and that they were not within the words, aut alio quovismodo arte vel ingenio. For as recoveries were prosecuted in a course of law, they were presumed to be just; and it was accordingly held, that they were not within the statute (i). Thus originated common recoveries, which, for a long series of years, were one of the principal assurances, by tenants in tail, of lands in this kingdom, and have only recently been superseded by a more simple mode of conveyance (k).

To meet this device of the ecclesiastics, the statute of the 13th Edward I. c. 32 (7), was passed; by which it is stated, that when religious men, and other ecclesiastical persons, did implead any, and the party impleaded made default, whereby he ought to lose the land, forasmuch as the justices had thought hitherto, that if the party impleaded made default by collusion, that where the demandant, by occasion of the statute, could not obtain seisin of the land by title of gift, or other alienation, he should now by reason of the default, and so the statute was defrauded; it was enacted, "that in this case, after the default made, it shall be inquired by the country, whether the demandant had right in the thing demanded or not; if it was found that he had right, judgment should pass for him, and he should recover seisin; and if he had no right, the land should accrue to the next lord of the fee, if he demanded it within a year from the time of the inquest taken; and if he did not demand it within the year, it should accrue to the next lord above, if he demanded it within half a year after the same year; and so every lord, after the next lord, should have the space of half a year to demand it, successively, until it came to the king, to whom at length, through default of other lords, the lands should accrue. And to challenge the jurors of the inquest every of the chief lords of the fees should be admitted, and likewise for the king, they that would should challenge; and that after judgment given, the land should remain clear in the king's hands, until it were deraigned by the demandant, or some other chief lord; and the sheriff should be charged to answer (7) Statutes of the Realm, vol. i.

(i) 2 Inst. 429; Plowd. 43. (k) 3 & 4 Will. IV. c. 74.

87.

for it at the Exchequer." All actions brought for the recovery of any lands or tenements, wherein a freehold, inheritance, or a long term of years, was recovered, were within this act, as a præcipe quod reddat, quare impedit, ejectment fine, execution on an elegit or statute merchant, or of the staple (m).

In consequence of the last statute, a judicial writ was framed, called quale jus, which lay where an abbot, prior or such other, sought to have judgment to recover land by the default of the tenant against whom the land was demanded; in which case, before judgment was given or execution awarded, this writ was directed to the escheator, to inquire what right the party had to recover; and if he found that he had no right, then the lord might enter, as for an alienation in mortmain. After reciting the recovery, and the suspicion of fraud, it commanded the escheator or sheriff to return a jury, to inquire what right the religious person had in the tenements recovered; which of his predecessors had been seised of them, as in right of the church; and what was the annual value. The sheriff was, in the mean time, commanded to seize the tenements in question into the king's hands, and to answer for the issues at the Exchequer; and to give notice to the chief lords, mediate and immediate, of the fee, that they might attend, if they thought proper, at the inquest to be taken (n).

About the beginning of the twelfth century, two religious orders were established, under the name of Knights Templars and Knights Hospitallers, and soon acquired large possessions and revenues all over Christendom, but more especially in England. The knights of both orders enjoyed great privileges, as well against the king as against the other lordsas to be free from tenths and fifteenths-to be discharged of purveyance-not to be sued for any ecclesiastical cause before the ordinary, but before the conservators of their own privileges to give sanctuary to felons, &c. (o) The knights being distinguished by the sign of the cross, it became a

(m) 2 Inst. 429.

(n) Reg. Judic. 16, 17; 2 Inst.

429; Gibs. Cod. 667.

(0) Gibs. Cod. 668.

practice with their tenants to erect crosses on their houses and lands, that their privileges might not be invaded. The tenants of other lords, in order to participate with them in their advantages, began to set up crosses on their lands and houses, as if they had also been tenants of these orders (p).

The statute 13 Edward I. c. 33, after stating, forasmuch as many tenants set up, or caused to be set up, crosses in their lands, in prejudice of their lords, that tenants should defend themselves against the chief lords of the fee, by the privileges of templars and hospitallers; ordained, that such lands shall be forfeited to the chief lord, or to the king, in the same manner as is provided for lands aliened in mortmain.

