Statutes of Mortmain
The Statutes of Mortmain were two enactments, in 1279 and 1290, by King Edward I of England aimed at preserving the kingdom's revenues by preventing land from passing into the possession of the Church. Possession of property by a corporation such as the church was known as mortmain. 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, or became attainted for treason, 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 in 1215 and specifically defined in the Great Charter of 1217. John of England died shortly after Magna Carta was signed. Henry III of England, the son of John, did not enforce these proscriptions. He showed great deference to the Church. His son, 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 disbanded the monasteries and confiscated Church lands.
Alienation prior to the Statute Quia Emptores
It is the opinion of Pollock and Maitland that in the middle of the 13th century the tenant enjoyed a large power of disposing of his tenement by act inter vivos, 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 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”. 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 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, he will only receive a trifling rent. The Statute Quia Emptores, 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 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.
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 - 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, 1290, ended subinfeudation.
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 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 shorthand, “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, 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.
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 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 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.
Bracton considered the case of when a tenant made a gift of 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.
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. 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., and this opinion was reiterated by Bracton. 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 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 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 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. 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, 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 expended much energy in the courts trying to break the legal grip of "uses" by Church corporations. The Statute of Uses 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 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:
|“||The king to his Justices of the Bench, greeting. Where as of late it was provided that religious men should not enter into the fees of any without the will and licence of the lords in chief of whom these fees are held immediately; and such religious men have, notwithstanding, later entered as well into their own fees as into those of others, appropriated, them to themselves, and buying them, and sometimes receiving them from the gift of others, whereby the services which are due of such fees, and which at the beginning, were provided for the defence of the realm, are unduly withdrawn, and the lords in chief do lose their escheats of the same; we, therefore, to the profit of our realm, wishing to provide a fit remedy in this matter, by advice of our prelates, counts and other subjects of our realm who are of our council, have provided, established, and ordained, that no person, religious or other, whatsoever presume to buy or sell any lands or tenements, or under colour of gift or lease, or of any other term or title whatever to receive them from any one, or in any other craft or by wile to appropriate them to himself, whereby such lands and tenements may come into mortmain under pain of forfeiture of the same. We have provided also that if any person, religious or other, do presume either by craft or wile to offend against this statute it shall be lawful for us and for other immediate lords in chief of the fee so alienated, to enter it within a year from the time of such alienation and to hold it in fee as an inheritance. And if the immediate lord in chief shall be negligent and be not willing to enter into such fee within the year, then it shall be lawful for the next mediate lord in chief, within the half year following, to enter that fee and to hold it, as has been said; and thus each mediate lord may do if the next lord be negligent in entering such fee as has been said. And if all such chief lords of such fee, who shall be of full age, and within the four seas and out of prison, shall be for one year negligent or remiss in this matter, we, straightway after the year is completed from the time when such purchases, gifts, or appropriations of another kind happen to have been made, shall take such lands and tenements into our hand, and shall enfief others therein by certain services to be rendered thence to us for the defence of our kingdom ; saving to the lords in chief of the same fees their wards, escheats and other things which pertain to them, and the services therefrom due and accustomed. And therefore we command you to cause the aforesaid statute to be read before you, and from henceforth firmly kept and observed. Witness myself at Westminster, the 15th day of November, the 7th year of our reign.||”|
- Quia Emptores
- Cestui que
- Investiture Controversy
- Concordat of Worms
- Charter of Liberties
- First Council of the Lateran
- History of English land law
- Pollock and Maitland, History of English Law, Vol 1., p. 329, Cambridge University Press, 1968
- Coke, 2nd Inst. 65; Co. Lit. 43a
- Wright, Tenures, 154
- Gilbert, Tenures, p. 51-52
- Blackstone, Com. Ii, 71-2
- Pollock and Maitland, Vol 1, p. 329, ibid.
- P & M, p. 129 ibid.
- Pollock and Maitland, p. 330-331, ibid.
- Glanvill, vii. 1
- Dr. Brunner, Pol. Science Quarterly, xi. 339
- P & M p. 332, ibid.
- Bracton, f. 23, passage “addicio”
- Bracton, f. 23
- Bracton, f.48
- Bracton, f. 45 b, 46
- Bracton, f. 169; Notebook pl. 1248
- Bracton f. 45 b-46 b
- P & M, p. 332, ibid.
- P & M, p. 332, ibid.
- Bracton f. 21 b
- Bracton, f. 81
- P & M, Vol. 1 p. 333, ibid.
- Bracton, f. 82
- Bracton f.. 12
- Cart. Ramsey, I 159, 160, 255, 256
- P & M vol 1 p. 243-244 ibid.
- Cart. Glouc. I. 164, 205; ii. 74, 86, 97
- Bracton f. 12, 286 b.
- Bracton, f. 27 b
- P. & M. Vol. I, p, 245 ibid
- P. & M. Vol. I, p. 246 et seq
- Bracton, f. 45 b, 46
- Bracton, f. 169; Notebook pl. 1248
- Plucknett, p. 24, ibid.
- Charter, 1217, c. 39
- Coke, 2nd Inst. 65
- P & M, Vol . 1 p. 332, ibid.
- Bracton, f. 169 b, Notebook pl. 1248
- Charter 1217, c. 43
- P. & M. Vol. 1 p. 333, ibid.
- Plucknett, p. 541-542, ibid.
- Petition of the Barons, c 10
- Provisions, cap. 14
- P. & M. p. 334, ibid.
- Pluckett, p. 541, ibid.
- Stat. 7 Edw. I
- P. & M. P. 334, ibid.
- Le regne de Phillippe le Hardi, 206 ff.
- Esmein, Histoire du droit français, p. 278
- Plucknett, p. 541 ibid.
- Bracton’s notebook, case 1840
- Eyre Rolls case number 1450
- Constitutions of Clarendon, 1164; King’s Bench, Selden Society, iii, pp. xxxix, 125