steeped in

English legal history a brief account of the two authors may be in order. Glanvill came from the lower ranks of the landed classes and made a career of government service.19 By 1175 he had become an archijusitiarius (circuit judge) in the north of England. When Henry II left for France in 1179, he appointed Glanvill Justiciar, roughly equivalent to prime minister. The Justiciar was the monarch’s alter ego, head of administration and held royal power in the ruler’s absence.20

Glanvill’s treatise describes the practice in the English courts during the period of his Justiciarship.21 It consists primarily of land law, or, more particularly, the various writs available to remedy breaches of real property rights. It is primarily, therefore, a handbook of procedure.22

Henry of Bracton was born about 1200. From 1245 to 1267 he served as a justice in eyre and as a justice coram rege.23 The latest characterization of his career is as a comparatively minor judicial figure.24 For F. W. Maitland, however, Bracton’s text is the crown and flower of English medieval jurisprudence.25 Unlike Glanvill’s treatise, Bracton’s text was a compendium of substantive law based upon decided cases. In part because its scope was much broader and in part reflecting the growth of English jurisprudence, Bracton’s treatise is about ten times as long as Glanvill.26

This first attempt to establish a relevant time period—in this case between Glanvill (1187) and Bracton (1258)—high-lights the fact, if highlighting were needed, that chronology is very important in the present study. For a late development in one part of the world cannot affect an earlier development in another. But for present purposes, and of necessity, the chronology need only be established in a very general way for, as we shall see, there is no precise date when it can be said that the trust became a part of English law. The Glanvill and Bracton treatises provide one set of convenient chronological parameters. Nonetheless it must be kept in mind that scholars differ on such an important subject as when the common law became recognizable as such and when it can be said to have been developed. One writer has suggested that Glanvill’s treatise in fact represents the culmination of one hundred and fifty years of legal development and that it followed the most creative age of the common law … .27 This would move the starting date for the development of the common law back to the middle of the eleventh century, i.e. before the Norman invasion. Other champions of early development identify Henry I’s conquest of Normandy in 1106 as the initiating event since it was followed by the reorganization of the English exchequer, the forerunner of the common law courts.28 In any case the pace of development seems to have slowed, if it did not stop altogether, during the reign of Henry’s successor, King Stephen (1135-1154).29 The era of Stephen’s successor, Henry II (1154-1189), on the other hand, has been termed momentous from the point of view of legal development.30 Maitland, writing with typical poetic license about the twelfth century, indicated that [i]n no other age, since the classical days of Roman law, has so large a part of the sum total of intellectual endeavour been devoted to jurisprudence.31 On the other hand, while giving full credit to the genius of Henry II, some see his reign as the beginning of the Common Law that properly developed under King John (1199-1216).32 Hopefully, this brief survey of the chronology of the development of the common law has delineated a rough time frame with which to search for the beginnings of a law of trusts—somewhere in the 200 years between the mid-eleventh century and the mid-thirteenth century.

An effective search requires an initial identification of our quarry. A trust is a legal structure for holding property in which the ownership, a very amorphous term as any first year law student knows, is divided between two categories of owner.33 In addition, every trust has a third party who creates the trust, the person or persons who transfer property into the trust. Every trust has to have such a transferor or settlor, but once the transfer in trust has been made, the transferor’s role usually becomes extremely limited or nonexistent. The two major categories of transferee or owner are known in Anglo-American law as the trustee (at common law the feofee) and the beneficiary (cestui que use).34 Trust property is transferred by the settlor to the trustee. The trustee has legal title to the trust property. This means that in the eyes of the law, e.g. for the purpose of levying taxes or transferring the property, the trustee is the owner. In reality, however, trustees can be considered more like managers of the property. The owners of the property in a non-technical sense are the beneficiaries. They are the ones entitled to the benefits which flow from property ownership, the primary benefit being the income generated by the property. Thus the trustees manage the property on behalf of the beneficiaries. In sum then the essential characteristic of a trust is the separation of property ownership into legal ownership and beneficial ownership and societies whose legal systems offer such a form of property ownership can at least be said to have a trust-like institution.

