were not incorporated (m); it has, however, long been an established maxim of the English law, that land granted to a community or aggregate body of men, not incorporated, cannot, by virtue of the original grant alone, be transmitted to their successors (n). Where land, therefore, is granted to individuals not incorporated, for charitable or other uses, intended to have perpetual duration, the only legal way of continuing the property to any other persons for the same purposes, is by endless conveyances from one to the other as often as the hands are changed. The societies of the Inns of Court, which are not corporations but voluntary societies (o), in their collective capacity, have held the property of the ground on which the chambers are built, ever since they were established. The mode by which these societies supply the defect arising from their not being incorporated, is said to be this-the first grant of the possessions was made to a select number, and their heirs, in trust for the society at large; this select number forms the bench; as the members of it die, they choose others from the society: the legal property is in the surviving members only, of the original trustees; when that number is considerably reduced, the survivors convey to one or two of their officers, or to some third party, in trust to convey to all the existing members of the bench; such conveyance is accordingly made, and thus the succession is continued (p). The common method of giving real and personal property to charitable uses, has been to vest it in certain trustees, upon such trusts as are mentioned in the deeds or writings by which they are appointed, with power from time to time, when the trustees are reduced to a certain number by death or other means, for the survivors, by a new appointment and conveyance of the estate to other trustees, to supply the place of the trustees who have died, or resigned the trust. On the appointment of new trustees, the surviving trustees, or the (m) Ante, 19. (n) 10 Rep. 26 b. (0) See Rex v. Benchers of Gray's Ian, Dougl. 354; Rex v. Benchers of Lincoln's Inn, 4 Barn. & Cr. 855; D heir at law or devisee of the last surviving trustee, usually conveys the estate by lease and release to a third party, to the use of the new trustees and their heirs, upon the trusts declared in the deed or will by which the charity was originally created. Many instances are to be found of corporations erected expressly for the purpose of being trustees for charities. In other cases, existing corporations have been made trustees of charities, thus: by charter, 26th June, in the seventh year of the reign of Edward VI., the management and government of the Hospital of St. Thomas the Apostle, and of the Hospitals of Christ and Bridewell, were vested in the mayor, commonalty, and citizens of the city of London, and their successors, who were thereby named governors of the said hospitals, and constituted a body politic and corporate, by the name of "the Governors of the possessions, revenues, and goods of the hospitals of Edward, king of England, the sixth, of Christ, Bridewell, and St. Thomas the Apostle" (q). The members of many other corporations and companies have, in like manner, been incorporated as governors of schools and charities. SECTION III. Of Licenses to hold Lands in Mortmain. 1. How such Licenses were formerly granted, and when necessary. 2. The present Power of the Crown to grant such Licenses, p. 39. 1. How such licenses were formerly granted, and when necessary.] Alienations in mortmain were not made void by the preceding statutes (r), so as to let in the grantors or their heirs at law; but operated as a forfeiture, giving a right to the (r) Ante, pp. 5—17. (q) 10 Rep. 31 b. mesne lords and the king to enter upon and seize the lands; if such right, therefore, was waived, the alienation was good; hence arose the dispensation with those statutes, called a license in mortmain (s). A license from the crown is said to have been necessary in England, before the Conquest, for alienations in mortmain (t); but however that may have been, the power of the crown to grant such licenses, notwithstanding the statutes of mortmain, was soon established. The words of 9 Henry III. (u) seem to imply a general prohibition in favour of the immediate lord of the fee; but as every man may dispense with a forfeiture intended for his own benefit (v), it seems that notwithstanding that statute, an alienation in mortmain was lawful, if made with the license of the immediate lord, whether that lord was the king or a subject; and the complaint in the preamble of the next statute (w) does not extend to the alienation without the license of any other, although it complains of the practice of religious men entering upon fees holden of themselves, against which the first statute had provided. From which it is manifest, that the general interest of the community began to be considered as equally endangered by these appropriations, as the particular interests of the lords. The enacting part of the second statute, therefore, not only prohibits all the practices complained of, but makes a provision for the entry of the king, in default of all the other lords. From this time, therefore, it may be supposed, that if an alienation in mortmain was permitted at all, it must have been in consequence of a license, not only from the immediate lord, but from all the mediate lords and from the king (x). A mode was then prescribed for applying for the license, for by 27 Edward I. stat. 2 (y), it was enacted, that men of (s) See Wilmot's Notes, 9, 10. (t) 1 Selden, Jan. Angl. lib. ii. 8. 