or Alienation in Mortmain, (in mortua monu), is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal; but these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations, and the religious houses themselves to be principally considered in forming the statutes of mortmain: in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesse: how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, hath obtained a decisive victory.

By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feudal restraints of alienation were worn away. Yet in consequence of these it was always, and is still necessary, for corporations to have a licence of mortmain from the crown, to enable them to purchase lands: for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feudal profits, by the vesting of lands in tenants that can never be attained or die. And such licences of mortmain seem to have been necessary among the Saxons above 60 years before the Norman conquest. But, besides this general licence from the king as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence also (upon the same feudal principles) for the alienation of the specific land. And if no such licence was obtained, the king or other lord might respectively enter on the lands so alienated in mortmain, as a forfeiture. The necessity of this licence from the crown was acknowledged by the constitutions of Clarendon, in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations. Yet such were the influence and ingenuity of the clergy, that notwithstanding this fundamental principle we find that the largest and most considerable donations of religious houses happened within less than two centuries after the conquest. And (when a licence could not be obtained) their contrivance seems to have been this: That as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands to the religious house, and instantly took them back again to hold as tenant to the monastery; which kind of instantaneous seisin was probably held not to occasion any forfeiture; and then, by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newly acquired signory, as immediate lords of the fee. But when these donations began to grow numerous, it was observed that the feudal services, ordained for the defence of the kingdom, were every day visibly withdrawn; that the circulation of landed property from man to man began to stagnate; and that the lords were curtailed of the fruits of their signories, their escheats, wardships, reliefs, and the like: and therefore, in order to prevent this, it was ordained by the second of Kings Henry III.'s great charters, and afterwards by that printed in our common statute-books, that all such attempts should be void, and the land forfeited to the lord of the fee.

But as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, Sir Edward Coke observes, in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bona fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases. Mortmain leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edward I.; which provided, that no person, religious or other whatsoever, should buy, or sell, or receive, under pretence of a gift, or term of years, or any other title whatsoever, nor shoully by any art or ingenuity appropriate to himself, any lands or tenements in mortmain; upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and, in default of all of them, the king, might enter thereon as a forfeiture.

This seemed to be a sufficient security against all alienations in mortmain: but as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to bring an action to recover it against the tenant; who, by fraud and collusion, made no defence, and thereby judgment was given for the religious house, which then recovered the land by a sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right, which are since become the great assurance of the kingdom, under the name of common recoveries.

But upon this the statute of Westminster the second, 13 Edw. I. c. 32. enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land; and if the religious house or corporation be found to have it, they shall still recover seisin; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lords default. And the like provision was made by the succeeding chapter, in case the tenants set up crosses upon their lands (the badges of knights templars and hospitalers) in order to protect them from the feudal demands of their lords, by virtue of the privileges of those religious and military orders. And so careful was this provident prince to prevent any future evasions, that when the statute of quia emptores, 18 Edward I. abolished all sub-infeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord, a proviso was inserted that this should not extend to authorise any kind of alienation in mortmain. And when afterwards the method of obtaining the king's licence by writ of ad quod damnum was marked out by the statute 27 Edward I. st. 2. it was farther provided by statute 34. Edward I. st. 3. that no such licence should be effectual without the consent of the mesne or intermediate lords.

Yet still it was found difficult to set bounds to ecclesiastical ingenuity: for when they were driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and receiving the actual profits, while the seisin of the land remained in the nominal feoffee; who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que vive for the rents and emoluments of the estate. And it is to these inventions that our practisers are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device; for the statute 15 Richard II. c. 5. enacted, that the lands which had been so purchased to uses should be admortised by licence from the crown, or else be sold to private persons; and that for the future uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land adjoining to churches, and consecrating them by the name of church-yards, such subtle imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those salutary laws. And lastly, as during the times of popery lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chauntries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore at the dawn of the Reformation, the statute 23 Hen. VIII. c. 10. declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than 20 years, shall be void.

But, during all this time, it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, so far as related to its own rights; and to enable any spiritual or other corporation to purchase and hold any lands or tenements in perpetuity: which prerogative is declared and confirmed by the statute 18 Edw. III. st. 3. c. 3. But as doubts were conceived at the time of the Revolution how far such licence was valid, since the king had no power to dispense with the statutes of mortmain by a clause of non obstante, which was the usual course, though it seems to have been unnecessary; and as, by the gradual declension of these signories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass; it was therefore provided by the statute 7 & 8 W. II. c. 37. that the crown for the future at its own discretion may grant licences to alienate or take in mortmain, of whomsoever the tenements may be holden.

After the dissolution of monasteries under H. VIII. though the policy of the next popish successor affected to grant a security to the possessors of abbey-lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for 20 years by the statute 1 & 2 P. & M. c. 8. and during that time any lands or tenements were allowed to be granted to any spiritual corporation without any licence whatsoever. And long afterwards, for a much better purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II. c. 3. that appropriators may annex the great tithes to the vicarages; and that all benefices under 100 l. per annum may be augmented by the purchase of lands, without licence of mortmain in either case; and the like provision hath been since made in favour of the governors of queen Anne's bounty. It hath also been held, that the statute