turely considered the grievance complained of, proposed a new law to his parliament, which they received with joy, and thus the legislature were induced to interpose by 7 Edw. 1. st. 2. the statute De Religiosis, anno 1279. The statute recites, "That it had been of late provided, 457. Bro. Mortm. 15-43. 50 E. 3, C. 22 13 Co. Lit. 2 b. "that religious men should not enter into the fees of any, "without licence and will of the chief lord, of whom such "fees be holden immediately; and notwithstanding such 1 Roll. 154, 7. "religious men have entered as well into their own fees, 2 Roll. 170, "as into the fees of other men, approprying and buying "them, and sometime receiving them of the gift of "others, whereby the services that are due of such fees, 15 E. 4. c. 18. Fitz.Formedon, " and which at the beginning were provided for the de- $7. "fence of the realm, are wrongfully withdrawn, and the 3 Bulst. 45. "chief lords to leese their escheats of the same. It is "enacted in substance as follows: That no person, reli 66 2 Bulst. 187. 18 Ed. 1. st. 1. C. 3. gious or other, shall buy or sell, by color of gift, or lease, "or otherwise, or receive by reason of any other title, any "lands or tenements, or by any other craft will appropre Enforced and amended by 13 "to himself under pain of forfeiture of same, whereby said Ed.1. st.1.c.82. "lands may come into mortmain. The lord of the fee shall "enter such lands within a year after such alienation, and 34 Ed. 1. st. 3. "hold the same in fee as an inheritance. If he neglect to 66 enter, then the next chief lord immediate may enter in "six months then next, and so in succession. In default "of their entry for one year, the lands shall fall to the "crown, saving due services to the chief lord of the "fee." 8vo edit. As the pope and the clergy mutually supported each 4 Rapin, 9. other, in endeavouring to establish a permanent supremacy in the papal throne; this act was one of the most effectual means to oppose them both, by withstanding the one, and checking the growth of the other; it was a fatal blow to the clergy, whose ambition urged them to grasp the universal dominion over public property; and Fuller's Church it likewise proved as prejudicial to the Pope, since no bounds could be set to the power of the clergy, without lessening that of the court of Rome. The great power which the Pope had acquired in EngHist. b.3, p.77 land arose from the numerous monasteries which had been erected in all parts of the island, which not only increased daily in wealth, but were, with all their territories, entirely at his devotion. If posterity had continued to build and endow religious houses at the rate they were established in the reign of Edward I. all England, says Fuller, would in a short time have turned one entire and continued monastery and the inhabitants thereof become either friars or founders. Such alienation of lands in mortmain, settled on monasteries, afforded neither wards, marriages, reliefs, nor knights' service, for the defence of the realm; in a word, enriched private coffers, and impoverished the public exchequer; wherefore he restrained such unlimited donatives. Exod. 36. 6. The king's act was ignorantly esteemed new, strange, and unprecedented; whereas, in former times, foreign princes had done the same. We find some countenance for it in Scripture, when Moses, by proclamation, restrained the overflowing bounty of the people to the tabernacle; and in the primitive times, Theodosius, the Emperor, although favourable to the clergy, made a law of amortisation to moderate the popular bounty to the church. Yet Jerome complained of it to Nepotian thus : "I am ashamed to say it; the priests of idols, stage. "players, coachmen, and common harlots, are made "capable of inheritance, and receive legacies: only mi"nisters of the gospel and monks are barred by law "thus to do, and that not by persecutors, but by chris❝tian princes; concluding, neither do complain of the "law, but I am sorry we have deserved to have such a ❝ law made against us." St. Ambrose, in his 31st Epistle, expressed much anger on the same occasion, out of his zeal for the church. 13 Edw. 1. From the period of Edward's act, the decline of abbeys may be dated; yet the act did not ruin, but regulate; not destroy, but direct well-grounded liberality, that bounty to some might not be injury to others. This act is said further to have been made with the advice of Archbishop. Peckham, Archbishop Wickwane, a great scholar, and Bishop Beake, of Durham, the richest and proudest of that place. These, though reluctantly, with many others, consented to this act, and to make them some amends, the king not long after favourably stated what causes should be of spiritual cognizance by the statute of circumspecte agatis. Thus it appears that Edward I. was the first christian prince who passed a statute of mortmain, and prevented by law the