in Law, is a sort of ecclesiastical heriot*, being a customary gift claimed by and due to the minister in very many parishes on the death of his parishioners. They seem originally to have been only a voluntary bequest to the church; being intended, as Lindewode informs us from a constitution of Archbishop Langham, as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesiastical duties, which the laity in their life time might have neglected or forgotten to pay. For this purpose, after the lord's heriot or best good was taken out, the second best chattel was reserved to the church as a mortuary. And therefore in the laws of King Canute, this mortuary is called soul-sect or symbolum animae. And, in pursuance of the same principle, by the laws of Venice, where no personal tithes have been paid during the life of the party, they are paid at his death out of his merchandise, jewels, and other moveables. So also, by a similar policy in France, every man that died without bequeathing a part of his estate to the church, which was called dying without confession, was formerly deprived of Christian burial; or, if he died intestate, the relations of the deceased, jointly with the bishop, named proper arbitrators to determine what he ought to have given to the church, in case he had made a will. But the parliament, in 1409, redressed this grievance.

It was anciently usual in England to bring the mortuary to church along with the corpse when it came to be buried; and thence it is sometimes called a corpse-present: a term which bespeaks it to have been once a voluntary donation. However, in Bracton's time, so early as Henry III. we find it rivetted into an established custom; in so much that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. Imprimis autem debet qui libet, qui testamentum fecerit, dominium suum de meliori re quam habuerit recognoscere; et postea ecclesiam de alia meliore: the lord must have the best good left him as a heriot; and the church the second best as a mortuary. But yet this custom was different in different places: in quibusdam locis habet ecclesia melius animal de consuetudine; in quibusdam secundum, vel tertium melius; et in quibusdam nihil: et ideo consideranda est consuetudo loci. This custom still varies in different places, not only as to the mortuary to be paid, but the person to whom it is payable. In Wales a mortuary or corse present was due upon the death of every clergyman to the bishop of the diocese; till abolished, upon a recompense given to the bishop, by the statute, 12 Ann. st. 2. c. 6. And in the archdeaconry of Chester a custom also prevailed, that the bishop, who is also archdeacon, should have, at the death of every clergyman dying therein, his best horse or mare, bridle, saddle, and spurs; his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best signet or ring. But by statute 28 Geo. II. c. 6. this mortuary is directed to cease, and the act has settled upon the bishop an equivalent in its room. The king's claim to many goods, on the death of all prelates in England, seems to be of the same nature; though Sir Edward Coke apprehends, that this is a duty upon death, and not a mortuary: a distinction which seems to be without a difference. For not only the king's ecclesiastical character, as supreme ordinary, but also the species of the good claimed, which bear so near a resemblance to those in the archdeaconry of Chester, which was an acknowledged mortuary, puts the matter out of dispute. The king, according to the record vouched by Sir Edward Coke, is entitled to six things; the bishop's best horse or palfrey, with his furniture; his cloak or gown, and tippet; his cup and cover; his bason and ewer; his gold ring; and lastly, his muta canum, his mew or kennel of hounds.

This variety of customs with regard to mortuaries, giving frequently a handle to exactions on the one side, and frauds or expensive litigations on the other, it was thought proper by statute 21 Henry VIII. c. 6. to reduce them to some kind of certainty. For this purpose it is enacted, that all mortuaries, or corse-presents to parsons of any parish, shall be taken in the following manner, unless where by custom less or none at all is due; viz. for every person who does not leave goods to the value of ten marks, nothing; for every person who leaves goods to the value of ten marks and under 30 pounds, 3s. 4d.; if above 30 pounds, and under 40 pounds, 6s. 8d.; if above 40 pounds, of what valuesoever they may be, 10s. and no more. And no mortuary shall throughout the kingdom be paid for the death of any feme-covert; nor for any child; nor for any one of full age, that is not a housekeeper; nor for any wayfaring man; but such wayfaring man's mortuary shall be paid in the parish to which he belongs. And upon this statute stands the law of mortuaries to this day.