AD OPUS

In the Anglo-Saxon land books, there are references to transfers of money and/or chattels ad opus. Why is this phrase relevant to the search for the origins of the trust? Because the classic formulation for the separation of legal and equitable title in the common law is To A for the benefit of B where A is the holder of the legal title, i.e., the trustee, and B is the beneficial owner. A Latin phrase, perhaps the Latin phrase, which is the equivalent of for the benefit of is ad opus. In his "Note on the phrase ‘ad opus’ and the Early History of the Use,’ Maitland observes that the phrase ad opus can be traced back to early Frankish formulas and to the Carolingian laws of the Lombards.35 He then theorizes that the phrase passed from these ‘Frankish models" to the Anglo-Saxon landbooks36

In a search of John Mitchell Kemble’s Codex Diplomaticus Maitland identified three examples of the use of the phrase:

By Cenwulf of Mercia (809 A.D.): "Item in alio loco dedi eidem venerabli viro ad opus praefatas deo servientium terram. (Likewise in another place I gave to the same venerable man land for the benefit of the servants of God.")

By Beornwulf of Mercia (822 A.D.): "Rex dedit ecclesiae Christi et Wulfredo episcopo ad opus monarchorum … villam Godmeresham." (The king gave to the church of Christ and to the Bishop Wulford for the benefit of the rulers of the town of Godmeresham.)

In Werhard’s Testament (832 A.D.): the archbishop acquired lands of the use of the cathedral convent ad opus familiae [Christi]37

It is interesting that these conveyances are all to the church or to religious orders. The typical conveyance is to a bishop or abbot for the use of a church.38 It is not clear why the conveyances were made in this form instead of outright to the religious body. It may be that at the time only individuals could hold title to realty.39 Whatever the reason it seems fairly certain that the transferee held in some representative capacity, and not as the fee simple owner. If a dispute arose with regard to property conveyed to the church the ecclesiastical courts had exclusive jurisdiction. Maitland speculates that we might have come by a law of trusts sooner than we did, if the justices [civil] had been bound to deal with the administration of revenues given to prelates or convents … .

From the evidence of the presence of the phrase ad opus in connection with conveyances to the church one might conclude that in these conveyances lay the seed for the trust. But as the quotation from Maitland indicates, that is highly unlikely since the law regarding these religious conveyances was explicated in the ecclesiastical courts while legal historians seem to agree that the trust was developed in the civil courts. Moreover, we must go back to what the landbooks that Kemble made available really were. The Anglo-Saxon landbooks are not books in the sense of volumes. Rather each landbook is a separate document—in Marjorie Chibnall’s phrase40, a diploma—which records the conditions of a conveyance of land. As indicated above, in the search for the origins of the trust, a phrase used solely in connection with conveyances to religious bodies41 leads to the apparent dead-end of ecclesiastical jurisdiction. The question therefore follows of whether the phrase ad opus is found in landbooks conveying land to individuals or bodies having no connection with the church. The short answer is no. We know of no instances in which the phrase appears in an Anglo-Saxon landbook where the grantee is not, directly or indirectly, a religious body. Note that this is not to say that the phrase was not used, or even not in common use in conveyances, but only that such usage is not manifested in the Anglo-Saxon landbooks. On the other hand, most conveyances of rights in land were not in writing. Or, in Maitland’s more prosaic phraseology: Nothing could be more utterly unproved than the opinion that in Anglo-Saxon times written instruments were commonly used for the transfer of rights in land.42 We should note, however, that there is no collateral evidence that unrecorded transactions took place conditioned by the use of the phrase ad opus.

Until the Norman Conquest, these few ad opus conveyances comprise the only manifestations available of the existence of a trust-like device in English law. For Maitland the Norman Conquest was a catastrophe which determine[d] the whole future history of English law.43 Whether one agrees with this characterization of the Conquest,44 there is no doubt that it was of major significance in the development of English law. The possible impact of the invasion on the development of the law of trusts in England is a subject to which we will be returning. For the present we need to consider the context of the phrase ad opus following the invasion.

The more important instances of the use of ad opus post-Conquest are found in documents recorded in the Domesday Book. Again for readers unfamiliar with the history of medieval land law, Domesday Book incorporates the results of a survey of the wealth of individuals and estimated values of land throughout the kingdom about twenty years after the Conquest.45

Maitland notes that ad opus is not uncommon in Domesday Book46 and gives the following three examples:

(1) "Inter totum reddit per annum xxii.libras …ad firmam regis … Ad opus reginae duas uncias auri … et I. unciam auri ad opus vicecomitis per annum."

