Mortmain

(Old Fr., morte = meyn),=20 dead-hand, or "such a state of = possession of=20 land as makes it inalienable" = (Wharton, "Law=20 Lexicon", 10th ed., London, 1902, s.v.), is "the=20 possession of land or tenements = by any corporation" (Bouvier, = "Law Dictionary", Boston, 1897, = s.v.), or=20 "where the use came ad manum=20 mortuam, which was when it = came to some=20 corporation" (Lord = Bacon, "Reading on the Statute = of Uses"),=20 alienation of lands or tenements to a = corporation being termed = alienation in=20 mortmain (Stephen, "New Commentaries on the Laws of England", 15th ed., = London,=20 1908, I, 296). The alienation was formerly expressed by the now obsolete = words=20 amortization and amortisement, the person so = alienating being said to = amortize=20 (Murray, "New English Dictionary", Oxford and = New York, 1888), a verb used by = Chaucer in = connexion with=20 good works "amortised = by some=20 following" (The Persones Tale). In Old French amortissement was = used in=20 connexion with licences termed chartes=20 d'amortissement, = validating an alienation, = amortir=20 being defined =E9teindre en = tout ou en=20 partie les droits de la seigneurie=20 f=E9odale ("La Grande = Encyclop=E9die",=20 Paris, s. d.; "Century Dictionary", New=20 York, s. d., s.v. amortization; cf. the same use of the = English word in statute 15 = Richard II, c.=20 5).=20

These associations "of many individuals = united into=20 one body, under a special denomination having perpetual = succession under an artificial = form" (Shelford, "A practical = treatise on=20 the Law of Mortmain, &c.", = Philadelphia 1842, 22) had = become=20 established for purposes which, in respect to any property they = were allowed=20 to acquire or to retain, implied an ownership free from the vicissitudes = and=20 limited duration of ownership by = natural persons.=20

The Catholic Church, having = been=20 recognized "since the time of the Emperor = Constantine" in=20 the countries which adopted the feudal system = "as possessing a = legal personality and = the=20 capacity to take and acquire property" (Ponce = vs. Roman Catholic Church, 210 = United States=20 Supreme Court Reports, 311), feudalism = recognized not=20 only the Church, but=20 its religious = communities, as spiritual = corporations. Such a community = has been=20 thought to be appropriately described to be gens =E6terna eadem = perpetuo=20 permanens quasi in ea nemo uniquam=20 moritur (an everlasting = body continuing=20 perpetually the same as if in it no one may ever die). The communities = might=20 consist of men, each of whom was = deemed,=20 because of his vows,=20 civilly dead. But to the communities themselves, viri = religiosi,=20 "people of religion", gens = de main=20 morte, the law=20 attributed a perpetual existence = and=20 perpetual ownership of property.=20

English = Law, admitting the corporate = existence of associations, which = were corporations aggregate, and = also allowing of=20 such an artificial existence in = an official individual, = considered not only the king,=20 but each bishop,=20 parson, and vicar as a = corporation sole. And such might = be a chantry priest, to whom = land had=20 been given by its owner, subject to a perpetual service a chaunter = par ly e=20 par ces heyrs a tou jours (see Year = Books of the reign of King = Edward the First, Years XX-XXI, = London,=20 1866, 265.)=20

Corporate ownership of land, however, by subjects of the realm was = repugnant=20 to feudal = theory.=20 According to this theory all land of subjects was deemed to have been = acquired,=20 immediately or mediately, by = grant of the=20 king. Of land directly acquired from the king, the person to whom = the grant=20 or feoffment was made, the feoffee, held as tenant in capite of = the Crown. If the tenant in = capite made=20 a feoffment, he became immediate lord of his feoffee, and as to the king = a mediate lord. And thus from = successive=20 feoffments there might result a long = succession of lords, = mediate and immediate, the king = being=20 ultimate lord of all land in the = kingdom=20 which was held by feudal = tenure. A freeman who became a = landowner was=20 bound in many instances to render military service to his immediate = lord, and=20 liable to forfeit the land for crime. Should he die without a proper = heir, the=20 land escheated. If he left a male heir under age, the lord was entitled = to his=20 guardianship. = In the=20 case of a female heir,=20 the lord was entitled to her disposal in = marriage (Stephen, op. cit., I, = 103-140).=20

