mortmain
(Old French morte meyn, dead hand)
Inalienable possession of land, a dead man’s clutch on it. The term signiifies possession in perpetuity; possession of land, or tenements, by any corporation. It was at one time invoked, particularly in England, to question the title of religious and charitable trusts, with a view to misappropriating them, especially such as were invested in the Catholic Church. The policy never found favor in the colonies except in Pennsylvania, in order to prevent dedications of property to superstitious usee, and it can have no place in the jurisprudence of the United States.
Fuente: New Catholic Dictionary
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 cirime. 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 fœdi, 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, 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. 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.)
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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.
CHARLES W. SLOANE. Transcribed by WGKofron With thanks to Fr. John Hilkert and St. Mary’s Church, Akron, Ohio
The Catholic Encyclopedia, Volume XCopyright © 1911 by Robert Appleton CompanyOnline Edition Copyright © 2003 by K. KnightNihil Obstat, October 1, 1911. Remy Lafort, S.T.D., CensorImprimatur. +John Cardinal Farley, Archbishop of New York
Fuente: Catholic Encyclopedia
Mortmain
(from French mort, “dead,” and main, “hand,” which in turn from Latin mortua manu, i.e., in the dead hand) is the technical term of a series of Anglican statutes dealing with the lands of corporate bodies, especially ecclesiastical. The most probable origin of the term is that given by Coke, that “the lands were said to come to dead hands as to the lords, for that by alienation in mortmain they lost wholly their escheats, and in effect their knights’ services, for the defence of the realm, wards, marriages, reliefs, and the like, and therefore was called a dead hand, for that a dead hand yieldeth no service.” In the latter part of the Middle Ages the Roman Catholic Church, which had acquired a strong hold in England, came to own very largely the real estate of the country, until at one time it owned fully one third of all the English landed estate, which thus paid no taxes. By 1215 it had obtained so large a part of the real estate that it practically disabled the government from raising the necessary means to pay its expenses. To put a stop to this evil, a clause was introduced into the Magna Charta forbidding gifts of land to religious houses. This was the first statute of mortmain, and declares ” that if any one shall give land to a religious house, the grant shall be void, and the land forfeited to the lord of the fee.” But when the Romish Church, which had no interest in state affairs, saw itself thus suddenly cut short in its expansion of power and wealth, it found a way to evade the law by taking, instead of a fee-simple title to the land, leases for a thousand years.
To meet this evasion of the intent of the law, the state, in the reign of Edward I, passed the statute De Religiosis, which restrained people at the time of their death, or otherwise, from giving or making over any lands or rents to churches or religious houses without the king’s leave being first obtained. This was rendered extremely necessary by the fact that the king’s exchequer had been impoverished to the utmost by the accumulation of landed property in the hands of ecclesiastical bodies, and protection of the state interests, especially in view of the evasions of the Church. But even this provision failed to meet the case. The wily churchmen found a way to evade compliance with this law by a collusive action brought in court for each piece of real estate the Church wished to get title of. In this way an individual entirely under control of the Church would take the title to the property and occupy it; then the religious corporation would bring a suit of ejectment against him, claiming that the title in the property was in the Church, -and that he was illegally keeping the Church out of it.
The tenant, being in collusion with the Church, would make no defence, and a decree on default would be taken, adjudging the property to the Church; then they would hold it by a decree of court called a recovery. Thus the statute of the Edward I was completely evaded and the state circumvented. Another statute, the 13 Edward I, was passed, prohibiting religious corporations from taking either by gift, purchase, lease, or recovery. Priestly ingenuity, however, in a short time succeeded in meeting also this provision, and for its evasion introduced into England from the Roman law the doctrine of uses, by which the title of real estate would be in another; but he would hold it to the uses of a religious house, so that the religious corporation would get all the benefit of the real estate, the naked title standing only in the individual. This practice was shielded under a royal charter of license, which (as e.g. by 17 Car. II, c. 3) enacted, “Every owner of any impropriations, tithes, or portions of tithes, in any parish or chapelry, may give and annex the same, or any part thereof, unto the patronage or vicarage of the said parish church or chapel where the same do lie or arise; or settle the same in trust for the benefit of the said parsonage or vicarage, or of the curate or curates there successively, where the parsonage is inappropriate and no vicar endowed, without any license or mortmain.” The evil became so oppressive that finally the 15 Richard II was enacted to head off the priests from swallowing up the fruits of the lands under their new doctrine imported from Italy of uses and trusts. But again priestcraft gained the upper hand, and by the 23 Henry 8, c. 10, it was enacted, “That if any grants of lands or other hereditaments should be made in trust to the use of any churches, chapels, churchwardens, guilds, fraternities, etc., to have perpetual obits, or a continual service of a priest forever, or for sixty or eighty years, or to such like uses and intents, all such uses, intents, and purposes shall be void; they being no corporations, but erected either of devotion or else by the common consent of the people; and all collateral assurances made for defeating this statute shall be void, and the said statute shall be expounded most beneficially for the destruction of such uses as aforesaid.” Even this provision failed to cover the case; and at last, in 1736, the celebrated statute of George II was passed, which effectually put an end to all evasions of ecclesiastical taxation.
