mortmain

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MORTMAIN

A statutory provision in English law that prohibits the alienation of land to a religious or other body corporate. Mortmain first appears in English law in chapter 43 of the 1217 revision of magna carta. The effect of this provision was to prohibit the transfer of land to religious houses and to forbid religious and other corporate bodies to accept any transfers of land without the license of the Crown and of the feudal lord from whom the land was held. In this way the Crown proposed to limit the amount of land falling into mortmain (literary a "dead hand," so called because land granted to religious houses could not be alienated). The principle was strengthened by further legislation in 1279 and 1290, which provided that land assigned in mortmain without royal license should be forfeit, and sought to give greater precision to the earlier enactment. In 1344 the penalties for contravention of the earlier statutes were extended; in 1391 exemptions from mortmain were granted to some corporate bodies, such as towns and guilds. Under Queen Mary mortmain was abolished for a short time, but under Elizabeth I the principle was reestablished, although further exemptions were authorized, and additional exemptions were granted in 1623, 1696, and 1736.

The modern law of mortmain is based upon the Mortmain and Charitable Uses Act, 1888, as amended in 1891 and 1892. These enactments maintain the principle of prohibiting the transfer of land to bodies corporate without the consent of the crown, but grant exemptions en bloc to many civic, commercial, educational, and charitable bodies.

Bibliography: England, The Statutes at Large, ed. o. ruffhead, 18 V. (London 17691800); Halsbury's Statutes of England, ed. r. burrows (2d ed. London 1948). f. pollock and f. w. maitland, A History of English Law before the Time of Edward I 1:333334. w. a. jowitt and c. walsh, eds., The Dictionary of English Law, 2 v. (London 1959).

[j. a. brundage]

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MORTMAIN

[French, Dead hand.] A term to denote the conveyance of ownership of land or tenements to any corporation, religious or secular.

Traditionally, such transfers were made to religious corporations. Like any corporation, the religious society had unlimited, perpetual duration under the law. It could, therefore, hold land permanently unlike a natural person, whose property is redistributed upon his or her death. The holdings of religious corporations grew as contributions were received from their members. Because such holdings were immune from responsibilities for taxes and payment of feudal dues, greater burdens were placed on noncorporate secular property. Therefore, land in mort-main was said to be held in perpetuity in one dead hand, that of the corporation.

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mortmain condition of lands inalienably held by a corporation. XV. — AN., OF. mortemain — medL. mortua manus ‘dead hand’, i.e. mortua, fem. of mortuus dead, manus hand (cf. MORTAL, MANUAL); perh. a metaphor for ‘impersonal ownership’.