The Magna Carta of King = Henry III (9 = Henry=20 III, c. 32; 1224), afterwards repealed as to this provision by = implication (Shelford, op. cit., 15), prohibited the giving or selling = by a=20 freeman of so much of his land as that the unsold residue should be = insufficient=20 to render to the lord of the fee the services due to = him.=20

Feudal theory, therefore, favoured ownership of land by some = natural person liable to = death and=20 capable of committing crime, or according to the=20 Norman expression, homme = vivant, mourant=20 et confiscant (Thornton vs. = Robin, I,=20 Moore's Privy Council Reports, 452). An artificial being, = existing in=20 contemplation of=20 law, not competent to render = military=20 service, incapable of crime, and not subject to death, was thus not = possessed of=20 the attributes which, according = to feudal polity, = became a=20 landowner.=20

In France = a custom arose of the gens = de main=20 morte supplying as knight to fulfil = the=20 services of a feudal=20 vassal. As early, however, as 1159 this = custom began to be superseded by = chartes=20 d'amortissement, and these = licences=20 became, in the course of time, an = important fiscal=20 resource of the Crown. Of the = conferring of=20 relief from feudal obligations a = notable=20 instance was the exemption given = in 1156 by=20 Frederick = Barbarossa to=20 the Dukles of Austria from all = service,=20 except almost nominal military service. Land held by individuals free = from feudal = liabilities was=20 designated as allodial (Fr. alleu), or a fief de Dieu, = or in=20 Germany as=20 Sonnenlehn.

A third of the value of property is said = to have=20 been sometimes the price of its amortissement (Littr=E9, = "Dictionnaire de=20 la langue fran=E7aise", Paris, 1889, s.f.).=20

William the Conqueror sought to promote in England holding = of land by=20 feudal = tenure. That allodial holdings = were known in=20 'England at the time of the = Conquest seems=20 quite possible (see "La Grande Encyclop=E9die", s.v. Alleu). = And many of=20 the holders would doubtless = consent to=20 change to the feudal = tenure, which implied feudal = protection.=20

But there appears to have arisen a somewhat widespread repugnance on = the part=20 of landowners to hold land subject to the faith and homage = which=20 accorded with the law = doctrines of the=20 Norman feudists. A method of = escape was=20 resorted to, which the Magna = Carta of King Henry = III indicates. Owners = availed themselves of the property rights of the religious = communities in=20 order to hold land under these communities. For to contrivances of this = kind the=20 Charter evidently alludes, prohibiting the same land being given to and = taken=20 again from any religious house, = and=20 forbidding any house of religion = to take=20 land under an agreement of returning it to its former owner, terram = alicujus=20 sic accipere quod tradat illam ei a quo ipsam recepit tenendam (see = c. 36).=20

This early statute of mortmain applies only to=20 action by religious houses = in the=20 way of enabling lay owners to = hold their=20 lands. The statute does not seem directed against the holding by the = houses of=20 land in their own possession. = The=20 correctness of Sir William = Blackstone's surmise that even = before the=20 Conquest licences in mortmain had become necessary "among = the=20 Saxons" (Commentaries, B. 11, c. 18, 269) does not appear to be = confirmed by this=20 Magna Carta, nor, in any general = sense, by=20 the fact that the allusion in the Constitutions of Clarendon (1164) to = mortmain=20 was confined to advowsons = (ibid.).=20

The mortmain statute of Edward I, known as "Statutum de viris = religiosis", 7=20 Edward I, enacted in 1279, and so often referred to by writers on = English real property = law, recites that=20 religious men have entered into = their own=20 fees as well as into the fees of other = men,=20 and that those services due "and which at the beginning were provided = for the=20 defence of the Realm" are = wrongfully=20 withdrawn and the escheats lost to the chief lords (Duke, "The = Law of = Charitable Uses", London, 1805, = 193).=20

The statute thereupon ordains that "no = person, = religious or other", nullus = religiosus=20 aut alius quicumque, shall buy or sell lands or tenements or = receive them,=20 or appropriate them (under pain of forfeiture) so as to = cause the land to come into = mortmain,=20 per quod ad manum mortuam = terr=E6 et=20 tenementa hujusmodi deveniant quoque = modo.=20

