Home

Encyclopedia

Summa

Fathers

Bible

Library

A  B  C  D  E  F  G  H  I  J  K  L  M  N  O  P  Q  R  S  T  U  V  W  X  Y  Z

Home
> Catholic Encyclopedia > M > Mortmain

Mortmain

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

These associations "of many individuals united into
one body, under a special denomination having perpetual succession under an artificial form" (Shelford, "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 ownership 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 possessing a legal personality and the
capacity to take and acquire property" (Ponce vs. Roman Catholic 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 appropriately described to be gens æterna eadem perpetuo
permanens quasi in ea nemo uniquam
moritur (an everlasting body continuing
perpetually the same as if in it no one may ever die). The communities might
consist of men, each of whom was deemed,
because of his vows,
civilly dead. But to the communities themselves, viri religiosi,
"people of religion", gens de main
morte, 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, considered not only the king,
but each bishop,
parson, and vicar as a corporation sole. And such might be a chantry priest, to whom land had
been given by its owner, subject to a perpetual service a chaunter par ly e
par ces 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.
According to this theory all land of subjects was deemed to have been acquired,
immediately or mediately, by grant of the
king. Of land directly acquired from the king, the person to whom the grant
or feoffment 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
feoffments there might result a long succession of lords, mediate and immediate, the king being
ultimate lord of all land in the kingdom
which was held 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. 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
capable of committing crime, or according to the
Norman expression, homme vivant, mourant
et confiscant (Thornton vs. Robin, I,
Moore's Privy Council Reports, 452). An artificial being, existing in
contemplation of
law, not competent to render military
service, 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
morte supplying as knight to fulfil the
services of a feudal
vassal. 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
relief from feudal obligations a notable
instance was the exemption given in 1156 by
Frederick Barbarossa to
the Dukles of Austria from all service,
except almost nominal military service. Land held by individuals 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
been sometimes the price of its amortissement (Littré, "Dictionnaire de
la langue française", Paris, 1889, s.f.).

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

But there appears to have arisen a somewhat widespread 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 communities in
order to hold land under these communities. For to contrivances of this kind the
Charter evidently alludes, prohibiting the same land being given to and taken
again from any religious house, and
forbidding any house of religion to take
land under an agreement of returning it to its former owner, terram alicujus
sic accipere quod tradat illam ei a quo ipsam recepit tenendam (see c. 36).

This early statute of mortmain applies only to
action by religious houses in the
way of enabling lay owners 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
Conquest licences in mortmain had become necessary "among the
Saxons" (Commentaries, B. 11, c. 18, 269) does not appear to be confirmed by this
Magna Carta, nor, in any general sense, by
the fact that the allusion in the Constitutions of Clarendon (1164) to mortmain
was confined to advowsons (ibid.).

The mortmain statute of Edward I, known as "Statutum de viris religiosis", 7
Edward I, enacted in 1279, and so often referred to by writers on English real property law, recites that
religious men have entered 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 (Duke, "The Law of Charitable Uses", London, 1805, 193).

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

A violation of the statute renders lawful
to the king "and other chief lords of the fee immediate", nobis et aliis
immediatis capitalibus dominis fœdi, 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 negligent 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",
capiemus in manum nostram.

The term manus mortua is not applied to the sovereign, 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 persons 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 servitia
nobis inde ad defensionem regni nostri facienda,
saving to the lords "their wards and
escheats and other services". A statute of 1290 permits 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 hallowed" (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) recites 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 tenants, have made churchyards
and by bulls of the bishop of Rome [(sic)—the French and more authoritative text reads:
par bulles del appostoill] have dedicated and
hallowed the same" and in these make
"parochial burying". Therefore all persons possessed of land
"to the use of religious 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 "spiritual persons" and churchyards, but enacts that the statute of
1279 shall "be observed of all lands, tenements, fees, advowsons, and other possessions purchased or to be purchased 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 forbidded to purchase.

Licences allowing, in particular instances, transfers into mortmain,
notwithstanding the statute, were issued from time to time. The text of a
licence of Edward I himself has been preserved, permitting a certain person to give a parcel of
land to a certain
prior and convent to be held
sibi et successoribus suis in perpetuum, but subject to the due and
accustomed services to the capitalibus dominis fædi, illius (Year Books of the reign of King Edward I, years
XXXII-XXXIII, London, 1864, 499). This licence recites that it is given ob
affectionem et benevolentiam towards the religious order. Nor do
licences in mortmain 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 purpose
of escaping the operation of the statute, such as purchases alluded to in the
statute of Richard 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
development of English
jurisprudence.
Concerning English aggregate ecclesiastical bodies of
former times, Sir Edward Coke observes in
language which we might imagine to be
applied to modern "trusts" and combinations 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" (Blackstone, "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 trinoda necessitas f(or
threefold obligation)
of repairing highways, building castles, and repelling invasions, but otherwise
to no service other than praying for the souls of the donor and his
heirs, dead or alive (Stephen, op. cit., I, 139, 140). To such pious foundations already
established none of the mortmain legislation applied.

When 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 Stephen,
"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 (1535), and thus,
according to Lord Bacon
(Reading on the Statute of Uses), "The possessions that had been in mortmain began
to stir abroad", a "stir" extended by the statute 37
Henry VIII, c. 4 (1545), to other religious houses and to chantries, this statute transferring their
lands to the sovereign's possession in
consideration of His Majesty'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 mischief. 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 perpetuities appears in a
statute of Henry VIII,
which preceded the confiscating statutes. This is the
statute 23 Henry VIII, c. X (1531), directed
against holding of lands, "to the use of parish churches, chapels, churchwardens, guilds, fraternities, commonalities,
companies, or brotherhoods", purposes
previously acknowledged as charitable and religious.

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

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

Dispositions for charity, which the law would specially
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
ascertain and condemn, in the varying light of English Statutes, as evils like to alienations in mortmain.

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

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

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

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

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

Notwithstanding the statements in the cases cited from Vesey's Reports that devises for charitable uses are not in themselves
alienations in mortmain, the latter word's
meaning has yet been claimed to embrace any perpetual holding of land "in a dead
or unserviceable hand". And such, it is claimed, "is the characteristic of
alienations to charitable uses". Land dedicated to the service of charity and
religion is said to be "practically inalienable", because any disposition of it,
which is incompatible with the carrying out or continuity of the benevolent
purposes of the conveyance, will be restrained by
Courts of Equity (Lewis, "A practical treatise on the Law of Perpetuity", Philadelphia, 1846,
689), in England the Court of Chancery.

For, notwithstanding mortmain statutes, and as if to
protect the sovereign from the reproach which, according to Coke, he might
otherwise have incurred, the lord chancellors seem, from a period long previous
to that of King Henry
VIII, to have protected and guarded trusts or uses in favour of charity. The chancellors seem to have
administered this duty
in their capacity as guardians of the king's
conscience, and by
force of an assumed, if not expressed, delegation of the royal prerogative and
sovereign will.

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

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

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

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

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
forms of worship are free" (Holland vs. Alcock, 108 New
York Court of Appeals Reports, 329).

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

Sources

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

About this page

APA citation. Sloane, C.
(1911). Mortmain. In The Catholic Encyclopedia. New York:
Robert Appleton Company.

http://www.newadvent.org/cathen/10579a.htm

MLA citation. Sloane,
Charles. "Mortmain." The
Catholic Encyclopedia. Vol. 10. New York: Robert Appleton Company, 1911.

<http://www.newadvent.org/cathen/10579a.htm>.

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

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

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

Copyright © 2009 by Kevin Knight.
Dedicated to the Immaculate Heart of
Mary.

CONTACT
US