The statute of the 13 Edward I. (West minster, 2), c. 32, provided against these recovery of lands obtained by collusion ; for it was enacted, that after the default made, it should be inquired whether the demandant had any right in his demand or not; and if the demandant were found to have no right. the land was declared to be forfeited to the lords mediate and immediate, similarly as was provided by the previous statute of Edward I. An other provision of this statute (c. 331 furnishes curious evidence as to the de vices practised for the purpose of eluding the statutes of mortmam. The words of the enactment will best explain the al lusion :—" Forasmuch as many tenants set up crosses, or permit them to be set up on their tenements, to the prejudice of their lords, in order that the tenants may defend themselves by the privileges of Templars and Hospitaller, against the chief lords of the fees, it is enacted, that such tenements be forfeited to the chief lords, or to the king, in the same way in which it is enacted elsewhere with respect to tenements alienated in mortmain" (de tenementis alienatis ad mortnam manum).
Various other statutes were passed in the reign of Edward I. and Edward III. relating to mortmaiu ; but the next im portant statute is that of the 15 Richard II. c. 5. As corporations could not now acquire lands by purchase, gift, lease, or recovery, they had contrived another new device, said to be mainly the invention of, or mainly practised by, ecclesiastical bodies or persons. The device consisted in this : the lands in question were con veyed to some person and his heirs to the use of the ecclesiastical body or per son and their or his successors. In this way the legal estate was not in the pos session of those who could not legally hold it, but in a person who had such legal capacity ; and the use or profit of the land, the beneficial interest in it, was secured to the ecclesiastical body or per son, contrary to the spirit of the previous statutes, though not contrary to their ex pressed provisions. The statute of Rich ard, after declaring that this use was also mortmain, further declared all such con veyances to be void, and that the torus might enter on lands so conveyed, in the manner provided for by the statute De Religiosis. This distinction of the own ership of land into the legal and bane ficial, was undoubtedly derived by the clergy from the like distinction in the Roman law between Quiritarian and Bo nitarian ownership, which is briefly and distinctly explained by Gains (ii. 40).
Though the statute De Religiosis was in its terms comprehensive enough to in elude all alienations to corporate bodies or persons, it is clear that this statute was mainly directed against the clergy, both regular and secular. The ecclesiastical
corporations were more numerous than any other, and had been more active in getting lands into their hands. This sta tute of Richard II. however expressly extends the statute De Religiceis to lands purchased to the use of guilds or fraterni ties ; from which it has been inferred that the doctrine of mortmain bad not, before the date of this statute, applied to guilds or fraternities. The statute De Re ligiosis is by this statute of Richard II. expressly declared to apply also to what we now call municipal corporations, and the statute places such bodies in all re on the same footing, as to the pur of lands, with " people of religion." If such bodies as these had been con sidered within the statute De Religiosis, it seems clear from the statute of Richard II. that their acquisitions of land had only recently become of such magnitude as to make it seem expedient to make a special declaration by statute as to them.
A statute of Henry VIII. (23 Henry VIII. c. 10), commonly called an act against superstitions uses, is perhaps hardly a statute against mortmain in the strict sense of the term. The statute enacted that feoffments, fines, recoveries, and other estates, made of lauds and he reditaments to the use of parish churches, chapels, guilds, fraternities, commonalties, &c., erected and made of devotion or by common consent of the people without any corporation, or to uses for perpetual obits, or a continual service of a priest, were declared to be void as to such gifts as were made after the 1st of March in the year in which the statute was passed, for any term exceeding twenty years from the creation of such uses. From the words, " by common consent of the peo ple, without any it can hardly he inferred that a number of in dividuals could take in perpetual succes sion without being incorporated, as some writers suppose ; for " to take by per petual succession without being incoTo rated " involves a contradiction. Nor can the statute be construed as admitting by implication such a power of perpetual succession in unincorporated indi unincorporated The statute destroys all such interests in land as in any persons were held to the use o the es way o iy any ch esta and tablishments or collections of in mentioned and described in the The subsequent statutes passe in the reign of Henry VIII. (27 H. VI I. e.28; 31 H. VIII. c. 13; 37 H. VII L a 4), together with the statute in the first year of Edward VI. (1 w. VI.