(2) "Duae hidae non geldabant quia de firma regis erant et ad opus regis calumniatae sunt."

(3) "Soca et saca in Bildeburh ad opus regis et comitis."

The first example is from that part of Domesday dealing with land in Befordshire and, in particular, Leighton … a household manor of the King’s.47 The portion quoted in Pollock and Maitland indicates that "In total, it pays 22 (pounds sterling) by weight to the King’s revenue … for the Queen’s work (Ad opus reginae) two ounces of gold and one ounce of gold for the benefit of the delegate of the count per year."

The second example is from Berkshire.48 It concerns the land of Henry of Ferrers (Henricus de Frieres) and the passage quoted indicates that the two hides referred to do "not pay geld (tax) because they were of the King’s revenue; they are claimed for the (ad opus) King’s work."

The final illustration is from the Suffolk records49 and indicates that the "full jurisdiction over the whole of this land of the free men lies in Blythburgh for the use of (ad opus) the King and the Earl."

Maitland makes no comment on these illustrations. Presumably he felt none was called for since he was purporting only to give some of the evidence I have collected.50 From our point of view, however, it seems clear that the first two examples do not use ad opus to illustrate a division of ownership between legal and beneficial estates. Rather the first deals with land owned by the king, part of whose revenues, i.e. two ounces of gold, are to be allocated to the queen’s income. The second illustration indicates that the land is not subject to taxation because the revenues of the property are those of the king. And while the third might be an illustration of divided ownership, i.e. property legally owned by X but held for the use of the King and the Earl, since the king was the ultimate repository of title it is unlikely that someone held legal title on his behalf.

As indicated, Maitland observed that the phrase ad opus was not uncommon in Domesday Book. For present purposes the phrase is a bit vague. The question is how common is it? That is, how many more examples than the three Maitland quoted are present. In the absence of a machine-readable version of Domesday Book, unavailable at the time of this writing, the author has relied upon the index to the Morris edition as a guide to the frequency with which the phrase is present. In addition to the three examples used by Maitland, the following are identified in the index.

1. DORSET. In describing POVINGTON, the final sentence indicates that "[t]his manor’s mill is claimed for the King’s use (ad op regis)."51

2. ESSEX. BARSTABLE. "This land was claimed for the King’s use (ad op regis)."52

3. ESSEX. FANTON (Hall). "This land was claimed for the King’s use (ad op reg) because it had come to the Church by a false writ."53

4. ESSEX. HUGH OF BERNIERES ANNEXATION. "Hugh of Bernieres used to hold 37 acres from the King, which he denied; later on it was adjudged to the King’s use (ad opus reg) …"54

5. ESSEX. "Bishop William adjudged these two manors to the use of his Church (ad op ecclae fuae) after the death of King Edward, by King William’s command."55

6. HAMPSHIRE. MEON. "Archbishop Stigand56 holds it before 1066 for the use of the monks (ad op monacho)"51

7. HUNTINGDONSHIRE. PERTENHALL. "The King’s officers claim it for his work (regis ad op ipfius)."58

8. LINCOLNSHIRE. NORTHORPE. 1 carucate "adjudged for the King’s use (ad opus regis)"59

9. LINCOLNSHIRE. In describing HOLBEACH and WHAPLODE, it is said "the King’s officers claim it for the King’s use (ad opus regis)"60

10. LINCOLNSHIRE. The parcel following the above is also "adjudged for the King’s use (ad op regis)"61

11. LINCOLNSHIRE. BURWELL. "[T]he lands of the two brothers Godric and Eadric, and the men of the Wapentake have adjudged them for the King’s use (ad opus regis)."62

12. LINCOLNSHIRE. WILLOUGHBY is claimed by the Bishop of Durham but the men of Riding state "(it is) for Gilbert’s use (ad op Giflebti)."63

