Statutes of Mortmain - AbsoluteAstronomy.com

The Statutes of Mortmain were two enactments, in 1279 and 1290, by King Edward I

Edward I of England

Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...

of England aimed at preserving the kingdom's revenues by preventing land from passing into the possession of the Church. In Medieval England, feudal estates generated taxes (in the form of incidents) upon the inheritance or granting of the estate. If an estate was owned by a religious corporation that never died, attained majority

Age of majority

The age of majority is the threshold of adulthood as it is conceptualized in law. It is the chronological moment when minors cease to legally be considered children and assume control over their persons, actions, and decisions, thereby terminating the legal control and legal responsibilities of...

, or became attainted for treason

Treason

In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...

, these taxes were never paid. The Statutes of Mortmain were meant to re-establish the prohibition against donating land to the Church for purposes of avoiding feudal services which had been hinted at in the Magna Carta

Magna Carta

Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...

in 1215 and specifically defined in the Great Charter of 1217. John of England

John of England

John , also known as John Lackland , was King of England from 6 April 1199 until his death...

died shortly after Magna Carta was signed. Henry III of England

Henry III of England

Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...

, the son of John, did not enforce these proscriptions. He showed great deference to the Church. His son, Edward I of England

Edward I of England

, was interested in re-establishing the precedent set in the Magna Carta and the Great Charter of 1217. The Statutes of Mortmain provided that no estate should be granted to a corporation without royal assent. The problem of Church lands persisted with the practice of cestui que use. It was finally brought to a close when Henry VIII of England

Henry VIII of England

Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...

disbanded the monasteries and confiscated Church lands. The term "mortmain" - literally the "dead hand" - indicated that a person who had died years earlier still dictated land use to the next generations by leaving it to the Church, which never died, and hence never had to relinquish land.

Alienation and inheritance

During the Anglo-Saxon era the law of land succession was customary. Land or folkland, as it was called, was held in allodial title

Allodial title

Allodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...

by the group, meaning the group held the land. It was probably of little relevance when the titular head of the clan or family died. Traditional lands continued to be held in community by the group. After the Norman Conquest

Norman conquest of England

The Norman conquest of England began on 28 September 1066 with the invasion of England by William, Duke of Normandy. William became known as William the Conqueror after his victory at the Battle of Hastings on 14 October 1066, defeating King Harold II of England...

, the rule became one of primogeniture

Primogeniture

Primogeniture is the right, by law or custom, of the firstborn to inherit the entire estate, to the exclusion of younger siblings . Historically, the term implied male primogeniture, to the exclusion of females...

inheritance, meaning the eldest surviving son became the sole heir of the baronial estate. The other sons could be accommodated by becoming under-lords to the surviving heir. The eldest would accept the younger brothers “in homage” in return for their allegiance. This was a process called subinfeudation

Subinfeudation

In English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands....

. Even commoners could subinfeudate to their social inferiors. Large pieces of land were given to the great lords by the Norman Crown. Land title under William was a life tenure, meaning the land would pass back to the Crown upon the death of the lord. These lands were then subinfeudated to lesser lords. Landholdings in England were of this pattern: large land grants issued to the great lords by the Crown. These were divided up among the younger sons, who then subinfeudated to lesser lords and commoners. These in turn "accepted in homage" their lessers who held even smaller parcels of land. Determining who owed what feudal incidences filled the court dockets for generations. With the passage of time, land tenures came to be inherited by the survivors of the great lords upon their deaths. Accompanying the Norman change in inheritance was a recognition of the ability of even the lowest of landholders the right of inheritance. In the 12th century, this custom was extended to the commoners. It was discovered that granting an interest in the passage of land to their children, commoners would tend the land with greater economy. The children of tenants were assured their inheritance in the land. This also meant, as a practicality, the land could be sold or bequeathed to the Church. The ancient method of the Normans was a grant to the Church in frankalmoin

Frankalmoin

Frankalmoin or frankalmoigne was one of the feudal land tenures in feudal England. Its literal meaning is "free pity/mercy", from Norman French fraunch aumoyne, “free alms”, from Late Latin eleemosyna, from Greek ἐλεημοσύνη , "pity, alms", from ἐλεήμων "merciful", from ἔλεος , "pity"...

