ANCIENT MORTMAIN AND MODERN MONOPOLY subject before us, but marks the termination of the first stage of the conflict between the Church and the State. Thenceforward, the Church, defeated in its effort to add to its already vast accumu lation of lands, was obliged to yield the point of actual ownership, and through a legal trick and device, content itself with the income and profit of real property held, it is true, in the name of an individual, but with the "use" thereof vested in the eccle siastical beneficiary. Thus the struggle changed from a contest for the physical and open mastery, to a contest in which all the arts of the ablest counsel of the da}' were employed in secur ing secret benefits — a trial of wit rather than of strength, which extended from the passage of the statute of mortmain, 1279, to the Mortmain Act of George the Second's time, 1736, prohibiting all secret conveyances for charitable purposes. The efforts of the State to protect its powers and prestige against an institution so powerful as the Church, — including as it did the immense vested interests, the naturally pious instincts of the English people, and with the authority of the Vicar of Christ always in the background, — now instituted a contest which seems like the struggles of Laocoon, or the mad heavings of trained wrestlers. At first, the statutory power seemed to prevail, but the subtlety of able men, schooled in the sophistries of Norman law, discovered means to evade the plain man dates of the law. The Church felt that its most vital interests were at stake, and to quote the language of Sir William Blackstone in this connection, "The aggregate ecclesiastical bodies (who, Sir Edward Coke observes, in this were to be commended, that they ever had of their counsel the best learned men they could get) found many means to creep out of this statute. " In this instance, the means of evasion were "uses," later known as "trusts." By the same authority, we know that this
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subterfuge was introduced into England "about the close of the reign of Edward III, by means of the foreign ecclesiastics; who introduced it to evade the statute of mort main, by obtaining grants of lands, not to religious houses directly, but to the use of the religious houses; which the clerical chancellors of those times held to be fideicommissa, and binding in conscience." "But." as we learn further, "unfortu nately for the inventors themselves, they did not long enjoy the advantage of their new device." The Statute 15 Richard II, Chap. 5., met this move by a counter-attack, whereby all "uses" were declared equally with the lands themselves, liable to the forfeitures and penalties of the mortmain statutes. Again the acute minds of the lawyers of the ecclesiastical institutions were requisi tioned, and by adding another link in the chain, i.e., a use to one person, to the use of another, to the use of the Church, an excuse was offered the willing chancellors of those times to hang thereon a decision that land could thus be safely and effectually trans ferred for pious purposes. This new invention was not easily met, and the Church may be said to have seen its star in the ascendency, until it was extinguished by the light which lurked in the eyes and radiated from the smile of gentle Anne Boleyn — an infatuation no less fatal to the temporal interests of the Church than to the fair recipient of Royal favor. That impulsive monarch, Henry VIII, would brook no opposing influence near his throne, and the world can read in the title deeds of many abbeys and manorial estates a record of what befell the ecclesiastical powers of that day, when the Church set itself against his untenable but apparently honest effort to divorce himself from Catherine on the ground of her affianced relations to his deceased brother. Before this onslaught had run its course, one third of the best lands of England and
