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 amortizement, the person so alienating being said to amortize (Murray, “New English Dictionary”, Oxford and New York, 1888), a verb used by Chaucer in connection with good works “amortised by sinne following” (The Persones Tale). In Old French amortissement was used in connection with licences termed chartes d’amortissement, validating an alienation, amortir being defined eteindre en tout ou en partie lee droits de la seigneurie feodale (“La Grande Encyclopedie”, 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).
Corporate ownership, recognized by the Roman Law, did not become obsolete under Feudalism (q.v.). Throughout the Middle Ages there were numerous associations having, by their titles of association, “a perpetual body” or “a perpetual commonalty”. Such were the mayors, bailiffs, and commons of cities, or of boroughs and towns, and such, too, were various guilds and fraternities.
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, etc.”, 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 ceterna eadem perpetuo per= manens quasi in ea nemo unquam 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 (q.v.) priest, to whom land had been given by its owner, subject to a perpetual service a chaunter pur ly e pur ces heyrs a tou, 1urs (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 (q.v.). 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, 0.32;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, favored 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 a 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 Dukes 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 heen sometimes the price of its amortissement (Little, “Dictionnaire de la langue frangaise”, Paris, 1889, s.v.).
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 Encyclopedie”, 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 wide spread 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 rece pit 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 religious”, 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 defense 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 alios 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 terra et tenementa hujusmodi deveniant quoquo 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 fcedi, 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 maims 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 defense 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 diverse 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 forbidden to purchase.
Licences allowing, in particular instances, transfersinto mortmain, notwithstanding the statute, were is-sued 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 per petuum, but subject to the due and accustomed services to the capitalibus dominis fcedi illius (Year Books of the reign of King Edward I, years XXXIIXXXIII, 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” (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 trinoda necessitas (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 (I 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 (I 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, commonalties, 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. 1 Edward VI, c. XIV).
Sir Edward Coke explains this statute to have been directed against some purposes which were thence forth 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 pretense 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 English 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 Carta, 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 22 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 notmere nullities, but were effectual to transfer owner-ship 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 statement in the case 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 favor 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., 26).
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 reenacted 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” (I 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 make 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 favor 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 Ecclesiastical Property.)
CHARLES W. SLOANE