Alienation prior to the Statute Quia Emptores

It is the opinion of Pollock and Maitland

Frederic William Maitland

Frederic William Maitland was an English jurist and historian, generally regarded as the modern father of English legal history.-Biography:...

that in the middle of the 13th century the tenant enjoyed a large power of disposing of his tenement by act inter vivos

Inter vivos

Inter vivos is a legal term referring to a transfer or gift made during one's lifetime, as opposed to a testamentary transfer ....

, though this was subject to some restraints in favor of his lord. Other opinions have been expressed. Coke regarded the English tradition as one of ancient liberty dictated by custom. The tenant had relative freedom to alienate all or part of his estate. Blackstone

William Blackstone

Sir William Blackstone KC SL 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 in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

was of a differing conclusion. The “learning of feuds” started with the inalienability of the fief as a starting point.
Gradually, the powers of the tenant grew at the expense of the lord. Pollock and Maitland believe Coke’s opinion to be the more valid one. Both views may have been true. Modern scholars may have given more weight to the written and declared law of the Normans than existed in reality.

For some time, two kinds of alienation had been occurring. These were “substitution” and “subinfeudation

Subinfeudation

”. In the former, the tenant would alienate his land, and the attendant duties owed to the lord. After alienation, the tenant expected nothing from the new tenant, other than the price of the alienation. In subinfeudation, the new tenant would become a serf owing feudal duties to the person who alienated. The previous tenant would become the lord to the new tenant. Both these practices has the effect of denying the great lord of the land his rights of feudal estate. The bond of homage was between lord and servant. It was difficult for the medieval mind to think of this in any terms other than as a personal bond. The idea that a feudal bond could be bought or sold was repugnant to the ruling class. All the same, the practice of alienation of rights to the land had been going on in England for some centuries. A tenant who was accepted in homage by the lord could “subinfeudate” to one or more under tenants. It was difficult or impossible for the overlord to extract any services (such as knight service, rent, homage ) from the new tenants. They had no bond to the overlord. Pollock and Maitland give the following example: In the case of subinfeudation, the old tenant was liable for services to the lord. If A enfoeffed

Enfeoffment

Under the European feudal system, enfeoffment was the deed by which a person was given land in exchange for a pledge of service. This mechanism was later used to avoid restrictions on the passage of title in land by a system in which a landowner would give land to one person for the use of another...

to B to hold a knight's service, and then B enfoeffed C to hold as a rent of a pound of pepper per year; B dies leaving an heir within age; A is entitled to a wardship; but it will be worth very little: instead of being entitled to enjoy the land itself until the heir is of age, he will get a few annual pounds of pepper. Instead of enjoying the land by escheat

Escheat

Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...

, he will only receive a trifling rent. The Statute Quia Emptores

Quia Emptores

Quia Emptores of 1290 was a statute passed by Edward I of England that prevented tenants from alienating their lands to others by subinfeudation, instead requiring all tenants wishing to alienate their land to do so by substitution...

, 1290 ended all subinfeudation and made all alienation complete. Once a sale of land was made, the new owner was responsible for all feudal incidents.

Glanvill on alienation

Glanvill

Glanvill or Glanville may refer to:* Glanville, Calvados, a commune in the Basse-Normandie region of France* The suburb of Glanville in Adelaide, South AustraliaPeople:* Rainald Ralph de Glanville , Norman baron...

gives no indication that a tenant needed the lord’s consent to alienate his rights to land. He does speak at length of the rights of expectant heirs, and this should cause some restraints on alienation. He also says the rights of the lord must be considered. It can be inferred from Glanvill that no substitution could occur without the consent of the lord.

Frankalmoin and the Assize of Utrum

Gifts of land in frankalmoin were intended to be made to God. Bracton describes these as "primo et principaliter" to God, and only "secundario" to the canons or monks or parsons. A gift, for example, to Ramsey Abbey

Ramsey Abbey

Ramsey Abbey is a former Benedictine abbey located in Ramsey, Cambridgeshire, England, southeast of Peterborough and north of Huntingdon, UK.-History:...

would take the form of a gift “to God and St. Benet of Ramsey and the Abbot Walter and the monks of St. Benet”; or in short hand, “to God and the church of St. Benet of Ramsey” or briefly “to God and St. Benet”. Often the donor laid the charter of feoffment or some other symbol such as a knife or other symbol of possession upon the altar of the church. God was considered the primary landowner. Bracton founds several arguments upon this assertion. It suggested land given in frankalmoin was outside the sphere of mere human justice.

