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. Possession of property by a corporation such as the Church was known as mortmain, literally "dead hand". In medieval England, feudal estates generated taxes for the King (known as feudal incidents), principally on the grant or inheritance of the estate. If an estate became owned by a religious corporation which could never die, could never attain majority, and could never be attainted for treason, these taxes never became payable. It was akin to the estates being owned by the dead, hence the term.
The Statutes of Mortmain were meant to re-establish the prohibition against donating land to the Church for the purpose of avoiding feudal services, a prohibition which had originated in in 1215 and was specifically defined in its 1217 issue. But King John, the original signatory of , died the following year, and his son, Henry III, did not enforce the proscriptions and, to the contrary, showed great deference to the Church.
Henry's son, Edward I, desired to re-establish the precedent set by the 1215 and 1217 issues of . The Statutes of Mortmain thus provided that no estate could be granted to a corporation without royal consent. However, these statutes proved ineffective in practice, and the problem of Church lands persisted, due to the development of the device of the use, which side-stepped the royal courts and beganin the ecclesiastical courtsthe development of the law of trusts, which separated the legal ownership from the right of occupation or use of land. The issue was only resolved in 1535, when Henry VIII dissolved the monasteries, confiscating all monastic lands for the Crown, though the bishops remained endowed with much land.
Alienation and the statute of
In England in the 12th and 13th centuries, the legal ownership of land was defined through a hierarchical system of estates. The monarch was the ultimate owner of all land in the realm, and out of his estate lesser estates existed, held by individuals known as tenants in chief. Further estates could be created out of these estates in a process called subinfeudation.
Estates in land could be alienated (that is, their legal title – i.e. ownership – could be transferred to others), in two ways. Substitution meant that the transferee would take the estate with the same tenure, and hold from the same lord, as the original tenant. Subinfeudation meant that the original tenant continued to hold his estate, but there was created a new estate which was held from and through the original tenant, and which was subsidiary to the original estate.
Alienation was not always possible, and sometimes the permission of the immediate overlord was required. In the opinion of Pollock and Maitland, in the middle of the 13th century the tenant enjoyed a largely unfettered power of disposing of his tenement , though this was subject to some restraints in favour of the overlord.
Other opinions have been expressed. Coke regarded the English tradition as one of ancient liberty dictated by custom, in which the tenant had relative freedom to alienate all or part of his estate.Coke, 2nd Inst. 65; Co. Lit. 43a Blackstone was of a differing conclusion, namely that the law supported the inalienability of the fief as its starting point.Wright, Tenures, 154Gilbert, Tenures, p. 51-52Blackstone, Com. Ii, 71–72 Pollock and Maitland believed 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 law of the Normans than existed in reality after the Black Death had altered the economic conditions of the age.
A significant consequence of the ability of owners to alienate their estates was a growth in gifts of land to the Church. Estates so given were said to be held in frankalmoin tenure. The King made various attempts to prevent this practice, including in Magna Carta in 1215 and in the Statutes of Mortmain in 1279 and 1290, but these measures were largely ineffective.
Where estates were subinfeudated, the practice of mortmain was detrimental to the overlord's rights. It was difficult or impossible for an overlord to extract any services (such as knight service, rent, or homage) from the new tenant, who had no bond to the overlord. Pollock and Maitland give the following example: in a case of subinfeudation, the old tenant was liable for services to the lord. If A enfeoffed to B, to hold on a knight's service (a form of military service), and then B enfeoffed C to hold at a rent of a pound of pepper per year, if B then dies leaving an under-age heir, 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 full age, the overlord will get only a few annual pounds of pepper, because C is in possession, not B. Instead of enjoying the land itself, by wardship or by escheat, he will only receive a trifling peppercorn rent.Pollock and Maitland, p. 330-331, ibid.
