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MORTMAIN


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MORTMAIN


Mortmain (Old Fr., inorte meyn), dead-hand, or "Buch a state of possession of land as makes it in- alienable" (Wharton, "Law Lexicon", 10th ed., London, 1902, s. v.), is "the possession of land or tenements by any corporation" (Bouvier, "Law Dictionary", Boston, 1S97, s. v.), or "where the use came ad manum niortiiam, which was when it came to some corporation" (Lord Bacon, "Reading on the Statute of Uses"), alienation of lands or tenements to a corporation being termed alienation in mortmain (Stephen, "New Commentaries on the Laws of Eng- land", 15th ed., London, 1908, I, 296). The aliena- tion was formerly expressed by the now obsolete words amnrlization and amortizement, the person so alienating being said to amortize (Murray, "New Eng- lish Dictionary", Oxford and New York, 1888), a verb used by Chaucer in connexion with good works "amortised by sinne following" (The Persones Tale). In Old French amortissement was used in connexion with licences termed chartes d'amortissement, validat- ing an alienation, amortir being defined eteiridre en tout oil en partie les droits de la seigneurie feodale ("La Grande Kncyclop^die", Paris, s. d.; "Century Diction- ary", New York, s. d., s. v. amortization; cf. the same use of the English word in statute 15 Richard II, c. 5).

Corporate ownership, recognized by the Roman Law, did not become obsolete under feudalism (q. v.). Throughout the Middle Ages there were numerous associations having, by their titles of association, "a perpetual body " or " a perpetual commonalty " . Such were the mayors, bailiffs, and commons of cities, or of boroughs and towns, and such, too, were various guilds and fraternities.

These associations "of many individuals united into one body, under a special denomination having perpetual succession under an artificial form" (Shel- ford, "A practical treatise on the Law of Mortmain, &c.", Philadelphia, 1842, 22) had become established for purposes which, in respect to any property they were allowed to acquire or to retain, implied an owner- ship free from the vicissitudes and limited duration of ownership by natural persons.

The Catholic Church, having been recognized "since the time of the Emperor Constantine" in the countries which adopted the feudal system "as pos- sessing a legal personality and the capacity to take and acquire property" (Ponce vs. Roman Cathohc Church, 210 United States Supreme Court Reports, 311), feudalism recognized not only the Church, but its religious communities, as spiritual corporations. Such a community has been thought to be appropri- ately described to be gens OEterna eadem perpctuo per- manens quasi in ea nemo unquam moritur (an everlast- ing body continuing perpetually the same as if in it no one may ever die). The communities might con- sist of men, each of whom was deemed, because of his vows, civilly dead. But to the communities them- selves, viri religiosi, "people of religion", gensde main inorte, the law attributed a perpetual existence and perpetual ownership of property.

English Law, admitting the corporate existence of associations, which were corporations aggregate, and also allowing of such an artificial existence in an official individual, con.sidered not only the king, but jeach bishop, parson, and vicar as a corporation sole. And such might be a chantry (q. v.) priest, to whom land had been given by its owner, subject to a per- petual service a chaunler pur ly e pur ccs heyrs a tou jours (see Year Books of the reign of King Edward the First, Years XX-XXI, London, 1866, 265).

Corporate ownership of land, however, by subjects of the realm was repugnant to feudal theory. Accord- ing to this theory all land of subjects was deemed to have been acquired, immediately or mediately, by grant of the king. f)f land <Urcftiy acquired froin the king, the penson to wlioiu I he uruiit or frofTment was made, the feoffee, held as tenant in capite of the


Crown. If the tenant in capite made a feoffment, he became immediate lord of his feoffee, and as to the king a mediate lord. And thus from successive fe- offments there might result a long succession of lords, mediate and immediate, the king being ultimate lord of all land in the kingdom which was hekl by feudal tenure. A freeman who became a landowner was bound in many instances to render military service to his immediate lord, and liable to forfeit the land for crime. Should he die without a proper heir, the land escheated. If he left a male heir under age, the lord was entitled to his guardianship (q. v.). In the case of a female heir, the lord was entitled to her disposal in marriage (Stephen, op. cit., I, 103-140).

The Magna Carta of King Henry III (9 Henry III, c. 32 ; 1224) , afterwards repealed as to this provision by implication (Shelford, op. cit., 15), prohibited the giving or selling by a freeman of so much of his land as that the unsold residue should be insufficient to render to the lord of the fee the services due to him.

Feudal theory, therefore, favoured ownership of land by some natural person liable to death and capa- ble of committing crime, or according to the Nor- man expression, homme vivant, viourant el confiscant (Thornton vs. Robin, I, Moore's Privy Coimcil Re- ports, 452). An artificial being, existing in contem- plation of law, not competent to render military ser- vice, incapable of crime, and not subject to death, was thus not possessed of the attributes which, according to feudal polity, became a landowner.

In France a custom arose of the gens de main inorte supplying a loiight to fulfd the services of a feudal vas- sal. As early, however, as 1159 this custom began to be superseded by chartes d'amortissement, and these licences became, in the course of time, an important fiscal resource of the Crown. Of the conferring of re- lief from feudal obligations a notable instance was the exemption given in 1156 by Frederick Barbarossa to the Dukes of Austria from all service, except al- most nominal military service. Land held by indi- viduals free from feudal liabilities was designated as allodial (Fr. alleu), or a fief de Dieu, or in Germany as Sonnenlehn.

A third of the value of property is said to have heen sometimes the price of its amoriissement (Littre, "Dic- tionnaire de la langue fran^aise", Paris, 1889, s. v.).

William the Conqueror sought to promote in Eng- land holding of land by feudal tenure. That allo- dial holdings were known in England at the time of the Conquest seems quite possible (see "La Grande En- cyclopedic", s. V. Alleu). And many of the holders would doubtless con.sent to change to the feudal ten- ure, which implied feudal protection.

But there appears to have arisen a somewhat wide- spread repugnance on the part of landowners to hold land subject to the faith and homage which accorded with the law doctrines of the Norman feudists. A method of escape was resorted to, which the Magna Carta of King Henry III indicates. Owners availed themselves of the property rights of the religious com- munities in order to hold land under these communi- ties. For to contrivances of this kind the Charter evi- dently alludes, prohibiting the same land being given to and taken again from any religious house, and for- bidding any house of religion to take land under an agreement of returning it to its former owner, terram alicujus sic acdpere quod Iradat illam ei a quo ipsam recepil tenentlam (see c. 36).

This early statute of mortmain applies only to ac- tion by religious houses in the way of enabling lay own- ers to" hold their lands. The statute does not seem directed against the holding by the houses of land in their own possession. The correctness of Sir William Blackstone's surmise that even before the Conijuest licences in mortmain had become necessary "among the Saxons" (Commentaries, B. 11, c. 18, 269) doea not appear to be confirmed by this Magna Carta,