The history of mortmain is intimately connected with the ecclesi astical and civil history of this country. The jealousy which all man kind feel againit rich and powerful bodies of men, who are combined in a perpetual brotherhood and fraternity, and the constantly increasing wealth and power of the ecclesiastical bodies in this country, doubtless contributed strongly to the passing of the enactments called the statutes of mortmain ; 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 contingency of escheat, a new notion lies at the foundation of the restraints upon such transfers or gifts of land, which, 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 inalien able." In another place he observes that " the particular views of the legislature were two : first, to prevent locking up land and real pro perty from being aliened, which is made the title of the act ; the second, to prevent persons. in their last moments, from being imposed on to give away their real estate 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 unaccompanied 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 expo sition, that money given by will, to arise from the sale of lands, is within the act, involves a direct contradiction ; it being expressly pro vided by the mode of donation, in the case just mentioned, that the land shill not, so far as the donor can prevent it, come into hands in which it will be inalienable.
The act, which is but a clumsy contrivance, 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 legis lature 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 charitable uses have been so long established and approved by popular opinion. The exceptions made in this act in favour of the
universities and colleges also show that there was a party in the legis lature strong enough to prevent the operation of this act being extended to those corporate bodies.
It should be 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 England and Wales which is appropriated to charitable uses, and the importance of many of those establishments which are supported by such property, render it neces sary to give some exposition of the nature and administration of charities in this country, which is most conveniently done under the head of USES, CHARITABLE.
The ,term Mortification in Scotland expresses pretty nearly what mortmain does in England.
According to Stair (book ii., tit. 39, ed. Brodie), " infeftments of mortified lands are those which are granted to the kirk or other incor poration having no other redden,do than prayer and supplications and the like : such were the mortificatious of the kirk lands granted by the king to kirkmen, or granted by other private men to the provost and prebendars of college kirks founded for singing; or to chaplainries, preceptories, altarages, in which the patronage remained in the mor tifiers." The act of 1587, c. 29, passed 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 auld to abbaies, monasteries, and utheris persons of clergie," &c. : it further recited that "his Hienes, for the great, love and favour quhilk he bearis to his subjectes, was nawaies minded to greeve them with unprofitable taxations, specially for his royal support." The act then went on to declare that it was " founde maiste meets and expedient that he sail have recourse to his awin patrimony disponed of before (the cause of the disposition now ceasing) as ane helpe maist honorable in respect of himselfe and least grievous to his people and subjectes." The act then proceeded to unite and annex to the crown (with the exceptions after specified in the act) all the lands, &e., belonging to the ecclesiastical and religious personages therein mentioned. This act was in effect more extensive than the similar acts of Henry VIII. in England.
• Since the Reformation, lands given in Scotland for charitable pur poses are given to the trustees of the charity, to be held either in blanch or feu holding. (Bell's Diet. of the Law of Scotland.')