Bracton gives the example of a tenant making a gift of frankalmoin: gifting land to the Church. A right of wardship would have no value at all, as ownership cannot henceforth pass to a minor. An escheat of the land (reclaiming the land by the overlord, for want of an heir to inherit it) would allow the overlord to re-take control of the land. But by placing the land in frankalmoin it was left in the hands of a group of lawyers or others, who allowed the use of the land by a religious organisation. The overlord would have only nominal control of this corporation, as it had never entered into a feudal homage arrangement, hence the corporation owed nothing to the overlord. Bracton was sympathetic to this arrangement. According to him, the lord was not really injured, as his rights to the land remained unscathed. It is true they had been significantly diminished, as he had suffered damnum; but there had been no injuria.Bracton, f.45 b,46 Bracton was of the opinion that a gift of land to the Church could be voided only by the heirs of the donor, not by the feudal overlord.Bracton, f.169; Notebook pl. 1248
The statute of , enacted in 1290, confirmed the ability of tenants freely to alienate their estates by substitution, but ended the possibility of alienation by subinfeudation. It also ended the possibility for further estates in frankalmoin to be created by anyone other than the king, as any gift of land to the Church now required royal consent; but the lawyers who had created frankalmoin now nimbly side-stepped the Statutes of Mortmain, and the cumbersome and useless common law courts, with the development of a replacement device in the ecclesiastical courts, the cestui que use.
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" (first and principally) to God, and only "secundario" (secondarily) to the canons or monks or parsons.Bracton f.. 12 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".Cart. Ramsey, I 159, 160, 255, 256
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.Cart. Glouc. I. 164, 205; ii. 74, 86, 97 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.Bracton f. 12, 286 b.
In later years, the feature of the 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 services. However, if a mesne (i.e. intermediate) lord was involved, then services such as socage, fee and other services might be extracted from the land, either in part or in total.Bracton, f. 27 b
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 with the ecclesiastical courts; but the Assize of Utrum, especially as defined in the Constitutions of Clarendon in 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, to knight service, to marriage penalties, and the like feudal rights. These duties were defined by the manner in which the land had been granted, and by who in the feudal chain had made the grant. Frequently, land would be donated to a religious body, which would simultaneously re-let it to the donor, in order to evade those feudal services which otherwise would be due to the immediate overlord.
Problems with mortmain in Bracton's time
Giving land to the Church had a long and contentious history in England. Prior to the Norman Conquest of 1066, the Anglo-Saxon state and the Church were often synonymous. The local bishop or priest might also sit in judgment of civil and criminal cases in the royal courts. The Normans created a strict separation of Church and state. William the Conqueror encouraged this separation, yet was enthusiastic about the role the Church played in moral matters.
As a result, a two-tier legal system developed: the ecclesiastical courts and the Royal courts (the latter being now known as the Common Law courts). Jurisdiction was frequently blurred. A petitioner not receiving a satisfactory result in one court could re-file the case in the other. Writs of prohibition were frequently issued by common law courts to bar the reissuing of a case in a Church court. Bracton considered it a sin for a man to pledge to live by the decision of a common law court, only to re-issue it in a Church court because the first court had ruled against him.
The practice of pledging land to the Church was governed by the laws of frankalmoin under the Normans. There were two reasons to do so: gratitude toward the Church, but also to avoid feudal services and taxes. Once land had been pledged to the Church, it was difficult or impossible for the overlord to extract his former dues from the land.
Bracton considered the outcome of this, in a case where the tenant made a gift into frankalmoin – a gift of land to the Church. A feudal right of wardship would now be of no value at all, as no minority (ownership of the land by a minor) could thereafter arise. An escheat of the land (reclaiming of the land by the overlord, for want of an heir) theoretically allowed the lord to take back control of it; but 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 religious foundation: the overlord would have only nominal control of this corporation, as it had never entered into a feudal homage arrangement with him; the corporation thus owed nothing to the overlord, so did not pay him homage. Bracton was sympathetic to this arrangement. According to him, the lord was not really injured as his rights to the land remained unscathed. It is true that they had been significantly diminished, as he had suffered ; but there had been no ().Bracton, f.45b, 46 Bracton was (rightly) of the view that a gift of land to the Church could be voided only by the donor's heirs, not by the overlord.Bracton, f. 169; Notebook pl. 1248