In later years, the feature of tenure of frankalmoin which attracted the notice of lawyers was the absence of any service that could be enforced by the secular courts. Grants from the Crown “in free, pure and perpetual alms” would be free from all secular service. However, if a mesne lord was involved, then services such as socage, fee and other services might be extracted from the land, either in part or in total. Cases became so complicated that a special assize, the Assize of Utrum was established in the middle of the 12th century. Jurisdiction would normally lie in the Ecclesiastic Courts. The Assize of Ultram, especially as defined in the Constitutions of Clarendon

Constitutions of Clarendon

The Constitutions of Clarendon were a set of legislative procedures passed by Henry II of England in 1164. The Constitutions were composed of 16 articles and represent an attempt to restrict ecclesiastical privileges and curb the power of the Church courts and the extent of Papal authority in England...

, 1164, gave the Crown a chance to clarify difficult questions of ownership and duty in a non-religious, secular court. Often, ownership was of less importance than in determining who had rights to grain, knight service, marriage penalties and the like. These duties were defined in the manner in which the land had been granted, and by whom in the feudal chain. Frequently land would be donated to a church organization and re-let to the grantor to avoid feudal services to the great lord.

Magna Carta and the Great Charter of 1217

The Magna Carta

Magna Carta

of 1215 gave little mention of the rights of alienation. It contained 60 chapters, and represented the extreme form of baronial demands. Certain temporary clauses, such as that concerning forests were put into a separate document called the Charter of the Forest

Charter of the forest

The Charter of the Forest is a charter originally sealed in England by King Henry III. It was first issued in 1217 as a complementary charter to the Magna Carta from which it had evolved. It was reissued in 1225 with a number of minor changes to wording, and then was joined with Magna Carta in the...

. John managed to receive a bull

Papal bull

A Papal bull is a particular type of letters patent or charter issued by a Pope of the Catholic Church. It is named after the bulla that was appended to the end in order to authenticate it....

from Pope Innocent III

Pope Innocent III

Pope Innocent III was Pope from 8 January 1198 until his death. His birth name was Lotario dei Conti di Segni, sometimes anglicised to Lothar of Segni....

annulling the Magna Carta. Some of its provisions were extreme and unworkable, such as the creation of a commission of twenty-five barons to oversee the King. This was later ejected. Magna Carta was effective law for about nine weeks. King John of England died shortly after that in 1216. The council which ruled in the name of the infant Henry III of England

Henry III of England

re-issued the charter in 1216, this time with papal assent. It was very much modified in favor of the Crown. The third Great Charter in 1217 is the first document of a legislative kind that expressly mentioned any restraint of alienation in favor of the lord. It says: “No free man shall henceforth give or sell so much of his land as that out of the residue he may not sufficiently do to the lord of the fee the service which pertains to that fee.”

It was determined during the minority rule of Henry III that the Crown should not be limited, hence the compromises seen in the Charters of 1216 and 1217. In 1225, Henry III came of age, and a fourth Great Charter was issued, which varied only slightly from the third Charter. The charter deals with Land Law in Chapters 7,32 and 36. The rights of widows were protected and landowners were forbidden to alienate so much of their land that the lord of the fee suffered detriment. Collusive gifts to the Church (which were frequently made in order to evade feudal service) were forbidden. Coke interprets this as though its only effect was to make the excessive gift voidable by the donor’s heir. It certainly could not be voided by the donor’s lord. This opinion was reiterated by Bracton.

Bracton on alienation

Bracton gives several examples of escheat occurring by a mesne lord (middle lord in the feudal structure): A enfeoffs B at a rent of 10 shillings. B enfeoffs C at a rent of 5 shillings. B dies without an heir. Is A entitled to 5, 10 or 15 shillings a year? While it can be argued that A is entitled to 15 shillings, it was Bracton’s opinion that A should only be awarded 10 shillings. A enfoeffs B at a rent of 5 shillings. B enfoeffs C at a rent of 10 shillings. B dies without an heir. Bracton thinks A is entitled to 10 shillings. Bracton held this problem to be without solution: Is A entitled to the wardship of C’s heir, if C held of B in socage, and B, whose rights have escheated to A, and held of A by knight’s service.

