The history of mortmain is intimately connected with the ecclesiastical and civil history of this country. The jea lousy which all mankind feel against rich and powerful bodies of men, who are combined in a perpetual brotherhood and fraternity, and the constantly in creasing wealth and power of the eccle siastical bodies in this country, doubtless contributed strongly to the passing of the enactments called the statutes of snort main ; and this, independently of the solid reasons against such bodies having large possessions, so long as the strict system of tenures continued. In modern times, when the lord can lose nothing by land being conveyed to a corporation or to a charitable use, except the remote con tingency of escheat, a new notion lies at the foundation of the restraints upon such transfers or gifts of land, which, as as Lord Hardwicke expressed it, was this:— "The mischief which the legislature had in view in the Mortmain Act (as appears from the recital, and which is agreeable to the title) was to restrain the disposition of lands whereby they become inalienable." In another place he ob serves that "the particular views of the legislature were two : first, to prevent looking up land and real property from being aliened, which is made the title of the act ; the second, to prevent persons, in their last moments, from being im posed on to give away their real estates from their families." It will be perceived that the provisions of the act very imperfectly correspond with this explanation of its object. Thus money may be given by will (if unac companied with a direction to lay it out in land) to an eleemosynary corporation which is empowered to hold land in mortmain, and it may be laid out in land, or, if necessary, a licence may be obtained from the crown for that purpose. The judicial exposition, that money given 17 will, to arise from the sale of lands, is within the act, involves a direct contra diction ; it being expressly provided by the mode of donation, in the case just mentioned, that the land shall not, so far as the donor can prevent it. come into hands in which it will be inalienable.
The act, which is a clumsy contri vance, and the exposition of it, are in fact directed against gifts for charitable uses; though it is probable that the notion of the impolicy of allowing lands to be for ever set apart, or " locked up," had also some influence on the legis lature. If this, however, had been the leading idea, a repeal of the statute which allows the crown to grant a licence to hold lands in mortmain would have been a proper addition to the act. But the legislature or the promoters of the act were apparently anxious to find out some reason or excuse for passing such an act in a country where gifts for cha ritable uses have been so long established and approved by popular opinion. The _exceptions made in this act in favour of the universities of Oxford and Cambridge and the colleges in those places also show that there was a party in the legislature strong enough to prevent the operation of this act being extendecIto those corporate bodies.
Various acts have been passed since the 9 Geo. II. o. 36, as already stated, for exempting various bodies from the operation of that act. These acts chiefly apply to the Established Church. In 58 Geo. HI. c. 45, amended by 59 Geo.
HI. c. 134, and 2 & 3 Wm. IV. C. 61, are intended to promote the building of new churches in populous places in England and Wales. The 43 Geo. III. o. 107, was passed to exempt decrees and bequests to the governors of Queen Anne's Bounty [Bssrencit].
There is no doubt that the hicstusaut Act of George II. has been productive of benefit ; and it wou_d be better for its provisions to be made stricter instead of being relaxed, especially in the case of ecclesiastical bodies and persons. The acquisition of lands by corporate bodies, except such as are established for pur poses of general interest, is an evil in any country, especially in a country where the land is so limited in amount as in England. Facilities for sale and transfer are rather wanted than facilities for giving land to bodies which cannot sell, and from the nature of their constitution present obstacles to the improvement of land and its productive employment.
It should he borne in mind that the terms charities and charitable uses have a legal meaning very different from the popular meaning of the term charity.
The great amount of property in Eng land and Wales which is appropriated to charitable uses, and the importance of many of those establishments which are supported by such property, render it ne cessary to give some exposition of the nature and administration of charities in this country, which is most conveniently done under the head of USES, CHARITA BLE.
The term Mortification in Scotland ex presses pretty nearly what mortmain does in England.
According to Stair (book ii. fit. iii. 39, ed. Brodie), " infeftments of mortified lands are those which are granted to the kirk or other incorporation having no other reddendo than prayer and supplica tions and the like : such were the morti fication of the kirk lands granted by the king to kirkmeu, or granted by other pri vate men to the provost and prebendars of college kirks founded for singing; or to chaplainries, preceptories, altarages, in which the patronage remained in the mortifiers." The act of 1587, c. 29, pass ed in the eleventh parliament of James VI., began by reciting that the king " and his three estaites of parliament perfitely understood the greatest part of his proper rent to have bene given and disponed of mild to Abbaies, Monasteries, and utheris persons of Clergie," &c.: it farther re cited that " his Hienes, for the great love and favour quhilk he beans to his sub jectes, was nawaies minded to greeve them with unprofitable taxation, spe cially for his royal support." The act then went on to declare that it was " founde maiste meete and expedient that he sail have recourse to his awin patri monie disponed of before (the cause of the disposition now ceasing) as ane helpe waist honorable in respect of himselfe and least grievous to his people and sub jectes." The act then proceeded to unite and annex to the crown (with the ex ceptions after specified in the act) all the lands, &c., belonging to the ecclesiastical and religious personages therein men tioned. This act was in effect more ex tensive than the similar acts of Henry VIII. in England.
Since the Reformation, lands given in Scotland for charitable purposes are given to the trustees of the chanty, to be held either in blanch or feu holding. (Bell's of the Law of Scotland.)