13. LINCOLNSHIRE. NORTH HYKEHAM. "[T]he Abbott claims it for St. Peter’s use (ad op S petri.) … ."64

14. LINCOLNSHIRE. SCOTTLETHORPE. "[I]t is adjudged a head manor for the King’s use (ad op regis)"65

15. NORTHHAMPTONSHIRE. BRAFIELD. "Nigel claims it for Countess Judith’s use (ad op co mitiffe Judit.)"66

16. SUFFOLK. HUNTINGFIELD. The full jurisdiction over the whole of this land of the free men lies in Blythburgh for the use of the King.67

17. SUFFOLK. SHADINGFIELD. "This (free) man was adjudged and taken for the King’s use (ad opus regis) … ."68

18. SURREY. EFFINGHAM. "The Bishop of Bayeux’s men claim against this land 2 marks of gold or two hawks for the King’s work (ad op regis) each year."69

19. SURREY. REIGATE. "Then it answered for 37 y2 hides, now for 34 hides, for the King’s work (ad opus regis)"10

20. YORKSHIRE. AUGHTON. "Nigel Fossard claims the King as warrantor of this land to the use of Count Robert (ad op comitis.).71

21. YORKSHIRE. ELVINGTON. "The 6 carucates of land … which William of Percy has, they testify (were) for Robert Malet’s use (ad op Robti malet) because his father had them … . "72

22. YORKSHIRE. "The men of STRAFFORTH Wapentake testify to William de Warenne’s use (ad op Willi de Warenna) 2 carucates of Siward’s land in CLIFTON which … claimed."73

23. YORKSHIRE. "6 carucates of land in BARNBROUGH, which belong to CONISBROUGH. They testify to the use of William of Warenne (ad op Willi de Warene.)14

24. YORKSHIRE. "To the use of the same William (ad op ejd Willi) they testify 15 acres of land WILSIC (Hall)."75

25. YORKSHIRE. "2 marshalls seized Northmann’s land and held it. The men of the wapentake do not know in what way or for whose use (nec ad cuj opus.)"16

26. YORKSHIRE. "The men of AINSTY Wapentake testify 2 manors to William Malet’s use (ad op Willi malet) in STEETON … ."77

27. YORKSHIRE. "Likewise, they testify to the use of the same William (ad op Willi) … ."78

28. YORKSHIRE. "In COLTON and STEETON (Hall) they testify to the use of William Malet (ad opus Willi malet) … ."79

29. YORKSHIRE. " … 6 M> carucates of land, of Earnwine Catenase’s land which Osbern de Arches holds, they testify to the use of Malet (ad op malet), and they say that Earnwine the Priest ought to have (them) of Robert Malet."80

30. YORKSHIRE. "The men of ‘BURGHSHIRE’ (CLARO) Wapentake testify to the use of Ralph Paynel (ad op Rad Pagenel) 4 bovates of land in (Nun) MONKTON of Merlesveinn’s land, which Osbern de Arches holds."81

31. YORKSHIRE. "All the land which Drogo claimed against St. John’s is testified to the use of St. John’s (ad op) by the men of the riding through King William’s gift which he gave to St. John’s."82

What are we to make of the Domesday evidence? These ad opus titles are different from those in the Anglo-Saxon land books as they are not confined solely to grants to religious bodies. Can we then safely theorize that ad opus was used in a different way? Or that it was extended to a new situation? Two approaches can be taken to resolve these issues. Initially we can look at the Domesday language and the context in which the term ad opus is used. Thereafter we can look at the purpose for which Domesday Book was created.

Looking at Maitland’s examples, ad opus is translated as work and in the context of the first example from Bedfordshire would seem to explain the destination of the revenues produced by the land. This is also true of two of the examples found in our index search.(Numbers 7 and 18).

The most common use of the phrase is translated for the King’s use. The difference in translation of the identical phrase would seem to be explained by the context. Where it appears clear that the context is the destination of the produce of the land, the phrase is translated for the King’s (or Queen’s) work. The translation for the King’s use suggests another context. That context is the title or ownership of the land in question. That is, the draftsmen of Domesday are attempting to determine whom to tax. In some cases ownership is contested and in these cases the land is adjudged for the King’s use. This is the most frequent application of the phrase in Domesday—11 of the 33 examples of the phrase are given this meaning. Thus the user is considered the owner for Domesday purposes and ad opus is used to identify the user of the land.83 This is not to say that the user may not be someone different from the holder of legal title but there is nothing