MORTMAIN. By the 9 'Hen. 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 land was forfeited to the lord of the fee. The reason of this provision is obvious, if we consider the nature of the feudal tenure ; and indeed it is distinctly expressed in the 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 cuter into the fees of any without the licence and consent of the chief lords (capitalium dominorum) of whom such fees are immediately held ; and whereas religious 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.thein of the gifts of others, by which means the services due from such foes, and which were originally provided for the defence of the realm, are unduly withdrawn and the chief lords lose their escheats of the tame,' &o. The statute then for bids any religious person or any other to buy or sell lands or tens"• ments, or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 or tenements conic into mortinain in any way (ad manses Isortaan deresiant), under pain of forfeiture of the same. The statute then provides, that if it be violated, the lord of whom the lands are holden may enter within a year; or if he neglect to enter, the next lord may enter within half a year ; and if all the chief lords of such fees, being of full age, within the four seas, and out of prison, neglect to enter, the king may enter.
The general notion of mortmain may be collected from the words of this statute, the term being used to express lands belonging to any corporate body, ecclesiastical or temporal, sole or aggregate. Various
explanations have been offered as to the reason why lands of this description were said to be in mortmain, or in mortua menu; that is, in a dead hand. Under the feudal system, lands held by any corporate body or person might not inappropriately be said to be in a dead hand as to the lord of the fee; for as a corporation has perpetual continuance and succession, the lord lost the profits in his lands which, under the strict system of tenures, he derived either ,from the services of the tenant, while alive, or from the death of the tenant and other circum stances incident to such event. Accordingly, the best explanation of the meaning of this term seems to be that offered 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 mortuum radium seems to have been so called because the land in pledge was for the time dead to the pledger. [Monroaos.] Before the 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 for bidden 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 religious and also to Jews : " Licit= sit donatorio rem datarn dare vel vendero cu i voluerit, exceptis viris religiosiss et Judeis." (Ilracton, fol. 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 invented 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 praTipe qmnd reddat against the tenant, who collusively made default, upon which the religious house had judgment, and entered on the land.