APPENDIX. No. I. COMMITTEE OF 1844. DIGEST OF THE EVIDENCE. SIR F. PALGRAVE.-The term mortmain, in the way in which it is used in common discourse and generally employed, is inaccurate. Mortmain, in a legal sense, means, simply the acquisition of real property by corporate bodies having perpetual succession; but, in common language, it is applied to the restrictions imposed by the 9th George II, which prevent the giving of landed property (in a testamentary way) to charitable purposes. Sir W. Grant, in a case arising upon the 9th George II (Attorney-General v. Stuart, 2 Merivale, 261), says, "I conceive the object of the statute of mortmain is wholly political." It is not mortmain: it is a statute for preventing the alienation of land (in a testamentary way) to charitable uses; preventing, of course, real property being so given, not only to corporate bodies but to persons unincorporate, in trust, for charities. The old law of mortmain applied only to corporations. The modern law has no peculiar reference to corporations having perpetual succession. It does not prevent bequeathing land for purposes not being charitable; for instance, to the City of London, or to any non-charitable institution or society, empowered to take land. The statutes of mortmain apply equally to all corporations having perpetual succession. There is a considerable difference between the two laws. The old law had but one simple object; it is not a general restriction upon granting land to corporations prohibitive of grants for religious purposes; it merely seeks to prevent certain lands being held in a manner, whereby certain incidents of tenure were lost to the lord of the land and to the state or community. This appears in part, at least, from the statute De viris religiosis, 7th Edward I, which recites, that it had been provided, that religious men should not enter into fees without the license and will of the lord, whereby the services which are due for such fees, and which were provided for the defence of the realm, would be wrongfully withdrawn, and the chief lords would lose their escheats of the same. Therefore, the first restriction imposed by the law was for the purpose, amongst others, of preventing mischief to the lords, in consequence of losing the incidents of tenure. Blackstone states, that the statute was passed in consequence of the evasion by the clergy of the former law, and he describes what the evasion was. I should doubt whether he was correct. My impression is, that there is nothing to bear out his observations; in fact, the numerous donations which we find in earlier periods without reference to a license, would make one suppose it was not the case. It was not only the pecuniary or military incidents of tenure. At that period, there were a great many civil obligations connected with land, which could not be discharged unless the freehold was in possession of laymen. If religious persons held an undue proportion of land, there would be a deficiency of persons to attend the view of frank pledge; a deficiency of persons to be put in assize as jurors. Attendance upon assizes in early days was exceedingly burdensome, it was so burdensome, that it was a very common thing for persons to obtain a remission of that duty. These duties were very onerous, and if there were but few freeholders, it became a great hardship upon them. Thus, one of the objects, though not expressed in the statute, preventing alienation of land to persons of religion, or to religious houses, was to prevent a diminution in the number of persons in the county or hundred, able to perform those services to the community. By the statute 27th Edward I it was ordained, that such as would purchase a new park, and men of religion who would "mortige" land or tenements, should have writs out of the Chancery to inquire upon the points accustomed in all things, and that inquests of lands or tenements, worth more than 20s., be returned into the Exchequer, and there to make a fine of mortigation; or, for a park, if the inquest do pass to him that purchased them, and afterwards a fine is to be made. Parks were subjected to the same rule, because, by absorbing the smaller tenants, they might lead to the same evil; and accordingly, from that time, no mortigation was to be made except by such previous inquiry; the inquiry was to be by a jury, and according to their verdict a license was to be granted or refused. By the statute 15 Richard II, cap. 5, it is asserted, "because mayors, bailiffs, and commons of cities, boroughs, and other towns, which have a perpetual commonalty, and others which have officers perpetual, be as perpetual as people of religion, that from henceforth, they shall not purchase to them and their commonalty or office, upon pain contained in the said statute De religionis; and whereas others are possessed or hereafter shall purchase to their use, and they thereof take the profits, it shall be done in like manner as is aforesaid of people of religion." At this time, the guilds (which include all the ancient trading companies) and corporations (municipal), were acquiring great influence, and the statute was intended to check their