The worst case occurred when the tenant made a gift of frankalmoin

Frankalmoin

- a gift of land to the Church. A wardship would be of no value at all. An escheat of the land (a reclamation of the land by the overlord) would allow the owner to take control of the land. But the act of placing the land in frankalmoin left it in the hands of a group of lawyers or others who allowed the use of the land by a Church organization. The overlord would have nominal control of the corporation which had never entered into a feudal homage arrangement. The corporation owed nothing to the overlord. Bracton was sympathetic to this arrangement. According to him the lord is not really injured. His rights to the land remain unscathed. It is true they have been significantly diminished. He had suffered damnum, but there had been no iniuria. Bracton was of the opinion that a gift of land to the Church could be voided by the heirs, but not the lord.

Throughout his work, Bracton shows a prejudice in favor of free alienation. Concerning subinfeudation, he argues that it does no wrong, though it may clearly do damage to the lords on occasion. It has been difficult to determine how much of this opinion is based on Bracton’s prejudice, and how much it corresponded to actual practice.

Bracton considers this problem: A enfoeffs to B to hold by a certain service and that B enfoeffs to C to hold the whole or part of the tenement by a less service. The law permits A to distrain C for the service due from B, but this violated equity. Then as to substitutions, even when B has done homage to A, nevertheless B may give A a new tenant by enfoeffing C to hold of A, and C will then hold of A whether A is agreeable to it or not. Bracton does not even expressly allow A to object that C is his personal enemy, or too poor to do the service. Pollock and Maitland consider this remarkable since Bracton does allow that the lord cannot substitute for himself in the bond of homage a new lord who is the enemy of the tenant, or too needy to fulfill the duties of warranty. The Statute Quia Emptores

Quia Emptores

, 1290, ended subinfeudation.

Problems with mortmain in Bracton’s time

Leaving land to the Church had a long and contentious history in England. Prior to the Norman Invasion

Norman conquest of England

the State and Church were frequently mixed. The local bishop or priest might also sit in judgment of civil and criminal cases. The Normans created a strict separation of Church and State. William the Conqueror encouraged the separation, but was enthusiastic about the role the Church played in moral matters. As a result, a two tiered legal system developed: The Ecclesiastic Courts and the Common Law Courts. Jurisdiction was frequently blurred. One not receiving a satisfactory result in one court could re-file the case in another. Writs of Prohibition were frequently issued by Common Law courts to bar filing the case in a Church court. Bracton considered it a sin for a person to pledge to live by the result of a Common law court, only to file it in a Church court.

The practice of pledging land to the Church was generally covered under the laws of frankalmoin

Frankalmoin

after the Normans. There were two reasons to do so: gratitude toward the Church and to avoid feudal constraints and duties. Once land had been pledged to the Church, it was difficult or impossible for the lord to extract his duties from the land.

Once the land came into the control of the Church, it could never be relinquished. Since the Church never died, the land could never be inherited or escheated to the lord. This came to be known as the “death hand” (mortmain). Either the Church was the death hand, or the hand of the dead still controlled land by willing it to the Church. The actions of people who had died generations before still controlled the land. This was also the “death hand”.

The great Charter of 1217 had struck at certain collusive practices to which the churches were privy. Chapter 43: “One is not to enfoeff a religious house and take back the land as a tenant of that house.” The mischief to be prevented seems to be this: some favored religious bodies, e.g. the Templars, have royal charters which by general words set free all the lands that they now have, or shall hereafter acquire, from many burdens. A man gives land to such a house, and then becomes that house’s tenant, and as such he claims immunity under the charter. The granting of land to a religious body freed the tenant from his duties to the lord and owner of the land.

The Charter of 1217 left no provision for granting land to the Church. In spite of this, Henry III lavishly granted licenses (which were not authorized by statute).

