said chaplain ten marks out of the rents of the said tenements; and the said chaplain and his successors be chosen by the master and brethren of the House of St. Thomas, &c. And that all the said tenements and rents, after the decease of my brother John, remain to Margaret and Isabella, my sisters, for the term of their lives, and the life of the longer liver, on condition that they, during their lives, perform and observe all the charges before limited; and after their deaths, that the said tenements remain to William Fowler, to hold to him and his heirs for ever, on condition that he and his heirs perform the said charges. And in default of heirs, that the said tenements remain to the master of the Hospital of St. Bartholomew, to hold to them and their successors for forty years, on condition, &c, (as aforesaid).' The testator afterwards died, the said W. Brampton being seised of the lands to the uses in the will expressed.* The said John Barton, the younger, after the death of the testator, entered into the lands and applied the rents to those uses. After his death, Brampton being still seised, the sisters entered into possession and so applied the rents during their lives. Then Fowler took possession, and his heirs applied the rents to those uses until the statute of uses in the reign of Henry VIII transferred their 'use' into a legal title to the possession of the land, of which they then became seised to the uses of the will t until the act of chantries."

And this policy the legislature pursued in subsequent acts passed after the period of the Reformation, the first time in the history of this country in which death-bed dispositions for religious or charitable uses were encouraged.

It is a very remarkable fact that, immediately after these statutes of confiscation, an act of parliament was passed removing the feudal restrictions upon devises of land, and allowing so much to be devised as should leave a "reasonable part" for the heir. And, although this did not affect the mortmain law, (which continued to apply to such charities as hospitals, &c., which had perpetual succession by royal charter), yet, as those

* Which were to let certain persons, in their personal capacity, receive the rents for religious purposes for ever: so that there was a perpetual trust, but no mortmain, because the last statute of mortmain (Richard II) only prohibited alienations in trust for corporations: and here the trustee was not so, for the chaplain and his successors, but for the persons who were to maintain them. Thus, then, this case clearly shows that inalienability, or perpetuity of trust, was not within the mischief of the mortmain laws.

† The feoffee and his heirs were seised in trust for the "chantry”, ¿.e. the chaplain and his successors; and thus the mischief of mortmain arose. But it will be observed that no allusion is made to it in the case: the reason is obvious the law was already obsolete, feudal seisures being at an end.

32 Henry VIII, 5.

laws did not prevent the holding of land by individuals unincorporated, in trust for religious or charitable purposes, it cannot but be seen, that as no particular political reasons had occurred at that period for a relaxation of the feudal restrictions, &c. (which, in other respects, remained in existence until the reign of Charles II), the object of this act was to allow persons who had shared in the spoliation of the religious houses and chantries, and who had not courage to make restitution in their lives, to do so as far as the law allowed on their death-beds.*

Of course, when religious houses were suppressed, and when, not long afterwards, the religion from which they arose was likewise suppressed, the laws of mortmain ceased to have any practical application, so far as their original scope was concerned, but they continued to apply in cases (comparatively rare) of hospitals incorporated, and also as to ecclesiastical corporations of the secular clergy (corporations aggregate or sole), in the established Church; and lastly, as to municipal corporations, for let it always be remembered, that these ancient laws related only to bodies corporate. Not only, however, is the learning relating to these laws of mortmain still directly and practically useful as respects corporations, civil and spiritual, yet subsisting, but the history of these laws is of great importance for the purpose of dissipating the prejudices which, when the country had become quite Protestant, were based upon a systematic misrepresentation of these laws, and of the principles and policy upon which they were founded. Forgetting altogether their feudal origin, and their application purely to corporate bodies, it has been the modern notion of them, that they originated in a persuasion of the injurious effects of allowing land to be in possession of the Church or of her religious orders, in respect to the mode of management, or the interests of trade, or the morally

The statute of wills gave a general power of devising, but an explanatory act excepts bodies politic and corporations. The object of the latter act is obvious: it was passed after the dissolution of the religious houses, and was designed to prevent their property being bequeathed back to them by parties who had profited by the plunder, and whose consciences might perchance prick them at the approach of death. From that time, corporation could not, even with license, take lands by devise (except by custom, which prevailed in several places, particularly in London), until the Charitable Trusts Aet of Elizabeth. (Evidence of Mr. Burge, 1844.)

mischievous influence of landed property in the hands of ecclesiastics, or as to the way in which property was acquired by the Church. It suffices to expose the fallacy of these ideas, to observe that, not only they had no existence in Catholic times, but that their origin cannot be traced even to the era of the Reformation, but to a time considerably subsequent to that event-to an age, when not only Catholicism almost had ceased to exist in, but when irreligion had begun to prevail in the country, and impiety was substituted for charity. Then, and not till then, was the notion promulgated, that it was a mischievous thing to allow land to be dedicated permanently to religious purposes; and then, and not till then, those misrepresentations of the mortmain laws commence which made them out to have been resorted to by the laity as a protection against "the rapacity of the clergy", or as a security against certain ill effects of the then acquisition of land; ideas which had no existence either before or at the time of the Reformation, nor until long afterwards; so far from it, that, as we have seen, land was constantly, from the passing of the first mortmain laws until the suppression of all such endowments as "superstitious", held in trust for permanent religious purposes by persons not incorporate, and this was recognized as legal by the courts of law, and allowed by the legislature from the time of Magna Charta until the reign of Henry VIII; and when the system was suppressed, and these endowments confiscated, it was not at all upon the pretence in modern times put forth, but upon a very different pretext-that of "superstition". Not a trace can be found in our legislation prior to the Reformation, (nor, as we are now about to prove, prior to the Revolution,) of the modern prejudices about the rapacity of the Catholic clergy or the peril of permitting deathbed dispositions for pious purposes, which have been made the foundation for modern legislation, and which, if they ever had any foundation in facts, it must have been discovered not in Catholic, but in Protestant times.

