Inmates of Parliamentary and Municipal Franchise. Questions have sometimes arisen as to whether the inmates of hospitals, &c., when entitled' hospitals and almshouses have a freehold interest sufficient to entitle them to be placed upon the register of voters. to be regis tered. Freehold interest. Right to receive pecu niary allowance for life. Inmates removeable at pleasure. Receipt of parochial relief, &c. Where the inmates are appointed for life, and have a freehold interest in the rooms or houses which they occupy, they are entitled to be registered (p). If, on the other hand, the estates are vested in a body of governors or trustees, and the inmates have no interest in any particular building or portion of a building, but may be shifted from room to room, and all they are entitled to is to receive certain money payments out of the charity funds, then, although they may be appointed to enjoy the benefit of the charity for life, they have no such interest as will entitle them to be registered (q). Still less, of course, where the inmates are not appointed for life, but are removeable at pleasure (1). The receipt of parochial relief or other alms is a disqualification for the parliamentary franchise (s). But relief by vaccination (t) or from School Board fees (u), or in the case of the metropolis by admission into a hospital on the ground of infectious diseases (x), is not a disqualification. The receipt of union or parochial relief, or other alms, is a disqualification for the municipal franchise (y). PART II. MORTMAIN AND CHARITABLE USES ACT, 1888. INTRODUCTION. "ALIENATION in mortmain, in mortuâ manu, is an alienation of Meaning of lands or tenements to any corporation, sole or aggregate, eccle- mortmain. siastical or temporal” (a). With regard to the origin of the term "mortmain," Lord Origin of Coke (b), after mentioning the conjectures of others, said that term. the true cause and meaning of the name was taken from the effects, as it is expressed in the statute (c) itself, that the services that were due out of such fees, and which, in the beginning, were created for the defence of the realm, were unduly withdrawn, and the chief lords lost their escheats, wardships, relief, and the like; so that the lands were said to come to dead hands as to the lords, for a dead hand yieldeth no service. mortmain In England (d) the early Mortmain Statutes were designed to Reason for check the accumulation of land in the hands of the great religious passing or ecclesiastical corporations. The result of these accumulations statutes. was, that the lords were deprived of the incidents of tenure, and the benefit of escheats. The preamble to the Statute De Viris Religiosis (e) recited, that religious men had wrongfully entered into fees without licence and will of the chief lord, of whom they 2 Bl. Com. 268. Co. Lit. 2 b. (c) 7 Edw. I. (d) Prohibitions upon alienation in mortmain are not peculiar to English law. The same thing was more than once attempted by Roman legislators. See Att.-Gen. v. Day, 1 Ves. Sen. at p. 223. Frederick Barbarossa enacted that no fief should be transferred either (e) 7 Edw. I., infra. Policy of law. Magna Charta. Stat. De Viris were held, "whereby the services that are due of such fees, and which, at the beginning, were provided for the defence of the realm, are wrongfully withdrawn, and the chief lords do lose their escheats of the same.' The policy upon which restrictions on the alienation of land in mortmain are founded is the same as that which finds expression in the rule against perpetuities, the policy, that is, of removing as far as possible all checks to the free circulation of property. The earliest enactment of the kind now in question was contained in Magna Charta (f). It was directed solely against religious houses, and corporations sole were not affected by it (g). It was provided, by that Statute, "that it shall not be lawful from henceforth to any to give his lands to any religious house, and to take the same land again to hold of the same house. Nor shall it be lawful to any house of religion to take the lands of any, and to have the same to him of whom he received it. If any from henceforth give his land to any religious house, and thereupon be convict, the gift shall be utterly void, and the land shall accrue to the lord of the fee." This was followed in the reign of Edward I. by the enactment known as the Statute De Viris Religiosis (1). That Statute extended not only to ecclesiastical corporations aggregate, but it also expressly included bishops, parsons, and other ecclesiastical corporations sole (i). The preamble recited, that it had been provided that religious men should not enter into the fees of any without licence and will of the chief lord, and that they had entered into the same accordingly, sometimes having bought them, sometimes having received them as presents, whereby the services due for such fees were wrongfully withdrawn and the chief lords lost their escheats. The statute then proceeded to ordain that no person, religious or other, should buy or sell or receive of any man, by gift, lease, or otherwise, or appropriate to himself, any lands or tenements whereby the same might come into mortmain on pain of forfeiture. In such case the king and other immediate chief lord of the fee might enter upon the land so aliened within a year after the alienation and hold it in fee and inheritance. And if the immediate chief lord did not enter within the year, the next chief lord (f) 9 Hen. III. c. 36, re-enacted by 25 Edw. I. See 2 Inst. 75; Wilm. Notes, p. 9. (g) 2 Inst. 75. (h) 7 Edw. I.; repealed