political influence. There was a jealousy against guilds and corporations; and a restriction is here put on lay communities never thought of before. I think these restrictions were purely political. There was not much attention directed to the subject after this. In the reign of Henry VIII, there was a statute to prevent gifts to fraternities,* etc. But there were no further restrictions on alienation in mortmain. It was not likely, that gifts would be made at a time when religious and charitable foundations were the bait for cupidity, and the objects of general spoliation. At the accession of Elizabeth, the Church, the Crown, the legislature, and the people, and above all the lawyers, were in favour of charity; and gave every kind of encouragement to gifts for pious purposes. "The religious feeling which had subsisted at earlier times, and had been checked by the abuses which caused the Reformation, and by the Reformation, did then revive in a very extraordinary manner. Of course objects connected with Romanism and dissent were unfavoured; but, with the exception of those sects which the law proscribed, increasing facilities were afforded for pious endowments. The 39th Elizabeth provides, that all persons should have power to erect, found, and establish hospitals, maisons de Dieu, etc., which might be incorporated, and hold lands, notwithstanding the statutes of mortmain'; and, moreover, gives power to devise lands for these purposes by last will. The 43rd Elizabeth to redress the misemployment of lands, goods, and money, given to charitable uses', confirmed to such uses lands appointed or assigned by will or deed. Those statutes gave the tone to the age."+ There is a specific case in the 11th Edward I, which will show how the general law was practically worked. It appears by the rolls of Richard I, p. 63, that a writ of ad quod damnum having been retained before the king in parliament, he refuses the license to several persons who wished to give lands to the Archbishop of York, because they have not got wherewithal to support the common burthen of the country, but grants it to those who have wherewithal to bear the common burthen of the country; therefore, so far as this species of legislation extended, * See Essay. Rather the Catholic Church had given the tone to the common law, the constitution, and the character of the nation; which it required some generations to wear out. That it did, the sequel shows. the restriction did not arise from any jealousy, either of the person receiving, or of the object, but was enforced for the purpose of preventing damage being done to the community, by lands being vested in a body which could not perform the common services which were incident to land, and which were of a more extended nature than financial objects or territorial rights. Sutton's case, as reported by Coke, is most instructive. It testifies the joy which Coke felt in overturning the technicalities by which that gift was attempted to be set aside. He considered, that charitable donations were as beneficial to the community as his successors have thought them injurious. His feelings and language form a singular contrast to the opinions of Lord Hardwicke, a great judge, but one whose narrowed, nay bigoted, views, have caused so much mischief to charitable uses. During the period following the reign of Elizabeth, a large proportion of our most useful institutions were founded; both grammar-schools and hospitals. When Lord Coke makes a remark on the statute of Henry VIII, by which the power of devising land was given, and which, he says, tended often to the disinherison of heirs, he does not raise any objection to devises for pious or charitable purposes; and the case he alludes to is between a devisee (for his own use) and the heir, not between a charitable foundation and the heir. In this country we enjoy, by successive statutes, the greatest power of alienation by will; and the point is, whether it be needful to make charitable donations a peculiar exception. In every other country in Europe you cannot disinherit wife or child;* a man must leave a certain portion to his wife and children, which in France is called legitimé. But in England, the process has been to break down that system, and by the statute of wills (of Henry VIII) and the statutes of frauds and of feudal tenures (of Charles II), all restrictions on testamentary devises of land were removed. In personal property, the process was analogous. Originally, the personalty of a testator was divided into three portions, one for wife, one for children, and the third only for the testator's disposition. As lately as the reign of Charles I, this was the law. Between that reign and the Revolution, a great and unaccountable alteration in the law took place without any legislation, the old law became obsolete except in London and in the province of York; and in the reign of William III acts passed entirely abolishing it. Along with this relaxation of law, there has continued a right feeling in the community at large, not to disappoint the reasonable expectations of relatives. And the question is, whether it is necessary *For any purpose. |