Mortmain () is the perpetual, inalienable ownership of
real estate by a
corporation
A corporation or body corporate is an individual or a group of people, such as an association or company, that has been authorized by the State (polity), state to act as a single entity (a legal entity recognized by private and public law as ...
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 legal people, whether natural, juridical or a mixture of both, with a specific objective. Company members share a common purpose and unite to achieve specifi ...
and
charitable trusts. The term ''mortmain'' is derived from
Medieval Latin
Medieval Latin was the form of Literary Latin used in Roman Catholic Church, Roman Catholic Western Europe during the Middle Ages. It was also the administrative language in the former Western Roman Empire, Roman Provinces of Mauretania, Numidi ...
''mortua manus'', literally "dead hand", through
Old French
Old French (, , ; ) was the language spoken in most of the northern half of France approximately between the late 8th [2-4; we might wonder whether there's a point at which it's appropriate to talk of the beginnings of French, that is, when it wa ...
''morte main'' (in modern French, ''mainmorte'').
History
During the Middle Ages in Western European countries such as England, the Catholic Church, 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 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 on. The reason for the term "''le ...
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 t ...
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 a political concept used in Commonwealth realms. Depending on the context used, it generally refers to the entirety of the State (polity), state (or in federal realms, the relevant level of government in that state), the executive ...
.
In 1279, and again in 1290,
Statutes of Mortmain
The Statutes of Mortmain were two enactments, in 1279 (, 7 Edw. 1) and 1290 (, 18 Edw. 1), passed in the reign of Edward I of England, aimed at preserving the kingdom's revenues by preventing land from passing into the possession of the Church. ...
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 (Latin: Malleus Scotorum), was King of England from 1272 to 1307. Concurrently, he was Lord of Ireland, and from 1254 ...
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"), sometimes spelled Magna Charta, is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the Archbishop of Canterbury, Cardin ...
(1215) and the
Provisions of Westminster
The Provisions of Westminster of 1259 were part of a series of legislative constitutional reforms that arose out of power struggles between Henry III of England and his barons. The King's failed campaigns in France in 1230 and 1242, and his choic ...
(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 of
Chertsey Abbey
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 ti ...
records that "shortly after one of these statutes vulgarly called Mortmain" in
Ash, Surrey
Ash is a village and civil parish in the far west of the borough of Guildford, Surrey. Ash is on the eastern side of the River Blackwater, with a station on the Reading-Guildford-Gatwick line, and direct roads to Aldershot, Farnham and Guildfo ...
, 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
, (1841) 4 Beav 115 is a leading English trusts law case. It laid down the rule of Equity (law), equity which provides that, if all of the beneficiary (trust), beneficiaries in the trust law, trust are of Age of majority, adult age and under ...
'' 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 common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at ...
—rules vary by jurisdiction.
Mortmain was a key underlying interdiction in legal history, contextualising much early case law. The decision of ''Thornton v Howe'' (1862) 31 Beav 14 held that a
trust
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 legal relationship in which one person holds property for another's benefit
* Trust (bu ...
for publishing the writings of
Joanna Southcott
Joanna Southcott (or Southcote; April 1750 – 26 December 1814) was a British self-described religious prophetess from Devon. A "Southcottian" movement continued in various forms after her death.
Early life
Joanna Southcott was born in the h ...
was
charitable
Charity is the voluntary provision of assistance to those in need. It serves as a humanitarian act, and is unmotivated by self-interest. Various philosophies about charity exist, with frequent associations with religion.
Etymology
The word ...
, 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 (pre-dating the
Law of Property Amendment Act 1860
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the art ...
piloted by
Lord Cozens-Hardy) and having not met the narrow, high-authority formalities for such a trust to be valid it was
void
Void may refer to:
Science, engineering, and technology
* Void (astronomy), the spaces between galaxy filaments that contain no galaxies
* Void (composites), a pore that remains unoccupied in a composite material
* Void, synonym for vacuum, a s ...
, 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, Justice (title), justice, and Tory (British political party), Tory politician most noted for his ''Commentaries on the Laws of England'', which became the best-k ...
wrote, in 1765, "The reason of
his
His or HIS may refer to:
Computing
* Hightech Information System, a Hong Kong graphics card company
* Honeywell Information Systems
* Hybrid intelligent system
* Microsoft Host Integration Server
Education
* Hangzhou International School, ...
appellation
Sir Edward Coke
Sir Edward Coke ( , formerly ; 1 February 1552 – 3 September 1634) was an English barrister, judge, and politician. He is often considered the greatest jurist of the Elizabethan and Jacobean eras.
Born into an upper-class family, Coke was ...
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 of the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages, and others worldwide. Its name in English is ''en'' (pronounced ), plural ''ens''.
History
...
"
See also
*
Rule against perpetuities
The rule against perpetuities is a legal rule in common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at ...
*
Cestui que
( ; also , ) is a shortened version of "", ; in modern terms, it corresponds to a ''beneficiary''. It is a Law French phrase of medieval English invention, which appears in the legal phrases , , or . and '' trust'' are often interchangeable. I ...
*
Statutes of Mortmain
The Statutes of Mortmain were two enactments, in 1279 (, 7 Edw. 1) and 1290 (, 18 Edw. 1), passed in the reign of Edward I of England, aimed at preserving the kingdom's revenues by preventing land from passing into the possession of the Church. ...
*
Waqf
A (; , plural ), also called a (, plural or ), or ''mortmain'' property, is an Alienation (property law), inalienable charitable financial endowment, endowment under Sharia, Islamic law. It typically involves donating a building, plot ...
, the Islamic equivalent of mortmain
References
Further reading
*(1st ed. 1971, 2nd ed. 1979, 3rd ed. 1990, 4th ed. 2002, and 5th ed. 2019). .
*Pollock, Sir Frederick and Frederic William Maitland
''The History of English Law Before the Time of Edward I'' The Lawbook Exchange Ltd. 2nd edition. 30 September 1996. .
*Sutherland, Donald W. ''The Assize of Novel Disseisin''. Oxford University Press. 21 June 1973. .
External links
*
*
{{Authority control
Legal history of England
Medieval English law
Religion law