[to observe the great address and subtle contrivance of the ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses; how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, obtained a decisive victory.] By the common law, a corporation is as capable of purchasing lands as an individual (b);—subject to this distinction, that persons corporate take the fee to hold to their successors, instead of their heirs. Yet [it was always, and is still, necessary for corporations to have a licence in mortmain from the crown, to enable them to] become the holders of [lands (c); for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feudal profits, by the vesting of lands in tenants that can never be attainted or die. And such licences of mortmain seem to have been necessary among the Saxons, above sixty years before the Norman conquest (d). But besides this general licence from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence also (upon the same feudal principles), for the alienation of the specific land. And if no such licence was obtained, the king or other lord might respectively enter on the lands so aliened in mortmain, as a forfeiture.] Yet [such were the influence and ingenuity of the clergy, that, notwithstanding this fundamental principle, we find that the largest and most considerable dotations of religious houses] without licence, [happened within less than two centuries after the Conquest.] But, when these [began to grow (b) Case of Sutton's Hospital, 10 Rep. 30; Co. Litt. 2 b. (c) F. N. B. 221. It should be observed, however, as to the antiquity of the principle, that a doubt is expressed by a writer of great authority, whether before Magna Charta, any restraint was put by the common law upon alienations in mortmain; see Hallam's Middle Ages, vol. ii. p. 321, 7th edit. (d) Selden, Jan. Angl. 1. 2, s. 45. [numerous, it was observed that the feudal services, ordained for the defence of the kingdom, were every day visibly withdrawn; and that the lords were curtailed of the fruits of their seigniories,-their escheats, wardships, reliefs, and the like. And therefore in order to prevent this (e), it was ordered by the second of King Henry the third's great charters (ƒ), and afterwards by that printed in our common statute books, that all such gifts should be void, and the land forfeited to the lord of the fee (g). But as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies-who, Sir Edward Coke observes (h), in this were to be commended, that they ever had of their council the best learned men that they could get-found many means to creep out of this statute, by buying in lands that were holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which became so frequent in conveyances. This produced the statute De religiosis, 7 Edw. I.;—which provided, that no person, religious or other whatsoever, should buy, or sell, or receive under pretence of a gift or a term of years or any other title whatsoever; nor should (e) Blackstone (vol. ii. p. 269) enumerates, as another of the mischiefs, the prevention of which was designed, "that the circulation of "landed property from man to man began to stagnate." Lord Coke, however, in 2 Inst. 75, lays it down (in conformity with the language of the statute De Religiosis), that the causes of the law were two, viz. that the services for defence of the realm were withdrawn, and that the lords lost their escheats and the like; (and see Co. Litt. 2 b.) Though the holding of lands in mortmain naturally tended to restrain alienation, this does not appear to have formed one of the reasons on which the policy of the law of mortmain was originally founded. (f) A.D. 1217, c. 43, edit. Oxon. (g) Mag. Chart. (9 Hen. 3, c. 36.) It is laid down by Lord Coke that the prohibition extended as well to the case where the religious house kept the land so conveyed, as where they gave it back to hold of themselves; (2 Inst. 74). (h) 2 Inst. 75. [by any art or ingenuity appropriate to himself any lands or tenements in mortmain; upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and, in default of all of them, the king, might enter thereon as a forfeiture. This seemed to be a sufficient security against all alienations in mortmain; but as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land which it was intended they should have, and to bring an action to recover it against the tenant, who by fraud and collusion, made no defence; and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right which afterwards became the great assurance of the kingdom, under the name of common recoveries (i). But upon this the statute of Westminster the Second (13 Edw. I. c. 32) enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land; and if the religious house or corporation be found to have it, they shall still recover seisin: otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lord's default. And the like provision was made by the succeeding chapter (k), in case the tenants set up crosses upon their lands (the badges of knights templars and hospitallers) in order to protect them from the feudal demands of their lords, by virtue of the privileges of those religious and military orders. So careful indeed was this provident prince to prevent any future evasions, that when the statute of Quia emptores (18 Edw. I.) abolished all subinfeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord (1), (i) Vide sup. p. 255; post, bk. 1I. pt. 1. c. XIX; 2 Reeves's Hist. Eng. Law, p. 155. (k) 13 Edw. 1, c. 33. [a proviso was inserted that this should not extend to authorize any kind of alienation in mortmain (m). And when afterwards the method of obtaining the king's licence by writ of ad quod damnum] was recognized (n) [by 27 Edw. I. (stat. 2), it was further provided by statute 34 Edw. I. (stat. 3) that no such licence should be effectual without the consent of the mesne or intermediate lords. Yet still it was found difficult to set bounds to ecclesiastical ingenuity; for when they were driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and receiving the actual profits, while the seisin of the lands remained in the nominal feoffee; who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestui que use for the rents and emoluments of the estate. And it is to these inventions that our practisers are indebted for the introduction of “ uses and trusts," the foundation of modern conveyancing (o). But unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device; for the statute 15 Rich. II. c. 5, enacts, that the lands which had been so purchased to uses should be amortised by licence from the crown, or else be sold to private persons; and that for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of churchyards, such subtle imagination is also declared to be within (m) 18 Edw. 1, c. 3. (n) The expression of Blackstone (vol. ii. p. 271) is, "marked out," but it has been justly observed, that the statute itself mentions the pro ceeding as a thing "accustomed." As to the nature of the writ ad quod damnum, see Reeves's Hist. Eng. Law, vol. ii. p. 230. (0) Vide sup. p. 360. [the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided.] The policy of these statutes prohibitory of alienation in mortmain, was afterwards considered as fit to be extended, also, to the case where lands, though not conveyed to corporate bodies, were given on trust for parish churches, or other institutions, "erected and made of devotion ;"-for the trustees to carry such uses into effect being generally numerous, and the land belonging, on the decease of each trustee, to the survivors, these gifts operated like gifts in mortmain, properly so called, to the diminution of descents, with their attendant feudal perquisites; and, for the same reason, to that of escheats (p). It was consequently declared by the statute 23 Henry VIII. c. 10, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, should be void (g). As to the prohibition, however, to aliene to bodies corporate, it is to be observed, that [during all this time it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, so far as related to its own rights; and to enable any spiritual or other corporation to purchase and hold any lands or tenements in perpetuity; which prerogative is declared and confirmed by the statute soon "general attack which was (9) On the subject of superstitious uses, see also 1 Edw. 6, c. 14; Bac. Ab. Char. Us. (D.); Porter's case, 1 Rep. 22 b; Adams and Lambert's case, 4 Rep. 104; Da Costa v. De Pas, Ambl. 228. |