MORTMAIN. 
kind of inftantaneous feifin was probably held not to oc- 
cafion any forfeiture; and then, by pretext of fome other 
forfeiture, furrender, or efcheat, the fociety entered into 
thofe lands in right of fticb their newly-acquired figniory, 
as immediate lords of the fee. But, when thefe dona¬ 
tions began to grow numerous, it was obferved, that the 
feodal fervices, ordained for the defence of the kingdom, 
were every day vifibly withdrawn; that the circulation of 
landed property from man to man began to ftagnate ;-and 
.that the lords were curtailed of the fruits of their figniories, 
their efcheats, wardlhips, reliefs, and the like ; and there¬ 
fore, in order to prevent this, it was ordained by the fe- 
cond of king Henry Ill’s great charters, and afterwards 
by that printed in our common ftatute-books, that all fnch 
attempts (hould be void, and the land forfeited to the lord 
of the fee. 
But, as this prohibition extended only to religious 
houfes, bifhops and other foie corporations were not in¬ 
cluded therein ; and the aggregate ecclefiaftical bodies 
found many means to creep out of this ftatute, by buying 
in lands that were bonaJhle hoklen of themfelves as lords 
of the fee, and thereby evading the forfeiture; or by 
taking long leafes for years, which firft introduced thofe 
extenfive terms, for a thoufand or more years, which are 
now fo frequent in conveyances. This produced the 
fiatute of mortmain, or de religiofis, 7 Ed w. I. which pro¬ 
vided, that no perfon, religious or other whatfoever, (hould 
buy, or fell, or receive under pretence of a gift, or term 
of years, or any other title whatfoever, nor (hould by any 
art or ingenuity appropriate to himfelf, any lands or tene¬ 
ment in mortmain; upon psin that the immediate lord 
of the fee, or, on his default for one year, the lords pa¬ 
ramount, and, in default of all of them, the king, might 
enter thereon as a forfeiture. 
This (eemed to be a fuftkient feenrity againft all aliena¬ 
tions in mortmain; but, as thefe ftatutes extended only 
to gifts and conveyances between the parties, the religious 
houfes now began to fet up a fi&itious title to the land, 
•which it was intended they fhould have, and to bring an 
adtion to recover it againft the tenant; who, by fraud and 
collufton, made no defence, and thereby judgment was 
given for the religious houfe, which then recovered the 
land by a fentence of law upon a fuppol'ed prior title. 
And thus they had the honour of inventing thofe fidti- 
tious adjudications of right, which are fince become the 
great affurance of the kingdom, under the name of common 
recoveries. But upon this, the fecond ftatute of Weft- 
minfter, 13 Edw. I. c. 34. enabled, that in fuch cafes a 
jury (hall try the true right of the demandants or plain¬ 
tiffs to the land; and, if the religious houfe or corpora¬ 
tion be found to have it, they (hall ftill recover (eifin; 
otherwife it (hall be forfeited to the immediate lord of the 
fee, orelfe to the next lord, and finally to the king, upon 
the immediate or other lord’s default. And the like pro^ 
vifion was made by the fupceeding chapter, in cafe the 
tenants fet up croffes upon their lands (the badges of 
knights templars and hofpitallers) in order to proteS 
them from the feudal demands of their lords, by virtue of 
the privileges of thofe religious and military orders. And 
fo careful was this provident prince to prevent any future 
evafions, that when the ftatute of quia emptores, 18 Edw. L. 
aboliflied all fub-infeudations, and gave liberty for all men. 
to alienate their lands to be holden of their next imme¬ 
diate lord, a provifo was inferted that this (hould not ex¬ 
tend to authorife any kind of alienation in mortmain. 
And, when afterwards the method of obtaining the king’s 
licenfe by writ of ad quod damnum was marked out by the 
ftatute 27 Edw. I. ft. a. it was farther provided by ftat.. 
34 Edw. I. ft. 3. that no fuch licenfe (hould be effectual, 
without the confent of the meftie or intermediate lords. 
