the Week of Proper 28 / Ordinary 33
free while helping to build churches and support pastors in Uganda.
Click here to learn more!
Bible Encyclopedias
Mortmain
Cyclopedia of Biblical, Theological and Ecclesiastical Literature
or (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.
These files are public domain.
McClintock, John. Strong, James. Entry for 'Mortmain'. Cyclopedia of Biblical, Theological and Ecclesiastical Literature. https://www.studylight.org/encyclopedias/eng/tce/m/mortmain.html. Harper & Brothers. New York. 1870.