In consequence of the injury which the lords sustained from subinfeudation, or a grant to hold of the grantor, as a mesne lord; it was provided by the statute 9 Henry III. c. 32, that no man should either give or sell his land, without reserving sufficient to answer the demand of his lord; but that act did not altogether prevent subinfeudation, even where the grantor held immediately of the crown; and afterwards by the statute of quia emptores, 18 Edward I. c. 1., it was declared, "that from thenceforth, it should be lawful to every free man to sell at his own pleasure his lands and tenements, or part of them; so that the feoffee should hold the same lands and tenements of the chief lord of the same fee, by such service and customs as his feoffor held before." This statute contained a provision against alienations in mortmain in these words: "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.”

Between the time of Edward I. and Richard II., it had become a common practice with religious persons, parsons, vicars and other spiritual persons, to enter by the assent of the tenants into lands which adjoined to their churches, to convert them into church yards, and to consecrate them for (p) 2 Inst. 431, 432; 2 Reeves's Hist. 157.

burying places, by virtue of bulls from the pope, without license from the king or chief lords. By which means they purchased considerable property in mortmain (q). It was therefore declared, by statute 15 Richard II. c. 5., that such practice was manifestly within the compass of the statute de religiosis (r).

The next expedient resorted to by the ecclesiastics, to elude the statute of mortmain, was the adoption from the Roman law, of the distinction between the possession of land, and the use or beneficial interest, by obtaining grants not directly to, but to the use of, their religious houses and their successors, by which they took the profits (s). The clerical chancellors who presided at that time, assumed a power of compelling the feoffees to perform the trust which had been reposed in them; by which means the same inconveniences were soon felt by the king and lords, as would have followed from direct alienations in mortmain. To remedy this abuse, it was enacted by the same statute, 15 Richard II. c. 5(t), that within a limited time, all those who were then possessed by feoffment, or by any other means, of lands and tenements, fees, advowsons, or possessions of any other kind whatever, to the use of religious people, or other spiritual persons, should either regularly convey them in mortmain by the license of the king and of other lords, or that they should, within the time limited, sell them to some other use, under the penalty of their being forfeited to the king and the lords respectively, according to the provisions of the statute de religiosis (u). And under the same penalty it was enacted, that from thenceforth, no such purchase should be made, so that such religious or other spiritual person should enjoy the profits.

All the statutes of mortmain hitherto made, relate only to ecclesiastical corporations; civil corporations began now, however, to attract the public attention, and the same incon

(q) See 3 Reeves's Hist. 168, 169. (r) 7 Edw. I. stat. 2, ante, p. 6. (s) 2 Inst. 75; 1 Sand. Uses, 16, 17, 4th ed.

(t) This statute only extends to uses in favour of corporations. Bacon on Uses, 28.

(u) 7 Edw. I. stat. 2, ante, p. 6.

veniences to be felt from the appropriation of land or tenements by them, as by the former.

It was therefore enacted by the statute 15 Richard II. c. 5, that the same statute should extend and be observed of all lands, tenements, fees, advowsons and other possessions, purchased, or to be purchased, to the use of guilds or fraternities; and moreover it was assented, "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 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."

From this statute it is evident, that the doctrine of mortmain did not before apply even to guilds or fraternities; and still less to mayors, bailiffs, and commons of cities and boroughs, and other towns which are stated to be perpetual bodies; but it is obvious, that they were only considered as such by natural succession, and not by any artificial notion of a body corporate or politic. And this enactment has been quoted in confirmation of the position adopted in a recent learned work, that there were no municipal corporations recognized before this period, although the cities and boroughs are not described as being incorporated (v).

Another device practiced by ecclesiastics, was to get their villains to marry free women who had inheritances, so that the lands might come to their hands by the right which the lord had over the property of his villain. The Commons in the 17th year of Richard II., petitioned, that remedy might be had against "such religious persons as cause the villains to marry free women inheritable, whereby the lands come to those religious hands by collusion;" the answer given was, that sufficient remedy was provided by the statute, which, however, had been already found ineffectual in other instan(v) Merewether & Stephens's Hist. Corp. 728.

C