clergy from making new acquisitions of lands, which, by the ecclesiastical canons,. they were for ever prohibited from alienating. The opposition between his maxims, with regard to the nobility and to the ecclesiastics, lead us, says Mr. Hume, to conjecture, that it was only by chance he passed the beneficial statute of mortmain, and that his sole object was to maintain the number of knights' fees, and to prevent the superiors from being defrauded of the profits of wardship, marriage, livery, and other sinecures arising from the feudal tenures. This is, indeed, the reason assigned in the statute itself, and appears to have been his real object in enacting it. The author of the Annals of Waverly ascribes this act chiefly to the King's anxiety for maintaining the military force of the kingdom, but adds, that he was mistaken in his purpose; for that the Amalekites were overcome more by the prayers of Moses than by the sword of the Israelites. The statute of mortmain P. 234M. was often afterwards evaded by the invention of uses. Upon West, p. 409. Co. Lit. 2 b. Lit. 43. 2 Inst. 75. Upon this statute of 7 Edward I. it was held by Sir Edward Coke, that if any sole corporation, or aggregate of many, either ecclesiastical or temporal (for the words of the statute, 7 Edward I. de religiosis, are, si quis religiosus vel alius) purchased lands or tenements in fee, they had capacity to take, but not to retain, (unless they had a sufficient licence), for within the year after the alienation the next lord of the fee might enter, and if he did not, then the next immediate lord from time to time to have half a year, and for default of all the mesne lords, then the king to have the land so aliened for ever; which was to be understood of such inheritance as might be holden; but if such inheritance as were not holden, as villains, rent charges, commons, and the like, the king bad them presently by a favourable interpretation of the statute. An annuity granted to them was held not to be in mortmain, for it charged the person only. Formerly, alienations of charter, or college, or hospital lands, were so far restrained as that their leases were avoided; and it has been always held, that they cannot alienate either to the crown, or to any person, without authority of the legislature. It should seem as if the last act would have prevented all new devises, but as it extended only to gifts and conveyances between parties, religious men now began to 2 Bl.Com. 271. set up a fictitious title to the land, and by bringing an action against the tenant, who by collusion suffered a judgment by default, they entered, and so defeated the statute. (This is the origin of modern recoveries, the great assurance of the kingdom.) 2 Burn, Eccl. Law, 472. 13 Edw. 1. c. 32 a Inst. 431. But to prevent so glaring an abuse of the legislative power, it was in such cases ordained by a subsequent statute, that a jury, should try the right of the parties, and if it should be proved that the religious house had no no right, then the lands should be subject to the above forfeiture: and the like provision was made to prevent the additional artifices of the tenants setting up crosses on their lands (the badges of knights templars, and hospitallers), in order to protect them from the feodal demands of their lords, by virtue of the privileges annexed to those religious and military orders. The succeeding statute of Quia emptores abolished all subinfeodations, and allowed men to alienate their lands to be holden of their next immediate lord; and a proviso was inserted, to prevent any future evasions, that this should not extend to authorise any kind of alienation in mortmain. In a very few years afterwards the legislature was obliged again to interrupt the ingenuity of the sacred Conclave, and to revive the ancient authority of the crown, in granting licence to amortize lands; and an 27 Ed. 1. st. 2. act was passed establishing a mode of application for such consent, by writ of Ad quod damnum, which lay from the F. N. B. 223. Court of Chancery, to any one who required the king's licence for such alienation; which was directed to the escheator," to enquire what damage would ensue to the king, or unto other persons, if the king should grant "such licence;" and upon the return, the king was to give leave to aliene in mortmain: but even this licence was further restrained (as no doubt the process soon became a mere matter of form) by a new statute, enacting, "That even this licence should be ineffectual without "the consent of the mesne or intermediate lords.”—De 9s Edw.1, st. 1. apportis religiosorum. A. D. 1307. The parliamentary measures adopted by Edward III. A. D. 1843, in the 17th year of his reign, against the encroachments of the college of Rome, are retained in the ancient records of that reign. Stratford, Archbishop of Canterbury, is supposed to have been the author of the proceedings |