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MORTMAIN


580


MORTMAIN


nor, in any general sense, by the fact tliat the allusion in the Constitutions of Clarendon (1164) to mortmain wivs oonfincd to ailvowsons (ibid.).

The mortmain statute of Edward I, known aa "Sta- tutum de viris religio.sis", 7 Edward I, enacted in 1279, and .so often referred to bv writers on English real property law, recites that religious men have en- tered into their own fees as well as into the fees of other men, and that those services due "and which at the beginning were provided for the defence of the Realm" are wrongfully withdrawn and the escheats lost to the chief lords (D\ikc, "The Law of Charitable Uses", London, 1805, 193).

The statute thereupon ordains that "no person, re- ligious or other", niilluf! nliyiasiis aiil iiliux (/iiwum- gue, shall buy or sell lands or tenements or receive them, or ajipropriate them (under pain of forfeiture) so as to cause the land to come into mortmain, per quod ad ttKiinnn niiviunm terrw el Icnementa hujusmodi devcniani (iwiiiun modo.

A violaticm of the statute renders lawful to the king "and otlu-r cliief lords of the fee immediate", Jiobis ct aliis uii»ii<li(tliii cajritalibuti duminis focdi, to enter and hold the land. The chief lord immediate is afforded a year to enter, the next chief lord immediate the half-year next ensuing, and so every lord immediate may enter into such land, if the next lord be negli- gent in entering. If all the chief lords who are "of full age, within the four seas and out of prison be negligent or slack", "we", the king, namely, "shall take such lands and tenements into our own hands", capieiniis in manum noalrani.

The term manus mnrliia is not applied to the sove- reign, yet land so taken "in manum nostram" is not to be retained. Such a retaining would be in mortmain. And the king promises to convey the land to other per- sons subject to services from which ownership by the "religious men" or others had withdrawn it, services for the defence of the realm, alios inde feoffabimus per certa senrUia nobis inde ad defensionem regni nostri facienda, saving to the lords "their wards and es- cheats and other serv-ices". A statute of 1290 per- mits any freeman to part with his land, the feoffee to hold of the same lord and by the same services as his feoffor held. But the statute cautiously adds that in no wise are the lands to come into mortmain against the statute (see 18 Edward I, c. I, c. II, c. III).

Where churches stood "the ground itself was hal- lowed" (see Ponce vs. Roman Catholic Church, 210 United States Supreme Court Reports, .312). And a statute of Richard II (15 Richard II, c. V; 1391) re- cites that "some religious persons, parsons, vicars and other spiritual persons have entered in divers lands and tenements, which be adjoining to their churches and of the same by sufferance and assent of the ten- ants, have made churchyards and by bulls of the bishop of Rome [(sic) — the French and more authori- tative text reads: par bulles del appostoill] have dedi- cated and hallowed the same" and in these make "parochial burying". Therefore all persons possessed of land "totheuseof rehgious people or other spiritual persons", of which these latter take the profits, are required upon pain of forfeiture to procure licence of amortization within a time limited, or to "sell and aliene " to some other use.

This statute does not confine its operation to "spirit- ual persons" and churchyards, but enacts that the statute of 1279 shall "be observed of all lands, tene- ments, fees, advowsons, and other possessions pur- ehase<l or to be purch;ised to the use of guilds and fraternities" and " Mayors, Bailiffs and Commons of Cities, Boroughs and other towns that have a perpetual commonalty", all of whom are forbidden to purchase.

Licences allowing, in particular instances, transfers into mortmain, notwithstanding the statute, were is- sued from time to time. The text of a licence of Ed- ward I himself has been preserved, permitting a cer-


tain person to give a parcel of land to a certain prior anil convent to be held sibi ct snrrrxsnrihis siiis in perpetniim, but subject to the due .iiid .iiruslomcd services to the cnpilalibus dnminix fudi illius (Year Books of the reign of King Kdwanl I, \iais XXXII- XXXUI, London, 1864, 499). This licence recites that it is given nb ajjectionem cl bcmrntinliam to- wanls the religious order. Nor do licences in mort- main seem to have ever become in England, as in France, recognized sources of royal revenue.

Legal devices, too, as in the times before the Magna Carta of Henry III, were resorted to for the [Hiriwse of escaping the operation of the stalulc, sucli as pur- chases alluded to in the statute of Ricliaril II "to the use" of persons other than those to whom the legal title was transferred. These devices have produced far-reaching and enduring influence on the develop- ment (]f iMi^lisli jurisprudence. Coni-eniing English agKi'cH'itc iM'clesiaslical bmlies of former times, .Sir Etlward Coke observes in language which we might imagine to be applied to modern "trusts" and com- binations of capital, that those bodies "in this were to be commended, that they ever had of their counsel the best learned men that they could get" (Black- stone, "Commentaries", B. 11, c. 18, 270).

Before the coming of the Conqueror and his feudal lawyers much land in England had been acquired to be held by the spiritual tenure of frankalmoign, a tenure subjecting the holders to what was termed the Iriudda nicexxiUtx (or threefold oliligation) of repairing higliways, Iniilding castles, and repelling invasions, but otlierwi.se to no sen'ice other than praying for the souls of the donor and his heirs, dead or alive (Stephen, op. cit., 1, 139, 140). To such pious foundations already established none of the mortmain legislation ap- plied.

WTien Henry VIII commenced his ecclesiastical alterations, the general body of the parochial clergy holding, in a corporate way, their lands by this tenure (ibid.) "acknowledged", to quote .Sir Edward Coke (1 Reports, 24, a), "King Henry VIII to be supreme head of the church of England", and thus continued to hold their lands by the .Saxon tenure, by which " the parochial clergy and very many ecclesiastical and eleemosynary foundations", observes Sergeant Ste- phen, "hold them at this day" (op. cit., I, 139).

Land held in mortmain by some of the religious corporations were confiscated by the statute 27 Henry VIII, c. 28 (1.535), and thus, according to Lord Ba- con (Reading on the Statute of Uses), "The posses- sions that had been in mortmain began to stir abroad", a "stir" extended by the statute 37 Henry VIII, c. 4 (154.5), to other religious houses and to chantries, this statute transferring their lands to the sovereign's possession in consideration of His Maj- esty's great costs and charges in his then wars with France and Scotland.

During the brief period of reaction after the death of King Edward VI, the statutes of mortmain, in so far as they applied to future conveyances to spiritual corporations, were suspended (1554) for twenty years (1 and 2 Philip and Mary, c. 8, sec. LI).

The expressions quoted from Lord Bacon, and an allusion of his to "plenty and purchasing", suggest the view that holding of land in mortmain, being opposed to land stirring abroad and its ready purchase, was in the nature of a public inconvenience or mis- chief. Similar views had not actuated the English kings and barons previous to Henry VIII, who (to quote Barrington, "Observations on the more ancient Statutes", London, 1796, 113), "had no notion of an inconvenience or mischief to the public from a stagnation of property ", realizing, however, that, "as the land was given to God, the king and the barons lost all the usual profits of what was held under them" (ibid.).

But opposition to mortmain holdings as being per-