their figniories, their efcheats, wardships, reliefs, and the like and therefore in order to prevent this, it was ordered by the fecond of king Henry III's great charter, and afterwards by that printed in our common ftatute-book, that all fuch attempts fhould be void, and the land forfeited to the lord of the fee h. BUT, as this prohibition extended only to religious houfes, bishops and other fole corporations were not included therein; and the aggregate ecclefiaftical bodies (who, fir Edward Coke obferves, in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this ftatute, by buying. in lands that were bona fide holden of themselves as lords of the fce, and thereby evading the forfeiture; or by taking long leafes for years, which firft introduced thofe extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the ftatute de religiofis, 7 Edw. I; which provided, that no perfon, religious or other whatsoever, fhould buy, or fell, or receive, under pretence of a gift, or term of years, or any other title whatfoever, nor fhould 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 feemed to be a fufficient fecurity against all alienations in mortmain: but as thefe ftatutes extended only to gifts and conveyances between the parties, the religious houfes now began to fet up a fictitious title to the land, which it was intended they fhould have, and to bring an A. D. 1217. cap. 43. edit. Ovon. h Non licet alicui de caetero dare terram fuam alicui domui religiofae, ita qued illam refumat tenendam de eadem domo; nec liceat alicui demui religiofae te ramali uius fic accipere, quod tradut illum ei a que ipJam recepit tenendam ; fi quis auting de caetero terram fuam domui r.ligiofae fic 9 action to recover it against the tenant; who, by fraud and collufion, made no defence, and thereby judgment was given for the religious houfe, which then recovered the land by fentence of law upon a fuppofed prior title. And thus they had the honour of inventing thofe fictitious adjudications of right, which are fince become the great affurance of the kingdom,i under the name of common recoveries. But upon this the ftatute of Westminster the fecond, 13 Edw. I. c. 32. enacted, that in fuch cafes a jury fhall try the true right of the demandants or plaintiffs to the land, and if the religious houfe or corporation be found to have it, they fhall still recover feifin; otherwise it fhall 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. provifion was made by the fucceeding chapter, in cafe the tenants fet up croffes upon their lands (the badges of knights templars and hofpitallers) in order to protect them from the feodal demands of their lords, by virtue of the privileges of thofe religious and military orders. So careful indeed was this provident prince to prevent any future evafions, that when the ftatute of quia emptores, 18 Edw. I. abolished all fubinfeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord', a provifo was inferted that this should not extend to authorize any kind of alienation in mortmain. And when afterwards the method of obtaining the king's licence by writ of ad quod damnum was marked out, by the statute 27 Edw. I. ft. 2. it was farther provided by ftatute 34 Edw. I. ft. 3. that no fuch licence fhould be effectual, without the consent of the mefne or intermediate lords. YET fill it was found difficult to fet bounds to ecclefiaftical 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 ufe of the religious houses; thus diftinguishing between the poffeffion and the ufe, and receiving m cap. 3. к сар. 33. 12 Init. 501. the the actual profits, while the feifin,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 confcience to account to his ceftuy que ufe for the rents and emoluments of the estate. And it is to thefe inventions that our practifers are indebted for the introduction of ufes and trufts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new devife; for the ftatute 15 Ric. II. c. 5. enacts that the lands which had been fo purchased to uses should be amortifed by licence from the crown, or else be fold to pri vate perfons; and that for the future, ufes fhall be fubject to the ftatutes of mortmain, and forfeitable like the lands themselves. And whereas the ftatutes had been eluded by purchafing large tracts of land, adjoining to churches, and confecrating them by the name of church-yards, fuch fubtile imagination is alfo declared to be within the compafs of the ftatutes of mortmain. And civil or lay corporations, as well as ecclefiaftical, are also declared to be within the mischief, and of course within the remedy provided by thofe falutary laws. And, lastly, as during the times of popery lands were