A violation of the statute renders = lawful=20 to the king "and other chief lords of the fee immediate", nobis et = aliis=20 immediatis capitalibus dominis = f=9Cdi, to=20 enter and hold the land. The chief lord immediate is afforded a year to = enter,=20 the next chief lord immediate the half-year next ensuing, and so every = lord=20 immediate may enter into such land, if the next lord be = negligent in entering. If all = the chief=20 lords who are "of full age, within the four seas and out of = prison be negligent or = slack", "we",=20 the king, namely, "shall take such lands and tenements into our own = hands",=20 capiemus in manum nostram.=20

The term manus mortua is not applied to the sovereign, yet = land so=20 taken "in manum nostram" is not to be retained. Such a retaining would = be in=20 mortmain. And the king promises to convey the land to other persons subject = to=20 services from which ownership by the "religious = men" or others had withdrawn it, = services=20 for the defence of the realm, alios inde feoffabimus per certa = servitia=20 nobis inde ad defensionem regni nostri facienda,=20 saving to the lords "their wards = and=20 escheats and other services". A statute of 1290 permits any freeman to = part with=20 his land, the feoffee to hold of the same lord and by the same services = as his=20 feoffor held. But the statute cautiously adds that in no wise are the = lands to=20 come into mortmain against the statute (see 18 Edward I, c. I, c. II, c. = III).=20

Where churches stood "the = ground itself=20 was hallowed" (see = Ponce vs. = Roman Catholic Church, 210 = United States=20 Supreme Court Reports, 312). And a statute of Richard II (15 Richard II, = c. V;=20 1391) recites that "some = religious persons, = parsons, vicars and other=20 spiritual persons have = entered in=20 divers lands and tenements, which be adjoining to their = churches and of the same by = sufferance and=20 assent of the tenants, have made = churchyards=20 and by bulls of the bishop of Rome = [(sic)=97the French and more = authoritative text reads:=20 par bulles del = appostoill] have dedicated = and=20 hallowed the same" and in these = make=20 "parochial burying". Therefore = all persons = possessed of land=20 "to the use of religious people = or other spiritual = persons", of which these latter = take the=20 profits, are required upon pain of forfeiture to procure licence of = amortization=20 within a time limited, or to = "sell and=20 aliene" to some other use.=20

This statute does not confine its operation to "spiritual persons" and = churchyards, but enacts that the = statute of=20 1279 shall "be observed of all lands, tenements, fees, = advowsons, and other = possessions purchased or to be = purchased to=20 the use of guilds and = fraternities" and=20 "Mayors, Bailiffs and Commons of Cities,=20 Boroughs and other towns that = have a=20 perpetual commonalty", all of whom are forbidded to = purchase.=20

Licences allowing, in particular instances, transfers into mortmain,=20 notwithstanding the statute, were issued from time to time. The text of = a=20 licence of Edward I himself has been preserved, permitting a certain person to give a = parcel of=20 land to a certain=20 prior and convent to be = held=20 sibi et successoribus suis in perpetuum, but subject to the due = and=20 accustomed services to the capitalibus = dominis f=E6di, illius = (Year Books of the reign of King = Edward I, years=20 XXXII-XXXIII, London, 1864, 499). This licence recites that it is given = ob=20 affectionem et benevolentiam towards the religious order. = Nor do=20 licences in mortmain seem to have ever become in England, as in = France, = recognized sources=20 of royal = revenue.Magna Carta of=20 Henry III, were resorted to for = the purpose=20 of escaping the operation of the statute, such as purchases alluded to = in the=20 statute of Richard II "to the use" of persons other = than those=20 to whom the legal title was = transferred.=20 These devices have produced far-reaching and enduring influence on the=20 development of English=20 jurisprudence.=20 Concerning English aggregate ecclesiastical = bodies of=20 former times, Sir Edward Coke = observes in=20 language which we might imagine = to be=20 applied to modern "trusts" and combinations of capital, that those = bodies "in=20 this were to be commended, that they ever had of their counsel the best = learned=20 men that they could get" (Blackstone, "Commentaries", B. 11, c. 18, = 270).=20

