Mortmain () is the perpetual, inalienable ownership of
Real estate is property consisting of land and the buildings on it, along with its natural resources such as crops, minerals or water; immovable property of this nature; an interest vested in this (also) an item of real property, (more general ...
A corporation is an organization—usually a group of people or a company—authorized by the state to act as a single entity (a legal entity recognized by private and public law "born out of statute"; a legal person in legal context) and re ...
or legal institution; the term is usually used in the context of its prohibition. Historically, the land owner usually would be the religious office of a church; today, insofar as mortmain prohibitions against perpetual ownership still exist, it refers most often to modern companies
and charitable trust
s. The term ''mortmain'' is derived from Mediaeval Latin
''mortua manus'', literally "dead hand", through Old French
''morte main'' (in modern French, ''mainmorte'').
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire ...
in Western European countries such as
England is a Countries of the United Kingdom, country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separa ...
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
acquired a substantial amount of real estate. As the Church and religious orders were each recognised as a
In law, a legal person is any person or 'thing' (less ambiguously, any legal entity) that can do the things a human person is usually able to do in law – such as enter into contracts, sue and be sued, own property, and so on. The reason fo ...
separate from the office holder who administered the Church land (such as the abbot or the bishop), the land would not
Escheat is a common law doctrine that transfers the real property of a person who has died without heirs to the crown or state. It serves to ensure that property is not left in "limbo" without recognized ownership. It originally applied to a ...
on the death of the holder, or pass by inheritance, as the Church and the religious orders would not die. The land was held in perpetuity. This was in contrast to feudal practice in which the nobility would hold land granted by the king in return for service, especially service in war. Over time, the Church gained a large share of land in many feudal states; this was a cause of increasing tension between the Church and the Crown
In 1279, and again in 1290, Statutes of Mortmain
were enacted under King Edward I
to impose limits on the Church's holding of property, although limits on the Church's power to hold land are also found in earlier statutes, including
(Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by th ...
(1215) and the Provisions of Westminster
(1259). The broad effect of these provisions was that the authorisation of the Crown was needed before the land could vest perpetually in a corporation. As an example of the response of the institutions, the chartulary
Chertsey Abbey, dedicated to St Peter, was a Benedictine monastery located at Chertsey in the English county of Surrey.
It was founded in 666 AD by Saint Erkenwald who was the first abbot, and from 675 AD the Bishop of London. At the same time ...
records that "shortly after one of these statutes vulgarly called Mortmain" in Ash, Surrey
, were held by Robert de Zathe with sufficient common pasture for his flocks and herds, while Geoffrey de Bacsete and his brother William had .
Corporate mortmain is legal in most countries today. In a person's making of their own trusts, provisions and settlements, to newly proposed founded bodies or groups of persons, there are commonly still laws against perpetuities, preventing their "dead hand" from prevailing more than, for example, 80 years away and there is the common law rule in '' Saunders v Vautier
'' enabling all of the adult beneficiaries to draw special legal agreements together to override any historic provisions. See rule against perpetuities
– each rule varies by jurisdiction.
Mortmain was a key underlying interdiction in legal history, contextualising much early case law. The decision of ''Thornton v Howe'' held that a
Trust often refers to:
* Trust (social science), confidence in or dependence on a person or quality
It may also refer to:
Business and law
* Trust law, a body of law under which one person holds property for the benefit of another
* Trust (b ...
for publishing the writings of Joanna Southcott
, being for the "advancement of religion". This decision is often held up as setting the bar extremely low in determining whether a charity is for the advancement of religion. At the time of her trust-making the statutes against mortmain were in force and having not met the narrow, high-authority formalities for such a trust to be valid it was void
, rather than imbuing it with special privileges in relation to taxation and viability. Identifying the trust within the general run of mortmain forbiddance shapes the case's '' reasoning (ratio)
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family ...
wrote, in 1765, "The reason of his
Sir Edward Coke
''Sir'' is a formal honorific address in English for men, derived from Sire in the High Middle Ages. Both are derived from the old French "Sieur" (Lord), brought to England by the French-speaking Normans, and which now exist in French only as ...
offers many conjectures; but there is one which seems more probable than any that he has given us: viz. that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land therefore, holden by them, might with great propriety be said to be held ''in mortua manu.'' n dead hands
[William Blackstone, '']
Commentaries on the Laws of England
The ''Commentaries on the Laws of England'' are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1770. The work is divided into four volume ...'', Volume I, "Of the Rights of Persons". Facsimile of the first edition. Chicago: University of Chicago Press, 1979 (London, 1765), p. 467.
* Cestui que
* Statutes of Mortmain
A waqf ( ar, وَقْف; ), also known as hubous () or ''mortmain'' property is an inalienable charitable endowment under Islamic law. It typically involves donating a building, plot of land or other assets for Muslim religious or charitab ...
, the Islamic equivalent of mortmain
Legal history of England
Medieval English law