IVIORTIVIAIN (OF. mortemain. from ME,. mortua manus, dead hand), STATUTES OF. The term mortmain is applied to the perpetual tenure of lands by corporations, particularly church cor porations, whose.members and officers, being ec clesiastics, were by the early law deemed civilly dead. and hence the derivation of the term as signifying land held by the dead hand of the Church. In later times the term has been ap plied to the tenure of lands by corporations gen erally, whether ecclesiastical or lay.
Mortmain first became a matter for the seri ous attention of English legislators and lawyers , as early as the reign of Edward I. The policy of the various ecclesiastical corporations of acquiring large holdings of land and retaining them became a menace to the well being of the State, partly because it afforded a ready means of accumulating wealth and power which were held in strict allegiance to the Church. whose interests were often in conflict with those of the civil authority, but primarily because the ownership of land by ecclesiastical corporations was inconsistent with feudal tenure. The feudal system presupposed the holding of land by a tenant who could render to his overlord certain services or dues upon the happening of certain events. The most important of these were: (a) It'cli-ef.—A sum which an heir was accus tomed to pay to the lord upon coming Min his ancestor's tenancy. (b) TFardship.—The right of the lord to become the guardian of the infant heir of his tenant. tet .Nurritpe.—'I•he right of the lord to dispose of the tenant's daughter in marriage. (di Eschit at.—The right of the lord to the freehold upon the death of the ten ant without heirs.
It is apparent that the acquisition of land by an ece•desiasticad corporation which could not die or contract marriage, and which had not any of the other attributes of a natural person, struck at Ihe very basis of the feudal system, and was regarded with jealousy by the great lords and civil officers of the Crown. The result was a series of legislative enactments, extend ing over a period of nearly six hundred years, having for their purpose the restraint of aliena tion in mortmain. Ni sooner did the will of
the state find expression in appropriate legis lation for this purpose than the powerful 11011 4.111.•?• of the Church sought to evade or nullify it by judicial interpretation or by resort to legal fictions invented by skillful lawyers and urged th m upon the courts with such slleee-; that ultimately new legislation beeame necessary. To this historic struggle between the Chureli and the lauded aristocracy are attributable many of the peculiarities of the common law of real property.
The earliest statute relating, to the subject after the fall of the Western Empire was an edict of the Emperor Frederick Barbarossa in prohibiting conveyances to church corpora tions. In England there have been enacted in all twenty-one statutes affecting the power to alienate in mortmain. The earliest of these is provision contained in the ('harta. (.11. 43, that there should be no transfer of land to church corporations by a tenant withmit the consent of his lord) seems to have fallen into disuse or to have been evaded by convey anees direct to the officers of the religions houses, who held the property for the benefit of such houses.
The nest statute of importance, and the first to curb effectively the acquisition of land by the ecclesiastical corporations. was the statute De Religiosis 17 Edw. I., Stat. 11.., eh. 13). passed in 1279. The preamble of this interesting piece of legislation reads as follows: '•\Vhere of late it was provided that religions men should not enter into the fees of any without license and will of the chief bird of whom suet' fees be holden immediately, and notwithstand ing such religious men have entered as well into their (eon fees as into the fees of other men, appropriating and buying them. and sometimes receiving them of the gift of others, Whereby the services that are due of such Ices and which at the itegiuning were provided for• defense of the realm are wron7fully withdrawn. and the chief lords do lose their escheats of the sanu---" etc.