X. Alienation (4)

The second restraint was mortmain.

"Mortmain" is not to be confused with "mainmort." No distinction is made in French ("mainmorte"), Italian ("manomorta") or German ("tote Hand", "dead hand"), etc. between the two notions. Somehow they signified related though different, in some sense opposite realities, not distinguishable by the sole term in those languages. In English they are.

The older notion "mainmort" was applied to serfs. At his death, the serf could not convey his goods to the heirs of his body, not "hand out", so to speak; the "hand was dead."

In the case of "mortmain" the "hand" was also "dead"; but it was the hand of the lord: he could not take his rights of wardship. "Mortmain" here means alienation to a corporation, in the earlier Middle Ages mostly a monastery (or some other religious foundation, such as a chantry). Later, the other main form of a corporation was the guild. In a corporation there is no inheritance, but succession.

If a tenant sold his lands to a corporation, the rights of wardship and marriage were due by the corporation, while the tenant could become the tenant of the monastery, without duties of wardship and marriage. But a corporation had no children (the abbot of a monastery could have children but he would better keep that secret and at any rate they could not inherit from the monastery). A corporation could not die. In short, selling to a corporation, a monastery or a guild, led to the complete destruction of the lord's rights of wardship and marriage (I am inclined to see the dissolution of the monasteries as a late vengeance of the lords, though it certainly does not explain all).

The practice must have existed for a long time. In the Magna Carta (not those of John Without Land, but the second Magna Carta granted by Henry III in 1217, the second granted by him, a child, in the second year of his reign) stipulated that "No freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongeth to the fee" "All classes of lay lords saw their interests endangered by the acquisitive capacity of the religious houses." (Holdsworth, p. 78).

Several statutes were enacted to put a brake on the alienation in mortmain. Without great success, it would seem. In 1391 was enacted the statute 15º Richard II, c.5-6, stipulating that alienation in mortmain was prohibited without license issued by the Court of Chancery.

This was called "license in mortmain."

A similar license was required for alienation of crown lands.

Remember Nelson's senseless definition: „An alienation is the sale of property in which the Crown has an interest."


(To be continued)

© Robert Detobel