An Ancient Legality that Named a House

By Sarah Rayne

The legal profession has always been a novelists’ treasure house, and lawyers themselves are a gift to writers of fiction. Old documents, particularly ones held by the family solicitor, such as a Will, can provide motives the reader hasn't yet suspected, and extra detail for the author to draw on.

Charles Dickens drew on his time as a solicitor’s clerk and court reporter to weave satirical portrayals of the English legal system, with characters caught like hapless insects in the dusty spider-strands of the law.

 

When, in Oliver Twist, Mr Bumble advised a court that, ‘The law is an ass’, Dickens may have been borrowing from a 17th century play called Revenge for Honour, which is attributed to both George Chapman and Henry Glapthorne, depending on which source you check. Not much seems known about Henry Glapthorne, but apparently Master Chapman signed an agreement for a loan which never materialised. According to the reports, he spent years petitioning Chancery to release him from payment, but at one stage was arrested for debt. (A fate which hovers over many writers to this day). Under those circumstances (supposing the facts to be accurate), it’s hardly surprising that Master Chapman did what a great many other writers have done: he wrote out his frustrations in the plot.

English law is peppered with all kinds of curious legalities – many of which had names that have almost vanished from the dictionaries. There are tithes and torts and peppercorn rents. There’s assumpsit (medieval breach of contract), and gavelkind (a Saxon form of limited land ownership). There’s something called aberemurder (spontaneous and gratuitous murder) and there’s witenagemote, which was an assembly of local elders in medieval England.

And there are one or two ancient laws, whose fragments still crop up…

Some years ago, when writing a novel, I searched for an appropriate house name for the brooding old orphanage/workhouse that played such an integral part in the plot. Names of places matter just as much as names of characters. You can’t call a Victorian asylum Rosemount Manor, or a gaol housing condemned prisoners Summerville Court.

Then I came across mortmain.

In medieval times, kings often had the amiable – if unthinking – habit of bestowing large swathes of land on religious houses. This was excellent for the abbeys and monasteries and churches of course – it resulted in them becoming extremely wealthy. Land yields profits, and in those days there would be all kinds of revenue to be scooped up: tenant farmers, who must pay rent to their overlord – fishing rights on stretches of river, grazing rights on open land. Market days and fairs, for which pedlars could set up stalls – and for which tolls were payable.

But if the abbeys and the monasteries were raking it in, the king was not. The problem was that religious houses do not succumb to mere mortality – they are never under age, neither do they marry, commit felony, or become attainted for treason. They do not, in short, fall victim to any of the fates that generate taxes. Thus, on the death of an abbot, the land simply passed to the next abbot – meaning that it was held in perpetuity, and that the medieval equivalent of modern death duties could not be enforced. This was known as mortmain – from Old French mortemain, and from the medieval Latin manus mortua. Mortmain was the possession of property in dead hands.

As tensions between the church and the Crown increased, ways to close this mortmain loophole were sought.

The first attempt seems to have been made by King John, in 1215, with Magna Carta – that ‘Great Charter of the Liberties’ that came into being at the famous meeting at Runnymede.

Magna Carta was never straightforward. John was not popular with the barons; he had squabbled rather disastrously with the French, and he was resented by the Church, who did not like being told what to do by an Angevin king, and, moreover, a king whom they had excommunicated in 1209. Magna Carta went into several editions, was the subject of many objections, and was tweaked until it squeaked. It almost makes the junketings of Juncker, Barnier and May seem like a parish council tiff.

But one of Magna Carta’s provisions was an attempt to prohibit the form of land ownership known as mortmain. It was unfortunate that John died in 1216 before he could get this fully established, because his son, Henry III, was not over-enthusiastic about enforcing it. Henry liked the Church. He liked its authority, and he liked knowing it was on his side. He was not going to get into tussles with it over the ownership of land and the sneaky side-stepping of taxes.

It was Henry’s son, Edward I, he of the lion-like appearance and warlike demeanour, who took up the cudgels and brought the prohibition of perpetual ownership centre stage. There were two Statutes – in 1279 and 1290 – and the 1279 one has no truck with ambiguity. It prohibits, “any person whatsoever, religious or other, to buy or sell, or under colour of any gift, term or other title, to receive from anyone any lands or tenements in such a way that such lands and tenements should come into mortmain”.

That, thought Edward and his advisors, would put the nuisance firmly in its place. More to the point, it would ensure that the kingdom’s revenues were preserved – and in time, increased.

A sceptic might wonder if a side-aim of this was to check the growing wealth and power of the church, and a cynic might call to mind how vastly expensive wars are, and how helpful taxation is in funding them. And Edward Plantagenet certainly fought a great many wars.

But even with the Statute of Mortmain firmly in existence, the problem persisted. Over the years, wise men and fools – kings and princes and chancellors – expended time and energy trying to break the legal grip of the church. Lawyers pondered and wrangled in leisurely and expensive fashion. It was an irritant and a constant cause of vexation. Not for nothing, does Shakespeare give a character in Henry VI the devout plea, ‘First thing we do, let’s kill all the lawyers’.

It was not until more than two centuries later that matters were resolved. Henry VIII swept aside the old order, gave way to the new, and confiscated Church lands wholesale. Amidst the carnage that was the Reformation, the law of Dead Man’s Hand became more or less obsolete. It was, in fact, finally abolished in 1960.

But whatever mortmain’s complexities, it provided a splendid name for my fictional house in A Dark Dividing.
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Sarah Rayne’s first novel was published in 1982, and since then she has written more than 25 books. As well as being published in America and Australia, her novels have been translated into German, Dutch, Russian, and Turkish.The daughter of an Irish comedy actor, Sarah began writing in her teens, with plays for the Lower Third to perform in her convent school.Much of her inspiration comes from the histories and atmospheres of old buildings, which is strongly apparent in many of her settings – Charect House in Property of a Lady, Twygrist Mill in Spider Light, and the Irish cottage,Tromloy, in Death Notes.  Music also influences a number of her plots: the music hall songs in Ghost Song, the eerie death lament ‘Thaisa’s Song’ in The Bell Tower, and the lost music in Chord of Evil that hides a devastating secret from WWII.
Connect with her at http://www.sarahrayne.co.uk/
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Find out more about Death Notes here: http://www.sarahrayne.co.uk/project/death-notes