Before the coming of the Conqueror and his feudal lawyers = much land=20 in England = had been=20 acquired to be held by the = spiritual = tenure of frankalmoign, a = tenure subjecting the holders to = what was=20 termed the trinoda necessitas = f(or=20 threefold obligation)=20 of repairing highways, building castles, and repelling invasions, but = otherwise=20 to no service other than praying for the = souls of the = donor and his=20 heirs, dead or alive (Stephen, op. cit., I, 139, 140). To such pious = foundations already=20 established none of the mortmain legislation = applied.=20

When Henry = VIII=20 commenced his ecclesiastical=20 alterations, the general body of the parochial clergy holding, = in a=20 corporate way, their lands by this = tenure=20 (ibid.) "acknowledged", to quote Sir = Edward=20 Coke (1 Reports, 24, a), "King Henry = VIII to=20 be supreme head of the church of = England",=20 and thus continued to hold their lands by the = Saxon = tenure, by which "the = parochial = clergy and very many = ecclesiastical and eleemosynary=20 foundations", observes Sergeant = Stephen,=20 "hold them at this day" (op. cit., I, 139).=20

Land held in mortmain by some of the = religious=20 corporations were confiscated by = the statute=20 27 Henry VIII, c. 28 (1535), and = thus,=20 according to Lord = Bacon=20 (Reading on the Statute of Uses), "The = possessions that had been in = mortmain began=20 to stir abroad", a "stir" extended by the statute 37=20 Henry VIII, c. 4 (1545), to = other religious houses = and to chantries, this statute = transferring their=20 lands to the sovereign's = possession in=20 consideration of His Majesty's = great costs=20 and charges in his then wars with France and Scotland.=20

During the brief period of reaction after the death of King Edward = VI, the statutes of = mortmain, in=20 so far as they applied to future conveyances to=20 spiritual=20 corporations, were = suspended (1554) for twenty = years (1 and 2 Philip and = Mary, c. 8, sec. = LI).=20

The expressions quoted from Lord Bacon, and = an=20 allusion of his to "plenty and purchasing", suggest the view that = holding of=20 land in mortmain, being opposed to land stirring abroad and its ready = purchase,=20 was in the nature of a public = inconvenience=20 or mischief. Similar views had not actuated the=20 English kings and barons = previous to Henry VIII, who = (to quote Barrington, = "Observations on the more=20 ancient Statutes", London, 1796, 113), "had no notion of an = inconvenience or=20 mischief to the public from a stagnation of = property", realizing, however, = that, "as the=20 land was given to God,=20 the king and the barons lost all the usual profits of what was held = under them"=20 (ibid.).=20

But opposition to mortmain holdings as being perpetuities appears in = a=20 statute of Henry = VIII,=20 which preceded the confiscating statutes. This = is the=20 statute 23 Henry VIII, c. X = (1531), directed=20 against holding of lands, "to the use of = parish = churches, = chapels, churchwardens, = guilds, fraternities, = commonalities,=20 companies, or brotherhoods", = purposes=20 previously acknowledged as = charitable and = religious.=20

Excluding from its operation cities and towns corporate, having, by = their=20 ancient customs, power to "devise into mortmain", the statute alluded to = declares trusts or assurances to = the uses=20 just mentioned "erected and made of = devotions or by common assent of = the people=20 without any corporation", or "to = the uses=20 and intents to have obites = perpetual or a=20 continual service of a priest = forever", or=20 for sixty or eighty years, to be within the mischiefs of alienation = "into=20 mortmain", and as to future = gifts void=20 except for terms not exceeding twenty years (cf. I Edward VI, c. = XIV).=20

Sir Edward Coke explains this = statute to=20 have been directed against some purposes which were thenceforth to be = condemned=20 as superstitious,=20 although formerly approved as = charitable,=20 "such superstitious uses", he = points out,=20 "as to pray = for souls supposed = to be in purgatory, and = the like".=20 Not long before the date of the = statute Coke=20 observes "by the light of God's = word",=20 "diverse superstitions=20 and errors in = the Christian = religion which=20 had a pretence and semblance of = charity and = devotion were discovered". With = true = charity, he claims, the statute = was not=20 intended to interfere. For, he observes, "no = time was so barbarous as to = abolish learning=20 and knowledge = nor so uncharitable as to = prohibit relieving the poor" = (op. cit., 24 a). And he allows us to=20 infer such to be the fact, even though the = charity might constitute a = perpetuity.=20

