Page:American Historical Review, Volume 12.djvu/752

 742 Charles Gross towns was directed primarily against the monks ; the seculars are rarely mentioned in the prohibitions against alienations in mort- main.^ Already in the time of Edward I. it became customary, however, to petition the king for licence to alienate real property either to regulars or to seculars, and permission was freely granted in return for the payment of a " fine ".- But some of the boroughs claimed the right to substitute the licence of the town authorities for that of the king.^ Finally, attention should be called to the fact that the prohibi- tions in the boroughs against the acquisition of real property by religious houses preceded national legislation on the same subject. We find such prohibitions in the boroughs long before 1217, and many examples of the more stringent legislation of 1279 are found in town charters during the century preceding Edward I.'s statute.^ Though this statute seems to have been passed mainly to safeguard the lords from the loss of their escheats and services, a precedent for such legislation existed in the boroughs and may have exerted some influence on the minds of the law-makers in 1279. just as in Germany the municipal prohibitions of grants in mortmain were copied by the territorial princes.' Because " the living hand was lively ".^ in the boroughs, the pressure of the dead hand was felt there earlier than elsewhere : and agitation to relieve this pressure began in the portmote earlier than in parliament. Cii.xRLES Gross. 'See above, p. 740 (especially the charters of Chard and Warton), and Hist. MSS. Com.. IX. I. The customal of Godmancheser, 1324. mentions "priests, religious men, or any foreigner"; at Hereford, 1348, tenements may be be- queathed " preter in manum mortuam ". Borough Customs, ed. Bateson, II. 97; Municipal Corp. Com. Report, 1835, p. 2838. Some grants of land made by the clergy to laymen contain the restriction that it is not to pass to any religious house. Hist. MSS. Com., IX. 50; Parkin. Freebridge Hundred. 125. In 1269 the citizens of Canterbury gave land to Thomas of Sandwich, cleric, to be held by him and his assigns " not being religious houses ", Cal. of Charter Rolls. II. 123. 2 See List of Inquisitions ad Quod Damnum; Year Book 33-33 Edn: I., ed. Horwood, 499. For the power of the king to grant licence, see also Britton, ed, Nichols, I. 227; Fleta. bk. in., ch. v.: Statutes of the Realm (iSio), I. iii, 131. 30^. 3 This right was claimed by Scarborough, Winchelsea, Rye, and Hastings. Borough Customs, ed, Bateson, II. 201-202 ; Lyon, Dover, II. 355, 375 ; Hollo- way, Rye, 146. A royal grant of 1327 allows the citizens of London to bequeath their tenements in mortmain ; Lincoln and Bristol also claimed to have this custom. Historical Charters of London, 53-54; Madox, Firma Burgi, 23; Borough Customs, ed. Bateson, II. 202 ; Ricart's Kalendar. ed. Smith, 97. For alienations in mortmain with the consent of the town council, on the Continent, see Loning, Das Testament im Gcbiet des Magdeburger Stadtrcchtes, 125-127. ' See the list of charters, above, p, 739. 5 Arnold, Freistddte, II. 178; von Maurer, Sliidleverf.. I, 400. •■ Maitland, To'U'nship and Borough, 63.