Perhaps even it, would have been insufficient to cope with Romish cunning, but the dethronement of the Roman Catholics from their former predominance as an ecclesiastical body no doubt greatly contributed to a successful issue in the question. It was the confiscation of Church property in the reign of Henry VIII that paved the way for a successful issue of the provisions sought for in the statutes of mortmain. The statute of mortmain as enacted under George II, which is entitled, “An Act to restrain the Disposition of Lands, whereby the same become inalienable” is now the leading English act. It forbids the gift of money or lands to charitable uses except by deed operating immediately, and without power of revocation, formally executed and enrolled in chancery at least six months before the donor’s death. This provision was made especially to prevent priests and others from importuning a dying man to convey his land for charitable purposes. Hence, though a person can, in England, up to the last hour of his life, if possessing sufficient knowledge of what he does, devise by will all his land to individuals absolutely, it is otherwise if he intend to give the land to trustees for a charitable purpose, as to build a church, or school, or hospital. The statute of mortmain, 9 George II, c. 36, reciting that public mischief had greatly increased by many large and improvident dispositions made by languishing and dying persons to charitable uses, to take place after their deaths, to the disinheritance of their lawful heirs, enacts that in future no lands or sums of money to be laid out in land shall be given to any person or body, unless such gift or conveyance shall be made or executed in presence of two witnesses twelve months before the death of the donor or grantor, and be enrolled in the Court of Chancery within six months after the execution. Therefore a person on death-bed cannot in England give land, or money to buy land, for a charitable purpose. It can only be done in the life of the donor, at least twelve months before his death; and the property must be completely alienated, so that he has no further control over it. The deed must have a present operation, and must not reserve any life-interest to the donor; it must be done at once and forever. The policy of this statute has sometimes been questioned, and several well-known modes of evading the statute have been adopted from time to time.
The act has been held to apply only to land locally situated in England: and hence, if the land is situated in Scotland, or the colonies, or abroad, a will conveying it for charitable purposes will receive effect. In Scotland the mortmain act has no application; but the reason for this is that the common law of Scotland contains a similar check on the alienation of land on death-bed, and which, in some respects, has a universal application. Several acts have been passed since 9 George II, c. 36, as already stated, for exempting various bodies from the operation of that act. These acts chiefly apply to the Established Church. The statute 58 George 3:c. 45, amended by 59 George 3:c. 134, and 2 and 3 William 4:c. 61, is intended to promote the building of new churches in populous places in England and Wales. The law 43 George 3:c. 107, was passed to exempt decrees and bequests to the governors of Queen Anne’s Bounty. By 12 and 13 Victoria, c. 49, 4, grants of land for sites of schools, not exceeding five acres, are voted; and there are other more recent modifications.
In the United States the English mortmain laws have not in general been adopted or recognised, except in Pennsylvania; and in that state, by an act passed in 1855, bequests, devises, or conveyances, for religious or charitable uses, may be valid if made by deed or will at least one calendar month before the death of the testator or alienor. In New York, by a statute enacted in 1848, gifts to charitable corporations by will must be made two months before the testator’s death; and by another enacted in 1860 any person having a husband, wife, child, or parent, is precluded from bequeathing more than one half of his clear estate to any society, association, or corporation. In Georgia, in like manner, a gift to charitable uses by will is made void if the testator has a wife or issue living, unless made ninety days before his death. In other states the checks to the acquisition of real estate by corporate bodies are such as are imposed by their charters, or by the general laws under which they have become incorporated. These limit their property to an amount sufficient for their natural uses, and whenever corporations come into the possession of more than is thus demanded or authorized, a special act of legislation is necessary to legalize such possessions; excepting, however, the transfer of landed estate in liquidation of indebtedness by the grantor, yet such possessions can be held only until they can be properly disposed of by sale. Roman Catholics generally evade the statues by holding their property in the bishop’s name, thus constituting it his own estate, though they use it for ecclesiastical purposes. See Coller, Eccles. Hist. (see Index in volume 9); Milman, Lat. Christianity (see Index in volume 8); Baxter, Ch. Hist. page 283; Elliott, Delineation of Romanism, pages 173, 296; Chambers, Cyclop. s.v.; Amer. Cyclop. s.v.; Eadie, Eccles. Cyclop. s.v.; Coke, First Part of the Institutes of the Laws of England (Phila. 1853, 2 volumes, 8vo), 1:99, 112; Blackstone, Commentaries on the Laws of England (Phila. 1863, 2 volumes, 8vo), book 1:479; book 2:268; book 4:108, 424, 426,441.