MORTMAIN
581
MORTMAIN
petuifies appears in a statute of Henry VIII, which
preceded the confiscating statutes. This is the stat-
ute 23 Henry VIII, c. X (1531), directed against
holding of lands, "to the use of parish churches, chap-
els, churchwardens, guilds, fraternities, commonalties,
companies, or brotherhoods", purposes previously
acknowledged as charitable and religious.
Excluding from its operation cities and towns cor- porate, ha\'ing, b\' their ancient customs, power to "devise into mortmain", the statute alluded to declares trusts or assurances to the uses just mentioned "erected and made of devotions or by common assent of the people without any corporation", or "to the uses and intents to have obites perpetual or a con- tinual service of a priest forever", or for sixty or eighty years, to be within the mischiefs of alienation "into mortmain", and as to future gifts void except for terms not exceeding twenty years (cf. 1 Edward VI, c. XIV).
Sir Edward Coke explains this statute to have been directed against some purposes which were thence- forth to be condemned as superstitious, although formerly approved as charitable, "such superstitious uses", he points out, "as to pray for souls supposed to be in purgatory, and the like". Not long before the date of the statute, Coke observes "by the light of God's word ", " diverse superstitions and errors in the Christian religion which had a pretence and semblance of charity and devotion were discovered ". With true charity, he claims, the statute was not intended to interfere. For, he observes, "no time was so bar- barous as to abolish learning and knowledge nor so uncharitable as to prohibit relieving the poor" (op. cit., 24 a). .\ndhr- allow.^ us to infer .such to be the fact, even though t lie rhinity might constitute a perpetuity.
Dispositions for charity, which the law would specially commend, a statute of Queen Elizabeth mentions (43 Ehzabeth, c. IV, 1601). Dispositions in aid of "superstitions" were not to be deemed charitable, and these the courts were to ascertain and condemn, in the varying light of English Statutes, as evils like to alienations in mortmain.
An authority on the law of charitable uses (Duke, op. cit., 125) states that "religion being variable, ac- cording to the pleasure of succeeding princes, that which at one time is held for orthodoxy may at an- other be accounted superstitious". And accordingly the English courts even condemned as superstitious the charge on land of an annual sum for education of Scotchmen to propagate in Scotland the doctrines of the Church of England. For, by statute, presbyteries had been settled in that portion of the United King- dom (Methodist Church vs. Remington, 1 Watts (Pa.), Reports, p. 224].
The manner of establishing a charity was in the course of time restricted by "the statute of mortmain commonly so called ", remarks the Master of the Rolls in Corbyn vs. French, 4 Vesey's Reports, 427, "but", he adds, "very improperly, for it does not prevent the alienation of land in mortmain, nor was that the ob- ject of the .Act".
Reciting that gifts of lands in mortmain are re- strained by Magna Carta, and other laws as against the public utility, but that "nevertheless this public mischief has of late greatly increased by many large and improvident alienations or dispositions to uses called charitable uses", this statute (9 George II, c. XXXVI, 1736) provides that thenceforth such dis- positions shall be "null and void", unless executed with certain prescribed solemnities, and not less than twelve months before the death of the donor.
The statutes 23 Henry VIII and this statute of George II, in their effect on the dispositions of land, which they prohibit, differ from the old mortmain acts. The statutes referred to render such disposi- tions void, that is, of no effect whatsoever. But alienations in mortmain properly so termed were not
mere nullities, but were effectual to transfer owner-
ship of land to a corporation, by which the land might
be retained until its forfeiture.
Enforcement of a forfeiture and the declaring void a charge on, or use of, land are in their nature and result very different.
Notwithstanding the statement in the case cited from Vesey's Reports that devises for charitable uses are not in themselves alienations in mortmain, the latter word's meaning has yet been claimed to embrace any perpetual holding of land "in a dead or unserviceable hand". And .such, it is claimed, " is the characteristic of alienations to charitable uses ". Land dedicated to the service of charity and religion is .said to be " prac- tically inalienable ", because any disposit ion of it, which is incompatible with the carrying out or continuity of the benevolent purposes of the conveyance, will be restrained by Courts of Equity (Lewis, "A practical treatise on the Law of Perpetuitv", Philadelphia, 1846, 689), in England the Court of Chancery.
For, notwithstanding mortmain statutes, and as if to protect the sovereign from the reproach which, ac- cording to Coke, he might otherwise have incurred, the lord chancellors seem, from a period long previous to that of King Henry VIII, to have protected and guarded trusts or uses in favour of charity. The chancellors seem to have administered this duty in their capacity as guardians of the king's conscience, and by force of an assumed, if not ex-pressed, delega- tion of the royal prerogative and sovereign will.
We cannot here consider the subject of royal pre- rogative, nor how the modern differs from the ancient theory concerning it. Whether modern legislation against perpetual holdings of land is to be deemed to prohibit by implication trusts for charity, because they imply perpetual ownership, has been the subject of extensive legal discussion and of discordant judi- cial decisions.
But according to the existing law of England we learn from Sergeant Stephen (op. cit.. Ill, 174) that "there is now practically no restraint whatsoever on gifts of land by will for charitable purposes. Pure personal estate", he adds, "may, of course, be freely bequeathed for these purposes". All corporations, however, are yet precluded by English law from pur- chasing land "except by licence in mortmain from the Crown" (ibid., 26).
As to what dispositions of property which other- wise would be charitable are to be deemed legally superstitious, the modern law of England is less narrow and rigid than the law was formerly interpreted to be (ibid., 180).
The statutes of mortmain themselves were not ex- tended to the colonies. And respecting the United States Chancellor Kent observes, "We have not in this country re-enacted the Statutes of Mortmain or generally assumed them to be in force; and the only legal check to the acquisition of lands by corporations consists in those special restrictions contained in the acts by which they are incorporated .... and in the force to be given to the exception of corporations out of the Statute of Wills" (Commentaries on American law, 14th ed., Boston, 1896, II, 282). The com- mentator states, by way of exception, that the stat- utes of mortmain are in force in the State of Pennsyl- vania. The supreme court of that State, in 18.32, stated that these statutes had been extended to the State "only so far as they prohibit dedications of property to superstitious uses and grants to corpora- tions without a statutory licence" (1 Watts Reports, 224). The court had in mind, but seemed reluctant to follow, the "Report of the .Judges" made in 1808, and which is to be found in 3 Binney's Reports. The "Report" almo.st follows the statute of Henry VIII, in declaring all convej-ances "void made either to an individual or to any number of persons associated, but not incorporated, if the said conveyances arc for