In 1258 at the Oxford Parliament

Oxford Parliament (1258)

The Oxford Parliament , also known as the "Mad Parliament" and the "First English Parliament", assembled during the reign of Henry III of England. It was established by Simon de Montfort, 6th Earl of Leicester. The parlour or prolocutor was Peter de Montfort under the direction of Simon de Montfort...

the barons sought to preclude men of religion from entering into the fees of earls and barons and others without their will, whereby they lost forever their wardships, marriages, reliefs and escheats. In 1259 the Provisions of Westminster

Provisions of Westminster

The Provisions of Westminster of 1259 were part of a series of legislative constitutional reforms which arose out of power struggles between Henry III of England and his barons...

ordained that it shall not be lawful for men of religion to enter the fee of anyone without the license of the lord of whom the land is held. The provisions were first considered law, then not rigorously enforced depending on who had political sway: barons or king. Most of the provisions in Westminster were re-enacted by the Statute of Marlborough

Statute of Marlborough

The Statute of Marlborough was a set of laws passed by King Henry III of England in 1267. There were twenty-nine chapters, of which four are still in force...

in 1267, but not the ones mentioned. From this it may be gathered that the clergy had been influential with the king who was enjoying power over the barons. The Statute of Marlborough had been the nominal endpoint of the Second Barons' War

Second Barons' War

The Second Barons' War was a civil war in England between the forces of a number of barons led by Simon de Montfort, against the Royalist forces led by Prince Edward , in the name of Henry III.-Causes:...

. The omission of restrictions on the Church can be directly traced to Henry III and his sympathy to the clergy, according to Plucknett. In 1279 the Statute De Viris Religiosis referred to the Provisions of Westminster as if they had been settled law, added a check on alienations made in mortmain. No religious persons were to acquire land. If they did, the land was forfeited to the lord, and he had a brief term given for him to take advantage of the forfeiture. If he failed to do so, the lord next above him in the feudal scale had a similar opportunity. This continued up to the king. The statute did not merely condemn frankalmoin; the religious are not to acquire more land, even though they are willing to pay a full rent for it. If the lord was willing, the land could be granted to the religious body by his inaction. Licenses to acquire land in mortmain were easily obtained in those years. King Henry III was sympathetic to religious bodies during his long reign. There had been a parallel French ordinance enacted in 1275. Henry III had a reputation of ruling by fiat - making royal proclamations on the spur of the moment. These were troublesome to both the secular and church courts of the day. Efforts were made to curtail and limit his practice.

Result of the Statutes of Mortmain

During the reign of Henry III of England

Henry III of England

, the grant of land to churches was becoming commonplace. Tenants often practiced collusion with churches in order to defeat feudal services. The Great Charter of 1217 contained the first direct provision against this practice:

“It shall not be lawful for anyone henceforth to give his land to any religious house in order to resume it again to hold of the house; nor shall it be lawful for any religious house to accept anyone’s land and to return it to him from whom they received it. If anyone for the future shall give his land in this way to any religious house and be convicted thereof, the gift shall be quashed and the land forfeit to the lord of the fee.”

Several cases recorded where the King specifically forbade the tenant from alienating a church or land held in perpetuity by the Crown, and presumably the equivalent of mortmain. These cases are dated 1164, 1221 and 1227. After 1217, there was a forfeiture of land to the great lord in cases of unauthorized alienation in mortmain. Henry III granted conspicuous favor to the Church and left the proclamations of 1215-1217 largely unenforced. The proscription was reintroduced and made more forcible by Henry III’s son, Edward I in the Statute of Mortmain in 1279.

It was not effective. Land could be still be left to the Church by the mechanism of cestui que use. This is described in the article Cestui que. Henry VII of England

Henry VII of England

Henry VII was King of England and Lord of Ireland from his seizing the crown on 22 August 1485 until his death on 21 April 1509, as the first monarch of the House of Tudor....

expended much energy in the courts trying to break the legal grip of "uses" by Church corporations. The Statute of Uses

Statute of Uses

The Statute of Uses was an Act of the Parliament of England that restricted the application of uses in English property law. The Statute was originally conceived by Henry VIII of England as a way to rectify his financial problems by simplifying the law of uses, which moved land outside the royal...

three centuries after the Statutes of Mortmain would attempt, with only partial success to end the practice of cestui que use. Henry VIII of England

Henry VIII of England

Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...

would resolve the problem once and for all by disbanding the monasteries and confiscating all church land.

Text of the first statute, 1279

The text of the first statute read as follows:

External links

Annotated text of the statute

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.

Alienation and inheritance

Alienation prior to the Statute Quia Emptores

Glanvill on alienation

Frankalmoin and the Assize of Utrum

Magna Carta and the Great Charter of 1217

Bracton on alienation

Problems with mortmain in Bracton’s time

Result of the Statutes of Mortmain

Text of the first statute, 1279

See also

External links