Statutes of Mortmain

If an estate became owned by a religious corporation which could never die, could never attain majority, and could never be attainted for treason, these taxes never became payable.

But King John, the original signatory of Magna Carta, died the following year, and his son, Henry III, did not enforce the proscriptions and, to the contrary, showed great deference to the Church.

Henry's son, Edward I, desired to re-establish the precedent set by the 1215 and 1217 issues of Magna Carta.

However, these statutes proved ineffective in practice, and the problem of Church lands persisted, due to the development of the device of the cestui que use, which side-stepped the royal courts and began – in the ecclesiastical courts – the development of the law of trusts, which separated the legal ownership from the right of occupation or use of land.

In the opinion of Pollock and Maitland, in the middle of the 13th century the tenant enjoyed a largely unfettered power of disposing of his tenement inter vivos, though this was subject to some restraints in favour of the overlord.

Coke regarded the English tradition as one of ancient liberty dictated by custom, in which the tenant had relative freedom to alienate all or part of his estate.

Both views may have been true: modern scholars may have given more weight to the written law of the Normans than existed in reality after the Black Death had altered the economic conditions of the age.

The King made various attempts to prevent this practice, including in Magna Carta in 1215 and in the Statutes of Mortmain in 1279 and 1290, but these measures were largely ineffective.

If A enfeoffed to B, to hold on a knight's service (a form of military service), and then B enfeoffed C to hold at a rent of a pound of pepper per year, if B then dies leaving an under-age heir, A is entitled to a wardship, but it will be worth very little: instead of being entitled to enjoy the land itself until the heir is of full age, the overlord will get only a few annual pounds of pepper, because C is in possession, not B.

It also ended the possibility for further estates in frankalmoin to be created by anyone other than the king, as any gift of land to the Church now required royal consent; but the lawyers who had created frankalmoin now nimbly side-stepped the Statutes of Mortmain, and the cumbersome and useless common law courts, with the development of a replacement device in the ecclesiastical courts, the cestui que use.

Bracton describes these as "primo et principaliter" (first and principally) to God, and only "secundario" (secondarily) to the canons or monks or parsons.

[15] In later years, the feature of the tenure of frankalmoin which attracted the notice of lawyers was the absence of any service that could be enforced by the secular courts.

Frequently, land would be donated to a religious body, which would simultaneously re-let it to the donor, in order to evade those feudal services which otherwise would be due to the immediate overlord.

The local bishop or priest might also sit in judgment of civil and criminal cases in the royal courts.

[21] This law was undermined in practice by the Chief Justice of the kingdom, Coke, whose courts interpreted the provision as though its only effect was to make the gift voidable by the donor's heirs.

In 1258 at the Parliament in Oxford, the barons sought to preclude men of religion from entering into ownership of fees held from earls, barons and other lords without their consent, whereby the overlord lost forever the rights of wardship, marriage, relief and escheat,[29] i.e. they were trying to use the authority of Parliament to bind the king with these provisions.

In 1259 the Provisions of Westminster ordained that it shall not be lawful for men of religion to enter the fee of anyone without the permission of the lord from whom the land was held.

[30] The Provisions were alternately considered to be the law, then not rigorously enforced, depending upon who had greater political sway: the barons or the king.

Most of the Provisions of Westminster were subsequently enacted, hence given greater authority, in the Statute of Marlborough in 1267, but not those relating to the gifting of fees to the Church.

][32] In 1279 the statute De Viris Religiosis referred to the Provisions of Westminster as if they were settled law, whilst adding a restriction on alienations made in mortmain, discussed below.

The statute did not merely abolish frankalmoin: ecclesiastical houses could no longer acquire land in any manner, even if they were willing to pay a full rent for it.

And licenses from the king to acquire land in mortmain were easily obtained in those years, as Henry III was sympathetic to religious bodies during his long reign.

[34][35] Henry III had a reputation of ruling by fiat – making royal proclamations on the spur of the moment.

These were troublesome to both the secular and the church courts of the day, and efforts were made to curtail and limit this practice.

However, Henry III showed conspicuous favour to the Church and left the proclamations of 1215 and 1217 made by King John largely unenforced.

The proscription was reintroduced, and made more forcible, by Henry III's son, Edward I, by the Statutes of Mortmain in 1279 and 1290.