MORTMAIN, or Alienation in Mortmain (in mortua manu), is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence of which the lands became perpetually inherent in one dead hand, this occasioned the general appellation of mortmain to be applied to such alienations, and the religious houses themselves were principally considered in framing the statutes of mortmain. In deducing the history of these statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics, in eluding from time to time the laws in being, and the zeal with which successive parliaments pursued them through all their finesses; how new remedies were still the parents of fresh evasions, until the legislature at last, though with difficulty, obtained a decisive victory.

By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feudal restraints of alienation were worn away. Yet in consequence of these it was always and still is necessary for corporations to have a license of mortmain from the crown, to enable them to purchase lands; for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feudal profits, by the vesting of lands in tenants who can never be attainted or die. Such licenses of mortmain appear to have been necessary amongst the Saxons above sixty years before the Norman conquest. But, besides this general license from the king as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his license also for the alienation of the specific land; and if no such license was obtained, the king or other lord might respectively enter on the land so alienated in mortmain, as a forfeiture. The necessity of this license from the crown was acknowledged by the Constitutions of Clarendon, in respect of advowsons, which the monks always greatly coveted, as forming the groundwork of subsequent appropriations. Yet such were the influence and ingenuity of the clergy, that, notwithstanding this fundamental principle, we find that the largest and most considerable donations of religious houses happened within less than two centuries after the conquest. When a license could not beobtained, they contrived that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate should first convey his lands to the religious house, and instantly take them back again to hold as tenant to the monastery, which kind of instantaneous seisin was probably given not to occasion any forfeiture; and then, by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newly acquired signiory, as immediate lords of the fee. But when these donations began to grow numerous, it was observed that the feudal services, ordained for the defence of the kingdom, were every day visibly withdrawn; that the circulation of landed property from man to man began to stagnate; and that the lords were curtailed of the fruits of their signiories, their escheats, wardships, reliefs, and the like. To prevent this, therefore, it was ordained by the second of King Henry IIL’s great charters, and afterwards by that printed in the common statute-books, that all such attempts should be void, and the land forfeited to the lord of the fee.

But as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies, who had of their counsel the most learned men that they could get, found many means to creep out of this statute, by buying in lands which were bona fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute De Religiosis, 7 Edward I., which provided, that no person, religious or other whatsoever, should buy, or sell, or receive under pretence of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself, any lands or tenements in mortmain, upon pain of the immediate lord of the fee, or, in default of him for one year, the lords paramount, and in default of all of them, the king, entering thereon as a forfeiture.

This seemed to be a sufficient security against all alienations in mortmain. But as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to bring an action to recover it against the tenant, who, by arrangement and collusion, made no defence; and thereby judgment was given for the religious house, which then recovered the land by a sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right, which afterwards became the great assurance of the kingdom, under the name of common recoveries. But upon this it was enacted by the second statute of Westminster, 13 Edward I. c. 32, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land, and if the religious house or corporation be found to have it, they shall still recover seisin; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon default of the immediate or other lord. A similar provision was made by the succeeding chapter, in case the tenants should set up crosses upon their lands, the badges of knights templars and hospitallers, in order to protect them from the feudal demands of their lords, by virtue of the privileges of those religious and military orders. And. so careful was this prince to prevent any future evasions, that when the statute of Quia emptores, 18 Edward I., abolished sub-infeudations, and gave liberty to all men to alienate their lands to be holden of their next immediate lord, a proviso was inserted that this should not extend to authorize any kind of alienation in mortmain. When afterwards the method of obtaining the king’s license by writ of ad quod damnum marked out by the statute 27 Edward I. st. 2, it was further provided, by statute 34 Edward I. st. 3, that no such license should be effectual without the consent of the mesne or intermediate lords.

Yet still it was found difficult to set bounds to ecclesiastical ingenuity. For when the clergy were driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly, but only to nominal feoffees for the use of the religious houses, thus distinguishing between the possession and the use, and receiving the actual profits, whilst the seisin of the land remained in the nominal feoffee, who was held by the courts of equity, then under the direction of the clergy, to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it is to these inventions that our practitioners are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device; for the statute 15 Richard II. c. 5, enacts, that the lands which had been so purchased to uses should be admortised by license from the crown, or else be sold to private persons, and that for the future uses should be subject to the statutes of mortmain, and forfeitable like the lands themselves. And as the statutes had been notoriously eluded by purchasing large tracts of land adjoining to [7:15:564]churches, and consecrating them by the name of “churchyards,” such subtle imagination was also declared to be within the compass of the statutes of mortmain. Civil or lay corporations, as well as ecclesiastical, were also declared to be within the mischief, and of course within the remedy provided by those salutary laws. Lastly, as, during the times of popery, lands were frequently given for superstitious uses, though not to any corporate bodies, or were rendered liable in the hands of heirs and devisees to the charge of obits, chantries, and the like, which were equally pernicious with actual alienations in mortmain, therefore, at the dawn of the Reformation, the statute 23 Henry VIII. c. 10, declared, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, should be void.

But during the whole of this time it was in the power of the crown, by granting a license of mortmain, to remit the forfeiture, as far as related to its own rights, and to ∙enable any spiritual or other corporation to purchase and hold any lands or tenements in perpetuity; a prerogative which is declared and confirmed by the statute 18 Edward III. st. 3, c. 3. But as doubts were entertained at the time of the Revolution how far such license was valid, since the king had no power to dispense with the statutes of mortmain by a clause of non obstante, which was the usual course, though it seems to have been unnecessary; and as, by the gradual declension of mesne signiories through the long operation of the statute of Quia emptores, the rights of intermediate lords were reduced to a very small compass; it was therefore provided by the statute 7 and 8 William III. c. 37, that the crown for the future, at its own discretion, might grant licenses to alienate or take in mortmain, of whomsoever the tenements might be holden.

After the dissolution of monasteries under Henry VIII. though the policy of the next successor affected to grant a security to the possessors of abbey lands, yet, in order to regain as much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years, and during that time any lands or tenements were allowed to be granted to any spiritual corporation without any license whatsoever. And long afterwards, it was enacted by the statute 17 Car. II. c. 3, that appropriators might annex the great tithes to the vicarages, and that all benefices under L.100 per annum might be augmented by the purchase of lands, without license of mortmain in either case; and the like provision has been since made in favour of the governors of Queen Anne’s bounty. It has also been held, that the statute 13 Henry VIII. before mentioned, did not extend to any thing but superstitious uses, and that therefore a man may give lands for the maintenance of a school, an hospital, or any other charitable uses. But as it was apprehended, from recent experience, that persons on their deathbeds might make large and improvident dispositions even for these good purposes, and defeat the political ends of the statutes of mortmain, it was therefore enacted by the statute 9 George II. c. 36, that no lands or tenements, or money to be laid out thereon, should be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months after its execution (except stocks in the public funds, which may be transferred within six months previous to the donor’s death), and unless such gift were made to take effect immediately, and were without power of revocation, and that all other gifts should be void. The two universities, their colleges, and their scholars, upon the foundation of the colleges of Eton, Winchester, and Westminster, were excepted from the operation of this act; but such exemption was granted with this proviso, that no college should be at liberty to purchase more advowsons than were equal in number to one moiety of the fellows or students upon the respective foundations.