Dispositions for charity, = which the law would = specially=20 commend, a statute of Queen Elizabeth mentions (43 Elizabeth, c. IV, = 1601). Dispositions in aid of = "superstitions" were not to be = deemed charitable, and these the = courts were to=20 ascertain and condemn, in the varying light of = English Statutes, as = evils like to alienations in = mortmain.=20

An authority on the law of = charitable uses (Duke, op. cit., = 125) states=20 that "religion being variable, according to the pleasure of succeeding = princes,=20 that which at one time is held for orthodoxy may at = another=20 be accounted superstitious". = And=20 accordingly the Englsih courts = even=20 condemned as superstitious = the charge=20 on land of an annual sum for education of = Scotchmen to propagate in Scotland the = doctrines of the Church of = England. For, by=20 statute, presbyteries had been = settled in=20 that portion of the United = Kingdom [Methodist = Church vs. Remington, = 1 Watts (Pa.), Reports, p. = 224].=20

The manner of establishing a = charity was=20 in the course of time=20 restricted by "the statute of mortmain commonly so called", remarks the = Master of the=20 Rolls in Corbyn vs. = French, 4 = Vesey's Reports, 427, "but", he = adds, "very=20 improperly, for it does not prevent the alienation of land in mortmain, = nor was=20 that the object of the = Act".=20

Reciting that gifts of lands = in mortmain=20 are restrained by Magna Cata, and other laws as against = the public=20 utility, but that "nevertheless this public mischief has of late greatly = increased by many large and improvident alienations or dispositions to = uses=20 called charitable uses", this = statute (9=20 George II, c. XXXVI, 1736) provides that thenceforth such dispositions = shall be=20 "null and void", unless executed = with certain prescribed = solemnities, and not less than = twelve months=20 before the death of the donor.=20

The statutes 23 = Henry VIII and this statute of = George II, in=20 their effect on the dispositions of land, which they prohibit, differ = from the=20 old mortmain acts. The statutes = referred to=20 render such dispositions void, that is, of no effect whatsoever. But = alienations=20 in mortmain properly so termed were not mere nullities, but were = effectual to=20 transfer ownership of land to a = corporation=20 by which the land might be retained until its = forfeiture.=20

Enforcement of a forfeiture and the declaring void a charge on, or = use of,=20 land are in their nature and = result very=20 different.=20

Notwithstanding the statements in the cases cited from = Vesey's Reports that devises for = charitable uses are not in = themselves=20 alienations in mortmain, the latter = word's=20 meaning has yet been claimed to embrace any perpetual holding of land = "in a dead=20 or unserviceable hand". And such, it is claimed, "is the characteristic = of=20 alienations to charitable uses". = Land dedicated to the service of = charity and=20 religion is said to be = "practically inalienable", = because any disposition of it,=20 which is incompatible with the carrying out or continuity of the = benevolent=20 purposes of the conveyance, will be restrained by=20 Courts of = Equity (Lewis, "A practical = treatise on the Law of = Perpetuity", Philadelphia, 1846,=20 689), in England the = Court of = Chancery.trusts or uses in favour of = charity. The chancellors seem to = have=20 administered this duty=20 in their capacity as guardians = of the king's=20 conscience, = and by=20 force of an assumed, if not = expressed, delegation of the = royal prerogative and=20 sovereign = will.=20

We cannot here consider the subject of royal prerogative, nor how the = modern=20 differs from the ancient theory concerning it. Whether modern = legislation=20 against perpetual holdings of land is to be deemed to prohibit by = implication trusts for = charity, because they imply = perpetual=20 ownership, has been the subject of extensive = legal discussion and of = discordant judicial=20 decisions.=20

But according to the existing = law of England we learn = from=20 Sergeant Stephen (op. cit., III, = 174) that=20 "there is now practically no restraint whatsoever on=20 gifts of land by=20 will for=20 charitable purposes. = Pure personal estate", he adds, = "may, of=20 course, be freely bequeathed for these purposes". All=20 corporations, however, are yet = precluded by English = law from purchasing land "except = by licence=20 in mortmain from the Crown" (ibid., 16).=20

As to what dispositions of property which = otherwise=20 would be charitable are to be = deemed legally superstitious, = the modern law of England is less = narrow and=20 rigid than the law was=20 formerly interpreted to be (ibid., 180).=20