frequently given to fuperftitious ufes, though not to any corporate bodies; or were made liable in the hands of heirs. and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore, at the dawn of the reformation, the ftatute 23 Hen. VIII. c. 10. declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, fhall be void. BUT, during all this time, it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, fo 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 ftatute 18 Edw. III. ft. 3. c. 3. But, as doubts were conceived at the time of the revolution how far fuch licence was valid", fince the kings had no #2 Hawk. P. C. 391. power power to difpenfe with the ftatutes of mortmain by a claufe of non obftante, which was the usual course, though it seems to have been unneceffary P: and as, by the gradual declenfion of mefne figniories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compafs; it was therefore provided by the ftatute 7 & 8 W. III. c. 37. that the crown for the future at it's own difcretion may grant licences to aliene or take in mortmain, of whomfoever the tenements may be holden. AFTER the diffolution of monafteries under Henry VIII. though the policy of the next popish fucceffor affected to grant a fecurity to the poffeffors of abbey lands, yet, in order to regain fo much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were fufpended for twenty years by the ftatute 1 & 2 P. and M. c. 8. and, during that time, any lands or tenements were allowed to be granted to any fpiritual corporation without any licence whatsoever. And, long afterwards, for a much better purpofe, the augmentation of poor livings, it was enacted by the ftatute 17 Car. II. c. 3. that appropriators may annex the great tithes to the vicarages; and that all benefices under 100l. per annum, may be augmented by the purchase of lands, without licence of mortmain in either cafe; and the like provision hath been fince made, in favour of the governors of queen Anne's bounty. It hath also been held, that the ftatute 23 Hen. VIII. before mentioned did not extend to any thing but fuperftitious uses; and that therefore a man may give lands for the maintenance of a fchool, an hofpital, or any other charitable ufes. But as it was apprehended from recent experience, that persons on their deathbeds might make large and improvident difpo fitions even for these good purposes, and defeat the political end of the statutes of mortmain; it is therefore enacted by the ftatute 9 Geo. II. c. 36. that no lands or tenements, or money to be laid out thereon, fhall be given for or charged • Stat. 1 W. & M. ft. 2. c. 2. p Co. Litt. 99, q Stat. 2 & 3 Ann, c, 11. 1 Rep. 24. with any charitable ufes whatsoever, unless by deed indented, executed in the prefence of two witnefes twelve calendar months before the death of the donor, and enrolled in the court of chancery within fix months after it's execution, (except stocks in the public funds, which may be transferred within fix months previous to the donor's death) and unless fuch gift be made to take effect immediately, and be without power of revocation; and that all other gifts fhall be void (1). The two univerfities, their colleges, and, the fcholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act but fuch exemption was granted with this provifo, that no college fhall be at liberty to purchase more advowfons, than are equal in number to one moiety of the fellows or ftudents (2), upon the refpective foundations. 2. SECONDLY, alienation to an alien is alfo a caufe of forfeiture to the crown of the land fo alienated; not only on account of his incapacity to hold them, which occafions him to be paffed by in defcents of land, but likewife on account of his prefumption in attempting, by an act of his own, to $ See pag. 249, 250. (1) Lord Hardwicke has declared, fince this last mortmain act, that there is no reftriction whatsoever upon any one, from leav ing a fum of money by will, or any other perfonal eftate, to cha "ritable uses; provided it be to be continued as a perfonalty, and "the executors or trustees are not obliged, cr under a neceffity of laying it out in land, by virtue of any direction of the teftator for "that purpose." 2 Burn. Ec. 509. tit. Mortim. ་་ Money left to repair parfonage houfes, or to build upon land already in mortmain, is held not to be within the ftatute. 1 Bro. 444. But a legacy to the corporation of queen Anne's bounty, is void; as by the rules of the corporation it must be laid out in land. 1 Bro. 13. (2) That is, of one moiety of the ftudents in thofe colleges, in which there are no perfons tiled fellows. The advowfons annexed to head hips are not to be computed. S. 5. acquire |