MORTMAIN. By the 9 H. III. c. 36 (Magna Charta), it was declared that it should not be lawful for the future for any person to give his land to a religious house, so as to take it back again and hold it of the house ; and any such gift to a religious house was declared to be void, and the laud was forfeited to the lord of the fee. The reason of this pro vision is obvious, if we consider the na ture of the feudal tenure • and indeed it is distinctly expressed in ;he preamble of the statute of the 7 Edward I., sometimes entitled De Religiosis,' as follows : "Whereas of late it was provided that religious men should not enter into the fees of any without the licence and con sent of the chief lords (capitalism domi norum) of whom such fees are immedi ately held ; and whereas religions men have entered as well into fees of their own as those of others, by appropriating them to their own use and buying them, and sometimes receiving them of the gifts of others, by which means the services due from such fees, and which were ori ginally provided for the defence of the realm, are unduly withdrawn, and the chief lords lose their escheat; of the same," &c. The statute then forbids any religious person or any other to buy or sell lands or tenements, or under colour of a gift or term of years, or any other title whatever, presume to receive from any one, or by any other means, art, or contrivance, to appropriate to himself lands or tenements, so that such lands and tenements come into mortmain in any way (ad mannm mortuam deveniant), under pain and forfeiture of the same. The statute then provides, that if it is violated, the lord of whom the lands are holden may enter within a year ; or, if he ne glect to enter, the next lord may enter within half a year • and if all the chief lords of such fees, being of fall within the four seas, and out of rums, neglect to enter, the king may enter.
The general notion of mortmain may be collected from the words of this sta tute, the term being used to express lands belonging to any corporate body, ecclesi cal, or sole or aggregate. Various ex
' planation. have been offered as to the reason why lands of this description were I said to be in mortmain, or in morale mann, that is, in a dead band. Under the feu dal system, lands held by any corporate i body or person might not inappropriately be said to be in a dead band as to the lord of the fee ; for as a corporation has continuance and succession, the ord lost the profits in his lands which, under the strict system of tenures, he de rived either from the services of the tenant, while alive, or from the death of the tenant and other circumstances. Ac cordingly, the best explanation of the meaning of this term seems to be that of fered 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." Similarly, the old mortnum vadium seems to have been so called, because the land in pledge was, for the time, dead to the pledger. f MORTGAGE.] Before 9th Hen. III. c. 36, was passed, a man might give or sell his lands to religious as well as any other persons, unless it was forbidden in the gift of the lands to himself; and accordingly, the great lords, on making a grant of land, used to insert a clause preventing the sale or gift to religions persons and also to Jews : Licitum sit donatorio rem datam dare vel vendere cal voluerit, exceptis viris reli giosis et Judeis. (Bracton, fol. 13.)* This statute of Edward I. prevented gifts and alienations between corporate bodies or persons and others, but it was eluded by a new device, apparently in. vented by the clergy, and probably most used by the religious houses. These bodies, pretending a title to the land which they wished to acquire, brought an action for it by a Principe ((nod reddat against the tenant, who collusively made default, upon which the religious house had judgment, and entered on the land.