Page:The Green Bag (1889–1914), Volume 19.pdf/381

 THE GREEN BAG

353

ANCIENT

MORTMAIN

AND

MODERN

MONOPOLY

By Richard Selden Harvey PART I - MONOPOLY AT the inception of this account of one form of what a recent work has characterized "the greatest of all mediaeval problems, the relation of Church and State," it will be wise to define the meaning of mortmain, and the Century Dictionary has supplied this in the words following, "Pos session of lands or tenements in dead hands, or hands that cannot alienate, as those of ecclesiastical corporations. ' ' This declaration of the meaning of the Norman-French law term, should not be accepted without a protest that the true intent implies that the "dead hand" is unwilling rather than unable to alienate the riches once acquired and firmly affixed among its treasures. Sir William Blackstone travels somewhat afield in discussing this very subject, and after expressing his disagreement with Coke's views therein, evolves the theory that the name is due to the character of the recipient, i.e., a reli gious body, who were "professed" and accordingly "were reckoned dead persons in law." But whatever the exact definition and whencesoever the derivation — the fact remains that within one century after the Conquest, to wit, in 1122, the Church was the largest land owner in England, and on the authority of Hallam, "possessed nearly half the lands of Europe." A century later, in the middle of the thirteenth century, the envoys from Eng land at the Council of Lyons, in a solemn remonstrance, assert that the Church drew from their realm a yearly sum far exceeding the royal revenue. These statements have sufficed to show the magnitude of the vested interests of the Church at the period named, and of the formidable task preseuted to any state or

order undertaking to limit or curb such transcendent power, and it may, perhaps, be permitted to turn aside from the general theme for a moment to inquire the source of such vast wealth. Of the British Church under the English and Danes, we know little outside of the pages of Bede in his "Historia Ecclesiastica Gentis Anglorum." St. Columba, Augustin, and Theodore each exercised his influence in the establish ment of the English Church, which was in full force before the year 700. The system was largely monastic, and as we know from Bede, the discipline was often of the laxest kind. Furthermore, the relation to the State was always very intimate, up to the time of the Conquest, and this in turn made the Church secular and political. Edward the Confessor viewed this ten dency with concern, but his remedy was not without its defects, for by forcing foreign ecclesiastics into the higher dignities of the Church, he aroused mistrust and hatred on the part of the people, at the same time that he infused new energy- and loftier ideals into a decadent institution. Foreign influ ence did in time prevail, but only after the fiery trials and deep humiliation attendant upon the then impending Conquest. This invasion, indeed, partook in a large degree of a religious movement. It has been called "a crusade before the crusaders," and the host assembled under William was blessed by the Pope, and the cause included among its objects a change in the ideals and the personnel of the English Church; indeed. William was pledged to that course. But while these facts interest us. they are potent only to explain the new element which became dominant in things eccle siastical — they do not show the sources from which the Church derived its vast wealth. This we will now explain.