mortmain – The Reformation

Mortmain, Praemunire,
and Provisors

Three practices or principals of the medieval church were seen to interfere in secular rule –

Mortmain, Praemunire and Provisors. These three principals

were eventually enshrined in English  law and became the bain of the clerics` ambitions. It effectively stemmed the flow to Rome of ownership of land; civil complaints and authority for the secular law ( also a source of revenue from Indulgences);  benefices and  money from rents and tithes, The early legislation tended to  lump all three aspects together but by the reign of Edward III (1327-77) they were

becoming distinct and separate causes ( or abuses) for the law to address.

For simplicity in
understanding their use to counteract the Church of Rome: for Mortmain
think transfer of land ownership; for Praemunire think 
the kings supremacy ; for Provisors think church benefices and
patronage.

Mortmain.

Edward I  was the first to introduce a Statute of Mortmain in 1278-9 (7 Edward I )  

to constrain the disposal of land by both his lieges and the Church.
Mortmain is a condition  imposed by past events, or dead person

often in a will, hence `dead hand`. In Edward`s time the statute forbade the sale or disposal of land , particularly by and to  the Church, save by a licence from the king. Notably it included the lands of universities and colleges which were run by the clerics. What was happening was the disposal of ecclesiastical benefices before they became vacant, to priests of the Pope’s own choosing and, moreover, not necessarily resident in England. Another effect was on the King`s revenues as it avoided death

duties.

The technical difficulty was that the  endowment of land to the Church  meant it  became their property in perpetuity. Normally land was held in tenancy of some form (originally from the king as the chief landlord), and could therefore revert to him when the tenant died, or was declared forfeit for treason etc. But  the Church ( or other corporate body ) never dies, only its officers change. Thus disposal became permanent. The practice was having an obvious impact on ownership  with more and more land accruing to the church and the monasteries, and the revenues from it filling foreign pockets. This effected both local lords and nobles as well as the king. Corporate ownership was a new phenomenon that emerged from the Middle Ages and It

was the mortmain aspect that affected the early trades and guilds

associations who saw advantage in having a fraternal brotherhood as a corporate body. They were strictly controlled and licenced ( in Scotland under Seal of Cause) because incorporation technically replaced an

individual`s personal liability for its debts.

Praemunire is defined as the offence of disobeying the sovereign’s mandate ,

incurring forfeiture;and,  the writ grounded on that offence

.  The word is derived from the latin to `forewarn`  Praemunire was used to

mean  the offence of introducing papal authority into England and

used to denote the offences, usually ecclesiastical, prosecuted by means of such a writ, and also the penalties they incurred. In this the Pope was encouraging people generally, not just the priests, to resort to himself and his curia for determination of civil grievances – rather than to the King and his courts. It underlay the very touchy question of supremacy –

King or Pope ?

The first statute to be called the Statute of Praemunire was in

1353,  The king commanded that

” First, whereas our lord the king has been shown by the clamorous and grievous complaints of his lords and commons aforesaid how numerous persons have been and are being taken out of the kingdom to respond in cases of which the cognizance pertains to the court of our lord the king; and also how the judgments rendered in the same court are being impeached in the court of another, to the prejudice and disherison of our lord the king and of his crown and of all the people of his said kingdom, and to the undoing and annulment of the common law of the same kingdom at all times customary: therefore, after good deliberation held with the lords and others of the said council, it is granted and agreed by our said lord the king and by the lords and commons aforesaid that all persons of the king’s allegiance, of whatever condition they may be, who take any one out of the kingdom in a plea of which the cognizance pertains to the king’s court or in matters regarding which judgments have been rendered in the king’s court, or who bring suit in the court of another to undo or impede the judgments rendered in the king’s court, shall be given a day … [on which] to appear before the king and his council, or in his chancery, or before the king’s justices in their courts, either the one bench or the other, or before other justices of the king who may be deputed for the purpose, there to answer to the king in proper person regarding the contempt involved in such action. And if they do not come in proper person on the said day to stand trial, let them, their procurators, attorneys, executors, notaries, and supporters, from this day forth be put outside the king’s protection, and let their lands, goods, and chattels be forfeit to the king, and let their bodies, wherever they may be found, be taken

and imprisoned and redeemed at the king’s pleasure..”.

An instance where the writ of praemunire was used against papal intrusion was that of Richard Hun, a London craftsman who objected to exorbitant fees demanded by a priest when one of his children died. He won his case but lost his life subsequently,

when murdered while a prisoner in the Lollard`s Tower, at St Paul`s.

Provisors.

A Provisor literally is one who provides; a purveyor. In the Church terminology  he was the

steward, or treasurer of a religious house.

Also, one who
is inducted into a benefice by the Pope before the death of the incumbent. In English law it became someone who procures or receives a papal provision and overlapped the often thorny matter of patronage and

presentation to benefices.

Edward I (1272-1307) was the first king to try and curtail the intervention by Rome through his Statute of Provisors in 1306 and it became the basis on which later legislation was founded by Edward III in 1351-33.The 1306 statute enacted “that no tax imposed by any religious persons should be sent out of the

country whether under the name of a rent,
tallage, tribute or any kind of imposition.” 

The 1351 Statute of Provisors of Benefices (25th of Edward III, St. 4 (1350-1) prohibited the granting of papal benefices and legal appeals to the Papal Curia and ordained the free election of all dignities and benefices. One of the considerations at this time was the need to fund the Hundred Years War against France  and diversion of the very substantial flows of money to Rome would have been most helpful. To complicate issues during the Great Schism , when there were up to three Popes, England supported Rome

against Avignon.

In 
Richard II‘ s reign (1377-99) an Act referred to as the Statute of Praemunire,  stated “that the right of recovering the presentments to churches,

prebends, and other benefices . . .

belongeth only to the king’s court of the old right of his crown, used and approved in the time of all his progenitors kings of England,”  It then  condemns the practice of papal translation, and  enacts “that if any purchase or pursue, or cause to be purchased or pursued in the ‘court of Rome, or elsewhere, any such translations, processes, and sentences of excommunications, bulls, instruments or any other things whatsoever . . . he and his notaries, abettors and counsellors” shall be put out of the king’s protection, and their lands

escheat.”

The Statute, therefore, enacts that elections of bishops shall be free, that owners of advowsons shall have free collation and presentation, and that attempted reservation, collation, or provision by the Court of Rome shall cause the

right of collation to revert to the king.

If you want to dig deeper: related Statutes are 27 Edward III, St. 1, c. 1; 38 Edward III, St. 2; 3 Richard II; 7 Richard II, c. XII; 12 Richard II, c. XV; 13 Richard II, St. 2; 16 Richard II, c. 5, and finally in the parliament of 1400-1, the

Statute 2 Henry IV, c. 3, c. 4.

 Recent legislation is Statutory Instrument 1987 No. 773 ,The Patronage

(Benefices) Rules 1987.

Modern Catholic definition of Benefice.

Peter`s Pence.

Restraint on
Rome Letter of 1231 AD.

A view of
ecclesiastical benifices in 1374.