mortmain
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Mortmain () is the perpetual, inalienable ownership of
real estate 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 ...

real estate
by a
corporation A corporation is an organization—usually a group of people or a company—authorized by the State (polity), 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 ...
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 A company, abbreviated as co., is a legal entity representing an association of people, whether natural, legal or a mixture of both, with a specific objective. Company members share a common purpose and unite to achieve specific, declared ...
and charitable trusts. The term ''mortmain'' is derived from
Mediaeval Latin Medieval Latin was the form of Literary Latin used in Roman Catholic Church, Roman Catholic Western Europe during the Middle Ages. In this region it served as the primary written language, though local languages were also written to varying deg ...
''mortua manus'', literally "dead hand", through
Old French Old French (, , ; Modern French: ) was the language spoken in most of the northern half of France from approximately the 8th to the 14th centuries. Rather than a unified language, Old French was a linkage of Romance dialects, mutually intel ...
''morte main'' (in modern French, ''mainmorte'').


History

During the
Middle Ages 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, post-classical period of World history (field), global history. It began with t ...
in Western European countries such as
England 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 ...

England
, the
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 ...

Roman Catholic Church
acquired a substantial amount of real estate. As the Church and religious orders were each recognised as a
legal person 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, lawsuit, sue and be sued, ownership, own property, and so o ...
separate from the office holder who administered the Church land (such as the abbot or the bishop), the land would not
escheat 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 The Crown is the state (polity), state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, British Overseas Territories, overseas territories, Provinces and territorie ...

the Crown
. In 1279, and again in 1290,
Statutes of Mortmain The Statutes of Mortmain were two enactments, in 1279 and 1290, passed in the reign of Edward I of England Edward I (17/18 June 1239 – 7 July 1307), also known as Edward Longshanks and the Hammer of the Scots, was King of England an ...
were enacted under
King Edward I Edward I (17/18 June 1239 – 7 July 1307), also known as Edward Longshanks and the Hammer of the Scots, was King of England and Lord of Ireland from 1272 to 1307. Concurrently, he ruled the duchies of Duchy of Aquitaine, Aquitaine and D ...

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
Magna Carta (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, Berkshire, Windsor, on 15 June 1215. ...

Magna Carta
(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 A cartulary or chartulary (; Latin: ''cartularium'' or ''chartularium''), also called ''pancarta'' or ''codex diplomaticus'', is a medieval manuscript volume or roll (''rotulus'') containing transcriptions of original documents relating to the fo ...
of
Chertsey Abbey Chertsey Abbey, dedicated to St Peter Saint Peter; he, שמעון בר יונה, Šimʿōn bar Yōnāh; ar, سِمعَان بُطرُس, translit=Simʿa̅n Buṭrus; grc-gre, Πέτρος, Petros; cop, Ⲡⲉⲧⲣⲟⲥ, Petros; lat, Pet ...
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 Saunders is a surname of English people, English and Scottish people, Scottish patronymic origin derived from Sander, a mediaeval form of Alexander.See also: Sander (name) People * Ab Saunders (1851–1883), American cowboy and gunman * Al Saun ...
'' enabling all of the adult beneficiaries to draw special legal agreements together to override any historic provisions. See
rule against perpetuities The rule against perpetuities is a legal rule in the Common law, American common law that prevents people from using legal instruments (usually a deed or a will and testament, will) to exert control over the ownership of private property for a ti ...
– 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 Trust often refers to: * Trust (social science) Trust is the willingness of one social entity, party (the trustor) to become vulnerable to another party (the trustee) on the presumption that the trustee will act in ways that benefit the trus ...
for publishing the writings of
Joanna Southcott Joanna Southcott (or Southcote; April 1750 – 26 December 1814) was a self-described religion, religious prophetess from Devon, England. A "Southcottian" movement continued in various forms after her death; its eighth prophet, Mabel Barltrop, ...
was charitable, 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)''.


Etymology

William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory (British political party), Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Bo ...
wrote, in 1765, "The reason of hisappellation
Sir Edward Coke ''Sir'' is a formal honorific address in English language, 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 i ...
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 N, or n, is the fourteenth letter Letter, letters, or literature may refer to: Characters typeface * Letter (alphabet), a character representing one or more of the sounds used in speech; any of the symbols of an alphabet. * Letterform, the ...
"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 In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-j ...
'', Volume I, "Of the Rights of Persons". Facsimile of the first edition. Chicago: University of Chicago Press, 1979 (London, 1765), p. 467.


See also

* Cestui que *
Statutes of Mortmain The Statutes of Mortmain were two enactments, in 1279 and 1290, passed in the reign of Edward I of England Edward I (17/18 June 1239 – 7 July 1307), also known as Edward Longshanks and the Hammer of the Scots, was King of England an ...
*
Waqf A waqf ( ar, وَقْف; ), also known as hubous () or ''mortmain'' property is an Alienation (property law), inalienable charitable financial endowment, endowment under Sharia, Islamic law. It typically involves donating a building, plot of ...
, the Islamic equivalent of mortmain


Footnotes

{{Authority control Legal history of England Medieval English law Religion law