45; Vin. Abr. tit. Mortmain (A); MS. Cotton Claud (B), fol. 26; Bac. Abr. tit. Charitable Uses (A). (u) Ante, p. 5. () Alienatio licèt prohibeatur, consensu tamen omnium, in quorum favorem prohibita est, potest fieri; (w) 7 Edw. I. stat. 2; ante, p. 6. religion that would amortise lands or tenements, should have a writ out of the Chancery to inquire according to the points accustomed in such things; and that inquests of lands or tenements that be worth yearly more than 20s. by extent, be returned into the Exchequer, and there the fine shall be made for the amortisement, if the inquests do pass for them that purchase, and after, it shall be commanded unto the chancellor, or his deputy, what he shall do therein. It is probable, that in conseqnence of this statute, the license of the king came to be considered as of the principal importance, and that the interest of the mesne lords began to be overlooked, which gave rise to the statute 34 Edward I. stat. 3; by which it was enacted, that "where there were mesne lords, nothing should be done in pursuance of the former statute, unless the religious persons could show to the king the assent of such lords, under their patents, sealed with their seals, and that nothing should pass where the donor reserved nothing to himself; or where inquisitions were made without warrant, that is, without the original writ being returned with the inquest, and unless the original writ made mention of every thing required by the new ordinance devised by the king." The new ordinance here referred to, was the statute 27 Edward I. stat. 2 (z). The power of the crown to grant such licenses, is recognized by several statutes (a). (2) 1 Kyd. on Corp. 89. (a) 18 Edward III. stat. 3, c. 3, is in these words, "If prelates, clerks, beneficed or religious people, which have purchased lands, and the same have put to mortmain, be impeached upon the same before our justices, and they show our charter of license and process thereupon made by an inquest of ad quod damnum, or of our grace, or by fine, they shall be freely let in peace, without being further impeached for the same purchase. And in case they cannot sufficiently show that they have entered by due process, after license to them granted in general or in special, that they shall be well received to make a convenient fine for the same, and that the inquiry of this article shall wholly cease, according to the record comprized in this Parliament." This right of the crown is recognized by several acts of general pardon, which except lands aliened into mortmain without license royal. See statutes 21 Richard II. c. 15, 25 Richard II. c. 5, 2 Henry IV. c. 13. The third charter of Edward IV., dated 20 June, 18th year, to the city of London, granted in consideration The writ ad quod damnum lay where a man would give lands or tenements in mortmain, as to a religious house, or to a body politic in fee simple, in which cases he ought to have had the king's license and the license of the chief lords of whom the lands were holden to make such gift. That writ was directed to the king's escheator for the county in which the lands or tenements lay which were intended to be aliened in mortmain; and commanded him, by the oath of good and lawful men, diligently to inquire whether it would, or would not, be to the damage or prejudice of the king, or of others, that the king should grant to the person who had sued out the writ, the liberty of aliening to the particular corporation, whether sole or aggregate, to which the alienation was to be made, the particular lands or tenements described in the writ; and, if it should appear to be to the damage or prejudice of the king, or of others, then to what extent, and of whom, by what tenure, and by what services, the lands or tenements were holden, what was their real annual value, and who were the mesne lords between the king and the tenant who intended to alien; what lands and tenements would remain to the tenant after the intended alienation, where they were situate, of whom, by what tenure, and by what services they were held, and what was their annual value; and if lands and tenements would remain to him, whether these would be sufficient to enable him to perform all the services which were due, as well for the lands and tenements intended to be aliened, as for what should remain to him after the alienation; and to support all the burthens which he then bore, or was accustomed to bear, as in suit of court, view of frank pledge, aids, talliages, watchings, fines, redemptions, amercements, contributions, and all other burthens whatever; and whether he could be put of the payment of a sum of money, that the city should have liberty to purchase in mortmain lands and tenements to the value of 200 marks per annum, without hinderance of the king's justices, escheat ors, or other officers, and without the necessity of any inquisitions upon the writ ad quod damnum, and notwithstanding the statutes of mortmain. Norton's Comm. on London, 490. |