mortmain; they could not execute the commandment of the will without the King's licence, in confequence of an inquifition returned on a writ of ad quod damnum (a). AND if a man wifhed to exchange lands, tenements, or rents with an abbot, or other body corporate, he could not do it without fuing forth this writ; in which both the lands which were to be given, and those which were to be taken in exchange, must have been particularly described (b). THOUн the statute of 34 Ed. 1. ft. 3, had provided for the interests of the mefne lords, yet, by the gradual operation of the ftatute of quia emptores, and other causes, thefe had become of fo little importance, that the King's licence to alienate in mortmain, began to be confidered in the light of a peculiar prerogative; which seems to be admitted by a ftatute of Edward the third (c), by which it is provided, that "if prelates, clerks beneficed, or religious people, who had purchased lands in mortmain, should be impeached on that account before the juftices, and should fhew the King's charter of licence, and procefs on it, by an inqueft of ad quod damnum, or that it had been by the King's grace, or by fine, they fhould be freely left in peace without being further impeached for the fame purchafe; and if they could not fufficiently fhew, that they had entered by due procefs after licence to them granted in general or in special, they should be admitted to make a convenient fine for the fame, and that the inquiry should cease." THE ftatute of quia emptores having exprefsly provided that the free power of alienation thereby given, should not enable any one to give his lands or tenements in mortmain, it became a practice to infert, in all licences to make fuch (b) Id. 223. E. (a) F. N. B. 224. F. alienation, alienation, a claufe of non obftante applying to that ftatute, as well as to the ftatute of mortmain; though it is conceived, that fuch clauses were not neceffary (a): but when they had once been introduced, their operation was fuch, that, that which was at first manifeftly only a remiffion of a forfeiture by thofe who were intitled to take advantage of it, began to be confidered as a power to difpenfe with the exifting law of the country; and Fitzherbert (b) tells us, that in his time (c), the common experience was, that those who would purchase leave to alienate in mortmain, did not fue out the writ of ad quod damnum; but obtained the insertion of a claufe at the end of the King's letters patent of licence, which difpenfed with the neceflity of the writ, and of all other ceremonies whatever: he adds, indeed, that it feemed doubtful whether fuch patents were good or not, if it were evidently proved that they were prejudicial to the interefts of the King or of others. HOWEVER, the pretended power of fufpending ftatutes by the royal authority, having, at the time of the revolution, been declared illegal, and the intereft of mefne lords having at length been reduced almost to a shadow, it was thought prudent to confirm, by act of parliament, the King's power of granting licences in mortmain, in order, on the one hand, to prevent fuch licences from being confounded with a difpenfation, and on the other, to remove all doubts that might have been entertained of their validity. ACCORDINGLY, it is enacted by the 7 and 8 W. 3, c. 37, for the purpose of encouraging learning, and enabling fuch as fhould be fo difpofed, the more eafily to endow new colleges and schools, or to increase the revenues of (a) Vid. Co. Lit. 99. a. (c) The time of H. 8. (b) F. N. B. 222. D. fuch fuch as were already endowed, that the King, his heirs and fucceffors, might grant in such cases as they thought proper, to any person or perfons, bodies politic or corporate, their heirs and fucceffors, licence to alienate in mortmain, and also to purchase, acquire, take, and hold in mortmain, in perpetuity or otherwife, any lands, tenements, rents, or hereditaments whatever, of whomfoever the fame should be holden; and that no forfeiture fhould be incurred by reafon of fuch alienation or acquifition. SINCE this ftatute, writs of ad quod damnum have not been usual on granting licences to alienate in mortmain (a). BETWEEN the time of Edward the firft and Richard the fecond,it had become a common practice with religious perfons, parsons, vicars, and other spiritual perfons, to enter, by the affent of the tenants, into lands which adjoined to their churches, to convert them into church yards, and to confecrate them for burying places, by virtue of bulls from the pope, without licence from the King or the chief lords. To put a check to this practice, which it seems had become a very ferious evil, it was declared by the 15 Rich. 2, c. 5, that it was manifeftly within the ftatute of mortmain. THE ecclefiaftics had also, in order further to elude the former ftatutes, invented, or adopted from the Roman law, a distinction between the poffeffion of land, and the use or beneficial intereft, and had procured many to be infeoffed, to the use of religious houfes or other spiritual persons, of houses, lands, advowfons, and the like; and the clerical chancellors had affumed a power of compelling the feoffees to perform the truft which had been repofed in them; by which means, the fame inconveniencies were foon felt by the King and the lords, which would have refulted from a (a) Notes to Hargrave and Butler's Co. Lit. 100. b. direct alienation in mortmain. To remedy this abuse, it was enacted by the fame ftatute, 15 R. 2, c. 5, that, within a limited time, all those who were then poffeffed by feoffment, or by any other means, of lands and tenements, fees, advowsons, or poffeffions of any other kind whatever, to the use of religious people, or other spiritual persons, should either regularly convey them in mortmain, by the licence of the King and of other lords, or that they should, within the fame time limited, fell them to fome other use, under the penalty of their being forfeited to the King and to the lords respectively, according to the provifions of the ftatute de religiofis (a). And, under the fame penalty, it was further enacted, that from thenceforth no fuch purchase should be made, so that fuch religious houses or other fpiritual perfons fhould enjoy the profits. ALL the ftatutes of mortmain hitherto made, relate only to ecclefiaftical corporations; which affords one strong prefumption, if direct proof were wanting, that civil corporations were of much later origin than the ecclefiaftical. The former began now, however, to attract the public attention, and the fame inconveniencies to be felt from the appropriation of land or tenements by them as by the latter. IT was therefore enacted by the fame ftatute, 15 R. 2, c. 5, that it should extend to lands, tenements, fees, advowfons, and other poffeffions, purchased or to be purchafed to the use of gilds or fraternities; and, "because mayors, bailiffs, and commons of cities, boroughs, and other towns which had perpetual commonalty, and others who had perpetual offices, were as perpetual as people of religion," it was enacted that these should not purchase to them, and to their commons, or office, under the penalty (a) 7 Ed. 1, ft. 2. mentioned mentioned in the same statute de religiofis; and that others fhould not take to their use, under the same penalty. AND to remedy fome inconveniencies which had been felt by parishioners from the appropriation of benefices by religious houses, it was provided by the next chapter (b) of the fame ftatute, that in every licence for the future, to be made in chancery for the appropriation of any parish church, it should be expressly mentioned, that the diocefan of the place fhould appoint, according to the value of the church, a convenient fum of money to be paid and distributed yearly, of the fruits and profits of the fame church, by thofe to whom the appropriation was made, and their fucceffors, to the poor parishioners; and that the vicar fhould be well and sufficiently endowed. THE next ftatute we meet with, which feems to have fome relation to the ftatutes of mortmain, is the 21 H. 8, c. 6, f. 5, by which it is provided that parfons, vicars, curates, parish priefts, and other spiritual perfons, might take and receive any fum of money, or other thing, which by any perfon dying fhould happen to be difpofed, given, or bequeathed to them, or any of them, or to the high altar of the church. BUT this is not properly an exemption from the penalty of the ftatutes of mortmain, because the property permitted to be taken is perfonal, and cannot go in fucceffion in the cafe of a fole corporation. It is rather a provifion against the fuppofed confequence, from the restraint imposed in the preceding part of the ftatute, on the claim of mortuaries or corfe prefents. By the preamble of the ftatute 23 H. 8, c. 10, it appears that it had become a frequent practice to convey by feoffment, fine, recovery, and other affurances; manors, lands, (b) 15 R. 2, c. 6. tenements, |