The statutes of=20 mortmain themselves were not extended to the colonies. And respecting = the United States = Chancellor Kent observes, "We = have not in this country=20 re-enacted the Statutes of=20 Mortmain or generally assumed them to be in force; and the = only legal check to the = acquisition of lands by = corporations consists in those = special=20 restrictions contained in the = acts by which=20 they are incorporated =85 and in the force to be given to the exception = of corporations out of the = Statute of Wills"=20 (Commentaries on American = law, 14th ed., Boston, 1896, II, = 282). The commentator states, by = way of exception,=20 that the statutes of=20 mortmain are in force in the State of = Pennsylvania. The=20 supreme court of that State, in 1832, stated that these statutes had = been extended=20 to the State "only so far as they prohibit = dedications of property to superstitious = uses and=20 grants to corporations without a = statutory=20 licence" (1 Watts Reports, 224). = The court=20 had in mind, but seemed reluctant to follow, the "Report of the = Judges" made in 1808, and which = is to be=20 found in 3 Binney's Reports. The "Report" almost follows the statute of = Henry VIII, in = declaring=20 all conveyances "void made either to an = individual or to any number of = persons = associated, but=20 not incorporated, if the said conveyances are for uses or purposes of a = superstitious = nature, and not calculated to = promote=20 objects of charity or = utility".=20

Notwithstanding this early declaration, no such doctrine as that = of the English courts on the = subject of superstitious = uses or trusts can well have a = place in the jurisprudence of = the United States, = where "all religious beliefs, = doctrines and=20 forms of = worship are free" (Holland vs. = Alcock, 108 = New=20 York Court of = Appeals Reports, = 329).=20

The people of the States made = known their=20 sovereign will by enactments of = the State=20 legislatures, to which bodies the prerogatives of sovereignty have been=20 delegated. And, therefore, the validity of dispositions of land in = favour of charity is controlled = by the law of the State = where the=20 land is situated, and without any implied = delegation of prerogative to any = judicial=20 officer. And the same remark applies to the general power of = corporations to acquire and to = hold land in=20 the several States. (See PROPERTY,=20 ECCLESIASTICAL.) =

Sources

PICKERING, The = Statutes at=20 Large (Cambridge, 1800); STUBBS, Select Charters and other=20 illustrations of English Constitutional History (5th ed., Oxford, = 1884);=20 BURGE, Commentaries on Colonial and Foreign Laws generally = (London,=20 1838), 11, 546, 548; Vidal vs. Girard's Executors, 2 Howard, United = States=20 Supreme Court Reports, v, 194, 195; Fountain v. Ravenel, 17 = do.,=20 v, 384, 385, 389; DILLON, Bequests for Masses for the Souls of = deceased=20 persons (Chicago, 1896); Holmes vs. Mead, 52 New York Court of = Appeals=20 Reports, 332; Allen vs. Stevens, 161 do., 122; THOMPSON,=20 Commentaries on the laws of Private Corporations (Indianapolis, = 1909),=20 sections 2365-2400; HALSBURY, The Laws of England (London, = 1909), s.v.=20 Corporations.

About this page

APA citation. Sloane, = C.=20 (1911). Mortmain. = In The Catholic Encyclopedia. New York:=20 Robert Appleton Company. http://www.newadvent.org/cathen/10579a.htm

MLA citation. Sloane,=20 Charles. "Mortmain." The=20 Catholic Encyclopedia. Vol. 10. New York: Robert Appleton Company, 1911. <http://www.newadvent.org/cathen/10579a.htm>.

Transcription. This=20 article was transcribed for New Advent by WGKofron. With thanks to Fr. John Hilkert and St. Mary's Church, = Akron,=20 Ohio.

Ecclesiastical approbation. Nihil Obstat. October 1, 1911. Remy Lafort, S.T.D.,=20 Censor. Imprimatur. +John Cardinal = Farley,=20 Archbishop of New York.

Contact information. The editor of = New Advent=20 is Kevin Knight. My email address is feedback732 at = newadvent.org. (To=20 help fight spam, this address might change occasionally.) Regrettably, I = can't=20 reply to every letter, but I greatly appreciate your feedback =97 = especially=20 notifications about typographical errors and inappropriate = ads.