Yet ftill it was found difficult to fet bounds to eocla- 
fiaftical ingenuity; for, when they were driven out of alL 
their former holds,.they deviled a new method of convey¬ 
ance, by which the lands were granted, not to themfelves 
diredtly, but to nominal feoffees to the ufe of the religious 
39 
houfes; thus diftinguifhing between the pofieflion and the 
ufe, and receiving the actual profits, while the (eilin 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 confidence to account to his ce/iuy 
que ufe for the rents and emoluments of the eftate. And 
it is to thefe inventions that our pradlilers are indebted 
for the introdudlion of ufes and trufts, the foundation of 
modern conveyancing. But, unfortunately for the in¬ 
ventors themfelves, they did not long enjoy the advantage 
of their new-device; for the ftatute 15 Richard II. c. 5. 
enafts, that the lands which had been fo purchafed to 
ufes (hould be admortifed by licenfe from the crown, or 
el(e be fold to private perfons ; and that, for the future, 
ufes (hall be fubjedl to the ftatutes of mortmain, and for¬ 
feitable like the lands themfelves. And whereas the fta¬ 
tutes had been eluded by purchafing large trails of land 
adjoining to churches, and confecrating them by the 
name of church-yards , fuch fubtle imagination is alfo de¬ 
clared to be within the compafs of the ftatutes of mort¬ 
main. And civil or lay corporations, as well as eccleliaf- 
tical, are alfo declared to be within the mifehief, and of 
courfe within the remedy provided by thofe falutary laws. 
And laftly, As during the times of popery lands were 
frequently given to fuperftitious ufes, though not to any 
corporate bodies; or were made liable in the hands of 
heirs and devifees to the charge of obits, chauntries, and 
the like, which were equally pernicious in a well-governed 
(late as aftual alienations in mortmain ; therefore at the 
dawn of the Reformation, the ftatute 23 Hen. VIII. c. 10. 
declares, that all future grants of lands for any of the 
purpofes aforelaid, if granted for any longer term than 
twenty years, (hall be void. 
But, during all this time, it was in the power of the 
crown, by granting a licenfe of mortmain, to remit the 
forfeiture, fo far as related to its own rights; and to ena¬ 
ble any fpiritual or othercorporation to purchafe and hold 
any lands or tenements in perpetuity; which prerogative 
is declared and confirmed by the ftatute 18 Edw. III. 
ft. 3. c. 3. But, as doubts were conceived at the time of- 
the Revolution how far fuch licenfe was valid, fince the 
king had no power to difpenfe with the ftatutes of mort¬ 
main by a claufe of non-objlante, which was the ufual 
courfe, though it feems to have been unneceffary; and as, 
by the gradual declenfion of mefne figniories through the 
long operation of the ftatute of quia emptores, the rights 
of intermediate lords were reduced to a very fmall com¬ 
pafs ; it was therefore provided by the ftatute 7 Sc 8 W. Ill, 
c. 37. that the crown for the future at its own diferetion 
may grant licenfes to alienate or take in mortmain, of 
whomfoever the tenements may be holden. 
After the diffolution of monafteries under Hen. VIII. 
though the policy of the next popi(h fucceffor affedted to 
grant a fecurity to the poffeflbrs of abbey-lands, yet, in 
order to regain, fo much of them as either the zeal or ti¬ 
midity of their owners might induce them to part with, 
the ftatutes of mortmain were (ufpended for twenty years 
by the ftatute 1 Sc 2 P & M. c. 8. and during that time 
any lands-or tenements were allowed to be granted to any. 
fpiritual corporation without, any licenle whatfoever. 
And long afterwards, for a much better pnrpofe, the aug¬ 
mentation of poor livings, it was enadted by the ftatute 
17 Car. II. c. 3. that appropriators may annex the great 
tithes to the vicarages, and that all benefices under 100I. 
per annum may be augmented by the purchafe of lands, 
without licenfe of mortmain in either cafe; and the like 
provifion hath been fince made in favour of. the governors 
of Queen Anne’s Bounty. It. hath alfo been held, that 
the ftatute 13 Hen. VIII. before-mentioned, did not ex¬ 
tend to any thing but fuperftitious ufes; and that there¬ 
fore a man may give lands for the maintenance of afehool, 
an holpital, or any other charitable ufes. But. as it was 
apprehended, from recent experience, that: perfons on 
their death-beds might make large and improvident dif- 
pofitions even for thefe good purpofes, and defeat the po¬ 
litical 