and re-enacted by the Mortm. and Charit. Uses Act, 1888. (i) Co. Lit. 2 b. immediate might enter within the next half year; and similarly the next immediate lord. And if all the chief lords of the fees, being of full age, within the four seas and out of prison, should neglect to enter, the king, immediately after the year accomplished from the time that the purchases, gifts, or appropriations were made, should take such lands and tenements into his hand. and infeoff other therein by certain services to be done to him for the defence of the realm, saving to the chief lords of the same fees their wards and escheats and other services due and accustomed. c. 32. The same reign produced two other Statutes (4), both aimed at 13 Edw. I. practices which had been adopted for the purpose of evading the 13 Edw. I. Statute De Viris. The first of these enacted that lands acquired c. 33. in mortmain by means of collusive judgments (1) should be forfeited. The second was directed against the practice of setting up crosses on lands with the object of obtaining the benefit of special privileges enjoyed by the Knights Templars and Hospitallers. The Statute of Quia Emptores (m), which enabled every free man 18 Edw. I. to sell his lands and tenements, or part of them, contained the c. 3. following provision against alienation in mortmain: "And it is to be understood, that by the said sales or purchases of lands or tenements, or any parcels of them, such lands or tenements shall in no wise come into mortmain, either in part or in whole, neither by policy nor craft, contrary to the form of the statute made thereupon of late" (n). c. 5. The next Statute was 15 Ric. II. c. 5 (0), which was explanatory of 15 Ric. II. the Statute De Viris. Among other things, it declared that purchases to the use of spiritual persons, by means of which they were enabled to enjoy the profits of the land, were within the mortmain provisions. tions. It contained, however, one provision which requires more par- Civil corporaticular notice. The earlier Mortmain Statutes had been directed solely against ecclesiastical or religious corporations. The Statute 15 Ric. II. c. 5, for the first time extended these provisions to civil corporations. It enacted that the same Statute (p) should extend and be observed of lands, tenements, fees, advowsons, and other possessions purchased or to be purchased to the use of guilds or (2) Statute of Westminster the Second, 13 Edw. I. cc. 32, 33. 13 Edw. I. c. 32 is repealed by, and its provisions incorporated in the Mortm. and Charit. Uses Act, 1888, post. 13 Edw. I. c. 33 was repealed by 19 & 20 Vict. c. 64. (7) The processes afterwards known as common recoveries. As to this, see 2 Inst. 429; Wimbish v. Tailbois, Plowd.. (m) 18 Edw. I. st. 3. (n) The Statute De Viris, supra. (p) The Statute De Viris. 15 Ric. II. c. 6. 23 Hen. VIII. c. 10. Alienations in mortmain void. fraternities; and "because mayors, bailiffs, and commons of cities, boroughs, and other towns which have a perpetual commonalty, and others which have offices perpetual, be as perpetual as people of religion, that from henceforth they shall not purchase to them, and to their commons or office, upon pain contained in the said Statute De Religiosis; and whereas others be 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.' The next chapter of the same Statute was directed against the appropriation of benefices by religious houses, and provided that in every licence for the future to be made in Chancery for the appropriation of any parish church, a convenient sum of money should be ordained to be paid and distributed yearly of the fruits and profits of the same church by those to whom the appropriation was made and their successors to the poor parishioners of such church; and that the vicar should be well and sufficiently endowed (2). The next Statute which requires notice is 23 Hen. VIII. c. 10 (), the earliest enactment relating to superstitious uses. By that Act all assurances and trusts of land to the use of parish churches, chapels, churchwardens, guilds, fraternities, commonalties, companies, or brotherhoods, erected and made of devotion, or by common assent of the people, without any corporation, or to uses to have obits perpetual, or a continual service of a priest for ever, or for sixty or eighty years, were declared to be within the mischief of alienations in mortmain, and to be utterly void as to such gifts made for any time exceeding twenty years from the creation of such uses (s). Under the above-mentioned Statutes the effect of an alienation in voidable, not mortmain was to give the mesne lords and the king certain rights of entry. But until that right was exercised the land remained in the corporation. The incapacity of the corporation was not to take the land, but to retain it against the lord or the Crown choosing to re-enter. In other words, the alienation was voidable, not void. Licences in mortmain. It followed from the fact that the mesne lords and the king were not bound to exercise their rights of entry, that such rights might be waived. Hence arose licences in mortmain. (9) See also 4 Hen. IV. c. 12. An appropriation of an advowson by an abbot or bishop to himself and his successors was an alienation in mortmain, and could not be made without the king's licence. See post, p. 382. (r) Repealed and not expressly reenacted by the Mortm. and Charit. Uses Act, 1888, its provisions having been superseded by 9 Geo. II. c. 36. (s) The Act contained an exemption of cities and towns corporate having by ancient custom power to devise in mortmain. See Porter's Case, 1 Rep. 22 b. |