* See the evidence of Mr. Burge in 1844:-"It has been represented erroneously, that the statutes of mortmain were passed for the purpose of protecting the people of England against the rapacity of the clergy. I have found no statements in old books which would lead me to suppose that the popular opinion took that line."

At the Reformation, a new era in the history of charity commenced, not merely in the proscription of the Catholic charities, but in the character imparted to, and encouraged in Protestant charities. Hitherto there had been, on the one hand, no peculiar restriction imposed upon alienations for religious purposes as such, but rather encouragement had been extended to them; and on the other hand, these alienations had usually been by grants from the living, not by bequests from the dying. In an age, however, in which the religious orders had been plundered and suppression made the means of spoliation, it would not be expected that the spirit in which they had been founded would exist. Charity could not continue in a country which had lost the faith, and accordingly we find the legislature speedily sensible, not only of the mischief occasioned by the suppression of the religious houses, but of the difficulty of repairing it.* Not only did they discover the loss of Catholic charity, but the weakness of Protestant charity. How could it be otherwise? The spirit which had founded the religious houses was one of self

* Lambard says:-" In ancient times, the greatest personages held monks, friars, and nuns in such veneration, that they thought no city like to flourish, no house likely to have long continuance, no castle sufficiently defended, where was not an abbey, priory, or nunnery, near adjoining or within the walls." (Wever on Funeral Monuments, 281.) And Robert Fabian, in his Commendation of London, says, writing in the reign of Henry VII, that "Christ hath ever preserved that city by means of divine service: that in continual wyse is kept in devout guyse within the maze of it. As houses of religion in divers places of the town, whyche in great devotion ben ever occupyed; when one hath done another begyn, so that of prayer they never blyn, such order is these houses within which all virtue allyed." Weever says, speaking of the suppression of the smaller monasteries:"It was a pitiful thing to hear the lamentation that the people in the country made for them, for there was great hospitality kept among them." (Ib. 105.) All monasteries being thus suppressed, it followed that, under a fair pretence of rooting out all superstition, all chantries, colleges, and hospitals, were likewise by act of parliament left to the disposal of the king. And all these monuments of our forefathers' piety and devotion to the honour of God, the propagation of Christian faith and good learning, and for the relief and maintenance of the poor and impotent, all these were, shortly after, everywhere pulled down, and their revenues sold and made away; and those goods and riches which the Christian piety of our English nation had consecrated to God, since they first professed Christianity, were dispersed and profaned.” (Weever's Discourse of Funeral Monuments.)

sacrifice; and how could that spirit exist in an age of spoliation and sacrilege? or how could persons be expected to renew the foundations of charitable institutions, when the miserable fate of such as had existed for centuries had been seen? In 1572, an act of parliament recited :—

“That divers well-disposed and charitable persons have given lands to the relief and sustentation of the poor in hospitals, and it is hoped that many more will hereafter likewise charitably give, and as many of such gifts are likely to be made by last will and testament of the givers, at which time, for want of counsel, it may happen that the right name of the corporation shall not be truly named❞—

And then it enacts, that such wills shall be good. So that here was actually a statute passed to facilitate and confirm devises of lands for charitable purposes made in extremis, and declaring that, by such devises, "it is hoped" that those who are charitably disposed will endeavour to repair the cruel mischief caused through the ruin of the religious houses, by erecting "hospitals for the poor." In 1597, another act passed,* reciting:-"That the said good law has not taken such effect as was intended"; and then it goes on to provide, that,

"It shall be lawful to give or bequeath lands, &c. for hospitals, maisons de Dieu, &c. and to make any such head and members as may be desirable; and the same shall be incorporated notwithstanding the statutes of mortmain."

And the act† to redress the misemployment of lands given, appointed, and assigned for charitable uses, not only dispensed with the statutes of mortmain altogether in favour of charitable uses, but also empowered commissioners of charitable uses to give effect to any dispositions (testamentary or otherwise) in favour of such uses, even though, at mortmain law, such disposition could not, for other purposes, take effect. And, under this law, Bacon and other chancellors of that age held, that a will void in law was nevertheless good as an "appointment" for charitable uses. Hence it appears plainly, that the expectation of the legislature at this period was principally from bequests of the dying, not by gifts of the living; and their intention was to favour and precipitate. such bequests as much as possible, finding that how much the nation was in need of charity, and + 43 Elizabeth, c. 4.

* 39 Elizabeth, c. 5.